DE governor says appointing only people affiliated with major political parties to courts is unconstitutional

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Democratic Gov. John Carney has acknowledged that a provision splitting positions on Delaware's highest courts between Republicans and Democrats is unconstitutional.

Under a proposed consent agreement filed in federal court Monday, Carney agreed that a "major-party" provision in Delaware’s constitution regarding appointments to the state’s three highest courts is unconstitutional.

The agreement, which is subject to court approval, brings an end to a long-running legal battle pitting the Carney administration against Wilmington lawyer James Adams, a former Democrat who is now an unaffiliated voter. Adams claimed that the provision violates his First and Fourteenth Amendment rights by barring him from being considered for a judgeship on the Superior Court, a position for which he has twice applied and been rejected.

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A federal judge ruled in September that Adams had legal standing to challenge the major-party provision and denied the governor’s motion to dismiss the lawsuit.

The "major political party" restriction, which barred members of minor political parties or people with no political affiliation from serving on the Supreme Court, Superior Court and Court of Chancery, was passed by the General Assembly in 1951.

As part of the consent agreement, Carney agreed that the provision is unconstitutional and unenforceable "to the extent it would preclude a person unaffiliated with a major political party from becoming a member of one of the foregoing courts."

Under a separate constitutional provision adopted in 1897, the three courts, along with the Family Court and the Court of Common Pleas, are also subject to a "bare majority" restriction. That provision says no more than a bare majority of judges on those courts can be affiliated with a single political party.

Delaware Gov. John Carney has acknowledged that the "major political party" restriction is unconstitutional.

Adams was not challenging the bare majority provision because, as the agreement notes, without a corresponding "major political party" restriction, a "bare majority" requirement does not place any limits on the number of judgeships for those who are not members of a major political party.

"Governor Carney maintains that the state of Delaware has a vital and longstanding interest in avoiding partisan domination of its judiciary, and that the "bare majority" requirements ... are narrowly tailored to serve that interest," the agreement states.

David Finger, an attorney representing Adams, said that language was included at Carney's insistence.

"You will need to ask him why. My guess is that he needed some political cover, to appear to the relevant constituencies like he won something, although in fact he did not," Finger said in an email.

"We sought to strike down the major political party provision, and now it has been deemed unconstitutional and unenforceable. We are pleased," Finger said in a telephone interview.

As part of the agreement, Adams was awarded costs and attorney’s fees of $27,389.

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A spokeswoman for Carney said in an email that maintaining the "bare majority" provision, which was not at issue, "will help ensure that Delaware’s courts continue to be recognized as the preeminent court system in the country."

Finger said Adams is in the process of interviewing for a Superior Court judgeship following an initial review of his application by the state Judicial Nominating Commission.

The legal battle dates to a lawsuit filed by Adams in 2017. A federal appeals court upheld a 2018 district judge’s determination in that case that the major-party provision violates the First Amendment by restricting government employment based on political affiliation.

That decision was overturned by the U.S. Supreme Court in 2020. The justices ruled that Adams did not have standing to sue because he had never applied for a judgeship or demonstrated that he was "able and ready" to apply for one. The Supreme Court instead suggested that the lawsuit involved "an abstract, generalized grievance" instead of an actual desire to become a judge. The justices also noted that before filing that lawsuit, Adams had switched his party affiliation to "unaffiliated" and his bar membership status from "emeritus" to "active."

On the same day the Supreme Court ruled, Adams filed a new lawsuit. Unlike his first lawsuit, the new complaint included details of his preparation and readiness to apply for a judgeship. It also noted that he had applied unsuccessfully several times since 2017 for spots on the Superior Court or the Court of Common Pleas.

Lawyers for Carney nevertheless maintained that Adams still lacked standing, had not been injured and was not sincerely interested in becoming a judge. They also argued that he was prohibited from establishing standing in the new lawsuit case because the Supreme Court had determined that he did not have standing in the earlier case.

The judge overseeing the case rejected that argument last year, noting that the current lawsuit included new facts that were not present in 2017.