Carper v. Stiftel , 1977 Del. LEXIS 572 ( 1977 )

STOREY, Justice Ad Litem,

concurring-.

I agree with the lower court and the majority in this appeal that Plaintiffs are entitled to the declaratory and injunctive relief they seek. However, in the view I take of this case, I find it unnecessary to reach and resolve the constitutional issues this appeal otherwise presents.

It is the well settled judicial policy of this State that constitutional questions will not be decided unless their determination is essential to the disposition of the case. Downs v. Jacobs, Del.Supr., 272 A.2d 706, 708 (1970); State ex rel. Davis v. Woolley, Del.Supr., 97 A.2d 239, 242, 243 (1953). Courts will not ordinarily consider constitutional matters unless a decision can be reached on no other grounds. Collison v. State ex rel. Green, Del.Supr., 2 A.2d 97, 107, 108 (1938); Application of Pepper, Del.Gen. Sess., 54 A.2d 173, 174 (1947). It is a cardinal rule of statutory construction that a statutory scheme must be so construed, if fairly possible, to avoid the conclusion that it is unconstitutional. Collison v. State, ex rel. Green, supra 2 A.2d at 103. The view that the lower court took of this controversy, with which I concur, pays homage to these fundamental tenets of judicial restraint.

The Vice Chancellor construed the words of the statutes and amendment in question together, finding a legislative intent manifested that the amendment to the judicial pension law should have application, prospective only, to each “new member” of the Delaware judiciary. I agree.

The legislature, of course, is deemed to have intended what it has said in legislation. See e. g. Harlan v. Fidelity and Casualty Co., 139 N.J.Super. 226, 353 A.2d 151, 152 (1976). Legislative intent is found not in what the legislature meant to say but in the meaning of what it did say. See e. g., Dana-Rohin Corp. v. Common Council of City of Danbury, Conn.Supr., 348 A.2d 560, 567 (1974). In this connection, weight must be given to each and every word used in a legislative enactment. State v. Brown, Del.Supr., 195 A.2d 379, 383 (1963). That is, effect must be given to every part of a statute, where possible, so that no part will be inoperative. DiSabatino v. Ellis, Del.Supr., 184 A.2d 469, 473 (1962). The majority’s finding that the increased rate of contribution applies to these Plaintiffs, who were incumbent judges at the time the 1976 amendment became effective, fails to give effect to the terms of § 5605(a) making provisions of the pension law available to “new members" of the judiciary. Such an interpretation, in my view, impermissibly ignores the express words of the statute. For this reason, to the extent the majority says to validate the lower court’s prospective application of the 1976 amendment would be to “strain the construction of the statute to the point of preventing its purpose”, I disagree. The legislature’s purpose and intent is expressed in the terms of § 5605(a), which make the provisions of Title 29, Ch. 56 available to “each new member of the state judiciary .”. Of necessity, the 1976 amendment to § 5601(a), without a further amendment of § 5605(a), would apply only to “each new member of the state judiciary .”, none of which these Plaintiffs are. Therefore, I find the lower court’s construction neither strained nor that it frustrates the purpose of the statute. Regardless, even if the Vice Chancellor’s interpretation of the statute calling for application of the increased contribution rate to “new members” of the bench appears strained, “. . . it is to be remembered that a strained construction of a statute is permissible to save it against constitutional attack . . . ” Mills v. State, Del.Supr., 256 A.2d 752, 758 (1969).

Had the general assembly intended the 1976 amendment increasing the rate of contribution to be applied to present Delaware judges as well as “new members” of the bench, it would have been but a simple matter to amend § 5605(a) at the same time to include language sufficient to accomplish this. In its failure to do so, I, like the Vice Chancellor below, find the General Assembly intended no such result.

Viewed another way, in the present controversy two constructions of the pension law and the amendment are possible. The one chosen by the lower court called for prospective application of the new contribution rate. The other, adopted here by the majority, finds the 1976 amendment applicable to judges who presently hold office, here the Plaintiffs, who have elected to participate in the pension program. The latter construction necessarily calls into question the constitutional issues presented under the Delaware and federal constitutions. However, when two constructions of a statute are possible and one of them is unconstitutional, this Court is bound to accept the one which is constitutional. Opinion of the Justices, Del.Supr., 177 A.2d 205, 211 (1962); Vaughan v. Veasey, Del.Super., 125 A.2d 251, 253, 254 (1956). The General Assembly is deemed to have intended to enact valid and constitutional legislation and statutes will be so construed whenever possible, without doing violence to legislative intent. Maxwell v. Vetter, Del.Supr., 311 A.2d 864, 867 (1973). See also, for instance, Monacelli v. Grimes, Del.Supr., 99 A.2d 255, 267 (1953) where this Court construed changes effected by the 1953 codification of the Delaware nonresident motorist long arm statute, as prospective in application, thereby avoiding “. . . the hazard 'of a decision upon a constitutional question”. The decision of the lower court is in accord with these authorities.

Any other construction of the judicial pension law and the 1976 amendment, in my view, would run afoul of Article XV, Section 4 of the Delaware constitution and Article I, Section 10 of the United States constitution, for the reasons expressed in the opinion below, as well as by the majority of this Court in this appeal. But in adhering to traditional notions of judicial restraint, I find it unnecessary to decide these ultimate questions of constitutional law. It is for these reasons that I would affirm the decision below.