Delaware Supreme Court
Delaware Supreme Court ()

Delaware’s Judicial Nominating Commission has initiated the process to appoint a successor for retiring state Supreme Court Justice Jack B. Jacobs. The JNC began the search earlier than expected because Jacobs moved up his retirement date so Gov. Jack Markell can appoint a replacement without having to call a special session of the legislature, the governor’s chief legal counsel, Andrew Lippstone, has confirmed.

Although Jacobs had initially announced he would step down July 4, he has agreed to retire June 25. The June retirement will allow the General Assembly to hold a confirmation hearing before the end of its current legislative session June 30. If the governor submits his nominee to the General Assembly after June 30, he would be required to convene a special session for a confirmation hearing.

“To me, a special session in the summer is not ideal,” Lippstone told Delaware Law Weekly.

The JNC posted a call for applications April 23 on the judiciary’s website and emailed the notice to attorneys through the Delaware State Bar Association’s listserv. All applications must be submitted to JNC Chairman William B. Chandler III by noon May 21. Interviews are expected to occur roughly one week after the application deadline.

“The application deadline is May 21, which provides three weeks for candidates to apply,” Lippstone said. “That’s a slightly longer time period than we usually see. Roughly speaking, the interviews will take place the weeks of May 19 and May 26. Obviously we will work around the Memorial Day holiday.”

Under the current legislative schedule, the Joint Finance Committee will begin its budget markup session May 15. The General Assembly will return to session June 3. Markell is expected to conduct interviews with the candidates submitted to his office by the JNC during the two-week break, Lippstone said. The governor is expected to send his 10-day letter to the Senate by the first week in June.

The Delaware Constitution requires the governor to submit a “10-day letter” announcing his selection to the president of the Senate within 10 days of when Jacobs will step down from the bench. That means Markell would have to send the letter by June 15.

“With Jacobs’ retirement date effective June 25, that leaves the Senate with three legislative days to consider the governor’s nominee for Jacobs’ replacement,” Lippstone added. “If necessary, the Senate can hold a confirmation hearing on June 30.”

In order to accommodate the legislative schedule and avoid a special session, Jacobs agreed to move up his retirement date by about one week.

“Justice Jacobs did an incredibly gracious and considerate thing that allows the Senate to consider the governor’s nomination for a replacement without the need for a special session,” Lippstone said. “It was a thoughtful thing to do.”

Delaware legal sources have mentioned several names as possible candidates to replace Jacobs. The names most frequently cited by sources as potential candidates include former Superior Court judge and current Morris James partner Joseph R. Slights III, Superior Court President Judge James T. Vaughn Jr., Superior Court Judge Jan R. Jurden and David C. McBride, a partner at Young Conaway Stargatt & Taylor. The governor can choose a candidate from either party because Jacobs’ departure leaves the five-justice court with an equal balance of Republicans and Democrats.

Jacobs announced his retirement in a March 31 letter to Markell. He will step down roughly one year before his term is set to expire.

“No one can or should occupy these positions of trust for too long, however, and in my case, the time has now come to move on to the next phase of my life,” Jacobs said in the letter.

The justice spent 29 years on the bench, including 11 years on the Supreme Court and 18 on the Court of Chancery. During his 30 years on the bench, Jacobs authored multiple decisions that helped shape the direction of Delaware corporate law. In fact, when law professors were asked by DLW sibling publication Delaware Business Court Insider to name his most influential decision, each professor cited a different case.

Perhaps Jacobs’ most famous case was written as a Supreme Court justice when he affirmed the Chancery Court’s decision in In re Walt Disney Derivative Litigation. Walt Disney Co.’s shareholders had sued the company over its decision to pay a $140 million severance package to Michael Ovitz, who walked away after spending one year as the company’s president. Chandler held that Disney’s decision to award a large severance package was protected under the business judgment rule because it was necessary to attract top talent.

Jacobs’ 2006 opinion was notable because it reaffirmed that the business judgment rule will protect directors who act in good faith and that boards must document their decision-making process in order to demonstrate that their actions were made in the best interest of a company.

“In Disney, Jacobs protected the ability of companies’ boards to act in their best interest of the company, but also protected their ability to take risks to attract top talent by awarding significant compensation,” said John C. Coffee Jr., a professor at Columbia Law School, who teaches a class with Jacobs. 

Jeff Mordock can be contacted at 215-557-2485 or jmordock@alm.com. Follow him on Twitter @JeffMordockTLI.