Public Judges and Private Judging

Judges on the Delaware Chancery Court are being sued for participating in “secret judicial proceeding[s].”  The back story is that the Delaware  legislature passed a statute and then rules a few years ago allowing chancery court judges to act as arbitrators.  (Here is early commentary by Larry Ribstein.)  Arbitration filing fees (an initial $12,000 and then $6000 per day) in Delaware are deposited in the court’s Arbitration Fund Account.  In other words, professional responsibility rules may prevent judges from acting as paid private arbitrators  - basically moonlighting - while also public judges, but that is not what is happening here. 

The complaint was filed yesterday by the Delaware Coalition for Open Government, Inc., in the federal district court in Delaware.  It essentially alleges that an arbitration under these rules violates the First and Fourteenth amendments and the Civil Rights Act because the documents are confidential and not part of a public record or docketing system.  As the complaint says: "Although the statute and rules call the procedure 'arbitration,' it is really litigation under another name."

Can this be?  I ask not as a constitutional scholar, but because I think our court system already facilitates private negotiated contract in some ways, including using public judges to settle cases.  Delaware is unusual in the extent to which it is developing a service that competes with private arbitration services, but other courts have integrated arbitration and mediation into their court system, including into specialized business courts.   A difference in kind or degree?