Delaware Coalition for Open Go v. Leo Strine, Jr., et al

Filing 46

ECF FILER: ELECTRONIC REPLY BRIEF on behalf of Appellants Sam Glasscock, III, J. Travis Laster, John W. Noble, Donald F. Parsons, Jr., Esq. and Leo E. Strine, Jr., filed. Certificate of Service dated 02/08/2013 by 3rd party, ECF. (AJP)

No. 12-3859

UNITED STATES COURT OF APPEALS
FOR THE
THIRD CIRCUIT
_________________________________________________________
DELAWARE COALITION FOR OPEN GOVERNMENT, INC.,
Plaintiff-Appellee,
v.
THE HON. LEO E. STRINE, JR.; THE HON. JOHN W. NOBLE; THE HON.
DONALD F. PARSONS, JR.; THE HON. J. TRAVIS LASTER; AND THE
HON. SAM GLASSCOCK, III; IN THEIR OFFICIAL CAPACITIES,
Defendants-Appellants.
_____________________________________
On Appeal from the United States District Court for the District of Delaware
Honorable Mary A. McLaughlin, U.S. District Judge
Case No. 1:11-cv-01015

REPLY BRIEF FOR APPELLANTS
Andre G. Bouchard
Joel Friedlander
BOUCHARD MARGULES &
FRIEDLANDER, P.A.
222 Delaware Ave., Suite 1400
Wilmington, DE 19801
[phone]
Lawrence A. Hamermesh
Widener University School of Law
4601 Concord Pike
Wilmington, DE 19803
[phone]

Andrew J. Pincus
E. Brantley Webb*
MAYER BROWN LLP
1999 K Street, NW
Washington, DC 20006
[phone]
* Admitted only in Tennessee,
supervised by principals of the firm

Counsel for Defendants-Appellants

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES.....................................................................ii
INTRODUCTION.....................................................................................1
ARGUMENT ............................................................................................3
THE LOGIC AND EXPERIENCE TEST ESTABLISHES THAT
THERE IS NO FIRST AMENDMENT RIGHT OF ACCESS TO
DELAWARE’S COMMERCIAL ARBITRATION PROCEEDINGS........3
A.

The “Experience” Requirement Precludes Recognition
Of A First Amendment Access Right.....................................4
1.

Plaintiff’s “Functional Equivalent” Test Violates
Settled Precedent and Would Launch Courts on
a Vague and Uncertain Inquiry....................................5
a.

b.

2.

This Court and the Supreme Court require
a history of public access to the particular
type of proceeding in order to recognize a
First Amendment access right.............................5
A “comparable proceedings by analogy” test
provides no real guidance and inevitably
will produce uncertain and inconsistent
results.................................................................11

The Characteristics of Delaware’s Commercial
Arbitration Proceedings on Which Plaintiff and
its Amici Rely Do Not Make the Arbitration
Proceedings the Equivalent of Civil Trials.................14
a.
b.

Judges serving as arbitrators ............................22

c.
B.

Government funding and use of
government resources ........................................20
Self-executing arbitrator’s awards ....................26

The “Logic” Element Does Not Justify A Public Access
Right .....................................................................................30

CONCLUSION .......................................................................................36
CERTIFICATE OF SERVICE................................................................40
-i-

TABLE OF AUTHORITIES
Page(s)

CASES
Arizonans for Official English v. Arizona,
520 U.S. 43 (1997)..............................................................................30
Capital Cities Media, Inc. v. Chester,
797 F.2d 1164 (3d Cir. 1986) (en banc) ....................................... 4, 5, 6
First Amendment Coalition v. Judicial Inquiry & Review Board,
784 F.2d 467 (3d Cir. 1986) ..................................................... 5, 11, 32
In re Boston Herald, Inc.,
321 F.3d 174 (1st Cir. 2003) ...................................................... passim
New York Civil Liberties Union v. New York City Transit
Authority, 684 F.3d 286 (2d Cir. 2012).......................................... 9, 10
North Jersey Media Grp., Inc. v. Ashcroft,
308 F.3d 198 (3d Cir. 2002) ....................................................... passim
Press-Enter. Co. v. Superior Court,
478 U.S. 1 (1986).................................................................. 3, 5, 10, 13
Richmond Newspapers v. Virginia, 448 U.S. 555 (1980)................... 6, 10
Society of Professional Journalists v. Secretary of Labor,
616 F. Supp. 569 (D. Utah 1985), vacated as moot, 832 F.2d
1180 (10th Cir.1987) .................................................................... 10, 11
United States v. A.D.,
28 F.3d 1353 (3d Cir. 1994) .............................................................6, 7
United States v. Simone,
14 F.3d 833 (3d Cir. 1994) ...................................................................7
STATUTES
Alternative Dispute Resolution Act of 1998, Pub. L. No. 105-315,
112 Stat. 2993 (1998) ............................................................. 21, 27, 28
Conn. Gen. Stat. § 52-549z(a) ................................................................28
-ii-

TABLE OF AUTHORITIES
(continued)
Page(s)
Del. Code Ann. tit. 10, § 349 ..................................................................29
§ 546........................................................................................................36
MISCELLANEOUS
Arbitration Act, 1996, c. 23, § 93(1) (U.K.) ...........................................35
Convention on the Recognition and Enforcement of Foreign
Arbitral Awards art. 3, June 10, 1958, 21 U.S.T. 2517, 330
U.N.T.S. 38.........................................................................................27
Del. Ch. R. 97(e) .....................................................................................18
Del. Ch. R. 98(f)(3)...................................................................... 27, 28, 29
Del. Super. Ct. R. 16, 137(d)(2) ..............................................................36
Deutsches Richtergesetz [DRiG] [German Law on Judges], April
19, 1972, last amended July 11, 2002, § 40 (Ger.), available at
http://www.iuscomp.org/gla/statutes/DRiG.pdf ................................ 35
Uniform Arbitration Act § 21(c) (2000)................................................... 18

-iii-

INTRODUCTION
The arguments advanced by Plaintiff and its amici are wrong as a
matter of law and of logic. With respect to the law, although they pay
lip service to the settled requirement that a party advocating a First
Amendment right of access must show a history of public access to the
proceeding in question, Plaintiff and its amici ignore (but do not
dispute) the long-established confidentiality of arbitration proceedings.
They instead claim that Delaware’s commercial arbitration proceeding
is sufficiently analogous to a civil trial to justify invocation of the
history of open trials.
That broad “history-by-analogy” approach has been rejected by
every court to consider it and, if adopted, would transform the First
Amendment test into a standardless and uncertain inquiry. Moreover,
Plaintiff’s argument ignores the critical difference between arbitration
and a trial: both parties’ consent is necessary for arbitration, but a
defendant’s consent is not necessary to subject it to a civil trial. The
history of access to civil trials in large part rests on the importance of
public access as a check on abuse of coercive government power, and
that coercion is not a feature of arbitration.

That fundamental

distinction—along with the numerous other ways in which arbitration
differs from a civil judicial proceeding—requires rejection of Plaintiff’s
attempt to satisfy the experience requirement by analogy.
Plaintiff’s claim also makes no sense. Although Plaintiff lauds the
benefits of the increased transparency that generally comes from public
access, it is plain that no additional transparency will result if Plaintiff
prevails here. All agree that confidentiality is an essential element of
arbitration—if that confidentiality is not available under Delaware’s
procedure, Delaware’s procedure will not be used. Parties wishing to
arbitrate their disputes will simply utilize alternative arbitration
systems.
What Plaintiff is attempting to do, therefore, is to use the First
Amendment to eliminate Delaware’s program because Plaintiff opposes
arbitration generally, or at least government-sponsored arbitration.
But a critical component of the First Amendment standard asks
“’whether public access plays a significant positive role in the
functioning of the particular process in question.’” North Jersey Media
Grp., Inc. v. Ashcroft, 308 F.3d 198, 216 (3d Cir. 2002). Here, where

2

public access will completely prevent the proceeding from functioning
properly, the Constitution does not require that access be provided.
The costs and delay associated with adjudicating disputes burdens
both parties and the courts—and those burdens are greater in the
United States than in other developed nations. Endorsing Plaintiff’s
novel First Amendment claim will prevent States and the federal
government from using innovative solutions to reduce the cost to parties
and to address the significant budget constraints that courts now face.
Nothing in the First Amendment justifies that result.
ARGUMENT
THE LOGIC AND EXPERIENCE TEST ESTABLISHES THAT
THERE IS NO FIRST AMENDMENT RIGHT OF ACCESS TO
DELAWARE’S COMMERCIAL ARBITRATION PROCEEDINGS.
A First Amendment right of access may be recognized only if it is
justified by both experience—“a tradition of accessibility” to the
particular type of proceeding—and logic, because “access plays a
significant positive role in the functioning of the particular process in
question.” Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8, 10 (1986)
(Press II). The arguments advanced by Plaintiff and its amici confirm
that both factors weigh strongly against a First Amendment right of
3

access to the proceedings before the arbitrator under Delaware’s
commercial arbitration procedure.
A. The “Experience” Requirement Precludes Recognition Of
A First Amendment Access Right.
This Court has emphasized that “’[t]he role of history in the access
determination’ is ‘crucial.’” North Jersey Media Grp., 308 F.3d at 213
(quoting Capital Cities Media, Inc. v. Chester, 797 F.2d 1164, 1174 (3d
Cir. 1986) (en banc)).
Neither Plaintiff nor its amici even attempt to dispute the
historical evidence demonstrating the longstanding prohibition of public
access to arbitration proceedings set forth in Defendants’ opening brief.
See Def.Br. 55-59; Chamber of Commerce/Business Roundtable Amicus
Brief (“Chamber/BRT Br.”) 20-21 & n.3. Their failure to establish a
tradition of public access to arbitration proceedings (whether presided
over by private individuals or government officials) requires rejection of
the First Amendment access claim.
Recognizing that they can neither satisfy the experience
requirement nor dispense with it, Plaintiff and its amici construct an
unprecedented, substitute “experience” test. As long as the proceeding
in question can be labeled as the “functional equivalent of a civil trial”
4

(Pl.Br. 15), they assert, the experience requirement is satisfied. That
standardless inquiry has no grounding in this Court’s decisions, or
those of the Supreme Court, and therefore should be rejected. Even if
such an inquiry were permissible, moreover, Delaware’s commercial
arbitration proceeding cannot reasonably be analogized to a civil trial
without at the same time creating a First Amendment access right to
every single category of government adjudicatory proceeding.
1. Plaintiff’s “Functional Equivalent” Test Violates Settled
Precedent and Would Launch Courts on a Vague and
Uncertain Inquiry.
a. This Court and the Supreme Court require a
history of public access to the particular type of
proceeding in order to recognize a First
Amendment access right.
In applying the “experience” prong of the First Amendment access
right standard, the inquiry focuses on “the particular proceeding in
question.” Press II, 478 U.S. at 9; see also Capital Cities Media, 797
F.2d at 1175. Thus, as explained in Defendants’ opening brief (at 2729), this Court—in rejecting First Amendment access claims—
determined in First Amendment Coalition v. Judicial Inquiry & Review
Board, 784 F.2d 467, 472 (3d Cir. 1986), that judicial disciplinary
boards “do not have a long history of openness,” and found in North
5

Jersey Media Group that deportation hearings did not “boast a tradition
of openness sufficient to satisfy Richmond Newspapers,” 308 F.3d at
212. See also Capital Cities Media, 797 F.2d at 1175 (no tradition of
public access to agency records).
Plaintiff’s view that the historical test can be satisfied “by looking
to comparable proceedings by analogy” (Pl.Br. 17) rests on a clear
misreading of several decisions. Every court to have considered that
broad “history-by-analogy” approach has rejected it. For example, in
United States v. A.D., 28 F.3d 1353 (3d Cir. 1994), this Court did not
“find[] [federal delinquency proceedings] . . . subject to First
Amendment right of access” (Pl.Br. 17); the Court did not reach the
First Amendment question at all.
The issue in A.D. was whether a federal statute required juvenile
proceedings to be closed to the public and, if so, whether the statute
violated the First Amendment. This Court observed that the Supreme
Court’s decision in Globe Newspapers applied to “criminal trials, which
historically have been open to the press and general public,” but that
“[n]o centuries-old tradition of openness exists for juvenile proceedings.”
A.D., 28 F.3d at 1358.

It went on to point out that “detention and
6

delinquency proceedings . . . are closely analogous to criminal
proceedings” and that “while Globe is not on all fours with the situation
before us, it does suggest that [interpreting a federal statute to impose]
an across-the-board ban on access to juvenile proceedings under the Act
would pose a substantial constitutional issue.” Id. The Court found
that this consideration, as well as the plain language of the statute,
warranted interpreting the statute to permit district courts to exercise
“discretion to strike on a case-by-case basis the balance between the
interests protected by the First Amendment and competing privacy
interests.” Id. at 1359. There was no First Amendment holding in A.D.
Moreover, this Court in its subsequent decision in North Jersey
Media Group expressly rejected a history-by-analogy approach and
limited the Court’s prior decisions—including United States v. Simone,
14 F.3d 833 (3d Cir. 1994), which was decided the same year as A.D.—
in which it had applied that approach in addressing First Amendment
access claims. See Def.Br. 28 n.16. A.D. therefore provides no support
for Plaintiff’s position.
Plaintiff also cites (at 17) In re Boston Herald, Inc., 321 F.3d 174
(1st Cir. 2003), but that ruling cuts against Plaintiff’s position. The
7

issue there involved a claimed First Amendment right to access
documents submitted by a criminal defendant to demonstrate eligibility
for Criminal Justice Act funding assistance for legal expenses. It is true
that the court did not reject all consideration of analogies—pointing out
that the CJA was first enacted in 1964 and that the experience inquiry
permits consideration of “analogous proceedings and documents of the
same ‘type or kind.’”

Id. at 184.

But the court emphasized the

significant limitations on any use of this approach, cautioning that
“[t]he analogies must be solid ones, . . . which serve as reasonable
proxies for the ‘favorable judgment of experience’ concerning access to
the actual documents in question.” Id.
Indeed, the First Circuit rejected the plaintiffs’ use of analogies in
Boston Herald, finding that they had “stray[ed] too far from the
particular nature of the CJA eligibility documents” in drawing an
analogy to “access to criminal trials.” Id. The court refused to rely on
this analogy because it was “too broad. . . . As seen from examples such
as grand jury materials and presentence reports, the mere connection of
a document with a criminal case does not itself link the document to a
tradition of public access.” Id.
8

The argument advanced by Plaintiff here is precisely the same as
the one rejected in Boston Herald—that any proceeding that can in
some way be analogized to a criminal or civil trial is encompassed
within the First Amendment access right. Plaintiff’s argument should
be rejected by this Court as well.
Finally, Plaintiff points to New York Civil Liberties Union v. New
York City Transit Authority, 684 F.3d 286 (2d Cir. 2012). That case
involved proceedings for the enforcement of citations issued by New
York City police officers for violations of the Transit Authority’s rules of
conduct. Prior to 1986, those citations were returnable in New York
Criminal Court; subsequently, a police officer had discretion to issue a
Criminal Court summons or a notice of violation to be adjudicated by
the Transit Adjudication Bureau (“TAB”). The issue before the court of
appeals was whether a First Amendment right of public access applied
to proceedings before the TAB.
The court based its finding of sufficient “experience” of openness
on “[t]he fact that an alleged violator may be subject either to a court or
to a TAB proceeding at the total discretion of the police officer.” 684
F.3d at 301.

Because of that “jurisdictional overlap and shared
9

function,” the resolution of “the experience and logic inquiry . . . with
respect to the Criminal Court largely determines how it comes out for
the TAB as well. And, since access to criminal court hearings is the
core of the entire Richmond Newspapers line of cases, a similar result
for the TAB seems almost foreordained.”

Id.; see also id. at 301-02

(“The process that goes on at TAB hearings is a determination of
whether a respondent has violated a Transit Authority Rule. And that
process was presumptively open from the inception of the Rules system
in 1966, when such proceedings were heard only in criminal courts.”).
The broad language on which Plaintiff relies (see Pl.Br. 19-20)
occurs in the portion of the court’s opinion rejecting the Transit
Authority’s claim that the experience and logic test is inapplicable to
administrative agencies. In applying the experience standard itself, the
court principally relied not on analogies but rather on the fact that the
government alone had the power to divert to the TAB proceeding
matters that formerly would have been adjudicated in a criminal court.1

Plaintiff also cites Society of Professional Journalists v. Secretary
of Labor, 616 F. Supp. 569 (D. Utah 1985), but that ruling—which
predates the Supreme Court’s decision in Press II clarifying the critical
nature of the experience inquiry (see Def.Br. 28 n.16)—was the subject
of an order by the Tenth Circuit directing the district court to “vacate
1

10

There is thus no precedent supporting Plaintiff’s contention that
the experience standard can be satisfied by reference to broad
analogies.

To the contrary, courts have repeatedly rejected such

arguments.

A tradition of openness with respect to other, different

proceedings has been found relevant only where the proceeding with a
history of openness was indistinguishable from the proceedings at
issue—for example, because the government could choose whether to
require an individual to appear before either of the two types of
tribunals with respect to the very same charge.
b. A “comparable proceedings by analogy” test
provides no real guidance and inevitably will
produce uncertain and inconsistent results.
Plaintiff’s claim that the experience prong of the First Amendment
access standard may be satisfied “by looking to comparable proceedings
by analogy” (Pl.Br. 17) must be rejected for the additional reason that
the broad inquiry Plaintiff proposes inevitably will produce erroneous
and inconsistent results.

its judgment and withdraw its Memorandum Decision and Order,” 832
F.2d 1180, 1186 (10th Cir. 1987). And the passage of Judge Adams’
separate opinion in First Amendment Coalition that is quoted by
Plaintiff (Pl.Br. 18) is part of the explanation of his dissent from the
majority’s rejection of the First Amendment access claim.
11

To begin with, Plaintiff does not argue that analogies are relevant
only in the limited situation in which the government can direct a
proceeding formerly adjudicated only in open court either to a court or
to a different decisionmaker.

Rather, Plaintiff contends that

notwithstanding the existence of significant differences between the
new proceeding and the one with the history of openness, it still should
be possible to conclude that the similarities outweigh the differences
and that the “experience” with respect to the older proceeding can
therefore be imputed to the new one.
As the First Circuit explained in Boston Herald, however, that
approach sweeps much too broadly. The critical question is not whether
the proceeding in question bears some resemblance to a criminal or civil
trial. The question is whether it is indistinguishable from them in all
respects, and particularly whether the new proceeding incorporates all
of the specific aspects of a civil or criminal trial that are the reasons for
the tradition of public access.
After all, some parts of criminal and civil proceedings are not open
to the public. Finding a tradition of access based on the presence of
only some aspects of a trial “would be contrary to precedent employing
12

more finely honed classifications.” In re Boston Herald, 321 F.3d at 185.
“[T]he First Amendment does not grant the press or the public an
automatic constitutional right of access to every document [or
proceeding] connected to judicial activity. Rather, courts must apply
the Press II standards to a particular class of documents or proceedings
and determine whether the right attaches to that class.” Id. at 184.
Once identity between the two proceedings is not required, the
inquiry becomes standardless and therefore uncertain. How will a court
determine how much similarity is enough to conclude that history with
respect to one proceeding should be applied to another? Are some
characteristics more important than others, or do all weigh equally?
What if the characteristics that are similar also are shared by
proceedings that lack a longstanding tradition of openness?
That is the precise problem with Plaintiff’s approach in this case.
As we discuss in detail below, the particular characteristics of a civil
trial on which Plaintiff relies—such as government funding and
decisions by a judge—are common to all judicial proceedings. But some
judicial proceedings (such as many family law disputes and involuntary
commitment

hearings,

see

Def.Br.
13

30-31)

while

sharing

those

characteristics have nevertheless traditionally been closed to the public.
And many more of the characteristics of the Delaware arbitrations (for
example, determinations regarding the parties’ rights) are features of
non-trial

proceedings—every

administrative

adjudication,

every

arbitration, and every decision made by a judge outside the trial
context—that historically have not been open to the public. Picking and
choosing among characteristics therefore assures erroneous results.
Because Plaintiff’s “history by analogy” approach is barred by
precedent, and because it opens the door to arbitrary and unjustified
decisions, that approach should be rejected by this Court.
2. The
Characteristics
of
Delaware’s
Commercial
Arbitration Proceedings on Which Plaintiff and its
Amici Rely Do Not Make the Arbitration Proceedings the
Equivalent of Civil Trials.
Even if the experience requirement could be satisfied by
analogizing to a different proceeding that shares only some of the
characteristics of the proceeding at issue, that approach cannot be
employed here to overcome the long tradition of confidentiality
associated with arbitration proceedings.

The Delaware commercial

arbitration proceeding is fundamentally different from a civil trial, and

14

the historic openness of civil trials therefore cannot be invoked by
analogy.
Plaintiff appears to argue at some points in its brief that all
arbitration proceedings satisfy the experience prong of the First
Amendment standard because they are sufficiently similar to civil
trials.

Thus, Plaintiff responds to the numerous observations of the

Supreme Court and this Court that arbitration differs from judicial
litigation because it is based on consent (see Def.Br. 35-37) by stating
that the view “that arbitration is consensual and litigation is not” is
“inaccurate.”

Pl.Br. 21.

According to Plaintiff, an arbitration

agreement “is nothing more than a choice of venue provision” and both
a judge and an arbitrator “have the power to enter a default judgment
against the nonparticipating party.” Id. at 22.
Similarly, Plaintiff argues that the procedural flexibility and
speed of arbitration is no different than civil litigation. Pl.Br. 22-24.
And it contends that parties can limit appellate review by agreement to
the same extent that the Federal Arbitration Act limits judicial review
of arbitral awards. Id. at 24.

15

If these contentions were correct, they could—under Plaintiff’s
theory—be claimed as support for the proposition that the tradition of
public access to civil trials should be imputed to all arbitration
proceedings, and that a First Amendment right of access should apply
across-the-board to every arbitration proceeding.

That possibility

confirms the flaws in Plaintiff’s history-by-analogy approach.
Of course, Plaintiff’s contentions are wrong in every respect.
Arbitration differs fundamentally from litigation in that the parties’
consent is essential to permit the arbitrator to render a binding
decision; consent is not necessary to subject a party to the judicial
process.

Plaintiff thus misses the point in asserting that both an

arbitrator and a judge “have the power to enter a default judgment
against [a] nonparticipating party” (Pl.Br. 22)—an arbitrator’s order is
wholly ineffective without that nonparticipating party’s prior consent,
but a judicial order can, and frequently does, bind a nonconsenting
party.
Plaintiff and its amici fail to address the fundamental nature of
this distinction. The tradition of openness relating to criminal and civil
trials rests in large part on the exercise of coercive government power
16

that occurs through such proceedings (the prosecution and adjudication
of governmental charges against a criminal defendant on the one hand,
and the adjudication through the exercise of coercive government power
with respect to civil litigants on the other). That unconsented exercise
of authority by definition cannot take place in an arbitration proceeding
because the parties’ consent is essential to permit the arbitration
proceeding to occur.

Arbitration thus, by definition, lacks a critical

attribute of civil and criminal trials—government coercion—that is one
of the key reasons for the traditional openness of those proceedings.
Transferring that historical tradition to a context in which that critical
attribute is absent would not provide a “reasonable prox[y] for the
‘favorable judgment of experience,’” In re Boston Herald, 321 F.3d at
184; it would constitute an entirely arbitrary invocation of that
tradition.
Plaintiff’s broad assertions about the effect of the parties’
agreement on judicial procedures and appellate review of trial court
judgments are also erroneous. Legal standards significantly limit the
parties’ ability to reshape trial court proceedings, and parties may not
alter the legal standards governing appellate review. Def. Br. 39, 40-42.
17

In contrast, arbitrators have more freedom to tailor equitable relief to
the needs of the parties and the dispute at issue—they may depart more
readily than courts, for example, from the specific remedies prescribed
by the applicable substantive law. See, e.g., Uniform Arbitration Act §
21(c) (2000) (“an arbitrator may order such remedies as the arbitrator
considers just and appropriate”); id. cmt 3 (“Section 21(c) preserves the
traditional, broad right of arbitrators to fashion remedies. . . . [It] allows
an arbitrator to order broad relief even that beyond the limits of courts
which are circumscribed by principles of law and equity. . . . “[B]road
remedial discretion is a positive aspect of arbitration.”).
Finally, while the Court of Chancery is proud of its reputation for
handling its entire docket more expeditiously than occurs in other
courts adjudicating similar cases, the Court of Chancery is not so fast as
to adjudicate the majority of its cases within 90 days—as required by
Delaware Court of Chancery Rule 97(e). This speed is only possible
because the arbitration features expedited procedures and because the
arbitrator’s role is simply to resolve a dispute between contracting
parties—but not render a decision with broader precedential impact
that will affect the development of the law.
18

See also Def.Br. 38-42;

Chamber/BRT Br. 6-11. Moreover, Delaware’s commercial arbitration
procedure is not restricted to disputes falling within the Court of
Chancery’s jurisdiction, so it enables resolution of disputes more
expeditiously than the courts that otherwise would adjudicate the
matter.2
Plaintiff’s general arguments thus provide no support for its civil
trial analogy.

To the contrary, they demonstrate how arbitration

proceedings differ fundamentally from civil trials. The three specific
characteristics of Delaware’s commercial arbitration procedure cited by
Plaintiff and its amici—that the arbitration is supported with
government funds and resources, that it is presided over by a judge, and
that the arbitrator’s award takes effect in the absence of a challenge—
similarly provide no basis for upholding their analogy to civil trials. If
they did, every government adjudicatory proceeding would satisfy the
experience prong of the access standard, the precise result that courts

Amici worry that Delaware’s arbitration program will somehow
prevent development of the State’s contract and corporate law through
judicial decisions (Reporters Committee for Freedom of the Press
Amicus Br. 18). Many disputes are ineligible for arbitration under
Delaware’s rules and many parties do not agree to arbitrate their
disputes—there is no risk that Delaware’s courts will lack sufficient
cases to address important legal issues.
2

19

consistently have rejected on the ground that many aspects of criminal
and

civil

judicial

proceedings

and

administrative

adjudicatory

proceedings have historically been closed to the public.
a. Government
resources.

funding

and

use

of

government

Plaintiff advances an argument that is significantly broader than
the rationale adopted by the district court. To the district court, it was
the Delaware statute’s assignment to judges of the role of arbitrator
that transformed the arbitration into a civil trial, because in the district
court’s view “judges in this country do not take on the role of
arbitrators.”

JA27.

The district court rejected the contention that

government sponsorship and funding of arbitration is sufficient to
permit the analogy to civil trials. JA25-26 (“[A]rbitrations may occur in
[government] courthouses, and arbitrators . . . may be paid by the
government for their services.”).
Perhaps recognizing the flaws in the district court’s reliance on
judges’ service as arbitrators (see Def.Br. 43-55), Plaintiff focuses its
attention on use of government resources and government-employed
personnel in the arbitration process. Thus, Plaintiff points out that
“the arbitrator conducts the proceeding in a government courthouse on
20

government time (and government salary)” and is assisted by “court
personnel.” Pl.Br. 26, 28. And it emphasizes that its First Amendment
access right would apply even if Delaware had placed the arbitration
responsibility “in the [State’s] executive or legislative branch.” Id. at 31
(responding to Def.Br. 43 n.22).
But Plaintiff’s broader argument fares no better than the district
court’s more targeted approach.

If government funding of an

adjudication proceeding were sufficient to permit reliance on the
openness of civil trials to satisfy the experience prong of the First
Amendment standard, then every government adjudicatory proceeding
would be subject to an access right, including the deportation hearings
at issue in North Jersey Media Group. Indeed, it would invalidate the
Alternative Dispute Resolution Act of 1998 (“ADRA”), Pub. L. No. 105315, 112 Stat. 2993. See Def.Br. 47 (discussing ADRA). By definition,
all such proceedings that receive the government resources cited by
Plaintiff “determin[e] and affect[] the substantive legal rights of the
parties” and resolve disputes generally similar to those adjudicated in
courts. Pl.Br. 32.

21

Certainly every government-sponsored arbitration process would
satisfy Plaintiff’s definition, and all state court-annexed arbitrations
would have to be open to the public under Plaintiff’s view of the law.
Such a ruling would sweep very broadly. See Def.Br. 66-69.3 Because
the effectiveness of arbitration depends in significant part upon its
confidentiality (see id. at 55-59; Chamber/BRT Br. 18-21), the result
would be to render all of those proceedings wholly ineffective.
No court has adopted such a broad approach to applying the
experience prong, and those courts that have considered such an
approach have rejected it.

As the First Circuit observed in Boston

Herald, such broad analogies are inconsistent with the standards
applicable to criminal proceedings and civil trials, which themselves
include proceedings not open to the public. This Court should reject the
argument as well.
b. Judges serving as arbitrators.
Plaintiff and its amici also adopt the district court’s view that the
service of a sitting judge as arbitrator transforms the arbitration into a
Plaintiff attempts (at 49-54) to distinguish other state-sponsored
arbitration programs. But it ignores the fact that, because all of these
programs use government resources, all would be covered under
Plaintiff’s approach.
3

22

civil trial: “judicial officers are engaged in government-sponsored
judicial conduct—finding facts, interpreting and applying law, and
deciding cases, empowered by and under the auspices of the State
judicial system. Judicial arbitrators are deciding the substantive legal
rights of the parties.” Pl.Br. 29.
Of course, all arbitrators are charged with “finding facts,
interpreting and applying law, and deciding cases,” including “deciding
the substantive legal rights of the parties.” The nature of the task by
itself therefore cannot be sufficient to trigger application the tradition of
trial openness. What Plaintiff seems to argue here is that the nature of
the task combined with the fact that it is performed by a “judicial
officer” (Pl.Br. 27) transform an arbitration into a civil trial. A State
could assign non-adjudicatory duties to a judge without triggering a
First Amendment right of public access, but assigning adjudicatory
responsibility to a judge would trigger public access even though there
would be no constitutional access right if that same duty were exercised
by another type of government official.
Much of Plaintiff’s argument, like the district court’s rationale,
rests on the view that serving as an arbitrator is incompatible with a
23

judge’s other responsibilities. See, e.g., Pl.Br. 28. But the States retain
plenary authority under our system of federalism to choose for
themselves how to allocate responsibility among state officials. Def.Br.
48-51. Making the First Amendment right of access turn on the other
duties of the state official conducting the proceeding would significantly
limit the States’ discretion in structuring government functions.
Moreover, nothing in the First Amendment justifies distinctions
based on a state official’s other duties. The purpose of the inquiry here
is to determine whether the new proceeding is so closely analogous to a
civil trial that the history of open civil trials should apply to the new
proceeding as well. The fact that the same decisionmaker presides over
different types of proceedings by itself does nothing to change the
nature of those proceedings, and therefore cannot make applicable to
the arbitration proceeding the history of civil trial openness.
Next, Plaintiff argues that sitting judges never, or almost never,
serve as arbitrators.

Virtually all of Plaintiff’s “evidence,” however,

consists of assertions that the statutes or court rules merely permit
judges to serve as arbitrators and that Defendants have failed to adduce
evidence that judges in fact do take on that responsibility. Pl.Br. 49-54.
24

But it is Plaintiff that bears the burden of demonstrating the
unconstitutionality of Delaware’s duly enacted law, and it is Plaintiff
that bears the burden of establishing that the tradition of open civil
trials should be imputed to the factually-different context of judgesupervised arbitration. The fact that numerous state laws and court
rules authorize judges to serve as arbitrators demonstrates the fallacy
of Plaintiff’s contention that Delaware’s approach is unprecedented or
unusual.4

When Plaintiff is unable to distinguish a state law or court rule on
this ground, it simply advances another distinction—without regard to
whether the distinction is in any way relevant to its legal theory. Thus,
Plaintiff several times points out that a particular court-annexed
arbitration program is “non-binding and subject to de novo review.”
Pl.Br. 32-36. Plaintiff does not explain why the legal effect of the
parties’ joint decision to accept an arbitrator’s suggested resolution is
sufficient to remove the proceeding from Plaintiff’s First Amendment
rule, but the parties’ joint decision to submit their dispute to the
arbitrator, agreeing in advance to be bound by his or her resolution, is
not even relevant to the First Amendment analysis. That is because
there is no distinction between the two situations: the parties’ consent
is essential to render the decisionmaker’s determination binding in both
cases, and that critical fact fundamentally distinguishes both from a
civil trial.
Plaintiff’s attempt to distinguish the long history of judges serving
as private arbitrators in America rests on similarly irrelevant
distinctions. Thus, Plaintiff argues that judges’ service as arbitrators in
private or international proceedings says nothing about the First
Amendment status of government-sponsored arbitration proceedings.
But the history of judges serving as arbitrators demonstrates that a
4

25

At bottom, Plaintiff’s objection is grounded in policy rather than
First Amendment precedent: its contention that principles of fairness
are undermined “when there is one class of parties having their cases
being adjudicated in open court and another class having their disputes
adjudicated behind closed doors.” Pl.Br. 30. That policy objection is
wrong on its own terms—more than eighty years ago Congress, in
enacting the Federal Arbitration Act, conclusively rejected the
argument that arbitration is a suspect means of resolving disputes and
arbitration’s use has increased significantly. Def.Br. 4-5.
Moreover, Plaintiff cannot use the First Amendment access right
as a cudgel to eliminate a procedure to which it objects on policy
grounds. Because the other duties assigned to a state official provide no
basis for characterizing as a “civil trial” one of the proceedings over
which that official presides, Plaintiff’s policy contention is irrelevant
here.
c. Self-executing arbitrator’s awards.
Delaware’s arbitration proceeding is not converted into a civil trial
because the arbitrator’s order is immediately enforceable. Under Court
judge acting as arbitrator does not render inapplicable the longstanding
tradition of confidentiality associated with arbitration proceedings. Id.
26

of Chancery Rule 98(f)(3) any party dissatisfied with the arbitrator’s
determination has the right to appeal to the Delaware Supreme Court,
which reviews the arbitrator’s decision under the standards for judicial
review established in the Federal Arbitration Act. See Def.Br. 42.
Arguing that this rule transforms the arbitration proceeding into
the equivalent of a civil trial, amici cite examples of private arbitrations
that do not result in self-executing orders. See Public Citizen Amicus
Br. 7. But non-government arbitrators often issue self-enforcing awards
to save parties the extra delay and cost associated with confirming
uncontested arbitral awards. Indeed, that approach is favored in the
international context.

See Convention on the Recognition and

Enforcement of Foreign Arbitral Awards art. 3, June 10, 1958, 21 U.S.T.
2517, 330 U.N.T.S. 38.
Moreover, in state and federal court connected arbitration
programs, arbitrations result in automatically enforceable awards
where neither party exercises its right to a trial de novo. Under the
ADRA, for example, an arbitration award is filed with the clerk of the
district court that referred the case to arbitration, where it “shall be
entered as the judgment of the court after the time has expired for
27

requesting a trial de novo.”

28 U.S.C. § 657(a).

This judgment is

“subject to the same provisions of law and shall have the same force and
effect as a judgment of the court in a civil action, except that the
judgment shall not be subject to review in any other court by appeal or
otherwise.” Id. Various state court arbitration programs also utilize
self-enforcing awards.

See, e.g., Conn. Gen. Stat. § 52-549z(a) (“A

decision of the arbitrator shall become a judgment of the court if no
appeal from the arbitrator’s decision by way of a demand for a trial de
novo is filed in accordance with subsection (d) of this section.”).
Under the Delaware arbitration statute, as under these other
provisions, a final award is entered and enforced “as any other
judgment or decree.” Del. Ch. R. 98(f)(3). This aspect of the arbitration
process does not make it sufficiently different from an ordinary
arbitration to render inapplicable the tradition of confidentiality
associated with arbitration proceedings.

Whether an award is self-

enforcing or not is a matter of convenience that does not transform an
arbitration into a civil trial to which the right of access must apply. See
28 U.S.C. § 652(d) (providing for confidential arbitration proceedings).

28

Amici also contend that the enforceability of the arbitrator’s
award undermines the argument that the arbitrator’s power rests on
the parties’ consent, claiming that automatic enforceability necessarily
shows that the arbitration proceeding is grounded instead in the
imposition of state adjudicative power. That too is wrong.
The arbitrator’s award is enforceable, subject to judicial review,
only because the parties to the arbitration have agreed to adopt
Delaware’s arbitration procedures, which include enforceability subject
to judicial review. The enforceability of the award thus stands on the
same footing as the arbitrator’s power to render a decision in the first
place: neither could occur without the parties’ consent.5

Court of Chancery Rule 98(f)(3) interprets Del. Code Ann. tit. 10, §
349, to permit the issuance of self-enforcing arbitration awards. The
Delaware Supreme Court has not yet had the opportunity to interpret
the pertinent statutory language. Should this Court find that the
particular interpretation embodied in Rule 98(f)(3) renders the
statutory scheme constitutionally suspect under the First Amendment,
it should declare the Rule invalid and interpret § 349(c) to require an
application to the Delaware Supreme Court for enforcement of an
award. If the Court believes that the statute’s meaning is not
sufficiently clear, it should certify to the Delaware Supreme Court the
question whether the Rule is mandated by the statute, a permissible
interpretation of the statute, or inconsistent with the statute. That
would avoid a ruling on “the Constitutionality of a state statute in the
absence of a controlling interpretation of its meaning and effect by the
5

29

*

*

*

Finally, Plaintiff cannot argue that even though each of these
factors is insufficient to characterize Delaware’s arbitration procedure
as a civil trial, they somehow meet that standard when considered
together. Such a “0+0+0=1” approach confirms the arbitrary nature of
history-by-analogy, and ignores the many ways in which Delaware’s
procedure is different from civil trials.

It also fails to provide any

meaningful distinction from the arbitration systems that include these
characteristics and would therefore invalidate numerous court-annexed
arbitration programs.
B. The “Logic” Element Does Not Justify A Public Access
Right.
Defendants’ opening brief explained that the “logic” inquiry
weighs strongly against recognition of a public access right because
public access would prevent the proceeding from functioning at all.
Def.Br. 59-65. The Chamber of Commerce and Business Roundtable
also addressed this issue in detail. See Chamber/BRT Br. 15-24.

state courts.” Arizonans for Official English v. Arizona, 520 U.S. 43, 75
(1997).
30

Plaintiff argues in response that public access would vindicate the
interests favoring access and that any adverse effect on the functioning
of Delaware’s arbitration process is irrelevant.

Pl.Br. 39-46.

Those

contentions are inconsistent with this Court’s precedents.
First, because the policy interests underlying public access are
always furthered when such access is permitted, the benefits of open
government proceedings cited by Plaintiff cannot, without more, satisfy
the logic inquiry. Otherwise, as this Court has explained, “it is difficult
to conceive of a government proceeding to which the public would not
have a First Amendment right of access.” North Jersey Media Grp., 308
F.3d at 217.

A finding that “openness serves community values”

necessarily “cannot be the story’s end, for to gauge accurately whether a
role is positive, the calculus must perforce take account of the flip side—
the extent to which openness impairs the public good.” Id.
Second, Plaintiff thus is wrong that the adverse impact of public
access on the proper functioning of the proceeding is irrelevant. The
inquiry, after all, is “whether public access plays a significant positive
role in the functioning of the particular process in question,” id. at 216,
and this Court and other courts have cited such negative effects in
31

rejecting First Amendment access claims. See First Amendment Coal.,
784 F.2d at 473; see also In re Boston Herald, 321 F.3d at 188-89
(recognizing that disclosure is likely to deter use of the CJA process).
Third, this analysis is even clearer here, because recognition of a
First Amendment access right will prevent entirely the functioning of
the Delaware proceeding and will not produce any additional
transparency.
Confidentiality is one of the principal reasons that parties decide
to resolve a dispute through arbitration. Def.Br. 59-62; Chamber/BRT
Br. 18-21. Plaintiff repeatedly depicts this desire for confidentiality as
somehow nefarious (see, e.g., Pl.Br. 30, 40), but—especially in the
context of the business disputes that are eligible for Delaware’s
procedure—there are obviously legitimate reasons for confidentiality:
for example, protecting confidential business information; avoiding the
antipathy between business partners that may result from repeated
public sparring; presenting a comprehensive factual case without the
risk that the presentation will be used against the company in business
dealings, public debate, or other lawsuits.

32

Without confidentiality, parties will not use Delaware’s procedure
to resolve their disputes. Unlike the other situations in which First
Amendment access claims have been considered, parties choosing to
arbitrate their disputes are not limited to government proceedings; they
can instead select any one of a number of private sector arbitrators. In
applying the “logic” test, therefore, it is important to take account of the
indisputable fact that recognition of an access right will not produce any
additional public access, because parties seeking to arbitrate their
disputes will simply select a different arbitration forum.

Certainly

there are a large number of alternatives from which to choose, including
many sponsored by foreign governments in which judges serve as
arbitrators. Chamber/BRT Br. 21-23.
All of the precedents cited by Plaintiff involve proceedings in
which the parties had no alternative choice of forum, Pl.Br. 39-43, and
the only adverse effect considered was the negative consequences for
the integrity of the proceeding itself.

Here, given the continued

availability of a wide range of arbitration options to which a
constitutional right of access could not possibly attach, it is certain that
recognition of an access right in this case will not produce any
33

additional transparency, it will simply terminate Delaware’s arbitration
program.
That result would be permissible under the logic standard only if
Delaware’s arbitration proceeding serves no public purpose—if such
proceedings do serve a legitimate purpose, imposing a condition that
will eliminate their use would not “play[] a significant positive role.”
Plaintiff plainly believes that arbitration serves no useful purpose, but
Delaware has made a different judgment, and its conclusion—which is
plainly reasonable (see Def.Br. 64-65)—is entitled to deference.
Plaintiff is wrong in asserting (at 45-46) that Defendants are
invoking economic concerns to override the First Amendment.

The

question here is whether a First Amendment right should be recognized
in the first place, not whether an established right may be overridden
because of a State’s compelling interest.

To resolve the question

whether to recognize a constitutional right at all, the logic inquiry
requires consideration of whether requiring public access would
undermine the viability of the proceeding and, if so, what government
interests would be adversely affected.

34

There can be no doubt that

significant state interests would be harmed if Delaware’s arbitration
procedure was effectively terminated.
Delaware would be prevented from providing its domiciliaries
with an arbitral forum similar to those available in other developed
countries around the world.6 And it would make Delaware, and the
United States generally, significantly less attractive as a location for
global businesses to incorporate—thereby reducing not only state
revenues but also job creation within the State.

See Def.Br. 64-65.

That result also would prevent other States from using court-annexed
arbitration to provide their citizens with flexible, expeditious dispute
resolution (see Def.Br. 44-46).7

The concern is not with saving “tax

revenues” (Pl.Br. 45), but rather with preventing States from using

See, e.g., Deutsches Richtergesetz [DRiG] [German Law on
Judges], April 19, 1972, last amended July 11, 2002, § 40 (Ger.),
available at http://www.iuscomp.org/gla/statutes/DRiG.pdf (providing
that German judges may act as arbitrators in confidential and nonconfidential proceedings subject to certain conditions); Arbitration Act,
1996, c. 23, § 93(1) (U.K.) (“A judge of the Commercial Court or an
official referee may, if in all the circumstances he thinks fit, accept
appointment as a sole arbitrator or as umpire by or by virtue of an
arbitration agreement.”).
6

It would also invalidate a parallel arbitration program in the
Delaware Superior Court, which is identical to arbitration in the Court
7

35

their limited resources innovatively to provide more expeditious means
for resolving disputes.
In sum, the consequence of recognizing a public access right would
be to thwart a significant number of important state interests without
producing any increase in transparency.

Nothing in the First

Amendment requires that illogical result.
CONCLUSION
The judgment of the district court should be reversed.
Respectfully submitted,
/s/ Andrew J. Pincus

of Chancery in all relevant respects. See Del. Code Ann. tit. 10, § 546;
Del. Super. Ct. R. 16, 137(d)(2).
36

Andre G. Bouchard
Joel Friedlander
BOUCHARD MARGULES &
FRIEDLANDER, P.A.
222 Delaware Ave., Suite 1400
Wilmington, DE 19801
[phone]

Andrew J. Pincus
(D.C. Bar No. 370762)
E. Brantley Webb*
MAYER BROWN LLP
1999 K Street, NW
Washington, DC 20006
[phone]

Lawrence A. Hamermesh
Widener University School of
Law
4601 Concord Pike
Wilmington, DE 19803
[phone]

* Admitted only in Tennessee,
supervised by principals of the firm

Counsel for Defendants-Appellants
Dated: February 8, 2013

37

CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C) and
Third Circuit Rule 31.1(c), the undersigned counsel for DefendantsAppellants certifies that this electronic brief:
(i) complies with the type-volume limitation of Rule 32(a)(7)(B)
because it contains 6,996 words, including footnotes and excluding the
parts of the brief exempted by Rule 32(a)(7)(B)(iii);
(ii) complies with the typeface requirements of Rule 32(a)(5) and
the type style requirements of Rule 32(a)(6) because it was prepared
using Microsoft Office Word 2007 and is set in 14-point sized Century
Schoolbook font;
(iii) is identical to the ten hard copies sent to the Clerk of the
Court on February 8, 2013 via overnight courier service; and
(iv) has been scanned with a virus detection program and no virus
was detected.
/s/ Andrew J. Pincus
MAYER BROWN LLP
1999 K Street, NW
Washington, DC 20006
[phone]

THIRD CIRCUIT RULE 28.3(d) CERTIFICATION
Pursuant to Third Circuit Rule 28.3(d), the undersigned counsel
for Defendants-Appellants certifies that Andrew J. Pincus is a member
of the bar of this court.

/s/ Andrew J. Pincus
MAYER BROWN LLP
1999 K Street, NW
Washington, DC 20006
[phone]

CERTIFICATE OF SERVICE
I hereby certify that on February 8, 2013, I electronically filed the
foregoing with the Clerk of the Court for the United States Court of
Appeals for the Third Circuit by using the CM/ECF system.
Participants in the case who are registered CM/ECF users will be
served by the CM/ECF system. I further certify that I served the two
above documents on the following non-CM/ECF participant and
Plaintiff-Appellee

by

overnight

delivery

through

a

third-party

commercial carrier:
Lawrence A. Hamermesh
Widener University School of Law
4601 Concord Pike
P.O. Box 7474
Wilmington, DE 19803-0000
[e-mail]

David L. Finger
Finger & Slanina, LLC
1201 N. Orange St., 7th fl.
Wilmington, DE 19801
[phone]
Counsel for Plaintiff-Appellee

Counsel for Defendants-Appellants

/s/ Andrew J. Pincus
MAYER BROWN LLP
1999 K Street, NW
Washington, DC 20006
[phone]