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.
|Historic New Castle County Courthouse
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
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
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
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
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 heritage can be traced back more than 343 years to
December 6, 1669.
The red sash worn by the High Courts in the 17th century is worn today 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
In 2012, Superior Court rated #1 overall for the ninth consecutive year in the State Liability Systems Study of the U.S. Chamber of Commerce/Harris Poll.
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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
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.