The Delaware Court of Chancery is asking the U.S. Supreme Court to allow it to resume use of confidential arbitration in some cases.
Chancery Court filed an appeal with the nation’s highest court earlier this week, asking it to overturn last October’s Federal Appeals court ruling that the practice is unconstitutional.
The Appeals Court ruling affirmed a U.S District Court decision that confidential arbitration program violates the First Amendment right to access civil trials.
In a 116-page appeal to the U.S. Supreme Court, attorneys for Chancery Court argue it is not a violation because the program is arbitration, not a trial.
"Numerous state and federal laws provide for confidential government-sponsored arbitration, some of which closely resemble the program Delaware implemented here," Chancery Court's attorneys wrote in the petition. "The broad reasoning employed by the court of appeals would invalidate the latter and cast significant doubt on the constitutionality of all such measures. The decision thus creates significant uncertainty regarding the ability of state and federal courts to utilize innovative ADR techniques, which are critical to addressing the overcrowding that plagues the judiciary."
Chancery Court faces long odds in getting its case heard by the U.S. Supreme Court. The nation’s top court only accepts about one percent of the appeals it receives.
But Andrew J. Pincus of Mayer Brown, the Washington, D.C. firm representing the Chancery Court said in a statement the appeal is worth pursuing as Delaware competes with other jurisdictions in the U.S. and abroad with business resolution programs.
"Because of the importance of this issue, and the job-creating potential for Delaware and the nation of finding innovative solutions to temper the growing costs and delays of resolving business disputes, a definitive answer is being sought from the Supreme Court concerning the constitutionality of the Delaware statute," said Pincus in his statement.
The Delaware Coalition for Open Government filed suit challenging the arbitration program in 2011 and was joined by a number of media groups, including NPR, joined in friend of the Court briefs.
WDDE contributor Jeff Mordock has more on the appeal at the Delaware Business Court Insider.
