The U.S. Court of Appeals for the Third Circuit on Wednesday stood by an earlier opinion striking down as unconstitutional provisions of the Delaware Constitution that mandate political-party balance on key state courts.
A three-judge Third Circuit panel denied a request by Delaware Gov. John Carney to have the case reheard by the court’s full membership, instead opting to address a narrow issue his attorneys had raised on appeal.
The one-page order kept intact the panel’s key finding in February that the political balancing requirements, long a staple of the state’s judicial nomination process, unconstitutionally prevented registered independents and third-party members from serving as judges.
That opinion, the first of its kind from the Third Circuit, held that judges do not qualify as policymakers to fit a narrow exception to the First Amendment, which allows party affiliation to be taken into account when considering applicants for certain governmental positions.
The ruling applied to Delaware’s Supreme and Chancery courts, which both play an outsize role in developing American corporate law, as well as the Superior Court, whose memberships are required by law to be composed entirely of judges from the state’s two dominant political parties. It did not apply to the Family Court or Court of Common Pleas.
Carney, who is responsible for nominating judges to Delaware state courts, petitioned the court for en banc review Feb. 18, arguing that the panel’s ruling put the Third Circuit at odds with other jurisdictions and could have “profound implications” well beyond Delaware.
According to Wednesday’s order, at least two Third Circuit judges voted for rehearing en banc, but the request was ultimately decided by the three judges originally assigned to the case. The panel—which included Judges Julio Fuentes, Theodore McKee and Luis Restrepo—issued only a revised opinion that addressed arguments Carney had made about whether the two main components of the party-balance requirement could be separated.
Carney had argued in his petition that the Third Circuit’s ruling only nixed the so-called “major party” provision of the Delaware Constitution, which mandates that all members of the Supreme, Chancery and Superior courts belong to one of the two major political parties. It did not, however, declare unconstitutional another provision stating that no more than a “bare majority” of each of the three courts could be occupied by members of a single party.
David McBride, who represented Carney, argued therefore that only the unconstitutional part of the law should be stricken, while the bare majority provision be allowed to stand.
In a revised opinion, however, the panel held that both aspects were too intertwined for the bare majority requirement to stand by itself.
“Operating alone, the bare majority component could be interpreted to allow a governor to appoint a liberal member of the Green Party to a Supreme Court seat when there are already three liberal Democrats on that bench,” Fuentes wrote. “Only with the (unconstitutional) major political party component does the constitutional provision fulfill its purpose of preventing single party dominance while ensuring bipartisan representation.”
McBride, a partner with Young Conaway Stargatt & Taylor, did not comment on Wednesday’s ruling, and a spokesman for Carney did not respond to a call requesting comment on the case or any plans to potentially appeal the ruling to the U.S. Supreme Court.
David Finger, who represented plaintiff James Adams, said the issue was correctly decided.
“Of course, we’re happy that the Third Circuit reaffirmed its earlier ruling,” said Finger, a partner with Finger & Slanina.