Judicial balance law unconstitutional, judge rules


DOVER — In a case that could have important repercussions, a federal judge ruled Wednesday a Delaware law requiring the courts to be politically balanced is unconstitutional.

Judicial balance has been one of the hallmarks of the Delaware court system, being mandated by the constitution since 1897. However, that could soon be a thing of the past.

In an order for summary judgment, Chief Magistrate Judge Mary Pat Thynge of the U.S. District Court of the District of Delaware wrote current state law “violates the First Amendment by placing a restriction on governmental employment based on political affiliation in the Delaware judiciary.”

The decision stems from a lawsuit filed by James R. Adams, a New Castle County lawyer, against Gov. John Carney in February. The initial complaint filed by Mr. Adams states that he, as an unaffiliated voter, “has desired to apply for a judgeship but has been unable to do so in certain circumstances because he was not of the required political party.”

Although the Delaware Constitution does not state that only Democrats and Republicans can serve on the bench, it does limit judgeships to members of “one major political party” or “the other major political party.”

That, Judge Thynge determined, unfairly restricts the number of eligible applicants.

Because each court must be balanced, there are restrictions on who can apply even among Democrats and Republicans in some cases, such as when Supreme Court Justice Randy Holland announced his retirement earlier this year.

His departure would have left the court with three Democrats and one Republican, meaning his successor had to be a Republican to fulfill the political balance requirement.

Judge Thynge rejected the arguments from Delaware Department of Justice lawyers that Mr. Adams lacked standing to pursue the case and that judges are policymakers, which would make them exempt from First Amendment requirements about not considering political affiliation for hiring government employees.

“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,” she wrote. “Precedent relied upon by defendant is highly distinguishable and not applicable to the current situation. Further, the Delaware Judges’ Code of Judicial Conduct clearly indicates that political affiliation is not a valued trait of an effective judiciary.”

A spokesman for Gov. Carney, a Democrat, said the governor’s office will “continue to review the decision and its potential implications.” The judiciary declined to comment.

Delaware selects its judges through a multi-step process. The Judicial Nominating Commission screens applicants and then recommends one to the governor, who, if he or she approves, sends that name to the Senate. The Senate then votes on the nominee’s confirmation.

No other state requires its courts to be politically balanced.

The mandate means Delaware’s system is drastically different from the federal one, where a president can influence policy years after leaving office through previous appointees to the courts. On the nation’s top court, judges in poor health or old age will also try to stave off retirement until a president from the same party takes office.

In contrast, officials say Delaware’s balance law keeps the state’s courts from becoming too politically polarized.

Senate Minority Whip Greg Lavelle, R-Sharpley, said the law has served Delaware well, and he is worried the measure being struck down could lead to a governor only appointing members of his or her party to the bench — likely giving Democrats an advantage.

A seat on the Superior Court is currently open, with Republican Jane Brady not seeking re-appointment to the bench after her first term expired.


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