CHAPTER 176

FORMERLY

SENATE BILL NO. 204

AN ACT AMENDING THE DELAWARE CODE AND THE LAWS OF DELAWARE RELATING TO THE ORGANIZATION, COMPOSITION, AND OPERATION OF THE JUDICIARY OF THE STATE OF DELAWARE.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each house thereof concurring therein):

Section 1. Amend Title 10, Delaware Code by striking Section 510 in its entirety.

Section 2. Amend §901, Title 10 of the Delaware Code, by striking Subsection (4) in its entirety.

Section 3. Amend § 922, Title 10, Delaware Code, by striking Subsection (b) in its entirety and substituting in lieu thereof the following:

"(b) The Court shall have concurrent criminal jurisdiction with the Justice of the Peace Court in all proceedings concerning alleged curfew violations under Sections 39-14 through 39-16 of the Wilmington Code."

Section 4. Amend Title 10 of the Delaware Code, by striking Section 1302 in its entirety and by substituting in lieu thereof the following:

"Section 1302. Judges: Qualification• Residence: Chief Judge

(a) The Court shall consist of seven Judges.

(b) The Judges must be citizens of the State and must have been actively engaged in the general practice of law in the State for at least five years.

(c) Five Judges shall be residents of New Castle County, one Judge shall be a resident of Kent County, and one Judge shall be a resident of Sussex County.

(d) The Judge appointed by the Governor as Chief Judge shall be the administrative head of the Court during the term of his or her appointment."

Section 4A. The Governor, by and with the consent of a majority of all of the members elected to the Senate, shall appoint the Chief Judge of the Court of Common Pleas from among the Judges of the Court of Common Pleas sitting as of June 28, 1997, to serve as Chief Judge until the end of his or her existing term as a Judge of that Court. Such Chief Judge shall be removable during such term only on the same basis as a Chief Judge nominated by the Governor and confirmed by the Senate to serve a full term as the head of a state court would be removable during his or her term. Future appointments pursuant to § 1302(d), Title IO, Delaware Code shall be for 12 years.

Section 5. Any full-time Judge serving on the Municipal Court of the City of Wilmington on the effective date of this Act shall become a Judge of the Court of Common Pleas and shall serve until the expiration date of his or her present term and until a successor is duly nominated and confirmed. The enactment of this Act ratifies any such appointment and confirmation of a Judge of the Court of Common Pleas with the jurisdiction vested in that office by law. Any full-time Judges of the Municipal Court of the City of Wilmington, actively serving on the effective date of this Act, may elect within 30 days of the effective date of this Act to remain a member of the City of Wilmington's Pension Plan or may elect to become a member of the State of Delaware Judges' Plan pursuant to Chapter 56 of Title 29 of the Delaware Code, as if they first became members of the State Judiciary after July I, 1980; provided, however, that if a Municipal Court Judge elects to join the State Pension Plan for the Judiciary, his or her years of employment with the Municipal Court shall count towards determining eligibility for a pension and he or she shall receive credited service for such years of employment with the Municipal Court pursuant to the following conditions: (i) The Board of Pension Trustees of the State of Delaware for the State Judiciary Pension Fund shall determine the amount of funds necessary to fund the accrued past service liability of each Judge-under the State Judges' Pension Plan arising out of each Judge's years of employment with the Municipal Court and (ii) this amount shall be paid to the State Judiciary Pension Fund by the City of Wilmington pursuant to Section 6 of this Act or by the Judge himself, and the State of Delaware shall not pay any portion of such amount. Prior to the effective date of this Act, the City and the Judges shall determine by agreement the amounts to be paid to the State Judges' Pension Plan by the City and the Judges to satisfy the requirements created by Sections 5(i) and 5(ii) of this Act. The amount of service eligible to be purchased may be a portion of the Judge's years of employment with the Municipal Court not to exceed his total service.

Section 6. As of November I, 1998, the City shall allocate and pay to the State a portion of such fines to which the City is otherwise entitled under 21 C § 706 such that, over a pentad of three years, beginning November 1, 1998, the State shall be paid in full for all obligations relating in any way to the Municipal Court, its judges, its employees, and its operations, whether now outstanding, incurred as a result of this Act, or created, accrued, or recognized pursuant to any other agreement between the State and the City of Wilmington.

Section 7. Amend § 1303(b), Title 10, Delaware Code by deleting it in its entirety and substituting in lieu thereof Each Judge shall receive a salary in accordance with the annual appropriations act."

Section 8. Amend I303(a), Title 10, Delaware Code by striking the last sentence thereof and by adding two new sentences in its place as follows: The Governor shall appoint one Judge of the Court as Chief Judge of the Court to hold office during the term of his or her appointment. Nothing in this section shall affect the ability of the Chief Judge of the Court of Common Pleas to serve in that capacity for the duration of his current term of office."

Section 9. Amend Subchapter II, Chapter 13, Part I, Title 10, Delaware Code, by inserting a new section, to read:

"§ 1317. City Solicitor; powers and duties.

(a) The City Solicitor of Wilmington or a duly authorized designee shall be officio the prosecuting officer in the Court of Common Pleas and the Justice of the Peace Court for all offenses committed within the City of Wilmington against any of the laws, ordinances, regulations or Charter of the City. The Courts may by rule establish a regularly scheduled time and place to hear and try such matters. The Attorney General of the Slate may, however, prosecute in person or by his or her deputy and papers shall be signed by the City Solicitor and shall be served by any police officer. Any false answer or statement given in such a case shall be deemed perjury and punishable accordingly. The costs in such cases shall be paid by the Clerk of the Court of Common Pleas and the Justice of the Peace Court in the same manner as the costs of other proceedings in the Court are paid."

(b) The City Solicitor shall appoint an Assistant City Solicitor who shall hold office at the pleasure of the City Solicitor and perform the duties required of him or her by the City Solicitor. The City Solicitor may discharge the Assistant at any time, and his or her acts in this regard shall not be questioned.

(c) In addition to his or her other powers, the City Solicitor may compel the attendance of witnesses and the production of books and papers at his office at any time, and may administer oaths and affirmations to witnesses at any time or in any place, for the purpose of securing information relative to the enforcement of the laws, ordinances, regulations, or Charter of the City. Subpoenas and attachments for the attendance of such witnesses and the production of such books and papers shall be signed by the City Solicitor and shall be served by any police officer. Any false answer or statement given in such a ease shall be deemed perjury and punishable accordingly. The costs in such cases shall be paid by the Clerk of the Court of Common Please and the Justice of the Peace Court in the same manner as the costs of other proceedings in the Court are paid.

Section 10. Chapter 17 of Title 10 of the Delaware Code is hereby repealed and stricken in its entirety.

Section II. Amend § 870i, Title 10, Delaware Code, by striking the words "or the Municipal Cowl for the City of Wilmington," as they appear therein.

Section 12. Amend § 9203, Title 10, Delaware Code, by striking the line which reads ''New Castle.... 24" and substituting in lieu thereof the line "New Castle 27".

Section 13. Amend § 1240(6)(3), Title 1 1 , Delaware Code, by striking the words -Municipal Court" as they appear therein.

Section 14. Amend § 2102(4), Title 11, Delaware Code, by deleting all the text after "State," and inserting "and justice of the peace." in lieu thereof.

Section 15. Amend § 2115(a), (b), Title II, Delaware Code, by striking the words the Municipal Court of the City of Wilmington or" as they appear therein.

Section 16. Amend § 2304, Title II, Delaware Code, by striking the words "the Municipal Cowl for the City of Wilmington," as they appear therein.

Section 17. Amend § 2701, Title II, Delaware Code, by striking Subsection (b) in its entirety and by substituting in lieu thereof the following:

"(b) The Court of Common Pleas for the State shall have original jurisdiction to hear, try and finally determine all misdemeanors and violations alleged to have been committed within the State, except where jurisdiction over such offenses is vested exclusively in another court.

The Court of Common Pleas shall have original jurisdiction to hear, try and finally determine all offenses committed within the City of Wilmington against any of the laws, ordinances, regulations or Charter of the City.

The jurisdiction conferred by this subsection includes concurrent jurisdiction with the Justices of the Peace in all cases in which the Justices of the Peace have jurisdiction."

Section 18. Amend § 4302(6), Title II, Delaware Code, by striking the words "and Municipal Court of the City of Wilmington" as they appear therein, and by inserting after "Pleas," mid before "Justices" the word "or".

Section 19. Amend § 4302(10), Title 11, Delaware Code, by striking the words "and the Municipal Court of the City of Wilmington," as they appear therein, and by inserting after "Family Court," and before "Court of Common Pleas" the word "or".

Section 20. Amend § 4331(g), Title II of the Delaware Code, by striking the words ", and the Municipal Court for the City of Wilmington" as they appear therein.

Section 21. Chapter 57, Title 11, Delaware Code is hereby repealed and stricken in its entirety.

Section 22. Amend § 9401(7), Title 11, Delaware Code, by striking the words "Municipal Court for the City of Wilmington" as they appear therein.

Section 23. Amend § 9411 (b), Title 11, Delaware Code, by striking it in its entirety and by substituting in lieu thereof the following:

"(b) In all other courts, the Attorney General shall give the victim:

(1) Notice of the scheduling of the court proceedings and changes, including trial date, case review, and sentencing hearings;

(2) Notice of the crimes) of which the defendant is convicted;

(3) Notice of the specifics of any sentencing order; and

(4) Notice of sentence reduction or modification order."

Section 24. Amend § 9412, Title 11, Delaware Code by striking the words "except the Municipal Court" as they appear therein.

Section 25. Amend § 4795, Title 16, Delaware Code, by striking the words "and further except that for violations of subsection (h) of §4754 of this title by persons 18 years of age or older occurring within the City of Wilmington, the Municipal Court of the City of Wilmington shall have original jurisdiction concurrent with the Court of Common Pleas" as they appear therein.

Section 26. Amend § 516, Title 17, Delaware Code, by striking Subsection (c1 in as entirety and by substituting in lieu thereof the following:

"(c) The Council of the 'Mayor and Council of Wilmington' may abate the nuisance by the enactment of ordinances giving directions for the cleansing, removal or remedy of the matter or thing complained of and providing penalties for violations of its orders to be recovered in the Court of Common Pleas.

Section 27. Amend § 703(a), (b), Title 21 of the Delaware Code, by striking such subsections in their entirety and by substituting in lieu thereof the following:

"(a) A person arrested without a warrant for a violation of any section of this Title, or arrested for any moving traffic violation or any municipal ordinance regulating traffic within its territorial limits as set forth in Chapter 41 of this Title shall have such ease heard and determined by a Justice of the Peace.

(b) Notwithstanding subsection (a) of this section, the arresting officer may issue a summons to the person arrested for an appearance at a subsequent date before a Justice of the Peace."

Section 28. Amend § 704 (a), (d), Title 21, Delaware Code, by striking the words "and the Municipal Court for the City of Wilmington" as they appear therein.

Section 29. Amend § 704(e), Title 21, Delaware Code, by striking the words "or any Judge of the Municipal Court" as they appear therein.

Section 30. Amend § 708(a), Title 21, Delaware Code, by striking the text ", except the City of Wilmington," as it appears therein.

Section 31. Amend § 2314, Title 24, Delaware Code, by striking the words "the Judges of the Municipal Court for the City of Wilmington," as they appear therein.

Section 32. Amend § 122, Title 25, Delaware Code, by striking the words "or before the Judge of the Municipal Court of the City of Wilmington," as they appear therein.

Section 33. Amend § 5804(11)b, Title 29, Delaware Code, by striking subparagraph 7 and renumbering the remaining subparagraphs therein accordingly.

Section 34. Amend § 5804(12), Title 29, Delaware Code, by striking paragraph g and redesignating the remaining paragraph therein accordingly.

Section 35. Amend § 5812(a)(10), Title 29, Delaware Code, by striking it and renumbering the remaining paragraphs of § 5812(a) therein accordingly.

Section 36. Amend g 8228(4 Title 29, Delaware Code, by striking paragraph (2) m its entirety and by substituting in lieu thereof the following:

"(2) A person arrested without a warrant for a violation of this Act or any regulation thereunder shall have his case heard and determined by the nearest available justice of the peace, notwithstanding the fact that the court o f said justice of the peace is situated in a county other than that in which the violation is alleged to have occurred. It shall be a sufficient defense for such person to show by 1 competent witness that there was at the time of his arrest an available justice of

the peace whose regular office was nearer to the place where such person was arrested than the justice of the peace before whom the case is being tried."

Section 37. The Court of Common Pleas, Justices of the Peace Court system and

the Department of Justice may offer employment to individuals in the position of Municipal Court Commissioner and individuals employed by the Criminal Division of the City Solicitor's Office whose position with the City is eliminated as a result of consolidation. The Court of Common Pleas add the Justice of the Peace Court system shall offer employment to all other persons who are permanent employees of the Municipal Court whose position with the City is eliminated as a result of consolidation. The above shall be accomplished without complying with the hiring requirements of the Merit System Rules promulgated pursuant to Chapter 59, Title 29 of the Delaware Code, solely for the purpose of filling the new positions created and generally carrying out the Court consolidation herein enacted. After the said positions have been initially filled, no further exemption from any applicable Merit System Rules shall be permitted.

Section 38. Any individual employed in the Municipal Court of the City of Wilmington or the Criminal Division of the City Solicitor's Office as of April 30, 1998, who is hired as a state employee pursuant to Section 37 of this Act, may transfer his or her entire balance of accrued vacation to the State. The balance of vacation to be transferred shall include only a pro raw portion of the vacation which the employee would have earned for the current calendar year had he or she remained in the employ of the Municipal Court for the full year. The City of Wilmington shall compensate the State for such transferred accrued vacation based upon the employee's starling rate of pay with the State. Any employee transferring to state employment may elect not to transfer his or her vacation to the State, and nothing in this Section shall preclude any employee electing not to transfer vacation time from exercising any rights existing under the City Code of the City of Wilmington or union contract with respect to receipt of severance pay for accrued vacation actually credited by the City of Wilmington as of April 30, 1998.

Section 39. Any individual employed in the Municipal Court or Criminal Division of the City Solicitor's Office of the City of Wilmington as of April 30, 1998, who is hired as a state employee pursuant to Section 37 of this Act may transfer his or her entire balance of accrued sick leave to the State. The City of Wilmington shall compensate the State for such transferred sick leave when such sick leave is used by the employee. Employees shall use all sick time earned as a state employee before using sick time transferred from the City. Such compensation shall be based upon the employee's state pay rate at the time the employee uses transferred sick time. Any employee going to state employment may elect not to transfer his or her sick leave to the State, and nothing in this Section shall preclude any employee electing not to transfer sick leave from exercising any rights existing under City Code or union contract with respect to receipt of severance pay for accrued sick leave actually credited by the City of Wilmington as of April 30, 1998.

Section 40. All property of the City of Wilmington, exclusive of real property, which is assigned to or used in the Municipal Court and the Criminal Division of the City Solicitor's Office as or April 30, 1998, including but not limited to all files, supplies, furniture and equipment, shall, as of May I, 1998, become property of the State of Delaware.

Section 41 All building space occupied by the Municipal Court and the Criminal Division of the City Solicitor's Office as of April 30, t998, and the property under Section 40 shall be allocated to the Court of Common Pleas and the Justice of the Peace Court based on anticipated increases in court personnel as a result of the court consolidation herein enacted.

Section 42. This Act does not affect any adjudications rendered or sentences, fines, or penalties imposed by the Municipal Court of the City of Wilmington on or prior to April 30. 1998 All prosecutions, proceedings, and matters pending in the Municipal Court for the City of Wilmington as of May 1, 1998, shall be transferred to the courts of the State of Delaware together with all records, papers, and things pertaining thereto and shall be proceeded with to final judgment thereon in the state courts in the manner prescribed by law. The state courts shall have jurisdiction over all offenses so transferred and all such matters shall survive and further proceedings may he had thereon in the state courts. Notwithstanding any other provisions of Delaware law or anything herein to the contrary, all violations of the rules, procedures, orders, or other mandates of the Municipal Court for the City of Wilmington as formally constituted, shall continue to be prosecuted as if such Court continued to exist except that such prosecutions shall be in accordance with the Hiles of the state courts.

All books, records, and papers of the Municipal Court on the effective date of this Act which pertain to non-pending matters shall become records of such state courts as the Chief Justice determines. To ensure an efficient and just transfer of responsibility, the Chief Justice shall establish a procedure to determine which of the two principal state courts to which Municipal Court jurisdiction is being transferred, the Court of Common Pleas and the Justice of the Peace Courts. will assume jurisdiction over and the records relating to various cases pending before the Municipal Court at the time this Act becomes effective, which determination shall be issued no later than October 15, 1997.

Section 43. If any section, subsection, sentence, phrase, or word of this Act or circumstances arising out of the application thereof shall be declared unconstitutional under the Constitution of the State of Delaware or of the United States by a state or federal court of competent jurisdiction, the remainder of this Act shall be unimpaired and shall continue in full force and effect and proceedings thereunder shall not be affected.

Section 44. All provisions of this Act shall become effective 270 days after enactment into law except for section 4A and lines 17-18 of section 4 which shall become effective upon enactment into law.

Section 45. The enactment of this Act into law shall be sufficient to cover the requirements of Sections 42 and 43 of the Fiscal Year 1998 State Budget Act

Section 46. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application and to that end the provisions of this Act are declared severable.

Approved July 14, 1997