Senate cancels session, asks former judge for advice on ousting McGuiness

The State Senate has canceled today’s special session. 

The session would have brought senators to Legislative Hall to consider a resolution asking the Delaware Supreme Court to provide guidance on the General Assembly’s authority to remove State Auditor Kathy McGuiness.

McGuiness was indicted in October on felony and misdemeanor corruption charges alleging nepotism, fraud, theft and witness intimidation. She has pled not guilty to all charges.

The special session was announced Nov. 4, but by Tuesday, the leadership of the Senate Democratic Caucus had found another way. 

Instead of reconvening so the Senate can vote on that measure, the legislature will abandon their efforts to seek the Supreme Court opinion and retain former Supreme Court Justice Randy Holland as “special advisor.”

A statement from the House and Senate Democratic Caucuses announcing the change of course called Holland “one of Delaware’s most respected Constitutional authorities.”

Holland is the longest-serving Delaware Supreme Court justice in history. He will provide his services free of charge.

Democratic leadership has set a Jan. 11, 2022 deadline for the legal review process’s findings to be finalized. 

Article III, Section 13 of the Delaware Constitution says that the governor may “for any reasonable cause” remove any officer of the state government, except the lieutenant governor and members of the General Assembly, upon the request of two-thirds of all the members elected to the House and Senate.

Last week during a special session on redistricting, the Senate passed a concurrent resolution asking the Delaware Supreme Court for an advisory opinion on five key points of the legislature’s constitutional authority to remove the auditor. 

Rather than vote on that measure, the House passed a concurrent resolution of its own that also sought a Supreme Court advisory opinion. 

The House version also would have given the justices a six-week deadline to release that opinion, while convening a joint meeting of the House and Senate Judiciary Committees to determine a process for moving forward with or without the Court’s opinion. 

“While neither resolution received a final vote, what became abundantly clear on Nov. 1 was that Democratic legislators overwhelmingly agree we need to quickly come to an understanding of the Constitutional options at our disposal and how removal proceedings might work across both chambers,” Senate President Pro Tempore Dave Sokola, D-Newark, said in the press release. “The solution we are announcing today will put us in a position to act appropriately when the legislature returns in January.”

Over the coming weeks, Senate and House leadership — with assistance from Judiciary Committee members — will prepare findings and recommendations with Holland’s guidance. 

“The provisions of the Delaware Constitution related to removing an elected official from office have serious legal ramifications,” Holland said in the press release. “I understand the gravity of what is being asked of me, and I am prepared to work impartially with the legislature to help forge a better understanding of case law, and the legislative record so the General Assembly has the information needed to make an informed decision about its path forward.” 

The Democratic leadership reiterated their call for McGuiness to take a voluntary leave of absence, saying that “potential conflicts of interest that will likely arise if the Auditor continues to actively serve in her elected financial watchdog role while facing criminal charges related to alleged abuses of those powers.” 

McGuiness has rejected those requests through her attorney.