Adams v. Carney

Filing 40

MEMORANDUM OPINION granting plaintiff's motion for summary judgment 31 and denying defendant's motion for summary judgment 28 . Signed by Judge Mary Pat Thynge on 12/6/17. (cak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JAMES R. ADAMS,
Plaintiff,
v.
THE HON. JOHN CARNEY
Governor of the State of Delaware,
Defendant.

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C. A. No. 17-181-MPT

MEMORANDUM OPINION
David L. Finger, Esq., Finger & Slanina, LLC, One Commerce Center, 1201 North
Orange Street, 7th Floor, Wilmington, DE 19801.
Attorney for Plaintiff James R. Adams.
Christian D. Wright, Department of Justice Civil Division, 820 North French Street, 8th
Floor, Wilmington, DE 19801.
Attorney for Defendant the Honorable John Carney, Governor of the State of Delaware.
Ryan Patrick Connell, Department of Justice State of Delaware, Carvel Office Building,
820 North French Street, 8th Floor, Wilmington, DE 19801.
Attorney for Defendant the Honorable John Carney, Governor of the State of Delaware.
I.

INTRODUCTION
Plaintiff, James R. Adams, filed this Declaratory Judgment and Injunctive Relief

action under 42 U.S.C. § 1983, in relation to Article IV, § 3 of the Constitution of the
State of Delaware, against the Governor of the State of Delaware, John Carney on
February 21, 2017.1 Plaintiff seeks review of the constitutionality of the provision,
commonly referred to as the “Political Balance Requirement,” which prohibits any
political party to comprise more than a “bare majority” of the seats in the Supreme Court
1

D.I. 1; see also D.I. 10 (amended compliant filed on March 10, 2017).

or Superior Court, or in the Supreme Court, Superior Court, and Court of Chancery
combined.2 The provision also requires that the remaining seats be comprised of
members of the “other major political party.”3
Presently before the court are the parties’ cross-motions for summary judgment,
filed on September 29, 2017.4 Plaintiff, in his motion, contends Article IV, § 3 of the
Constitution of the State of Delaware’s “Political Balance Requirement” restricts
governmental employment based on political affiliation, which violates the First
Amendment of the Constitution of the United States.5 Defendant claims that plaintiff
failed to establish standing under Article III, § 2 of the Constitution of the United States,6
and/or contends the position of judge is a “policymaking position,” which falls under the
well established exception to the restriction of governmental employment based on
political affiliation.7 For the reasons stated herein, the court grants plaintiff’s motion for
summary judgment, and denies defendant’s motion for summary judgment.
II.

BACKGROUND
Article IV, § 3 of the Constitution of the State of Delaware was amended to its

present language in 1897 to provide the requirements and limitations associated with
judicial appointment.8 The pertinent section reads:
Appointments to the office of the State Judiciary shall at all times be subject to all
of the following limitations:
Del. Const. Art. IV, § 3.
Id.
4
See D.I. 28; D.I. 31.
5
D.I. 32 at 2.
6
U.S. const. Art. III, § 2.
7
D.I. 29 at 3.
8
D.I. 30 at A-80-84.
2
3

2

First, three of the five Justices of the Supreme Court in office at the same
time, shall be of one major political party, and two of said Justices shall be
of the other major political party.
Second, at any time when the total number of Judges of the Superior
Court shall be an even number not more than one-half of the members of
all such offices shall be of the same political party; and at any time when
the number of such offices shall be an odd number, then not more than a
bare majority of the members of all such offices shall be of the same major
political party, the remaining members of such offices shall be of the other
major political party.
Third, at any time when the total number of the offices of the Justices of
the Supreme Court, the Judges of the Superior Court, the Chancellor and
all the Vice-Chancellors shall be an even number, not more than one-half
of the members of all such offices shall be of the same major political
party; and at any time when the total number of such offices shall be an
odd number, then not more than a bare majority of the members of all
such offices shall be of the same major political party; the remaining
members of the Courts above enumerated shall be of the other major
political party.
Fourth, at any time when the total number of Judges of the Family Court
shall be an even number, not more than one-half of the Judges shall be of
the same political party; and at any time when the total number of Judges
shall be an odd number, then not more than a majority of one Judge shall
be of the same political party.
Fifth, at any time when the total number of Judges of the Court of
Common Pleas shall be an even number, not more than one-half of the
Judges shall be of the same political party; and at any time when the total
number of Judges shall be an odd number, then not more than a majority
of one Judge shall be of the same political party.9
This provision effectively creates a few limitations: first, it demands three of the
Delaware Supreme Court Justices be from “one major political party,”10 and the other

Del. Const. Art. IV, § 3.
Major political party is defined as “any political party which, as of December 31,
of the year immediately preceding any general election year, has registered in the name
of that party voters equal to at least five percent of the total number of voters registered
in the State.” 15 Del. C. § 101(15).
9

10

3

two be from the “other major political party;”11 second, at no time may the Delaware
Superior Court or the Delaware Supreme Court, Superior Court, and Court of Chancery
combined, have more than a “bare majority” be comprised of the same “major political
party,” and the remainder positions must be of the “other major political party;”12 and
third, in the Family Courts and the Courts of Common Pleas, one political party may
never possess more than a one judge majority.13
Defendant, as Governor of the State of Delaware, is responsible for appointing
judges in compliance with Article IV, § 3 of the Constitution of the State of Delaware.14
In 1977, a Judicial Nominating Commission was created by executive order to identify
highly qualified candidates.15 To fulfill this role, the Commission provides notice for
existing judicial vacancies.16 The required party affiliation is listed within the notice, as
“must be a member of the [Democratic or Republican] party,” when necessary because
of Delaware’s constitutional limitations.17 The Committee then provides a list of qualified
candidates to defendant for selection.18
Plaintiff is a graduate of Ursinus College and Delaware Law School.19 He is a
resident of New Castle County and a member of the Delaware bar.20 Plaintiff worked in
multiple positions before retiring from the Department of Justice on December 31,

11

Id.
Del. Const. Art. IV, § 3.
13
Id.
14
Del. Const. Art. IV, § 3.
15
D.I. 32 at 3.
16
D.I. 30 at A-107-17.
17
Id.
18
Id.
19
D.I. 10 at 1.
20
Id.
12

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2015.21 After retirement, he remained on emeritus status from the bar before returning
to active status in 2017.22 Until February 13, 2017, plaintiff was registered as affiliated
with the Democratic party.23 Plaintiff, during that time, applied for one position, Family
Court Commissioner.24 Now plaintiff is registered as an independent voter.25 On
February 14, 2017, the Judicial Nominating Commission released a Notice of Vacancy
calling for a Republican candidate in the Superior Court of Kent County, following the
retirement of the Honorable Robert Young.26 On March 20, 2017, the Judicial
Nominating Commission also sent a Notice of Vacancy following the retirement of the
Honorable Randy Holland, which required a qualified Republican candidate for the
Delaware Supreme Court.27 Plaintiff, as an unaffiliated voter, was barred from applying
to either position. Plaintiff’s amended complaint was filed shortly thereafter on April 10,
2017, to which defendant responded on April 24, 2017.28
III.

STANDARD OF REVIEW
A motion for summary judgment should be granted where the court finds no

genuine issues of material fact from its examination of the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, and that

Id. at 1-2.
Id. at 4.
23
D.I. 30 at A-55.
24
Plaintiff was not selected for the Commissioner position, but such positions are
not subjected to the “Political Balancing Requirement” under the Delaware Constitution.
D.I. 37 at 1.
25
D.I. 30 at A-55.
26
D.I. 1 at Ex. A.
27
D.I. 10 at 4.
28
See id.; D.I. 13.
21
22

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the moving party is entitled to judgment as a matter of law.29 A party is entitled to
summary judgment where “the record, taken as a whole, could not lead a rational trier of
fact to find for the non-moving party or where the facts are not disputed and there is no
genuine issue for trial.”30
This standard does not change merely because there are cross-motions for
summary judgment.31 Cross-motions for summary judgment
are no more than a claim by each side that it alone is entitled to summary
judgment, and the making of such inherently contradictory claims does not
constitute an agreement that if one is rejected the other is necessarily
justified or that the losing party waives judicial consideration and
determination whether genuine issues of material fact exist.32
Moreover, “[t]he filing of cross-motions for summary judgment does not require the court
to grant summary judgment for either party.”33
IV.

ANALYSIS
A.

Defendant’s Motion for Summary Judgment Based on Plaintiff’s Lack
of Standing for Failure to Show Injury in Fact.

For plaintiff to demonstrate standing, there must be a showing of: (1) an injury in
fact, (2) with a traceable connection to the challenged action, and (3) the requested
relief will redress the alleged injury.34 Three principals that must be considered in a
standing analysis are that a party must litigate his own rights and not those of a thirdparty, the issue must not be an abstract or generalized grievance, and the harm must

Ford v. Unum Life Ins. Co. of Am., 465 F. Supp. 2d 324, 330 (D. Del. 2006).
Delande v. ING Emp. Benefits, 112 F. App’x 199, 200 (3d Cir. 2004).
31
Appleman’s v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987).
32
Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968).
33
Krups v. New Castle County, 732 F. Supp. 497, 505 (D. Del. 1990).
34
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103 (1998).
29
30

6

be in the zone of interest protected by the statute or constitutional provision at issue.35
Plaintiff must show he is likely to experience actual future injury.36 In addition, plaintiff is
not required to engage in futile gestures to establish standing.37
In the standing analysis, there are two parts of Article IV, § 3 of the Constitution
of the State of Delaware involved: provisions one through three, which contain the term
“other political party,” and provisions four and five, which only include a bare minimum
requirement.38 Defendant alleges that plaintiff has no standing because he fails to
demonstrate an “actual and immediate threat of future injury” and/or a “concrete and
particularized threat of future injury.”39
Plaintiff does not have standing under provisions four and five. He has not
applied for a judicial position in any of Family Courts or the Courts of Common Pleas.40
In addition, plaintiff’s applications for these positions would not have been futile,
because there is no party requirement constitutionally attached to either court.41 The
only constitutional restriction on these courts is that “not more than a majority of one
Judge shall be of the same political party.”42
As for provisions one through three, which contain the “other political party”

35

Valley Forge Christian Coll. v. Ams. United for the Separation of Church and
State, 454 U.S. 464, 474-75 (1982).
36
Voneida v. Pennsylvania, 508 F. App’x 152, 156 (3d Cir. 2012).
37
Sammon v. N.J. Bd. of Med. Exam’rs, 66 F.3d 639 (3d Cir. 1995).
38
Del. Const. Art. IV, § 3.
39
D.I. 29 at 12, 15.
40
Although plaintiff applied for Family Court Commissioner in 2009 and was not
selected, he does not contend this occurred due to the reasons asserted in his
compliant. D.I. 30 at A-08-09.
41
See Del. Const. Art. IV, § 3; D.I. 30 at A-110-16.
42
Del. Const. Art. IV, § 3.
7

requirement, defendant fails to demonstrate that plaintiff does not have the requisite
standing. Plaintiff alleged that if he were permitted to apply as an independent, he
would apply for a position on either the Delaware Superior Courts or the Delaware
Supreme Court.43 As an unaffiliated voter, he is barred from applying and any such
application would be futile.44 As a result, an actual, concrete, and particularized threat
of present and future injury to plaintiff is demonstrated.45
B.

Whether a Judge is a Policymaking Position, That is an Exception to
the Right of Political Affiliation in Employment Decisions.

The United States Supreme Court has established that political belief and
association are at the core of First Amendment protections.46 Governmental employees
can not be terminated or asked to relinquish their “right to political association at the
price of holding a job.”47 “Patronage . . . to the extent that it compels or restrains belief
and association, is inimical to the process which undergirds our system of government
and is at war with the deeper traditions of democracy embodied in the First

D.I. 10 at 4; see Nat’l Ass’n for the Advancement of Multijurisdiction Practice,
(NAAMJP) v. Simandle, 658 Fed. Appx. 127, 133 (3d Cir. 2016) (The plaintiffs “alleged
that they would seek admission to the District Court bar if the rules were changed to
permit their admission. Since denial of their application was assured, the rules inflict the
alleged injury regardless of whether [the plaintiffs] actually undertook the futile
application.”).
44
Del. Const. Art. IV, § 3 (provision one, concerning the Delaware Supreme
Court, requires “two of said Justices shall be of the other major political party,” and
provision two, regarding the Delaware Superior Courts, requires “the remaining
members of such offices shall be of the other major political party”).
45
Valley Forge Christian Coll. v. Ams. United for the Separation of Church and
State, 454 U.S. 464, 474-75 (1982).
46
Elrod v. Burns, 427 U.S. 347, 356 (1976) (plurality opinion).
47
Id. at 356-57.
43

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Amendment.”48 This right of political affiliation has been expanded to government
employees regarding their promotion, transfer, and hiring.49
The “prohibition on encroachment of First Amendment protections is not
absolute,” and an exception is recognized, which limits patronage dismissals to
“policymaking positions,” and requires an analysis of the nature of the employee’s
responsibilities.50 The United States Court of Appeals for the Third Circuit has found “a
question relevant in all cases is whether the employee has meaningful input into
decision making concerning the nature and scope of a major government program.”51 A
“policymaking position” is a narrow exception applied when “the hiring authority can
demonstrate that party affiliation is an appropriate requirement for the effective
performance of the public office involved.”52
The Court has recognized that “it is not always easy to determine whether a
position is one in which political affiliation is a legitimate factor to be considered.”53 In
Branti v. Finkel, the United States Supreme Court held that the position of Assistant
Public Defender was not entitled to the “policymaker” exception.54 It found that the
factors to be considered in determining whether a position is a policymaking position are
Id. at 357; see also Branti v. Finkel, 445 U.S. 507, 512-18 (1980) (the majority
of the court reaffirming the opinion established in Elrod).
49
Rutan v. Republican Party of Ill., 497 U.S. 62, 64, 75-80 (1990).
50
Elrod, 427 U.S. at 360, 367.
51
Peters v. Del. River Port Auth. of Pa. and N.J., 16 F.3d 1346, 1353 (3d Cir.
1994) (internal citations omitted).
52
Branti, 445 U.S. at 518.
53
Id.
54
“His principal responsibility is to serve the undivided interests of his client.
Indeed, an indispensable element of the effective performance of his responsibilities is
the ability to act independently of the government and to oppose it in adversary
litigation.” Id. at 519 (quoting Ferri v. Ackerman, 444 U.S. 193, 204 (1979)).
48

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whether the position is simply clerical, nondiscretionary or technical in nature, whether
the employee “participates in Council discussions, or other meetings, whether the
employee prepares budgets, or has authority to hire or fire employees, the salary of the
employee, and the employee's power to control others and to speak in the name of
policymakers.”55 A difference in political affiliation is only a proper factor in making
employee decisions if it is highly likely “to cause an official to be ineffective in carrying
out the duties and responsibilities of the office.”56 Whether a position involves policymaking is a question of law.57
Defendant contends that the role of the judiciary falls within the policymaker
exception under the precedent of Elrod and Branti.58 Defendant’s argument rests
heavily upon the holdings by other circuit courts outside the Third Circuit,59 and the
United States Supreme Court’s holding in Gregory v. Ashcroft.60 Plaintiff contends that
the role of the judiciary is not a policymaking position and rests his argument upon a
separation of powers, the role of the judiciary, and the Delaware Judges’ Code of
Judicial Conduct.61
The judiciary, although a very important role, is not a policymaking position. A
Brown v. Trench, 787 F.2d 167, 169 (3d Cir. 1986).
Waskovich v. Morgano, 2 F.3d 1292, 1297 (3d Cir. 1993).
57
St. Louis v. Proprotnik, 485 U.S. 112, 126 (1988).
58
See D.I. 29 at 20.
59
See Newman v. Voinovich, 986 F.2d 159 (6th Cir. 1993) (Judges are
“policymakers,” whose political affiliations may be considered during the appointment
process); Kurowski v. Krajewski, 848 F.2d 767 (7th Cir. 1988) (Governor was entitled to
consider judge’s political affiliation in making a temporary appointment).
60
See D.I. 29 at 20; Gregory v. Ashcroft, 501 U.S. 452, 466 (1991) (finding that
legislative intent was not clear as to whether the language “appointee on the
policymaking level,” included the judiciary).
61
D.I. 32 at 8-19.
55
56

10

judge does not provide “meaningful input into decision making concerning the nature
and scope of a major government program.”62 To the contrary a judge’s role is “to
apply, not amend, the work of the People's representatives.”63 The court may not speak
on policymakers behalf, sit in on Congressional discussions, or participate in
policymaking meetings.64 The role of the judiciary is not to “hypothesize independently”
legislative decision and intent.65 “Matters of practical judgment and empirical calculation
are for Congress” and the judiciary has “no basis to question their detail beyond the
evident consistency and substantiality.”66 Statutory interpretation, not statutory creation,
is the responsibility of the judiciary and therefore, the position of judge is not a
policymaking position.
Cases from other circuits, on which defendant relies, are distinguishable.67 Both
Newman and Kurowski addressed situations which political affiliation could be
considered, but was not constitutionally mandated.68 Neither case dealt with a
constitutional provision requiring a political affiliation evaluation, nor a complete bar on
hiring individuals with minority political party beliefs. In addition, the Court in Gregory
addressed the issue of interpreting legislative intent of an exception as it applied to the
Peters v. Del. River Port Auth. of Pa. and N.J., 16 F.3d 1346, 1353 (3d Cir.
1994) (internal citations omitted).
63
Hayes v. Harvey, 874 F.3d 98, 111 (3d Cir. 2017) (citing Henson v. Consumer
USA Inc., 137 S. Ct. 1718, 1726 (2017)).
64
Brown, 787 F.2d at 169.
65
Matthew v. Lucas, 427 U.S. 495, 515 (1976).
66
Id. at 515-16.
67
D.I. 29 at 20.
68
See Newman, 986 F.2d at 159-60 (in the appointment of interim judges,
Governor considered candidates based on recommendations from Republican
Chairpersons); Kurowski, 848 F.2d at 769 (political affiliation could be considered by
court when assigning judges pro tempore).
62

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Age Discrimination in Employment Act for positions “on the policymaking level.”69 The
Court addressed whether Congress intended the judiciary be included in the exception,
and whether a Missouri law mandating that members of the judiciary retire at the age
seventy was permissible under the Age Discrimination in Employment Act.70 The Court
specifically did not decide the issue of whether the judiciary was a policymaker, and
based its holding on the rationale that “people . . . have a legitimate, indeed compelling,
interest in maintaining a judiciary fully capable of performing the demanding tasks that
judges must perform. It is an unfortunate fact of life that physical and mental capacity
sometimes diminish with age. The people may therefore wish to replace some older
judges.”71 Thus, the phrase “on the policymaking level” is not the equivalent of a
“policymaking” position, on which employment decisions based on political affiliation
may be made.
Delaware requirements are clear, that “[a] judge should be unswayed by partisan
interest” and “family, social, or other relationships” should not influence their conduct or
judgment.”72 In particular, Canon Four of the Delaware Judges’ Code of Judicial
Conduct specifically addresses that the judiciary must refrain from political activity.73 A
judge may not act as a “leader or hold any office in a political organization,” make
speeches for political organizations or candidates, or “engage in any other political

Gregory, 501 U.S. at 455-57.
Id. at 455-64.
71
Id. at 472.
72
Del. Judges’ Code Judicial Conduct Rule 2.4 (A)-(B).
73
See Del. Judges’ Code Judicial Conduct Canon 4.
69
70

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activity.”74 The Delaware Judicial Code clearly pronounces that political affiliation
should not affect the position.75
Political affiliation is not important to the effective performance of a Delaware
judge’s duties.76 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.77 Since political affiliation in Delaware cannot “cause an official to be
ineffective in carrying out the duties and responsibilities of the office,” it does not meet
the standard for a “policymaking position.”78
Article IV, § 3 of the Constitution of the State of Delaware violates the First
Amendment by placing a restriction on governmental employment based on political
affiliation in the Delaware judiciary. 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.79 Precedent relied upon by defendant is highly distinguishable and not
applicable to the current situation.80 Further, the Delaware Judges’ Code of Judicial
Conduct clearly indicates that political affiliation is not a valued trait of an effective
Id. at Rule 4.1 (A), (C) (with an exception for activities “on behalf of measures
to improve the law, the legal system or the administration of justice”).
75
See Leatherbury v. Greenspun, 939 A.2d 1284, 1292 (Del. 2007) (“Judges
must take the law as they find it, and their personal predilections as to what the law
should be have no place in efforts to override properly stated legislative will.”); Ewing v.
Beck, 1986 WL 5143, at *2 (Del. Ch. 1986) (“It is a settled principle that courts will not
engage in ‘judicial legislation’ where the statute in question is clear and unambiguous.”).
76
Branti v. Finkel, 445 U.S. 507, 518 (1980).
77
Del. Judges’ Code Judicial Conduct Rule 2.4 (B); 4.1 (A)(1), (C).
78
Waskovich v. Morgano, 2 F.3d 1292, 1297 (3d Cir. 1993).
79
Hayes v. Harvey, 874 F.3d 98, 111 (3d Cir. 2017) (citing Henson v. Consumer
USA Inc., 137 S. Ct. 1718, 1726 (2017)).
80
See Newman v. Voinovich, 986 F.2d 159, 159-60 (6th Cir. 1993); Kurowski v.
Krajewski, 848 F.2d 767, 769 (7th Cir. 1988); Gregory, 501 U.S. at 455-64.
74

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judiciary.81
As a result of the findings herein, plaintiff’s motion for summary judgment (D.I.
31) is granted, and defendant’s motion for summary judgment (D.I. 28) is denied. An
appropriate Order shall follow.

Dated: December 6, 2017

81

/s/ Mary Pat Thynge
Chief U.S. Magistrate Judge

See Del. Judges’ Code Judicial Conduct Canon 4.
14