Reuters has a very interesting story on the case. Briefly, in April the Third Circuit Court of Appeals held that Delaware’s arrangement for picking state judges violates the First Amendment of the U.S. Constitution because it effectively prevents anyone unaffiliated with one of the two major political parties from holding judicial office. The story explains:
Delaware’s constitution includes two provisions that, according to the governor’s petition, are intended to ensure the political independence of its state judiciary. One provision, known as the “bare majority” requirement, insists that no more than 50% of the judges of the Supreme, Superior and Chancery Courts be affiliated with either major political party. The other clause, dubbed the “major party” provision, requires that Delaware judges be affiliated with one of the two major parties in the state.
In combination, the constitutional provisions maintain the political equipoise of the Delaware courts. But last April, the 3rd U.S. Circuit Court of Appeals ruled in Adams v. Governor of Delaware that the provisions violated the First Amendment right of free association of James Adams, a retired Delaware lawyer who alleged that he could not seek a judicial appointment because he is a registered independent.
The story goes on to identify several important questions raised by Delaware’s scheme. There seems to be little dispute that it has raised the reputation of the state’s courts, but at the same time it reduces judicial appointments to mere partisan politics and undermines both judicial independence and the courts’ legitimacy.
The Supreme Court has not been shy on weighing in on state judicial selection in the past, especially where First Amendment rights are implicated. It will be interesting to see if they take this case as well.
Many states have established “problem-solving courts” over the last two decades. These are specialized courts whose mission goes beyond the standard determination of guilt and punishment, and instead seeks to address the causes underlying problematic behaviors. Across the country, problem-solving courts have been established to deal with (among other things) drug offenses, mental health issues, sex offenses, truancy, and gun violence.
The State of Delaware has recently undertaken its first internal evaluation of its problem-solving courts, and is now looking to streamline and consolidate some of their work. In particular, the public report describing the evaluation recommends “a unified statewide treatment court.” Unifying the state’s problem-solving courts, the report suggested, would also allow the judiciary and court administrators to address treatment and training issues more efficiently.
As the state courts continues to expand their reach beyond a traditional, arms-length adjudicative role, these types of analyses will be all the more important. Delaware is said to be working with the National Center for State Courts and the National Association of Drug Court Professionals on this project, and hopefully the lessons gleaned from the project will work their way to other state court systems as well.
Buried in this story about the University of Delaware’s partnership with the state court system to create a fellows program for graduate students is a most interesting point:
In 2014, the judicial branch entered a 10-year partnership with the Alfred Lerner College of Business and Economics to improve court operations using private-sector techniques.
As part of the effort, many in the courts were trained in Lean Six Sigma, a methodology focused on removing waste from the processes. The courts said this helped save the judicial branch and partner agencies more than 4,250 staff hours.
Courts have been looking to private sector organizations for management techniques for a century, when Chief Justice Taft began infusing the federal courts with “executive principle.” But until this story broke, I was admittedly unaware that Six Sigma techniques were being applied directly in state court systems.
More background on the court-university partnership is here.