Superior Court's History

Superior Court's heritage can be traced back more than 345 years to December 6, 1669 when John Binckson and two others were tried for treason for leading an insurrection against colonists loyal to England in favor of the King of Sweden.

The red sash worn by High Courts of that time has been worn in the 21st century by the judges on ceremonial occasions. The law courts, which represent today's Superior Court jurisdiction, go back as far as 1831.

They included Superior Court, which heard civil matters, the Court of General Sessions, which heard criminal matters, and the Court of Oyer and Terminer, which heard capital cases and consisted of all four law judges for the other two courts.

In 1951, the Court of Oyer and Terminer and the Court of General Sessions were abolished and their jurisdictions were combined in today's Superior Court.

The court's presiding judge was renamed president judge. There were five Superior Court judges in 1951; there are nineteen today. Sessions of Superior Court are held in each of the three counties at the county seat.

The Honorable E. Norman Veasey, former Chief Justice of Delaware, has described the Superior Court this way in his article, "The Drama of Judicial Branch Change in this Century", Delaware Lawyer, Vol. 17, No. 4, Winter 1999/2000.

"The Superior Court has always been the bellwether court of general jurisdiction in Delaware. Recent management innovations such as electronic filing, drug court, case management technology, arbitration, mediation, summary procedures, videoconferencing, jury reform and other advances have only added to its nationwide reputation for excellence.

Criminal cases, including death cases, crowd its docket, complicate its ability to move cases expeditiously and present the judges of that court with vexing challenges of meeting speedy trial and disposition guidelines consistent with quality adjudication.

The Court's jurisprudence and case management in civil litigation is exemplary, with particular emphasis in the late 1980s and 1990s in the businesslike handling of complex, national insurance coverage litigation, during which period the Court became a national innovator in electronic filing."

Superior Court First Facts

• Superior Court's heritage can be traced back more than 345 years to December 6, 1669.
• The red sash worn by the High Courts in the 17th century has been worn in the 21st century by the judges on ceremonial occasions.
• A court designated as a Superior Court first appeared in the Constitution of 1831.
• Bailiffs once carried tipstaffs. One side of the pointed tip was white, to represent the presumption of innocence. The other side was red to represent a finding of guilt. Upon conviction, the tipstaff was turned so that the red side faced forward in the courtroom and while the defendant was being escorted to and from the courtroom.
• Jurisdiction over capital cases was vested in the Court of Oyer and Terminer until 1951 when it was transferred to the Superior Court.
• Superior Court rated #1 overall for the 9th consecutive year in the most recent U.S. Chamber Legal Institute for Legal Reform State Liability Systems Study. View Report
• On October 6, 2003, Superior Court was the first state court in the nation to require statewide electronic filing of certain categories of civil cases.
• On July 28, 2000, Superior Court was the first state court to adopt a rule allowing briefs and appendices to be filed on CD-ROM.
• In 1999, Superior Court began to use its Wilmington, Delaware eCourtroom, purported to be the nation's first actively used eCourtroom.
• In 1999, Superior Court began to use its Automated Sentencing Order Program. The application issues sentence orders almost simultaneously with judge's pronouncement.
• Begun in 1994, Superior Court had the first statewide Drug Court in the nation.
• In 1991, Superior Court created CLAD the first electronic docketing & filing system for civil cases in the U.S.

The Superior Court

by the Honorable Henry duPont Ridgely, the Honorable Clarence W. Taylor, the Honorable Richard R. Cooch, F. Alton Tybout, Esq., and Kevin J. O'Connell, Esq.

The Superior Court is one of the oldest and busiest trial courts in Delaware. At the beginning of the twentieth century and for fifty-one years thereafter, the five judges who constituted the court were, with the chancellor, also judges of the Supreme Court. A constitutional amendment adopted in 1951 created a "separate" Supreme Court; thereafter the judges of the Superior Court were no longer members of that court, although individual judges still may sit on the Supreme Court by designation of the chief justice.

The Superior Court and its judges have retained important appellate functions, however. The court hears appeals from proceedings in the Family Court, the Court of Common Pleas and the Justice of the Peace Courts. In addition, the court hears appeals from the Industrial Accident Board and from other boards and authorities and reviews decisions of some forty-three boards and commissions governed by the Administrative Procedures Act. To the extent that Delaware has an intermediate court of appeals, it is surely the Superior Court. The Superior Court and its judges thus do double duty: first, in the trial of civil and criminal cases (under a constitutional grant of general jurisdiction) and, second, as appellate reviewers of rulings by lower courts and administrative agencies. It makes for a busy judicial life.

The serpentine path by which Superior Court acquired its current trial jurisdiction goes back over two hundred years. Jurisdiction of civil cases at law and criminal cases was apportioned among a number of courts by the Constitution of 1792. A court designated as a "Superior Court" first appeared in the Constitution of 1831. This new article on the judiciary was drafted primarily by John M. Clayton, among the most eminent of Delaware lawyers. Admitted to the bar in 1819, he practiced law in Delaware and was elected to the United States Senate in 1829. In 1848 he was appointed secretary of state by President Zachary Taylor and negotiated the Clayton-Bulwar Treaty with Great Britain. He later became the second chief justice of the Superior Court, succeeding his cousin Thomas.

Under the 1831 constitution, the court was given "jurisdiction of all causes of a civil nature, real, personal and mixed at common law and all other jurisdiction and powers vested by the laws of this state in the Supreme Court or the Court of Common Pleas." The latter two courts were abolished.

In the 1831 and 1897 constitutions, and until 1951, original criminal jurisdiction was divided between the Court of Oyer and Terminer, which had jurisdiction over all crimes punishable by death, and the Court of General Sessions, which had jurisdiction over all other criminal charges not exclusively heard by justices of the peace.

In 1951, extensive amendments of the 1897 Constitution established a three-member Supreme Court with appellate review as its primary function. Thereafter, the title of "chief justice" no longer applied to a trial judge and the new head of the Superior Court was designated "president judge." The Courts of Oyer and Terminer and of General Sessions were abolished and their functions were incorporated into the Superior Court.

These fundamental changes were dramatized on May 9, 1951 when they became effective. Chief Deputy Attorney General Vincent A. Theisen moved Superior Court Associate Judges Caleb R. Layton III and Daniel L. Herrmann that "all indictments, proceedings and matters of a criminal nature pending in the former courts and all books, records, and papers of [those] former courts be transferred to the Superior Court." With approval of that motion, Delaware's ancient Courts of Oyer and Terminer and General Sessions passed into history.

The Superior Court later acquired additional jurisdiction from yet another court. From colonial times until 1970, the Orphans' Court had exercised jurisdiction over the estates of minors and guardians' accounts, intestate real estate, accounts of executors and administrators, and adoptions and termination of parental rights. In 1970 that court was abolished and its jurisdiction was divided between the Superior Court and the Court of Chancery.

Subject to certain statutory and equitable exceptions, the Superior Court now has general jurisdiction over all civil and criminal cases.

In addition to its trial and appellate jurisdiction, the Superior Court has yet another regular and significant duty. The court and certain designated judges canvass the votes cast at general and special elections and make the official certifications of the results.

While the court system was substantially revised by the constitutional amendments in 1951, the manner of appointing judges to the Superior Court was not. Each constitutional judge, nominated by the governor and confirmed by the Senate, is appointed for a term of twelve years. As is true of the constitutional courts as a whole, the members of the Superior Court must be "of" a "major political party." There must be an equal number of Superior Court judges from each political party, or if the number is uneven, there may be no more than a majority of one from any major political party.

The Superior Court established by the 1897 constitution had a chief justice, a resident judge in each county and one at large, all to serve "during good behavior." In spite of continually increasing caseloads, the number of judges was not increased for sixty years. Beginning in 1961, however, the number of judges has been increased frequently (usually by increments of two) to the present number of [nineteen]. By tradition, all the judges in the Superior Court spend some time attending matters in each of the counties.

A major step forward in reorganizing the procedures of Superior Court was the adoption in 1947 of new Rules of Civil Procedure modeled on the federal rules. The court abolished common law pleading, generally considered a substantial impediment to the expeditious and fair disposition of cases on their merits. Swept away in one stroke were all of the bewildering array of writs and other arcane procedures. In their place were one form of action and a uniform process for moving through pre-trial proceedings to trial. The civil rules have been amended from time to time to keep them essentially the same as the federal rules.

In 1952 the court adopted new rules for procedure in criminal cases that, in turn, were superseded in 1992 by the present rules.

Prior to the 1951 judicial reorganization, Supreme Court appellate jurisdiction was rarely invoked; on average there were about seven appeals per year. Thus decisions of the Superior Court, particularly in civil cases, often established Delaware law. In the absence of an appeal that law became final and accepted as binding authority. Many such rulings were published in the official Delaware Reports and in the Atlantic Reporter. Given the public interest in having the law "settled" (as well as right), some Superior Court opinions published a half-century ago and more are still valid Delaware law.

Since the Superior Court enjoyed broad jurisdiction, its decisions established the law in areas as varied as contracts, negligence, agency and partnership, property and commercial law, among others. The Court of General Sessions and the Court of Oyer and Terminer heard noncapital and capital criminal cases, respectively.

In 1951 there were only five Superior Court judges. By today's standards the caseload was light, but the judges retained extraordinary executive responsibilities. For example, they exercised direct oversight of the county jails until the state Board of Corrections was created by the General Assembly in 1956. The judges also appointed members of the Delaware Commission for the Blind until 1970. The resident judges of the court in each county appointed the board of trustees of each school district within the county until those positions became elective. Even thereafter the resident judge in New Castle County continued to hold appointive responsibility for some school boards until 1969. All such executive duties have now ended.

In the four decades since the creation of a separate Supreme Court, the Superior Court has continued to determine the civil law in certain important respects. In one important area, for example, because of the general rule against appeal from interlocutory decisions, interpretation of the Rules of Civil Procedure, especially those concerning pre-trial discovery, has been determined almost entirely by the Superior Court.

The court has over time modified its approach to technical aspects of pleading, tending more to brush aside technical deficiencies. Even when the court has been limited by precedent, it has not hesitated to criticize what seemed to be an unduly technical or unfair construction of law. Finally, the Superior Court has continued to contribute to the development of the law as a result of its appellate review of an ever-increasing number of administrative agencies.

Every case is serious and important to the parties and to the court. In addition, there is often a special public interest in the outcome of a case. A capital case, however, for obvious reasons, has a significance beyond all others to the parties and the public. Much more than money or liberty is at stake.

Jurisdiction over capital cases was vested in the Court of Oyer and Terminer until 1951 when it was transferred to the Superior Court. The trial of a capital case had several unique practices which survived until about mid-century. One such practice was a unique colloquy at the arraignment on the day of trial:

PROTHONOTARY (to defendant):

[Defendant's name], please stand. You stand indicted by the grand inquest of the State of Delaware and the body of [names the] County of a felony, that of first degree murder, committed in the following manner: [reads complete indictment]. How say you, [name of defendant], are you guilty in manner and form as you stand indicted, or not guilty?

DEFENDANT: Not guilty.

PROTHONOTARY: How will you be tried?

DEFENDANT: By God and my country.

PROTHONOTARY: May God send you safe deliverance.

Another such practice included a traditional escort of the defendant to and from the courtroom by bailiffs carrying tipstaffs. One side of the pointed tip was white, representing the presumption of innocence. The white tip faced forward throughout the proceedings. The other side was red to represent a finding of guilt. Upon a conviction, the tipstaff was turned so that the red side faced forward while in the courtroom and while the defendant was being escorted to and from it. The Superior Court Courtroom Number 1 in the Kent County Courthouse retains today on both sides of the dock the wooden tipstaffs once carried by the bailiffs.

Under Article IV of the Delaware Constitution as amended in 1951, a capital felony could not be tried without three Superior Court judges presiding. Scheduling a case for trial under that requirement in a five-judge court created such practical difficulties that the constitutional provision was repealed in 1957.

Looking, of necessity, to the future, the court has adopted the Trial Court Performance Standards recommended by the National Center for State Courts and the Bureau of Justice Assistance for strategic planning purposes. The court has also adapted to today's demands by implementing American Bar Association standards relating to case and jury management, by expanding alternative dispute resolution methods and by using computers and other modern technologies to facilitate the administration of justice.

A prime example of the court's use of technologies that has attracted national interest is the Complex Litigation Automated Docket (CLAD). CLAD uses computer networking through digital telephone systems to allow the electronic filing and serving of documents in certain complex civil cases. Public access to the docket is enhanced because it is available twenty-four hours a day via personal computer with a modem. CLAD has provided a cost-effective alternative to the time-consuming, expensive tasks associated with managing voluminous documents.

Other examples of today's technologies in the court include video arraignments and bail hearings, computerized calendaring, computer-assisted transcription, advanced word processing, automated legal research, electronic mail, voice mail and facsimile transmissions. The future holds in store other technologies such as laser-optic disks, bar coding, remote filing of court documents and remote electronic access in court.

For many years, a strong collegiality has existed among the judges who have served the court. That bond, which may be unique among Delaware courts, continues to this day. Judges who currently sit on the court cherish the firm tradition of congeniality begun under their predecessors. Based on more than friendship, it is a collaboration that furthers the common missions of doing justice and serving the needs of the court. To that end, judges share their experience and knowledge of precedent, problems and cases with each other.

Visiting judges and lawyers from other states have been quick to compliment the quality of the administration of justice in Superior Court and to admire the harmony they find. After witnessing the collegiality of the court firsthand in 1992, Professor Ernest C. Friesen, the first dean of the National Judicial College and a founder of modern court administration, said: "If I were to be a judge I would want to be one in Delaware."

Superior Court's 175th Anniversary Commemoration

The 175th anniversary of the court's creation under the Delaware Constitution of 1831 was commemorated with a Special Session of the Superior Court.

Delaware judges, government officials, and distinguished guests gathered for the celebration at the historic New Castle County Courthouse, in New Castle, Delaware on April 9, 2007.

To learn some little known facts about the early days of the court and the people involved, read the complete 175th Anniversary Ceremony transcript.

Although Superior Court's heritage can be traced back more than 339 years to December 6, 1669, our law courts which represent today's Superior Court jurisdiction, were decreed under the Constitution of 1831.

The law courts included Superior Court, which heard civil matters, the Court of General Sessions, which heard criminal matters, and the Court of Oyer and Terminer, which heard capital cases and consisted of all four law judges for the other two courts.

Excerpt from the event April 9, 2007 commemoration:

"Today, Monday, April 9, 2007, marks the 175th Anniversary of the first session held by the Superior Court. Resident Judge Samuel M. Harrington, one of the original Superior Court judges appointed after approval of the Constitution of 1831, recorded in Volume 1 of his reports – and I quote...

'The Superior Court held its first session at Georgetown in Sussex County on Monday, the 9th of April 1832.'

This special session today is being held to commemorate this milestone in the Court's history,"

Read the complete transcript.

The judges that served under the Constitution of 1831 can be found on this page under the Superior Court Judges section.

Superior Court's 300th Anniversary Commemoration

Superior Court Special Session Commemorating the 300th Anniversary of the Courts on the Green