Delaware Attorney Revives Suit Over Political Balance Rule


The Delaware Supreme Court is made of up, from left, Justice Gary F. Traynor, Justice Karen L. Valihura, Chief Justice Collins J. Seitz Jr., Justice James T. Vaughn Jr. and Justice Tamika R. Montgomery-Reeves. (Delaware Courts)
By 
Randall Chase
The Associated Press

Dover, Del. – An attorney whose lawsuit challenging a mandated political balance among judges on Delaware’s most powerful courts was tossed by the U.S. Supreme Court on procedural grounds has revived his argument in a new lawsuit.

The Supreme Court ruled last week that James R. Adams didn’t have legal standing to sue Gov. John Carney because Adams had not shown that he was “able and ready” to apply to be a judge when he filed his lawsuit in February 2017.

Adams is a former Democrat who later registered as unaffiliated. He said he had wanted to apply for judgeships but to do would have been futile because he didn’t meet the political affiliation requirements. Among other things, those requirements split judgeships on certain courts between Republicans and Democrats, excluding members of other political parties or those with no political affiliation.

In his new complaint, Adams notes that he applied for three judgeships after filing his lawsuit but had been told each time that his name would not be forwarded to Carney for further consideration.

“Adams has standing to bring this challenge as he is a member of the Delaware bar who at various times has applied for a judgeship but is ineligible because he is not a member of a political party,” the complaint reads.

The lawsuit was filed Dec. 10, the same day that the Supreme Court issued its ruling.

“Under the rules, standing has to be established as of the date a complaint was filed,” Adams’ attorney, David Finger, explained Monday. “If you gain standing later, it doesn’t count.”

Finger said proof of Adams’ applications for the three judgeships should settle the issue of standing, although he expects another legal fight. Carney’s office declined comment on the new lawsuit Monday.

In his initial lawsuit, Adams argued only that he had “desired” to apply for a judgeship but had been unable to do so because he was not of the required political party. In rejecting Adams’ arguments, the Supreme Court noted that between 2012 and 2016, when he was a practicing lawyer and a registered Democrat, Delaware’s five courts had 14 openings for which Adams would have been eligible. Adams said in a deposition that his failure to apply for available judgeships when he was eligible reflected his lack of interest in being a judge at that time.

The new lawsuit notes that Adams applied for a Superior Court judgeship and twice sought a spot on the Court of Common Pleas after filing his first lawsuit. In each case, he received a form letter from the chair of the state Judicial Nominating Commission stating that he could not be a prospective nominee.

Adams has challenged a provision in Delaware’s constitution that limits judges affiliated with any one political party to no more than a “bare majority” on Delaware’s Superior, Chancery and Supreme courts. The other seats are reserved for judges affiliated with the “other major” political party.

A federal appeals court panel ruled that the provision requiring the governor to split judicial nominations between the two major political parties violated Adams’ First Amendment and freedom of association rights. The panel also held that the “bare majority” provision could not be separated from the “major party” provision, even though the latter does not apply to Delaware’s Family Court and Court of Common Pleas.

Justice Sonia Sotomayor agreed in a separate concurrence last week that Adams did not have standing to bring his initial lawsuit, but she noted that the constitutional questions involved would likely be raised again.

Sotomayor also indicated that there is a difference between “bare majority” requirements, which she said are not uncommon in many public bodies, and “major party” requirements like Delaware’s that could be far more problematic from a constitutional perspective.

“These differences may require distinct constitutional analyses,” she wrote, noting that federal courts may certify a question to Delaware’s Supreme Court regarding whether one of the requirements could remain if the other were found to be unconstitutional.

“Certification may be especially warranted in a case such as this, where invalidating a state constitutional provision would affect the structure of one of the state’s three major branches of government,” Sotomayor wrote.

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