July 10, 1998

New Castle County (Direct Dial of Writer 302-577-8347)

William G. Burke, Sr.
Administrative Director
Howard G. Sholl, Jr.
Deputy Administrative Director
Department of Elections for 
New Castle County
820 N. French Street, 4th Floor
Wilmington, DE 19801

Re: Candidacy of Richard L. Abbott

Dear Messrs Burke and Sholl:

By memorandum dated June 22, 1998, you informed this office that
Richard L. Abbott had filed as the Republican candidate for the
Third New Castle County Councilmanic District. You also advised
this office that you believed Mr. Abbott failed to meet a one
year residency requirement, citing 9 Del. C. § 1142.¹ By
accompanying letter to Mr. Abbott dated June 22, 1998, you
directed him to provide proof of his one year residency.² Mr.
Abbott responded by letter dated June 24, 1998. In his letter,
Mr. Abbott acknowledges that he has not resided within the Third
District for one year; however, he argues that 9 Del. C. § 1142
does not require a one year residency in the case of his
candidacy. In your letter of June 25, 1998, you acknowledged
receipt of Mr. Abbott's letter and informed him that you were
seeking advice from this office.³ Because New Castle County
government has an obvious interest in this controversy, the New
Castle County Attorney has provided this office with a legal
opinion by letter dated July 1, 1998. For the reasons stated
herein, we believe that 9 Del. C. § 1142 does not require that
Mr. Abbott have established residency in the Third Councilmanic
District for one year prior to the November 3, 1998 election.

As stated, we understand you to read 9 Del. C. § 1142 as
imposing a one year residency requirement in the district for
all candidates, including Mr. Abbott. On the other hand, Mr.
Abbott and the New Castle County Attorney assert that the one
year residency requirement only applies "in the event of
redistricting." Principles of statutory construction militate in
favor of the latter interpretation.

In analyzing the proper construction to be given to a statute,
we recognize that an agency's interpretation of a statute should
be given the "highest respect" especially if based on
"long-standing uniform administrative practice over a period of
years." State v. General Chemical Corporation, Del. Super., 559
A.2d 292, 298 (1988). You have advised that this is the first
time that this issue has arisen with respect to a specific case.
Thus, the Department of Election's interpretation in this case
amounts to an ad hoc decision to which no deference need be
given. As the Court held in James Julian, Inc. v. Department of
Transportation and Department of Labor, Del. Ch., C.A. No.
12293, 1991 WL 224575, Jacobs, V. C. (Oct. 29, 1991):

[a]ccordingly, at issue before the Court is not a garden-variety agency action taken pursuant to an administrative regulation having the force of law. Rather, under challenge is an ad hoc agency determination whose validity the Court must determine on the basis of the statutory language itself. Determinations of that kind are not entitled to the deference normally accorded the administrative determinations in the former category.

Id. at 7.⁴The interpretation of the statute is purely a legal issue. King
v. Board of Pension Trustees, Del Super., C.A. No.
96A-07-001-WCC, 1997 WL 718682, Carpenter, J. (Aug. 29, 1997).
That Court stated:

"Ultimately, the Courts are responsible for "the true interpretation or construction of a particular statute or regulation."(Citations omitted) ... Thus, "[t]he question of the appropriate interpretation or application of [the pension statute] is a legal issue, which is subject to de novo review by this Court."(Citations omitted).

Id. At 4.

Since no deference to the Department of Election's
interpretation of 9 Del. C. § 1142 is required, we turn to other
applicable principles of statutory construction.

First, we consider rules of composition, which are relevant in
determining legislative intent. 2A Sutherland, Statutory
Construction, Section 47.01 at 136 (4th Ed. rev. 1992). One
recognized rule of composition is that "the position of words in
a sentence is the principal means of showing their
relationship." W. Strunk & E. B. White, The Elements of Style 28
(1979). Specifically, "referential and qualifying words and
phrases...refer to the last antecedent." 2A Sutherland,
Statutory Construction, 47.33 at 270 (4th Ed. rev. 1992).
"Modifiers should come, if possible, next to the word they
modify." W. Strunk & E. B. White, The Elements of Style 30
(1979). Applying these rules, in 9 Del. C. § 1142, the
prepositional phrase "for at least one year prior to their
election" modifies the antecedent words "in the event of
redistricting, of the district as adjusted." It does not modify
the whole sentence. That is, the one year residency requirement
applies only upon redistricting.⁵ Other rules of statutory
construction support this interpretation as well.

It is a general principle of statutory construction that a
statute should be construed, if possible, to give effect to
every word within it and one section should not be interpreted
so as to destroy another. 2A Sutherland, Statutory Construction,
Section 46.06 at 119-120 (4th Ed. rev. 1992). To interpret the
one year requirement as referring to the entire sentence, and
therefore applicable to all candidates regardless of
redistricting, would be to make the words "in the event of
redistricting" superfluous. Such a construction would violate
this general principle of statutory interpretation. In our view,
therefore, the correct interpretation of § 1142 is that the one
year residency requirement applies only when redistricting
occurs. As a result, we find the statute to be unambiguous.

A statute is ambiguous if: (1) it "is reasonably susceptible of
different conclusions or interpretations." Coastal Barge Corp.
v. Coastal Zone Indus. Control Bd., Del. Supr., 492 A.2d 1242,
1246 (1985); or (2) a literal interpretation of the words would
lead to an unreasonable or absurd result that could not have
been intended. DiStefano v. Watson, Del. Supr., 566 A2d. 1,4
(1989). As the Supreme Court recently reiterated in Jackson v.
Multi-Purpose Criminal Justice Facility, Del. Supr., 700 A.2d
1203, 1205 (1997):

Only if a statute is found to be ambiguous may a court then attempt to resolve the ambiguity by reconciling the statutory language with the legislative intent. (Citations omitted). If there is no reasonable doubt as to the meaning of the words used, a statute is unambiguous and the Court's role is limited to an application of the literal meaning of the words.

As we discussed above, in order to give meaning to all the words
contained in 9 Del. C. § 1142, the words must be read literally
so that the one year requirement applies only in the event of
redistricting. Any other reading would make part of the statute
superfluous. This result is neither unreasonable nor absurd.
While we do not opine on the General Assembly's intent in
enacting the one year residency requirement in § 1142, one
possible intended purpose would be to prevent gerrymandering of
councilmanic district lines to benefit an incumbent standing for
reelection. This possible purpose alone is sufficient to rebut
the argument that the interpretation we adopt would lead to an
unreasonable or absurd result.


Our interpretation is also consistent with the admonition of the
Superior Court in the most recent ballot access case. The Court
held :

The right of a person to be a candidate for public office is a fundamental one that should be restricted only by clear constitutional or statutory language. "[Any] question or doubts of eligibility of a candidate should be resolved in favor of the candidate." (Citations omitted) (Emphasis added).

Democratic Party of the State of Delaware v. Department of
Elections for New Castle County, et al., Del. Super., C.A. No.
94C-08-227, 1994 WL 555405, Ridgely, P. J. (Sept. 6, 1994) at 6,
aff'd Del. Supr., 650 A.2d. 1305 (1994) (table).

Therefore, we advise you to place Mr. Abbott's name, if he is
otherwise qualified, on the ballot for the Republican nomination
for the Third Councilmanic District. We do not believe the one
year residency provision of 9 Del. C. § 1142 gives the
Department of Elections for New Castle County the "clear
constitutional or statutory language" required by Democratic
Party to bar Mr. Abbott from the ballot if he is otherwise
qualified.⁶Should you have any questions, please do not hesitate to contact
us.

Very truly yours,


Malcolm S. Cobin
Assistant State Solicitor


A. Ann Woolfolk
Deputy Attorney General

Approved:

___________________________
Michael J. Rich
State Solicitor



cc: Richard L. Abbott, Esquire
William J. Rhodunda, Jr., Esquire

¹ Section 1142 Qualifications - 

Elected officials of the county governing body shall be citizens
of the United States and qualified electors of the County. They
shall be residents of the district from which they are elected
or, in the event of redistricting, of the district as adjusted
for at least one year prior to their election. Such officials
must not be less than 24 years old when elected to office. The
county government shall be the judge of the qualifications of
its members.

² The June 22, 1998 letter to Mr. Abbott contained a
typographical error relating to the date by which his residency
must be established. That was corrected by letter to Mr. Abbott
dated June 23, 1998.

³ As you have informed us since that letter that you wished an
opinion that would be public, we have rendered the advice in the
form of an opinion, including copying it to Mr. Abbott and the
County Attorney.

⁴ You have brought to our attention a 1981 Memorandum from the
Deputy Attorney General then representing your Department, which
dealt with a hypothetical situation under 9 Del. C. § 1142. That
Memorandum specifically states "[t]he validity of the durational
residency requirement itself, and whether the candidate must
present evidence of his residence, and what would constitute
valid evidence are questions which are not addressed at this
time." Further, that Memorandum presupposes the existence of a
requirement and does not analyze the applicability of that
requirement to any particular candidate's situation. It is
therefore not helpful in resolving the present controversy.

⁵ We express no opinion as to the validity of imposing the one
year residency requirement on candidates in adjusted districts
after the decennial census.

⁶ Obviously, in the event of a challenge in court to Mr.
Abbott's candidacy, Mr. Abbott would have an interest in
defending such action. In addition the New Castle County
Attorney has advised us that New Castle County, as an interested
party, would seek to defend the action as well. We finally
emphasize again that we do not decide any issues not
specifically mentioned herein including any raised by either Mr.
Abbott or the New Castle County Attorney.


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