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Adams v. Governor of Delaware

United States Court of Appeals, Third Circuit

April 10, 2019


          Argued September 25, 2018

          On Appeal from the United States District Court for the District of Delaware (D.C. No. 1-17-cv-00181) Honorable Mary Pat Thynge, U.S. Magistrate Judge

          David C. McBride [Argued] Pilar G. Kraman Martin S. Lessner Young Conaway Stargatt & Taylor Counsel for Appellant

          David L. Finger [Argued] Finger & Slanina Counsel for Appellee.

          Before: MCKEE, RESTREPO, and FUENTES, Circuit Judges.



         James R. Adams is a resident and member of the State Bar of Delaware. For some time, he has expressed a desire to be considered for a judicial position in that state. Following the announcement of several judicial vacancies, Adams considered applying but ultimately chose not to because the announcement required that the candidate be a Republican. Because Adams was neither a Republican nor a Democrat, he concluded that any application he submitted would be futile.

         Adams brings this suit against the Governor of the State of Delaware to challenge the provision of the Delaware Constitution that effectively limits service on state courts to members of the Democratic and Republican parties. Adams claims that under the Supreme Court's precedent in Elrod v. Burns[1] and Branti v. Finkel, [2] a provision that limits a judicial candidate's freedom to associate (or not to associate) with the political party of his or her choice is unconstitutional. The Governor argues that because judges are policymakers, there are no constitutional restraints on his hiring decisions and he should be free to choose candidates based on whether they belong to one of the two major political parties in Delaware- that is, whether they are Democrats or Republicans. We disagree and conclude that judges are not policymakers because whatever decisions judges make in any given case relates to the case under review and not to partisan political interests. We therefore conclude that the portions of Delaware's constitution that limit Adams's ability to apply for a judicial position while associating with the political party of his choice violate his First Amendment rights, and we will accordingly affirm in part and reverse in part the District Court's grant of summary judgment in favor of Adams.

         I. Background

         A. Article IV, Section 3 of the Delaware Constitution

         In 1897, Delaware was unique in its method of judicial selection-it was the only state in the country in which the governor appointed judges without legislative involvement.[3]Judicial selection became an important and contentious topic during Delaware's constitutional convention that year. Debating whether or not to move to a system of judicial election, delegates to the convention expressed their deep concern over the politicization of the judiciary. John Biggs, Sr., the president of the convention, explained his position that the appointment of judges would enable judges to remain free from political cronyism and partisanship:

I think it would be very unwise that our Judges should be mixed up, I will say, in politics. We can obtain good men in this way, by the confirmation by the Senate, without those men being under political obligations, such as are engendered at primaries and at general elections.
And there are reasons, it occurs to me, why the Judges should not be elected that perhaps do not apply to any other officers. For after all, Judges are but human. Whoever sits upon the Bench to pass upon the rights of yours as to your liberty and your property ought certainly to be as free from all influence and bias, political and otherwise, as it is possible to throw around that man.[4]

         The delegates ultimately recommended amending the Delaware Constitution to provide for gubernatorial nomination of judges, with confirmation by the Senate. They did not stop there, however, and debated a novel approach designed to make the judiciary "non-partisan, or if it be a better word, bipartisan"-a limitation on the number of judges from one party that could sit on the bench at any given time.[5]

         Some delegates voiced their support for the provision, stating that minority representation on the judicial bench would "bring about a fuller and freer discussion of these matters that come before them and that they may make fair and impartial decisions on those questions."[6] Some, however, expressed concern that the provision would bring about the opposite result. As delegate Andrew Johnson explained:

It is well known that [judges serving on Delaware's] Judiciary at the present time have been appointed from one political party. That probably is not the best course to pursue, and I would be very glad to see the Governor of this State appoint well equipped men from another party. I would hail the day when it was done and would be glad to have it; but to vote to compel a Governor to appoint a man on account of his political affiliation, you are simply saying, "You are put upon the Bench to look out for our party interests whenever they come up." There is no other construction that you can put upon it. There can be no other, in my own mind, established, and that man is expected, whenever a political question arises, before that Court to take care of his own party rights or privileges.[7]

         Ultimately, the provision prevailed, and Delaware's constitution has included some form of a political balance requirement ever since. In 1951, as part of a wider series of structural changes to the Delaware judiciary, the provision was modified to exclude third party and unaffiliated voters from applying to serve as judges on the Supreme Court, Superior Court, and Chancery Court in Delaware. The system thus created is binary, excluding all candidates from consideration except those of the Republican or Democratic parties. The provision has been reaffirmed during the amendment process several times, including in 2005. Article IV, Section 3 of the Delaware Constitution now reads in relevant part:

Appointments to the office of the State Judiciary shall at all times be subject to all of the following limitations:
First, three of the five Justices of the Supreme Court in office at the same time, shall be of one major political party, and two of said Justices shall be of the other major political party.
Second, at any time when the total number of Judges of the Superior Court shall be an even number not more than one-half of the members of all such offices shall be of the same political party; and at any time when the number of such offices shall be an odd number, then not more than a bare majority of the members of all such offices shall be of the same major political party, the remaining members of such offices shall be of the other major political party.
Third, at any time when the total number of the offices of the Justices of the Supreme Court, the Judges of the Superior Court, the Chancellor and all the Vice-Chancellors shall be an even number, not more than one-half of the members of all such offices shall be of the same major political party; and at any time when the total number of such offices shall be an odd number, then not more than a bare majority of the members of all such offices shall be of the same major political party; the remaining members of the Courts above enumerated shall be of the other major political party.
Fourth, at any time when the total number of Judges of the Family Court shall be an even number, not more than one-half of the Judges shall be of the same political party; and at any time when the total number of Judges shall be an odd number, then not more than a majority of one Judge shall be of the same political party.
Fifth, at any time when the total number of Judges of the Court of Common Pleas shall be an even number, not more than one-half of the Judges shall be of the same political party; and at any time when the total number of Judges shall be an odd number, then not more than a majority of one Judge shall be of the same political party.[8]

         Thus, the provision is made up of five sections-one addressing the Supreme Court, one addressing the Superior Court, one addressing combined membership of those courts and the Chancery Court, one addressing the Family Court, and, finally, one addressing the Court of Common Pleas. Significantly, there are also two separate, but connected, substantive components: the bare majority component (which limits the number of judicial positions that can be occupied by members of a single political party)[9] and the major political party component (which mandates that the other judicial positions must be filled with members of the other major political party in Delaware). In practice, then, most courts must be filled with Democrats and Republicans exclusively.

         B. Judicial Nominations in Delaware

         Since 1978, Delaware governors have relied on judicial nominating commissions to identify qualified candidates for judicial appointments.[10] Eleven of the twelve commission members are appointment by the Governor, and the twelfth is appointed by the president of the Delaware State Bar Association with the consent of the Governor.[11] The commission provides a list of three recommended candidates to the Governor. The Governor is not free to ignore the commission's recommendations; if he is not satisfied with the list, the commission generates another list of candidates.[12] The nominating commission is politically balanced and comprised of both lawyers and non-lawyers.[13]

         When a judicial position becomes available, the nominating commission gives public notice of the positions available, the salary, and the job requirements, including the party membership required for nomination. For example, in August 2012, the commission gave notice of five open judicial positions, of which three were open only to candidates who were members of the Democratic Party and two were open to members of either political party.

         C. James Adams's Search for a Judicial Position

         James Adams, a member of the Delaware State Bar, is an Independent who desires a judicial position but has not applied for one due to his current political affiliation.

         Throughout his career, Adams was a registered Democrat and participated with the Democratic Party. In early 2017, that changed, as Adams became an Independent voter for the first time.[14] Adams explained that he changed his affiliation because he is progressive and grew frustrated with the centrism of the Democratic Party in Delaware. He now describes himself as "more of a [Vermont Senator] Bernie [Sanders] independent."[15]

         Around the same time, Adams read an essay questioning the constitutionality of Article IV, Section 3. The essay focused in large part on the portion of the provision that requires judicial applicants to be members of one of Delaware's two major political parties, and posed the question: "May Delaware enforce a state law providing that no Independent or member of a minor party shall be appointed to a judgeship?"[16] After reading the article, Adams decided to challenge the provision. He filed the instant lawsuit against John Carney, the Governor of the State of Delaware, in February 2017. At the time he filed the lawsuit, he pointed to two judicial vacancies that both required Republican candidates.

         Although Adams did not apply for either of those judicial positions, he has applied to similar positions in the past. In 2009, Adams applied to be a Family Court Commissioner, but was not selected. In 2014, Adams considered applying for judicial positions on the Supreme Court and the Superior Court; however, at the time he was registered as a Democrat and the positions were open only to Republican candidates. Shortly thereafter, in 2015, Adams retired and assumed emeritus status with the Delaware State Bar. By 2017 he felt ready to resume searching for a judicial position, and believed he was a qualified applicant. He therefore returned to active status in 2017. Notwithstanding his interest, Adams has refrained from submitting an application based on his belief that he would not be considered for a judicial position because of Article IV, Section 3 and his new affiliation as an Independent voter.

         D. The District Court Proceedings[17]

         Both parties filed cross-motions for summary judgment. The Governor argued primarily that Adams lacks both Article III and prudential standing to bring his claims, and Adams argued that the political balance requirement violates the First Amendment because it conditions appointment on a judicial candidate's political affiliation.

         The District Court determined that Adams had Article III standing to challenge some, but not all, of the sections of the provision. Chief Magistrate Judge Thynge considered the first three sections because they contain both a bare majority component and a major political party component. She concluded that although Adams did not apply for an open judicial position on one of those courts, his application would have been futile because the openings available around the time he filed his complaint were not available to Independents like himself.

         Sections four and five, however, contain only the bare majority component, and Magistrate Judge Thynge concluded that Adams did not have standing to challenge those sections because his status as an Independent would not have prevented his application from being considered. She nevertheless concluded that he had prudential standing to challenge those sections and found that sufficient to confer jurisdiction.

         Turning to the merits, Magistrate Judge Thynge determined that Article IV, Section 3 restricted access to a government position (here, a judgeship) based on political affiliation. She found that the narrow policymaking exception laid out in Elrod and Branti, which allows a government employer to make employment decisions based on political allegiance for policymakers, did not apply. In reaching that conclusion, the District Court drew on Third Circuit and Supreme Court cases emphasizing that a judge's job is to apply, rather than create, the law. The District Court also cited the Delaware Judges' Code of Judicial Conduct, which mandates that judges refrain from political activity and instructs judges not to be swayed by personal opinion. Because political affiliation could not be seen as a necessary trait for effective judicial decisionmaking, and because the District Court concluded that judges do not meet the policymaking exception established in Elrod and Branti, she found the provision unconstitutional in its entirety. This appeal followed.[18]

         II. Discussion

         A. Standing

         1. Article III Standing

         We begin by addressing Adams's constitutional standing. Constitutional standing, also referred to as Article III standing, is "a threshold issue that must be addressed before considering issues of prudential standing."[19] Because it is an essential component of subject matter jurisdiction, if Article III standing is lacking, our inquiry must end and Adams's claim must be dismissed.[20]

         To satisfy the "irreducible conditional minimum" of standing, a plaintiff must show that he has: "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision."[21] Of standing's three elements, "injury in fact, [is] the 'first and foremost.'"[22] "To establish injury in fact, a plaintiff must show that he or she suffered 'an invasion of a legally protected interest' that is 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.'"[23] However, a plaintiff need not make futile gestures to establish that injury is actual and not conjectural.[24]

         It is black letter that standing may not be "dispensed in gross."[25] Our cases demonstrate that we must ask not only whether Adams has standing to sue at all, but whether he has standing to challenge part or all of Article IV, Section 3.[26]Accordingly, we do not ask only whether Adams has been injured by Article IV, Section 3 of the Delaware Constitution. We must identify how, if at all, he has been injured, and whether that injury stems from all or part of the provision.

         Adams desires a judgeship, and he has applied for, or considered applying for, judicial positions since at least 2009. If he felt his application would be reviewed, he would consider applying for a judicial seat on any of Delaware's five constitutional courts. But because Adams is an Independent, he has refrained from submitting an application in light of the restrictions of Article IV, Section 3.

         The District Court agreed with Adams that it would have been futile to apply for a judicial position on the Supreme Court, Superior Court, or Chancery Court, because under Delaware's constitution, judges on those courts must be members of one of Delaware's two major political parties, and Adams is not. The Governor does not contest that Adams has constitutional standing to challenge these provisions, and we agree that Adams has clearly been injured by the major political party component and therefore has standing to challenge it.

         But the District Court also concluded that Adams's application to either the Family Court or the Court of Common Pleas "would not have been futile, because there is no party requirement constitutionally attached to either Court."[27]Adams argues that the bare majority component injures him independently of the major political party component because it "limit[s] the right to a bare majority to members of a 'political party.'"[28] In his view, the bare majority component mandates that one of the two major political parties control a bare majority of judicial seats on the relevant court, thereby limiting an Independent's ability to successfully apply for a position. The component, however, creates a ceiling for members of the same political party; it does not create a floor entitling them to a certain number of judicial seats.[29]

         Therefore, we agree with the District Court's reading of Article IV, Section 3 and conclude that Adams does not have standing to challenge the sections of the provision that contain only the bare majority component. Nevertheless, the District Court went on to conclude that Adams did not need to establish constitutional standing because he established prudential standing. The District Court's conclusion that prudential standing can serve as "substitute" standing for a plaintiff who cannot demonstrate constitutional standing is incorrect. While Article III standing is a threshold issue that implicates subject matter jurisdiction, prudential standing is not. Instead, it is a "judicially self-imposed limit[] on the exercise of federal jurisdiction."[30] Prudential standing cannot vest a court with subject matter jurisdiction; therefore, it cannot replace or substitute for constitutional standing, as without the latter, the case must be dismissed.[31] Therefore, because Adams does not have Article III standing with respect to the Family Court and the Court of Common Pleas, we may not consider the merits of his argument with respect to those courts.[32]

         2. Prudential Standing

         We next address whether the doctrine of prudential standing should give us pause before reaching the merits of the dispute over the first three sections of the political balance requirement. Even when Article III standing is present, we look to prudential considerations "to avoid deciding questions of broad social import where no individual rights would be vindicated and to limit access to the federal courts to those litigants best suited to assert a particular claim."[33] Prudential standing requires "(1) that a litigant assert his or her own legal interests rather than those of a third party; (2) that the grievance not be so abstract as to amount to a generalized grievance; (3) and that the [plaintiff's] interests are arguably within the 'zone of interests' protected by the statute, rule, or constitutional provision on which the claim is based."[34]

         We see no reason to ignore Adams's challenge to Article IV, Section 3 on prudential grounds. Although the question is surely one of broad social import in Delaware, Adams has established that aside from his political affiliation, he feels qualified for a judicial position and intends to apply for a judicial position if he is able. The provision may be of interest to many residents of Delaware, but Adams has shown that he has a particular legal interest in the constitutionality of Article IV, Section 3 because of his desire to apply for a judicial position while refraining from associating with either the Democratic or Republican parties.

         The Governor's arguments to the contrary are unavailing. He states that Adams's interest in this case is "merely an academic exercise" because Adams switched his political affiliation in the days before filing this Complaint, and had not applied for a judicial position since 2009 although, as a registered Democrat until 2017, he could have.[35] Essentially, the Governor's argument asks us to discredit the portions of Adams's deposition in which he explained why he decided to leave the Democratic Party (he was frustrated by the lack of progressive Democrats in Delaware) and why he did not apply for a judicial position after 2009 (he found working for the late Beau Biden rewarding and therefore did not consider other career opportunities until after Biden's death in 2015). But in opposing a motion for summary judgment, the Governor was required to do more than speculate that Adams has deceived the Court about his genuine interest in applying for a judicial position.[36] The short time period in which Adams changed his party affiliation, read the law review article, and filed suit, without more, is insufficient to raise a genuine issue of material fact about Adams's prudential standing.

         B. The Elrod/Branti Inquiry

         We now turn to the heart of this appeal: whether the sections of Article IV, Section 3 of the Delaware Constitution that govern the Supreme Court, the Superior Court, and the Chancery Court run afoul of the First Amendment's guarantee of freedom of association. A trio of seminal United States Supreme Court cases explain the limits on a government employer's ability to consider a job candidate's political allegiance and govern our analysis here: Elrod, [37] Branti, [38] and Rutan.[39] We discuss each case in turn.

         In Elrod v. Burns, Justice Brennan, writing for the plurality, recognized that the practice of patronage dismissals-dismissing a civil servant because his political affiliation differed from the political party in power-is "inimical to the process which undergirds our system of government and is at war with the deeper traditions of democracy embodied in the First Amendment."[40] He explained that to justify terminating a public employee based on political allegiance, the government must show that the practice "further[s] some vital government end by a means that is least restrictive of freedom of belief and association in achieving that end, and the benefit gained must outweigh the loss of constitutionally protected rights."[41] The plurality suggested that the government's interest in employee loyalty would allow it to discharge employees in policymaking positions based on political allegiance.[42] Although "no clear line can be drawn between policymaking and nonpolicymaking positions," the plurality instructed factfinders to consider the nature of the employee's responsibilities to determine whether or not he or she is in a policymaking position.[43]

         The Court next examined the First Amendment implications of politically-motivated employment decisions in Branti v. Finkel. Summarizing Elrod, the Court stated that "if an employee's private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the State's vital interest in maintaining governmental effectiveness and efficiency."[44] The Court, however, moved away from Elrod's policymaking distinction and held that "the ultimate inquiry is not whether the label 'policymaker' or 'confidential' fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved."[45] The Court explained that some positions, like that of an election judge, might be political without being a policymaking role, and some, like that of a state university football coach, might involve setting policy without being political.[46]

         In Rutan, the Court confirmed that the general prohibition on politically-motivated discharge also applies to decisions to promote, transfer, or hire an employee.[47] "Unless these patronage practices are narrowly tailored to further vital government interests, we must conclude that they impermissibly encroach on First Amendment freedoms."[48]

         The Governor of Delaware sets forth two arguments to justify his practice of requiring applicants for judicial positions to be Democrats or Republicans: first, the Governor argues that because judges are policymakers, they can be hired or fired based on their political affiliation without restraint, and second, the Governor argues that even if they are not policymakers, Delaware ...

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