A magistrate judge is considering whether to stay a ruling to strike down a provision of the Delaware Constitution requiring party balance on key state courts until a federal appeals court can decide the issue.
The requirement affects the state Supreme Court and Court of Chancery, which are central to interpreting corporate law in a state that is home to more than half of the Fortune 500. The provision mandates that no more than three persons on each of five-member court be registered with either of the two major parties.
Attorneys for retired Delaware lawyer James R. Adams said Tuesday that Gov. John Carney’s request to leave the 120-year-old-practice in place for the time being would allow the state to continue enforcing an unconstitutional statute that restricts government employment based on party affiliation. Adams is not registered with either major party.
“This injury is suffered not merely by Adams, but by all who seek appointment to a judgeship,” Adams’ attorney, David L. Finger, wrote in a seven-page brief.
Carney, however, has called the ruling from U.S. Chief Magistrate Judge Mary Pat Thynge ”unprecedented” and said it is likely to be overturned by the U.S. Court of Appeals for the Third Circuit.
Thynge has authorized expedited briefing on the stay motion and could weigh in as early as next week.
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.
Carney, who is responsible for nominating state judges, has vowed to appeal Thynge’s Dec. 6 ruling that the party-balance requirement does not meet a narrow exception to the First Amendment, which allows party affiliation to be taken into account when considering applicants for policymaking positions.
In the meantime, he has asked Thynge for an order keeping Delaware’s status quo in place, citing “broad implications not just for Delaware, but for numerous other states, and even the president of the United States and United States Senate, who nominate and consent to appointment of judges.”
“The potential ramifications of this court’s decision could be widespread, creating a cloud of uncertainty over the judicial nomination process nationwide,” his attorney, Young Conaway Stargatt & Taylor partner David C. McBride, wrote in a court filing last week.
Adams’ attorney denied that the case raised an issue of first impression for the appeals court.
“This case simply involved the application of settled Third Circuit law to this particular fact pattern,” Finger, a partner with Finger & Slanina, said in an interview. “There’s nothing unique about it.
Reached for comment on Wednesday, McBride referred to briefs filed with the court. Carney is expected to file a reply brief on June 18.
Supporters of the party-balance requirement said it safeguards a fair, independent and impartial judiciary that attracts top talent to serve in its ranks. But Adams and others have argued that it improperly boxes out judicial applicants who choose not to affiliate with any major party, and can create the impression that the state’s judiciary is tinged with political bias.
There are currently two open judgeships on the Delaware state courts, and the General Assembly is expected to authorize the creation of two new Chancery Court positions this month.
Carney is also represented by Martin S. Lessner and Pilar G. Kraman of Young Conaway and Christian D. Wright and Ryan Patrick Connell of the Delaware Department of Justice’s Civil Division.
The case is captioned Adams v. Carney.