Rebuffed at U.S. Supreme Court, Delaware judicial protester gets OK for new lawsuit

The seal of the Court of Chancery for the State of Delaware is seen on a wall in the Sussex County Court of Chancery in Georgetown, Delaware, U.S., June 9, 2021. REUTERS/Andrew Kelly

Reuters - A Delaware constitutional provision that requires judicial candidates for the state’s three highest courts to be members of the two major political parties could be in peril after a federal judge ruled on Friday that a lawyer challenging the restriction has standing to proceed with his lawsuit.

The lawyer, James Adams, has been litigating for years to force Delaware to ditch its so-called major political party provision, which Adams alleged to be a violation of his 1st and 14th Amendment rights.

A onetime Democrat who changed his party affiliation to independent in 2017, Adams won a 2019 ruling from the 3rd U.S. Circuit Court of Appeals that the state provision impinged upon his 1st Amendment right to free association. But in 2020, the U.S. Supreme Court vacated the 3rd Circuit decision, holding that Adams had not taken sufficiently concrete actions to establish that he was harmed by the provision and thus had a constitutional right to sue.

The Supreme Court, as I’ve reported, concluded that Adams’ “few words of general intent” to serve as a judge in Delaware did not amount to tangible evidence that he was injured by the allegedly discriminatory provision. Adams had argued that it would have been futile for him, as a political independent, to apply for judicial posts that could only be filled by a registered Democrat or Republican. But the U.S. justices ruled unanimously that Adams needed at least to show that he was “ready and able” to seek appointment as a state judge.

Adams filed a new lawsuit in federal court in Wilmington, Delaware, on the very day that the Supreme Court ruled against him. He followed up with a supplemental complaint alleging that he had applied for several judicial appointments — including a Delaware Superior Court opening in 2021 — and was rejected as a candidate in all of them.

The threshold question in the new lawsuit, as in the Supreme Court case, was whether Adams satisfied Article III standing requirements. Delaware Governor John Carney, represented by Young Conaway Stargatt & Taylor and Wilson Sonsini Goodrich & Rosati moved to dismiss the second iteration of Adams’ suit, arguing, in effect, that Adams doesn’t actually want to be a judge but has feigned interest in applying for judgeships solely to manufacture standing to challenge Delaware’s major political party rule.

In particular, the Delaware motion pointed to Adams’ failure to apply for two Superior Court judgeships that opened up in 2019, after the 3rd Circuit struck down the requirement that applicants be from one of the two major parties.

“The only real issue now is whether [Adams’] allegations of future intentions add sufficient facts to alter the U.S. Supreme Court’s judgment that he failed to establish any concrete and imminent injury,” the Delaware brief said, asserting that Adams’ decision not to seek appointments for the 2019 openings was proof of his “lack of genuine interest in being a judge.”

In response, Adams counsel David Finger of Finger & Slanina said Adams was busy with a start-up real estate business in 2019 and was therefore unable to apply for those openings. But Adams had otherwise taken steps to address the Supreme Court’s concerns about his standing, his brief said.

For one thing, Finger argued, Adams has formulated a plan of action. He realized that he was unlikely to be appointed to Delaware Chancery Court or to the Delaware Supreme Court, two of the three state courts that require applicants to be from one of the two major parties. So Adams decided only to apply for openings on the third court covered by the state constitutional provision, Delaware Superior Court. And, in recognition that judges are typically appointed to serve in the counties where they reside, Adams said he would only seek appointment for spots in New Castle County – and only if the judge occupying the seat did not seek reappointment.

Adams followed up on this “concrete plan,” his lawyers said, by applying for an opening on the Superior Court in New Castle County in 2021. (He was turned down.) And, in additional proof of his hope to serve as a judge, Adams applied for open slots on the Court of Common Pleas, his lawyers said. (That court is not subject to Delaware’s major political parties provision but is covered by a separate Delaware constitutional provision that precludes state courts from being dominated by appointees from one political party. Adams’ initial litigation challenged the constitutionality of that provision as well but he has dropped that challenge in the new lawsuit.)

U.S. District Judge Maryellen Noreika of Wilmington sided with Adams in her ruling on Friday, citing his plan of action and his recent failed applications to serve as a state judge. The Supreme Court’s 2020 decision, Noreika said, should not be read to “indelibly taint Adams as a man who can never have a genuine interest in obtaining a judgeship.” The record before her, Noreika wrote, is not the same record that led the justices to find that Adams’ had only an abstract, generalized grievance with Delaware’s judicial selection regime.

Now, she said, the evidence shows that his interest in serving as a judge “has matured into something concrete and genuine.” And as a independent who is not affiliated with either major party, she said, Adams “is barred from certain judgeships by virtue of the major political party provision and ... is, therefore, injured by that provision.”

Delaware counsel David McBride of Young Conaway and Michael McConnell of Wilson Sonsini did not respond to my query on Friday’s decision. The state has repeatedly argued that Delaware’s insistence on politically balanced judicial appointments is a key reason why the state’s judiciary is esteemed across the country.

Adams counsel Finger said by email, “I am happy that we can move beyond this preliminary matter and move forward to the important constitutional issue.”

In Adams’ previously challenge, Finger said, both the trial court and the 3rd Circuit agreed that Delaware’s major political parties clause was unconstitutional. And because the Supreme Court did not reach the merits of Adams’ case, he said, those rulings, he said, “can still be persuasive authority.”

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Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin.