1 SUPERI OR COURT OF T HE STATE OF DELAWARE RICHARD F. STOKES SUSSEX COU NTY C OUR THO USE

JUDGE 1 THE CIR CLE, SU ITE 2 GEORGET OWN, DE 19947 TELEPHON

E (302) 856-5264 Juliann e E. Murray, Esq. Murray Law LLC 109 North Bedford Street Georget own, DE

19947 Rae M. Mims, Esq. Delaware D epartment of Justice 102 West Water

Street Dover , DE 19 904
RE: Richard L . Haden v . Bethan y Beach P

olice De partment an d the Criminal J

ustice Coun cil C.A. No. S13A-11-003 RFS

Date Sub mitte d: March 31, 2014 Date D ecided: June 30, 201 4 Dear C ounsel: Before th e Court is Appellee the Criminal Justice Council’s (the “ CJC’s”) Motion to Dism iss the App eal of A

ppellant R

ichard L . Haden

(“H aden”). Also before the Court is Haden’ s Motion to A mend t he Notice of Appeal to a Wr

it of Certiora ri. The Court GRANTS the CJC’s Motion to Dismiss for lack subject matter jurisdic tion. Regardin g Haden’ s Motion to Amend, the Court agrees with Haden that his Motion is not procedura lly time-barred. H owever, because the Court considers certiorari review

of this ca se to be a f

utile ende avor, it DENIES Haden’s Motio n.2 FACTS & PROCEDURAL BACKGROUND The present M otions stem from the Bethany

Beach Po lice De

partm ent’s (the “BBPD’ s”) charging Haden with si x violat ions of it s regulati ons. On Marc h 3, 2013 Haden, alieutenan

t and sixtee n-yea

r vetera n of the BB PD, w as workin g the noon to midnigh t shift. At around 8:30 p.m., H aden responded to assist BBP D Pa trolman Zachery Bonniwel l (“B oniwell” ) i n a tra ffic s top wh ich re sult ed in Bonn iwell ’s arrestin g the driver , Joseph F. Bu rke (“Burke”), f ordriving unde r the infl

uence of alcohol. Accordi

ng to Hade n, after he a rrived on the scene, Burke said to Haden “We’ re neighbors. I know who you are. We’re goi ng to see ea ch other al l the time.” Bonniwell

was out of

ear sh o t during this conversat ion. Had en, who d

id not recognize Burke, f ound these c omments odd but no nthreate ning. Burke was th en b rou gh t b ack to th e BB PD f or b oo ki ng . At so me point, Burke and Bonniwell were in a detention area being vi deotaped. This tape did not have audio. In it, Bo nniwell ha s his ba ck to the camera, standing next to an Autom ated Fingerpr int Identification System (“AFIS” ). Bonn iwell was tak ing B urke’s personal inform ation. Burke w as in the f ront left of Bonn iwell, who w as pu ttin g Burk e’s inform ation

into the AFIS. In

the tape, Haden suddenly rushes into the area and gra bs Burke by the left s ide of his throa t. Star ing into Burke’s fa ce, Ha den is claimed to have said “

You want to threaten my

wife and f am ily now t hat I ’m in front of

you ?”3

This promp ted Burketo lift both of his arm s and push Haden back. Bu rke’s p ush causedBonniwell and Ha den to attem pt to subdue hi m. T

he Board n oted that th e BBPD’s charge of

excessive

force by Haden ag ainst Burk e was lim ited to H aden’s first physical contact with Burke ( i.e. , Haden ’s grab bing Burke by the throat ), and not Haden and Bonniw ell’s su bsequent phy sical cont act used in subduin g Bu rke. The Board believed t

hat this subse quent con

tact was obj ectively

reasonabl e under the circumstances, ev en thoug h Burke was p rovoked by Haden. Before concluding h is shift, Haden co mplet ed two re ports, each cont aining the
same language. In them , Haden describe d Burke’ s rem arks to him, which, according to Haden, were pa

rticular ly thr eatening a

ndtargeted

to Haden a

nd his family. Haden
a lso stated th at he moved toward s Burke in t he detent ion area and asked if he wa s being threaten ed. Burke then stood up, whic h caused H ade n to reach f or Bur ke’s throat in an at tempt

to lo cate a pressure poin t which w ould subdue Bu rke. This failed. Burke the n tried to gr ab Haden ’s hand, which ca use Burke to place hi s hand
on Burke’ s throat an d push him back in his s eat. Once seated, Haden asked again if Burke was th reatening his family or him. The Board fou

ndthat the video contradic ted Hade n’s ver sion of the s tory, and did not find his explana

tion credi ble. Ac cording to t

he Board, Haden sta

ted during questioning

that he w as angry

with Burke for his r

emar ks, and ent ered the d etention4

area with the intention of

engaging in a

physic al altercation wi th Burke in order to let Burke knowthat Haden “was the A lpha male.” The B oard found that Haden grabbed Burke in anger, and that Burke did not pose an imm inent threat to Haden, Bonniwel l,
or others. The Board als o found that Burke, w ho was not h andcuffe d, was no t a flight risk. Further, the Board considered Haden’s use of force punitive, rather

than for t he
use of subdu ing Burke
. Last ly, the Board found that the statements made by Haden in his rep orts were fals e. Chapter 92 of Title 1 1 of the De l aware Code, called the L aw-Enf orcem ent Office rs’ Bill of Rights (“LEO BOR”), grants law-enforcem ent officers charged

with misconduct

the right t o a hearin g before a n impa rtial tri al board (the “ Board”) of officers before de

partm ental disc ipline is imposed. Under 11 Del. C. § 9205(b), if an impartial board can

not be conve ned interna

lly, a board of

three or more members shall be convened under the auspices of the CJC to hear the matter. In Haden’s case, the Board conv ened by the CJC c onsiste d of Senior Li eutenant Do uglas G. Merrill of the New Castle C ounty P olice De partm ent, L ieutenant Eric L . Ham m of t he Delaware State Police, and Lieut enant Jason Pires of the Dover

Police D epartment. The Board met on Nove mber 12, 2013 at the Be thany Beach Municipal Building. The Boa

rd heard e vidence a s to the cha rged violat

ion s, delibera

ted, and
a nnounced its decision on the record. Haden pled guilty to two of the charged5

vi olations. The Boa

rd dismissed another charge as duplica

tive, and then found th e three remaining charges substantiated by evidence. T hese three charges involveduse of excessive, unnecessary, or unreasonab le, y et non-let hal force , and know ingly makin g a false o fficial

report or

causing to b e ente red int o a book or record inaccurate, false, or improper entries or m isrepresentat ion o f facts. The Board memorialized its fin dings in a written op inion on November 25, 201 3. On Novem

ber 26, 2011, Haden filed a notice of appeal of the Boa rd’s de cision to this Court. On Januar y 8, 20 14, the CJ C move d to dismiss the app ea l, claim ing that this Court lacked subject matter jur isdiction to hea r it. O n J anuary 24, 2014, Haden responded t o the m erits of H aden’s motion to dism iss, and reque sted that if the Court fou nd that it lacked jurisdiction over his appeal, Haden requested leave t o
amen d the notice

of appeal to a

writ of certi orari in or

der to esta

blish juri sdiction in this Court. H aden m ade this re quest in a concurre ntly f iled m otion to amend the notice of appeal . On Fe bruary 4, 2014, t

he Court sua sponte

raised the

i ssue of whether its juris diction over a writ of certiorari was time-barred. The parties submitted th eir respon ses to thi s issue.1 Super. Ct. Civ. R. 72 (“ This Rule shall apply to appea ls to the Sup erior Cou

rt from a ll commissions, boards, hearing officers under the Per sonnel Rules for Non-Judicial Employees, or courts from which an appeal may at any time lie to the Superior Court to be tried or heard on the record made below. When an appeal is permitted by law, a party

may appea

l by filing a notice

of appeal with the Prothonotary of the appropriate county within the time prescribed by sta tute.”).
2 The CJC cite s Smith v. D ep’t of Pu b. Safety of the State

of Del. , 1999 WL 1225250, at *11 (Del. Super. Oct. 29, 1999), aff’d , 2000 WL 1780781 (Del. Nov. 30, 2000) and Wescott v. City of Milford Police , 1995 WL 465188, at *4 (Del. Super. July 31, 1995) for this proposition.
3 The CJC cite s Wescott , 1995 WL 465188, at *4 & n.9 for this proposition. 6 ANALY SIS Parties ’ Conte ntions as t o the CJC ’s Motion to Dism iss The CJC argues that this Court should dismiss Haden’s initial appeal for lack of subject matt er juri sdiction

under thi s Court’s Civ il Rule 12 (b)(1). The CJC asserts that Haden has apparently filed his appeal under this Court’s Civil Rule 72, which applies on ly to appeals “permitted by law.” 1 It further asserts that the CJC i s no t listed in 29 Del. C. § 10161(a) as an administrativ e agency to whom the APA applies. Moreover, thi s Co urt has clea rly held in prior precedent t hat it does n ot have jurisdic tionover appeals fro m dec isions rendered pursuant to LEOBOR. 2 Neither LEOBO R nor the Adminis trative Pro cedures Act (t he “AP A”) renders appellate right s to law enforc ement officers un der LEOBOR’s purvie w. 3 Haden counters that the APA does grant him appellate rights because, even thoughthe CJC is not listed in Section 10161(a) as an administrativ e agency to whom the APA ap plies, 29 Del. C. § 10161(b) st ates that “ [a]ll agencies which are not listed4 29 Del. C. § 10161(b).
5 29 Del. C. § 10145.
6 The CJC responds that 29 Del. C. § 10142, contained in the same subchapter as Section 10145, is the statute applicable to appeals of “case dec isions” rendered by an administrative agency . “Case decisions” are dealt with in Subchapter I II of the APA. Section 10161(b) does not in any way

link an unlisted agency

like the CJC to either Section 10142 or Subchapter III. Section 10161(b) does, however, provide that Subchapter I I, which deals with ag ency regulations , applies to unlisted agencies. Thus, at most, this Court may review the CJC’s regulations , but not their case decisions . Furthermore, Haden’s pointing to the CJC’s enabling statute does not, the CJC argues, provide any assistance to Haden because by the CJC’s enabling statute’ s words, the CJC is applic able to Cha pters 100 and 101 of

Title 29. Chapter 10 0 deals with the Freedom of Inf

ormation Act, and is therefore irrelevant. Chapter 101 is the APA, but that, the CJC claims, on

ly le ads to the

same con

clusion: p ursuant t o the APA, this Court c an only review t he CJC’s regulations , not case decisions
. Haden counters that Section 10142 is implicated only after Section 10145 is implicated because the forme

r provide s guidan

ce on how

judicial r eview is c onducted , rather than how i

t is commenced. The commencement of an appe al, Haden claims, is covered in Section 10145. Haden a lso notes that the CJC’s a rgumen t rega rding r eview of its regulations as opposed to its case decisions is without merit because Section 10145 does not limit itself to review of an agenc y’ s regulations . Also, Haden asserts that the CJC’s enabling statute, Section 8702, does not limit its application to a particular subchapter of the APA. Rather, by the very wor

ds of Section 8702, it is reasonable to infer that all subchapters of the APA apply to the statute. To argue that the CJC’s enabling statute does not provide for appe llate rights ignores Section 8702’s clear reference

to Chapter 101 of Title 29 of the Delaware Code, which lea ds to Section 10161, and ultimately, Section 10145. 7 in subsection ( a) of th[ at] sec tion shall onl y be sub ject to s ubchapter s I and

II of this chapter a nd §§ 10141, 10144, and 10145 o f this tit le.” 4 In turn, 29 Del. C. § 10145 states that “[n]o petition, ap pea l or other applicati on or relie f of the C ourt shall b e considered as having been taken or made until it has been filed with the Prothonotary and served upon

the agenc y in

accordance with the rul es of the Co urt.” 5 Thus, Haden argues, Section 10145’s reference to appeals in general perm its this Court to hear appeals from all

agencies, regardless of whether they are listed in Section 10161(a). 67 2014 WL 662327 (Del. Super. Jan. 17, 2014), aff’d, 2014 WL 2466327 (Del. June 2,

2014).
8 The CJC counters that Haden ignores this Court’s decisions in Smith and Wescott , supra , in an att

empt to pos it that McGee is now the controlling precedent. The CJC claims that Haden mis interpre

ts McGee in that the holding in that case, according to the CJC, did not make the blanket ruling that this Court maintains appellate jurisdiction over the decisions of any agency , regardless of whether they are listed in Section 10161(a). McGee involved the COPT. Under 11 Del. C. § 8404A(3), appeals to this Court are permitted in certain circumstanc es. LEOBOR, the CJC claims, contains no such languag e. Haden r esponds that, while

the COPT’s

enabling statute r efere nces an a ppeal ri ght, whereas the CJC’s enabling statute does not, the CJC still refers back to the APA; and thus an appeal right under the CJC exists. Further, Haden did not ignore the prior pr ecedent like Smith 8 Add iti ona lly, Haden co mplie d with Sec tion 10145 by time ly fil i ng his notice

of appeal and giving

that noti ce to the CJC
. Haden al so notes that 11 Del. C. § 8702(c) states tha t the CJC’ s rules of procedure must c omply

with Chapters 100 and

101 of Title 29 of the Delaware Code, which includes S ection

10145, fur

ther dem onstrating that the Dela

ware C ode contem

plates t hat d ecisions rendered by the CJC are appealabl e. Haden claim s that addit

ional suppor

t for his pos ition can be found in this Court ’s recent de cision in McGee v. Counc il on Polic e Training
. 7 That case, Haden states, involved a D elaware State T rooper’ s appeal of

a decis ion render ed by th e Council on Police T

raining (t he “C OPT”) . Hade n points out the appellant in that ca se filedhis appeal in exactly the same manner as the appe llant in t his case. The COP T, like the CJC, is not liste d in Sectio n 101 61(a); y et the appe llee in McGeeraised no issue as to t

his Court’ s jurisdi ction to hea r the appe al. 8and Wescott because those cases state that the APA can be an avenue to appellate rights, which, as argued, Haden has esta blished.
9 Wescott v. City of Milford Police , 1995 WL 465188, at *4 (Del. Super. July 31, 1995). 9 Discussi on as to th e CJC’s Motion t o Dism iss “To the extent that this Court has appellate jurisdic tion from

certain boards and
comm issions , tha t jurisdi ction is spe cificall y conf erred by the statute

creating the boardand/or com

missio n . . . or by the Adm inistrative Procedures Act, 29 Del. C. Ch. 101.” 9 The C JC is codified in Chapter 87 of Title 11 of the Delaware Code. LEOBOR is codifie d in Chapte r 92 of the same title. N either ch apter con tains any language regardin g an adver sely a ffected party ’s appe llate rights. This abse nce from LEOBOR is puzzling

because L EOBOR

clearly lays out the p rocedure

regardin g hearings on officer d isciplin e. Thus, the Courtlooks to the APA. Haden’ s principal argum ent is that because Section 10161(b) cl early makes Section 10145 appl icable to adminis trative bo dies not listed in Sec ti on 10161(a), and because Section 10145 discusses commencing an appeal, the d ecisions of

those unliste d bodies m

ust be appea

lable. T his cannot be
corr ect. “The goal of statutory construction is to determine and give ef fect t o legislativ e intent. An unambiguous statute pre cludes the need for judicial10 LeVan v. Independence Mall, Inc. , 940 A.2d 929, 932–33 (Del. 2007) (citations

omitted) (internal quotation marks omitted).

11 Id. (citation omitted) (internal quotation marks omitted).
12 29 Del. C. § 10142(a). 10 inte rpretati on, and the pl ain meaning of t he statut ory language co ntrols.” 10 Amb iguity arises only “ if [the] statute is susceptible of diffe rent conc lusions or int erpreta tion s
or if a literal reading o f the stat ute would lead to an unreasona

ble or absu

rd result n ot contemplated

by the legisl ature.” 11 The Cour t does not find

any of th e APA’s provisi ons relati ng to app ellate righ ts ambiguou s. Section 10161(b) states tha

t those bodie s not

listed in the

precedin g subsection
are affected only by Subchapter I (“Policy and Definitions”), Subchapter II (“Agency Regulations”), and Secti ons 1 01 41, 10144, and 10145 of t he APA. Conspicuous ly absent is Section 10142, titled “Review of Case Decisi ons.” That section reads that “[a ]ny party against w hom a c ase decis ion has been decided m

ay app eal such de cision to the Court.” 12 Clearly, if an appellant w ishes to appeal a case decision rendered by
an administrative tribunal through invocation of the APA, he must do so under Section 10142. Th us, Section 10142’s absence from Section 10161(b) establishes that the AP A does not p r ovide appel late right s to an appe llant of a case dec ision rendered by a bod y not lis ted in Sec tion 10161(a ). The fact that Sect ion 10145 is applicable

to those unli sted bodies o nly demon strates t

hat if appe llate rig

hts13 In Maurer v. Council on Police Training , this Court noted how the COPT, the body

which was the subject of the McGee case upon which Ha den reli es, was a

body not listed i

n Section 10161(a). Maurer v. Council on Police Training , 2007 WL 625903, a

t *3 (“The

COPT is not one of the agencies listed in the Administrative Procedures Ac t (“APA”) § 10161(a) (29 Del. C. ). Therefore, pursuant to the APA § 10161(b), the APA’s Revie w of Case Decision section, § 10142, do es not app ly to an appe al from th e COPT. A p arty suffer ing an a dverse ruling in a COPT hearing has a rig ht to appeal to the Superior Court under 11 Del. C. § 8404A(3)”). Thus, if a body is not listed in Section 10161(a), appellate rights pertaining to that body’s case

decisions must come from a source other than the APA. See id. See also Mumford & Miller Concre te, Inc. v. Delaware Dep’t of Labor , 2011 WL 2083940, at *2 & n.3 (Del. Super. Apr. 19, 2011) (“The Secretary ’s decision is final and unappealable. The Superior Court has no statutory or leg al authority to review the Secretary

of Labor’s decision pursua nt to the Administrative Procedures Act under 29 Del. C. §10161(b), which states that decisions of administrative agencies not listed in Section 10161(a) may not be appealed. The Department of Labor is not listed in Section 10161(a).”). The Court does not find that the McGee decision offers Haden a ny s upport. T hat case dealt with the COPT. The COPT’s enabling statute specifically grants parties appeal rights. Under 11 Del. C. § 8404A(3), “[t]he ultimate findings of the Council shall be final, except that any ruling

adverse to any

party par ticipating in the hearing may be appealed to the Superior Court . . . .” 11 Del. C. §8404A(3). It is true that the enabling statute also references the APA itself. Under 11 Del. C. § 8404A(4), “[a]ll hearings shall be conducted in accor dance with the Administrative Procedures Act [Chapter 101 of Title 29].” 11 Del. C. § 8404A(4 ). Howev er, if Haden were correct, a

nd the APA itself by virtue of Section 10145 made all decisions rendered by the COPT appeala

ble, Section 8404A(3) would be emasculated. 11 pertaining

to those bodies exist elsewhere ( i.e. , in their own enabling statutes), then Section 10145 lays o ut the proc edure to be followed . The C ourt cannot conclude that Section 10145’s reference in Section 10161(b) serves as the linchpin which renders any decision f

rom a ny low er body

appealable under

the APA, regardless of whether it is listed in Section 10161(a). 13 Based on the above, the CJC’s Motion to Dismiss based on this Court’s lack of subjec t mat

ter jur isdiction is GRANTED
.14 Haden c ites DI’s, Inc. v. McKinney , 673 A.2d 1199, 1201 (Del. 1996) (citing and

quot ing Chadwick v. Janaman , 349 A.2d 742, 743 (Del. 1975)) for this proposition.

15 Haden c ites Di’s, Inc. , 673 A.2d at 1202 for this proposition. 12 Parties’ Contentions as to Haden’s Mot ion to Amend Becausethe Court gra

nts the CJC ’s Motion

to Dism iss, it w ill addres s Haden ’s Motion to Amend. Haden se eks to amend his notic e of appeal to a wri t of cert iorari. He argues tha

t the court

should grant

this Motion beca

use fundam ental due p rocess suggests that a

reviewi ng authority

should be available to him. Haden contends that substantial errors occurred below, which relate to due process and are c onstitutional in nature, and req uire this C ourt’s r eview. He also c ontends that no prejud

ice will occur on the

CJC’s p art if the

Court gra

nts this Motio n. Haden further argues tha

t his reque st for

an am endment to a wr

it of certiorari is not tim e-barre d. Dela

ware precedent h olds that a w rit of certiorari to this Court i s the functional

equivalent

of an appe al; there fore, si tuations invo l ving adefectiv e procedure in filing a

ppeals is c ompar

able to a de fective p e tit ion for a w rit of certiora ri. 14 Additiona lly, where no prejudi ce will r esult to the

other pa r ty, a ppeals should not be dismis sed on techn icalities
. 15 Haden stresses that his notice of appeal
was filed one day after

the CJC rendere d its decisi on. Thus, if the Cour t equates a petion for wri t of

certiorari to a

notice of appeal, Haden was well within the thirty -day ti me limit . He al so had no re ason to believe that h is see king revie w of th e CJC’s16 Haden chastises t he CJC’s commenting t

hat other avenue s were a

vailable to him, whil e at the sa me time ar

guing that the CJC’ s decisio n was not a ppealab le. Additi onally , Haden p oints out that the CJC harps that its decision is not appealable ( e.g. , final), ye t not so fina

l as to per mit the Court to grant certiorari review. Ha den also argues that the CJC’s pointing to the other avenue s availa

ble to him me ans nothin

g beca use neith er the Com

mittee nor

the Town C ouncil demonstr ated tha t they reviewe d how the B oard ca me to its conclusions , as oppos ed to taki ng its decision at face value. 13 decision sho uld have pro ceeded th rough a rout e other tha

n the filing of

an ordinary appeal. Moreover , no prej udice wil l result to the CJC if the Court g

rants this M otion. Overlay ing all of this , Haden conte nds, is that du e process requires that Haden receive a full and fair hea

ring on the m

erits. The CJC counters that in order for this Court to grant certiorari to Haden, the judgm ent below m ust be fina l, with no o ther avai labl e basis for review. The CJC
a rgues that its decisio n below w as not fina l because , after the Board

rendere d its decision and Haden received

his letter of intent t o terminate him from BBDP’ s police chief, Hadenappealed

to a Police Disciplinary Grievance C ommittee (the “Grievance Committee”), who hear

d his case o n January

30, 2014 . The Comm

ittee made its
recom menda tionto the Bet

hany T own Counci l (the “ Town Coun cil”), which met on February 14, 20 14, an d vot ed un animou sly to a ccept the Co mmittee’s
recom menda tion that H aden be te rmina ted. 16 Furthermore, the CJC counters that a writ of certiorari is not identical to an appeal. Rather, certiorari requires that a very specific standard b e me t. Even if the17 Di’s, Inc. , 673 A.2d at 1202 (“The [9 Del. C. ] § 4918 peti tion [for a writ of c ertiora

ri] is the functional equivalent of a notice of appeal. The wr it of certiorari similarly ta kes the place of a cita tion issued

by t he Prothon

otary pursuant to Superior Court Civi l Rule 72(e ). Certiorari to 14 Court fin ds that Ha den’s a ppeal is pe rmit

ted procedurally , that doe s not me an tha t Haden should

be entitl ed to certio rari review substantive ly . Hade n’s bare claim of
errors occurrin g below re lating to due process a nd constituti onal violati ons is not enough to establis h that this C ourt should grant him certiorari review. Furthermore, Haden receive d his due proc ess by having the opportunity to present his case before the impartial Bo ard. The CJC cla ims that it

expects that Haden will allege that the BBPD violated his rights un der LEOBORduring its in ternal inv estigation of him . The C JC argues , however, that LE OBOR pr ovides moredue proce ss prot ect ion than normal constitutional analysis. The CJC also asser ts that if it i s to be held a ccountable for
an alleged L EOBOR

violation c omm

itted by a po lice depar tment, it would have a chillin g effect, as no party would be wi lling to serve on th e CJC.

Discussion as to Haden’s Motion to Ame nd The Delaware Suprem

e Courthas held that a petition for certiorari review is the functional

equivale nt of a no tice of a ppeal, a nd that, th erefore , the failure to appropria tely verify a petition f

or a wri t of cert

iorari is compa

rable to ot her defe ctive notices of appeal. 17 Furthermore, the high Court has also “ adopted the modern viewthe Superior Court is, in effect, an appeal, differing only by being confined to the record and requiring a mere ministerial act on the par t of a judge in ordering issuance of the writ.” (citing and qu otin g Chadwick , 349 A.2d at 743) (internal quotation marks omitted)).

18 Id. (internal quotation marks omitted).
19 Maddrey v. Justice of the Peace Court 13 , 956 A.2d 1204, 1213 (Del. 2008) (citations omitted) (internal quotation marks omitted). 15 that, where possible and where there is no prejudice, appeals should not be dismissed
on technical ities.” 18 Thus, w ith the sim ilarity between a petition f

or certiorari review and a notice of

appeal es tablished, and with the libera l approac h courts should em ploy in handling er

roneously submit ted, yet timely

appeals, this Court is inc lined to hold that Haden’s petition for a writ of ceriorari is not tim e-barred. Haden filed his notice of appeal one

day a fter theBoard issu ed its deci sion, wit hin the thir

ty-da y pe riod, thus pu tting th e CJC on immediate no tice of the u nderlying li tigatio n. However , the Delaware Supreme Court’s comparison of a petition for cer tiorar i review with a noti ce of

appeal onl

y answers the questio n of wheth er Hade n’s Motio n to Amend is not barre d procedurally
. There rem ains the question of whether Haden may seek certiorari review

in this Court substantive ly , as the substance of certiorari review i s quite diff

erent fr om an a ppeal. “[A] writ [of c erti ora ri] i s si mply a fo rm that calls up, for review , the record from the lower

court or t ribunal. The purpo se of

the writ is to perm

it a higher court to review the conduct of a lower tribunal of reco rd.” 19 It “ is not a substitute

for, or20 Id. (citation omitted) (emphasis in original).
21 Id. (citations omitted) (internal quotation marks omitted) (italics omitted).
22 Id. (citations omitted).
23 Id. (italics omitted).
24 Id. The Delaware Supreme Court has, in turn, delineated the se requirements. Maddrey , 956 A.2d at 1213–14 (“A decision will be reversed for a n error of law committed by the lower tribunal when the record aff irmatively shows that the lower tribuna l has proceeded illega lly or manife stly

contrar y to law. Reve

rsal on ju risdictional gro

unds is appropriate

only if the record fails to show that the matter was within the lower tribunal’s per sonal and subject matter jurisdiction. Reversal for irregularities of pr oceedings occurs if the lower tribuna l failed to create an adequate rec ord for review.” (citation omitted) (internal quotation marks omitted) (internal brackets omitted)). 16 the functional

equivalent

of, an a ppeal.” 20 Certiorari review by this Court “ differs fundam entally

from appellate review because r

eview on c ertiorar

i is on the record and th e reviewi

ng court m

ay not w eigh eviden ce or re view the l ower tr ibunal’s f actua l finding s.” 21 Two threshold r

equirements must be me t in order to receive ce rtiorari rev iew: first, the judgm ent below

must be final; se cond, ther

e must exist no alternative routes for review. 22 If t hes e re qu ire ment s ar e met , “t h[is ] [C]our t must determ

ine if the petition rai ses th e typ e of

cla im r eviewab le on certiorari.” 23 This Cour t will “ not considerthe m erits of t

he case. It considers only those issues historically considered atcomm on law; na

mely , whether the lower tribunal (1) com mitte d errors of law, (2) exceeded it s jurisdict ion, or (3) p roceeded ir regularly.” 2425 Id. at1215.
26 Id.
27 Id. at 1207 (italics omitted). An example of an error that this Court could review on certiorari would be an irregula rity in the docket entrie s below. Id. at 1215. If the lower tribunal employ ed the inc orrect

burden o f proof by st

ating in its docket entries

that it wa s satisfie d that a party had not prove

n beyond a reasonable doubt , as oppos ed to stati ng that i t was sati sfied tha

t a party had pr

oven by a preponderance of evidence , such would be an error that would trigg er certiorari review from this Court. Id. “Similarly, the proper se rvice of the complaint and irreg ularity of proce ss, a lack of jurisd iction, or a remed y or dered ou tside of st atutory authority would also be reviewable from the face of the record.” Maddrey 956 A.2d at 1215. 17 In conducting t

hi s extremely de ferentia

l review , the Cour

t is limited in the evidence it ma

y consi der. O n review , “t he Superi or Court c anno t look behind th e face of t he record.” 25 “For a court to do anyt

hing mor e, such a s comb ing the transcri ptfor an erroneous evidentiary ruling . . . c onverts the limited certiorari review . . . into an im

perm issible ful l appellat e review that is inco nsistent w ith . . . the function of the common law writ . . . .” 26 The Delaware Suprem e Court has explained what is reviewable by this Court when conducting certiorari review. “ [T]he record reviewa ble by the Superior

Court on a c omm

on law wr it of cer tiorari c onsists only

of the complaint initiating the proceeding, any written answer o r res ponse, and the docket en tries.” 27 The Court considers certiorari review of this ca se to be a f utile exer cise. F irst, the Board’s decis ion belo w was not fina l. As the CJ C explaine d, the Board ’s deci sion28 Haden’s bare assertion that these bodies took the Boa rd’s decision at face value does not, nevertheless, negate the fac t that the Board’s decision was indeed not final.
29 See Maddrey

956 A.2d at 1214 (citation omitted) (internal quotation marks omitted).
30 Id. at 1215. 18 was appealed

to the Gr ievance C omm

ittee, w ho mad e a recommendation to the Town Council. 28 Second, e ven if i t is assumed that the Board’s decision was final, c ertiorari review would

still be fr uitless. T here is no a

llegation t

hat the Boa

rd, in renderingits decis ion exceeded its jurisdiction or proceeded irregularly. More over, the very limited evidence to which the Courtmay look if it were to conductcertiorari review ( i.e. , Haden’s appeal and the Board’s opinion) establishes that no errors of law were
comm itted. The Board, composed of three neutral officers, made c er tain fac tual findings. These findings were based on video evidence and Haden’s guilty pleas to two charges. Thus, these findings cannot be considered errors “m anifestly contrary to law.” 29 Furthermore, the Court may not comb through any transcripts, or any other form of evidenc e impermiss ible on certior ari revi ew, in a

n effort to contradic t these findings. 30 Regarding

the Board ’s excl

usion of Ha den’s w itness, who was to testify that the B BDP violated LEOBOR during its internal investigation of him, the B oar d’ s31 11 Del. C. § 9205(c).
32 11 Del. C. § 9206. 19 exclusion of that witn ess was permissi ble. Two provi sions wit hin LEOBOR discuss evidentiar

y issue s in relation to hear ings. The first is 11 Del. C. § 9205(c): Evidence which posse ss e s probative value com

monly accepte d by reasonabl e and prudent

persons in the conduc t of their affair s shall be admis si ble in evidenc e and given probative e ffect. The trib una l conducting

the hearing shall give effect to the rules of pri vile ge recognizedby

law and m

ay exc lude incom

petent, irrelevant, imm

aterial and unduly r epetitious evidence. All rec ords and doc ument s which an y party desires to use shall be

offere d and m ade a par t o f the rec or d. Docum e ntary

evidence may

be rece ived in the f

orm of copies of excerpts or by incorporation by refer ence. 31 The seco nd is 11 Del. C. § 9206: No evidencemay

be obtaine d, rece ived or

admit ted into evi dence in

any proceedin g of an y disci plinary action wh ich violate s any of the rights established by theUnited States C onstitution or

Delaw are Const

itution of by this chapter. The tribunalmay not enter a

ny ju dgment

or sustain any disci p linary

action bas ed on any

evidence obtained in v iolation of the officer’s rights as contained in this chapter. 32 While it is true t

hat the Board may not accept evi dence viola tive of the law, the Board may also exclu de irrel evant

evidence. As menti oned, in m aking its fa ctual find

ings, the Board had

before i t video e v idence an d Haden’ s guilty pleas to tw o charges. Haden did not chal lenge the legitimacy of this eviden ce below , and

has made no such20

challenge to this Cour

t. Thus, the Board

was entit led to consi d erthe testim ony of Haden’ s witness irreleva

nt to the pro ceedings. Based on the above, Haden’s Motion to Amend the N otice of Appeal to a Wr it of Certi orari is DENIED
. IT IS SO ORDERED
. Very truly yours, 

### /s/ Richard F . Stokes Richard F. Stokes Cc: Prothon otary Judicial Case Manager W. Michael Tupman,

Esq. Delaware Departm

ent of Justice 102 West Water Street, 3rd Floor Dover, DE 19904