Note: Revised 12/24/2013
It should not be a secret that Delaware’s court system is bad. Nor should the reason be obscure. I once sat in the chamber of the Delaware House of Representatives and listened to the Chief Justice of the Delaware Supreme Court boast of the role Delaware’s courts play as a tool for “economic development.” Meaning, of course, that businesses will incorporate in Delaware because they know the courts will side with them against employees, customers, the environment, etc.
It should be obvious that courts dedicated to serving special interests are unlikely to offer justice to the people with any reliability. It was not obvious to the Delaware senators and representatives in the House chamber that day, who rose in loud applause.
These problems exist at every level of Delaware’s court system, from the Justice of Peace (“Magistrate”) courts to the Supreme Court.
Some very dedicated people have worked persistently for many years to open up the “Family Court” of Delaware, which operates behind closed doors in flagrant violation of the Delaware Constitution. (Article 1, Bill of Rights, Section 9. “All courts shall be open” I don’t see any fuzziness there.)
The “official” argument on this point is that because the Family Court is established by statute and is not mentioned in the Constitution, the constitutional provision that “all courts” be open does not apply. This argument is convenient, but appears to me to be nonsense.
It is easy to see why the Chancery Court or the Supreme Court would favor big businesses over humans, but one might wonder why the Family Court, which generally doesn’t deal with business matters, would be such a scandal–the tales of evil and injustice meted out in this “court” go back decades.
My theory–please comment if you have a different one–is that the Family Court is run not by the judges, but by the lawyers practicing before it–effectively, the Family Law Section of the Delaware State Bar Association. These lawyers operate the Court as a profit center for themselves: The more matters can be dragged out, the more misery inflicted, the bigger slices of peoples’ assets end up in the pockets of the lawyers themselves.
To put it another way, it is in the interest of people going through a divorce, say, to get things resolved and get on with their lives. The lawyers have a financial interest in prolonging the pain.
The Family Court has been investigated over and over again and the complaints are always similar, but little has changed.
Delaware has a permanent Family Law Commission that never seems to do much.
The lawyers and others opposing obedience to the Constitution typically claim that the tender sensibilities of children and others will be affronted by public proceedings. They, of course, are trained advocates who know how to get their way, and are treated with excessive deference by the General Assembly.
For another piece of the puzzle, see this post from January 2009: “… Governor Jack Markell needs to reform Delaware’s judicial selection process” Need we say: he didn’t.
Some people–I’m one of them–suspect that work done by Common Cause of Delaware on opening up the Family Court , lead by John Flaherty, generated pushback that contributed to the shutdown of Common Cause in Delaware. (Since reborn more-or-less as a brownnoser org.)
This post is timely because a “Task Force” on the openness of the Delaware Family Court, operating under a Senate Concurrent Resolution, has recently held meetings and heard testimony. The Associated Press has reported: “Task force recommends to open more Family Court hearings.” A report to the legislature is due by Feb 15, 2014. However, this sort of thing has happened before and little has changed. Still we have heard from some people who think that this time around some good will emerge. So this could be a good time to submit comments.
The Task Force has two more meetings scheduled:
Tuesday afternoon, Jan. 7, from 2:00 to 4:00 with a public comment session from 1:00 until 2:00;
Thursday morning, Jan. 23, from 10:00 until 12:00 with a public comment period from 9:00 until 10:00.
Both meetings will be held in the Senate hearing room on the second floor of Leg Hall.
Comments can be emailed to Dick.Carter@state.de.us .
In my opinion this would be needed to force real change: A very clearly worded law, stating that all Family Court proceedings be open, unless a judge makes a detailed written finding, specific to that proceeding at that time and place, as to why the Constitution of Delaware should not apply. Mandatory criminal penalties should apply to violations.
Here is a batch of moving commentary and testimony, linked from Nancy Willing’s Delaware Way blog.
Note this curious document, “Privacy of Proceedings in Family Court,” which seems to say that the Constitution of Delaware, supposedly the supreme law of the state, applies in only one of the fifteen “case types” called out. Appears to me that the Judges running the Family Court need some basic legal education.
See the site of the Delaware Court Reform Initiative.