Delaware Coalition for Open Government v. The Hon. Leo E. Strine, Jr.

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 establish a voluntary, confidential “arbitration” proceeding in which active judges of the Delaware Court of Chancery hear business disputes and issue binding judgments. Unless a party files an appeal to the Delaware Supreme Court, no part of the proceeding is made a part of the public record. The district court found that the statute and rules violate 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. Public Citizen filed an amicus curiae brief in support of the Delaware Coalition for Open Government. The brief argues that the Delaware proceeding violates the public’s qualified right of access because the enforceable nature of the judgments issued by judges in these proceedings are an essential characteristic of civil judicial proceedings, and distinguishes 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.