How I set myself up to be driven out of Delaware ….[#1]

I’ve been trying to write about this for a while and always tend to stop.  Is it important to others?   I don’t really know.  And I surely should have known better than to try what I tried.

But somehow it seems important to write about Delaware as it really is. 

Spending most of my time in Minnesota the last few years has given me, I think, a better sense of proportion.  It’s helped me to notice things previously taken for granted.  

Consider, for example, that most states are divided up into towns or townships.  This is the first level of government most people encounter, and it’s likely to be small and informal enough that people can influence it, or at least be heard.  Delaware is not this way.  Unless you live in a city or town, the first level of government is the county, which is likely to be controlled by developers and almost beyond the influence of ordinary residents.   (In New Castle County, one may encounter “civic associations” representing neighborhoods, and “umbrella” groups, representing clusters of neighborhoods, but these have no official standing and in any even are generally controlled by the county.)

At the state level, Delaware has no real provisions for initiative (people-initiated legislation), referendum (votes on issues as opposed to candidates), and recall (kicking officeholders out of before their terms are up).  Add to this that Delaware may be the only state in which the legislature can amend the constitution without a popular vote.

So it is likely that Delawareans have less opportunity to participate meaningfully in government than in most other states.  A “ Company State,” as Ralph Nader called it in 1973.

Other toxic aspects of government, such as control of the legislature by big money lobbyists, are probably similar to what one finds in any US state capital.  But even here we have a special problem–Delaware earns its living, so to speak, as a safe harbor for business misconduct, competing with the likes of the Cayman Islands, etc.  Every year Delaware spawns thousands of artificial “citizens” (corporations, limited partnerships, etc) but accepts no responsibility for their subsequent conduct.  It is by intent that these artificial citizens have far more rights than human citizens. “The proliferation of these kinds of shell corporations out of places like Delaware is contributing significantly to the increase in wealth inequality where wealthy individuals and multinationals can exponentially increase their wealth by hiding it in these low tax or no tax jurisdictions,” says Clark Gascoigne, Interim Director at the Financial Accountability and Corporate Transparency (FACT) Coalition. “At the same time we see regular citizens in the U.S. and the rest of the world dealing with stagnant, or even declining wages while still having to shoulder more and more of the tax burden.” If an employer in Ohio wants to move its production to Mexico, and cheat its workers of earned pensions and medical benefits, it can declare bankruptcy in Delaware, where a (federal) bankruptcy judge will probably be happy to screw over the workers and customers are requested, while authorizing huge golden parachutes for managers and investors.  (Efforts to require companies to file for bankruptcy where they operate, so workers and creditors would have a better chance, have met with raving opposition by the likes of Biden and Carper.)

Still, thing have shifted a bit.  The US Chamber of Commerce used to proclaim every year that Delaware’s courts were it’s favorite.  Basically, the criteria was how impossible it was to sue businesses successfully.  But in 2017 The Evil Chamber ranked South Dakota first, Minnesota 4th, and Delaware 11th.  Does this mean Delaware’s courts are actually improving?   Or that others are getting worse?

I once heard the Chief Justice of Delaware give a speech.  He claimed repeatedly that Delaware’s courts are tools for “economic development.”  When he was done, the whole audience stood up and clapped.  No one threw up.  But note that there is a very different attitude towards servicing corporations and growing the income of lawyers, by building up the Court of Chancery and the Supreme Court, and providing justice to ordinary citizens. 

In Minnesota and most other states, if you go to court over a traffic ticket or whatever, you go to a District Court; a “court of record” with a professional judge.  In Delaware you are likely to appear before a “Justice of the Peace” or Magistrate, who may or may not be a lawyer.  Where no record of what was said is kept, and where abuses may be common.  (You may or may not have the option of  transferring your case to a real court.)  Defenders of this antique system tend to claim that Delaware “can’t afford” real courts for human citizens.

More comments on counties.  Most states are divided into them.  The US has more than 3000.  Minnesota has 87.  Texas has 354.  Delaware has 3.  Forms of county government vary, though a board of commissioners or a county council is typical.  Delaware’s three counties have three distinct forms:  Sussex County is run by a Council, which seems to be the top authority.  Kent County is run by a Levy Court,  which has both legislative and administrative duties.  New Castle County has an elected  County Executive–kind of a dictator in practice–and a County Council that serves mainly to generate scandal.  But note that both Chris Coons and Joe Biden were launched directly into the US Senate from the New Castle County Council.  (From what I’ve seen, Kent County seems the best governed.)

In most places counties have lots of responsibilities.  They have roads to maintain, health services to provide, laws to enforce, schools, jails to operate, wetlands to protect, and so on. 

In Delaware, there is not a foot of county road.  The state is responsible.  Public health programs, to the extent there are any, are run by the state.  There are no county jails (thankfully)  There are no county courts.  Only one of the three counties does law enforcement.  Schools are the responsibility of others. 

What Delaware’s counties do is make “land use” decisions.  Meaning they approve development projects, which generally don’t need state consent.  So they don’t have to consider the costs of what they approve, because they don’t have to build and maintain the roads, schools, other infrastructure.  It’s this disconnect between authority and responsibility that leads to bad decisions.

Two small states, Connecticut and Rhode Island, have had the sense to abolish their counties.

So it should not be surprising that Delaware ranked 48th (F grade) in a 2015 survey of public integrity.

A 2017 ranking put Delaware 4th from the bottom.

Upcoming:  What all this can mean to an individual resident.

Alan Muller

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