John Carney Gov. John C. Carney Jr. Credit: Wikimedia Commons

A federal magistrate judge has rejected Delaware Gov. John Carney’s motion for reconsideration of a ruling to strike down the Delaware Constitution’s requirement that appointments to key courts maintain their political balance.

U.S. Chief Magistrate Judge Mary Pat Thynge of the District of Delaware in a 12-page memorandum order Wednesday faulted Carney’s motion for raising arguments that he had not detailed in earlier briefing.

Carney’s challenge to the court’s grant of prudential standing to plaintiff James R. Adams was made too late, Thynge said. Adams, a former attorney with the Delaware Department of Justice had successfully argued that the 120-year-old requirement violated the First Amendment by restricting government employment based on party affiliation.

Thynge did not revisit the merits of the case but further explained her stance on prudential standing.

She said Carney’s basic argument was that Adams lacked standing because he was asking the court to rule on an abstract question that amounted to a general grievance not particularized to him. Thynge said that Carney’s legal team substantially did not address Adams’ assertion of standing, devoting less than a page to the subject in their opening brief.

“From the record, it is apparent that defendant is presently making an argument that it did not make in its briefing on summary judgment,” Thynge wrote.

She continued: “Defendant presently seeks reconsideration and an opportunity to make arguments that he did not make in the briefing. This is beyond the scope of the remedy requested or allowed.”

A spokesman for the Carney administration did not respond Friday to a request for comment.

Adams, who is registered as an independent voter according to court documents, sued in February 2017, saying he had been prevented from applying for judicial openings because of the mandate—codified in Article IV, Section 3 of the state constitution—that seats on the judicial bench be split between Republicans and Democrats.

Proponents of the provision—codified in Article IV, Section 3 of the state constitution—have said it safeguards a fair, independent and impartial judiciary that attracts top talent to serve in its ranks. But Adams and others have argue that it improperly boxes out persons who choose not to affiliate with any major party, and can create the impression the state’s judiciary is tinged with political bias.

Carney, who is responsible for nominating judges, argued in court papers that the requirement met a narrow exception that allows party affiliation to be taken into account when considering applicants for policymaking positions.

Thynge, however, held in December that the judiciary is not included under the policymaking exception because judges are tasked with interpreting the law, not creating it.

“The constitution of the state of Delaware violates the First Amendment by placing a restriction on governmental employment based on political affiliation in the Delaware judiciary,” Thynge wrote. “The narrow exception of political affiliation does not apply because the role of the judiciary is to interpret statutory intent and not to enact or amend it.”

Carney has since appealed that decision.

Adams, who is represented by Wilmington plaintiffs’ attorney David L. Finger, has since moved for Carney to cover his fees and costs in the case. And in February, he asked Thynge to hold Carney in contempt for allegedly ignoring the ruling with a posting for a Superior Court judgeship in Sussex County, which Adams said indicated the governor’s “preference” to nominate a Democrat to fill the vacancy.

On Wednesday, Thynge said a hearing on contempt was not yet appropriate, given the need for clarification, and the fees request would have to wait until after the appeals court could weigh in. Those motions can be renewed at a later date, she said.

The case is expected to go up on appeal to the U.S. Court of Appeals for the Third Circuit.

Finger said Friday that Carney would be barred from raising his prudential standing argument before the Third Circuit, and he and his client were “optimistic” Thynge’s decision would be upheld on appeal.

“I don’t think there was anything that was new in the judge’s ruling,” he said. “Now that she decided the motion, the appeal can move forward.”

A briefing schedule could be announced as soon as next week.

Carney is represented by David C. McBride, Martin S. Lessner and Pilar G. Kraman of Young Conaway Stargatt & Taylor and Christian D. Wright and Ryan Patrick Connell of the DOJ’s Civil Division.

The case is captioned Adams v. Carney.