Adams v. Carney

Filing 61

MEMORANDUM OPINION Clarifying the Court's Opinion Issued December 6, 2017. Signed by Judge Mary Pat Thynge on 5/23/18. (cak) (Main Document 61 replaced on 5/23/2018) (cak).

Case 1:17-cv-00181-MPT Document 61 Filed 05/23/18 Page 1 of 18 PageID #: 524

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.
:

C. A. No. 17-181-MPT

MEMORANDUM OPINION CLARIFYING THE COURT’S OPINION ISSUED
DECEMBER 6, 2017
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/PROCEDURAL POSTURE
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,
0F

1

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

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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
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
1F

members of the “other major political party.” 3
2F

Under consideration in this clarification opinion are the parties’ cross-motions for
summary judgment, filed on September 29, 2017. 4 Plaintiff, in his motion, contends
3F

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
4F

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,”
5F

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
6F

grants plaintiff’s motion for summary judgment, and denies defendant’s motion for
summary judgment.

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.
2
3

2

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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:
7F

Appointments to the office of the State Judiciary shall at all times be subject to all
of the following limitations:
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

8

D.I. 30 at A-80-84.
3

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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
8F

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
9F

other two be from the “other major political party;” 11 second, at no time may the
1 0F

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
11 F

Common Pleas, one political party may never possess more than a one judge
majority. 13
12F

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
13F

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
14F

existing judicial vacancies. 16 The required party affiliation is listed within the notice, as
15F

“must be a member of the [Democratic or Republican] party,” when necessary because

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).
11 Id.
12 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.
9

10

4

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of Delaware’s constitutional limitations. 17 The Committee then provides a list of
16F

qualified candidates to defendant for selection. 18
17F

Plaintiff is a graduate of Ursinus College and Delaware Law School. 19 He is a
18F

resident of New Castle County and a member of the Delaware bar. 20 Plaintiff worked in
19F

multiple positions before retiring from the Department of Justice on December 31,
2015. 21 After retirement, he remained on emeritus status from the bar before returning
20F

to active status in 2017. 22 Until February 13, 2017, plaintiff was registered as affiliated
21F

with the Democratic party. 23 Plaintiff, during that time, applied for one position, Family
22 F

Court Commissioner. 24 Now plaintiff is registered as an independent voter. 25 On
23F

24F

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
25F

Nominating Commission also sent a Notice of Vacancy following the retirement of the

Id.
Id.
19 D.I. 10 at 1.
20 Id.
21 Id. at 1-2.
22 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.
17
18

5

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Honorable Randy Holland, which required a qualified Republican candidate for the
Delaware Supreme Court. 27 Plaintiff, as an unaffiliated voter, was barred from applying
26F

to either position. Plaintiff’s amended complaint was filed shortly thereafter on April 10,
2017, to which defendant responded on April 24, 2017. 28
27F

III.

STANDARD OF REVIEW
A.

Summary Judgment

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
the moving party is entitled to judgment as a matter of law. 29 A party is entitled to
28F

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
29F

This standard does not change merely because there are cross-motions for
summary judgment. 31 Cross-motions for summary judgment
30F

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
31F

D.I. 10 at 4.
See id.; D.I. 13.
29 Ford v. Unum Life Ins. Co. of Am., 465 F. Supp. 2d 324, 330 (D. Del. 2006).
30 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).
27
28

6

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Moreover, “[t]he filing of cross-motions for summary judgment does not require the court
to grant summary judgment for either party.” 33
32F

B.

Standing

“Standing implicates both constitutional requirements and prudential concerns.” 34
33F

For plaintiff to demonstrate “the irreducible constitutional minimum of standing” under
Article III, § 2 of the United States Constitution (“Article III 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. 35 Plaintiff must show
34F

he is likely to experience actual future injury. 36 In addition, plaintiff is not required to
35F

engage in futile gestures to establish Article III standing. 37
36F

Prudential standing requirements exist “to avoid deciding questions of broad
social import where no individual rights would be vindicated and to limit access to the
federal courts to those best suited to assert a particular claim.” 38 According to the
37F

United States Court of Appeals for the Third Circuit, prudential limits require that:
(1) a litigant assert his or her own legal interests rather than those
of third parties, (2) courts refrain from adjudicating abstract
questions of wide public significance which amount to generalized
grievances, and (3) a litigant demonstrate that [his or] her interests
are arguably within the zone of interests intended to be protected

Krups v. New Castle County, 732 F. Supp. 497, 505 (D. Del. 1990).
Common Cause of Pennsylvania v. Pennsylvania, 558 F.3d 249, 257 (3d Cir.
2009) (citation omitted).
35 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103 (1998) (internal
quotation marks and citations omitted).
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 Freeman v. Corzine, 629 F.3d 146, 154 (3d Cir. 2010) (citations and internal
quotation marks omitted).
33
34

7

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by the statute, rule or constitutional provision on which the claim is
based. 39 40
38F

39F

“Thus, the limits of prudential standing are used to ensure that those parties who can
best pursue a particular claim will gain access to the courts.” 41
40F

IV.

ANALYSIS
A.

Defendant’s Motion for Summary Judgment Based on Plaintiff’s Lack
of Standing for Failure to Show Injury in Fact.
1.

Article III standing

With respect to constitutional standing, there are effectively two different parts of
Article IV, § 3 of the Constitution of the State of Delaware: provisions one through
three, which contain “major political party” and “bare majority” requirements, and
provisions four and five, which only include a “bare majority” requirement. 42 Defendant
41F

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.” 43
42 F

Plaintiff does not have constitutional standing under provisions four and five. He
has not applied for a judicial position in any of the Family Courts or the Courts of
Common Pleas. 44 In addition, plaintiff’s applications for these positions would not have
43F

Oxford Assocs. v. Waste Sys. Auth. of E. Montgomery Cty., 271 F.3d 140,
-46 (3d Cir. 2001) (alteration and citations omitted); see also Valley Forge Christian
Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 475
(1982) (articulating a similar standard).
41 Mariana v. Fisher, 338 F.3d 189, 204 (3d Cir. 2003).
42 Del. Const. Art. IV, § 3.
43 D.I. 29 at 12, 15.
44 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.
39

40

8

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been futile, because there is no party requirement constitutionally attached to either
court. 45 The only constitutional restriction on these courts is that “not more than a
44F

majority of one Judge shall be of the same political party.” 46
45F

As for provisions one through three, which contain the “major political party”
requirement, defendant fails to demonstrate that plaintiff does not have the requisite
standing. Plaintiff alleges 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. 47 As an unaffiliated voter, he is barred from applying and any such
46F

application would be futile. 48 As a result plaintiff has demonstrated an actual, concrete,
47F

and particularized threat of present and future injury. 49
48F

Del. Const. Art. IV, § 3; see also D.I. 30 at A-110-16 (documenting vacancies
for judicial office in the Family Courts and Courts of Common Pleas in which political
affiliation is not a requirement). In effect, this “bare majority” requirement places no
limitations on unaffiliated voters and only affects judicial candidates of a major political
party when the bare majority of judicial offices on those courts is filled with individuals
affiliated with that major political party. In that case, only those members of that major
political party would be excluded from consideration for judicial office.
46 Del. Const. Art. IV, § 3 (the “bare majority” requirement).
47 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.”).
48 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”).
49 Valley Forge Christian Coll. v. Ams. United for the Separation of Church and
State, 454 U.S. 464, 474-75 (1982).
45

9

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2.

Prudential standing

Plaintiff has demonstrated constitutional standing as to the “major political party”
provisions of Article IV, § 3 of the Constitution of the State of Delaware. Defendant
argues that summary judgment is, nonetheless, appropriate, because plaintiff fails to
satisfy the second limit of prudential standing, specifically that the constitutionality of
Article IV, § 3 of the Delaware Constitution is an “abstract question[] of wide public
significance.” 50 Defendant challenges whether plaintiff actually intends to become a
49F

judge in the State of Delaware and whether judicial intervention is “necessary to protect
his rights[.]” 51
50F

Plaintiff responds by addressing each limit of prudential standing:
Adams easily satisfies prudential standing requirements. First, he
brought his suit to correct a wrong applicable to him as an
anticipated applicant for a judgeship, notwithstanding that the ruling
will also affect others similarly situated. Second, this is neither
abstract nor a mere generalized grievance. The injury is specific
(loss of job opportunity) and targeted (applicable to members of the
Delaware Bar seeking judicial appointment, such as Adams). Third,
Adams’ interests are within the “zone of interests” protected by the
First Amendment freedom of political association, as an
individual may not be refused government employment based on
his or her political affiliation. 52
51F

In addition, plaintiff argues that the requirements of prudential standing are relaxed in
First Amendment cases. 53 Plaintiff contends that the reason for this is that “‘[f]acial
52F

challenges to overly broad statutes are allowed not primarily for the benefit of the

D.I. 29 at 17.
Id. at 17-18.
52 D.I. 35 at 11.
53 Id. at 10 (citing Virginia v. American Booksellers Ass’n, 484 U.S. 383, 392-93
(1988)) (“Where a party raises a facial challenge to a law pursuant to the First
Amendment, general prudential standing requirements are relaxed.”).
50
51

10

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litigant, but for the benefit of society—to prevent the statute from chilling the First
Amendment rights of other parties not before the court.’” 54 In its reply brief, defendant
53F

does not address any of plaintiff’s arguments or the case law cited by plaintiff. 55 Instead,
54F

defendant repeats its argument and expands on its theory that “[p]laintiff is litigating
more of an academic interest[.]” 56
55F

The court addresses the three prudential limitations in order. First, although
defendant questions plaintiff’s motivations in bringing suit, these questions do not
overcome plaintiff’s unrebutted argument that the political affiliation requirements of
judicial offices in Delaware directly harm him as an unaffiliated voter. Second,
defendant argues that plaintiff asks the court “to decide abstract questions of wide
public significance[,]” 57 but this conclusory argument fails to consider that this specific
56F

question—whether political affiliation can be a requirement of government
employment—is an issue previously addressed by the United States Supreme Court on
numerous occasions. 58 59 Third, plaintiff argues, and defendant does not discuss, that
57F

58F

plaintiff’s rights to political affiliation are within the “zone of interests” protected by the
First Amendment. 60 Moreover, plaintiff’s argument, that the Supreme Court has
59F

54

Id. (quoting Sec'y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 958

(1984)).
D.I. 37 at 3-4.
Id.
57 D.I. 29 at 17.
58 E.g., Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990); Branti v. Finkel,
59 U.S. 507 (1980); Elrod v. Burns, 427 U.S. 347 (1976)
60 Compare D.I. 35 at 11, with D.I. 37 at 3-4. Plaintiff’s grievance about the
“major political party” affiliation requirements of Article IV, § 3, is substantially similar to
the First Amendment rights of members of major political parties, who are impacted by
the “bare majority” requirements, so that the rights of those individuals are within the
same zone of interests protected by the First Amendment.
55
56

11

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recognized that Article III standing is not a requirement for prudential standing in First
Amendment cases, 61 is unrebutted. 62 Rather, the prudential standing question is
60F

61F

“whether [a plaintiff] can be expected satisfactorily to frame the issues in the case.” 63
62F

In light of the unrebutted prudential standing arguments, under either standard
discussed by plaintiff, the court concludes that plaintiff can satisfactorily frame the
issues in this case. 64 Therefore, plaintiff has prudential standing to challenge, on First
63F

Amendment grounds, the entirety of Article IV, § 3 of the Constitution of the State of
Delaware.
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.63 Governmental employees can not be terminated or
asked to relinquish their “right to political association at the price of holding a job.” 65
64F

“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 Amendment.” 66 This right of
65F

Sec'y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 958 (1984).
Compare D.I. 35 at 10, with D.I. 37 at 3-4.
63 Sec'y of State of Md. v. Joseph H. Munson Co., 467 U.S. at 958.
64 In fact, as a retired attorney on a state pension and for whom filing suit is not
likely to affect his prospect of future earnings and employment (other than to limit his
aspirations to the bench), plaintiff, is in a far better position than other Delaware
attorneys to challenge these political affiliation requirements. See D.I. 30 at A-15-16.
63 Elrod v. Burns, 427 U.S. 347, 356 (1976) (plurality opinion).
65 Id. at 356-57.
66 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).
61
62

12

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political affiliation has been expanded to government employees regarding their
promotion, transfer, and hiring. 67
66F

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. 68 The United States Court of Appeals for the Third Circuit has found “a
67F

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.” 69 70
68F

69F

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.” 71
70F

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.” 72 In
71F

Branti v. Finkel, the United States Supreme Court held that the position of Assistant
Public Defender was not entitled to the “policymaker” exception. 73 It found that the
72F

factors to be considered in determining whether a position is a policymaking position are
whether the position is simply clerical, nondiscretionary or technical in nature, whether

Rutan v. Republican Party of Ill., 497 U.S. 62, 64, 75-80 (1990).
Elrod, 427 U.S. at 360, 367.
69 Peters v. Del. River Port Auth. of Pa. and N.J., 16 F.3d 1346, 1353 (3d Cir.
70 ) (internal citations omitted).
71 Branti, 445 U.S. at 518.
72 Id.
73 “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)).
67
68

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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.” 74 A difference in political affiliation is only a proper factor in making
73F

employee decisions if it is highly likely “to cause an official to be ineffective in carrying
out the duties and responsibilities of the office.” 75 Whether a position involves
74F

policymaking is a question of law. 76
75F

Defendant contends that the role of the judiciary falls within the policymaker
exception under the precedent of Elrod and Branti. 77 Defendant’s argument rests
76F

heavily upon the holdings by other circuit courts outside the Third Circuit, 78 and the
77F

United States Supreme Court’s holding in Gregory v. Ashcroft. 79 Plaintiff contends that
78F

the role of the judiciary is not a policymaking position and directs his argument upon
separation of powers, the role of the judiciary, and the Delaware Judges’ Code of
Judicial Conduct. 80
79F

Brown v. Trench, 787 F.2d 167, 169 (3d Cir. 1986).
Waskovich v. Morgano, 2 F.3d 1292, 1297 (3d Cir. 1993).
76 St. Louis v. Proprotnik, 485 U.S. 112, 126 (1988).
77 See D.I. 29 at 20.
78 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).
79 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).
80 D.I. 32 at 8-19.
74
75

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The judiciary, although a very important role, is not a policymaking position. A
judge does not provide “meaningful input into decision making concerning the nature
and scope of a major government program.” 81 82 To the contrary a judge’s role is “to
80F

81F

apply, not amend, the work of the People's representatives.” 83 The court may not speak
82F

on policymakers behalf, sit in on Congressional discussions, or participate in
policymaking meetings. 84 The role of the judiciary is not to “hypothesize independently”
83F

legislative decision and intent. 85 “Matters of practical judgment and empirical
84F

calculation are for Congress” and the judiciary has “no basis to question their detail
beyond the evident consistency and substantiality.” 86 Statutory interpretation, not
85 F

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. 87 Both
86F

Newman and Kurowski addressed situations which political affiliation could be
considered, but was not constitutionally mandated. 88 Neither case dealt with a
87F

constitutional provision requiring a political affiliation evaluation, nor a complete bar on

Peters v. Del. River Port Auth. of Pa. and N.J., 16 F.3d 1346, 1353 (3d Cir.
) (internal citations omitted).
83 Hayes v. Harvey, 874 F.3d 98, 111 (3d Cir. 2017) (citing Henson v. Consumer
USA Inc., 137 S. Ct. 1718, 1726 (2017)).
84 Brown, 787 F.2d at 169.
85 Matthew v. Lucas, 427 U.S. 495, 515 (1976).
86 Id. at 515-16.
87 D.I. 29 at 20.
88 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).
81

82

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hiring individuals with minority political party beliefs. In addition, the Court in Gregory
analyzed the issue of interpreting legislative intent of an exception as it applied to the
Age Discrimination in Employment Act for positions “on the policymaking level.” 89 The
88 F

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. 90 The Court
89F

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.” 91 Thus, the phrase “on the policymaking level” is not the equivalent of a
90F

“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.” 92 In particular, Canon Four of the Delaware Judges’ Code of Judicial
91F

Conduct specifically addresses that the judiciary must refrain from political activity. 93 A
92F

judge may not act as a “leader or hold any office in a political organization,” make

Gregory, 501 U.S. at 455-57.
Id. at 455-64.
91 Id. at 472.
92 Del. Judges’ Code Judicial Conduct Rule 2.4 (A)-(B).
93 See Del. Judges’ Code Judicial Conduct Canon 4.
89
90

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speeches for political organizations or candidates, or “engage in any other political
activity.” 94 The Delaware Judicial Code clearly pronounces that political affiliation
93 F

should not affect the position. 95
94F

Political affiliation is not important to the effective performance of a Delaware
judge’s duties. 96 A Delaware judge may not participate in political activities, hold any
95F

office in a political organization, or allow political affiliation to influence his judgment on
the bench. 97 Since political affiliation in Delaware cannot “cause an official to be
96F

ineffective in carrying out the duties and responsibilities of the office,” it does not meet
the standard for a “policymaking position.” 98
97F

V.

CONCLUSION
Article IV, § 3 of the Constitution of the State of Delaware violates the First

Amendment by placing political affiliation restrictions on governmental employment by
the Delaware judiciary. 99 The narrow political affiliation exception does not apply,
98 F

because the role of the judiciary is to interpret statutory intent and not to enact or

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”).
95 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.”).
96 Branti v. Finkel, 445 U.S. 507, 518 (1980).
97 Del. Judges’ Code Judicial Conduct Rule 2.4 (B); 4.1 (A)(1), (C).
98 Waskovich v. Morgano, 2 F.3d 1292, 1297 (3d Cir. 1993).
99 These restrictions include the “major political party” and “bare majority”
requirements discussed herein.
94

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amend it. 100 Precedent relied upon by defendant is highly distinguishable and not
99F

applicable to the current situation. 101 Further, the Delaware Judges’ Code of Judicial
100F

Conduct clearly indicates that political affiliation is not a valued trait of an effective
judiciary. 102
101 F

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: May 23, 2018

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

Hayes v. Harvey, 874 F.3d 98, 111 (3d Cir. 2017) (citing Henson v. Consumer
USA Inc., 137 S. Ct. 1718, 1726 (2017)).
101 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.
102 See Del. Judges’ Code Judicial Conduct Canon 4.
100

18