James R. Adams v. The Honrable John Carney (December 6, 2017)

       While perhaps not directly relating to Delaware fiduciary litigation, a magistrate at the U.S. District Court for the District of Delaware recently issued a decision that could have a significant impact on how Delaware judges are selected. And as that selection process includes both the Delaware Supreme Court and the Delaware Court of Chancery, that decision is worthy of a blog entry.

       Delaware’s Constitution includes an 1897 amendment that requires that the judgeships on each of Delaware’s courts be split as evenly as possible between Democrats and Republicans. Apparently, Delaware is the only state that has such a provision.

       The effect of the amendment is that members of the Delaware Bar who are registered as independents or as members of a third party cannot be considered for Delaware state court judgeships. In this case, Plaintiff James R. Adams is a Delaware lawyer and registered independent who seemingly maintains that he was interested in applying for two Delaware judgeship openings announced in February and March of 2017 but “was barred from applying to either position.” Mr. Adams then brought this action.

       First, the federal magistrate found that Mr. Adams had standing to bring his challenge and, in so doing, noted that as “an unaffiliated voter, [Mr. Adams] is barred from applying and any such application would be futile.” The State of Delaware maintained that even if Mr. Adams had standing, judges are policymakers and, thus, political affiliation requirements like the one at issue are not unconstitutional. The magistrate disagreed and held that the judiciary is not a policymaker position. The magistrate then distinguished cases from other jurisdictions allowing political affiliation to be considered as those are not the facts here because Delaware’s amendment represents “a complete bar on hiring individuals with minority political party beliefs.”

       The magistrate concluded that the constitutional provision at issue “violates the First Amendment by placing a restriction on governmental employment based on political affiliation in the Delaware judiciary.” Thus, the magistrate awarded summary judgment to Mr. Adams.

       If the State appeals, we will monitor the case and report on it here. Likewise, if the Delaware General Assembly takes action on the issue, we will follow up on that too.