M & A Law Prof Blog

Editor: Brian JM Quinn
Boston College Law School

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Tuesday, February 25, 2014

Family Law and Arbitration

There's a difference between family law and Delaware's Chancery Arbitration program.   In appearance before a legislative budget committee, Chief Justice-designate Strine argued against the idea of opening up Family Court proceedings to the public: 

During a presentation on behalf of the judiciary to legislative budget writers, Leo Strine Jr. said the idea of opening Family Court proceedings regarding sensitive issues such as child custody makes him "really uncomfortable."

Strine, who will be sworn in Friday as chief justice, noted that people often are forced to go to Family Court to deal with "the most intimate, painful things of human life."

"I just think we better pause and think about that," he told members of the Joint Finance Committee. "We have to be very careful."

Delaware's constitution says all courts shall be open, but many Family Court proceedings are nevertheless closed to the public because of laws passed by the General Assembly. Those closed proceedings include hearings involving adoption, termination of parental rights, custody rights and visitation, guardianship, paternity and divorce.

Some readers might find it odd that Delaware is considering opening closed Family Court proceedings, especially since Family Court proceedings in Delaware and in just about every other state are traditionally closed to the public.  So what gives? 

Apparently, in response to the Third Circuit's decision that Delaware's Chancery Court arbitration program may not be confidential, some people in Delaware are reading into that that Family Law courts must also open.  Uh...no. 

This is where the proponents of the Chancery Arbitration program typically go awry.  Here's the thing.  The qualified right of access is just that. It's a qualified right of access to the courts and proceedings: 

A proceeding qualifies for the First Amendment right of public access when “there has been a tradition of accessibility” to that kind of proceeding, and when “access plays a significant positive role in the functioning of the particular process in question.”

This 'experience and logic test' is the touchstone for determining whether there should be a qualified right of access.  When the Third Circuit examined the Chancery Arbitration program it looked sufficiently like a typical corporate law trial except for the fact that the proceedings were to be confidential.  Experience and logic determined that the arbitration program be kept open. 

Apparently, observers of the Family Court in Delaware interpreted the Third Circuit's opinion to mean that perhaps the family courts would also have to be opened to the public.  Fortunately, for all the reasons Chief Justice-designate Strine alluded to today, that's not the case.  Why? Well, applying the experience and logic test to the functioning of the family courts in Delaware (and everywhere else in the country) will firmly place most proceedings behind closed doors where they traditionally have been.

In other news, a series of amici have been filed by firms all over the country asking SCOTUS to take up Delaware's appeal in the arbitration case.   I'll post them soon.

-bjmq

 

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