THE SUPREME COURT OF DELAWARE
The Separate Supreme Court
By Henry R. Horsey and William Duffy
Speaking of efforts to modernize the New Jersey court system, Chief Justice Vanderbilt once said that "judicial reform is not for the short-winded." Fortunately, Delaware leaders interested in reform proved to be both patient and strong-winded. Foremost among them was Robert H. Richards.
The ultimately successful effort to create a separate Supreme Court spanned two decades and the terms of three chief justices. (Indeed, the suggestion for a separate Supreme Court first occurred during the Constitutional Convention of 1791.) In 1931 the first bill to amend the constitution to create a separate court passed both houses of the General Assembly by substantial majorities. The second leg, introduced in 1933, was passed by the Senate but ended in the House with a tie vote: seventeen to seventeen. Then, in 1935 the process began anew but died when the bill was referred to a Senate committee.
The roller coaster started again in 1937. The first leg passed both houses unanimously, but the 1939 action of the Assembly seems like the second act in a conspiracy play: neither house let the bill out of committee. In 1941 the House did vote on a bill and defeated it thirteen to seventeen. The Senate was silent. In 1943 a bill was introduced in the House but went nowhere.
In 1945 the House got accustomed to the idea of a separate Supreme Court and passed the legislation without dissent, thirty-one to nothing. But the Senate could not muster the requisite two-thirds majority and the bill was lost.
In 1947 both Houses rested - undoubtedly wearied by sixteen years of trench warfare.
Finally, in 1949, to the amazement of the bill's supporters, a separate Supreme Court for Delaware was an idea whose time had come - at least for a first "leg." Each house passed the legislation without a negative vote.
The climax came in 1951 when Delaware became the last state in the union to create a separate Supreme Court. The Senate had some doubters with its thirteen to four vote, but the House had none: thirty-four to nothing.
The wonder may be not why it took so long to create the separate court but why the bills were finally passed. Clearly, Governor Elbert N. Carvel, the leaders of the bar, especially Robert H. Richards and (probably) the press were influential and persuasive in making the case in the public interest for a separate court. But even with such high-powered support, the fate of the second leg teetered on the brink. An anecdote told by Judge Pearson relates from whence came the final shove.
In 1950 Pearson, after returning to private practice, was elected president of the Delaware State Bar Association. He had been actively seeking support for the second leg as had the governor and other public leaders, but without success. Pearson was discouraged. In 1951, by chance, one day he sat at lunch with Frank du Pont, an influential Republican, who said to him,1 "What is all this talk about a separate Supreme Court? We don’t need any. We've gotten along without it for a long time. We have too many judges anyhow." Pearson responded by making the case as to why it was very important to Delaware - and to the country - that a separate court be created. Little did Pearson realize the impact his argument had on du Pont who did not seem to be impressed at the time.
Several years after the separate Supreme Court had become a reality, a prominent Republican politician recalled the conversation to Pearson. To Pearson's complete surprise, his friend recounted that on the day of or the day after the fateful luncheon, he had received a call from Frank du Pont who said, "Get those three men... that we know and they'd been voting against it [the Court reform bill]. And tell them I say that I'm convinced that we ought to have it now." As Pearson recalls, the three men (unnamed) shortly thereafter voted for the bill; the bill passed; and Delaware had its new court effective May 14,1951.
The responsibility for making appointments to the new court thus passed to Governor Carvel. The governor performed that duty with the great care and concern he has had for the courts throughout his public career. And, at the end, he gave the new court the strongest foundation possible by appointing lawyers of learning, experience and distinction who, without exception, enjoyed the personal and professional respect of the public, the judges and lawyers throughout the state.
Governor Carvel first secured from Democrats Daniel F. Wolcott of Wilmington and James M. Tunnell, Jr. of Georgetown their agreement to serve as associate justices on the court. For Wolcott the appointment would mean, in effect, a demotion because as chancellor he had been the highest judicial officer of the state. For that reason and perhaps others, Wolcott had originally expressed an interest in being chief justice, as had Tunnell, but each, according to Carvel, declared his unwillingness to serve if the other was chief justice.2 Governor Carvel resolved this dilemma by offering the chief justiceship to Clarence A. Southerland, a Republican, a former attorney general and the senior partner of one of the most prestigious law firms in the state. Governor Carvel has written about that:
- I called Mr. Southerland, invited him to luncheon in the Green Room of the Hotel du Pont, told him... I admired his qualifications, and stated that it would give me tremendous satisfaction to have him serve on the new Supreme Court as Chief Justice. I realized that if he accepted he would be making a large financial sacrifice, but his service on the Court together with Tunnell and Wolcott would give Delaware the finest Supreme Court in the country.
Mr. Southerland paused for a few minutes in deep thought, and then, in a carefully measured response, told me that he was flattered by the offer and would like....... to talk it over with Mrs. Southerland and his family. Several days later he called me and gave the good news. He would be happy to serve and he looked forward to the opportunities that lay ahead.
Forty years later, and with the test of time, the governor rightly regards his 1951 appointments of the new justices as "one of the proudest achievements of my administration." In 1984, in remarks honoring James M. Tunnell, Jr., Governor Carvel recounted the prevailing sentiment in 1951:
- At that time, it was generally considered that this was one of the finest Supreme Courts in the United States. We were very proud of the new Court, and we considered the State fortunate that these three men would be willing to serve in that capacity Thus, the new Supreme Court got off to a good start.3
It was, as Judge James L. Latchum, a senior judge of the United States District Court for the District of Delaware, recently and aptly put it, "the jewel in Carvel's crown" and, with the court in place, a new era began in Delaware in the administration of justice. Reform had been not only desirable - it was essential. If Delaware expected to provide prompt and equal justice to its growing population, it had to let go of what a lord chief justice of England had called the "antiquities of the English common law" in its procedures and to modernize its judicial system. That was done. But in the passing, honor must be given to the judges who had served the state and the cause of justice during the first half of this century As Professor Dolan has wisely written:4
- In spite of the odd arrangement of the old Delaware judicial structure the Supreme Court between the years of 1900 and 1950 was able to meet the jurisprudential needs of the state with a dispatch that few would have conceded possible without knowing the facts. Even though there was strong opposition to the continuance of the old Court, one cannot help feeling that something unique was taken from the state when the old court died. The former Supreme Court of Delaware was like an old oak. The more one looks at the leaves of the current year's growth he sees again the seedling nourished in the soil of the past.... Law resides in the minds of men and as long as men of outstanding ability sit on a court of last resort, it matters little what might be the formal organization in which the ultimate appellate function is performed.
Chief Justice Clarence A. Southerland 1951-1963
Chief Justice Southerland will be remembered as Delaware's first chief
justice whose national reputation as a lawyer preceded his judicial service.
Clarence A. Southerland was born in Baltimore,
Maryland in 1889 but was raised in Wilmington. He received a law degree
from Georgetown University in 1913 and was admitted to the Delaware bar
the next year. After practicing law for three years, he entered military
service in World War I and served with the American Expeditionary Forces
With the end of the war, Southerland returned to
Wilmington to practice law. After service as a deputy attorney general
and as chief deputy, he was elected attorney general in 1925 for a four-year
On June 7, 1951 Southerland took the oath of office
as Delaware's chief justice. At the time of his appointment, he was the
senior partner in his law firm and one of two or three acknowledged leaders
of the corporate bar.
Under Chief Justice Southerland the new court promptly
and surely began the process of defining a body of organic law, including
corporate law, affecting almost all activity in the state.
The first reported opinion of the separate court,
Mastellone v.. Argo Oil Corp., Del. Supr., 82 A.2d 379 (1951), was authored
by Justice Tunnell. As Justice Joseph T. Walsh later noted in a 1987 tribute
to Tunnell following his death:
- [Mastellone] is still cited as a leading authority
in the area of statute of limitations. An interesting aspect of this
decision is that Justice Tunnell was the only member of the Supreme
Court to sit on that case. Due to the apparent disqualification of the
Chief Justice and Justice Wolcott, Justice Tunnell was joined by Judge
Terry and Judge Carey from the Superior Court. He can, therefore, properly
claim his place in the history of this Court as the author of its first
Justice Tunnell's opinions on this Court reflected
his style as an advocate. He wrote, as he spoke, with clarity and force,
but always with a certain elegance. He clearly loved his language as he
cherished the law to which he applied it. He had an innate sense of fairness,
but above all, he believed in the persuasive power of precedent. He was,
in the best sense of the term, a traditionalist. Thus, in the Mastellone
case in commenting upon whether the statute of limitations should run
against an ignorant person, he wrote, "Some principles of fairness appear
to commend this argument, but precedent saves us from a serious problem."
Justice Tunnell remained on the court for only
three years. The years were productive ones for the court, which issued
a number of significant corporate governance decisions, including Bennett
v. Propp, Del. Supr.,187 A. 2d 405 (1962), and two decisions in Gottlieb
v. Heyden Chemical Corp., Del. Supr., 90 A.2d 660 (1952), and Del. Supr.,
91 A.2d 57 (1952). In Gottlieb the court, in opinions written by Justice
Tunnell, ruled that when a majority of directors confer benefits upon
themselves, the burden is upon them to prove not only good faith but the
transactions' intrinsic fairness, absent shareholder ratification. These
concepts form the underlying principles of subsequent intrinsic fairness
cases, especially in the area of freeze-out mergers. See Weinberger v.
U.O.P., Inc., Del. Supr., 457 A.2d 701(1983); Rabkin v. Philip A. Hunt
Chemical Corp., Del. Supr., 498 A.2d 1099 (1985); and Rosenblatt v. Getty
Oil Co., Del. Supr., 493 A.2d 929 (1985). The concept of shareholder ratification
shifting the burden of proof was expressly reaffirmed by the court in
Michelson v. Duncan, Del. Supr., 407 A.2d 211(1979), and Smith v. Van
Gorkom. Del. Supr., 488A.2d 858 (1985).
In the same years, Chief Justice Southerland,
on behalf of the court in Sterling v. Mayflower Hotel Corp., Del. Supr.,
93A.2d 107(1952), established the principle of 'fairness" as the fundamental
basis for reviewing so-called freeze-out mergers and the treatment of
minority shareholders. In situations where the directors stand on both
sides of the transactions, the court ruled that the directors bear the
burden of establishing the entire fairness of the transaction to the minority
stockholders and a majority shareholder stands in a fiduciary relationship
to the minority.
Other leading decisions included Cottrell v. Pawcatuck
Co., Del. Supr., 128 A.2d 225 (1957). There, Chief Justice Southerland,
speaking for the court, defined the shareholder's burden of proof for
establishing that a sale of corporate assets was for a grossly inadequate
consideration. The court, following trial on the merits, found the evidence
to be insufficient to establish that the majority shareholder had a personal
interest in the sale sufficient to overcome the presumption of good faith
attaching to directorial decisions, and the court further held that the
sale had proceeded in an orderly manner, without due haste, for a price
that was not grossly inadequate and in the context of an arm's length
transaction. The court's early statement of the business judgment rule,
reaffirmed in the landmark decision of Aronson v. Lewis, Del. Supr., 473
A.2d 805 (1984), was the forerunner of later decisions, including Rosenblatt
v. Getty, Del. Supr., 493 A.2d 929 (1985).
In 1954 Justice Tunnell resigned to seek nomination
for the United States Senate, a seat that had been held by his father
in the mid-1940s. Tunnell was not successful in his quest for a political
career, but he became a noted advocate with Morris, Nichols, Arsht & Tunnell.
Tunnell also continued his long period of public service by serving as
president of the Delaware State Bar Association and, in particular, for
many years as chair of the Board of Trustees of the University of Delaware.
Justice Tunnell was succeeded by Howard W. Bramhall
of Georgetown, who was a vice-chancellor at the time of his appointment.
Justice Bramhall, a quiet man, served with distinction until, after a
long illness, he died in 1962.
Justice Bramhall was succeeded by Charles L. Terry,
Jr. Judge Terry had been serving on the Superior Court since 1938 and
had been appointed president judge of that court in 1957.
While Chief Justice Southerland is honored principally
for his adjudicative ability, he was also a leader in judicial reform.
In September of 1951, for example - soon after becoming chief justice
- Southerland urged the Delaware State Bar Association to regard the creation
of a separate Supreme Court as only the beginning of judicial reform in
Delaware. He outlined specific challenges, some of which have since become
law - but most have not (yet). Among the latter, he suggested reasonably
limiting the right to trial by jury in civil cases and permitting a trial
judge to charge on the facts (as could be done prior to 1897).
When the term of Chief Justice Southerland ended
in 1963, he returned to law practice with his former firm, Potter Anderson
& Corroon, where he remained until his death in 1973. Justice Terry was
appointed to succeed Southerland as chief justice, and Judge James B.
Carey of Georgetown, who had been appointed to the Superior Court in 1945,
was appointed a justice of the Supreme Court, filling the vacancy resulting
from Terry's appointment.
Justice Carey had a long and distinguished career
as a trial judge. Few could match his memory of precedent and none could
surpass his careful and calm disposition of arguments and cases, nor his
enormous reservoir of patience. Justice Carey retired in 1974 and died
The Southerland years created a firm foundation
on which the court has built through the years. The court began the process
of creating a distinct body of case law in carefully crafted opinions,
developed through a traditional appellate process and formulated by a
The strength of the Southerland court lay in consistent
adherence to principle and the prompt and quiet disposition of cases.
Clearly the court, in its public manifestations and writings, demonstrated
solidarity, consistency and orderliness. While there may be disagreement
about its philosophy or the direction that it was giving to state law,
there can be no doubt about its integrity or its scholarship.
Among chief justices in this century, Clarence
Southerland was surely a leading scholar. Indeed, Judge Seitz has called
him "one of the most brilliant men I've ever met." As his longtime friend
and partner, William S. Potter stated at the Memorial Proceedings for
Chief Justice Southerland:
- He was a scholar of rare cultivation. He read
with a discriminating mind in an extremely wide field, including works
in Latin, Greek and French as well as in his native tongue. For relaxation
he turned to the mental rather than the physical. Astronomy, chess,
mathematical problems and Sherlock Holmes constituted his recreation.
Southerland was clearly a great justice - in word
Chief Justice Charles L. Terry,
No member of the Delaware bar in the twentieth
century, and perhaps none in the state's history, has held as many high
offices in state government as Charles Laymen Terry; Jr. A Kent County
native born in 1900, Charles Terry attended the Conference Academy in
Dover, now known as Wesley College, with his brother, N. Maxson Terry,
where they were introduced to the classics by their teacher, Phyllis Ridgely,
daughter of attorney Henry Ridgely, Jr. and mother of Justice Henry R.
Terry continued his education at Swarthmore Preparatory
School and then attended the law school at Washington and Lee University.
A young man of imposing size and bearing, Terry achieved fame as a college
Admitted to the Delaware bar in 1924, Terry joined
the Dover law firm of Hughes, Wolcott, Terry & Terry. He became involved
in politics, and following the election of Richard C. McMullen as governor
in 1936, he was appointed secretary of state. Terry made friends easily
and liked politics, but in 1938 he succeeded W. Watson Harrington as resident
judge of the Superior Court in Kent County and an associate justice of
the then-Delaware Supreme Court.
Terry enjoyed trial and judicial work and remained
on the bench for twenty-five years. He quickly became one of the most
friendly and popular trial judges ever to sit on a Delaware court. Judge
Seitz, who knew him well, has said that "the greatest thing about Charlie
Terry was his lack of formality. I can see him now in his robe standing
outside the Superior Court room, hanging over the third floor balcony
[of the Public Building], yelling at people down on the first floor. I
mean, you had to know Delaware to appreciate that." While strong-willed,
Terry was charming as well as friendly and kind to a fault.
After Terry had served on the Superior Court for
nineteen years, in 1957 Governor J. Caleb Boggs elevated him from associate
judge to president judge following the retirement of President Judge Richards.
Five years later, in 1962, Terry was appointed to the Supreme Court to
fill the vacancy created by the death of Justice Bramhall. The following
year, with the expiration of the term of Chief Justice Southerland, Governor
Carvel appointed Justice Terry chief justice. The governor then appointed
James B. Carey, for eighteen years the resident judge of the Superior
Court in Sussex County, to fill the vacancy in the Supreme Court created
by the Terry appointment.
Terry would undoubtedly have had a substantially
longer term as chief justice, but the opportunity to become governor of
Delaware came within a year of his appointment to head the court. In 1964
he retired from the court to accept the draft of his party as its gubernatorial
nominee and was elected.
In his twenty-five years on the bench, Judge Terry,
or just plain "Charlie" as he preferred to be called, was, through his
knowledge of the legislative process and influence with the General Assembly,
instrumental in obtaining numerous judicial reforms. These included an
increase in judicial salaries and significant improvements in the judicial
pension system, establishment of full-time Courts of Common Pleas in Kent
and Sussex Counties, enduring support for the creation of the present
separate Supreme Court of Delaware, and extensive improvements and enlargements
of the judicial facilities in both the Public Building in Wilmington and
the Kent County Courthouse.
As Justice William Duffy would express it, Terry
was a "Judge... every inch of him. In demeanor and style he personified
command, conviction, power. When Charles Terry sat on the trial bench
there was no doubt about who was in charge."
While his term of service on the present Supreme
Court was short, Terry had been an associate justice of the old Supreme
Court for over thirteen years and had sat on many important cases. His
last published opinion written as chief justice is reported at State v.
Heitter, Del. Supr. 203 A.2d 69 (1964), some two hundred volumes of law
reports after his first published opinion as a trial judge in 1939. By
the time Chief Justice Terry left the Supreme Court in 1964, case filings
exceeded one hundred per year for the first time.
In his four-year term as governor, Terry was in
a unique position to further judicial reform and he did so with the court
with which the public has the most contact, the Justice of the Peace Court
system. A court once ridden with politics and favoritism eventually became
an efficient system of salaried, full-time judges sitting in a courtroom
setting and conducting proceedings under uniform written rules of procedure.
All of this is largely due to Charles L. Terry. It has been said that
Charles Terry was:
- the only person in our almost 200 years of independence
to be both Governor and Chief Justice of this State. However, he was
known to so many for so long as "Judge," that it was sometimes difficult
to remember that he was no longer a trial judge.7
The judge who preferred to be governor died unexpectedly
on February 6, 1970.
Chief Justice Daniel F. Wolcott
Daniel Fooks Wolcott was born in 1910 in Wilmington,
where his father, Josiah O. Wolcott, was then practicing law at the firm
of Marvel, Wolcott & Layton. When he was eleven, his family moved to Dover
when his father was appointed chancellor. After attending public schools,
Wolcott completed his secondary education at the Westminster School in
Simsbury, Connecticut, and received his undergraduate degree in 1933 from
In 1936, following receipt of a law degree from
the University of Pennsylvania, Wolcott joined the firm of Hughes, Terry
& Terry in Dover. N. Maxson Terry, who later married Wolcott's sister
Rebecca, was, with his older brother Charles, a member of that firm. In
1937 Wolcott moved to Wilmington to join the firm of Ward & Gray, whose
name was changed shortly thereafter to Southerland, BerI & Potter, and
in 1941 he married Eliza Rodney, daughter of Judge Richard S. Rodney.
After being drafted into the United States Army,
Wolcott received a commission in the United States Navy in 1942. In 1944,
after volunteering for a special combat mission, Wolcott was injured in
a training accident and, due to inadequate medical care, lost a leg and
retired from the Navy on disability.
After returning to practice law in Wilmington,
Wolcott became a partner in Southerland, Berl & Potter. In 1949 he was
appointed by Governor Carvel to succeed Judge Pearson as an associate
judge of the Superior Court and justice of the old Supreme Court. One
year later, in December of 1950, following Chancellor Harrington's retirement,
Wolcott was appointed chancellor of Delaware, thereby becoming the third
member of his family by direct line to hold that position.
Six months later, following creation of the separate
Supreme Court, Wolcott and James M. Tunnell, Jr. took the oath of office
as justices of the court under Chief Justice Southerland. Wolcott remained
a member of the Supreme Court until his death nearly twenty-two years
later, serving fourteen years as a justice and eight as chief justice,
a post he assumed following the resignation of Charles L. Terry He died
During Daniel Wolcott's years on the court, case
filings steadily increased from an average of about thirty-two a year
in the 1950s to eight times that number in the 1970s. It is fair to say
that Wolcott participated in most, if not all, of the significant decisions
of the Supreme Court between 1951 and 1973. In addition, he authored many
landmark opinions, including Kerbs v. California Eastern Airways, Inc.,
Del. Supr., 90 A.2d 652 (1952); Lieberman v. Becher, Del. Supr., 155 A.2d
596(1959); Beard v. Elster, Del. Supr., 160 A.2d 731 (1960); and Warshaw
v. Calhoun, Del. Supr., 221 A.2d 487 (1966). At memorial proceedings when
the court convened in special session following Chief Justice Wolcott's
death, his former partner, William S. Potter, stated:
- The character of his work while on the Delaware
courts is reflected in the multitude of clearly and concisely written
opinions which will serve as bench marks in the law for years to come.
They reflect his strong adherence to the continuity and tradition of
the law. On constitutional issues he was more conservative than is presently
fashionable with some persons, but here again he was convinced that
the policy of Delaware law must evolve slowly Throughout his professional
career he worked for the improvement of the administration of justice,
particularly in the magistrate system, which he saw greatly improved
in the 1960s.8
Judge Latchum echoed similar sentiments in remarking
"not only [on Daniel Wolcott's] keen analytical mind as practitioner and
judge but also [on] his kindness, his modesty, his patience, his integrity
and, most importantly, his keen and natural sense of humor."9
It is doubtful that any one had ever heard a word
of complaint by Dan Wolcott about his painful and limiting handicap. But
neither pain nor a rising caseload limited the performance of his duty.
He sat regularly, decided promptly and voted in most of the significant
Supreme Court decisions for some twenty-three years. He was, in all respects,
a diligent and learned judge.
Chief Justice Daniel L. Herrmann
After the death of Chief Justice Wolcott, Governor
Sherman W. Tribbitt nominated Justice Herrmann to be Wolcott's successor.
In 1964 Governor Carvel's nomination of Herrmann, who had resigned his
Superior Court judgeship in 1958 to resume the practice of law, to succeed
Terry as chief justice had incurred vigorous opposition from the supporters
of Justice Wolcott. But there was no opposition in 1973. Since his appointment
as associate justice in 1965, Justice Herrmann had served the state well
as judge and activist in matters of common concern to bench and bar.
William Duffy, then chancellor and former president
judge of the Superior Court, was appointed by Governor Tribbitt to succeed
Herrmann as justice of the Supreme Court. With these two appointees joining
Justice Carey, the turnover of the court was complete.
In 1974, after several years of poor health, Carey
retired and John J. McNeilly, Jr. of Rehoboth, resident judge of the Superior
Court in Sussex County since 1963, was appointed to succeed him.
By the 1970s case filings were triple the number
in the early 1960s, having risen from slightly under one hundred in 1963
to nearly three hundred in 1973. By 1978 case filings exceeded 350 per
year with criminal appeals increasing geometrically.
By 1978 the Delaware Supreme Court was the only
court of last resort in the nation with fewer than five members. In June
of that year, Chief Justice Herrmann in his state of the judiciary address
called to the attention of the bar and the public the "critically important
matter" of enlargement of the Delaware Supreme Court. By then the waiting
period between the time a civil case had been briefed and the time it
was taken under submission by the court had grown to nearly nine months.
Sounding the alarm, Herrmann stated:
- Let us hope-indeed let us pray-that the enlargement
of the Court is an idea whose time has come in this year 1978; that
the best interests of the people of the State will be paramount in the
minds of all concerned in the weeks ahead; and that the expansion of
the Court will at long last-become a reality....
In August that prayer was answered by the legislature,
and in October Governor Pierre S. du Pont IV announced his selection of
former Chancellor William T. Quillen of New Castle, a Democrat, and Henry
Ridgely Horsey of Dover, a Republican, to fill the two seats created by
the expansion. On November 27, 1978 the new five-member court sat for
the first time to hear arguments.
Enlargement of the court required significant
changes in administration to permit prompt disposition of the backlog
of civil cases. In particular, the court promptly adopted a rule authorizing
panels of no less than three justices (except in certain circumstances).
In 1982 and 1983 two of the five members of the
first five-justice court elected to leave the court. Justice Duffy retired
in March of 1982 and Governor du Pont appointed Andrew G.T. Moore II,
a Wilmington attorney, to succeed him. The following year, Justice Quillen
resigned to return to private practice, and Governor du Pont, in March
of 1983, appointed Superior Court Judge Andrew D. Christie to succeed
One of Chief Justice Herrrnann's favorite adages
was: "It is almost as important that the law be settled as it is that
the law be right," with attribution to Lord Hardwick's statement, "Certainty
is the Mother of Repose: therefore the law aims at Certainty."
Chief Justice Herrmann's style of leadership was
vastly different from that of his predecessors. He sat regularly with
the court, but he had a strong focus on his supervisory responsibilities
over all the courts, an issue to which his predecessors had given relatively
little attention. Not so Chief Justice Herrrnann who over the years used
those powers in an ongoing effort both to modernize and to unify the judicial
system. As Edmund N. Carpenter II, a distinguished member of the bar,
stated at the memorial proceedings following Herrmann's death:
- No one has done more than Daniel L. Herrmann
for the improvement of the administration of justice in the State of
Delaware.... While on the Bench of the Superior Court, it was he who
initiated the formal presentation of pre-sentence reports, he that spearheaded
the improvements in our Rules of Civil Procedure, he who completed publications
for jurors describing the judicial system and the duties of citizens
selected for jury duty.10
An eloquent spokesman for the courts and their
needs, he had an effective relationship with leaders of the bar and the
community that he could call on in developing public support for the courts.
Among his accomplishments, Chief Justice Herrmann initiated a yearly report
on the state of the judiciary, which has become an annual rite of passage.
Under his leadership, priority was established in the disposition of criminal
cases; all judicial opinions show the time period between submission and
decision; courthouse facilities were enlarged; computer-based information
systems were installed; judges were added; judicial compensation was increased;
administrative personnel were added; and an internal uniformity was begun
that seeks to bind the system together.
In 1985, upon completion of his twelve-year term,
Chief Justice Herrmann retired, and Governor Michael N. Castle elevated
Justice Christie to chief justice. On the same day, September 30, 1985,
Governor Castle appointed then Vice-Chancellor Joseph Walsh, a former
judge of the Superior Court, to be a justice of the Supreme Court to fill
the vacancy created by the appointment of Christie as chief justice. Chief
Justice Herrmann, in retirement, continued his active life and involvement
in the law by becoming a Distinguished Visiting Professor at the Widener
University School of Law. While there, he created new courses designed
to educate aspiring lawyers in alternative procedures for resolving disputes
and to make them better advocates in appellate proceedings.
In June of 1991 the retired chief justice died
suddenly after suffering a fatal heart attack in the Philadelphia International
Airport while returning from a grandson's graduation exercise in New England.
Chief Justice Andrew D. Christie
The appointment in 1985 by Governor Michael N.
Castle of Andrew D. Christie, a trial judge for almost twenty-six years,
as chief justice was widely applauded. Judge Christie had long been a
respected and diligent jurist.
Born in Cincinnati, Ohio in 1922, the son of a
distinguished Presbyterian minister, Andrew Christie had lived in New
Castle County for over fifty years. After attending local public schools,
he completed his secondary schooling at Mercersburg Academy in 1940. Christie's
undergraduate study at Princeton was interrupted by World War II when
he entered the United States Army Air Force for a period of three years.
After graduating from Princeton in February of 1947, Christie attended
the University of Pennsylvania Law School, where he was a member of the
Order of the Coif. He received an L.L.B. in 1949.
Admitted to the Delaware bar the same year, Christie
served as a law clerk for John Biggs, Jr., chief judge of the United States
Court of Appeals for the Third Circuit, then practiced law in Wilmington
for several years. Chief Justice Christie loved telling a tale from his
law clerk days about Chief Judge Biggs' boarding the B&O train at the
Wilmington station on his way to work in Philadelphia. The story, as recounted
by Chancellor William Marvel (an earlier Biggs clerk) at the memorial
session for Judge Biggs:
- Andy Christie could describe in detail the Judge's
insistence that the rear door of the dining car of the 8:05 Baltimore
& Ohio Railroad train, which then ran from Wilmington to Philadelphia
and on which the Judge was accustomed to have breakfast, stop where
the Judge and his party were standing on the station platform, it having
been made clear that no one was to move until the train had, if necessary,
backed up to the correct spot. Then, after the Judge had been handed
a scalding cup of coffee by a beaming head waiter, as he ascended the
steps of the dining car, he and those with him would be seated and served
a pre-ordered breakfast for which the Judge, with his accustomed generosity,
In November of 1952 Christie was appointed executive
director of the State Legislative Reference Bureau by Governor J. Caleb
Boggs. In 1957 Governor Boggs appointed Christie resident judge of the
Superior Court for New Castle County. Christie remained a judge of the
Superior Court for nearly twenty-six years until 1983 when he was appointed
a justice of the Supreme Court following the resignation of Justice Quillen.
Two years later, Justice Christie became chief justice following the retirement
of Chief Justice Herrmann.
Through his years of judicial service, Christie
had developed an enviable reputation, not only for his work ethic but
also for his even-handed judgment and sense of fairness. A consensus-builder,
he showed his skills on the court as well as off. As a predominantly law
judge, Christie's productivity matched that of his predecessor through
a term of service that spanned the Atlantic Reports from 131 A.2d to 597
A.2d. He also wrote a majority of the early decisions of the court on
The chief justice was efficient at handling his
duties as the top administrative officer of the courts. He was the first
chief justice to present to the executive and legislative branches of
government a unified budget for the judiciary; and throughout the seven
years of his term, the chief justice fulfilled his responsibilities in
the administrative field, issuing a range of administrative directives
ranging from speedy trial requirements to modification of criminal and
courtroom procedures in the face of the growing problem of AIDS.
By 1982 case filings in the Supreme Court had
reached four hundred per year, and on Chief justice Christie's watch,
they increased to over five hundred in 1988. While criminal cases continued
to exceed fifty percent of the case totals, the era of corporate takeovers
resulted in the court's preoccupation with corporate litigation and matters
of corporate governance during Chief Justice Christie's tenure. The court
in Weinberger restated the law in the area of freeze-out mergers; over
the remaining decade of the 1980s, the issue of shareholder demand in
derivative suits was explored in almost every conceivable factual situation.
In 1986 Justice McNeilly elected to retire upon
completion of his twelve-year term on the court. McNeilly was succeeded
on December 2, 1986 by Randy J. Holland, a Milford attorney who, at the
age of thirty-nine, became the youngest justice ever to serve on the separate
In February of 1992, upon attaining age seventy,
Chief Justice Christie elected to retire from active judicial service.
His retirement coincided with abatement of the takeover fever and a slowdown
in the court's caseload of corporate litigation involving mergers and
Unfortunately, Andrew Christie's retirement was
cut short within fifteen months by his tragic death in June of 1993 in
an automobile accident when traveling with his wife Carol in Arizona.
His sudden death, within two years of Chief Justice Herrmann's, deprived
the bench and bar of the company of two distinguished chief justice emeriti.
In the memorial service for Chief Justice Christie,
his pastor, the Reverend Jon M. Walton, summarized why his colleagues
and friends regarded him with such respect and affection:
- For his gentleness and kindness as a man, his
sense of balance and inner peace, his ability to see both sides of a
disagreement, his patience and studied judgment, his common humanity
and uncommon humility that made him to many of us simply "Andy".
Chief Justice E. Norman Veasey
On April 7, 1992 E. Norman Veasey was invested
as chief justice of the Supreme Court, following his nomination by Governor
Michael N. Castle and unanimous confirmation by the state senate.
Veasey's selection as chief justice without prior
judicial service had a splendid precedent forty years earlier when Clarence
Southerland had been chosen to be chief justice of the first separate
Supreme Court. Veasey, like Southerland, was a senior partner in one of
the largest law firms in the state and an acknowledged leader of the corporate
Born in 1933 in Wilmington, Veasey attended Wilmington
schools before completing his secondary education at the Peddie School
and undergraduate education at Dartmouth College. In 1957 he received
his law degree from the University of Pennsylvania. Following admission
to the Delaware bar in 1958, Veasey was affiliated with the law firm of
Richards, Layton & Finger for thirty-five years, beginning as an associate,
then a partner in 1963, managing partner during the 1970s and president
of the firm in the mid-1980s. Early in his career, Veasey served both
as a state prosecutor and as chief deputy attorney general and later as
president of the State Bar Association. Through the 1960s and 1970s, at
the request of the governor, he chaired numerous committees and task forces
studying the several branches of state government. Veasey also performed
many years of service as chair of committees for the Supreme Court. In
his field of concentration, corporate governance, Veasey authored over
Chief Justice Veasey, in his first year on the court, has written on a wide range of issues. In addition, as chief administrative officer of the courts, he has in his first year of service delivered over twenty-five addresses with a primary emphasis on civility and professionalism.
With Chief Justice Veasey, the Supreme Court presently consists of Justices Horsey, Moore, Walsh and Holland. However, Justice Horsey, in October of 1993, announced his intention to retire from the court after fifteen years of service, effective February 28, 1994. The members of the court are experienced in all aspects of trial litigation and, collectively, they share abundant experience as appellate court judges. They know Delaware, its law and its experience.
As Richard Rodney wrote: "[s]terling character, good sense and sound judgment" were the qualifications of our colonial judges over 270 years ago. Those same qualities, coupled with a sense of fairness, courtesy and kindness to litigants and counsel, are the lodestar for our judiciary on the eve of our next century.
- Interview with The Honorable George Burton Pearson,
February 19, 1993
- Personal Communication with Elbert N. Carvel.
- Memorial Session in Honor of Justice James M.
Tunnell, Jr., 38 Del. Rptr. XXIX, XXXIII (1987).
- Paul Dolan, "The Supreme Court of Delaware,"
1900-1950, 56 Dick. L. Rev., 11-12 (1952).
- Memorial Session in Honor of Justice James M.
Tunnell, Jr., 38 Del. Rptr. XXIX, XXXVIII -XXXIX (1987).
- Proceedings in Honor of the Late Honorable Clarence
A. Southerland, 10 Del. Rptr. 7, 13 (1973).
- Proceedings in Memory of the Late Honorable
Charles L. Terry, Jr., 8 Del. Rptr. 5, 13 (1970).
- Proceedings in Memory of the Late Honorable
Daniel F. Wolcott, 10 Del. Rptr. 7, 13 (1973).
- Id. at 16.
- Memorial Session in Honor of Chief Justice
Daniel L. Herrmann., 39 Del. Rptr. XXXIX, XLVII (1992).
- Memorial Proceedings for John Biggs, Jr., 507
F.2d 1 (1974).
Return to top