Shawn Mock v. Division of State Police, Department of Safety & Homeland Security of the State of Delaware ( 2022 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
SHAWN MOCK, )
)
Plaintiff, )
)
v. ) C.A. No. 2019-0229-MTZ
)
DIVISION OF STATE POLICE, )
DEPARTMENT OF SAFETY AND )
HOMELAND SECURITY of the )
STATE OF DELAWARE, )
)
Defendant. )
MEMORANDUM OPINION
Date Submitted: March 17, 2022
Date Decided: May 31, 2022
Stephani J. Ballard, LAW OFFICES OF STEPHANI J. BALLARD, LLC,
Wilmington, Delaware; Attorney for Plaintiff Shawn Mock.
Joseph C. Handlon, STATE OF DELAWARE DEPARTMENT OF JUSTICE,
Wilmington, Delaware; Attorney for Defendant Division of State Police,
Department of Safety and Homeland Security of the State of Delaware.
ZURN, Vice Chancellor.
A former police officer is challenging his termination by the state agency who
employed him. By statute, Delaware affords police officers particularized due
process measures when they face disciplinary action. The plaintiff argues that the
agency violated those due process rights. He does not have a statutory right to
judicial review of the agency’s decision. And so, the plaintiff seeks a declaratory
judgment that the agency violated his rights, together with a permanent injunction
voiding the termination, reinstating the plaintiff to his position, awarding him back
pay and benefits, and prohibiting the agency from pursuing additional adverse
employment action against him.
The Court of Chancery is proudly a court of limited subject matter
jurisdiction. This Court jealously defends that limitation and has a duty to examine
issues of subject matter jurisdiction sua sponte. I considered the plaintiff’s approach
to this Court with this mandate in mind. I conclude this Court lacks subject matter
jurisdiction to hear the plaintiff’s claims. This Court does not have statutory
jurisdiction, and the plaintiff does not allege an equitable claim. And a practical
view of the plaintiff’s claims reveals that to the extent he seeks equitable relief, he
has an adequate remedy at law in the form of a writ of mandamus. The case is
therefore dismissed, and the parties may transfer the matter to Superior Court under
2
10 Del. C. § 1902 within sixty days.1 If the plaintiff elects to transfer, the remaining
issues presented by the pending motion to amend and motion to compel, which have
been fully briefed, should be transferred as well, so a court of competent jurisdiction
can pass on their merits.
I. BACKGROUND2
Plaintiff Shawn Mock served in the Delaware State Police from March 1, 2013
until his termination on December 13, 2018.3 Defendant Division of State Police
(the “Division”) is a division of Delaware’s Department of Safety and Homeland
Security.4 The Division is “responsible for the performance of all the powers, duties
1
See 10 Del. C. § 1902 (“No civil action, suit or other proceeding brought in any court of
this State shall be dismissed solely on the ground that such court is without jurisdiction of
the subject matter, either in the original proceeding or on appeal. Such proceeding may be
transferred to an appropriate court for hearing and determination, provided that the party
otherwise adversely affected, within 60 days after the order denying the jurisdiction of the
first court has become final, files in that court a written election of transfer . . . .”).
2
Because I conclude that this Court lacks subject matter jurisdiction over this action, I limit
my discussion of the facts to only those necessary to resolve that issue. Though I raised
this issue before considering the pending motion to amend and motion to compel, I evaluate
subject matter jurisdiction, as I must, from the face of the amended complaint, available at
Docket Item (“D.I.”) 9 [hereinafter “Am. Compl.”], as well as the documents attached and
integral to it. See Wilm. Fraternal Order of Police Lodge #1 v. Bostrom, 1999 WL 39546,
at *4 (Del. Ch. Jan. 22, 1999) (“Subject matter jurisdiction is determined from the face of
the complaint as of the time it was filed, with all material factual allegations assumed to be
true.”) (citing Diebold Comput. Leasing, Inc. v. Com. Credit Corp., 267 A.2d 586, 590
(Del. 1970), and W. Airlines, Inc. v. Allegheny Airlines, Inc., 313 A.2d 145, 149 (Del. Ch.
1973)); Ct. Ch. R. 10(c) (“A copy of any written instrument which is an exhibit to a
pleading is a part thereof for all purposes.”).
3
Am. Compl. ¶ 4; id. at n.1; D.I. 11 ¶ 4 [hereinafter “Ans.”].
4
Am. Compl. ¶ 5; Ans. ¶ 5.
3
and functions heretofore vested in: (1) The State Highway Department, the State
Highway Commission, the State Police and the Superintendent of the State Police”
and “(2) . . . the Superintendent of the State Police and the State Bureau of
Identification . . . .”5
On October 17, 2017, Mock hit another vehicle with his police car.6 His car’s
dash camera “captured the entire accident and its aftermath,” including Mock
parking the damaged car at his home for the night.7 Mock failed to report the
collision at the time it occurred, as is required by his employer’s policy.8 The
following morning, a trash collector knocked on Mock’s door and told him that it
appeared the police car had been damaged, but that the trash collector was not the
cause.9 Only at this point did Mock notify his supervisor about the accident; but he
told his supervisor “that it appeared the accident had occurred as a hit and run outside
of his residence.”10 Mock’s supervisor drafted a report based on Mock’s account of
the accident.11 After inspecting the car and the dash camera footage, Mock’s
5
29 Del. C. § 8206(a).
6
Am. Compl. ¶ 6.
7
Id. ¶ 8.
8
Id. ¶ 6.
9
Id. ¶ 9.
10
Id. ¶ 10.
11
Id. ¶ 21.
4
superiors brought their suspicions to Mock.12 One of his superiors drafted a second
report based on the events as they actually occurred.13
On November 15, 2017, the Division’s Internal Affairs department notified
Mock he was under investigation.14 Such investigations are governed by a set of
statutes called the Law Enforcement Officers’ Bill of Rights (“LEOBOR”).15
LEOBOR was passed in 1985 to provide uniform procedural rights to
officers under investigation by their own departments. The Delaware
General Assembly was concerned about “inconsistencies between
departmental procedures within the State.” LEOBOR applies to “all
law-enforcement disciplinary proceedings throughout the State,
conducted by the law-enforcement agencies specified in § 9200(b) of
this title.” Most relevant here is Section 9200(c), which sets forth the
rights of officers under investigation for disciplinary purposes.16
On February 28, 2018, Internal Affairs charged Mock with ten counts.17
Beginning on April 30 and spanning three days, a Divisional Trial Board (the “Trial
12
Id. ¶¶ 12–15, 17, 20.
13
Id. ¶¶ 22. Plaintiff contends his “statements were not material to the processing, expense
and repair of the property damage to the DSP vehicle, which was the same cost to
Defendant regardless of whether the damage occurred as a ‘hit and run’ or an ‘officer-at-
fault’ accident.” Id. ¶ 23.
14
Id. ¶ 28.
15
11 Del. C. § 9200, et seq.
16
Brittingham v. Town of Georgetown (Brittingham II), 113 A.3d 519, 525 (Del. 2015)
(quoting Alexander v. Town of Cheswold, 2007 WL 1849089, *3 (Del. Super.
Jun. 27, 2007), and 11 Del. C. § 9209), aff’g Brittingham v. Town of Georgetown
(Brittingham I), 2011 WL 2650691, at *4 (Del. Super. June 28, 2011).
17
Am. Compl. ¶ 31.
5
Board”) held a hearing and deliberations on Mock’s charges.18 The Trial Board
found seven of the ten charges “substantiated” and recommended disciplinary
actions including termination.19 The Trial Board sent its written recommendations
to the Division, but not to Mock.20
After the Trial Board makes its recommendations, the Superintendent of the
Division of the State Police (the “Superintendent”) must “review that decision,
taking into consideration other specified factors, and then issue his own decision . . .
as to what penalties he recommends be imposed in a given case.”21 On July 18, the
Superintendent sent Mock his decision agreeing with the Trial Board’s
recommendations.22 Upon receipt of the Superintendent’s decision, Mock’s counsel
asked the Division for the Trial Board recommendations and the Division sent
them.23
18
Id. ¶¶ 33, 36, 44.
19
Id. ¶ 36; see also D.I. 1 [hereinafter “Compl.”] at Ex. B. While Plaintiff incorporated
the exhibits attached to his initial complaint to the Amended Complaint, they are docketed
with the initial complaint. Compare D.I. 1, with D.I. 9. So, I will cite the exhibits as they
are docketed.
20
Am. Compl. ¶ 39.
21
Id. ¶ 37.
22
Id. ¶ 38; Compl. at Ex. A.
23
Am. Compl. ¶ 39; Compl. at Ex. B.
6
On July 26, Mock filed a timely written appeal to the Secretary of the
Department of Safety and Homeland Security (the “Secretary”).24 “The Secretary is
vested with the authority to hear appeals from disciplinary decisions of the Division
and such appeals are reviewed upon the Trial Board’s and Superintendent’s written
decisions; the transcript and record of the Divisional Trial Board hearing, and the
officer’s prior disciplinary file (collectively the ‘record’).”25 The Secretary held oral
argument on November 7.26 The Deputy Attorney General defending the
Superintendent’s decision on appeal before the Secretary had represented and
advised the Trial Board, and had drafted the Trial Board’s recommendation to the
Superintendent.27 On December 13, the Secretary issued his written decision
upholding the Superintendent’s decision to terminate Mock’s employment.28
On March 25, 2019, Mock sued the Division in this Court.29 Mock seeks
declaratory relief, damages, reinstatement, and an injunction against another
iteration of the LEOBOR process, alleging the Division violated his rights under
24
Am. Compl. ¶ 46.
25
Id.
26
Id. ¶ 50.
27
Id. ¶¶ 35, 47–49, 64(g); Compl. at Ex. B; Compl. at Ex. E; Compl. at Ex. C; Compl. at
Ex. D.
28
Am Compl. ¶ 51; Compl. at Ex. E.
29
See generally Compl.
7
“LEOBOR, Delaware common law, and constitutional due process.”30 He seeks a
second appellate review of his termination that would ultimately reverse the
termination, give him his job back, and award him money damages. Mock alleges
his termination should be reversed for violations “including but not limited to” the
following seven:
1. The Division’s “investigation was initiated and continued in
violation of [Mock]’s rights under LEOBOR [11 Del. C. § 9200(c)]
and the fruits of that improper investigation created and[] tainted the
charges lodged against [Mock], and tainted ensuing proceedings;”31
2. The Division “affirmatively created official written reports, after
[Mock] was already under formal investigation, and used those
documents to create and lodge ‘false official report’ charges
against” [Mock] in violation of his rights under 11 Del. C.
§ 9200(c);32
3. Mock’s “Trial Board hearing evidence was obtained, received or
admitted into evidence which violated [Mock]’s rights established
by [the] Constitution and by LEOBOR [11 Del. C. § 9206];”33
4. The Trial Board “entered judgment based on evidence obtained in
violation of [Mock’s] rights under LEOBOR”;34
30
Am. Compl. ¶ 59; id. ¶¶ 2, 64(c); id. at 23–24.
31
Id. ¶ 64(a).
32
Id. ¶ 64(b) (emphasis omitted).
33
Id. ¶ 64(c).
34
Id. ¶ 64(d).
8
5. “[T]he Trial Board issued its written decision ex parte to only []
Internal Affairs and not to [Mock], prior to the issuance of the
Superintendent’s decision and recommendation of termination, in
violation of LEOBOR [11 Del. C. § 9206] and [the Division’s]
internal procedures;”35
6. “[T]he Trial Board’s decision failed to make a legally sufficient,
evidentiary-based, findings of facts and conclusions of law upon the
substantiated charges, and neglected to address the unsubstantiated
charges at all;”36 and
7. The Division “allowed [Mock]’s administrative appeal to proceed
with the improper dual representation of allowing the Deputy
Attorney General who advised the Trial Board and drafted their
decision, to appear as counsel in opposition to [Mock]’s appeal of
that same decision.”37
On May 6, the Division filed a notice of removal to the United States District
Court for the District of Delaware.38 Mock moved to remand, and the Division
agreed to remand so long as fees were not sought.39 On June 20, Mock filed an
amended complaint in this Court (the “Amended Complaint”), which removed most,
if not all, references to federal due process rights.40 The Division filed its answer on
35
Id. ¶ 64(e).
36
Id. ¶ 64(f); see also id. ¶ 36.
37
Id. ¶ 64(g).
38
D.I. 7.
39
D.I. 8.
40
D.I. 9. After the District Court remanded this case, Plaintiff filed an Amended Complaint
that omitted his original claims under 43 U.S.C. § 1983 and the Fourteenth Amendment of
the United States Constitution. Compare Compl. ¶¶ 2, 58 (citing 42 U.S.C. § 1983 and the
Fourteenth Amendment), and id. at 18, 23 (citing “federal and state due process rights” and
42 U.S.C. § 1983), with Am. Compl. ¶¶ 2, 58 (removing references to 42 U.S.C. § 1983and the Fourteenth Amendment), and id. at 18, 23 (removing references to
9
June 28 and moved for leave to file an amended answer on February 27, 2020.41 On
January 29, 2021, Mock filed a motion to compel.42 On June 23, the Court asked for
supplemental briefing regarding whether this Court has subject matter jurisdiction.43
The parties submitted the requested briefing, and the Court took the matter under
advisement on March 17, 2022.44
II. ANALYSIS
For decades, Delaware courts have been attempting to parse which courts can
offer what relief for a violation of LEOBOR.45 While LEOBOR enumerates several
procedural requirements for disciplining a police officer, it does not enumerate any
remedy for a failure to follow those requirements.46 It does not make any provision
42 U.S.C. § 1983 and adding “and other rights secured by Delaware law, as described
herein”).
41
D.I. 11; D.I. 21.
42
D.I. 28.
43
D.I. 42.
44
D.I. 47; D.I. 48; D.I. 51; D.I. 52.
45
E.g., Burge v. City of Dover, 1987 WL 12311, at *7 (Del. Ch. June 8, 1987) (“The Law-
Enforcement Officers’ Bill of Rights itself does not contain any remedy provisions, and I
need not at this time intimate any view as to what remedies are authorized or appropriate
for a good faith violation of its terms, since it is clear that [42 U.S.C. §] 1983 does authorize
the ultimate remedy of reinstatement and the award of back pay.” (citing Harkless v.
Sweeny Indep. Sch. Dist., 427 F.2d 319 (5th Cir. 1970), and Vega v. Civil Serv. Comm’n,
385 F.Supp. 1376 (S.D.N.Y. 1974))).
46
Id. (“The Law-Enforcement Officers’ Bill of Rights itself does not contain any remedy
provisions . . . .”).
10
for judicial appellate review, and it is not subject to review under the Delaware
Administrative Procedures Act (the “APA”).47
The Superior Court has emphasized that mandamus is appropriate for
nondiscretionary and ministerial LEOBOR violations.48 I came across those
Superior Court cases in preparing for argument on the Division’s motion to amend
and Mock’s motion to compel, and they inspired my request for supplemental
briefing as to whether this Court has subject matter jurisdiction over this case.49
Mock contends it does; the Division contends it does not.
This Court is tasked with “jealously guard[ing] its domain as a court of
equity.”50 “The Court of Chancery will dismiss an action for want of subject matter
47
29 Del. C. § 10161; Haden v. Bethany Beach Police Dep’t, 2014 WL 2964081, at *2
(Del. Super. June 30, 2014) (“Moreover, this Court has clearly held in prior precedent that
it does not have jurisdiction over appeals from decisions rendered pursuant to LEOBOR.
Neither LEOBOR nor the [APA] renders appellate rights to law enforcement officers under
LEOBOR’s purview.” (citations omitted)); Smith v. Dep’t of Pub. Safety of State, 1999 WL
1225250, at *11 (Del. Super. Oct. 26, 1999) (“This Court has previously held that it does
not have jurisdiction to hear appeals from decisions rendered by an appeal panel pursuant
to LEOBOR because such jurisdiction has not been conferred by either the Constitution or
statutes of this State. Moreover, neither of the parties have presented any authority for the
existence of an appeal to this Court from decisions rendered pursuant to the Divisional
Manual.” (citing Wescott v. City of Milford Police, 1995 WL 465188, at *4 (Del. Super.
July 31, 1995), as revised (Jan. 26, 1996))), aff’d, 765 A.2d 953 (Del. 2000); id. at *11 n.15
(“The Divisional Manual provides for an appeal from the hearing or Appeal Board to the
Secretary of Public Safety, but only in cases where suspension exceeds five days.” (citing
Divisional Manual at p. VII–5–13)).
48
See infra Section II(A)(1).
49
D.I. 42.
50
In re Est. of Tinley, 2007 WL 2304831, at *1 (Del. Ch. July 19, 2007).
11
jurisdiction ‘if it appears from the record that the Court does not have jurisdiction
over the claim.’”51 “Equitable jurisdiction is a predicate issue for every matter in
this court of limited jurisdiction.”52 This Court can exercise subject matter
jurisdiction only when (i) “a plaintiff states an equitable claim,” (ii) “a plaintiff
requests equitable relief and there is no adequate remedy at law,” or (iii) “jurisdiction
exists by statute.”53 The parties do not dispute that this Court lacks statutory
jurisdiction over this matter, or that Mock has not brought an equitable claim.54 The
parties dispute whether Mock has an adequate remedy at law.
In evaluating whether an adequate remedy at law exists, the Court looks
beyond the relief stated in the complaint and focuses instead on “what relief is
actually sought.”55 This Court “must make a realistic assessment of the nature of an
51
Acierno v. New Castle Cty., 2006 WL 1668370, at *3 (Del. Ch. June 8, 2006) (quoting
AFSCME Locals 1102 & 320 v. City of Wilm., 858 A.2d 962, 965 (Del. Ch. 2004)).
52
Preston Hollow Cap., LLC v. Nuveen, LLC, 2019 WL 3801471, at *4 (Del. Ch.
Aug. 13, 2019) (citing Athene Life & Annuity Co. v. Am. Gen. Life Ins. Co., 2019 WL
3451376 (Del. Ch. July 31, 2019)).
53
Delawareans for Educ. Opportunity v. Carney, 2018 WL 4849935, at *5 (Del. Ch.
Oct. 5, 2018) (citations omitted).
54
Am. Compl. ¶¶ 3, 61, 65 (asserting this Court has jurisdiction because Plaintiff contends
he lacks an adequate remedy at law); D.I. 48 at 11, 19 (arguing while Plaintiff purports to
seek equitable relief, he does not have a statutory or equitable right to this Court’s
jurisdiction).
55
See Rapposelli v. Elder, 1977 WL 23821, at *1 (Del. Ch. Nov. 8, 1977); see also Gladney
v. City of Wilm., 2011 WL 6016048, at *4 (Del. Ch. Nov. 30, 2011) (“It is the practice of
this Court in determining its jurisdiction, to go behind the facade of prayers to determine
the true reason for which the plaintiff has brought suit.” (alterations and internal quotation
12
alleged wrong and the relief available.”56 In other words, “[t]his jurisdictional
inquiry is a serious one involving a close examination of the plaintiff’s claims and
desired relief, not a perfunctory verification of the plaintiff’s incantation of magic
words sounding in equity.”57 “The inquiry is necessarily fact-intensive and, thus,
peculiar to each asserted claim.”58 “In evaluating the sufficiency of the legal remedy,
prerogative writs are somewhat awkward because of their own equitable nature.”59
marks omitted) (quoting Int’l Bus. Machs. Corp. v. Comdisco, Inc., 602 A.2d 74, 78 (Del.
Ch. 1991))).
56
Levinson v. Cont’l Ins. Servs., Inc., 1991 WL 50145, at *2 (Del. Ch. Apr. 4, 1991) (citing
Hughes Tool Co. v. Fawcett Publ’ns, Inc., 297 A.2d 428 (Del. Ch. 1972), rev’d on other
grounds, 315 A.2d 577 (Del. 1974)); see also, e.g., Webb v. Diamond State Tel. Co., 237
A.2d 143, 146 (Del. Ch. 1967) (“Accordingly, I conclude that mandamus is not an
appropriate or adequate remedy here, plaintiff being, in my opinion, entitled to injunctive
relief if the relevant facts are resolved in his favor.”); SimplexGrinnell, L.P. v. Del. Dep’t
of Lab., 2012 WL 5362835, at *3–9 (Del. Ch. Oct. 31, 2012) (determining whether or not
plaintiff had an adequate remedy at law via administrative remedy and a writ of certiorari
for purposes of analyzing subject matter jurisdiction).
57
Savage v. Savage, 920 A.2d 403, 408 (Del. Ch. 2006) (internal quotation marks omitted)
(quoting McMahon v. New Castle Assocs., 532 A.2d 601, 603 (Del. Ch. 1987)); see
Christiana Town Ctr., LLC v. New Castle Ctr. (Christiana Town Ctr. I), 2003 WL
21314499, at *3 (Del. Ch. June 6, 2003) (“In this regard, the Court of Chancery will not
exercise subject matter jurisdiction where a complete remedy otherwise exists but where
plaintiff has prayed for some type of traditional equitable relief as a kind of formulaic ‘open
sesame’ to the Court of Chancery.” (internal quotation marks omitted) (quoting Int’l Bus.
Machs., 602 A.2d at 78, and citing City of Wilm. v. Del. Coach Co., 230 A.2d 762, 766–67
(Del. Ch. 1967))), aff’d sub nom. Christiana Town Ctr., LLC v. New Castle Cty. (Christiana
Town Ctr. II), 841 A.2d 307 (Del. 2004) (TABLE).
58
Donald J. Wolfe, Jr. & Michael A. Pittenger, Corporate and Commercial Practice in the
Delaware Court of Chancery [hereinafter “Wolfe & Pittenger”], § 2.03[b][2], at 2-61
(2021) (collecting cases).
59
Fam. Ct. v. Dept. of Lab. and Indus. Rels., 320 A.2d 777, 780 (Del. Ch. 1974).
13
“[M]andamus will not lie unless the plaintiff has no other adequate remedy.”60 “But
such writs, despite their prerogative nature, are capable of affording complete and
adequate relief to a petitioner, and, if such is the case, resort may not be had to a
court of equity.”61 If, after a practical assessment of a plaintiff’s claims, it appears
that an adequate remedy at law exists, the Court must dismiss them.62
I have considered whether Mock has an adequate remedy at law for each of
his asserted violations in turn, and have concluded this Court does not have subject
matter jurisdiction over any of them. To my eye, the Superior Court has the
discretionary authority to remedy most of Mock’s asserted violations and give him
what he seeks via a writ of mandamus.
60
Smith, 1999 WL 1225250, at *12 (citing State ex rel. Lyons v. McDowell, 57 A.2d 94,
97 (Del. Super. 1947)).
61
Fam. Ct., 320 A.2d at 780 (collecting cases); cf. Hundley v. O’Donnell, 1998 WL
842293, at *3 (Del. Ch. Dec. 1, 1998) (“Plaintiff can file a writ of certiorari in the Superior
Court to have that issue resolved. Furthermore, Plaintiff fails to convince me that this
remedy is inadequate. Were there some factors pleaded here to suggest that were so, the
result might be quite different.”).
62
United BioSource LLC v. Bracket Hldg. Corp., 2017 WL 2256618, at *2 (Del. Ch.
May 23, 2017) (quoting Int’l Bus. Machs., 602 A.2d at 78).
14
In basic terms, a mandamus is “[a] writ issued by a court to compel
performance of a particular act by a lower court or a governmental
officer or body.” A mandamus is “an exceptional remedy that is not
available as a matter of right,” and it may be directed only at certain
entities or individuals: “a lower court, agency, or public official.” This
flows naturally from the writ’s status at common law in England as “a
command issuing in the king’s name from the court of king’s bench,
and directed to any person, corporation, or inferior court of judicature
within the king’s dominions.”63
The writ of mandamus is an extraordinary “remedial writ used to compel officers
and other officials to perform their duties as required by law.”64 It is “appropriate
only when a plaintiff is able to establish a clear legal right to the performance of a
non-discretionary duty.”65 If a litigant has suffered a nondiscretionary and
ministerial wrong, then it may be remedied by a writ of mandamus.66
For Mock’s remaining two alleged violations, I do not believe mandamus is
appropriate, but Mock has not pled what he must to secure this Court’s jurisdiction,
63
State ex rel. Abbott v. Aaronson, 206 A.3d 260, 2019 WL 925856, at *1 (Del.
Feb. 25, 2019) (TABLE) (citations and emphasis omitted).
64
Mell v. New Castle Cty., 2003 WL 1919331, at *8 (Del. Ch. Apr. 11, 2003) (citations
omitted).
65
Darby v. New Castle Gunning Bedford Ed. Ass’n, 336 A.2d 209, 210 (Del. 1975)
(citations omitted); Nathan v. Martin, 317 A.2d 110, 113 (Del. Super. 1974) (“The remedy
is available only where the right of the petitioner is clear.” (citing Webb, 237 A.2d at 146)).
66
Darby, 336 A.2d at 210 (“The writ is extraordinary and appropriate only when a plaintiff
is able to establish a clear legal right to the performance of a non-discretionary duty.”
(citations omitted)); Mell, 2003 WL 1919331, at *8 (“The writ of mandamus is a remedial
writ used to compel officers and other officials to perform their duties as required by law.
The writ only applies to ministerial actions, not to discretionary acts.” (citations omitted)).
15
either as a due process claim or as a claim for administrative error. In the absence
of a statutory right of judicial review,
a court will review an administrative decision, even in the absence of
such a statute, if the action by the agency was arbitrary or an abuse of
discretion. This is so because in the administration of a statutory
remedy, a discretion abused or exercised arbitrarily is no remedy at all.
And equity will grant relief in such situations if there is no adequate
alternative remedy available at law.67
And so, for those administrative violations that are nondiscretionary and
ministerial, Mock has an adequate remedy at law in mandamus. For those that are
more discretionary in nature, Mock has failed to secure this Court’s jurisdiction by
alleging the process he already received was not adequate. Accordingly, this action
is dismissed for lack of subject matter jurisdiction.
A. The Nondiscretionary And Ministerial LEOBOR Violations Mock
Alleges Have An Adequate Remedy In Mandamus.
This Court stands as a vigilant sentry at the borders of its subject matter
jurisdiction. It is particularly vigilant at the historic and essential border between
equity and writs. From my post, I conclude that five of the seven violations Mock
alleges have an adequate remedy at law in mandamus.
67
Choma v. O’Rourke, 300 A.2d 39, 41 (Del. Ch. 1972) (citations omitted).
16
1. Mandamus As A Remedy For LEOBOR Violations
Delaware courts have repeatedly “suggested that a writ of mandamus may be
the proper way to remedy LEOBOR violations.”68 Much of LEOBOR is plainly
ministerial and has been held to be such.69 The Superior Court has “assume[d]
mandamus is available” to address LEOBOR violations including: a plaintiff not
being informed in writing of the nature of the investigation prior to being
questioned;70 the absence of any record, written, taped or otherwise, of any interview
conducted in connection with the investigation;71 and a failure to provide a hearing
before an impartial board.72 And the Superior Court has the authority to reinstate a
police officer via a writ of mandamus.73 If the Superior Court finds an officer’s
68
E.g., Rosario v. Town of Cheswold, 2007 WL 914899, at *3 (Del. Super. Mar. 2, 2007)
(citing Smith, 1999 WL 1225250, at *12, and Knox v. City of Elsmere, 1995 WL 339096,
at *1 (Del. Super. May 10, 1995), and Maull v. Warren, 1992 WL 114111, at *3 (Del.
Super. Apr. 24, 1992)), aff’d, 945 A.2d 1168 (Del. 2008).
69
Smith, 1999 WL 1225250, at *12 (“The requirements for disciplinary investigations are
specific and do not leave room for discretion. Thus, the actions mandated by the statute
are ministerial rather than discretionary.”).
70
Id. at *3, *13.
71
Id.
72
Knox, 1995 WL 339096, at *6 (denying defendants’ motion for summary judgment on
plaintiff’s petition for a writ of mandamus based on allegations defendants violated 11 Del.
C. § 9205(b)).
73
Rosario, 2007 WL 914899, at *3 (“In fact, in a case where violations of the LEOBOR
were alleged this Court stated that mandamus is the proper remedy to compel reinstatement
of officers or employees illegally discharged, removed, or suspended in violation of the
civil service law.” (internal quotation marks omitted) (quoting Smith, 1999 WL 1225250,
at *12)).
17
termination comprised a ministerial and nondiscretionary violation of LEOBOR, the
Superior Court has the authority to effectively reverse the unappealable termination
and restore the officer’s job and benefits.74
Accordingly, mandamus is the proper remedy for substantial LEOBOR
violations, including where reinstatement is sought.75 Nondiscretionary or
ministerial compliance with clear legal rights under LEOBOR is enforceable through
a writ of mandamus, if warranted in the Superior Court’s discretion.76
74
See, e.g., id.; cf. State ex rel. Hall v. Camper, 347 A.2d 137, 138–39 (Del. Super. 1975)
(denying defendant’s motion for summary judgment where “Plaintiff seeks a writ of
mandamus to compel the members of the Board of Education of the Capital School District
to restore him to his position as Principal of the West Dover Elementary School at an annual
salary of $19,749.00. In the alternative, plaintiff asks payment of the aforementioned
sum”). But see Smith, 1999 WL 1225250, at *13 (relying on a Massachusetts case from
1947 when stating the following “logical remedy” would be improper: “In the case at bar,
it would be senseless to compel the state police to conduct the disciplinary investigation
and proceedings again in compliance with LEOBOR. The only logical remedy would be
to declare the proceedings void and compel the State Police to remove the matter from the
Plaintiff’s record.” (citing Henderson v. Mayor of Medford, 75 N.E.2d 642 (Mass. 1947))).
75
Smith, 1999 WL 1225250, at *12 (reaffirming “mandamus is the proper remedy to
compel reinstatement of officers or employees illegally discharged, removed, or suspended
in violation of the civil service law” (internal quotation marks and emphasis omitted)
(quoting 55 C.J.S. Mandamus § 2[90] (1998))); accord Hiller v. City of Rehoboth Beach,
2020 WL 5637053, at *4 (Del. Super. Sept. 18, 2020) (“In certain circumstances,
mandamus may address LEOBOR violations, including reinstatement; however, the
violations must be substantial in nature.”).
76
Rosario, 2007 WL 914899, at *3; Brittingham II, 113 A.3d at 526 (“Brittingham and
Story, as officers protected by LEOBOR, had a clear legal right to the process provided
therein.”).
18
2. The Historic Separation Of Writs And Equity
Mandamus and equity have been in different jurisdictions since the feudal
English system on which Delaware’s system is modeled. “The jurisdiction to issue
the writ of mandamus is the same precisely as that formerly exercised by the Court
of King’s Bench in England, except where modified by statute there[.]”77 While the
Court of King’s Bench was empowered to issue writs of mandamus, the King’s
Chapel in England evolved into a Court of Chancery to afford judicial relief where
writs could not.78
That jurisdictional distinction abides in Delaware, where “there remains an
historic and constitutional separation of law and equity.”79 When Delaware
established its Superior Court in the 1800s, “jurisdiction to issue writs of mandamus
was conferred upon [the Superior Court] by statute, which provided that
77
II Victor B. Woolley, Practice in Civil Actions and Proceedings in the Law Courts of
the State of Delaware [hereinafter “Woolley”], § 1654 (1906); accord Swift v. Richardson,
32 A. 143, 145–47 (Del. Super. 1886).
78
William T. Quillen & Michael Hanrahan, A Short History of the Delaware Court of
Chancery—1792–1992, 18 DEL. J. CORP. L. 819, 820 (1993).
79
Monroe Park v. Metro. Life Ins. Co., 457 A.2d 734, 738 (Del. 1983).
19
The judges of the Superior Court or any two of them shall[], administer
justice to all persons and exercise jurisdictions and powers hereby
granted them, concerning the premises, according to law and equity, as
fully and amply, to all intents and purposes whatsoever, as the justices
of the King’s Bench and common pleas at Westminster, or the
chancellor of England, may and can do.80
The Superior Court’s jurisdiction to issue writs of mandamus is currently codified
in 10 Del. C. § 564. The Superior Court has the exclusive, “discretionary power to
issue a [w]rit of [m]andamus ‘to lower tribunals, boards and agencies, inter alia, to
compel performance of their official duties.’”81
The Court of Chancery’s “traditional equitable jurisdiction . . . is to be derived
from the vague pronouncement that the jurisdiction of the Delaware Court of
Chancery is coextensive with that exercised by the High Court of Chancery in Great
Britain as of the separation of the American colonies in 1776.”82 The Court of
Chancery’s jurisdiction excludes writs and any claim for which there is an adequate
remedy at law: this Court lacks subject matter jurisdiction where a “sufficient
80
II Woolley, § 1654 (citations and quotation marks omitted); see also Rash v. Allen, 76
A. 370, 374 (Del Super. 1910) (explaining the Superior Court’s authority as established by
Delaware’s third Constitution of 1831); Young v. Red Clay Consol. Sch. Dist., 159 A.3d
713, 760 (Del. Ch. 2017) (“Delaware has had four constitutions, adopted respectively in
1776, 1792, 1831, and 1897. They are not separate and independent, but rather linked.”).
81
Knox, 1995 WL 339096, at *1 (quoting Schagrin Gas Co. v. Evans, 418 A.2d 997–98
(Del. 1980)).
82
Wolfe & Pittenger, § 2.02[b], at 2-7.
20
remedy may be had by common law, or statute, before any other court or jurisdiction
of this State.”83
Where mandamus is available, this Court’s injunctive power is superfluous
and therefore not available. If the Superior Court awards a writ of mandamus, and
the administrative agency does not abide by the Superior Court’s determination, then
perhaps a claim for injunctive enforcement will be heard by this Court. 84 But
Delaware courts presume that agencies “will respect any decision rendered by any
competent court of this State.”85 “It would be anathema to our form of government
to believe, as a baseline principle, that after a court renders [an order] another
governmental agency would not follow that decision.”86
83
10 Del. C. § 342.
84
Christiana Town Ctr. I, 2003 WL 21314499, at *4 n.19 (“It may actually be the case that
a particular [government] agency does not follow such a [declaratory] judgment, but a party
should only seek injunctive relief if that agency actually refuses to comply with the judicial
declaration.”); Jones v. Mut. Fid. Co., 123 F. 506, 507 (C.C.D. Del. 1903) (“The fact that
equitable relief can be granted in aid of a legal remedy only after the plaintiff has exhausted
such remedy precludes the possibility of any clash or conflict between legal jurisdiction
and equitable jurisdiction or of any blending of legal and equitable remedies in the same
suit.”).
85
Christiana Town Ctr. I, 2003 WL 21314499, at *4; Reeder v. Del. Dep’t of Ins., 2006
WL 510067, at *16 (Del. Ch. Feb. 24, 2006) (“There is no justification on this record for
an injunction requiring the Insurance Department to do what it must do in any event—
comply with applicable statutory constraints on its behavior.”); Gladney, 2011 WL
6016048, at *4 (“The Courts of this State understandably presume that governmental
agencies and actors will follow the law.” (citing Christiana Town Ctr. I, 2003 WL
21314499, at *4 n.19)).
86
Christiana Town Ctr. I, 2003 WL 21314499, at *4 n.19.
21
That the Superior Court might deny a plaintiff’s petition for a writ does not
inform the remedy’s adequacy for this Court’s jurisdictional consideration. The
Superior Court maintains the discretion to deny petitions for writs of mandamus for
technical administrative violations that “do not rise to the level of procedural or
substantive due process violations.”87 In making that determination regarding
alleged LEOBOR violations, the Superior Court has considered whether in fact the
officer committed the infraction and was appropriately disciplined.88 The Superior
Court has also in the past declined to issue a writ of mandamus, and instead has held
a hearing to determine an “appropriate remedy” for the plaintiff.89 The existence of
87
Hiller, 2020 WL 5637053, at *4 (citing Smith, 1999 WL 1225250, at *13).
88
See id. (“Although termination was an appropriate punishment choice for a Rule 800
violation, Hiller contends the LEOBOR violations warrant reversal of his termination. The
Panel found multiple LEOBOR violations; however, not every LEOBOR violation will
support issuance of mandamus.”); Smith, 1999 WL 1225250, at *13 (“The LEOBOR
violations set forth in Plaintiff’s complaint are technical in nature. The Complaint does not
allege violations which rise to the level of procedural or substantive due process violations.
Moreover, Plaintiff never alleges that he was falsely accused of the action for which he
was disciplined. In the Court’s estimation, Plaintiff’s complaint does not include
allegations sufficiently egregious or compelling to warrant the Court interjecting in the
routine disciplinary proceedings of a state agency.”).
89
In re Massey, 2002 WL 1343828, at *2 (Del. Super. June 20, 2002); see Rosario, 2007
WL 914899, at *3 (discussing the subsequent events of In re Massey).
22
an adequate legal remedy is enough to divest this Court of jurisdiction,90 even if the
plaintiff is not ultimately successful in securing that remedy.91
3. Mock’s Request for Reinstatement Is Adequately
Remedied Through Mandamus.
And so, peering over the wall between mandamus and equity, and with the
law that mandamus is an adequate remedy for nondiscretionary and ministerial
LEOBOR violations in my ear, I turn to Mock’s claims. His clearest attempt to
secure this Court’s equitable jurisdiction is his second cause of action for
“Permanent Injunction; Reinstatement.”92 The prayer for relief elaborates Mock is
asking this Court to
90
E.g., Sabo v. Williams, 303 A.2d 696, 697 (Del. Ch. 1973) (“The existence of such an
adequate remedy precludes this court’s concurrent jurisdiction.”).
91
Cf. Intel Corp., v. Fortress Inv. Gp., LLC, 2021 WL 4470091, at *8 (Del. Ch.
Sept. 30, 2021) (finding where Intel had available license defenses in other actions at the
time it filed its Chancery complaint, it had an adequate remedy at law that precluded this
Court from exercising its equitable jurisdiction to declare Intel had a license); Maplewood
Indus., Inc. v. Dep’t of Nat. Res. & Env’t Control, 1989 WL 155944, at *4 (Del. Ch.
Dec. 7, 1989) (finding plaintiff had an adequate remedy at law via a damages action,
notwithstanding defendant’s possible sovereign immunity defense to plaintiff’s action,
should plaintiff chose to move forward); Buczik v. Wonchoba, 1993 WL 93444, at *2 (Del.
Ch. Mar. 24, 1993) (finding plaintiff’s fear that “raising the release as an affirmative
defense in the Superior Court action would not be an adequate remedy because the jury . . .
might disregard the merits of the release” meritless).
92
Am. Compl. ¶¶ 63–66.
23
[i]ssue a permanent injunction reinstating Plaintiff’s employment as a
Delaware State Trooper at his last rank, directing Defendant to
reimburse Plaintiff for the loss of all back pay, pension contributions
and benefits, from the date of Plaintiff’s suspension without pay
through the date of his reinstatement to employment, with pre and post-
judgment interest thereon, as part of his equitable reinstatement, and
enjoining Defendant from undertaking further proceedings adverse to
his employment related to this matter.93
In practical terms, this claim seeks (1) a reversal of the Division’s termination of
Mock’s employment because the Division violated Mock’s rights in doing so; (2)
reinstatement and (3) pecuniary restitution that would logically flow from the
reversal; and (4) a forward-looking permanent injunction.
As an initial matter, “[a]n injunction against future wrongdoing is not
generally available.”94 “For forward-looking relief to be warranted, the plaintiff
must establish a ‘reasonable apprehension of a future wrong.’”95 The forward-
looking, permanent injunction Mock seeks is not available because he has not
established a “reasonable apprehension of a future wrong”96 in future LEOBOR
93
Id. at 23–24.
94
Organovo Hldgs., Inc. v. Dimitrov, 162 A.3d 102, 114 (Del. Ch. 2017) (collecting cases).
95
Id. at 115 (quoting McMahon, 532 A.2d at 606).
96
Id.; Young, 2017 WL 2271390, at *53 (“A permanent injunction against future conduct
is not warranted simply because a court has found past conduct illegal.”); accord Del. Bldg.
& Constr. Trades Council v. Univ. of Del., 2014 WL 2218730, at *2 (Del. Ch.
May 29, 2014) (holding that injunctive relief was not warranted where a plaintiff “merely
contends that, because the Defendants have purportedly not complied with [a] statute in
the past, they will continue this alleged pattern of non-compliance” after a court order).
24
proceedings. An injunction improperly seeking to preclude a theoretical future
wrong cannot anchor subject matter jurisdiction in this Court.97
Nor does Mock’s claim for back pay vest this Court with subject matter
jurisdiction.98 If the Superior Court determines that Mock’s termination is invalid
or void, it can order compensation for his pecuniary losses.99
Mock’s claim for reinstatement does not require him to come to this Court,
either. As a general matter, mandamus can compel reinstatement.100 Whether it can
do so for Mock depends on the nature of the underlying LEOBOR violations; they
will either be nondiscretionary and ministerial, and therefore correctable by
mandamus; or they will require a different remedy, perhaps in equity.101 Mock
concedes that at least one of his complaints is ministerial in nature and falls within
97
Crown Castle Fiber LLC v. City of Wilm., 2021 WL 2838425, at *6 (Del. Ch.
July 8, 2021).
98
Gladney, 2011 WL 6016048, at *5 (“To the extent Gladney is seeking damages as
recompense for her alleged wrongful termination, that claim in itself is not sufficient to
support the exercise of this Court’s jurisdiction.”).
99
See Semick v. Casson, 1986 WL 9933, at *1 (Del. Super. Sept. 4, 1986) (noting a “request
for monetary damages could have been presented with the petition for mandamus relief”);
Geloff v. Schramm, 1984 WL 136933, at *3 (Del. Ch. June 4, 1984) (“In my view, if she
prevails on the merits in Superior Court, a writ of mandamus would adequately remedy her
situation by compelling the Defendants to fulfill their statutory obligation, perhaps in a
more specific, informative way. In addition, the Superior Court may deem money damages
appropriate to remedy alleged past injustices.”).
100
Supra notes 73–75 and accompanying text.
101
Cf. Fletcher v. Casson, 1988 WL 32020, at *2 (Del. Super. Mar. 23, 1988) (dismissing
a writ of mandamus as moot where petitioner “received all the due process protection to
which he is entitled in such a proceeding”).
25
the jurisdiction of mandamus: number five, complaining the Trial Board issued its
ruling ex parte, and only disclosed it to Mock at his counsel’s request.102
As to the rest of the alleged violations, Mock contends they are nonministerial,
and that the violated rights call for the exercise of discretion, and so are not amenable
to mandamus.103 Mock goes on to argue that in the absence of appellate review at
law, he lacks an adequate remedy at law and so must be heard by this Court. The
Division does not dispute Mock’s characterization of the remaining violations, but
contends this Court lacks jurisdiction over them anyway. The Division contends
LEOBOR violations are only remediable through common law writs, and if a
particular violation cannot be remedied by a writ, then there can be no judicial
review.104 In considering the adequacy of Mock’s remedies at law, I must make my
102
Am. Compl. ¶¶ 37–40; D.I. 47 at 15 (“LEOBOR requires some purely ministerial
obligations, inter alia: . . . that, following a hearing, a copy of the hearing board’s decision
with findings and conclusions, shall be ‘delivered or mailed promptly’ to the officer or his
representative ([11 Del. C. ]§9207).”); D.I. 51 at 7 (“But for perhaps a single issue in this
case—the ex parte issuance of trial board decision which was produced after the fact at
Mock’s counsel’s request . . . .”).
103
D.I. 47 at 23 (“[A] writ of mandamus is not the appropriate vehicle to review and redress
Plaintiff’s claims[:] . . . DSP’s creation of after-the-fact reports and withholding of the
original Martin report in discovery and at the hearing similarly require an examination of
the conduct that took place and whether it violated Cpl. Mock’s due process rights. No
ministerial duties are involved.”); id. at 25, 27–28, 30; D.I. 51 at 17.
104
While I focus my analysis on the adequacy of a writ of mandamus, the Division also
argues a writ of certiorari would provide Mock a full, fair, and complete remedy at law.
D.I. 48 at 16–24. See 395 Assocs., LLC v. New Castle Cty., 2006 WL 2021623, at *3 (Del.
Super. July 19, 2006) (“Under this common law writ[ of certiorari], this Court has the
power to quash or affirm the proceedings and to remand.”). The Superior Court’s review
26
own determination and “realistic assessment of the nature of an alleged wrong and
the relief available.”105
For the reasons I will explain, I believe the first five issues have an adequate
remedy at law in mandamus. Of course, my belief on the adequacy of mandamus
does not bind the Superior Court; the Superior Court may still find the Trial Board’s
acts were discretionary and not eligible for mandamus,106 or it may find the
violations technical and in its discretion decline to issue a writ.107 Whether a writ
should issue is for the Superior Court to decide: “[w]hile the courts will jealously
guard its powers and jurisdictions, they will be careful not to infringe upon the
on certiorari “is limited to considering ‘the record to determine whether the lower
tribunal[:]’ (a) exceeded its jurisdiction, (b) committed errors of law, or (c) proceeded
irregularly.” Id. at *3, *5–13 (Del. Super. July 19, 2006) (quoting Christiana Town Ctr.,
LLC v. New Castle Cty. (Christiana Town Ctr. III), 865 A.2d 521, 2004 WL 2921830, at
*2 (Del. 2004) (TABLE)). Certiorari may not be available as long as there is another basis
for review. Goldstein v. Mun. Ct. for City of Wilm., 1991 WL 53830, at *11 (Del. Super.
Jan. 7, 1991) (“Delaware has established four criteria for the review of constitutional issues
on a Writ of Certiorari: (1) the act of the lower tribunal must be final; (2) there must be no
right of appeal, (3) a question of grave public policy and interest must be involved; and (4)
there must be no other basis for review available.” (citations omitted)).
105
Levinson, 1991 WL 50145, at *2 (citations omitted); Fischer v. Fischer, 1999 WL
1032768, at *4 (Del. Ch. Nov. 4, 1999) (“Equity’s appropriate focus should be the alleged
wrong, not the nature of the claim which is no more than a vehicle for reaching the remedy
for the wrong.”).
106
Stump v. Town of Middletown, 2019 WL 1514206, at *5 (Del. Super. Apr. 8, 2019),
aff’d, 227 A.3d 138 (Del. 2020).
107
Hiller, 2020 WL 5637053, at *4 (citing Smith, 1999 WL 1225250, at *13).
27
powers, prerogatives and jurisdictions” of others.108 My conclusion that Mock has
adequate remedies at law in mandamus suffices only to divest this Court of subject
matter jurisdiction unless and until the Superior Court, as the only tribunal with the
jurisdiction to say so with finality, determines that mandamus will not issue because
the violations are discretionary or nonministerial.109
I take each of Mock’s first five grievances in turn.
a. The Division’s Investigation
Mock’s first two grievances assert the Division violated his rights under
LEOBOR Section 9200(c). He alleges its “investigation was initiated and continued
in violation of [Mock]’s rights under LEOBOR and the fruits of that improper
investigation created and[] tainted the charges lodged against [Mock], and tainted
ensuing proceedings[.]”110 He also contends the Division “affirmatively created
108
State ex rel. Biggs v. Corley, 172 A. 415, 420 (Del. 1934); Bramble v. Dannemann,
1980 WL 6366, at *3 (Del. Ch. Jan. 10, 1980) (dismissing an action with an adequate
remedy in mandamus for lack of subject matter jurisdiction).
109
Unlike the defendants in Bramble v. Dannemann, the Division has not claimed that
mandamus is the proper remedy, and so would not be estopped from arguing it is not the
correct remedy in Superior Court. See Mason v. Bd. of Pension Trs., 468 A.2d 298, 300
(Del. Super. 1983) (describing Bramble’s jurisdictional volley from Chancery to Superior
Court and back to Chancery (citing Bramble, 1980 WL 6366, and Bramble v. Dannemann,
No. 80C-FE-84 (Del. Super. Apr. 30, 1982) (ORDER))).
If the Superior Court, in its exclusive discretion, declines to issue a writ because the
violations are technical, that is an adverse and final merits conclusion under an adequate
remedy at law by a Court with competent jurisdiction. See supra notes 90–91 and
accompanying text.
110
Am. Compl. ¶ 64(a); id. ¶¶ 16–18, 26.
28
official written reports, after Mock was already under formal investigation, and used
those documents to create and lodge ‘false official report’ charges against [] Mock”
in violation of his rights under 11 Del. C. § 9200(c).111
LEOBOR Section 9200(c) “sets forth in twelve numbered subsections
procedures which govern any such investigation or questioning.”112 Mock’s
complaints implicate subsections (4), (7), (9) and (10):
(c) Whenever a law-enforcement officer is under investigation or is
subjected to questioning for any reason which could lead to disciplinary
action, demotion or dismissal, the investigation or questioning shall be
conducted under the following conditions:
...
(4) The law-enforcement officer under investigation shall be informed
in writing of the nature of the investigation prior to being
questioned.
...
(7) A complete record, either written, taped or, if taped, transcribed as
soon as practicable, shall be kept of all interviews held in connection
with the administrative investigation upon notification that
substantial evidence exists for seeking an administrative sanction of
the law-enforcement officer. A copy of the record shall be provided
to the officer or the officer’s counsel at the officer’s expense upon
request.
...
111
Id. ¶ 64(b) (emphasis omitted); id. ¶ 27.
112
In re Massey, 2002 WL 1343828, at *1; 11 Del. C. § 9200(c).
29
(9) Upon request, any officer under questioning shall have the right to
be represented by counsel or other representative of the officer’s
choice, who shall be present at all times during the questioning
unless waived in writing by the investigated officer. The
questioning shall be suspended for a period of time if the officer
requests representation until such time as the officer can obtain the
representative requested if reasonably available.
(10) An officer who is charged with violating any departmental rules or
regulations, or the officer’s representative, will be provided access
to transcripts, records, written statements, written reports, analyses
and video tapes pertinent to the case if they are exculpatory,
intended to support any disciplinary action or are to be introduced
in the departmental hearing on the charges involved. Upon demand
by the officer or counsel, they shall be produced within 48 hours of
the written notification of the charges.113
“The requirements for disciplinary investigations [under LEOBOR Section
9200(c)] are specific and do not leave room for discretion.”114 To my eye, Mock’s
complaints about the flaws in the Division’s investigation amount to ministerial
violations of Section 9200(c), such that Mock has an adequate remedy at law in
mandamus.
b. The Trial Board’s Evidentiary Procedures
Mock’s third and fourth grievances allege the evidence on which the Trial
Board entered its judgment was “obtained, received or admitted into evidence which
violated Plaintiff’s rights established by [the] Constitution and by LEOBOR[.]”115
113
11 Del. C. §§ 9200(c)(4), (7), (9)–(10).
114
Smith, 1999 WL 1225250, at *12 & n.17.
115
Am. Compl. ¶ 64(c); id. ¶ 64(d).
30
This language tracks LEOBOR Section 9206.116 That Section recursively
incorporates the officer’s constitutional due process rights and the rest of LEOBOR:
No evidence may be obtained, received or admitted into evidence in
any proceeding of any disciplinary action which violates any of the
rights established by the United States Constitution or Delaware
Constitution or by this chapter. The tribunal may not enter any
judgment or sustain any disciplinary action based on any evidence
obtained in violation of the officer’s rights as contained in this
chapter.117
Mock’s third grievance does not specify how or when his constitutional rights
were violated—he amended his initial complaint to remove his claims under
43 U.S.C. § 1983 and the Fourteenth Amendment of the United States
Constitution.118 His claim about how the Division obtained and submitted evidence
alleges only that the Division violated Section 9206’s umbrella obligations by in turn
violating Section 9200(c).119 Similarly, Mock’s fourth grievance contends the
Division violated its duty to enter judgment based on compliant evidence by relying
on evidence collected and submitted in violation of Section 9200(c).120
116
11 Del. C. § 9206.
117
Id.
118
See, e.g., Am. Compl. ¶¶ 16–18, 26; see also supra note 40.
119
Am. Compl. ¶¶ 16–18, 26, 64(c).
120
Id. ¶¶ 16–18, 26, 64(d). Mock does not allege that he offered permissible evidence into
the record and the Trial Board declined to admit it. The Trial Board has discretion as to
which probative and non-violative evidence it may or may not admit under a standard
invoking reasonableness; such a violation would be discretionary and not amenable to
mandamus. 11 Del. C. § 9205(c) (“Evidence which possesses probative value commonly
31
While Mock alleges the Division’s evidentiary procedures violated
Section 9200(c), he does not allege which subsection. As best I can tell, these
grievances map on to Sections 9200(c)(4), requiring an officer to “be informed in
writing of the nature of the investigation prior to being questioned,” and 9200(c)(10),
requiring that an officer charged with a violation be provided access to evidentiary
materials “if they are exculpatory, intended to support any disciplinary action or are
to be introduced in the departmental hearing on the charges involved.” I believe
these obligations are nondiscretionary and ministerial, such that mandamus is the
appropriate remedy for the Division’s alleged failure to perform them.121
As Mock concedes, his fifth grievance is ministerial and eligible for
mandamus.122 And so, Mock’s first five grievances have an adequate remedy at law
in mandamus; this Court lacks subject matter jurisdiction to adjudicate them.
accepted by reasonable and prudent persons in the conduct of their affairs shall be
admissible in evidence and given probative effect.”); see Defeo v. Williams, 1999 WL
1442003, at *2 (Del. Super. Nov. 5, 1999) (finding mandamus inapplicable to compel an
official to exercise their discretion in determining whether access was “reasonable and
appropriate”).
121
State ex rel. Abbott v. Calio, 860 A.2d 811, 2004 WL 2520906, at *1 (Del. 2004)
(TABLE) (quoting Guy v. Greenhouse, 637 A.2d 827 (Del. 1993)).
122
Am. Compl. ¶ 64(e); D.I. 47 at 15; D.I. 51 at 7.
32
B. Mock Failed To Plead That Discretionary Administrative
Decisions Are Actionable In Equity.
Mock’s remaining allegations do not neatly map on to LEOBOR, let alone
ministerial duties mandated by LEOBOR. He asserts “the Trial Board’s decision
failed to make legally sufficient, evidentiary-based, findings of facts and conclusions
of law upon the substantiated charges, and neglected to address the unsubstantiated
charges at all;” and the Division “allowed Plaintiff’s administrative appeal to
proceed with the improper dual representation of allowing the Deputy Attorney
General who advised the Trial Board and drafted their decision, to appear as counsel
in opposition to Plaintiff’s appeal of that same decision.”123 These final two
grievances take issue with more discretionary administrative decisions, from which
Mock has no statutory right of appeal. For these issues, I conclude the administrative
procedure Mock has already received is itself adequate because Mock has failed to
plead the deficiencies were unconstitutional, arbitrary, or capricious.
While the parties briefed the availability of a writ of certiorari for these
violations, I conclude it does not offer an adequate remedy at law here because Mock
has not pled the Trial Board, Superintendent, or Secretary “(a) exceeded its
jurisdiction, (b) committed errors of law, or (c) proceeded irregularly.”124 And
123
Am. Compl. ¶¶ 64(f)–(g).
124
395 Assocs., 2006 WL 2021623, at *3 (citations omitted).
33
neither LEOBOR nor the APA provide for a statutory right of judicial review of law
enforcement officers’ disciplinary proceedings.125 Mock contends that this dearth of
options for additional review means he has no adequate remedy at law and the Court
of Chancery must exercise subject matter jurisdiction over what amounts to an
appeal.
The inquiry is more nuanced than Mock suggests. While it is true that
“[e]quity will not suffer a wrong without a remedy,”126 the fact that the General
Assembly chose not to afford Mock a statutory right of appeal does not mean Mock
is lacking an adequate remedy at law, such that he can prevail upon this Court.127
An administrative process may itself have afforded an adequate remedy as long as
its machinations or ultimate decision was not unconstitutional, an abuse of
discretion, or arbitrary and capricious.128 Ultimately, “whatever jurisdiction the
court has to review an administrative action where no statutory or constitutional
basis to do so exists remains largely discretionary in nature. Unless the petitioner
can show substantial entitlement to relief from arbitrary, or capricious, or unlawful
125
Haden, 2014 WL 2964081, at *2 .
126
In re Del. Pub. Sch. Litig., 239 A.3d 451, 511 (Del. Ch. 2020) (citation omitted).
127
Fam. Ct., 320 A.2d 777 (holding availability of full, fair and complete legal remedy,
such as a writ, when there is no right of appeal, will deprive the Court of Chancery of
jurisdiction).
128
See Choma, 300 A.2d at 41 (citations omitted).
34
actions, the court will not exercise that discretion.”129 Mock has failed to show such
entitlement.
1. Mock’s Claims Do Not Trigger Equitable Review of
Due Process Claims.
Mock argues that he asserts due process claims that find no home in courts at
law, and so this Court must exercise jurisdiction over his claims like it did over the
due process claims in Holland v. Zarif.130 Mock’s due process claims are cabined to
the statutory due process under LEOBOR: he does not explicitly assert any
constitutional violations, and in fact removed them when he filed his Amended
Complaint.131 Mock’s invocations of due process do not resemble the extraordinary
claim in Holland that moved this Court to afford subject matter jurisdiction.
129
Am. Fed’n of State, Cty., & Mun. Emps., AFL-CIO, Council 81, Loc. 439 v. Univ. of
Del. (AFSCME), 2009 WL 2005366, at *3 (Del. Ch. July 1, 2009); accord O’Neill v. Town
of Middletown, 2006 WL 205071, at *14 (Del. Ch. Jan. 18, 2006) (“Therefore, where
challenged agency conduct . . . falls within the ‘gap’ of the state APA—no judicial review
is available (unless otherwise provided by statute, constitutional mandate, or taxpayer
standing).”).
130
D.I. 47 at 31–32 (discussing Holland v. Zarif, 794 A.2d 1254 (Del. Ch. 2002)).
131
See, e.g., Am. Compl. ¶ 51 (“[The Secretary] did not address, except to disregard, any
of Cpl. Mock’s many legal and due process arguments on appeal (e.g.[,] LEOBOR
violations, lack of findings, evidentiary errors, etc.) but instead set forth his own feelings
and conclusions that termination was appropriate.”); id. ¶¶ 16–18 (describing the rights
afforded Mock in LEOBOR Section 9200(c), “including disclosure of the nature of the
investigation, the right to consult with and be represented by legal counsel, . . . and the
creation of a verbatim record of the questioning” and how Mock was questioned by a
superior officer without receiving these protections); id. ¶ 26 (“It is undisputed that Cpl.
Mock had not been afforded any of the rights set forth at 11 Del.C. §9200(c) on
October 21–22, 2017, at the time the Martin report was approved or on October 31, 2017,
when the Earle PIP review was signed and submitted.”); id. ¶ 42 (alleging the Trial Board’s
35
In Holland, the plaintiff attempted to file a gender discrimination charge under
Delaware’s Discrimination in Employment and Handicapped Persons Employment
Protections Act (the “Act”) after she was fired by her employer allegedly “in order
to appease [the employer’s] jealous wife.”132 After the Delaware Department of
Labor refused to allow the plaintiff to file a charge, allegedly without giving her a
written explanation of the Department’s refusal as required by statute, the plaintiff
filed a complaint in the Court of Chancery.133 One of the defendants moved to
dismiss for lack of subject matter jurisdiction, asserting the case belonged in
“‘Findings of Fact’ consisted of a 3-page hodgepodge list of ‘facts’ (of varying accuracy
to the record) but contained no actual commentary or analysis by the Board about them (no
‘findings’). No findings or analysis appears as to how the trial board believed the evidence
met the criteria of the various Rules and Regulations alleged for each of the 10 counts
charged by [Internal Affairs]” in violation of LEOBOR Section 9207); id. ¶ 43 (“The trial
board’s ‘Conclusions of Law’ section also contains no conclusions of law whatsoever.
This part of the decision consisted of a bare statement that certain Rules and Regulations
were violated, and then simply recited the verbiage of each Rule and Regulation.”
(emphasis omitted)); id. ¶ 44 (“[F]or unknown reasons, the Board completely omitted any
reference to fact that the 3 counts (including one of the counts of falsification) had been
unsubstantiated, per the verbal ruling at the conclusion of the 3-day hearing.”); id. ¶ 45
(“The Superintendent failed to make any findings of his own, and failed to distinguish
comparator Troopers—evidence of which was presented in the record—who had engaged
in more culpable conduct in the past, and had been permitted to retain their employment.”);
see supra note 40; cf. Vick v. Ellingsworth, 504 A.2d 573, 1985 WL 14158, at *2 (Del.
1985) (TABLE) (“Vick has not alleged any specific violation of his due process rights, and
therefore has not met the burden of establishing beyond mere conjecture that his due
process rights have been violated.” (citing U.S. v. Valenzuela-Bernal, 458 U.S. 858(1982))).
132
Holland, 794 A.2d at 1256.
133
Id.36
Superior Court.134 The APA did not provide for judicial review for any of the
Department of Labor’s decisions, and the Court found that the General Assembly
did not provide a mechanism for judicial review of Department-level decisions on
the viability of discrimination charges.135
Then-Vice Chancellor Strine focused on the “serious Due Process Clause
implications that would arise were he to find that the Department has the
unreviewable discretion to refuse to accept a discrimination charge or to dismiss a
charge.”136 Looking to federal courts’ interpretation of other states’ anti-
discrimination statutes, this Court recognized that discrimination complainants have
a property interest in their causes of action of which they cannot be deprived without
due process.137 The Court explained that
134
Id. at 1256–57.
135
Id. at 1258, 1264.
136
Id. at 1265.
137
Id. at 1265–66 (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 429–31 (1982),
and Bennett v. Tucker, 827 F.2d 63, 70 (7th Cir. 1987)).
37
[a] refusal by the Department of a charge deprives a claimant of her
cause of action with finality. A decision by the Department of that kind
is an important one, which affects property rights of a substantial
nature. It seems to me to be doubtful that the Due Process Clause
permits such an important right to be taken from a claimant by line
employees of a Department, who act without a hearing, without
necessarily obtaining formal legal advice, without producing a written
decision, and without being subject to judicial review.138
While “the General Assembly’s failure to address the method for obtaining judicial
review of Departmental Refusal or Dismissal [D]ecisions can be read as evidencing
its view that such decisions should be beyond the purview of the courts,” the Court
concluded that “the best reading of the Act” was that it “d[id] not preclude judicial
review of” the discretionary decisions to “refuse to allow the filing of a
discrimination charge” or “accept a charge and dismiss it by written decision.”139 To
read the Act as precluding judicial review of a due process claim in the deprivation
of a property interest would be to threaten the Act’s viability as unconstitutional.140
The Holland Court determined that a writ of mandamus would not offer an
adequate remedy at law to the plaintiff’s claims because the Department of Labor
does not have a ministerial duty to approve complainants’ discrimination charges;
its decision is quintessentially discretionary.141 Consequently, in the absence of an
138
Id. at 1266–67.
139
Id. at 1256–57, 1267, 1269.
140
Id. at 1267.
141
Id. at 1269.
38
adequate remedy at law, and the “serious constitutional issue[s]” the complaint
raised regarding the Department’s depriving discrimination complainants of their
property interests without due process, the Court determined equitable review was
appropriate to examine whether the “agency’s decision was an abuse of discretion,
in light of all the factual and legal circumstances relevant to the decision.”142
This case is distinguishable from Holland. Delaware courts recognize
142
Id. at 1267, 1270. This sentiment is consistent with Chancellor Allen’s view in Burge
v. City of Dover. 1987 WL 12311, at *9 (“A court, in my opinion, is more justified in
granting affirmative relief on the thin record of a preliminary injunction when the wrong
alleged involves infringement of important substantive rights. Thus, a dismissal from
governmental employment that resulted from the exercise of protected speech, or the
exercise of political rights such as the right to vote, or that results from racial
discrimination, would more readily be remedied at the preliminary injunction phase than
would the procedural right to be heard before otherwise permissible action is taken. To so
observe is not to demean the importance of procedural protections, but simply to recognize
that certain rights are even more fundamental in our scheme of government. Were plaintiff
separated from his pay check because he spoke out against a popular position or because
of his race or political affiliation, a close calculation of irreparable injury would probably
be unnecessary.” (citing Elrod v. Burns, 427 U.S. 348 (1976))); O’Neill, 2006 WL 205071,
at *14 n.124 (“The Court in Couch also noted that a right to review could occur if the
decision of the agency was ‘motivated by an impermissible consideration; or was otherwise
a violation of plaintiffs’ rights to due process of law.’ This is in accord with the Court’s
analysis here, providing for a right to review where constitutional claims are set forth (and
standing is satisfied).” (internal citations omitted) (quoting Couch v. Delmarva Power &
Light Co., 593 A.2d 554, 561 (Del. Ch. 1991))).
39
the requirements of the procedural process due in employment
termination cases as follows: (1) clear notice of the charge being
considered; (2) a reasonable time interval to marshal facts and evidence
to respond; (3) an explanation of the evidence supporting the charges;
and (4) an opportunity to present plaintiff’s side of the case in a manner
which will allow a decision maker to weigh both sides.143
Mock received this base-level due process. The plaintiff in Holland did not. And
Mock’s vocation subjected the termination of his employment to LEOBOR, which
affords far more due process than the average American resident is entitled to receive
for the loss of a job.144 The Division terminated Mock after: (i) an investigation
purportedly under LEOBOR; (ii) proceedings before and a recommendation by the
Trial Board, purportedly under LEOBOR; (iii) a decision by the Superintendent; and
(iv) an appeal before and (v) a decision by the Secretary.145 He had an adversarial
143
Smith, 1999 WL 1225250, at *8 (citing Barber v. City of Lewes, 1997 WL 127951, at
*13 (Del. Super. Jan. 31, 1997)); accord Sapienza v. Del. State Univ. Police Dep’t, 2020
WL 4299137, at *2 (Del. Super. July 24, 2020).
144
Knox, 1995 WL 339096, at *3 (“The Court rejects Defendants’ contention that the Law-
Enforcement Officers’ Bill of Rights only guarantees police officers the same rights and
privileges as those of private citizens. Eleven Del. C. Chapter 92 provides law-
enforcement officers with enhanced procedural due process safeguards. In a typical
termination of employment situation, an employee is entitled to notice and an opportunity
to be heard.” (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985), and
Burge, 1987 WL 12311)).
145
Am. Compl. ¶¶ 5, 2, 28, 31–38; Ans. ¶¶ 2, 5, 28, 31–32, 34–38. Under 29 Del.
C. § 8203(6), only the Secretary is permitted to terminate “employees of the Department”
of Safety and Homeland Security, and they cannot delegate that power. While the General
Assembly does not include a definition of “employees” in Chapter 82 of Title 29, some
courts have found “employees” to include police officers in the Delaware State Police.
Stevens v. Steiner, 1987 WL 9599, at *1–2 (Del. Super. Apr. 13, 1987); Taylor v. Div. of
State Police, 2004 WL 1368847, at *3 (D. Del. June 15, 2004), aff’d, 122 F. App’x 598
40
hearing in front of the Trial Board, whose impartiality Mock has not challenged,
resulting in a written decision.146 Mock also received a second adversarial hearing
in front of the Secretary, whose impartiality Mock has not challenged, resulting in a
second written decision.147 As best I can tell, LEOBOR’s constitutionality will not
be threatened if Mock’s alleged violations are not heard by this Court; Mock
certainly does not argue that it will be. I conclude that to the extent Mock has
asserted a due process claim, it does not raise the concerns that led this Court to
exercise its equitable jurisdiction in Holland.
2. Mock Has Not Pled The Trial Board Or
Superintendent Were Arbitrary, Capricious, Or
Unlawful.
Mock’s sixth grievance takes aim at the Trial Board and Superintendent.
Again, he lacks a statutory basis for such claims against actors in his administrative
process, and the claims are not constitutional in nature. So, to support this Court’s
discretionary subject matter jurisdiction to review administrative claims, he must
show substantial entitlement to relief from arbitrary, capricious, or unlawful
(3d Cir. 2005). Plaintiff does not accuse the Trial Board or Superintendent of exceeding
their jurisdiction, so I will not address the issue further.
146
Compl. at Ex. B.
147
Compl. at Ex. E.
41
actions.148 Mock does not allege that the Division’s actions were arbitrary,
capricious, or unlawful. Nor has he pled that the recommendations or decisions by
the Trial Board or Superintendent were arbitrary and capricious, an abuse of
discretion, or unconstitutional. Mock’s briefing attempts to make these arguments,
but “[a]rguments in briefs do not serve to amend the pleadings.”149
And even if Mock had invoked the standard to secure this Court’s
jurisdictional review of a statutory administrative decision, the facts pled would not
meet that standard. Mock’s sixth grievance alleges “the Trial Board’s decision failed
to make legally sufficient, evidentiary-based, findings of facts and conclusions of
law upon the substantiated charges, and neglected to address the unsubstantiated
charges at all[.]”150 “This Court may find an action arbitrary if it was ‘unconsidered’
or ‘taken without consideration of and in disregard of the facts and circumstances of
148
Holland, 794 A.2d at 1267 (finding equitable review appropriate in the absence of any
other right to judicial review when “the unavailability of such review would raise a serious
constitutional question”); AFSCME, 2009 WL 2005366, at *3 (“[T]here is little to suggest
that the decision at issue was in any regard arbitrary or capricious, or the result of an abuse
of discretion. Thus, the circumstances in Holland v. Zarif justifying the use of this court’s
equitable power to review an agency’s action are completely lacking in this case.”).
149
In re MeadWestvaco S’holder Litig., 168 A.3d 675, 688 n.68 (Del. Ch. 2017) (citation
and internal quotations omitted).
150
Am. Compl. ¶ 64(f); see also id. ¶¶ 36, 41–45, 60.
42
the case.’”151 The present record reflects that the Trial Board did base its
recommendation on evidence presented at its hearing.152
In addition, the Trial Board is “a statutory fact-finding body and is not
authorized to resolve questions of law.”153 Mock does not have substantial
entitlement to “legally sufficient . . . conclusions of law” because the Trial Board
does not have the authority to make them in the first place. Finally, Mock points to
no authority indicating that the Trial Board had to address charges it found to be
unsubstantiated in its written recommendation after notifying Mock verbally at the
hearing of its findings in that regard.154 Both the Trial Board and the Superintendent
label the charges they address as “substantiated,” implicitly acknowledging that the
omitted charges were not substantiated.155 Mock simply seeks more process; he fails
151
Save Our Cty., Inc. v. New Castle Cty., 2013 WL 2664187, at *9 (Del. Ch.
June 11, 2013) (quoting Willdel Realty, Inc. v. New Castle Cty., 270 A.2d 174, 178 (Del.
Ch. 1970), aff’d, 281 A.2d 614 (Del. 1971)), aff’d sub nom. Barley Mill, LLC v. Save Our
Cty., Inc., 89 A.3d 51 (Del. 2014).
152
Compl. at Ex. B; Citizens’ Coal., Inc. v. Sussex Cty. Council, 2004 WL 1043726, at *2
(Del. Ch. Apr. 30, 2004) (“The record demonstrates that SCC’s decision to rezone
complied with Delaware Zoning Statutes and the Comprehensive Plan and was reasonably
based on findings of fact and conditions that were supported by evidence presented at a
proper hearing. Thus, it was not arbitrary and capricious.”), aff’d sub nom. Citizens’ Coal.,
Inc. v. Cty. Council of Sussex Cty., 860 A.2d 809 (Del. 2004).
153
Brittingham I, 2011 WL 2650691, at *4 (citing 11 Del. C. § 9207).
154
Am. Compl. ¶ 44.
155
Compl. at Ex. A; Compl. at Ex. B.
43
to plead that what he received was arbitrary, capricious, or unconstitutional.156 Mock
has failed to secure this Court’s subject matter jurisdiction over his administrative
claims against the Trial Board and the Superintendent.
3. Mock Has Not Pled The Secretary’s Decision Was
Arbitrary, Capricious, Or Unlawful.
Mock’s seventh and final grievance alleges the Division “allowed Plaintiff’s
administrative appeal to proceed with the improper dual representation of allowing
156
Holland, 794 A.2d at 1267; AFSCME, 2009 WL 2005366, at *3.
Mock also makes a conclusory claim, not incorporated into his counts, that the
Superintendent “failed to make any findings of his own, and failed to distinguish
comparator Troopers—evidence of which was presented in the record—who had engaged
in more culpable conduct in the past, and had been permitted to retain their employment.”
Am. Compl. ¶¶ 45, 64(f). But Mock does not allege how his case differed from those
“comparator Troopers.” Cf. Bramble, 1980 WL 6366, at *1 (“The complaint charges that
the action of the Board in denying the service connected disability pension was arbitrary
and capricious. The basis for these charges is twofold. First, it is alleged that the evidence
offered by the plaintiff was basically uncontradicted. Second, the complaint refers to two
other former State Police members who, in the past, were awarded the 75 per cent pension
as a result of being compelled to retire for medical reasons which were almost identical to
that which forced the plaintiff’s retirement.”). Nor does he cite any authority indicating
the Superintendent should make his own findings of fact. Indeed, as Mock explains the
appellate process: “Following the issuance of the trial board decision, the DSP
Superintendent is to review [the Trial Board’s] decision, taking into consideration other
specified factors, and then issue his own decision (‘Superintendent’s Decision’) as to what
penalties he recommends be imposed in a given case.” Am. Compl. ¶ 37. Mock is asking
for more process than he has acknowledged is available, and has failed to plead a
cognizable claim against the Superintendent. Indeed, the Superintendent is not a party to
this action. This may be because the Superintendent enjoys sovereign immunity. Janowski
v. Div. of State Police Dep’t of Safety & Homeland Sec., 2009 WL 537051, at *3 (Del.
Super. Feb. 27, 2009) (“Considering the enabling statutes of the Department of Homeland
Security and the Delaware State Police, the General Assembly does not give any
appearance of an intent to waive sovereign immunity. There are no provisions in those
enabling statutes creating a right to sue and be sued relative to the Delaware State Police.”
(citations omitted)), aff’d, 981 A.2d 1166 (Del. 2009).
44
the Deputy Attorney General who advised the Trial Board and drafted their decision,
to appear as counsel in opposition to Plaintiff’s appeal of that same decision.”157
This decision was made by the Secretary. The defendant here, the Division, was a
litigant in Mock’s appeal before the Secretary. The Secretary, as the adjudicator,
was the one who “allowed Plaintiff’s administrative appeal to proceed.”158 Mock’s
counsel sent a letter dated August 17, 2018 to the Secretary objecting to the
Division’s choice of counsel.159 The Secretary replied by letter dated September 28:
“Ms. Ballard’s objection is noted for the record. The hearing will move forward as
scheduled.”160
The Secretary is not a party to this action, so it is unclear how this claim can
proceed. From a jurisdictional standpoint, like his claims about the Trial Board and
Superintendent, Mock did not claim that the Secretary’s decision was arbitrary and
capricious, an abuse of discretion, or unconstitutional.161 Mock asserted the
Division’s choice of counsel was improper, but impropriety is not necessarily
157
Am. Compl. ¶ 64(g).
158
Id.159
Compl. Ex. C.
160
Compl. Ex. D.
161
Holland, 794 A.2d at 1267 (finding equitable review appropriate in the absence of any
other right to judicial review when “the unavailability of such review would raise a serious
constitutional question”); AFSCME, 2009 WL 2005366, at *3 (distinguishing Holland
where “there [wa]s little to suggest that the decision at issue was in any regard arbitrary or
capricious, or the result of an abuse of discretion”).
45
unconstitutional, arbitrary, or capricious. Mock’s grievance about the Division’s
counsel fails to secure this Court’s subject matter jurisdiction.
C. Mock’s Declaratory Judgment Count Does Not Anchor Equitable
Jurisdiction.
Having concluded that the alleged failings in the procedural protections Mock
has already received are either remediable by mandamus, or insufficiently
unconstitutional, arbitrary, or capricious to secure this Court’s subject matter
jurisdiction, I turn to Mock’s remaining cause of action. His first count is for
“Declaratory judgment—Violation of 11 Del. C. Ch. 92 [LEOBOR].”162 The
Declaratory Judgment Act “does not increase or alter the jurisdiction of any court,
nor does it alter the jurisdictional relationship between the Superior Court and the
Court of Chancery.”163 Accordingly, the Court “must ascertain whether there is an
independent basis for jurisdiction.”164 Mock expands upon this count in his prayer
for relief, which asks this Court to
162
Am. Compl. ¶¶ 52–62.
163
Democratic Party of State v. Dep’t of Elections for New Castle Cty., 1994 WL 555405,
at *3 (Del. Super. Sept. 6, 1994) (citing Spencer v. Smyrna Bd. of Educ., 547 A.2d 614,
615 (Del. Super. 1988); Heathergreen Commons Condo. Ass’n. v. Paul, 503 A.2d 636, 642
(Del. Ch. 1985)), aff’d, 650 A.2d 1305 (Del. 1994).
164
Smith, 1999 WL 1225250, at *10 (citing Democratic Party, 1994 WL 555405, at *3).
46
[i]ssue a declaratory judgment that Defendant’s termination of
Plaintiff’s employment as a Delaware State Trooper was and is
unenforceable, as it was obtained in derogation of Plaintiff’s statutory
and due process rights, and other rights secured by Delaware law, as
described herein, and that, as a result of such violations, Defendant
should be estopped from further proceedings against him in this
matter[.]165
This request seeks a declaration that the Division’s termination decision was
improper and is unenforceable because it was based on violations of Mock’s rights
under LEOBOR. This relief, if available at all, is available at law.166 The mention
of estoppel does not change this simple characterization. The Prayer for Relief is
the first and only time Mock mentions estoppel in the Amended Complaint, and
Mock does not specify whether he is seeking declaratory relief based on a theory of
promissory estoppel or equitable estoppel.167 As explained, this Court does not have
165
Am. Compl. at 23.
166
Clark v. Teeven Hldg. Co., 625 A.2d 869, 879 (Del. Ch. 1992) (“The power to grant
declaratory relief has been granted to both this Court and the Superior Court.” (citing
10 Del. C. § 6501)); see Mason, 468 A.2d at 299–300 (concluding a declaratory judgment
action is not available to resolve a controversy where a board has acted definitively under
a statutory regime that offers no right of appeal).
167
Even so, Delaware courts typically do not apply the doctrines of promissory or equitable
estoppel against the government. See, e.g., Port Penn Hunting Lodge Ass’n v. Meyer, 2019
WL 2077600, at *9 (Del. Ch. May 9, 2019) (“The Delaware Supreme Court has foreclosed
promissory estoppel claims against government entities except in limited circumstances,
such as employment.” (citing Harmon v. State, 62 A.3d 1198, 1201 (Del. 2013))), aff’d,
222 A.3d 1044 (Del. 2019); Salem Church (Del.) Assocs. v. New Castle Cty., 2006 WL
4782453, at *12 (Del. Ch. Oct. 6, 2006) (“Application of the doctrine of equitable estoppel
to governmental actions is rare. Generally, courts will not depart from their traditional
cautiousness in applying the doctrine unless there are exceptional circumstances which
make it highly inequitable or oppressive to enforce the regulations.” (footnotes and internal
47
the jurisdiction to grant Mock the injunctions he seeks and therefore, does not have
the “independent basis for jurisdiction over the cause of action” it needs to issue
declaratory relief.168 Mock’s first cause of action does not seek equitable relief in
the absence of an adequate legal remedy.
***
Mock’s claims may be remedied in the Superior Court by the declaratory
judgment he seeks here and a writ of mandamus. This duality may, at first blush,
appear to threaten mandamus’s adequacy as a remedy: “[m]andamus is not the
appropriate remedy unless it will settle the entire controversy.”169 But the Superior
Court has held that a plaintiff may seek a declaratory judgment and a writ of
mandamus in the same case, and that granting both remedies does not disqualify the
adequacy of the other.170
quotation marks omitted) (quoting Miller v. Bd. of Adjustment of Dewey Beach, 521 A.2d
642, 646 (Del. Super. 1986))).
168
Smith, 1999 WL 1225250, at *10 (citing Democratic Party, 1994 WL 555405, at *3).
169
Nathan, 317 A.2d at 114 (citing 52 AM. JUR. 2D Mandamus § 37 (1970), and Lakeland
Joint Sch. Dist. Auth. v. Sch. Dist. of Twp. of Scott, 200 A.2d 748 (Pa. 1964)).
170
Moore v. Stango, 1992 WL 114062, at *1 (Del. Super. May 8, 1992) (“As to the question
of declaratory judgment, the issue is whether Moore may seek a declaratory judgment and
writ of mandamus within the same proceeding. My answer is in the affirmative. The issue
of whether Adams is a qualified candidate is a matter subject to declaratory judgment.
However, if he is determined to be unqualified, that determination in and of itself does not
provide adequate relief. Only a writ of mandamus will provide adequate relief.”).
48
III. CONCLUSION
Mock’s grievances under LEOBOR and about the process by which he was
terminated have adequate remedies at law in the administrative process he has
already received, and in mandamus. The Superior Court can also grant the
declaratory judgment he seeks. This Court therefore lacks subject matter
jurisdiction. This matter is dismissed for lack of subject matter jurisdiction unless
Mock applies for a transfer to the Superior Court under 10 Del. C. § 1902.
49