Carney spends $376K defending state’s judicial balance law

DOVER — Gov. John Carney’s office has spent almost $376,000 in legal fees defending a judicial balance provision in federal court.

According to data received through a Freedom of Information Act request, the state made 10 payments totaling $375,684.87 to the Wilmington law firm of Young Conaway Stargatt & Taylor in 2018.

Those payments were carried out as part of a lawsuit involving a longstanding statute mandating Delaware’s five main courts be politically balanced.

The First State has required some type of judicial balance since 1897. The most recent version of the law, passed in 1961, compels the Supreme Court, Superior Court, Court of Chancery, Family Court and Court of Common Pleas to have an even or near-even number of Republicans and Democrats.

The five-member Supreme Court, for instance, must have three Republicans and two Democrats or vice versa.

That court currently has a Democratic majority, meaning if one of the two Republicans steps down, his or her successor must belong to the same party.

But that provision has come under attack, with a 2017 lawsuit challenging its constitutionality. Filed by James Adams, an attorney registered as an independent, the suit argues the law strips many “Delaware lawyers of opportunities for judicial appointments because of their political affiliation, in violation of the First Amendment to the Constitution of the United States.”

In response, lawyers for Gov. Carney wrote that because judges are policymakers, political affiliation can be fairly considered. They also claimed the law ensures the courts are fair and impartial.

But a federal court disagreed, with Mary Pat Thynge, chief magistrate judge for the District of Delaware, striking down the law in December 2017.

The judicial balance requirement “violates the First Amendment by placing a restriction on governmental employment based on political affiliation in the Delaware judiciary,” she wrote. “The narrow exception of political affiliation does not apply because the role of the judiciary is to interpret statutory intent and not to enact or amend it.”

Gov. Carney subsequently appealed the case, and the court placed a stay on the decision to allow the governor to continue appointing judges during the process.

Last month, a three-member panel for the 3rd U.S. Circuit Court of Appeals concluded “portions of Delaware’s constitution that limit Adams’s ability to apply for a judicial position while associating with the political party of his choice violate his First Amendment right.”

Gov. Carney’s office declined to say whether any further appeals are planned, citing policy not to comment on ongoing litigation.

The law is often cited by Delaware officials as one of the reasons the state’s judiciary enjoys a sterling reputation, especially in the corporate world.

The provision forestalls any attempt to pack the benches, a benefit that is especially valuable for the Republican Party, which is at a distinct disadvantage in Delaware.

Sen. Brian Pettyjohn, a Georgetown Republican, believes the law is worth defending even at a six-figure expense.

“The Delaware judiciary really is the top-notch judiciary in the United States, and one of the things that we’ve done very well here in Delaware is use the judiciary to get good decisions, to build Delaware’s business structure,” he said.

“When decisions come from Chancery Court up to the Supreme Court, making sure we have that balance out there gives companies, gives plaintiffs, the plaintiffs’ bar, the shareholders’ bar, kind of a bead on what we’re going to do as a state. I mean, we’re very predictable because we are balanced. If you get too far out of balance, then predictability will go away.”

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