By Joe Rogalsky,
Delaware State News
DOVER - Gov. Ruth Ann Minner has signed a bill into law overturning a state Supreme Court ruling that could have freed more than 200 inmates.
The matter is not closed, however, because the governor also asked for the high court's opinion on the new law's constitutionality.
The measure, House Bill 31, renders the court's decision in Evans vs. State "null and void."
The state Supreme Court ruled, in the case of convicted rapist Ward Evans, that some life sentences handed down for crimes committed before June 30, 1990, should be considered 45-year terms instead of lasting the "natural" life of the offender.
The high court's decision, handed down in November, tells Kent County Superior Court to reconsider Evans' request to be released based on a life sentence lasting 45 years, minus any credit an inmate receives for good behavior.
Attorney General M. Jane Brady publicized the court's decision last week and said it created a precedent that could lead to the release of more than 200 murderers, kidnappers, rapists and other violent offenders.
The legislature passed House Bill 31 to undo the court's ruling and keep the inmates in prisons, but legal experts have questioned the constitutionality of the bill.
Gov. Minner, in a letter to lawmakers sent Wednesday, said she supports the legislature's contention that it should make the final decision on what it intended a life sentence to be.
Gov. Minner agreed that the legislature did not intend for good-time credits to be applied to life sentences, but admitted she has constitutional concerns.
"I (signed the bill) because I share the General Assembly's view that the decision in Evans v. State is incorrect and inconsistent with legislative intent with respect to the issues of good time and conditional release," Gov. Minner wrote, "and because I want to assure the safety of the public is protected to the greatest extent possible.
"Nevertheless, I am very concerned about the potentially unconstitutional provisions of the legislation."
Supreme Court administrator Stephen B. Taylor said no timetable had been set as of Wednesday afternoon for the court to issue an opinion on the bill. Under court rules, the opinion will be confidential for five days unless the governor's office chooses to release it earlier, Mr. Taylor said.
Gov. Minner's request for an opinion also would have been confidential for five days, Mr. Taylor said, but the governor chose to release her request when she made it Wednesday.
In her letter requesting the court's opinion, Gov. Minner cites "numerous concerns" and asks justices to evaluate the bill "in the most authoritative and expeditious manner possible."
"While I support the clear statement of legislative intent expressed in House Bill 31, I am very concerned about the contentions that the bill has several constitutional infirmities," Gov. Minner wrote.
"Like many who have commented on the bill, I question the constitutionality and enforceability of several provisions of the bill. Under our constitution, however, I am not free to approve those portions of legislation that I favor and disapprove others."
Joseph C. Schoell, the governor's legal counsel, said Gov. Minner signed the bill at 4:47 p.m. on Tuesday.
The governor's office did not announce the signing until Wednesday.
A request to the Supreme Court for an opinion and a letter to General Assembly members informing them of the signing and opinion request could not be sent until Wednesday morning, Mr. Schoell said.
Mr. Schoell said he would not discuss what advice he gave Gov. Minner regarding the bill's constitutionality.
He said he had questions about the provision in the bill that declares the court's decision in Evans "null and void."
"That raises some questions," he said. "Everyone realizes that."
Both legislative chambers easily approved HB 31 last week without a dissenting vote.
"I applaud the governor for signing the bill," said House Majority Leader Rep. Wayne A. Smith, R-Wilmington, the lead sponsor of HB 31.
"She did the right thing. She obviously remembered her legislative roots."
Rep. Smith said he did not object to Gov. Minner's seeking an advisory opinion because attorneys have told him the opinion is non-binding, meaning no prisoners would be released based on it.
If a lawsuit were filed to challenge the law's constitutionality, which could lead to prisoners going free, Rep. Smith said the attorney general would defend the case and the General Assembly could file a friend of the court brief.
"We are on new ice here," Rep. Smith said.
The Delaware Bar Association sent Gov. Minner a letter dated Jan. 31 asking her to veto HB 31.
Mr. Schoell said the bar association's letter and a supporting memo did not arrive in the governor's office before Gov. Minner acted on HB 31.
The letter, signed by association vice president Geoffrey Gamble, gave three reasons the governor should block HB 31 from taking effect:
l the bill does not follow the constitutional doctrine of separation of powers;
l it would violate the constitution by imposing a penalty on an act committed before the law was passed;
l a court will likely strike the bill down as unconstitutional.
"This fact, and the fact that the legislation purports to nullify a judicial decision, will be embarrassing for the state," the bar association's letter said.
Stephen E. Henderson, a professor of criminal law and criminal procedures at Widener University School of Law, said the governor's decision to sign the bill "befuddled" him.
"It seems to me that the voice of reason from people with learning in the law is clear - the law is unconstitutional," he said.
Evans has several options on how to proceed to push for his release, Mr. Henderson said.
The "most direct" route, Mr. Henderson said, would be for Evans to ask the U.S. District Court in Wilmington for an order that the state determine a release date for him based on the state Supreme Court's decision.
Another possibility, Mr. Henderson said, would be for Evans to ask the Delaware Supreme Court to tell the Department of Correction to follow the high court's ruling or be held in contempt of court.
"It will be resolved, but it is confusing," Mr. Henderson said.
"I don't think it is immediately clear how it will be resolved be cause what's happening is unprecedented."
Meanwhile Wednesday, Mr. Taylor said the state Supreme Court had not issued a mandate in the Evans decision and that the matter was still in the jurisdiction of the high court.
A mandate is necessary for a lower court to act on instructions given in a Supreme Court ruling.
In this case, Kent County Superior Court would have to receive a mandate from the Supreme Court in order to instruct the Department of Correction to discard Evans' "natural'' life sentence and begin calculating his conditional prison release date at 45 years, less good time credits.
Janice Fitzsimons, a spokeswoman for the Department of Justice, said Ms. Brady had no comment on Gov. Minner's decision to sign the bill or ask for an advisory opinion.
Senior writer Tom Eldred contributed to this article.
Staff writer Joe Rogalsky can be reached at 741-8226 or jrogalsky@newszap.com.
Reprinted with permission from newszap.com
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