En Banc Review Sought for 3rd Circuit's Decision on Court Party-Balance Rule

Delaware Gov. John Carney has asked the U.S. Court of Appeals for the Third Circuit to rehear en banc the case that struck provisions of the Delaware Constitution mandating balance between the state’s two major political parties on key state courts.

Carney, who nominates judges for approval by the state Senate, filed his petition for rehearing en banc Feb. 18, after a three-judge panel of the Philadelphia-based appeals court ruled that Delaware's party-balance requirements unconstitutionally prevented registered independents and third-party members from serving as judges.

In his filing, Carney said that the panel's precedential opinion put the Third Circuit at odds with other jurisdictions and could have "profound implications" well beyond Delaware.

The judges could decide as early as Thursday whether the opinion had raised "questions of exceptional importance" to warrant full-court review, though it was not yet clear when they would rule on Carney's petition. A majority of the court's active judges is needed to grant the rehearing.

On Feb. 5, the Third Circuit held for the first time 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.

Judge Julio M. Fuentes, writing on behalf of the panel, said the policy-making exception was meant to ensure that elected officials could install loyal employees to enact an administration’s policy agendas. But judges, on the other hand, are expected to make decisions in the individual cases before them, without regard for partisan agendas based on political interests, he said.

He was joined by Judges Theodore A. McKee and Luis F. Restrepo.

The ruling applies 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 membership was required by law to be composed entirely of judges from the state’s two dominant political parties. It does not apply to the Family Court or Court of Common Pleas.

The decision threatened to put an end the state’s 120-year-old practice of nominating judges under the party-balance provisions, which were first adopted in 1897. But it also exposed a circuit split on the issue, after the Sixth and Seventh Circuits both held that judges do qualify as policymakers because their political beliefs influence decisions on key questions of law.

Attorneys for Carney argued that judges in Delaware hold "precisely the type of position" involved in establishing policies of "political concern" and are thus subject to confirmation by the state Senate.

"The Delaware electorate by their legislative representatives has expressed its desire to balance the differing philosophies and limit or eliminate partisanship in the selection of judges by mandating political balance," Young Conaway Stargatt & Taylor partner David C. McBride wrote in the filing. "Judges are to the judicial branch of government what a governor or president is to the executive branch or a senator or representative is to the legislative branch."

Under the Third Circuit's reasoning, McBride said, U.S. presidents could also be barred from considering the views of prospective appointees to independent federal agencies when making their own selections.

David L. Finger, an attorney for the plaintiff in the case, said Wednesday that the Third Circuit's ruling was "well-reasoned and unanimous."

"I do not expect the court to rehear the case," he said.

McBride did not return a call seeking comment on the filing.

According to the the Third Circuit's internal operating procedures, judges typically have ten days from the filing of a petition to vote on whether to rehear the case. However, if just one judge were to vote for rehearing, another could circulate a letter automatically triggering a five-day extension to the voting period.

The case is captioned Adams v. Carney.