Capriglione v. State of Delaware ( 2021 )


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  •        IN THE SUPREME COURT OF THE STATE OF DELAWARE
    MICHAEL CAPRIGLIONE,                  §
    §
    Respondent Below,                §
    Appellant,                       §   No. 138, 2021
    §
    v.                         §   Court Below: Superior Court
    §   of the State of Delaware
    STATE OF DELAWARE, ex rel.            §
    KATHLEEN JENNINGS,                    §   C.A. No. N21C-04-091
    ATTORNEY GENERAL,                     §
    §
    Petitioner Below,                §
    Appellee.                        §
    Submitted: July 14, 2021
    Decided:   October 1, 2021
    Before SEITZ, Chief Justice; VALIHURA, VAUGHN, TRAYNOR, and
    MONTGOMERY-REEVES, Justices, constituting the Court en banc.
    Upon appeal from the Superior Court. REVERSED.
    Stephani J. Ballard, Esquire, LAW OFFICES OF STEPHANI J. BALLARD, LLC,
    Wilmington, Delaware, for Appellant Michael Capriglione.
    David C. Skoranski, Esquire, DELAWARE DEPARTMENT OF JUSTICE,
    Wilmington, Delaware, for Appellee State of Delaware.
    TRAYNOR, Justice for the Majority:
    On April 5, 2021, Michael Capriglione was elected to a two-year term as a
    Commissioner of the Town of Newport. On the eve of his swearing-in ceremony,
    the Attorney General, on behalf of the State of Delaware, petitioned for a writ of quo
    warranto in the Superior Court.         The State contended that Capriglione was
    prohibited from serving as a Commissioner because he had been convicted of
    misdemeanor official misconduct for actions he took as Newport’s police chief in
    2018. That offense, the State argued, was a disqualifying “infamous crime” under
    Art. II, § 21 (“Section 21”) of the Delaware Constitution. The Superior Court stayed
    Capriglione’s swearing in to resolve this question and eventually held that he was
    constitutionally barred from holding public office.
    We considered Capriglione’s appeal on an expedited basis, hearing oral
    argument on July 14, 2021. On July 16, we issued an order reversing the Superior
    Court and allowing Capriglione to take the oath of office.1 In this opinion, we
    explain our reasons for doing so. We hold that, under Section 21, only felonies can
    be disqualifying “infamous” crimes.
    1
    Capriglione v. State, 
    256 A.3d 207
    , 
    2021 WL 3012671
    , at *1 (Del. July 16, 2021) (TABLE)
    [hereinafter Capriglione (Order)].
    2
    I
    A
    In May 2018, video surveillance captured Capriglione, Newport’s then-police
    chief, backing his police vehicle into a pickup truck in the department’s parking lot.
    Capriglione did not report the incident.2 A few days later, Capriglione ordered a
    “reset” of the town’s video-surveillance system purportedly to address an ongoing
    malfunction.3 The reset deleted the previous two weeks of surveillance, including
    the footage of the parking-lot incident.4 In authorizing the reset, Capriglione rejected
    a second remedial option that would have corrected the malfunction and preserved
    all existing data.5
    In June 2018, the State sought and obtained a grand jury indictment against
    Capriglione for four offenses: (1) failure to provide information at the scene of a
    collision, (2) careless driving, (3) tampering with physical evidence, a Class G
    felony, and (4) official misconduct, a Class A misdemeanor.6 The first two counts
    allege violations of the Delaware Motor Vehicle Code, while the latter two allege
    violations of the Delaware Criminal Code.
    2
    App. to Opening Br. at A18.
    3
    
    Id.
    4
    
    Id.
     at A120.
    5
    
    Id.
    6
    Capriglione’s indictment for misdemeanor official misconduct was under 11 Del. C. § 1211. The
    indictment, in pertinent part, read: “Michael Capriglione . . . while being a public servant, intending
    to obtain a personal benefit, committed an act, constituting an unauthorized exercise of official
    functions, knowing that the act is unauthorized.” App. to Opening Br. at A17.
    3
    The parties reached an agreement under which Capriglione pleaded guilty to
    careless driving and official misconduct and the State agreed to enter a nolle
    prosequi on the remaining charges, including the felony tampering count.7
    Capriglione also agreed to surrender his Council on Police Training certification and
    refrain from seeking further certification.8           In the written plea agreement,
    Capriglione acknowledged that he had “ordered the deletion of a surveillance video,
    which depicted him striking another vehicle in the parking lot of [the] Newport
    Police Department.”9 Capriglione was sentenced to one year of probation and
    ordered to pay approximately $3,800 in restitution.10
    Two years later, Capriglione decided to run for an open Commissioner
    position in Newport. Newport’s Charter, consistently with 15 Del. C. § 7555(c)(1),
    prohibits felons from serving as a Commissioner.11 But Capriglione’s official
    misconduct conviction was a misdemeanor, and he was elected on April 5, 2021,
    earning 32 votes, the most of the four Commissioners-elect.12
    7
    App. to Opening Br. at A18.
    8
    Id.
    9
    Id.
    10
    Id.
    11
    Charter of Newport, § 3-05. Ex. C. to Opening Br. at 5. Section 7555(c)(1) bars felons from
    municipal public service unless a town’s charter says otherwise. 15 Del. C. § 7555(c)(1).
    12
    App. to Opening Br. at A82, 91.
    4
    B
    The Delaware Attorney General brought this action on behalf of the State on
    April 14, 2021, seeking a stay of Capriglione’s swearing in—scheduled for the next
    day—and a writ of quo warranto13 to nullify his election.14 The Superior Court
    granted the stay and considered the parties’ filings as cross-motions for summary
    judgment.15
    On May 4, the Superior Court, recognizing that the question before it was both
    difficult and consequential, held that Capriglione was constitutionally barred from
    holding public office.16 It observed that this Court had never squarely addressed the
    question of whether a misdemeanor can be an “infamous crime” under Section 21.17
    13
    The writ of quo warranto “is a remedy that is essentially adversarial in nature that seeks to
    remove the challenged officer from a position. The writ or order is like a summons commanding
    the respondent to show by what authority he or she claims to hold an office and is, in effect, an
    order to show cause.” 65 Am. Jur. 2d Quo Warranto § 2 (Feb. 2021). As Justice Woolley explained
    in 1911, a “writ of quo warranto was in the nature of a writ or right for the king against him who
    claimed or usurped any office, franchise, or liberty, to inquire by what authority he supported his
    claim, in order to determine the right. . . . By the fiction of feudal law the king was the fountain
    whence all franchises were derived, the exercise of any of which without regal grant was
    considered a usurpation of the king’s prerogative. Hence the writ of quo warranto became a
    prerogative writ that issued of right, wherein the king, being the sole party in interest, instituted
    the action in his own name, in his own right, by his Attorney General.” Brooks v. State, 
    26 Del. 1
    ,
    36, 40 (Del. 1911).
    14
    Pet. for Writ of Quo Warranto ¶ 2. App. to Opening Br. at A6–7.
    15
    State ex rel. Jennings v. Capriglione, 
    2021 WL 1784084
    , at *3 (Del. Super. Ct. May 4, 2021).
    The Superior Court noted that quo warranto proceedings involve the issue of whether an official
    who has been elected and already assumed public office has the right to remain in office.
    Observing that this case involved the distinguishable question of whether Capriglione had the right
    to assume the office he was elected to, the Superior Court treated the State’s petition as a motion
    for declaratory judgment and decided the matter—without objection from the parties—“as though
    the parties [had] filed cross-motions for summary judgment.” 
    Id.
    16
    Id. at *1.
    17
    Id. at *4.
    5
    The court also distinguished as dicta other Superior Court cases that indicated that
    only felonies can be disqualifying.18               It then conducted a totality-of-the-
    circumstances analysis and held that Capriglione’s misdemeanor conviction was
    “infamous” because it involved dishonesty and “amount[ed] to a breach of the public
    trust” in light of Capriglione’s position as police chief.19
    We heard Capriglione’s appeal on an expedited basis and reversed the
    Superior Court, allowing him to be sworn in.20 After considering the historical
    understanding of Section 21, the longstanding interpretation of the provision by this
    Court and the Superior Court, and the General Assembly’s activity in this area, we
    hold that only felonies can be disqualifying “infamous” crimes under the Delaware
    Constitution.
    II
    This Court reviews the trial court’s ruling on a motion for summary judgment
    de novo.21 We review questions of law and constitutional claims de novo.22
    18
    Id. at *4–6.
    19
    Id. at *8.
    20
    Capriglione (Order), 
    2021 WL 3012671
    , at *1.
    21
    Furman v. Del. Dep’t of Transp., 
    30 A.3d 771
    , 773 (Del. 2011) (quoting Ramirez v. Murdick,
    
    948 A.2d 395
    , 399 (Del. 2008)).
    22
    Doe v. Wilmington Hous. Auth., 
    88 A.3d 654
    , 661 (Del. 2014) (citing Sheehan v. Oblates of St.
    Francis de Sales, 
    15 A.3d 1247
    , 1258 (Del. 2011); Lambrecht v. O’Neal, 
    3 A.3d 277
    , 281 (Del.
    2010)).
    6
    III
    “Any analysis of a Delaware Constitutional provision begins with that
    provision’s language itself.”23 Our task is to ascertain both the intent of the delegates
    to the Constitutional Convention of 1897 and the original public meaning of the
    language at issue.24 When the historical understanding of the provision is not
    dispositive, “we next turn to precedent[.]”25 In doing so, we consider the decisions
    of this Court and any well-developed decisional law of our State’s lower courts.26
    A
    1
    We begin, as the Superior Court did, with the text of Section 21. To the extent
    that the meaning of the text is not self-evident, we turn to the records of the
    Constitutional Convention of 1897 and other historical sources to determine how the
    framers intended the provision to operate and how the people of Delaware would
    23
    In re Request of Governor for Advisory Opinion, 
    950 A.2d 651
    , 653 (Del. 2008) [hereinafter
    Advisory Opinion (Pepukayi)].
    24
    Id.; In re Request of Governor for an Advisory Opinion (Del. Const. art. III, § 11), 
    905 A.2d 106
    , 108 (Del. 2006) (“The purpose of this brief reference to the Delaware Bill of Rights is to
    illustrate the significance of knowing the original text, context, and evolution of any phrase that
    appears in the present Delaware Constitution.”).
    25
    Advisory Opinion (Pepukayi), 
    950 A.2d at 653
    .
    26
    LG Electronics, Inc. v. InterDigital Comms., Inc., 
    114 A.3d 1246
    , 1249 (Del. 2015); see Blue
    Chip Stamps v. Manor Drug Stores, 
    421 U.S. 723
    , 733 (1975) (explaining that the “longstanding
    acceptance by the courts” of a single interpretation, and the legislature’s “failure to reject” it,
    favored approval of the interpretation.); see also Blau v. Lehman, 
    368 U.S. 403
    , 414 (1962)
    (holding that the legislature “is the proper agency to change an interpretation [] unbroken since its
    passage.”).
    7
    have understood its language at the time of its adoption.27 This exercise leads us to
    conclude that the framers understood Section 21 “infamous crimes” to include only
    felonies and offenses punishable by multiple years in prison.
    Section 21 provides:
    No person who shall be convicted of embezzlement of the public
    money, bribery, perjury or other infamous crime, shall be eligible to a
    seat in either House of the General Assembly, or capable of holding any
    office of trust, honor or profit under this State.
    Two textual features of Section 21 are noteworthy.
    First, although the delegates provided elsewhere in the Constitution that “any
    high crime or misdemeanor” could support impeachment of a public official,28 the
    text of Section 21 does not go so far.
    Second, Section 21 enumerates three specific disqualifying offenses—
    “embezzlement of the public money,29 bribery,30 [and] perjury31”—each of which
    carried a multi-year jail sentence in 1897 or was a felony. The natural reading of
    27
    Bridgeville Rifle & Pistol Club, Ltd. v. Small, 
    176 A.3d 632
    , 642 (Del. 2017).
    28
    Del. Const. art. VI, § 2.
    29
    Del. C. 1852, ch. 153, vol. 16, §§ 1–2 (1893) (prescribing up to ten years’ imprisonment for
    those convicted of embezzlement).
    30
    Del. Const. art. V, § 7 (prescribing up to three years imprisonment for those convicted of bribery
    related to elections); see also State v. Collins, 
    17 Del. 420
     (Del. Gen. Sess. 1898) (stating that in
    “the first case under the new constitution,” defendant guilty of election bribery faced up to three
    years in prison).
    31
    Del. C. 1852, Ch. 130, § 1 (1893) (defining perjury as a felony).
    8
    “other infamous crime,” then, is as a reference to serious offenses punishable by
    felony status or more than one year in prison.32
    The convention debates support this inference. Although the discussion of
    Section 21 itself was brief,33 the delegates fixed their attention on the meaning of
    “infamous crime” when they debated Art. XV, § 6 (“Section 6”), which provides
    that “[t]he Governor shall remove from office any public officer convicted of
    misbehavior in office or of any infamous crime.” As a textual matter, the separate
    enumeration of “misbehavior in office” and “infamous crime” indicates that the
    framers saw the offenses as distinct; otherwise, one or the other would be surplusage.
    Delegate William C. Spruance echoed this reading, explaining that “misbehavior in
    office may not necessarily be an infamous crime.”34 As examples of what would
    32
    Under the ejusdem generis canon, courts will interpret a general term (here, “other infamous
    crime”) to reflect the class of objects described by the more specific terms accompanying it.
    William N. Eskridge, Interpreting Law: A Primer on How to Read Statutes and the Constitution
    408 (2016). Another oft-cited treatise has noted that the ejusdem generis canon “often gives rise
    to the question how broadly or narrowly to define the class delineated by the specific items
    listed. . . . The court has broad latitude in determining how much or how little is embraced by the
    general terms.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
    Texts 207 (2012).
    33
    3 Debates and Proceedings of the Constitutional Convention of the State of Delaware 2257
    (1958) [hereinafter Delaware Constitutional Debates]; see also 4 Delaware Constitutional
    Debates 2886. William Saulsbury of Dover introduced Section 21 and began the short debate:
    WILLIAM SAULSBURY: This section is entirely new matter. We have at present
    no Constitutional provision on the subject.
    EDWARD G. BRANFORD: The same provision is found in many of the
    constitutions of the states. It seemed to the Committee to be an eminently wise and
    proper one.
    WILLIAM SAULSBURY: It is only new to our Constitution.
    CHAIRMAN COOCH stated the question on agreeing to the section.
    Whereupon [Section 21] was adopted
    34
    4 Delaware Constitutional Debates 2969.
    9
    constitute an “infamous” crime he listed larceny and robbery, two common-law
    felonies.35
    Spruance also told his fellow delegates that “[t]here would be no difficulty in
    discovering what were infamous crimes[.]”36 Although this dispute may seem to
    refute that prediction, it is also the case that the 1880s and 1890s saw a growing
    national consensus about the meaning of “infamous crime.” The United States
    Supreme Court drove this understanding with a series of decisions interpreting the
    Fifth Amendment to the federal Constitution, which guarantees that “[n]o person
    shall be held to answer for a capital, or otherwise infamous crime, unless on a
    presentment or indictment of a Grand Jury[.]”37 In 1885, the Court held in Ex parte
    Wilson38 that “a crime punishable by imprisonment for a term of years at hard labor
    is an infamous crime[,]” thus requiring an indictment for prosecution. It repeated
    this standard twice in the next decade.39 And while the convention debates on
    Sections 6 and 21 do not refer to the federal definition of “infamous crime,” most of
    35
    Id. at 2968; see Del. C. 1852, vol. 13, § 14 (1893) (defining larceny as a felony). At common
    law, robbery—which is a larceny accompanied by actual or threatened force—was also a felony.
    State v. Campbell, 
    22 A.2d 390
     (Del. Gen. Sess. 1941) (“Robbery at common law has been defined
    as ‘the felonious and forcible taking from the person of another good or money of any value, by
    violence or putting him in fear.’”).
    36
    Id. at 2968.
    37
    U.S. Const. amend. V (emphasis added).
    38
    Ex parte Wilson, 
    114 U.S. 417
    , 429 (1885).
    39
    Parkinson v. United States, 
    121 U.S. 281
     (1887) (“imprisonment [] for a period longer than one
    year . . . makes the crime infamous[.]”); In re Bonner, 
    151 U.S. 242
    , 254 (1894) (“infamy is
    attached” to “imprisonment [] for a period longer than one year, or at hard labor.”).
    10
    the delegates were trained in law,40 and the Wilson line of cases impacted all federal
    defendants, leading to national attention.41
    In our view, the constitutional text and the historical evidence of its
    understanding strongly suggest that Section 21’s “infamous crimes” bar did not
    encompass offenses that were not felonies or punishable by more than one year in
    prison. That said, we recognize that the evidence is not so conclusive as to establish
    a definitive—and case dispositive—historical understanding. We therefore address
    next the State’s historical arguments, and then turn to the large body of Delaware
    case law that has interpreted Section 21.
    2
    The State urges us to adopt the interpretation of “infamous crimes” endorsed
    by the supreme courts of Pennsylvania and Arkansas. Both states have similar
    constitutional provisions, and we have recognized that the decisional law of other
    states may be persuasive, especially when there is a “historical convergence”
    between the laws or constitutional provisions at issue.42 Here, however, there is no
    40
    Randy J. Holland, The Delaware State Constitution 23–24 (2d ed. 2017) (“The delegates to the
    Convention were a more diverse group than were present at previous conventions. There were
    fewer members involved in public service. Only ten of the delegates had served in the General
    Assembly prior to the Convention. Law continued to be the primary avocation of many of the
    delegates, but there were also numerous businessmen, farmers, three doctors, and two preachers.”).
    41
    See Criminal Procedure – Effect of Erroneous Sentence, 
    9 Harv. L. Rev. 220
     (1895); Criminal
    Procedure – Excessive Sentence – Habeas Corpus – Jurisdiction, 
    9 Harv. L. Rev. 287
     (1895);
    Recent Cases, 7 Yale L. J. 141 (Dec. 1897).
    42
    Juliano v. State, 
    254 A.3d 369
    , 378–379 (Del. 2020) (citing Jones v. State, 
    745 A.2d 856
    , 866
    (Del. 1999)); see Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American
    11
    such convergence, because Pennsylvania and Arkansas adopted their “infamous
    crime” bars long before Delaware enacted Section 21, and in a different historical
    context. We therefore decline to follow the lead of either state.
    Arkansas enacted its “infamous crime” disqualification provision in 1874.43
    The provision predates the Wilson line of cases, where the U.S. Supreme Court
    developed a definition of “infamous crime” in the context of the federal Fifth
    Amendment’s grand jury guarantee. The Arkansas Supreme Court recognized the
    significance of this in State v. Oldner:44
    Appellee also relies on several federal cases which have interpreted an
    infamous crime consistent with the historical context that a crime is
    infamous if it is punishable by imprisonment of more than one year. . . .
    While Oldner’s argument might seem persuasive at first blush, it
    ignores the fact that [] the Supreme Court’s decision in Wilson was
    handed down more than a decade after our most recent Constitution was
    drafted.
    Thus, while Oldner held that felonies and non-felony crimen falsi45 offenses could
    be disqualifying under the Arkansas Constitution, its interpretation was rooted in a
    different constitutional history than our own. The same is true of Pennsylvania,
    Constitutional Law 17 (2018) (discussing state-specific traditions and their potential impact on
    constitutional interpretation).
    43
    Ark. Const. of 1874, art. 5, § 9.
    44
    State v. Oldner, 
    206 S.W.3d 818
    , 823 (Ark. 2005).
    45
    The crimen falsi classification dates to Roman law and is generally understood to describe
    crimes “the commission of which involve[] some element of deceit, untruthfulness, or falsification
    bearing on the accused’s propensity to testify truthfully.” Gregory v. State, 
    616 A.2d 1198
    , 1204
    (Del. 1992) (internal citations and quotation marks omitted).
    12
    which also enacted its “infamous crime” bar in in 1874, eleven years before Wilson
    was decided and 23 years before Delaware ratified Section 21.46
    We decline to follow Pennsylvania’s case law in this area for two more
    reasons. First, the “seminal case” cited by the State—Commonwealth v. Shaver47—
    interpreted an old disqualification provision that bears little textual similarity to
    Delaware’s Section 21. Article VI, § 9 of Pennsylvania’s Constitution of 183848
    provided:
    All officers for term of years shall hold their offices for the terms
    respectively specified, only on the condition, that they so long behave
    themselves well; and shall be removed on the conviction of
    misbehavior in office, or of any infamous crime.
    In Shaver, the Supreme Court of Pennsylvania held that “infamous crimes” were
    those that rendered citizens “incapable of being a witness or juror,” and that
    disqualifying offenses included “treason, felony, and every species of the crimen
    falsi.”49 The textual differences between this provision and Section 21 are critical:
    according to Shaver, bribery was not disqualifying because “[bribery has] never been
    held to render persons, convicted thereof, infamous or incapable of giving evidence
    46
    Pa. Const. of 1874, art. II, § 7; see In re Braig, 
    590 A.2d 284
    , 286 (Pa. 1991).
    47
    Commonwealth v. Shaver, 
    3 Watts & Serg. 338
    , 
    1842 WL 4918
    , at *3 (Pa. 1842).
    48
    Pa. Const. of 1838, art. VI, § 9.
    49
    Shaver, 
    1842 WL 4918
    , at *4 (emphasis in original) (listing as crimen falsi offenses “such as
    forgery, perjury, subornation of perjury, attaint of a false verdict, and other offenses of the like
    description, which involve the charge of falsehood, and affect the public administration of
    justice.”).
    13
    or serving as jurors.”50 This conclusion makes little sense in Delaware, because
    bribery is an enumerated offense in Section 21.
    The second reason we decline to follow Shaver is that the Supreme Court of
    Pennsylvania has consistently altered and re-articulated its holding in that case. In
    1987, for instance, the Court explained that Shaver was not “sufficiently inclusive
    for the modern era.”51 In 2000, it repeated this observation52 and decided that
    Shaver’s holding that “infamous crimes” were those that disqualified citizens from
    jury service was not good law; instead, only Shaver’s classification of crimen falsi
    offenses as “infamous” still controls.53 This was significant because, in Delaware,
    misdemeanants are allowed to serve on juries; the only criminal disqualification is
    for “convicted felons who have not had their civil rights restored.”54 In any case, the
    shifting readings of Shaver suggest that it does not supply the true historical meaning
    of “infamous crimes.”
    To be clear, we do not criticize the jurisprudence of our sister courts in
    Arkansas and Pennsylvania. Instead, we simply find that their interpretations of
    50
    
    Id.
    51
    Petition of Hughes, 
    532 A.2d 298
    , 302 (Pa. 1987).
    52
    Com. ex rel. Baldwin v. Richard, 
    751 A.2d 647
    , 653 (Pa. 2000) (“[W]e have held that the
    definition espoused in Shaver was ‘not sufficiently inclusive for the modern era[.]’”) (internal
    citation omitted).
    53
    
    Id.
     (citing Shaver but rejecting “a mechanical rule whereby we deem a crime infamous solely
    on the grounds that it disqualifies one from serving as a juror.”).
    54
    10 Del. C. § 4509(b)(6).
    14
    “infamous crimes” do not necessarily reflect the historical meaning of Delaware’s
    Section 21.
    B
    Because the text and historical understanding of Section 21 do not answer the
    question before us conclusively, “we next turn to precedent to help us determine the
    meaning of ‘infamous crime.’”55 In this step, we consult not only our own decisions
    but also the decisions of our State’s trial courts, which are entitled to special weight
    when they establish a longstanding interpretation that the legislature has failed to
    question.56 That exercise reveals that, before this case, Delaware’s Section 21
    jurisprudence uniformly indicated that only felonies can be infamous crimes. And
    although we have never explicitly announced this rule as a holding, we do so today.
    The Superior Court first considered the scope of Section 21’s “infamous
    crime” disqualifier in 1970, when General Assembly candidate Johnny B. Johnson
    sought to have his conviction for grand larceny stricken from the records of the
    court.57 Sitting as a panel, President Judge Stiftel and Judge Christie held that
    Johnson had satisfied the statutory requirements for his request and ordered the
    55
    Advisory Opinion (Pepukayi), 
    950 A.2d at 653
    .
    56
    Id.; LG Electronics, Inc. v. InterDigital Comms., Inc., 
    114 A.3d 1246
    , 1249 (Del. 2015); see
    Blue Chip Stamps v. Manor Drug Stores, 
    421 U.S. 723
    , 733 (1975) (explaining that the
    “longstanding acceptance by the courts” of a single interpretation, and the legislature’s “failure to
    reject” it, favored approval of the interpretation.); see also Blau v. Lehman, 
    368 U.S. 403
    , 414
    (1962) (holding that the legislature “is the proper agency to change an interpretation [] unbroken
    since its passage.”).
    57
    State v. John Brice Johnson, 
    270 A.2d 537
     (Del. Super. Ct. 1970).
    15
    conviction struck.58 The Court noted, however, that Johnson had been arrested on
    suspicion of another larceny during his probation period, although no conviction was
    recorded.59 Thus, two days later, the panel ruled from the bench that “an infamous
    crime, as that phrase is used in our Constitution (Art. 2, Sec. 21), includes only
    felony convictions, without deciding that all felony convictions are necessarily
    infamous.”60 This decision clarified that Johnson’s larceny arrest did not disqualify
    him under Section 21. The Superior Court then confirmed in an opinion that Johnson
    was eligible to seek public office.61
    In Fonville v. McLaughlin,62 we reversed and held that Johnson was
    disqualified from holding public office. We decided, first, that Section 21 only
    applies to final judgments of conviction—rather than verdicts or pleas that are not
    yet final—because “as used in this constitutional provision creating a disability of
    citizenship, the word is to be construed in its narrow sense[.]”63 We then held that
    the striking of Johnson’s conviction from court records did not vacate it.64 Thus,
    Johnson’s felony grand larceny conviction was still subject to Section 21 review,
    58
    
    Id. at 538
     (applying 11 Del. C. § 4332(i) (repealed)).
    59
    Id.
    60
    McLaughlin v. Dep’t of Elections for New Castle Cty., 
    1970 WL 104909
    , at *1 (Del. Super. Ct.
    Oct. 15, 1970).
    61
    McLaughlin v. Dep’t of Elections and Johnson, No. 728, 1970, slip op. at 6 (Del. Super. Ct. Oct.
    19, 1970). Ex. B to Answering Br.
    62
    Fonville v. McLaughlin, 
    270 A.2d 529
    , 530 (Del. 1970).
    63
    
    Id.
    64
    
    Id.
    16
    and we decided that it was an “infamous crime.”65 We did not question the Superior
    Court’s explicit ruling that misdemeanors could not be infamous crimes.
    We next encountered Section 21 in 1976. In State ex rel. Wier v. Peterson,66
    the Attorney General sought a declaratory judgment that Edward Peterson was
    constitutionally barred from holding public office. Only felony convictions were
    before the Court, but we did not even suggest the possibility that misdemeanor
    convictions could be disqualifying.          We explained that Fonville established that
    felony grand larceny was an infamous crime but held that “[i]t does not follow
    . . . that [e]very felony is necessarily a crime of infamy.”67 Instead, “the totality of
    the circumstances in each case must be examined before a determination may be
    made that a specific felony is infamous.”68                 We concluded that Peterson’s
    convictions for felony sodomy in Pennsylvania were disqualifying under
    Section 21.69
    We pause here to note that the Superior Court’s analysis in this case depends
    on an expansive reading of Peterson. The court took note of Peterson’s examination
    of the totality of the circumstances and observed that we described Section 21 as “a
    character provision” establishing a “demanding norm.”70 In turn, the court found
    65
    
    Id. at 531
    .
    66
    State ex rel. Wier v. Peterson, 
    369 A.2d 1076
     (Del. 1976).
    67
    
    Id. at 1079
    .
    68
    
    Id.
    69
    
    Id.
    70
    Capriglione, 
    2021 WL 1784084
    , at *7.
    17
    that our “statement about the purpose of § 21 transcends the felony-misdemeanor
    distinction,” concluding, in essence, that any crime could qualify as “infamous” if
    the conduct fell short of this important, yet indeterminate, norm.71 But, in our view,
    Peterson does not support this step in the court’s analysis; the court’s reading
    overlooks the fact that the totality of the circumstances test was employed in
    Peterson not to open the door to an extension of Section 21’s reach to misdemeanors,
    but to determine whether the specific felonies of which Peterson was convicted were
    “infamous” within Section 21’s meaning.
    Returning to our review of this Court’s prior encounters with Section 21 and
    their influence on the Superior Court, we note that in both Fonville and Peterson we
    addressed the scope of Section 21 without disturbing the Superior Court’s holding
    that only felonies could be disqualifying. These opinions led the Superior Court to
    decide in Holloway v. State Dep’t of Elections for New Castle County72 that we had
    blessed the decision of President Judge Stiftel and Judge Christie in McLaughlin. At
    issue in Holloway was a candidate for election to the General Assembly who had
    been convicted on misdemeanor counts of tax evasion and making false statements.73
    These offenses were quintessential examples of crimen falsi. But, after quoting from
    71
    Id. at *8.
    72
    Holloway v. State Dep’t of Elections for New Castle Cty., 
    1992 WL 149511
     (Del. Super. Ct.
    June 25, 1992).
    73
    Id. at *1.
    18
    McLaughlin, Fonville, and Peterson, the Superior Court explained that “[r]elying on
    these precedents . . . plaintiff’s misdemeanor convictions were not convictions for
    ‘infamous crimes’ as contemplated by the Delaware Constitution.”74
    This unbroken line of decisions continued in Dorcy v. City of Dover Bd. of
    Elections.75 In Dorcy, the plaintiff sought a declaration that his Ohio misdemeanor
    convictions for sexual assault were not disqualifying under Delaware law. 76 The
    Superior Court made two holdings. First, the Court explained that it was “unwilling
    to overturn decisional law in this State and hold that a misdemeanor can ever be an
    infamous crime[.]”77 Second, the Court found that the plaintiff’s Ohio misdemeanor
    satisfied the elements of a Delaware felony and was disqualifying under Section 21.
    We affirmed.78 Our order explained that the plaintiff’s Ohio conviction
    “would constitute the analogous crime in Delaware of attempted unlawful sexual
    contact in the second degree, a felony.”79 We then held that the plaintiff’s specific
    felony was an “infamous crime” under Section 21.80 While our disposition was brief,
    it did not disturb the Superior Court’s reasoning that, under the felony-only doctrine
    74
    Id. at *2 (internal citations omitted).
    75
    Dorcy v. City of Dover Bd. of Elections, 
    1994 WL 146012
     (Del. Super. Ct. March 25, 1994)
    aff’d, 
    642 A.2d 836
     (Del. 1994) (TABLE).
    76
    Dorcy, 
    1994 WL 146012
    , at *6.
    77
    
    Id.
    78
    Dorcy v. City of Dover Bd. of Elections, 
    642 A.2d 836
    , 
    1994 WL 151030
     (Del. 1994) (TABLE).
    79
    Id. at *1.
    80
    Id.
    19
    developed in McLaughlin, Fonville, Peterson, and Holloway, the Ohio conviction at
    issue in Dorcy could only be disqualifying if it was a felony under Delaware law.81
    Our most recent encounter with Section 21 came in 2008, when Governor
    Ruth Ann Minner requested an advisory opinion relating to the nomination of
    Bernard Pepukayi to the office of Family Court Commissioner.82 Pepukayi had been
    convicted of two drug-related felonies shortly after turning 18.83 We concluded that
    Pepukayi—who was 17 when he committed the crimes—was not disqualified under
    Section 21, quoting Peterson for the proposition that “not every felony is necessarily
    an ‘infamous crime.’”84 Inquiring into the circumstances of Pepukayi’s felonies, we
    gave “considerable thought to our General Assembly’s enactments that direct us to
    the manner in which the people’s representatives believe Article II, Section 21
    should be interpreted today.”85 We found that the General Assembly’s stated goal
    of promoting “rehabilitation rather than retribution” for juvenile offenders was
    strong evidence that most crimes committed by minors are not “infamous.”86
    81
    To be clear, we do not suggest that our Orders in McLaughlin and Dorcy amounted to a tacit
    acceptance of the Superior Court’s reasoning in the appealed decisions. We simply observe that
    the decisional law pertinent to this case has percolated through the Superior Court and this Court
    for more than five decades.
    82
    Advisory Opinion (Pepukayi), 
    950 A.2d at 652
    .
    83
    
    Id.
    84
    
    Id. at 653
     (quoting Peterson, 
    369 A.2d at 1079
    ).
    85
    Advisory Opinion (Pepukayi), 
    950 A.2d at 655
    .
    86
    
    Id.
     at 655–657.
    20
    In sum, before this case, the Superior Court had consistently held in decisions
    dating to 1970 that only felonies can be considered “infamous” under Section 21.
    Meanwhile, the General Assembly’s only activity in this area has been to enact a
    statute, § 7555(c)(1), that prevents felons from holding municipal offices as a default
    rule—that is, unless a town’s charter says otherwise—but says nothing about
    misdemeanants. Thus, while it is true that we have never approved of the
    McLaughlin rule in a formal holding, settled Delaware law dictates one result. We
    therefore hold that only felonies can be considered “infamous” under Article II,
    Section 21 of the Delaware Constitution.
    V
    In closing, we observe that, when the delegates to the Convention of 1897
    gathered in Dover, neither the city nor the State had a professional police force.87
    The Wilmington Police Department had only hired professional officers since
    1891.88 As a result, community police forces operated as “civil servants of general
    resort,” and did not focus narrowly on crime control.89 In 1897, the Delaware
    87
    The State of Delaware, History of the Delaware State Police, https://dsp.delaware.gov/about-
    the-agency/ (last visited Sept. 28, 2021) (“On April 23, 1923, the General Assembly, at the request
    of the State Highway Department, enacted two laws that created the Delaware State Police.”).
    88
    The City of Wilmington, WPD History, https://bit.ly/3lvwFNU (last visited Sept. 28, 2021) (“In
    1891, the Delaware State Legislature passed the Metropolitan Police Act, which professionalized
    the Wilmington Police Department and called for the hiring of officers based on their ability to
    perform the job, rather than political appointments.”).
    89
    Erik H. Monkkonen, History of Urban Police, 15 Crime & Just. 547, 557–558 (1992); William
    J. Stuntz, The Collapse of American Criminal Justice 30–31, 132–134 (2011) (describing low
    conviction numbers and “remarkably small” prison populations during the end of the 1800s).
    21
    criminal statutes enumerated fewer than 75 offenses.90 Today, by contrast, Title 11
    of the Delaware Code lists more than 350 specific crimes and other parts of the Code
    enumerate many more.91 This growth is not unique to our state: nationwide, the
    authorities file approximately 13 million misdemeanor cases per-year, a number that
    corresponds to 42.6-per-1000 people.92
    When coupled with the State’s view that any conviction, given certain facts,
    can disqualify a citizen from public service, our modern tendency to sweep
    previously unregulated conduct into the criminal law’s purview would extend
    Section 21’s reach far more broadly than originally intended. We believe that the
    decisions of the General Assembly, the Superior Court, and this Court have correctly
    recognized this risk when interpreting Section 21. We therefore hold that only
    felonies can be “infamous” crimes under the Delaware Constitution.
    VI
    As previously stated in our July 16, 2021 order, we reverse the judgment of
    the Superior Court.
    90
    See Del. C. 1852, tit. 20, chs. 126-132 (1893).
    91
    11 Del. C. §§ 501-1474; See, e.g., 16 Del. C. §§ 4701–4799 (Controlled Substances Act).
    92
    Sandra G. Mayson & Megan T. Stevenson, Misdemeanors By The Numbers, 
    61 B.C. L. Rev. 971
    , 998 (2020) (excluding non-DUI traffic offenses); cf. William J. Stuntz, The Pathological
    Politics of Criminal Law, 
    100 Mich. L. Rev. 505
    , 511 (2001) (arguing that state codes “criminalize
    everything and everyone[.]”); see also Neil M. Gorsuch, A Republic, If You Can Keep It 242, 247–
    248 (2019) (“Our criminal justice system suffers from its own grave problems. According to the
    Heritage Foundation, the federal statutory books today contain more than an estimated 4,500
    criminal laws, most of very recent vintage. And that doesn’t even begin to account for criminal
    laws at the state and local levels[.]”).
    22
    VAUGHN, Justice, concurring:
    I agree that “infamous crimes” in Article II, § 21 is limited to felonies and
    does not include misdemeanors. I join in the Court’s opinion except for Part V. Part
    V is not relevant to my analysis of the case.
    23