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Subject: LAW

Wilson Sonsini Files Opening Brief in U.S. Supreme Court Case: The Governor of Delaware vs. Adams

WASHINGTON, Jan. 21, 2020 /PRNewswire/ -- Wilson Sonsini Goodrich & Rosati, the premier provider of legal services to technology, life sciences, and growth enterprises worldwide, announced that the firm filed its opening brief today on behalf of Governor John Carney in The Governor of Delaware vs. Adams, the Supreme Court case regarding political balance in Delaware state courts.

Wilson Sonsini Goodrich & Rosati logo. (PRNewsFoto, Wilson Sonsini Goodrich & Rosati)

On Friday, December 6, 2019, the U.S. Supreme Court granted certiorari in Carney v. Adams (Governor of Del. v. Adams, 914 F.3d 827 (3d Cir. 2019)), agreeing to review the appeal of a lower court ruling overturning longstanding provisions for a politically balanced judiciary. In his petition for a writ of certiorari filed on September 6, 2019, Governor Carney asked the Court to review and reverse the Third Circuit's decision striking down the constitutional provisions requiring that applicants for Delaware's Supreme, Superior, and Chancery courts be registered Democrats or Republicans, with neither party permitted to hold more than a bare majority.

"The world has long admired the Delaware courts for their stable and fair-minded approach to cases affecting the business community," said Steffen Johnson, Wilson Sonsini partner and chair of the firm's appellate and Supreme Court practice. "That stellar reputation is no accident, and we look forward to convincing the Court that the First Amendment allows Delaware to preserve it by maintaining its bipartisan model for choosing judges."

Among the arguments set forth in the brief is the position that "[F]or as long as the Nation has existed, elected officials have considered party affiliation in appointing government employees, including judges.  In the late 1900s, [the Supreme Court] imposed First Amendment limits on this practice as it affects 'low-level public employees,' whose jobs do not involve discretionary governmental authority. But every Justice [on the Court] distinguished 'policymaking' jobs, which naturally involve 'the exercise of discretion concerning issues of public importance'?a role that 'certainly describes the bench.' Gregory v. Ashcroft, 501 U.S. 452, 466?467 (1991)."

According to the brief, it states: "Because party affiliation is a proxy for how would-be judges might understand their role, it is entirely appropriate for States to use it?especially as a means of ensuring bipartisan decisionmaking, which Delaware has achieved in spades."

The brief also notes: "The fifty States use a variety of methods for choosing judges, including direct partisan elections and unfettered executive appointment, both of which focus on partisan alignment as well as other factors. The attempt to declare partisan affiliation irrelevant cannot be reconciled with the First Amendment, particularly when the Constitution guarantees States the right to structure their own governments and to establish the qualifications for important state officials. That may explain why every other court to consider whether judges are policymaking officials for First Amendment purposes has rejected the Third Circuit's view. And even if the provisions here were subject to strict scrutiny, they are narrowly tailored to Delaware's vital interest in maintaining its nonpartisan judiciary?which has a preeminent reputation for being objective, maintaining a stable jurisprudence, and achieving consensus across party lines."

The team from Wilson Sonsini representing Governor Carney in the matter includes senior of counsels Michael McConnell and Randy Holland, partner Steffen Johnson, and associate Brian Levy.

"We're pleased that the U.S. Supreme Court has decided to review the lower federal court decision regarding political balance on our state courts," said Governor Carney in a December 6, 2019 statement. "Delaware's judiciary has a longstanding reputation as objective, stable, and nonpartisan. That is largely thanks to the wisdom of those who wrote the Delaware Constitution. They understood the importance of keeping partisan politics out of Delaware's courts, which are widely respected nationwide for their excellence and garner tremendous respect from our citizens and members of our bar. I believe it's more important than ever to protect Delaware's appointment process from the partisan infighting that has come to characterize the federal appointment process. We look forward to presenting our case to the Court."

Wilson Sonsini has a dedicated appellate practice, most recently bolstered by the additions of Steffen Johnson in September 2019 and Professor Michael McConnell, who joined the firm in May 2019. McConnell served for seven years as judge in the Tenth Circuit Court of Appeals. The firm's appellate attorneys have prevailed in high-profile cases involving significant issues of law, particularly in antitrust, consumer fraud, intellectual property, and securities litigation matters. Wilson Sonsini's appellate attorneys have also litigated landmark internet and privacy law cases.

About Wilson Sonsini Goodrich & Rosati
For more than 50 years, Wilson Sonsini Goodrich & Rosati has offered a broad range of services and legal disciplines focused on serving the principal challenges faced by the management and boards of directors of business enterprises. The firm is nationally recognized as a leader in the fields of corporate governance and finance, mergers and acquisitions, private equity, securities litigation, employment law, intellectual property, and antitrust, among many other areas of law. With deep roots in Silicon Valley, Wilson Sonsini has offices in Austin; Beijing; Boston; Brussels; Hong Kong; London; Los Angeles; New York; Palo Alto; San Diego; San Francisco; Seattle; Shanghai; Washington, D.C.; and Wilmington, DE. For more information, please visit www.wsgr.com.

SOURCE Wilson Sonsini Goodrich & Rosati

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