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Gov. John Carney will be allowed to appoint new state court judges while he appeals a ruling that scrapped Delaware’s party-balance requirement as unconstitutional, a federal magistrate judge said on Monday, despite criticizing the governor’s “new and ever-evolving” legal arguments in the case.

In a 12-page memorandum order, U.S. Chief Magistrate Judge Mary Pat Thynge granted Carney’s request to stay her Dec. 6 decision, which found on summary judgment that a 121-year-old provision of the Delaware Constitution violated the First Amendment by restricting government employment based on political affiliation.

The requirement affects Delaware’s Supreme Court and the Court of Chancery, which are central to interpreting corporate law in a state that is home to more than half of the Fortune 500 companies, and mandates that no more than three judges on each five-member court be registered with either of the two major parties.

There are currently two open judgeships on the Delaware courts, and the state budget for the upcoming fiscal year includes authorization to create two new Chancery Court positions.

Without a stay, Thynge said, Delaware would be unable to fill judicial vacancies for months, while the U.S. Court of Appeals for the Third Circuit weighs Carney’s appeal. Under Monday’s ruling, Carney will be able to use the current system to nominate judges, despite serious concerns regarding its constitutionality.

“The court agrees with Mr. Carney that it is of paramount importance that he have a mechanism in place to promptly fill any judicial vacancies,” Thynge said. “The court also agrees that it will cause irreparable harm to the people of the state of Delaware if Mr. Carney is unable to fill judicial vacancies that may arise in the time that it takes for the Third Circuit to provide clear direction to the court.”

“Such a mechanism currently exists in the provisions of the Constitution of the state of Delaware, even though the court has determined that these provisions violate the First Amendment of the United States Constitution.”

However, Thynge also took aim at Carney and his attorneys for repeatedly raising new arguments that they did not make on summary judgment and using the motion to stay as a “guise” to “take a third bite of the apple.”

In fact, Thynge said, Carney’s motion seemed to seize on the court’s reasoning for denying an earlier request for reconsideration, where he had challenged for the first time the standing of James R. Adams, the Delaware attorney who filed the lawsuit last year. And although Thynge said the Third Circuit could choose to address Carney’s “myriad new arguments” on appeal, she declined to do so herself.

“As if prompted by the court’s explanation for why it denied his first motion for reconsideration, with an appeal of that motion now pending, Mr. Carney argues to the court that he is likely to succeed on the merits, because the court made ‘several plain errors of law in [its] ruling,’” Thynge wrote.

The judge continued: “It also appears that Mr. Carney has: read the court’s memorandum opinion clarifying the court’s opinion issued Dec. 6, 2017, reviewed section II of Mr. Adams’ summary judgment answering brief in opposition, did some legal research, and  developed responses to rebut Mr. Adams’ summary judgment arguments.”

Carney’s attorney, Young Conaway Stargatt & Taylor partner David C. McBride, did not return a call Tuesday seeking comment on the ruling.

Monday’s decision resolved the remaining issues ahead of Carney’s appeal to the Third Circuit. Last week, Carney filed an amended notice of appeal indicating that he would challenge the original summary judgment ruling, as well as an other order entered last month.

Carney, who is responsible for nominating state court judges, has called Thynge’s ruling “unprecedented,” saying that the party-balance requirement ensures a fair and independent judiciary that attracts top talent to serve in its ranks.

Adams, a former lawyer for the Delaware Department of Justice, argues that the provision unfairly excludes independents and taints the judicial selection process with political bias. Adams is not a member of either major political party. His attorney, David L. Finger of Finger & Slanina, was not immediately available to comment.

Carney is also represented by Martin S. Lessner and Pilar G. Kraman of Young Conaway and Ryan Patrick Connell of the DOJ’s Civil Division.

The case, in the U.S. District Court for the District of Delaware, was captioned Adams v. Carney.