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Attorney: Carney ignoring ruling on court political balance

February 22, 2018

DOVER, Del. (AP) — Delaware’s governor should be held in contempt of court for ignoring a federal judge’s ruling invalidating a state mandate for political balance among judges, an attorney said in a court filing Wednesday.

The court filing comes after the state Judicial Nominating Commission circulated a notice this week indicating that Democratic Gov. John Carney will consider political affiliation and expects to appoint a fellow Democrat upon the pending retirement of T. Henley Graves, a Superior Court judge in southern Delaware.

“It is unfortunate that this filing was necessary, but the rules have changed, and the law expects playing by the rules,” said attorney David Finger.

Carney’s office declined to comment on Finger’s motion.

“As a general matter, we don’t comment on active litigation,” Carney spokesman Jonathan Starkey said in an email.

Finger represents James Adams, a lawyer who sued Carney last year over a provision in Delaware’s constitution that requires the governor to split judicial nominations between the two major political parties.

In December, the federal judge granted summary judgment to Adams, saying the provision violates the First Amendment of the U.S. Constitution by restricting government employment based on political affiliation.

“Political affiliation is not important to the effective performance of a Delaware judge’s duties,” wrote Magistrate Judge Mary Pat Thynge, adding that a narrow exception allowing political affiliation to be considered in filling policymaking positions does not apply to judgeships.

Private-sector attorneys hired at taxpayer expense to represent Carney have appealed Thynge’s ruling, but Finger notes that they did not ask for a stay of her decision while it is being appealed.

Meanwhile, Carney last week nominated Republican Court of Common Pleas Judge Sheldon Rennie to succeed retiring Superior Court Judge M. Jane Brady, also a Republican.

This week, the Judicial Nominating Commission distributed a notice seeking potential candidates to fill the vacancy that will be left when Graves, a Democrat, retires.

The notice begins by stating “There are requirements of political balance under Article IV, Section 3 of the Delaware Constitution.” It goes on to say that “the governor may not appoint another member of the Republican Party to the court.”

“In accordance with the mandate of Article IV, Section 3 of the Delaware Constitution and his preference, the governor expects to appoint a member of the Democrat Party to fill any derivative vacancy,” the notice states.

Finger said Carney is trying to skirt the federal court’s decision.

“By announcing at the outset that he was going to select a candidate of a particular political party, Gov. Carney conceded that political affiliation was and is a substantial factor in his appointment decisions.... The order was clearly violated,” Finger wrote in his court filing.

Pilar Kraman, an attorney with a law firm that has strong ties to the Democratic Party and is representing Carney, did not immediately respond to an email seeking comment.

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