Adams v. Governor of Del.
| Decision Date | 10 April 2019 |
| Docket Number | No. 18-1045,18-1045 |
| Parties | James R. ADAMS v. GOVERNOR OF DELAWARE, Appellant |
| Court | U.S. Court of Appeals — Third Circuit |
James R. Adams is a resident and member of the State Bar of Delaware. For some time, he has expressed a desire to be considered for a judicial position in that state. Following the announcement of several judicial vacancies, Adams considered applying but ultimately chose not to because the announcement required that the candidate be a Republican. Because Adams was neither a Republican nor a Democrat, he concluded that any application he submitted would be futile.
Adams brings this suit against the Governor of the State of Delaware to challenge the provision of the Delaware Constitution that effectively limits service on state courts to members of the Democratic and Republican parties. Adams claims that under the Supreme Court’s precedent in Elrod v. Burns1 and Branti v. Finkel ,2 a provision that limits a judicial candidate’s freedom to associate (or not to associate) with the political party of his or her choice is unconstitutional. The Governor argues that because judges are policymakers, there are no constitutional restraints on his hiring decisions and he should be free to choose candidates based on whether they belong to one of the two major political parties in Delaware—that is, whether they are Democrats or Republicans. We disagree and conclude that judges are not policymakers because whatever decisions judges make in any given case relates to the case under review and not to partisan political interests. We therefore conclude that the portions of Delaware’s constitution that limit Adams’s ability to apply for a judicial position while associating with the political party of his choice violate his First Amendment rights, and we will accordingly affirm in part and reverse in part the District Court’s grant of summary judgment in favor of Adams.
In 1897, Delaware was unique in its method of judicial selection—it was the only state in the country in which the governor appointed judges without legislative involvement.3 Judicial selection became an important and contentious topic during Delaware’s constitutional convention that year. Debating whether or not to move to a system of judicial election, delegates to the convention expressed their deep concern over the politicization of the judiciary. John Biggs, Sr., the president of the convention, explained his position that the appointment of judges would enable judges to remain free from political cronyism and partisanship:
The delegates ultimately recommended amending the Delaware Constitution to provide for gubernatorial nomination of judges, with confirmation by the Senate. They did not stop there, however, and debated a novel approach designed to make the judiciary "non-partisan, or if it be a better word, bipartisan"—a limitation on the number of judges from one party that could sit on the bench at any given time.5
Some delegates voiced their support for the provision, stating that minority representation on the judicial bench would "bring about a fuller and freer discussion of these matters that come before them and that they may make fair and impartial decisions on those questions."6 Some, however, expressed concern that the provision would bring about the opposite result. As delegate Andrew Johnson explained:
It is well known that [judges serving on Delaware’s] Judiciary at the present time have been appointed from one political party. That probably is not the best course to pursue, and I would be very glad to see the Governor of this State appoint well equipped men from another party. I would hail the day when it was done and would be glad to have it; but to vote to compel a Governor to appoint a man on account of his political affiliation, you are simply saying, "You are put upon the Bench to look out for our party interests whenever they come up." There is no other construction that you can put upon it. There can be no other, in my own mind, established, and that man is expected, whenever a political question arises, before that Court to take care of his own party rights or privileges.7
Ultimately, the provision prevailed, and Delaware’s constitution has included some form of a political balance requirement ever since. In 1951, as part of a wider series of structural changes to the Delaware judiciary, the provision was modified to exclude third party and unaffiliated voters from applying to serve as judges on the Supreme Court, Superior Court, and Chancery Court in Delaware. The system thus created is binary, excluding all candidates from consideration except those of the Republican or Democratic parties. The provision has been reaffirmed during the amendment process several times, including in 2005. Article IV, Section 3 of the Delaware Constitution now reads in relevant part:
Thus, the provision is made up of five sections—one addressing the Supreme Court, one addressing the Superior Court, one addressing combined membership of those courts and the Chancery Court, one addressing the Family Court, and, finally, one addressing the Court of Common Pleas. Significantly, there are also two separate, but connected, substantive components: the bare majority component (which limits the number of judicial positions that can be occupied by members of a single political party)9 and the major political party component (which mandates that the other judicial positions must be filled with members of the other major political party in Delaware). In practice, then, most courts must be filled with Democrats and Republicans exclusively.
Since 1978, Delaware governors have relied on judicial nominating commissions to identify qualified candidates for judicial appointments.10 Eleven of the twelve commission members are appointment by the Governor, and the twelfth is appointed by the president of the Delaware State Bar Association with the consent of the Governor.11 The commission provides a list of three recommended candidates to the Governor. The Governor is not free to ignore the commission’s recommendations; if he is not satisfied with the list, the commission generates another list of candidates.12 The nominating commission is politically balanced and comprised of both lawyers and non-lawyers.13
When a judicial position becomes available, the nominating commission gives public notice of the positions available, the salary, and the job requirements, including the party membership required for nomination.
For example, in August 2012, the commission gave notice of five open judicial positions, of which three were open only to candidates who were members of the Democratic Party and two were open to members of either political party.
James Adams, a member of the Delaware State Bar, is an Independent who desires a judicial position but has not applied for one due to his current political affiliation.
Throughout his career, Adams was a registered Democrat and participated with the Democratic Party. In early 2017, that changed, as Adams became an Independent voter for the first time.14 Adams...
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...a classic judicial function. See Johnson v. Moore, 958 F.2d 92, 93-94 (5th Cir. 1992); see also, e.g., Adams v. Governor of Del., 922 F.3d 166, 178-79 (3d Cir. 2019), rev'd on other grounds and vacated sub nom. Carney v. Adams, 141 S.Ct. 493 (2020). But the question here is conduct-specific......
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Daves v. Dall. Cnty.
...a classic judicial function. See Johnson v. Moore , 958 F.2d 92, 93–94 (5th Cir. 1992) ; see also, e.g., Adams v. Governor of Del. , 922 F.3d 166, 178–79 (3d Cir. 2019), rev'd on other grounds and vacated sub nom. Carney v. Adams , ––– U.S. ––––, 141 S. Ct. 493, 208 L.Ed.2d 305 (2020). But ......
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Carney v. Adams
...to the United States Court of Appeals for the Third Circuit. The appellate court affirmed in part and reversed in part. Adams v. Governor of Del. , 922 F.3d 166 (2019). Like the District Court, it held that Adams had standing to challenge the major party requirement, id., at 175, but unlike......
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Haddock v. Tarrant Cnty.
...in which the Third Circuit held that "a judicial officer, whether appointed or elected, is not a policymaker." See Adams v. Governor of Del. , 922 F.3d 166 (3d Cir. 2019), rev'd sub. nom. Carney v. Adams , ––– U.S. ––––, 141 S. Ct. 493, ––– L.Ed.2d –––– (2020) (reversing on standing grounds......