Michael McConnell Michael McConnell speaks in 2018 at a Federalist Society conference. Photo: Diego M. Radzinschi/ALM

A team from Wilson Sonsini Goodrich & Rosati is representing the Delaware governor's office pro bono at the U.S. Supreme Court, challenging a federal appeals court ruling that threatens to upend how the state structures its judiciary, contract records show.

Wilson Sonsini's Randy Holland, formerly a longtime Delaware Supreme Court justice, reached out to the office of Gov. John Carney not long after the U.S. Court of Appeals for the Third Circuit said it would not reconsider its ruling against the state. The appeals court struck down a provision of the Delaware Constitution that essentially says judges must be a member of either the Democratic or Republican parties.

"I would like to support Governor Carney's efforts to uphold the political balance provision for judges in the 1897 Delaware Constitution," Holland wrote in a letter to Carney's office, according to public contract records obtained by The National Law Journal. "That provision has served Delaware well for more than 100 years."

It's not uncommon for major U.S. law firms to represent government clients for free at the U.S. Supreme Court, but such relationships are not always the case.

Gibson, Dunn & Crutcher, for instance, said it would charge the city of Boise, Idaho, up to $300,000 to take a new petition to the justices and argue the case—if given the chance. Kirkland & Ellis recently charged the Virginia House of Delegates $375,000 for an election-law Supreme Court challenge.

Wilson Sonsini's latest pro bono report said lawyers and staff at the firm had provided more than 51,000 of hours of free service in 2018. Some of that work included representing children in foster care in matters before the Delaware Family Court.

The lead attorney on Wilson Sonsini's petition at the Supreme Court is Michael McConnell, senior of counsel at the firm's main office in Palo Alto, California, and a former judge on the U.S. Court of Appeals for the Tenth Circuit. McConnell leads the Constitutional Law Center at Stanford Law School, and he has argued 15 cases at the U.S. Supreme Court.

Wilson Sonsini's contract with Delaware said McConnell would argue the judicial appointments case, if the Supreme Court agrees to hear the dispute. The Supreme Court set an Oct. 7 deadline for the challengers to respond to Delaware's petition.

Wilson Sonsini is working with Wilmington, Delaware-based Young Conaway Stargatt & Taylor. Carney and lawyers at Young Conaway "will have the opportunity to review all filings and the right to request reasonable revisions," according to the contract terms. Young Conaway had represented Carney's office at the lower courts.

"The managing partner of Wilson Sonsini supports this proposed representation," Holland wrote in his letter to Carney. "In addition to Michael McConnell and me, the firm will devote whatever legal resources are necessary for the preparation and presentation of this case. We hope that you and your firm will continue to take an active role in the litigation before the United States Supreme Court."

McConnell served on the Tenth Circuit appeals court from 2002 until 2009. He joined Wilson Sonsini in May from Kirkland & Ellis, where he was of counsel in the firm's constitutional and appellate litigation practice. Holland, who is also senior of counsel at Wilson Sonsini, in Delaware, had served on the state supreme court for 30 years.

Washington-based Wilson Sonsini partner Steffen Johnson, who recently arrived from Winston & Strawn, is also on the team with McConnell and Holland. Johnson leads the firm's new Supreme Court and appellate practice. Wilson Sonsini litigation associate Brian Levy also appeared on the petition, filed Sept. 4 in the Supreme Court.

"The Delaware courts play a dominant role in American—and indeed global—corporate governance," the Wilson Sonsini lawyers told the justices. Sixty percent of the Fortune 500 and more than half of the corporations listed on the New York Stock Exchange are incorporated in Delaware, in no small part due to the reputation—and reality—of the Delaware courts as objective, stable, and nonpartisan."

Delaware's lawyers added: "These qualities have not come about by accident. For more than 120 years, Delaware's Constitution has required a politically balanced judiciary."

In April, a unanimous Third Circuit panel struck down Delaware's political balance requirements that limit judges affiliated with any one political party to no more than a "bare majority" on the state's three highest courts. "Independence, not political allegiance, is required of Delaware judges," the appeals court said.

 

 

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