The Honorable Frank B. Calio 
Commissioner 
Department of Elections 
32 W. Loockerman Street, M 101 
Dover, DE 19904 

Re: Creation of Nominating Districts for School Board Elections

Dear Commissioner Calio: 

You have asked a series of questions on the interpretation of 14 Del.C. §1066A. Your questions are as follows: 

1. If the approval process for the nominating districts drawn in accordance with §1066A goes to or beyond the filing deadline for the 2002 School Board elections, can the existing nominating districts' boundaries be used? 

2. What does "insofar as possible" mean in the context of contiguous territory? 

3. May the Board of Elections for New Castle County and/or the State Board of Education approve boundaries for nominating districts that are either whole or in part different from those proposed by the Commissioner of Elections? 

4. May the Commissioner of Elections revise the boundaries, the designation of the nominating districts and the order of elections prior to approval by the Board of Elections for New Castle County? to correct an error? in response to public recommendation? for other reasons? 

Before we address your questions, we provide a short background on 14 Del.C. §1066A, which is the statute whose interpretation is at issue. 

BACKGROUND 

Prior to 1966, Delaware law authorized the State Board of Education to draw the nominating district boundaries for school board elections for the four New Castle County school districts. 14 Del.C. §1028. In 1996, the General Assembly revised the law relating to the creation of nominating districts. It rewrote the law to remove the power to draw nominating district boundaries from the State Board of Education and to vest it in the Commissioner of Elections. 14 Del.C. §1066A. The law requires that each school district be divided into seven nominating districts or representative districts. The law provides that: 

Each representative district shall, insofar as is possible: (i) be formed of contiguous territory; (ii) be nearly equal in population; (iii) be bounded by major roads, streams or other natural boundaries; and (iv) not be created so as to unduly favor any person. 

14 Del.C. §1066A(b). 

The law further provides that the nominating district boundaries drawn by the State Election Commissioner are "subject to the approval of the County Board of Election and the State Board of Education." Id. 

On January 24, 2002, the Delaware Senate passed Senate Resolution No. 13. The resolution urges the school boards for the four New Castle County school districts to conduct their elections on May 14, 2002, which is the latest date permitted under the law. 14 Del.C. §1072. The filing deadline for nominations for the election of school board members is sixty days before the day of the election. 14 Del.C. §1075. Therefore, if the May 2002 elections are conducted on May 14, the filing deadline for nominations is March 15, 2002. 

With this background, we answer your questions as follows. 

1. If the approval process for the nominating districts drawn in accordance with §1066A goes to or beyond the filing deadline for the 2002 School Board elections, can the existing nominating districts' boundaries be used? 

The answer to this question depends on the interpretation of Section 4 of the Act that amended §1066A. This section states that "[t]he provisions of Section 3 of this Act [relating to terms of seated members] shall become effective on the date of enactment provided, however, that the current nominating districts and Delaware Code provisions shall be used for elections until the election to be held in May, 2002." (Emphasis added). 70 Del. Laws ch. 491. The specific legal issue raised by your query is whether the word "until" as used in §1066A is inclusive or exclusive. If the use is inclusive, the current nominating districts may be used in the May 2002 elections. If the use is exclusive, the current nominating districts may not be used in the May 2002 elections. 

While no Delaware court has interpreted the meaning of the word "until," courts in other states have ruled that its definition is ambiguous and its meaning depends upon the context in which the word is used. BA Commercial Corp. v. Hynutek, Tex. App., 705 S.W. 2d 713 (1986); E.M. Boerke v. Williams, Wis. Supr., 137 N.W. 2d 489 (1965); Heinsch v. Kirby, Minn. Supr., 26 N.W. 2d 363 (1947); Bantuelle v. Bantuelle, Tex. App., 195 S.W. 2d 686 (1946); London Clothes v. Maryland Cas. Co., Mass. Supr., 63 N.E. 2d 577(1945). Where a statute is reasonably susceptible of different meanings, the statute is ambiguous. Coastal Barge Corp. v. Coastal Zone Industrial Control Board, Del. Supr., 492 A.2d 1242, 1246 (1985). Where a statute is ambiguous, recognized principles of statutory construction require that we analyze the legislative history to determine the intent of the General Assembly in using the words "until the election to be held in May, 2002." Id.; Sach v. Kent General Hospital, Del. Supr., 518 A.2d 695, 697 (1986). 

We have examined the legislative history of §1066A. Although House Bill 431 of the 138th General Assembly, which was subsequently codified as §1066A, originated in the House, the bill was replaced in its entirety by Senate Amendment 1 to House Bill 431 and then approved by both Houses of the General Assembly. The synopsis to Senate Amendment 1 reads "[t]his amendment provides that elections to the School Boards of the Brandywine School District, the Christina School District, the Colonial School District and the Red Clay Consolidated School District shall be conducted in newly reapportioned nominating districts beginning in May 2002." (Emphasis added). This language evidences a clear legislative intent that the new boundaries be used in the May 2002 school board elections. The use of the word "until" in section 4 of House Bill 431 is, therefore, exclusive, and so we conclude that the current nominating districts may not be used in the May 2002 elections. 

2. What does "insofar as possible" mean in the context of contiguous territory? 

Section 1066A requires that the nominating districts meet each of the criteria set forth above "insofar as is possible." Therefore, if the Commissioner of Elections can create one or more set of nominating districts that meets each of the criteria, he must do so. He may only draw boundaries that are not formed of contiguous territory if he is unable to create any set of boundaries that meet each of the four criteria. You have told us that the set of districts created on or before January 1, 2002 does indeed meet each of the criteria. 

3. May the Board of Elections for New Castle County and/or the State Board of Education approve boundaries for nominating districts that are either whole or in part different from those proposed by the Commissioner of Elections? 

Fourteen Del.C. Section 1066A defines the respective responsibilities of the Commissioner of Elections and the Boards of Education and Elections for New Castle County. The Commissioner of Elections is responsible for drawing the boundaries of the nominating districts based on specific statutory standards. The Boards are entrusted by the General Assembly with reviewing the boundaries proposed by the Commissioner and approving or disapproving the boundaries. The issue raised by your question concerns the scope of the Boards' approval. 

The statute lists certain specific standards for the creation of the boundaries of the nominating districts. The General Assembly contemplated that the Boards' review would entail a careful study to assure compliance with the standards. To conclude that there are different standards to be used by the Boards would raise the question of an unconstitutional delegation of power from the General Assembly to the Boards of Election and Education. Atlantis I Condominium Association v. Bryson, Del.Supr., 403 A.2d 711, 713 (1979); Darling Apartment Co. v. Springer, Del. Ch., 15 A.2d 670, 673 (1940). In view of the obligation to construe a statute as constitutional, Atlantis I at 714, we conclude that the Boards' responsibility is to review compliance with the statutory standards. The review by the Boards during the approval process is focused on the question whether the proposed boundaries meet the legal criteria set forth in §1066A. The Boards may not deny approval simply because the Commissioner could have drawn alternate boundaries that would have met the statutory criteria. Nor may the Boards approve boundaries different from those submitted by the Commissioner. However, if either Board concludes that the boundaries submitted by the Commissioner do not meet the statutory criteria, it is obligated to refuse approval. 

4. May the Commissioner of Elections revise the boundaries, the designation of the nominating districts and the order of elections prior to approval by the Board of Elections for New Castle County? to correct an error? in response to public recommendation? for other reasons? 

The answer to this question is yes. The Commissioner of Elections may certainly seek the advice and opinions of the Boards as he develops the boundaries to be submitted to the Boards for approval. There is no language in §1006A that expressly or impliedly prohibits such a process. Indeed, Senate Resolution 13 contemplates exactly such an interactive process. However, as noted above, once the Commissioner of Elections submits his final set of boundaries to the Boards for approval, the legal authority of the Boards is limited to the approval or the refusal to approve on the ground that the boundaries do not meet the statutory criteria. 

Please do not hesitate to contact us if you need further assistance with these issues. 

Very truly yours, 

A. Ann Woolfolk 
Deputy Attorney General 

AAW/sam 

APPROVED: 

Malcolm S. Cobin 
State Solicitor 

cc: The Honorable M. Jane Brady, Attorney General