The Delaware Coalition for Open Government, Inc. filed suit against judges of the Delaware Chancery Court to challenge a Delaware statute and Court of Chancery rules that established a voluntary, confidential “arbitration” proceeding in which active judges of the Delaware Court of Chancery heard business disputes and issued binding judgments. Unless a party filed an appeal to the Delaware Supreme Court, no part of the proceeding was made a part of the public record. The district court found that the statute and rules violated the public’s First Amendment qualified right of access to civil judicial proceedings, and the court enjoined the defendants from hearing disputes utilizing this procedure. The defendants appealed.
On appeal, Public Citizen filed an amicus curiae brief in support of the Delaware Coalition for Open Government. The brief argued that the Delaware proceeding violated the public’s qualified right of access because the enforceable nature of the judgments issued by judges in these proceedings was an essential characteristic of civil judicial proceedings, and distinguished them from conventional arbitrations. On October 23, 2013, the Third Circuit affirmed, 2-1, the district court’s decision, holding that the Delaware statute and the corresponding Court of Chancery rules providing for a confidential and binding state-sponsored arbitration system violated the public’s First Amendment qualified right of access.