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Lawyers say Carney not defying court order on judge picks

March 8, 2018

DOVER, Del. (AP) — Lawyers for Democratic Gov. John Carney are rejecting the notion that he should be held in contempt for ignoring a federal judge’s ruling invalidating a state mandate for political balance among judges.

In a filing Wednesday, Carney’s lawyers say the December ruling still leaves him the discretion to consider political affiliation when nominating judges.

“There is no basis for finding defendant in contempt, absent an order specifically directing him to do or refrain from doing anything,” wrote Carney’s attorneys, who work for a private law firm with strong ties to the Democratic Party and are being paid at taxpayer expense to fight the court ruling.

The filing comes two weeks after the state Judicial Nominating Commission circulated a notice indicating Carney will consider political affiliation and expects to appoint a fellow Democrat upon the pending retirement of a Superior Court judge in southern Delaware. The nominating commission is led by William Bowser, an attorney who chaired Carney’s 2016 transition team and who works for Young Conaway Stargatt & Taylor, the same law firm representing Carney in the lawsuit.

While Carney’s attorneys argue he has the discretion to consider political affiliation in selecting judges, the notice regarding the Superior Court vacancy says he will act according not just to his preference, but also to a constitutional “mandate.”

The Feb. 19 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.”

That posting prompted David Finger, a lawyer for an attorney who successfully challenged the political balance mandate, to ask that Carney be held in contempt.

“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,” Finger wrote.

Finger represents James Adams, a lawyer who sued Carney last year over a constitutional provision requiring the governor to split judicial nominations for Supreme Court, Superior Court and Chancery Court 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.

Carney’s attorneys have appealed the judge’s ruling, but Finger notes that they did not ask for a stay of her decision while it is being appealed.

The appeal itself has been stayed pending the district court judge’s resolution of Carney’s request that she reconsider her ruling and clarify whether it applies to Family Court and the Court of Common Pleas. They also want clarification on whether the ruling invalidates only provisions that require judicial nominees to be members of one of the two major political parties, or also provisions limiting any political party to a “bare majority” of judges on a court.

In Wednesday’s court filing, Carney’s attorneys say that once their reconsideration motion is decided, they would oppose any injunction and would ask that the judge stay her summary judgment decision pending appeal. The reasons for doing so, they said, include a “pressing need” to fill at least four additional judicial vacancies this year.

“Absent a stay of the court’s ruling, the impact of any judicial appointments filled by the governor prior to the resolution of this appeal will be felt by the public, and could disrupt the bipartisan nature of the Delaware judiciary, for years to come,” they wrote.

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