Delaware Gov. to Seek SCOTUS Review of Decision Tossing Party-Balance Mandate on State Courts
Attorneys for the governor asked Supreme Court Associate Justice Samuel A. Alito Jr. on Thursday for a 60-day extension to petition for cert in the case and said he had hired new lawyers to argue the appeal.
July 12, 2019 at 03:27 PM
4 minute read
The original version of this story was published on Delaware Law Weekly
Delaware Gov. John Carney is preparing to appeal to the U.S. Supreme Court a federal appeals court ruling earlier this year that struck down provisions of the Delaware Constitution mandating political party balance on key state courts, according to papers filed with the high court.
Attorneys for the governor asked Supreme Court Associate Justice Samuel A. Alito Jr. on Thursday for a 60-day extension to petition for cert in the case and said he had hired new lawyers to argue the appeal.
According to the filing, former Delaware Supreme Court Justice Randy J. Holland and Michael W. McConnell, who both serve as senior of counsel in Wilson Sonsini Goodrich & Rosati's Wilmington office, will serve as Carney's new lead counsel. Neither had been involved in the underlying litigation and would need time to get up to speed on the case, the filing said.
“We respectfully request the additional time to familiarize ourselves with the relevant materials, including the record and arguments presented in the United States Court of Appeals for the Third Circuit, and to prepare an appropriate petition for consideration by this court,” they said in a letter signed by McConnell.
Carney's office on Friday confirmed that the governor intended to appeal the ruling, saying that party-balance provisions have served the state well for decades.
“Delaware's courts that are widely recognized for their excellence and garner tremendous respect from our citizens and members of our bar,” Carney spokesman Jonathan Starkey said in a statement. “Many in our state have recognized the vital importance of our courts and agree that a decision to eliminate the constitutional hallmarks of our system should be reviewed by the Supreme Court.”
“We look forward to having the court consider our appeal,” he said.
McConnell and Holland would join an existing team of attorneys from Young Conaway Stargatt & Taylor, which is staying on after representing Carney in the lower court proceedings. Holland, who retired from the state Supreme Court in 2017, has written extensively on the Delaware constitution, and his scholarly work has been cited throughout the case.
The Third Circuit's Feb. 5 ruling upheld a lower court's decision that the party-balance provisions unconstitutionally barred registered independents and third party members from serving as judges.
The precedential ruling, the first of its kind from the Third Circuit, held that judges do not qualify as policymakers to fit a narrow exception to the First Amendment that allows party affiliation to be taken into account when considering applicants for certain governmental positions.
The ruling applied to Delaware's Supreme and Chancery courts, which both play an outsize role in developing American corporate law, as well as the Superior Court, whose memberships are required by law to be composed entirely of judges from the state's two dominant political parties. It did not apply to the Family Court or Court of Common Pleas.
Carney has said in court filings that the decision put the Third Circuit at odds with other appeals courts and could have “profound implications” well beyond Delaware.
In his letter, McConnell said the decision “undermines one of the most fundamental principles of American federalism: the authority of the people of the several states to structure their own state governments, including especially their judiciaries.”
It would also limit the legitimate use of party affiliation for positions where it should be properly considered, such as electing judges, he said.
“Undersigned counsel respectfully submit that the extension of time requested here is warranted in light of the importance of these issues,” the letter said.
David L. Finger, who represents plaintiff James R. Adams in the case, noted that the governor had not yet filed for cert, but said “an application to extend the time to file a petition for a writ of certiorari is not favored” under Supreme Court rules.
Adams, a retired New Castle County lawyer, filed his lawsuit challenging the party-balance provisions in February 2017. A longtime Democrat, Adams had switched his official party affiliation from Democrat to independent earlier that year and claimed he was prevented from applying for open judgeships because he did not belong to either major political party.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2025 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllAttorneys, Professors Share Support for Chancellor Following Musk's Online Attacks
4 minute readJurden Announces 2025 Retirement, Capping 24 Years on Superior Court
3 minute readTrending Stories
- 1AIAs: A Look At the Future of AI-Related Contracts
- 2Litigators of the Week: A $630M Antitrust Settlement for Automotive Software Vendors—$140M More Than Alleged Overcharges
- 3Litigator of the Week Runners-Up and Shout-Outs
- 4Linklaters Hires Four Partners From Patterson Belknap
- 5Law Firms Expand Scope of Immigration Expertise, Amid Blitz of Trump Orders
Who Got The Work
J. Brugh Lower of Gibbons has entered an appearance for industrial equipment supplier Devco Corporation in a pending trademark infringement lawsuit. The suit, accusing the defendant of selling knock-off Graco products, was filed Dec. 18 in New Jersey District Court by Rivkin Radler on behalf of Graco Inc. and Graco Minnesota. The case, assigned to U.S. District Judge Zahid N. Quraishi, is 3:24-cv-11294, Graco Inc. et al v. Devco Corporation.
Who Got The Work
Rebecca Maller-Stein and Kent A. Yalowitz of Arnold & Porter Kaye Scholer have entered their appearances for Hanaco Venture Capital and its executives, Lior Prosor and David Frankel, in a pending securities lawsuit. The action, filed on Dec. 24 in New York Southern District Court by Zell, Aron & Co. on behalf of Goldeneye Advisors, accuses the defendants of negligently and fraudulently managing the plaintiff's $1 million investment. The case, assigned to U.S. District Judge Vernon S. Broderick, is 1:24-cv-09918, Goldeneye Advisors, LLC v. Hanaco Venture Capital, Ltd. et al.
Who Got The Work
Attorneys from A&O Shearman has stepped in as defense counsel for Toronto-Dominion Bank and other defendants in a pending securities class action. The suit, filed Dec. 11 in New York Southern District Court by Bleichmar Fonti & Auld, accuses the defendants of concealing the bank's 'pervasive' deficiencies in regards to its compliance with the Bank Secrecy Act and the quality of its anti-money laundering controls. The case, assigned to U.S. District Judge Arun Subramanian, is 1:24-cv-09445, Gonzalez v. The Toronto-Dominion Bank et al.
Who Got The Work
Crown Castle International, a Pennsylvania company providing shared communications infrastructure, has turned to Luke D. Wolf of Gordon Rees Scully Mansukhani to fend off a pending breach-of-contract lawsuit. The court action, filed Nov. 25 in Michigan Eastern District Court by Hooper Hathaway PC on behalf of The Town Residences LLC, accuses Crown Castle of failing to transfer approximately $30,000 in utility payments from T-Mobile in breach of a roof-top lease and assignment agreement. The case, assigned to U.S. District Judge Susan K. Declercq, is 2:24-cv-13131, The Town Residences LLC v. T-Mobile US, Inc. et al.
Who Got The Work
Wilfred P. Coronato and Daniel M. Schwartz of McCarter & English have stepped in as defense counsel to Electrolux Home Products Inc. in a pending product liability lawsuit. The court action, filed Nov. 26 in New York Eastern District Court by Poulos Lopiccolo PC and Nagel Rice LLP on behalf of David Stern, alleges that the defendant's refrigerators’ drawers and shelving repeatedly break and fall apart within months after purchase. The case, assigned to U.S. District Judge Joan M. Azrack, is 2:24-cv-08204, Stern v. Electrolux Home Products, Inc.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250