Guy v. City of Wilmington ( 2021 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
SAMUEL L. GUY,
C.A. No. N20C-10-058 WLW
Plaintiff,
V.
CITY OF WILMINGTON,
Defendant.
Submitted: November 10, 2020
Decided: February 9, 2021
ORDER
Defendant’s Motion to Dismiss
Granted.
Plaintiff’s Motion for Partial Summary Judgment
Denied as Moot.
Samuel L. Guy, Esquire of Samuel L. Guy, Attorney at Law, Wilmington,
Delaware; attorney for Plaintiff.
Robert M. Goff, Jr., Esquire of City of Wilmington Law Department, Wilmington,
Delaware; attorney for Defendant.
WITHAM, R.J.
Samuel L. Guy v. City of Wilmington
C.A. No. N20C-10-058 WLW
February 9, 2021
This is the Defendant's, City of Wilmington (hereafter “the City”), Motion to
Dismiss pursuant to Superior Civil Court Rule 12(b)(6) for failure to state a claim
for which relief can be granted. On October 6, 2020, Plaintiff Samuel L. Guy
(hereafter “Guy”), Councilman at-large, filed a Complaint simultaneously! with a
Motion for Partial Summary Judgment and Motion to Expedite alleging that the
City Council of Wilmington, Delaware (hereafter “the Council”) improperly
declared a vacancy on the Council due to Councilmember Eric Congo (hereafter
“Congo”) residing outside the councilmanic district which Councilmember Congo
represented. After hearing the parties' positions and argument on the City's Motion
to Dismiss, this Court grants the motion for the following reasons.
Facts and Procedural Background
On July 30, 2020, Council President Hanifa Shabazz (hereafter “Shabazz’)
sent a letter to Congo to formally notify Congo that his council seat has been
declared vacant.” After sending the letter, Shabazz along with the remaining
members of the Council, introduced Agenda Item 4851 on August 20, 2020 to
formally certify that a vacancy did exist on the Council.? According to Guy, this
agenda item was not voted on during the August 20, 2020 Council session.
Instead, the Council voted to certify the vacancy on September 30, 2020 by a vote
of 5 yays, 4 nays, 2 present, and 1 absent. Again, according to Guy, one member
' Guy styled this action as a petition, for purposes of this decision all references to petitioner and
respondent will be plaintiff and defendant, respectively.
? Plaintiff’s Letter to Chambers, October 29, 2020.
3 Id.
* Plaintiff’s Comp. at ¥ 9.
Samuel L. Guy v. City of Wilmington
C.A. No. N20C-10-058 WLW
February 9, 2021
was present but “not allowed to vote.”> The vote was during a committee meeting
of the Council and not during a Regular or Special Council meeting.°
On October 6, 2020, Guy filed his Complaint along with his Motion for
Pretrial Summary Judgment and his Motion to Expedite. On November 2, 2020,
the City responded to Guy's Motion to Expedite the hearing. Also, on November 2,
2020, this Court held an office conference via video conference to discuss
scheduling a date for hearing all the parties' motions. This Court also set a
deadline for the City to file its Motion to Dismiss at November 4, 2020 and gave
Guy until November 9, 2020 to respond. Both parties complied with these
deadlines. This Court heard arguments on the Motion to Dismiss on November 10,
2020. At the close of arguments, this Court issued an order from the bench
denying Guy's Motion to Expedite the hearing and reserved judgment as to the
City's Motion to Dismiss.
Arguments of the Parties
Guy’s argument is that the Council acted in contradiction of the Charter of
the City of Wilmington (hereafter “the Charter”) when it convened a committee
meeting outside of the Council’s Regular or Special Meeting to vote to certify the
councilmanic district vacancy. Further, he asserts that the vote itself contravened
the Charter because it was not a super majority, but merely a majority of those
councilmembers who took a stance yes or no on the certification. Guy asserts that
this Court should grant declaratory judgment because (1) the September 30, 2020
> Id.
5 Id. at] 8.
Samuel L. Guy v. City of Wilmington
C.A. No. N20C-10-058 WLW
February 9, 2021
committee meeting was an improper mode of certifying a councilmanic district
vacancy; (2) that five votes were an insufficient number to declare such a vacancy;
(3) that the vote on September 30, 2020 actually defeated the certification; and (4)
that Shabazz and Mayor Michael Purzycki acted ultra vires.’ In support of his
assertions, Guy relies on the Delaware State Constitution, the Charter, and the
Home Rule Delegation charter.’
The Council argues that Guy’s Complaint should be dismissed on the
grounds that (1) there is no real controversy on which the Court could make a
declaratory judgment; (2) Guy has not articulated a “colorable claim and
threatened imminent irreparable harm;” and (3) this case is not justiciable because
it is a political question about how the Council is to certify a vacancy.”
Standard of Review
When considering a motion to dismiss under Superior Court Civil Rule
12(b)(6), a court must determine whether “the plaintiff may recover under any
reasonably conceivable set of circumstances susceptible to proof under the
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complaint. Further, while the court must afford the plaintiff “all reasonable
inferences that logically flow from the face of the complaint,” the court need not
“accept every strained interpretation of the allegations.”"!
7 Plaintiffs Letter to Chambers, October 29, 2020.
8 Td.
° Def.’s Motion to Dismiss ff 3, 5, and 7.
'° Hedenberg v. Raber, 2004 WL 2191164 *1 (Del. Super. Aug. 20, 2004).
" Td.
Samuel L. Guy v. City of Wilmington
C.A. No. N20C-10-058 WLW
February 9, 2021
Discussion
Justiciability and Political Question
This case is justiciable because it calls on this Court to construe certain
provisions of the Charter, including §§ 2-101 and 2-103 pertaining to qualifications
of councilmembers and filling vacancies on the council as well as Rule 23 of the
Council pertaining to amendments to rules that affect the rights and privileges of
councilmembers.
The facts, as they are presented by Guy, show that Shabazz notified Congo
of the vacancy of Congo’s second district seat on July 30, 2020.'? This notification
was in response to Congo publicly announcing that he no longer resided in the
second district.'* Following this, on August 20, 2020, the Council voted to put
certification of that vacancy on the Council's agenda and then voted to certify that
vacancy on September 30, 2020.'4
The nature of the September 30 vote is at issue because Guy argues that the
Council was unlawfully convened and the breakdown of the vote ultimately
certifying the vacancy was not a true majority of the total number present. First,
Guy characterizes the meeting in question as a “Committee meeting, not a Regular
or Special City Council Meeting.”'? The Charter specifies how the Council is to
convene its meetings, both regular and special. For regular meetings, “the council
2 Plaintiff’s Letter to Chambers, October 29, 2020.
3 Id. Ex. A.
4 Plaintiff’s Letter to Chambers, October 29, 2020.
'S Plaintiff’s Comp. at § 8.
Samuel L. Guy v. City of Wilmington
C.A. No. N20C-10-058 WLW
February 9, 2021
(sic) shall be open and at all times accessible to the public...[and] shall meet
regularly at least twice in each month.”'® Special meetings “may be held on the
call of the mayor, or the president of the city council, or a majority of the members
of the city council in accordance with the rules adopted as part of the rules of
procedure of the city council.”'’ Additionally, “[a] majority of all the members of
the council including the president of the council shall constitute a quorum, but a
smaller number may adjourn from time to time.”'® In light of these provisions and
facts presented, the Court cannot conclude that the Council acted improperly in
light of the Charter provisions related to convening the Council to carry out
business.
Additionally, arguing that such an action by the Council would require a
supermajority is a misinterpretation of the Charter. Guy argues that the declaration
of the vacancy should have been by a supermajority vote. Guy has attempted to
impose a supermajority vote on other aspects of Council business where such a
requirement was not necessary. In Guy v. City of Wilmington, 2020 WL 2511122,
(Del. Super. May 15, 2020), Guy asserted that a supermajority under Rule 23 was
necessary when passing ordinances; however, Rule 23 states “no rule may be
suspended or amended in derogation of an existing right or privilege of any
member, except by a two-thirds vote of all the members of Council.”!? The Court
‘6 Wilm. C. (Charter) § 2-204.
" Id.
8 Id.
Guy v. City of Wilmington, 2020 WL 2511122 at *5 (Del. Super. May 15, 2020).
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Samuel L. Guy v. City of Wilmington
C.A. No. N20C-10-058 WLW
February 9, 2021
in that case noted that Rule 23 only applies in specific instances where a
councilmember's rights or privileges are being affected.?? The Charter provision
related to council seat vacancies and declaring such a vacancy is clear and does not
specify the need for any vote, let alone a supermajority.
The Charter lists the qualifications to be a councilmember including that the
councilmember live in the councilmanic district which he or she represents unless
the councilmember is seated as an at-large member.”! “If a councilman shall cease
to possess any of these qualifications, including in the case of a councilman elected
from a councilmanic district, residence in the district from which he was
elected...his office shall immediately be forfeited and become vacant.”?? The
Charter is unambiguous in its wording that the vacancy occurs immediately and
there is no notification requirement and there is no vote requirement for declaring
the vacancy. The Charter is silent as to voting with regard to vacancies on the
Council except where the Council seeks to fill that vacancy, and then the vote
requirement is “a majority vote of all its remaining members.””
As was stated in Guy v. City of Wilmington, “[w]hen a statute is clear and
unambiguous, statutory interpretation is not needed as courts ‘have no authority to
vary the terms...or ignore mandatory provisions.”** The Charter is clear that the
0 Td.
“1 Wilm. C. (Charter) § 2-103.
2 Td.
23 Wilm. C. (Charter) § 2-101.
4 Guy, 2020 WL 2511122 at *4. (Internal citations omitted.)
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Samuel L. Guy v. City of Wilmington
C.A. No. N20C-10-058 WLW
February 9, 2021
vacancy “shall immediately be forfeited and become vacant” without any need of a
vote or notification of vacancy. Additionally, the Charter leaves to the Council the
ability to be the “sole judge of the qualifications and election of its members.”
When Congo made a public statement regarding his residency that showed he no
longer lived in the councilmanic district that he represented, his seat on the Council
became immediately vacant. Actions taken by the Council to certify that vacancy
are at the discretion of the Council as per the provisions in the Charter.
Finally, Guy argues that the Council must act in accordance with the
Delaware Constitution and the Home Rule charter when declaring a vacancy on the
Council and removing a member from the Council. The Home Rule charter
“grants complete legislative and administrative power over municipal functions to
the City of Wilmington.””° The purpose of home rule is “to enable municipalities
to exercise the powers of the sovereign except as limited by either the State
Constitution or State statute,” therefore, “the City enjoys complete powers of
legislation and administration relating to its municipal functions.”?’
Declaratory Judgment and Actual Controversy
Declaratory judgment is “intended to provide a remedy where no other
remedy is available under circumstances where an impending injury has not as yet
occurred.” This remedy requires that there not be another adequate remedy
readily available and there be an actual controversy, which has as an “essential
25 Wilm. C. (Charter) § 2-103.
6 Schadt v. Latchford, 843 A. 2d 689 at 691 (Del. 2004).
27 Td.
*8 Hampson vy. State ex rel. Buckson, 233 A. 2d 155 at 156 (1967).
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Samuel L. Guy v. City of Wilmington
C.A. No. N20C-10-058 WLW
February 9, 2021
element” “the existence of an interest adverse” between the parties.” Where a
court is asked to grant declaratory judgment, it cannot do so unless there exists an
actual controversy, even if the parties agree or consent to conferring jurisdiction
upon the Court.*° Lastly, declaratory judgment may not be used in an attempt to
gamer legal advice.*!
To show the existence of an actual controversy, there must be four elements
present. First, the seeking party must show that the controversy involves rights or
other legal relations.** Second, the seeking party must assert a claim to those rights
or other legal relations against a party with an interest in contesting the claim.»
Third, the parties’ interests must be real and adverse.** Lastly, “the issue involved
in the controversy must be ripe for judicial determination.”3> Additionally, the
assertion of adverse interests cannot be made under circumstances where there is
merely a difference of opinion.*®
Guy's claim to an actual controversy stems from his concern that similar
actions by the Council to remove him or other members may be taken in the future;
°° Id.°° Marshall v. Hill, 47 Del. (8 Terry) 478 at 480 (Del. Super. Dec. 3, 1952).
31 Td. at 480 - 81.
2 Td. at 481.
33 Td.
4 Id.35 Td.
°° Id.Samuel L. Guy v. City of Wilmington
C.A. No. N20C-10-058 WLW
February 9, 2021
however, he has based this concern on no plausible facts on which this Court may
rely in examining the City's Motion to Dismiss.
The vacancy was declared against another member of the Council, that being
Congo. Congo was the councilmember for the 2nd councilmanic district. Guy is
an at-large councilmember and does not purport to live in the district represented
by Congo. Guy does not claim to be injured by loss of representation on the
Council. Guy’s only claim of injury is that he “may be subjected to the same acts
of exclusion.”>’ Guy further claims that this perceived, futuristic injury that has
yet to transpire is because of an “unlawful removal of a black elected official as an
act of systemic racism in support of white supremacy.”*® Guy offers no facts to
support such an assertion.
Furthermore, the concerns raised by Guy in this case are moot. First, Congo
is now the Council President, so whatever harm he may have suffered by being
removed from his council seat upon changing residency outside his councilmanic
district are no longer an issue. It is noted that the new council President was not a
party to this action. Second, Congo never challenged the vacancy, thus alluding to
the possibility that there was no harm done to him in the first place. Finally, Guy is
no longer a member of the Council, so whatever harm he may have endured is no
longer imminent, if it ever was.
The City points out in its Motion to Dismiss that Guy has offered no facts to
support the allegation that he suffered any harm. He was not the injured party as a
7 Id.8 Id.10
Samuel L. Guy v. City of Wilmington
C.A. No. N20C-10-058 WLW
February 9, 2021
result of the Council's declaration that a councilmanic district had become vacant
and the Council did not violate the Charter in making such a declaration.
Wherefore, for the reasons explained above, this Court GRANTS Defendant
City of Wilmington's Motion to Dismiss pursuant to Superior Court Civil Rule 12
(b)(6) for failure to state a claim on which relief can be granted and DENIES AS
MOOT Plaintiff's Motion for Partial Summary Judgment.
IT IS SO ORDERED.
/s/ William L. Witham, Jr.
Resident Judge
WLW/dmh
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