TITLE 29

State Government

State Offices Created by Constitution

CHAPTER 25. STATE DEPARTMENT OF JUSTICE

Subchapter I. General Powers


The purpose of this chapter is to accomplish efficiency by centralizing in 1 department the state's facilities for the rendering of legal services to the Governor, General Assembly, officers, departments, boards, agencies, commissions and instrumentalities of the state government and to provide for the enforcement of the criminal law of this State.

29 Del. C. 1953, § 2501; 56 Del. Laws, c. 326, § 1.;

There is created a State Department of Justice under the supervision, direction and control of the Attorney General.

29 Del. C. 1953, § 2502; 56 Del. Laws, c. 326, § 1.;

Whenever "Attorney General" is referred to or designated in the Constitution, any statute, rules of any court, contract, document or usage, such reference or designation shall include any person duly appointed by the Attorney General pursuant to § 2505 of this title, except where the term Attorney General is immediately followed by "himself or herself" or "in person" or where the context otherwise indicates.

29 Del. C. 1953, § 2503; 56 Del. Laws, c. 326, § 1; 59 Del. Laws, c. 289, § 1; 70 Del. Laws, c. 186, § 1.;

The State Department of Justice and the Attorney General shall have the following powers, duties and authority:

(1) To continue to exercise the powers and perform the duties by the Constitution, statutes and common law vested in and imposed upon the Attorney General prior to January 1, 1969;

(2) Notwithstanding any other laws, to provide legal advice, counsel and services for administrative offices, agencies, departments, boards, commissions and officers of the state government concerning any matter arising in connection with the exercising of their official powers or duties and to publish or cause to be published such opinions in book form every 2 years. The courts, counties and incorporated municipalities are excepted from this chapter;

(3) Notwithstanding any other laws, to represent as counsel in all proceedings or actions which may be brought on behalf of or against them in their official capacity in any court, except in actions in which the State has a conflicting interest, all officers, agencies, departments, boards, commissions and instrumentalities of state government;

(4) To investigate matters involving the public peace, safety and justice and to subpoena witnesses and evidence in connection therewith; provided, however, that nothing in this subdivision shall restrict the general powers of the General Assembly to investigate matters involving the public peace, safety and justice and to subpoena witnesses and evidence in connection therewith;

(5) To direct the activities of state detectives;

(6) To have charge of all criminal proceedings as prior to January 1, 1969;

(7) To recommend revisions in the Constitution and statutes of this State with particular reference to law enforcement;

(8) To draft or cause to be drafted such bills or amendments as may be requested by any state officer or any department, division, commission or other state agency and otherwise render assistance, aid, information, counsel and advice in the preparation and drafting of any such proposed legislation; and

(9) To represent witnesses for the State or individuals who have cooperated with state investigative agencies when they are sued as a result of, or on account of, their cooperation with any agency of the State in any investigation or prosecution conducted by the State unless such representation creates a conflict with the interests of the State.

29 Del. C. 1953, § 2504; 56 Del. Laws, c. 326, § 1; 58 Del. Laws, c. 253, § 8; 59 Del. Laws, c. 253, §§ 18, 19; 64 Del. Laws, c. 418; 65 Del. Laws, c. 134, § 1.;

(a) The Attorney General may appoint, from the practicing members of the Bar of this State, a lawyer resident in this State who shall be the Chief Deputy Attorney General and who shall have such powers, duties and responsibilities as designated by the Attorney General and shall serve on a full-time basis. In the event that the office of Attorney General becomes vacant, or should the Attorney General be unable to discharge the powers and duties of the office due to illness or incapacitation, the Chief Deputy Attorney General shall discharge the powers and duties of the Attorney General for a period not to exceed 90 days or until the Governor appoints a successor, whichever occurs first.

(b) The Attorney General may appoint, from the practicing members of the Bar of this State, a lawyer resident in this State who shall be designated as the State Solicitor, who shall serve on a full-time basis under the direct control of the Attorney General. The State Solicitor shall be responsible for all civil actions and matters wherein the State or its agencies or subdivisions are involved and shall have such powers and duties as the Attorney General shall designate.

(c) The Attorney General may appoint, from the practicing members of the Bar of this State, a lawyer resident in this State who shall be designated as the State Prosecutor and who shall serve on a full-time basis under the direct control of the Attorney General. The State Prosecutor shall be responsible for the prosecution of all criminal matters and shall have such powers and duties as the Attorney General shall designate.

(d) The Attorney General may appoint, within the limits of the appropriations made to the State Department of Justice, persons, authorized by rule of the State Supreme Court to practice law in the courts of this State, to be assistants or special assistants, who shall have such powers, duties and responsibilities as designated by the Attorney General.

(e) The Attorney General may appoint, within the limits of the appropriations made to the State Department of Justice, law clerks, who shall have such powers, duties and responsibilities as the Attorney General shall designate.

(f) The Attorney General may assign an assistant or special assistant to serve in any legal capacity in or for any office, department, board, agency, commission or instrumentality of the state government on a part-time or full-time basis whenever, in the judgment of the Attorney General, such assignment will contribute to the efficiency of the operation of such office, department, board, agency, commission or instrumentality; but such assistant shall remain under the supervision and control of the Attorney General while so serving.

(g) The powers of all assistants shall be statewide.

(h) The Attorney General shall devote full time to the office and shall not practice law for the term to which the Attorney General is elected. The Attorney General shall determine whether any assistants other than those designated as full time in this section shall be excluded from the practice of law. The salaries of the Chief Deputy and assistants shall be as fixed by the Attorney General within the appropriations made to the State Department of Justice and the limitations of § 2506 of this title.

(i) The Attorney General may appoint persons authorized by rule of the State Supreme Court to practice law in this State, in addition to those authorized by appropriations to the Department to be assistants and special assistants, to be compensated from federal funds and funds other than those funds appropriated to the State Department of Justice, to have such powers, duties and responsibilities as designated by the Attorney General. The tenure provisions of § 2511 of this title, however, shall not apply to such assistants and special assistants and the State shall not be obligated to continue their employment when or in the event such federal funds or such other funds are no longer available to pay their salaries.

(j) The Attorney General may appoint, from the practicing members of the Bar of this State, a lawyer resident in this State who shall be designated as the head or assistant head of any Division of the State Department of Justice, or the Chief Prosecutor of a particular county and who shall serve on a full-time basis under the direct control of the Attorney General. Such persons shall have such responsibilities, powers and duties as the Attorney General shall designate.

29 Del. C. 1953, § 2505; 56 Del. Laws, c. 326, § 1; 58 Del. Laws, c. 99, § 1; 59 Del. Laws, c. 222, § 9; 59 Del. Laws, c. 289, §§ 2-5; 61 Del. Laws, c. 409, § 112; 61 Del. Laws, c. 519, § 33; 62 Del. Laws, c. 68, § 79; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 340, §§ 1-3; 75 Del. Laws, c. 370, § 1.;

(a) The salary of the Attorney General shall be $30,000 per annum. The Attorney General shall fix the salaries of all of the members of the Department of Justice within the limits set forth in this section.

(b) The salaries of all attorneys employed by the Attorney General in the Department of Justice shall be fixed by the Attorney General within the appropriations made to the Department of Justice pursuant to a salary plan established by the Attorney General.

29 Del. C. 1953, § 2506; 56 Del. Laws, c. 326, § 1; 57 Del. Laws, c. 763, §§ 1, 2; 58 Del. Laws, c. 99, § 2; 59 Del. Laws, c. 289, §§ 2, 6; 61 Del. Laws, c. 409, §§ 71, 113; 61 Del. Laws, c. 519, § 34; 62 Del. Laws, c. 68, § 80.;

No officer, department, board, agency, commission or instrumentality of state government shall employ any person to act as attorney, counsel, solicitor, legal assistant or other legal advisor to such officer, department, board, agency, commission or instrumentality except as otherwise set forth in this chapter. However, such special counsel may be employed by such officer, department, board, agency, commission or instrumentality with the approval of the Attorney General and the Governor upon such terms and conditions as the Attorney General and the Governor may prescribe. The special counsel so appointed shall have such powers, duties and responsibilities as designated by the Attorney General in addition to those powers prescribed in subdivision (3) of § 2504 of this title. Expenses of such employment shall be paid by the State Treasurer out of general funds not otherwise appropriated upon the approval of the Attorney General and the Governor.

29 Del. C. 1953, § 2507; 56 Del. Laws, c. 326, § 1; 58 Del. Laws, c. 99, § 3.;

(a) The Attorney General or any assistant may administer oaths and affirmations to any person, including witnesses, at any time or in any place and may issue process to compel the attendance of persons, witnesses and evidence at the office of the Attorney General or at such other place as designated.

(b) The Attorney General shall have the right of access at all times to the books, papers, records and other documents of any officer, department, board, agency, instrumentality or commission of the state government.

(c) The Attorney General shall transmit to the Prothonotaries of the counties of this State a certified list giving the names and addresses of persons or witnesses subpoenaed under this section, the time occupied in attendance and the distance traveled by them respectively. The list shall be legal proof, and the same costs shall accrue and be paid in the same manner as is provided by law to be paid to witnesses for attendance at the courts of this State.

29 Del. C. 1953, § 2508; 56 Del. Laws, c. 326, § 1; 59 Del. Laws, c. 289, § 2; 67 Del. Laws, c. 260, § 1.;

(a) For the purpose of enforcing any subpoena, warrant or other process issued by a court from without this State in a criminal proceeding or investigation occurring in said foreign state, the United States or any territory or district thereof, the Attorney General or any assistant may issue process to compel any person to produce books, papers, documents or other objects designated therein at the office of the Attorney General or at such other place as designated.

(b) A certified copy of the subpoena, warrant or other process issued by the court from without this State shall be attached to, and thereby incorporated in, any process issued by the Attorney General or any assistant pursuant to this section.

(c) Any process issued pursuant to this section by the Attorney General or any assistant shall include a certification by the Attorney General or any assistant that the process is issued pursuant to a subpoena, warrant or other process issued by a court from without the State.

(d) On an annual basis, the Attorney General shall transmit to the Prothonotaries of the counties of this State a certified list of and complete copies of all process which has been issued in the immediately preceding calendar year by the Attorney General or any assistant pursuant to this section. The date for filing such list shall be set by the Superior Court and may be enlarged by the Superior Court for good cause shown by the Attorney General.

73 Del. Laws, c. 70, § 1.;

No member of the Department of Justice shall act as attorney or counsel in any controversy in which the State, a county or a municipality has an interest except in the member's official capacity.

29 Del. C. 1953, § 2509; 56 Del. Laws, c. 326, § 1; 70 Del. Laws, c. 186, § 1.;

(a) Employment by the State Department of Justice does not affect any right or obligation of a citizen under the Constitution and laws of the United States or under the Constitution and laws of this State.

(b) Except as otherwise provided in this section or by federal law, an individual employed by the State Department of Justice may freely participate in any political activity, may vote in an election, and may express opinions on political subjects and candidates.

(c) With the exception of the Attorney General, no attorney or other employee regularly employed by the State Department of Justice may:

(1) Use that attorney's or other employee's official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for office;

(2) Use that attorney's or other employee's official authority or influence for the purpose of directing or coercing another to contribute anything of value, including but not limited to money, services, or time, in support of a political party, political organization, or political candidate;

(3) Engage in political activity while on duty in the employment of the State Department of Justice;

(4) Directly or indirectly solicit, receive, collect, handle, disburse, or account for assessments, contributions, or other funds for a partisan political purpose during working hours;

(5) Organize or reorganize a political party organization or political organization during working hours;

(6) Organize, sell tickets to, or promote a fund-raising activity of a candidate in a partisan election or of a political party or political organization during working hours; or

(7) Be a candidate for or hold any elected state or local office provided however, any attorney or other employee regularly employed by the State Department of Justice shall request a leave of absence in accordance with State Department of Justice personnel policies to be a candidate for any elected state or local office and such leave request shall not be denied, except that any such attorney or employee shall resign if that attorney or employee is a candidate for the office of Attorney General.

(d) In addition to the provisions of subsection (c) of this section above, no individual employed as Chief Deputy Attorney General or division head shall directly or indirectly give, pay, lend, or contribute money or any other thing of value to or for the benefit of a candidate for any elected state or local office or to any political party or political organization in support of such candidate, or for any other political purpose intended to support such candidate.

(e) As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

(1) "Division head" means the State Prosecutor, State Solicitor, Director of the Fraud Division, Director of the Appeals Division, any assistant division head, chief county prosecutor, or division director created by statute or policy of the Attorney General.

(2) "Local office" means local office as defined in § 101(13) of Title 15, school board elections, political party office, or other public elected office.

(3) "Political activity" means participating in any activity in support of or in opposition to a political party or partisan candidate for public or political party office, including but not limited to writing or distributing statements in support of or in opposition to a candidate, initiating or circulating a partisan nominating petition, contributing money or anything of value to or for the benefit of a candidate, and soliciting votes of support for a candidate. "Political activity" does not include registering or voting in an election, or expressing opinions on political subjects or candidates.

(f) In addition to any penalty contained in any other provision of law, any employee subject to the provisions of this section who knowingly violates a provision of this section may be subject to disciplinary proceedings by the State Department of Justice or as otherwise provided by law.

75 Del. Laws, c. 396, § 1; 70 Del. Laws, c. 186, § 1.;

On appeal from an order of filiation, the Attorney General shall answer the appeal and conduct the case for the State.

29 Del. C. 1953, § 2510; 56 Del. Laws, c. 326, § 1.;

(a) Any attorney or other employee regularly employed by the Department of Justice to render services shall be appointed by the Attorney General to serve at the Attorney General's pleasure. After 3 years full-time service the employee shall have attained tenure and shall continue to be regularly employed during efficient and good behavior and shall not be removed because of religious or political opinions or affiliations or except for due cause, after a hearing before a court consisting of 3 judges of the Superior Court of the State.

(1) As a condition of attaining tenure, every Deputy Attorney General within the Criminal Division shall be required to attend and complete, within the first 3 years of service, seminars conducted by the National College of District Attorneys or any other appropriate organization approved by the Attorney General on the subjects of child sexual and physical abuse, exploitation and domestic violence.

(2) Any Deputy Attorney General in the Criminal Division who has received tenure prior to the effective date of this educational requirement shall be required to attend and complete said seminars within 3 years from the date hereof.

(3) As a condition of retaining the tenure rights conferred by this section, every Deputy Attorney General within the Criminal and Family Divisions shall be required to attend and complete at least 4 hours every 3 years of training on the subjects of child sexual and physical abuse, exploitation and domestic violence. Such training shall be conducted by the National College of District Attorneys, coordinated with the training available pursuant to §§ 911 and 912(b)(4) of Title 16, or otherwise performed by any other appropriate organization approved by the Attorney General. Such training shall also include the mandatory reporting obligations imposed by Delaware law, including reporting under the Medical Practice Act [Chapter 17 of Title 24] and § 903 of Title 16, and federal law in the reporting of child sexual and physical abuse. The failure to complete such training shall be a forfeiture of the rights conferred by this section.

(b) The term "full time," when used in reference to attorneys in this section, prohibits such attorneys from engaging in the private practice of law. The term "regularly employed," as used in this section, refers to those attorneys and other employees appointed or employed on a full-time basis by the Department of Justice. The Attorney General shall so designate such attorneys and other employees in writing at the time of their employment or at such other time at the Attorney General's pleasure.

(c) Nothing contained in this section shall limit the power of the Attorney General to assign attorneys or other employees to any of the various positions provided for in this chapter and to change said personnel in said positions from time to time at the Attorney General's pleasure; provided, however, that any attorney or other employee who shall have been regularly employed in a certain position may not be deprived of regular employment or tenure by virtue of such change of position.

29 Del. C. 1953, § 2511; 56 Del. Laws, c. 326, § 1; 69 Del. Laws, c. 158, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 323, § 4.;

(a) All fees which are by law taxable and payable to the Attorney General shall be paid to and received by the respective Prothonotaries in the county where the fees are taxed, and the Prothonotaries shall pay over the same to the State Treasurer.

(b) The Attorney General is authorized to collect and use revenues from the fees realized by subsection (a) of this section and Chapter 73 of Title 6 (Delaware Securities Act) to support the Department of Justice's Securities Division. Balances at the end of any fiscal year in excess of $100,000 collected from these fees shall be deposited into the General Fund.

(c) The Department of Justice is authorized to publish and sell the opinions of the Attorney General; to deposit the proceeds of any sales in a special fund to be established and designated the "Attorney General Opinion Fund"; and to expend all moneys deposited in such Fund for any expense connected with the publishing or sale of opinions of the Attorney General. Copies of the published opinions will be distributed at no cost to the General Assembly, the Governor and state agencies. If at the end of the fiscal year, the amount deposited in this Fund exceeds $15,000, the amount exceeding $15,000 shall be deposited into the General Fund.

(d) Notwithstanding any other laws to the contrary, including, but not limited to, Part VI of this title, the Attorney General is authorized to enter into a contract for the production, distribution and marketing of educational videos on such terms and conditions as the Attorney General deems appropriate. All revenues received by the Attorney General from such contract shall be deposited in a nonappropriated special fund. Revenues received and deposited into said account shall be used for the purpose of reproducing, marketing and distributing copies of these videos.

29 Del. C. 1953, § 2512; 56 Del. Laws, c. 326, § 1; 73 Del. Laws, c. 310, § 11.;

(a) The Attorney General may appoint 5 qualified persons to be state detectives who shall hold office at the pleasure of the Attorney General. The Attorney General may designate 1 of the appointees to be Chief State Detective, and each of the others shall be known as state detective. All of the state detectives shall perform duties anywhere, both within and without the State, under the direction of the Attorney General.

(b) The salary of the Chief State Detective and the state detectives shall be fixed by the Attorney General within the appropriations made to the State Department of Justice.

29 Del. C. 1953, § 2513; 56 Del. Laws, c. 326, § 1; 58 Del. Laws, c. 568; 59 Del. Laws, c. 289, § 7.;

(a) State detectives may conduct such investigations as directed by the Attorney General.

(b) Any state detective or any police officer of the State or of any subdivision thereof shall, when so requested by the Governor or the Attorney General, serve requisitions made by the Governor and for this shall not receive any compensation, but shall receive actual expenses. Such expenses shall be paid by the State Treasurer out of general funds not otherwise appropriated upon the production of vouchers approved by the Attorney General.

(c) State detectives may make arrests and serve writs anywhere in this State.

(d) The state detective shall serve and return summonses, subpoenas, warrants and commitments issued by presidents of court-martials.

29 Del. C. 1953, § 2514; 56 Del. Laws, c. 326, § 1.;

(a) The provisions of this chapter relating to the supplying of legal advice, counsel, services and representation in proceedings and actions shall not apply to the University of Delaware, Delaware State University, Delaware Technical and Community College or to any school district or special school district of this State, and these organizations may each employ their own attorney or attorneys, notwithstanding § 2507 of this title, except that legal services in connection with all bond issues in which the faith and credit of this State is pledged and all legal services for any school district or special school district bond issue which is for the purpose of providing funds for any project to which moneys or bond issue funds of this State are to be contributed on a matching or percentage basis shall be provided solely by the State Department of Justice and the Attorney General.

(b) Notwithstanding § 2507 of this title, the provisions of this chapter relating to the supplying of legal advice, counsel, services and representation in proceedings shall not apply to the State Public Integrity Commission established pursuant to Chapter 58 of this title.

(c) Notwithstanding any other provision of this title, a public school district or charter school that is a defendant in a legal action because of its adoption or use of the cyberbullying policy required under § 4112D(d)(1) of Title 14 shall have the option of being represented by the Department of Justice if:

(1) The State of Delaware or 1 of its agencies is a party to the same action based upon the State's requirement that the district or school adopt the cyberbullying policy at issue;

(2) The Department's representation of both entities is permissible under the Rules of Professional Conduct; and

(3) The Department determines that enforcement of the cyberbullying policy by the school or district was done in good faith and in the public interest.

Communications and documents regarding the Department's obligation to represent a school or district under this subsection and/or a school or district's decision whether to accept representation by the Department are privileged and not subject to disclosure.

29 Del. C. 1953, § 2515; 56 Del. Laws, c. 326, § 1; 60 Del. Laws, c. 476, § 1; 69 Del. Laws, c. 67, § 2; 69 Del. Laws, c. 179, § 1; 69 Del. Laws, c. 467, § 29; 78 Del. Laws, c. 379, § 2.;

(a) The Attorney General may authorize such members of any county or municipal police departments as the Attorney General deems necessary to have full statewide police, arrest and enforcement powers equivalent to those powers held by members of the Delaware State Police. The Attorney General shall give such authorization by oath for such period of time as the Attorney General specifies. The Attorney General shall have the authority to withdraw such authorization whenever the Attorney General deems necessary.

(b) Such local police officers who have received such authorization shall remain for all other purposes as members of their respective police departments.

(c) The Attorney General may authorize such members of police forces of jurisdictions outside the State as the Attorney General deems necessary to have full statewide police, arrest and enforcement powers equivalent to those powers held by members of the Delaware State Police. Such authorization shall be given under the procedures and conditions prescribed in subsections (a) and (b) of this section.

(d) The Attorney General may, as the Attorney General deems necessary, authorize railroad police officers employed by (i) either a railroad company classified as a Class 1 rail carrier pursuant to 49 U.S.C. § 10102 and the Interstate Commerce Commission or (ii) Amtrak to have police, arrest and enforcement powers for the purpose of investigating or preventing crimes which have occurred, are occurring or may occur on property that is owned, leased, operated or controlled by the railroad, or which involve the railroad's employees, passengers or patrons while such persons are on such property, or which involve property that is consigned or entrusted to the railroad for transportation purposes. The Attorney General shall give such authorization by oath for such period of time and pursuant to such conditions as the Attorney General deems necessary. The Attorney General shall have the authority to withdraw such authorization whenever the Attorney General deems necessary. Notwithstanding any provision of this section to the contrary, no person shall be authorized pursuant to this subsection unless such person is first certified as appropriately qualified by the Council on Police Training and until memoranda of understanding are reached between the railroad and all appropriate law enforcement agencies. Nothing in this section shall limit the authority of a railroad police office employed by a rail carrier owning property in this State, and certified or commissioned under the laws of another state, to enforce the law and exercise the authority conveyed under 49 U.S.C. § 28101 or 49 C.F.R. 207.

29 Del. C. 1953, § 2516; 59 Del. Laws, c. 177, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 366, § 1.;