Eminent domain cases are tried by a panel of three jurors, called “commissioners.” 129 A list from which the commissioners for a specific case are drawn is maintained by the Prothonotary and consists of persons suggested by individual judges. The process for selecting commissioners begins with the court entering an order designating from the list eleven proposed commissioners who live in the county in which the subject real property is located and setting the date for striking the proposed commissioners.130 Thereafter, the parties meet on the set date and, starting with the   plaintiff, alternately strike out names of the proposed commissioners at each party’s discretion until eight of the names are stricken. If one of the parties refuses to strike names, then the court or the Prothonotary or Deputy Prothonotary, if designated by the court, strikes names on behalf of the refusing party. After eight names are stricken, the remaining three are named the commissioners in the case, and the person last stricken becomes an alternate commissioner.131 If any of the commissioners are excused prior to trial, the alternate commissioner replaces the excused commissioner, and the previously stricken individuals may then be called, in the reverse order in which they were stricken, as alternates.132 If one of the three commissioners becomes unable to continue to serve during the trial, the alternate commissioner is substituted, and if another commissioner becomes unable to continue to serve, the remaining two have the power to make the factual determination of just compensation.133

There is no provision for voir dire in eminent domain cases. This leaves the parties and counsel on their own to obtain information about jurors. However, if counsel or a party becomes aware of a disqualifying relationship, it is their duty to disclose it to opposing counsel.134 This may create a problem for counsel who are apt to be acquainted with a number of the commissioners on the list. In a standard civil case, voir dire provides an immediate way to determine whether the relationship is disqualifying.135 To have the court make such a determination in an eminent domain case would involve a special meeting among the judge, counsel and the commissioners. To avoid potential problems, any case of doubt should be resolved in favor of disclosure.

129. 10 Del. C. § 6108(b),(c).

130. 10 Del. C. § 6108(b); Super. Ct. Civ. R. 110.

131. 10 Del. C. § 6108(b); Super. Ct. Civ. R. 110(b).

132. See Wilmington v. Parcel of Land Seibert Assoc., C.A. No. 89C-OC-171, slip op. at 5, Poppiti, J. (Del. Super. Jan. 8, 1992).

133. 10 Del. C. § 6108(r).

134. Wilmington v. Parcel of Land Seibert Assoc., C.A. No. 89C-OC-l71, slip op. at 15-16, Poppiti, J. (Del. Super. Jan. 8, 1992). See § 6:7 for a discussion of what constitutes a disqualifying bias.

135. See § 6:7.

© 2010  David L. Finger