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Arbitration with public spectators? Maybe . . .

The Supreme Court on Monday cleared the way for the public and the press to sit in on arbitration of business disputes in Delaware, when a state judge acts as the arbitrator.  That was the result of the Court’s denial of an appeal by a group of Delaware judges, seeking to keep those proceedings closed to the public.  If business firms do not like having a public audience, that could limit or even kill a four-year-old Delaware experiment.

That was one of several denials of review in significant cases.  In addition, the Court agreed to add to its decision docket for next Term a new case on the appeal rights of state prisoners in federal habeas courts.  It also sought the U.S. government’s views on the deadline for filing a lawsuit claiming that the manager of a retirement plan made faulty investment decisions, and on the right of an investor to sue over the filing of a defective stock registration statement, when the investor acquired an interest in the stock before such a statement existed.

The Court offered no explanation, as usual, when it decided against reviewing the Delaware arbitration case, Strine v. Delaware Coalition for Open Government.

Ordinarily, arbitration proceedings are not public events, because they are a way to resolve private legal disputes without the formality of a court trial and without much of the expense of hiring trial lawyers and of paying for pre-trial and trial maneuvering.  Delaware’s legislature wanted to keep arbitration a closed matter when it decided, in 2009, to allow state judges to take on the task of arbitrator in a closed system.

The U.S. Court of Appeals for the Third Circuit ruled, however, that this would turn arbitration into something like a civil courtroom trial, so they had to be open to the public and the press under a string of Supreme Court precedents on the right of First Amendment access to court proceedings.

The judges who were allowed to take on the task of business arbitrators were members of the state’s Court of Chancery — the main state court deciding business disputes under Delaware state law.  They are generally regarded as experts on commercial law, and thus their participation in arbitration was believed to be welcome by business firms and would encourage them to bring their disputes to Delaware for resolution.

The legislature adopted the experiment because, it said, it was concerned that other nations might be able to attract corporations to organize there by setting up user-friendly, closed systems of business arbitration.  The system it created would give the firms involved in a dispute the right to call upon a Chancery Court judge to be the arbitrator.  The records of such cases would only become public if the case ultimately led to an appeal to the Delaware Supreme Court.

The Supreme Court developed the concept of a First Amendment right of access to court proceedings primarily for criminal cases.  However, lower courts have extended that doctrine to civil trials.  That was the basis of the Third Circuit’s ruling in the Delaware case.

The newly granted habeas case, Jennings v. Stephens, grew out of the killing of a police officer during the robbery of an adult bookstore in Houston in July 1988.  The officer was killed by Robert Mitchell Jennings, who confessed to the shooting but claimed that the gun went off when the policeman tried to tackle him in the store.

Jennings was convicted of murder and sentenced to death.  After failing with challenges in state court, he pursued in federal habeas court the claim that his defense lawyer did not perform adequately during the sentencing phase, by failing to bring out evidence that could have helped persuade the jury not to vote for a death sentence — evidence of brain injury and a seriously deprived childhood, as well as the fact that he was born as a result of the rape of his mother, who told him she did not want him.

After a federal judge ruled that the defense lawyers were deficient, but ruled against Jennings on one of his claims, state prosecutors pursued an appeal to the U.S. Court of Appeals for the Fifth Circuit.  Lawyers for Jennings sought to raise the issue on which they had lost in the district court, but the Fifth Circuit said that claim was barred because his counsel had not filed a formal notice of appeal and a motion for the right to appeal.

Although Jennings’s petition in the Supreme Court raised four issues, the Justices agreed to decide only one: whether a habeas challenger who wins on a point in district court must file a notice of appeal and a motion for a certificate of appealability to raise, during the state’s appeal, an issue of his own.

The Court’s actions on Monday asking for the views of the U.S. Solicitor General involved two new cases:  Tibble v. Edison International, on the timing of a lawsuit to challenge the investment decisions of a retirement plan manager, and Moores v. Hildes, on the right of an investor to sue over an allegedly misleading registration statement that had not existed at the time the investor had acquired the rights to a security through a merger agreement between software companies.

There is no timetable for the Solicitor General to reply.  Once those replies are in, the Court will decide whether to hear the cases.

The Court, after the sixteenth session at which it was to consider an Arizona death-penalty case, once more took no action.  The case is Ryan v. Hurles, which tests whether a federal court reviewing a state conviction in a habeas proceeding may refuse to defer to the factual findings by a state court, because the state court had not held a hearing to weigh the evidence.

Here, in summary, are some of the issues in other cases that the Court refused to grant on Monday:

** The scope of the Environmental Protection Agency’s authority to veto a permit to discharge pollutants into a waterway, after the permit had been issued by the Army Corps of Engineers and the discharge had continued for several years (Mingo Logan Coal Co. v. EPA).

** Whether Congress lacked the power, under the Thirteenth Amendment, banning slavery, to pass in 2009 a federal law making it a crime to carry out acts of violence on the basis of victim’s race, color, or national origin (Hatch v. United States).

** Whether a decision by a court can constitute the unconstitutional seizure of property under the Fifth or Fourteenth Amendment’s guarantees of just compensation for such seizures.  The case involved a petition by a lengthy list of beverage distributors seeking to contest a Connecticut Supreme Court ruling denying them ownership of deposits set aside to pay for return of empty drink containers (A. Gallo & Co., Inc., v. Esty).

** Whether a sender of commercial fax messages that is sued for damages under a federal law can defend itself by arguing in court that the federal law is invalid (Walburg v. Nack).

Recommended Citation: Lyle Denniston, Arbitration with public spectators? Maybe . . ., SCOTUSblog (Mar. 24, 2014, 11:44 AM),