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Carney: Delaware partisan judiciary is unconstitutional

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Gov. John Carney partisan judiciary Delaware unconstitutional

Gov. John Carney has conceded in a long-running legal battle that Delaware’s requirement for political party membership for judges was unconstitutional. | DBT PHOTO BY JACOB OWENS

WILMINGTON – In a surprising revelation, a yearslong legal battle over Delaware’s Constitution-designated partisan judiciary, that once reached the U.S. Supreme Court, is over after Gov. John Carney conceded that the requirement was unconstitutional, according to court filings.

The case, Carney v. Adams, was closely watched by corporate America, as it impacts courts where litigation is heard for more than a million incorporated businesses, impacting shareholders, executives and more. The question was whether a state can dictate that judges be selected from major political parties and whether it can legally divide judgeships amid parties.

The plaintiff James Adams, a registered independent, sued because he is ineligible to serve on Delaware’s top courts – the state Supreme Court, Court of Chancery and Superior Court – simply because he is not a Democrat or a Republican.

Delaware has required that the state’s courts have bipartisan representation since 1897, known as the “bare majority principle,” with the majority party holding one more seat on the bench than the minority party in cases of an odd number of seats. In 1951, as part of a wider series of structural changes to the Delaware judiciary, the “major party principle” was added to require applicants for the top three courts to be members of the major and minority parties, therefore excluding third-party, independent, and unaffiliated voters.

The Adams case, which began in 2017, reached arguments before the Supreme Court in 2020, which ultimately ruled that Adams lacked the standing to sue because he hadn’t actually applied for the judgeships he said he sought, sidestepping the crucial argument to give the governor a victory.

Shortly afterward, however, Adams applied for a judgeship and was denied, setting in motion a new legal case on the same framework. The case filed in the U.S. District Court of Delaware was preparing to go to trial this spring when Adam’s legal counsel, David Finger of boutique law firm Finger & Slanina in Wilmington, received notice that Carney’s legal team was willing to negotiate a concession.

“They surprised us by making the suggestion and following through. Kudos to them for engaging and helping us get through the process,” he told Delaware Business Times on Monday.

The court’s order effectively eliminates the “major party principle” in the Delaware Constitution and would not require that the legislature amend the founding document – that would require a lengthy legislative process. The concession agreement does not affect the “bare majority principle” that splits participation on all state benches, including the lower Court of Common Pleas and Family Court, although the loss of the corresponding party requirements essentially makes it toothless. Adams will receive court and legal fees totaling nearly $28,000 to cover his litigation costs.

According to the concession, the governor agreed that the “major party principle” violated Adams’ First and Fourteenth Amendment rights. A request for comment to the governor’s office on the outcome of the case was not returned on Monday. Carney announced over the weekend that he had tested positive for COVID-19 on Friday and was feeling mild symptoms.

The end of the case opens Adams to the possibility of a judgeship, and he is actively interviewing for a Superior Court judgeship after a review of his application by the state Judicial Nominating Commission, according to Finger. He would still need to be nominated by Carney for approval by the State Senate to be seated.

“[James] is grateful that it’s finally over,” Finger said. “We’ll see what happens next.”

For the third-generation Delaware lawyer who has long fought First Amendment cases, Finger said the Adams case is among the one or two most consequential of his career, having tried it before the country’s highest court.

“For me it’s been nearly 30 years in the making. I remember as a young lawyer, my boss took me out to lunch – at the time, I was registered as an independent – and he said to me, ‘David, do you want to be a judge?’ I said, ‘Yes.’ He said, ‘Well, then you have to get off the fence,’” he recalled.

“I just instinctively knew that was wrong, or that was a First Amendment violation. I just didn’t know if any lawyer would be brave enough to challenge it. And so, when someone came along, I was pleased,” he added.

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