Wednesday, February 6, 2019

Third Circuit Says Political Balancing on Bench Violates Free Association

The Third Circuit ruled in Adams v. Governor of Delaware that the state's constitutional requirement for political balance among the judges on most state courts violated the plaintiff's free association rights under the First Amendment. The ruling means that plaintiff James Adams can throw his hat in the ring for state judicial positions, even if his independent party status would otherwise bar his appointment under the balancing requirement.

The case tests Delaware's constitutional requirement that most state courts have political balance on the bench between the two major political parties. (The provision is at Article IV, Section 3 of the Delaware Constitution.) The governor's appointments are thus restricted by available slots for Democrats or Republicans. And in most cases the provision makes no room for independents or other party candidates for the bench. (Delaware's judges are appointed by the governor on the advice of a judicial nominating commission, with confirmation by the state Senate. When advertising for open positions, the commission designates available slots by party--"Democrat" or "Republican.")

The court ruled that restriction violated Adams's free association rights under Elrod v. Burns, Branti v. Finkel, and Rutan v. Republican Party of Illinois. First, the court (creating a split with the Sixth and Seventh Circuits) concluded that state judges were not policy-making positions or confidential positions:

Judges simply do not fit this description. The American Bar Association's Model Code of Judicial Conduct instructs judges to promote "independence" and "impartiality," not loyalty. It also asks judges to refrain from political or campaign activity. The Delaware Code of Judicial Conduct similarly makes clear that judges must be "unswayed by partisan interests" and avoid partisan political activity. The Delaware Supreme Court has stated that Delaware judges "must take the law as they find it, and their personal predilections as to what the law should be have no place in efforts to override properly stated legislative will." Independence, not political allegiance, is required of Delaware judges.

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[T]he question before us is not whether judges make policy, it is whether they make policies that necessarily reflect the political will and partisan goals of the party in power. . . .

To the extent that Delaware judges create policy, they do so by deciding individual cases and controversies before them, not by creating partisan agendas that reflect the interests of the parties to which they belong. . . . [T]he operation of the judicial branch is not "so intimately related to [Delaware] policy" that the Governor would have "the right to receive the complete cooperation and loyalty of a trusted advisor [in that position]."

Next, the court said that even if the state's interest in partisan balance on the bench was a compelling interest, the constitutional requirement of balance wasn't the only (or narrowest) way it could achieve that interest.

Judge McKee concurred and wrote separately "to note the potential damage to the image of the judiciary [in states that select judges in general elections preceded by partisan political campaigns] and the extent to which it can undermine the public's faith in the judges who are elected."

https://lawprofessors.typepad.com/conlaw/2019/02/third-circuit-says-political-balancing-on-bench-violates-free-association.html

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