Judge rules part of Delaware's constitution unconstitutional

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DOVER, Del. (AP) — A provision in Delaware's constitution requiring a political balance among state court judges is unconstitutional, a federal judge ruled Wednesday.

The ruling came in the case of James Adams, a lawyer who sued Democratic Gov. John Carney over a constitutional provision that requires Delaware's governor to split judicial nominations between the two major political parties.

Magistrate Judge Mary Pat Thynge said the provision violates the First Amendment of the U.S. Constitution by restricting government employment based on political affiliation.

"Political affiliation is not important to the effective performance of a Delaware judge's duties," Thynge wrote. "A Delaware judge may not participate in political activities, hold any office in a political organization, or allow political affiliation to influence his judgment on the bench."

Thynge added that a narrow exception allowing political affiliation to be considered in filling policymaking positions does not apply to judgeships.

"Statutory interpretation, not statutory creation, is the responsibility of the judiciary and therefore, the position of judge is not a policymaking position," she noted.

A spokesman for Carney said the governor's office was reviewing the decision and its potential implications.

David Finger, an attorney who represented Adams, praised the ruling.

"From now on, Delaware governors will be able to select the best and brightest as judges, without being hamstrung by the requirement of having to choose someone from a particular political party," Finger said.

Attorneys for the state argued that the political balance requirement, which dates to 1897, is aimed at reducing the influence of political patronage in selecting judges. They also argued that Adams had not shown any actual and immediate threat of injury because of the provision, and that his complaint instead was based on "abstract, generalized grievances."

Finger said Adams has already applied for a Superior Court vacancy resulting from the retirement of Jane Brady, a Republican. Questionnaires from interested applicants were due Monday, two days before Wednesday's ruling.

According to a notice posted by the state Judicial Nominating Commission, the appointee to replace Brady must be a citizen of Delaware and "learned in the law."

"In accordance with Article IV, Section 3 of the Delaware Constitution and in the governor's discretion, the governor intends to appoint a member of the Republican Party," the notice adds.

"The governor doesn't have the discretion to keep the practice in place," Finger noted Wednesday.

Adams, a former Democrat who is now registered as unaffiliated, has said he has wanted to apply for judgeships in the past, but that it would have been futile to do so because he did not meet the political affiliation requirements to fill those spots. According to Thynge's ruling, as an unaffiliated voter, Adams was barred from applying for recent vacancies on Superior Court and on Delaware's Supreme Court because the retiring judges were Republicans.

As currently written, Delaware's constitution requires that three of the five justices of the Supreme Court must be of one major political party, and the other two must be of the other major political party. The constitution also requires that when there is an even number of judges on a particular court, no more than half can be of the same political party. If the number of judgeships is an odd number, then no more than a "bare majority" can be of the same major political party.

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Randall Chase


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