43
IN THE SUPREME COURT OF THE UNITED STATES
__________________________
JOE PUBLIC and JANE PRIVATE,
Petitioner,
v.
ENTERTAINMENT TABLOID, INC. (ETI) and RAD INTERNATIONAL GROUP (RADIG),
Respondents,
_________________________
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF RADNOR
_________________________
BRIEF FOR THE PETITIONER
_________________________
TABLE OF CONTENTS
TABLE OF CONTENTS …………………………………………………………………………2
TABLE OF AUTHORITIES ……………………………………………………………………..4
QUESTIONS PRESENTED………………………………………………………………………7
JURISDICTION…………………………………………………………………………………..8
STANDARD OF REVIEW……………………………………………………………………….8
STATEMENT OF THE CASE……………………………………………………………………9
SUMMARY OF ARGUMENT………………………………………………………………….12
ARGUMENT…………………………………………………………………………………….12
I.
This Court should affirm the decision of Supreme Court of Radnor to uphold the Radnor
Circuit Court’s finding that the Seventh Amendment does not entitle Respondents to a
jury trial because the right to a trial by jury in a civil matter is not a fundamental right nor
is it implicit in the concept of liberty as interpreted under the Due Process Clause or
Privileges or Immunities Clause of the 14th Amendment and social policy concerns
strongly suggest limiting the power of the Radnor Legislature to govern itself has
damaging consequences………………………………………………………………….12
A. The Fourteenth Amendment’s Due Process Clause and Privileges or Immunities
Clause does not incorporate the Seventh Amendment right to trial by jury in civil
matters………………………………………………………………………………..15
i. The Due Process Clause does not incorporate the Seventh Amendment
right to trial by jury in civil a civil matter……………………………………..16
ii. The Court should adhere to precedent rejecting incorporation under the
Privileges or Immunities Clause……………………………………………...19
B. The Seventh Amendment’s right to a jury trial in a civil case is not a fundamental
right recognized by the United States and therefore should not be incorporated
to the States………………………………………………………………………......21
C. Public policy concerns discourage incorporation of the right to a trial by jury in
civil matters and the Court must avoid the serious potential pitfalls that would
follow if the Court incorporates the Seventh Amendment to apply to Radnor……...23
2 II.
This Court should overturn the Supreme Court of Radnor’s affirmation of the Radnor
Circuit Court’s order to strike a cause of action from Petitioners amended complaint
when such an order is in clear violation of the First Amendment’s right to petition the
government for grievances and where the fundamental right to petition the government is
violated Due Process under the 14th Amendment must be afforded as the government has
no overriding compelling interest in striking that cause-ofaction……………………………………………………………………………………. 24
A. The First Amendment’s right to petition the government for civil redress in private
party disputes is a fundamental right possessed by all individuals, collectives and
groups………………………………………………………………………………...25
B. “Meaningful access” to the Courts must be afforded to Joe Public and Jane Private
through Due Process of the 14th Amendment as their fundamental First Amendment
right to petition the government for civil redress is at issue and their sole means of
resolution is exclusively held by the judiciary……………………………………….28
i.
Striking a cause of action rather than granting, denying, or withholding
determination where such is neither “redundant, immaterial, impertinent, nor
scandalous in nature” as defined by Rule 12(f) of the Civil Rules of Procedure
violates Joe Public and Jane Private’s fundamental right to “meaningful
access” of the court protected by Due Process of the 14th
Amendment…………………………………………………………………..30
C. The Radnor Circuit Court has no compelling justification in striking the Declaratory
Judgment cause of action outside of the limitations placed by Rule 12(i) and Rule
12(f) respectively…………………………………………………………………….32
CONCLUSION…………………………………………………………………………………..34
CERTIFICATE OF SERVICE…………………………………………………………………..34
3 TABLE OF AUTHORITIES
United States Supreme Court Cases:
page
Adamson v. California, 332 U.S. 46 (1947)……………………………………………………..20 Barron v. City of Baltimore, 32 U.S. 243 (1833)…………………………………………….14-16 Bhd. v. R.R. Trainmen v. Va., 377 U.S. 1 (1964)…………………………………………….....25
Bill Johnson’s Rest., Inc. v. N.L.R.B., 461 U.S. 731 (1983)…………………………………….26
Boddie v. Connecticut, 401 U.S. 371 (1971)………………………………………....28-29, 32, 37
Bounds v. Smith, 430 U.S. 817 (1977)…………………………………………………………..25
Boruough of Duryea, PA. v. Guarnieri, 131 S.Ct. 2488 (2011)……………………………...26-27
Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508 (1972)……………………….26-28
Duncan v. Louisiana, 391 U.S. 145 (1968). ………………………………………………..passim
Edwards v. Elliott, 88 U.S. 532 (1874) …………………………………………………………20 Edwards v. S. Carolina, 372 U.S. 229 (1963)……………………………………………………25
E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961)……………..25
Ex Parte Hull, 312 U.S. 546 (1941)……………………………………………………………...25
Mapp v. Ohio, 367 U.S. 643 (1961).…………………………………………………………….17
Marbury v. Madison, 5 U.S. 137 (1803)……………………………………………………..14, 25
Maxwell v. Dow, 17 U.S. 581, (1900)………..………………………………………………….20 McDonald v. Chicago, 561 U.S. 3025 (2010)..…………………………………………..14-16, 21 McDonald v. Smith, 472 U.S. 479 (1985)……………………………………………………….25
McKeiver v. Pennsylvania, 403 U.S. 528 (1971) ……………………………………………….22 Minneapolis & St. Louis Railroad Co. v. Bombolis, 241 U.S. 211 (1916). …………………….15 Myers v. United States, 272 U.S. 52, 151 (1926) ……………………………………………….14 N.A.A.C.P. v. Button, 371 U.S. 415 (1963)……………………………………………………..25
4 New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) ………………………………………….17 New York Central R. Co. v. White, 243 U.S. 188 (1917) ………………………………………18 Palko v. Connecticut, 302 U.S. 319 (1937). …………………………………………………….16 Payne v. Tennessee, 501 U.S. 808 (1991)……………………………………………………….20
Planned Parenthood v. Casey, 505 U.S. 833 (1992)..……………………………………………20 Thomas v. Collins, 323 U.S. 516 (1945)………………………………………………………...26
Thornhill v. Alabama, 310 U.S. 88 (1940)….…………………………………………………...17 Salve Regina Coll. v. Russell, 499 U.S. 225 (1991)….…………………………………………..8 Slaughter-House Cases, 83 U.S. 36 (1873)….…………………………………………..15, 19-20 Southern R. Co. v. City of Durham, 266 U.S. 178 (1924) ………………………………….18-19 U.S. v. Cruikshank, 92 U.S. 542, (1876)………………………………………………………..25
Wagner Electric Mfg. Co. v. Lyndon, 262 U.S. 226 (1923) ……………………………………18 Walker v. Sauvinet, 92 U.S. 90 (1875)……..……………………………………………….. 20-22 Washington v. Glucksberg, 521 U.S. 702 (1997) …………………………………………...21, 24 Wayte v. U.S., 470 U.S. 598 (1985)……………………………………………………………..26
Williams v. Florida, 399 U.S. 78 (1970)…………………………………………………………22 United States Court of Appeals Cases:
Halbert v. City of Sherman, Tex., 33 F.3d 526, 530 (5th Cir. 1994)………………………...30-31
St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425 (5th Cir. 2000)...……………………….8 United States District Court Cases
EEOC v. Ford Motor Co., 529 F.Supp. 643 (D.Col. 1982)……………………………………...31
In re Catanella and E.F. Hutton and Co., Inc. Securities Litigation, 583 F.Supp. 1388,
(E.D.Pa. 1984)…………………………………………………………………………………..31
Lakits v. York, 258 F. Supp. 2d 401(E.D. Pa. 2003)…………………………………………….31
5 Melancon v. McKeithen, 345 F. Supp. 1025 (1972).………………………………………...17-18
Oaks v. City of Fairhope, Ala., 515 F.Supp. 1004 (S.D.Ala. 1981)……………………………..31
Sun Cosmetic Shoppe v. Elizabeth Arden Sales Corp., 81 F.Supp. 547
(S.D.N.Y. 1948)………………………………………………………………………………….30
Constitutional Provisions:
U.S. CONST. amend. I. …………………………………………………………………………..25 U.S. CONST. amend. VII. ………………………………………………………………………..14 U.S. CONST. amend. XIV…………………………………………………………………….15, 19 Miscellaneous:
FED. R. CIV. P. 12(c)…………………………………………………………………………30-32
FED. R. CIV. P. 12(f)………………………………………………………………………….30-33
FED. R. CIV. P. 12(i)………………………………………………………………………….30-33
Scholarly Works:
Akhil Reed Amar, The Bill of Rights 215-30 (1998)….………………………………...14, 15, 17
Delmar Karlen, Can a State Abolish the Civil Jury?, 1965 Wis. L. Rev. 103 (1965)……….23, 24 Suja A. Thomas, Nonincorporation: The Bill of Rights After McDonald v. Chicago,
88 Notre Dame L. Rev. 159 (2012)………………..…………………………………………14-15
6 QUESTIONS PRESENTED
I.
Whether the Radnor Supreme Court correctly affirmed the decision of the Circuit Court to
endorse the section of the Radnor Fiscal Emergency Plan abolishing the right to jury trials in
civil matters and doing so does not violate the Due Process Clause or the Privileges or
Immunities Clause of the Fourteenth Amendment?
II.
Whether the Supreme Court of Radnor erroneously erred in its affirmation of the Radnor
Circuit Court’s order to strike a cause of action from Petitioners amended complaint when
such an order is in clear violation of the First Amendment’s right to petition the government
for redress of grievances?
7 JURISDICTION
On December 2, Plaintiffs-Appellants-Petitioners Joe Public and Jane Private filed a
defamation and slander suit in the Radnor Circuit Court against Defendants-AppelleesRespondents Entertainment Tabloid, Inc. (ETI) and RADTV. Record at 2. One month after
filing suit, Joe Public and Jane Private requested and were granted leave from the court to file an
Amended Complaint. R. at 5. The Radnor Circuit Court ordered the Amended Complaint be
stricken from the record without specific reasoning and ordered the Joe Public and Jane Private
to re-file the Amended Complaint without the declaratory judgment cause of action. R. at 6.
The Radnor Court also affirmed the Radnor Fiscal Emergency Plan abolishing jury trials in civil
cases. Id. The Radnor Circuit Court denied all requests for timely reconsideration without
opinion. Id. All parties sought discretionary review from the Supreme Court of Radnor. R. at 7.
The Supreme Court of Radnor in a split 5-4 decision, denied both requests for discretionary
review and in so doing, affirmed the Circuit Court’s decision. Id. Both parties filed separate
Certiorari petitions before this Court, which were consolidated and granted by this Court. Id.
8 STATEMENT OF THE CASE
Radnor, is a state of the United States. Record at 1. The Constitution of Radnor was
enacted by Constitutional Convention, approved by Congress as a condition to admission and
ratified by the citizens of Radnor in referendum. Id. The Constitution of Radnor is silent in
regards to right to trial by jury in civil trials. Id. However, after admittance into the Union, the
very first Radnor Legislature established by statute the right to trial by jury in most cases. Id.
Recently, Radnor has fallen into a fiscal catastrophe due to excessive overspending and
corruption. Id. In a last attempt, to save Radnor from defaulting on its financial obligations, the
Legislature created a package of reforms named “The Radnor Fiscal Emergency Plan.” Id. This
Plan was presented to the citizens and garnered 62% of votes in-favor of implementation. Id.
Within this package of reforms, Radnor eliminated the Appellate Court, eliminated grand jury
proceedings, reduced to half the number of Circuit Court Judges and established discretionaryonly jurisdiction for the Supreme Court in civil matters. Id. The Radnor Judiciary estimated the
expenses saved from this elimination of jury trials were indispensable for the judiciary to be able
to operate efficiently within it new yearly-appropriated budget. Id.
Appellant-Petitioner, Joe Public is a well-known and beloved soap opera actor that has
resided in the State of Radnor his entire life. R. at 2. Appellant-Petitioner, Jane Private is a
nurse at a local hospital and is the wife of Joe Public. Id. Jane Private, is a naturalized U.S.
citizen and a resident of the State of Radnor. Id. Appellees-Respondents, Entertainment
Tabloid, Inc. (“ETI”) and Rad International Group (“RADTV”) are both Radnor Corporations
subject to the laws of Radnor. Id. ETI produces a daily tabloid television program named
“Gossip Show” on Channel 5 during primetime. Id. Channel 5 is owned and operated by
RADTV and is the most watched channel in Radnor. Id.
On May 23, Gossip Show broadcasted a segment on Joe Public and Jane Private where
9 Paparazzi Dan with Gossip Show made the allegations that Joe Public’s wedding “looked like a
mafia wedding,” that Jane Private was a “stolen hog,” that Joe Public had been engaging in a
sexual relationship with Jane Private when she was a minor, and that Joe Public was only
marrying Jane Private because she was two months pregnant. Id. Jane Private and Joe Public
were severely distressed by the broadcast with both of them receiving many distressing phone
calls, Jane became afraid to step out of her own home, and their honeymoon was consequently
cancelled. Id. In addition, Joe Public received many threats, obscene emails, and had lucrative
product endorsement deals terminated as a direct result of the broadcast. Id. On May 27,
because of the fall-out from the broadcast, Joe Public appeared on the television show Tabloid
Zone to set the record straight and deny Gossip Show’s false allegations. Id.
On December 2, Joe Public and Jane Private filed a lawsuit against ETI and RADTV
before the Radnor Circuit Court. Id. The suit alleged that ETI’s May 23 broadcast was
defamatory and slanderous, which have and continue to cause both Joe and Jane great mental
pain and anguish; and that Joe Public’s professional career has suffered as a result of the
broadcast. Id. Furthermore, Joe Public and Jane Private claimed that they were entitled to
higher protection of their privacy rights as protected be Sections 1 and 5 of Article III of the
Radnor Constitution, and thus requested the burden of proving that remarks are true or were
reasonably investigated before broadcasting. R. at 4.
ETI and RADTV answered the Complaint by denying most of the allegations and
Plaintiff’s request for declaratory judgment and by filing a counter-request for declaratory
judgment. Id. ETI and RADTV argued that Plaintiff’s burden-shifting scheme would have a
chilling effect on media. Id. Furthermore, ETI and RADTV questioned the constitutionality of
the section of the Radnor Fiscal Emergency Plan that eliminated civil jury trials by arguing that
10 such a right may not be abridged under the Seventh, Fourteenth, Fifteenth, and Nineteenth
Amendments, or even by popular vote. Id. Additionally, ETI and RADTV alleged that under
the Fourteenth Amendment to the U.S. Constitution, Radnor cannot deny Defendant’s right to a
civil jury trial without denying them one of the privileges or immunities granted by their
American citizenship and without violating their due process rights. Id.
One month after the lawsuit was filed, Gossip Show televised a three-day “investigative
report” that aired an unidentified woman’s hurtful allegations against Joe Public. Id. Jane
Private had a mental breakdown, lost her two-month pregnancy, and was hospitalized in a
psychiatric ward where she seeks treatment for her diagnosed mental illness today. Id. Joe and
Jane requested leave from the Court to file an Amended Complaint, with the new causes of
action for the defamatory three-day broadcast and the emotional damages they suffered. Id.
Joe Public and Jane Private filed a motion to dismiss ETI and RADTV’s request for
declaratory judgment as to their Seventh Amendment civil jury trial rights. Id. Furthermore,
they claimed that the Seventh Amendment has not been incorporated against the states, that it is
not a privilege or immunity of American citizenship, and that the Defendant’s cannot override
the electorate that overwhelmingly voted to suppress this statutory right. Id. ETI and RADTV
answered, that the right to a jury trial is deeply rooted in our nation’s history and fundamental to
all liberties. Id.
Several months later, the Radnor Circuit Court judge, ordered the Amended Complaint be
stricken from the record and ordered Joe Public and Jane Private to re-file without the cause of
action for declaratory judgment request. R. at 6. Joe Public and Jane Private sought
reconsideration from the court and argued that the Court’s actions violated their First
Amendment right to petition the government for redress as to the shifting of the burden of proof
11 and that the Rule of Civil Procedure only force the Court to only grant or deny their request. Id.
ETI and RADTV also sought reconsideration and argued the Circuit Court was bound by the
Fourteenth Amendment to recognize their Seventh Amendment civil jury trial right. Id. The
Circuit Court denied both requests without opinion or judgment. Id.
All parties sought discretionary review from the Supreme Court of Radnor. R. at 7. Joe
Public and Jane Private in their Certiorari petition, argued that the action violated their First and
Fourteenth Amendment rights, that all they were seeking an answer to their cause of action, that
this was a matter law, and that the Court’s only choice was to grant or deny Plaintiff’ s request.
Id. ETI and RADTV in their Certiorari petition, argued that the Circuit Court erred in affirming
the elimination of jury civil trials in that such violated their Seventh, Fourteenth, Fifteenth, and
Nineteenth Amendment rights and that constitutional rights are not subject to vote or subject to
abridgement due to financial woes. Id. The Supreme Court of Radnor denied both requests for
discretionary review and affirmed the Circuit Court’s decision. Id.
Both parties filed separate Certiorari petitions before the United States Supreme Court.
Id. The Supreme Court consolidated and granted both petitions. Id. The two questions before
the court are: (1) Are the Defendants entitled to a civil jury trial under the Seventh and
Fourteenth Amendments of the U.S. Constitution; and (2) Is the striking a cause of action and an
order to file the Amended Complaint without it a violation of Plaintiffs’ First Amendment right
to petition the government for redress of grievances. Id.
SUMMARY OF THE ARGUMENT
This Court has incorporated against the states only those enumerated constitutional rights
that are implicit in the concept of ordered liberty. That is an exacting standard that appropriately
protects federalism values at the root of our constitutional system and application of this standard
12 results in the Court concluding that neither the Due Process Clause nor the Privileges or
Immunities Clause fulfills the standard. Trials in general are designed and structured to provide
a fair process when the people find themselves in a contested legal dispute; and different states
and communities may come to diverse conclusions about the proper approach to executing a fair
process. Thus, Radnor may reasonably conclude that their citizens are best afforded a fair
process by not incorporating the right to trial by jury in civil matters and the Radnor Emergency
Fiscal Plan is the most effective means to preserve financial stability.
Furthermore, this Court has declared the First Amendment’s right to petition the
government for redress of grievances to be a fundamental right. The Petition Clause, fosters
public exchange of ideas that is integral to deliberative democracy as well to the whole realm of
ideas, human affairs and personal expression. Furthermore, the right to petition allows the public
airing of disputed facts and such promotes the evolution and full development of the law by
supporting the development of legal theories. “Meaningful access” to the courts must be
provided under Due Process of the 14th Amendment where: (1) a fundamental right is at issue;
and (2) where the judiciary is the sole means of resolution. Such “meaningful access” is defined
by the Civil Rules of Procedure and need not be defined more.
ARGUMENT
I.
This Court should affirm the decision of the Radnor Supreme Court to uphold the
Circuit Court’s finding that the Seventh Amendment does not entitle Respondents
to a jury trial because the right to a trial by jury in a civil matter is not a
fundamental right nor is it implicit in the concept of liberty as interpreted under the
Due Process Clause or Privileges or Immunities Clause of the 14th Amendment and
social policy concerns strongly suggest limiting the power of the Radnor Legislature
to govern itself has damaging consequences.
“It cannot be presumed that any clause in the Constitution is intended to be without
effect; and therefore such construction is inadmissible, unless the words require it.” Marbury v.
13 Madison, 5 U.S. 137, 174 (1803). “[T]he usual canon of [constitutional] interpretation requires
that real effect should be given to all the words it uses.” Myers v. United States, 272 U.S. 52,
151 (1926). The Seventh Amendment provides, “In Suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact
tried by a jury, shall be otherwise reexamined in any court of the United States, than according to
the rules of common law.” U.S. CONST. amend. VII.
The Constitution was designed and recognized by the “people of the United States for
themselves, for their own government, and not for the government of the individual states.”
Barron v. City of Baltimore, 32 U.S. 243, 247 (1833). The drafters of the Constitution originally
constructed a scheme where the Bill of Rights applied only to the federal government, and not to
any state governments. Id. It was not until the mid 20th century when this Court gradually
started to issue a series of decisions, which began to incorporate these inherent federal rights to
the states themselves; however, total incorporation has never occurred. See McDonald v.
Chicago, 561 U.S. 3025 (2010). The most recent amendment found in the Bill of Rights to be
incorporated was the Second Amendment when this Court held that the Second Amendment is to
be incorporated to the states by virtue of the Fourteenth Amendment. Id.
Following McDonald, there were several possible theories of nonincorporation of the
rights in the Bill of Rights under this Court’s jurisprudence. Suja A. Thomas, Nonincorporation:
The Bill of Rights After McDonald v. Chicago, 88 Notre Dame L. Rev. 159, 203-04 (2012). One
theory suggests that because jury rights highlight the Amendments that have not been
incorporated, that the right to a jury trial is not a fundamental right. Akhil Reed Amar, The Bill
of Rights 215-30 (1998). Another theory suggests that the nonincorporated rights would not be
incorporated because of stare decisis. See Thomas, Nonincorporation: The Bill of Rights After
14 McDonald v. Chicago, at 203. A third possibility is a jury theory of nonincorporation because
the only rights to not fully be incorporated are jury rights. Id. at 203-04. Prior to the time the
Court decided McDonald, the Court also had decided that the Seventh Amendment civil jury trial
right was incorporated against the states. Minneapolis & St. Louis Railroad Co. v. Bombolis,
241 U.S. 211, 221-23 (1916). Despite what theories courts adopt, one fact remains unaffected –
the Seventh Amendment’s right to a jury trial in civil matters has not been fully incorporated and
this Court should reject Respondent’s claim that they are entitled to a jury trial in this matter.
A. The Fourteenth Amendment’s Due Process Clause and Privileges or Immunities
Clause does not incorporate the Seventh Amendment right to trial by jury in
civil matters.
The Fourteenth Amendment provides, “No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property without due process of law . . .” U.S. CONST.
amend. XIV. The debate over whether the Fourteenth Amendment makes applicable against the
states all of the protections of the Bill of Rights is one of the most important and longest-lasting
debates involving interpretation of the United States Constitution. See Amar, The Bill of Rights
215-30. This Court’s first interpretation of the scope of the Fourteenth Amendment, adopted in
1868, was rendered in the Slaughter-House Cases just five years later. Slaughter-House Cases,
83 U.S. 36 (1873). Following a five to four vote, the Court in that case narrowly interpreted the
Privileges or Immunities Clause, thought to be the most likely basis for enforcing individual
rights against states. Id. at 65-67.
In subsequent cases, attention focused on the Due Process Clause. See McDonald, 561
U.S. at 3085-90. Beginning in the early twentieth century the Court began to “selectively
incorporate” some of the specific provisions of the Bill of Rights while rejecting the
15 incorporation of others. Id. at 3034. The Court has applied different tests over time when
analyzing which provisions to incorporate. The Court has endorsed the “modern view,” as
reflected in Duncan v. Louisiana, explaining that provisions of the Bill of Rights "fundamental to
the American scheme of justice" (such as the right to trial by jury in a serious criminal case)
were made applicable to the states by the Due Process Clause of the Fourteenth Amendment
whereas other provisions (such as the right to a jury trial in a civil case involving more than $20)
were not made applicable. Duncan v. Louisiana, 391 U.S. 145 (1968). Applying an analysis of
both the Due Process Clause and the Privileges or Immunities Clause, this Court should conclude
that despite Respondents appeal, the Seventh Amendment does not entitle them to a jury trial in
Radnor.
i. The Due Process Clause does not incorporate the Seventh Amendment
right to trial by jury in civil a civil matter.
The Court held long ago that provisions of the Bill of Rights, of their own force, apply
only to the federal government and do not limit state or local governments. Barron v. City of
Baltimore, 32 U.S. 243 (1833). In a series of cases beginning in the late 19th century, the Court
has recognized that the Due Process Clause of the Fourteenth Amendment incorporates, and
therefore applies to the states, fundamental rights included in the Bill of Rights that are “implicit
in the concept of ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 325 (1937).
To be “implicit in the concept of ordered liberty,” a right must be “implicit,” meaning it
must be essential to the very concept of ordered liberty. Id. As the Court has explained, that
means “neither liberty nor justice would exist if [the right] were sacrificed.” Id. at 326. For
example, First Amendment rights were incorporated because they are “essential to free
government.” Thornhill v. Alabama, 310 U.S. 88 (1940). Likewise, incorporation of the Fourth
Amendment’s protection against unreasonable search and seizure rested on the Court’s
16 conclusion that “the security of one’s privacy against arbitrary intrusion by the police is implicit
in the concept of ordered liberty.” Mapp v. Ohio, 367 U.S. 643, 650 (1961).
This Court in Duncan acknowledged, “if a civilized system could be imagined that would
not accord the particular protection, incorporation is not appropriate.” Duncan, 391 U.S. at 149.
While it protects rights essential to a free society, incorporation necessarily limits the ability of
state and local governments to make their own decisions. Id. at 151. Accordingly, the standard
for incorporation under the Fourteenth Amendment is and should be a demanding one. Id.
Federalism is based on two essential premises. See Amar, The Bill of Rights 215-30.
First, because conditions vary from one place to another, residents in different communities,
facing widely different conditions and social problems, should be able to address them with
varying internal solutions. Id. Second, and more fundamental, even if conditions in two states
may be similar, “[i]t is one of the happy incidents of the federal system that a single courageous
state may, if its citizens choose, serve as a laboratory; and try novel social and economic
experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S.
262, 311 (1932) (Brandeis, J., dissenting).
Present day Louisiana provides a good illustration of this described “laboratory.”
Melancon v. McKeithen, 345 F. Supp. 1025 (1972). The facts of the case state that plaintiffs in
the consolidated cases asked the court to hold that the Seventh Amendment applies to civil
actions in Louisiana courts through the Due Process Clause of the Fourteenth Amendment. Id. at
1027. The three-judge panel held that jury trials in civil cases, and the “absolute prohibition of
judicial reexamination of jury findings in civil cases, are not so fundamental to the American
system of justice as to be required of the state courts by due process . . .” Id. The court reasoned
that the Supreme Court has never deviated from past decisions refusing to extend, in entirety, the
17 Bill of Rights to state governments. Id. at 1035-36. Likewise, the court noted that the Supreme
Court has frequently denied certiorari in cases involving incorporation of the Seventh
Amendment. Id.
The Melancon court continued its analysis and noted the majority in Duncan clearly
identified that the issue is whether given the kind of system found in varying states today, is a
particular procedure so fundamental to an American regime of ordered liberty. Id. at 1038-39.
The Melancon court answered this issue when it said it does not follow that a, “procedure settled
in English law at the time of the emigration, and brought to this country and practiced by our
ancestors, is an essential element of due process of law.” Id. at 1040. The court continued on
stating that if this was a fundamental procedure, “the first half of the seventeenth century would
be fastened upon the American jurisprudence like a straight jacket, only to be loosened by
constitutional amendment.” Id.
The present day operation and effect of a right is crucial to whether it should be
recognized as protected by the Due Process Clause and whether the Clause was designed to be
adaptive rather than fixed. See New York Central R. Co. v. White, 243 U.S. 188, 208 (1917)
(noting that under a state workmen’s compensation statute, the denial of a trial by jury is not
inconsistent with due process); see also Wagner Electric Mfg. Co. v. Lyndon, 262 U.S. 226, 232
(1923) (holding the deprivation of a right to trial by jury in a state court does not deny the parties
due process); see also Southern R. Co. v. City of Durham, 266 U.S. 178, 179 (1924) (noting that
the Constitution does not give to parties the right to demand jury trial when local practice
prescribes otherwise).
Respondents, ETI and RADTV are asking this Court to find that trial by jury in civil
cases is so fundamental to our way of life, so essential to the very essence of a scheme of ordered
18 liberty, that justice cannot be decently administered without it. Unfortunately for the
Respondents, this would require the Court to overrule a number of decisions, and even more
serious, this would put the Court in the position of condemning the way in which the vast
majority of cases are tried in most of the civilized world. The consequence of such a finding
would be that the only fair trial is trial by jury. If this were true, there would be no rational basis
for distinguishing between equity cases and common law cases, allowing a jury in one, but
refusing it in the other. Nor would there be any rational basis for refusing trial by jury in divorce
actions, or in newly created statutory causes of actions, or in criminal proceedings involving
petty offenses.
Simply put, the Seventh Amendment’s right to trial by jury in civil matters is not implicit
in the concept of ordered liberty as articulated by the courts, and therefore the Due Process
Clause does not incorporate the right to trial by jury to Radnor. Thus, Respondents, ETI and
RADTV are not entitled to civil jury trials under the Seventh and Fourteenth Amendments.
ii. The Court should adhere to precedent rejecting incorporation under the
Privileges or Immunities Clause.
The Privileges or Immunities Clause provides, “No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United States.” U.S. CONST.
amend. XIV. In the influential Slaughter-House Cases, the Court construed the Privileges or
Immunities Clause includes only those rights that “are dependent upon citizenship of the United
States, and not citizenship of a State.” Slaughter-House Cases, 83 U.S. at 80.
Relying on Slaughter-House, the Court has consistently rejected incorporation of other
Bill of Rights provisions under the Privileges or Immunities Clause. See Maxwell v. Dow, 17
U.S. 581, 596-02 (1900) (Court rejecting the argument that the Privileges or Immunities Clause
requires the states to adhere to the Fifth Amendment right to grand jury indictment or Sixth
19 Amendment right to jury trial in criminal cases); see also Walker v. Sauvinet, 92 U.S. 90, 92
(1875) (holding trial by jury in suits at common law pending in the state courts is not a privilege
or immunity of national citizenship which the states are forbidden to abridge); see also Adamson
v. California, 332 U.S. 46, 52 (1947) (holding that the privilege against self-incrimination was a
privilege or immunity of state, rather than national, citizenship); see also Edwards v. Elliott, 88
U.S. 532 (1874) (Court unanimously rejecting a claim that the Seventh Amendment right to jury
trial was a privilege or immunity).
The most fundamental principle of our own Constitution requires such continuity over
time that “a respect for precedent is, by definition, indispensable.” Planned Parenthood v. Casey,
505 U.S. 833, 854 (1992). Adhering to precedent “promotes the evenhanded, predictable, and
consistent development of legal principles, fosters reliance on judicial decisions, and contributes
to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808,
827 (1991).
Overruling Slaughterhouse and its progeny would undoubtedly create a chaotic mess in
constitutional law. It would immediately call into question the scope of constitutional rights
enforceable against the states. If the Court elects to endorse the Privileges or Immunities Clause
as an avenue to incorporate the Seventh Amendment to Radnor and the other 50 states, it would
be difficult to understand an argument that the Privileges or Immunities Clause was understood
to incorporate the Seventh Amendment, but not the remaining provisions found in the Bill of
Rights. As illustrated above, there has been significant reliance on this Court’s repeated
reaffirmations that the Privileges or Immunities Clause does not make the Bill of Rights
applicable to the states. Many states, like Radnor, may have constructed their current systems of
criminal and civil justice in reliance of these repeated reaffirmations.
20 Accordingly, overruling Slaughter-House would require not only Radnor, but other states
to overhaul their systems that are not in compliance with the newly applicable provisions; call
into doubt settled judgments in civil (and possibly even criminal) cases; and require states to
tailor their criminal and civil justice systems to federal standards that have previously been found
not to be necessary or fundamental. Those reliance interests strongly discourage overruling
Slaughter-House and its progeny and therefore this Court should reject Respondents desire to
incorporate the Seventh Amendment and its application to Radnor entitling ETI and RADTV to a
civil jury trial.
B. The Seventh Amendment’s right to a jury trial in a civil case is not a
fundamental right recognized by the United States and therefore should not be
incorporated to the States.
The Court must decide whether a right stated in the Bill of Rights is “fundamental to the
Nation’s scheme of ordered liberty, or, as the Court has said in related context, whether it is
deeply rooted in this Nation’s history and tradition.” McDonald, 561 U.S. at 3036 (quoting
Washington v. Glucksberg, 521 U.S. 702, 721 (1997)). Furthermore, the question is whether a
right is among those “fundamental principles of liberty and justice which lie at the base of all our
civil political institutions . . . whether it is basic in our system of jurisprudence, and whether it is
a fundamental right, essential to a fair trial.” Duncan, 391 U.S. at 148-50.
In Duncan v. Louisiana, the Court recognized the right to a jury trial in a criminal matter
should be incorporated and applied to the states. Duncan, 391 U.S. 145. In that case, a 19-year
old became involved in racial incidents that resulted in Duncan being charged with battery. Id. at
146-48. Duncan was convicted and received a 60-day prison sentence and a fine of $150. Id.
Duncan appealed on the grounds that Louisiana had violated the Sixth and Fourteenth
Amendments entitling him to his right to a jury trial in a criminal matter. Id. at 146-48. This
21 Court agreed holding that the right to a jury trial for criminal offenses is a deeply enshrined value
in both the British and American legal traditions. Id. at 146-60. The majority stated that the
importance of recognizing the right to a jury trial in criminal maters is “deeply rooted in this
Nation’s history and tradition” and therefore it is within the parameters of the Fourteenth
Amendment and is applicable to the states. Id.
However, with its holding in Duncan, the Court acknowledged “its holding will not cast
doubt on integrity of every trial conducted without a jury.” Id. at 158. Furthermore, courts have
recognized that the size of the jury, as well as the requirement that juries unanimously reach its
verdict, vary between federal and state courts and are not subject to incorporation. See Williams
v. Florida, 399 U.S. 78 (1970) (holding that a jury in a criminal case may have as few as six
members); see also Walker, 92 U.S. at 92-93 (recognizing the due process requirement of the
Constitution is met if the trial is had according to the settled course of judicial proceedings); see
also McKeiver v. Pennsylvania, 403 U.S. 528, 540 (1971) (holding that due process did not
require a jury trial for a juvenile’s right to jury trial). These holdings vividly illustrate the fact
that the right to jury trial is not so fundamental to the American scheme of justice as to be
required at all times, in a certain form, or in all types of cases.
Contrary to Duncan, our current situation does not involve criminal activity, but instead a
tort action as a result of defamatory allegations. It should follow then, that the fundamental
rights linked with the Sixth Amendment are not applicable to the Court’s analysis here. Unlike
criminal trials where the jury is deeply rooted in this Nation’s history and the involvement of a
jury is intrinsically related to the fair judicial process, the civil jury trial does not share a close
connection with a fundamental principle necessary to our Nation’s scheme or ordered liberty.
22 Therefore, the Court should recognize the Seventh Amendment falls short of qualifying as a
fundamental right.
Drafters of the Radnor Constitution were silent when it came to including language
proclaiming any right to a jury trial in a civil matter. This Court is not tasked with uncovering
these unknown reason(s), but rather, this Court should easily recognize that regardless of
identifying the exact motives, the mere unwillingness to include any such language is strong
confirmation that the drafters did not believe that the right to a jury trial is considered an
inherent, fundamental right necessary to the American scheme of justice. Undoubtedly, citizens
who vote to eliminate a right derived from the Bill of Rights acknowledge that the right is not as
fundamental as the Respondent’s would like it to be.
C. Public policy concerns discourage incorporation of the right to a trial by jury in
civil matters and the Court must avoid the serious potential pitfalls that would
follow if the Court incorporates the Seventh Amendment to apply to Radnor.
If the Court predicated such a ruling on the view that the Fourteenth Amendment
incorporated all of the guarantees of the Bill of Rights, the consequences would be profound.
Delmar Karlen, Can a State Abolish the Civil Jury?, 1965 Wis. L. Rev. 103, 110 (1965). For
example, every state, including Louisiana (which is currently the only state not to recognize the
right to a trial by jury in civil matters through either its own constitution or statute), would be
required to provide trial by jury in civil actions “at law.” Id. This would have devastating effects
to democracy and contradict the Federalist design our Fore Fathers believed to be so sacred and
fought to protect.
For example, Justice Stevens in his dissenting opinion in the recently decided McDonald
case, noted that incorporation of any right significantly harms the democratic process. See
McDonald, 561 U.S. at 3101. Notably, “[r]ecognizing a new liberty right is a momentous step, it
23 takes that right, to a considerable extent, outside the arena of public debate and legislative
action.” Glucksberg, 521 U.S. at 720. Additionally, there is no debate that incorporation of the
right to a trial by jury in civil matters would significantly increase litigation and court costs
following the burdensome time necessary to fulfill the jury requirements. See Karlen, Can a
State Abolish the Civil Jury?, 1965 Wis. L. Rev. at 111-12. “The number of persons required for
jury duty could be expected to increase significantly, and the time required for trials and retrials
could be expected also to increase markedly” as a result of congested court calendars, taxing and
time-consuming jury selection, and prolonged deliberations that could result in a retrial, thus
initiating the expensive cycle all over. Id. at 112.
In a state of financial turmoil, such as Radnor, dismissing such economic concerns is not
an option. The Radnor Congress recognized the importance and urgency required to preserve
financial stability in Radnor. This Court should give deference to the Radnor Congress and
allow democracy to operate as it was designed to do. Undeniably, the Radnor Emergency Fiscal
Plan and its by-products reflect the considered judgment and values of the citizens of Radnor,
and the Court should honor Radnor’s decisions and wishes to protect its current state when the
right in dispute has not been fully incorporated to the states. In conclusion, public policy
concerns strongly discourage Respondent’s claim that they are entitled to a jury trial in this
matter and this Court should affirm the holding of the Radnor Supreme Court.
II.
This Court should overturn the Supreme Court of Radnor’s affirmation of the
Circuit Court’s order to strike a cause of action from Petitioners amended
complaint when such an order is in clear violation of the First Amendment’s right to
petition the government for grievances and where the fundamental right to petition
the government is violated Due Process under the 14th Amendment must be
afforded as the government has no overriding compelling interest in striking that
cause of action.
The First Amendment provides that, “Congress shall make no law . . . abridging . . . the
right of the people . . . to petition the Government for a redress of grievances.” U.S. CONST.
24 amend. I. Chief Justice John Marshall, profoundly stated, that the ability to obtain civil redress is
the “very essence of civil liberty” and “one of the first duties of government is to afford that
protection…” Marbury, 5 U.S. at 143. It has long been established that all First Amendment
freedoms are protected by the 14th Amendment from invasion by the States. Edwards v. S. C.,
372 U.S. 229, 235 (1963). The right to petition “…is implicit in the very idea of government,
republican in form.’” McDonald v. Smith, 472 U.S. 479, 482 (1985) (quoting U.S. v.
Cruikshank, 92 U.S. 542, 552, (1876)).
A. The First Amendment’s right to petition the government for civil redress in
private party disputes is a fundamental right possessed by all individuals,
collectives and groups.
The evolution of case law surrounding the First Amendment’s Petition Clause is
relatively recent. However, this Court has incrementally held that all collectives, groups, and
individuals have a right to petition the government for civil redress. Prisoners have a right of
access to the courts in both criminal and civil disputes. Ex Parte Hull, 312 U.S. 546, 549 (1941);
see also Bounds v. Smith, 430 U.S. 817, 822 (1977). Groups and collective litigants have a right
of access to the courts. N.A.A.C.P. v. Button, 371 U.S. 415, 427 (1963) (holding that minority
groups have a right to access of the courts to protect their associational rights); Bhd. v. R.R.
Trainmen v. Va., 377 U.S. 1, 4 (1964) (holding that employees have the right of access to the
courts where unfair labor practices are at issue); E. R.R. Presidents Conference v. Noerr Motor
Freight, Inc., 365 U.S. 127, 133 (1961) (holding collective industries have a right of access to the
courts when anti-trust violations are at issue). Private individuals engaged in civil disputes have
a right of access to the Courts. Bill Johnson’s Rest., Inc. v. N.L.R.B., 461 U.S. 731, 753 (1983).
More recently, this Court has generally held that the right of access to the courts for redress of
wrongs is but one aspect of the First Amendment right to petition the government. Cal. Motor
25 Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 513 (1972).
Seemingly enough, this Court has backed the evolution of the Petition Clause as a
fundamental right dually connected with other First Amendment rights. The right to speak and
the right to petition “although are not identical, (they) are inseparable,” as they are “cognate
rights.” Thomas v. Collins, 323 U.S. 516, 530 (1945); see also Wayte v. U.S., 470 U.S. 598, 610
(1985). It was not by accident or coincidence that these rights to freedom of speech…were
coupled in a single guaranty with rights of the people…to petition for redress of grievances. See
Thomas, 323 U.S. at 530. The First Amendment’s rights of speech, association, and petition are
not limited to “great” or even “small” issues. Id. at 531.
In light of these self-evident truths, this Court recently held that lawsuits are petitions and
are protected by the First Amendment’s Petition Clause. Boruough of Duryea, PA. v. Guarnieri,
131 S.Ct. 2488, 2496 (2011). For instance, in Boruough of Duryea, a governmental employee
claimed a lawsuit was a petition under the Petition Clause and that denial of his overtime was
retaliation for filing a lawsuit. See Boruough of Duryea, 131 S.Ct. at 2493. The Court held that
the governmental employee’s lawsuit was a petition and remanded the case for further
proceedings. Id. at 2501. The Court reasoned that the right to petition allows citizens to express
their ideas, hopes, and concerns to their government and is fundamental in nature. Id. at 2495.
The Court noted that the rights to speak and petition fosters public exchange of ideas that is
integral to deliberative democracy as well to the whole realm of ideas, human affairs and
personal expression. Id. Additionally, the Court strongly reasoned that lawsuits as petitions
foster public exchange in that they “allow the public airing of disputed facts” and “promote the
evolution and full development of the law by supporting the development of legal theories.”
Boruough of Duryea, can be juxtaposed with the case at hand. First, just as in Boruough
26 of Duryea, Joe Public and Jane Private had filed a lawsuit with the Radnor Circuit Court in order
to express their ideas and concerns. Specifically, their concerns are derived from a national
broadcast of false, defamatory, and slanderous material against them that has caused them great
injury. This lawsuit conveys those special concerns of both Joe Public and Jane Private to the
Radnor Courts and simply requests action by the those Courts to address those concerns. The
entire lawsuit, therefore stands to foster this public exchange of ideas and concerns that is so
integral to the whole realm of human affairs and personal expression. Furthermore, just as in
Boruough of Duryea, Joe Public and Jane Private’s lawsuit fosters this public exchange through
the public airing of disputed facts. Joe Public and Jane Private want nothing more than for the
Radnor’s Courts to make a final determination regarding the disputed facts in whichever form
and at whatever time that determination may occur.
However, in stark contrast to Boruough of Duryea, Joe Public and Jane Private’s lawsuit
cannot “promote the evolution and full development of the law by supporting the development of
legal theories,” when the Circuit Court strikes causes of action from the record, while giving no
specific reasoning for the order. Specifically, by striking this cause of action the Circuit Court is
removing specific parts of the lawsuit that will be directly appealable if they are allowed to exist.
Therefore, with the Circuit Court’s order to strike the cause of action with no objective reasoning
behind such an order, the Court is thereby changing and significantly shaping the ideas and
concerns wished to be expressed by its author’s into something that is no longer theirs. The end
result of such an action, is to turn the lawsuit into a Court created petition; whereby, the First
Amendment’s right of the individual to express their ideas and concerns through governmental
petition for civil redress does not exist.
27 B. “Meaningful access” to the Courts must be afforded to Joe Public and Jane
Private through Due Process of the 14th Amendment as their fundamental First
Amendment right to petition the government for civil redress is at issue and
their sole means of resolution is exclusively held by the Radnor judiciary.
This Court has previously held that the right of access to the courts for redress of wrongs
is but one aspect of the First Amendment’s Petition Clause. Cal. Motor Transp. Co., 404 U.S. at
513. The time has come for this Court to define further “aspects” of this fundamental liberty.
Specifically, by defining the protections that are afforded.
This Court has previously held that plaintiffs must be afforded “meaningful access” to the
courts, under Due Process of the 14th Amendment where: (1) fundamental rights are involved;
and (2) only where judicial access is the exclusive means of resolving the issue. Boddie v.
Connecticut, 401 U.S. 371 (1971). In Boddie, an indigent woman sought a divorce within state
court only to be denied access to the courts by applicable court costs. Id. at 373-74. This Court
held that such a denial of “meaningful access” was unconscionable. Id. at 375. This Court noted
that the right to marriage at issue was a previously established fundamental right. Id. at 376.
The Court reasoned, that where a fundamental right is at issue and where the state creates and
controls the only source for resolution, Due Process protections under the 14th Amendment must
afford parties “meaningful access” to the Courts. Id. at 376, 380. Additionally, this Court
importantly noted that the precondition of a fundamental right is required to reach the analysis
provided in Boddie. Id. at 382.
This previous case, can easily be compared and contrasted to the case at bar on every
level. First, although this Court never addressed the Petition Clause in Boddie, as previously
discussed the evolution of case law has since elevated the First Amendment’s Petition Clause to
the level of a fundamental right. Therefore, as importantly noted by this Court, the required
precondition of a fundamental right at issue has been met. Secondly, just as in Boddie, the
28 Radnor Courts are the only means by which Joe Public and Jane Private may seek resolution in
this matter. Just as in Boddie, the law at issue, was state created and controlled. Specifically, in
this case, the laws at issue are state created defamation and libel causes of action. For these state
created phenomena, there exists no forum on which those so injured may stand and seek
resolution except in the forum for which it was created and in its entirety is controlled and that
forum is the Radnor state judiciary.
Opposing counsel will argue that private parties may always seek settlement; thereby,
making the state judiciary not the only source for resolution. However, settlements are but
consequence of some other undesired outcome or cost. Therefore, settlement is but an agreement
facilitated by the judiciary. Of course it is the goal of the judiciary to push for settlement; but,
not at the cost of sacrificing their sole source of determining power for their state created laws.
Additionally, opposing counsel will likely argue that if the Court holds that Due Process
protects the Petition Clause then a “snow-ball effect” will occur and courts will lose the
discretion of denying cases that lack meritorious foundations. However, this could not be further
from the truth, as Joe Public and Jane Private simply contend that Due Process affords protection
where the fundamental right to petition is at issue from irrational interference, wherever it may
occur during the evolution of the lawsuit once the Court has already accepted the case.
In conclusion, the case at bar has met both requirements set in Boddie for the affording of
Due Process under the 14th Amendment in that: (1) the fundamental right of the Petition Clause
is at issue; and (2) the Radnor Court is the only source for resolution of state created and
controlled issues of law. Whereby, “meaningful access” to the Courts must be provided under
Due Process of the 14th Amendment. Next, one must define what “meaningful access” denotes.
29 i.
Striking a cause of action rather than granting, denying, or withholding
determination where such is neither “redundant, immaterial,
impertinent, nor scandalous in nature” as defined by Rule 12(f) of the
Civil Rules of Procedure violates Joe Public and Jane Private’s
fundamental right to “meaningful access” of the court protected by Due
Process of the 14th Amendment.
The Rules of Civil Procedure states, “After the pleadings are closed…a party may move
for judgment on the pleadings.” FED. R. CIV. P. 12(c). Furthermore, the Rules specifically define
that any Declaratory Judgment, “whether made in a pleading or by motion…under Rule 12(c)
must be heard and decided before trial unless the court orders a deferral until trial. FED. R. CIV.
P. 12(i); Sun Cosmetic Shoppe v. Elizabeth Arden Sales Corp., 81 F.Supp. 547, 550 (S.D.N.Y.
1948). Therefore, in regards to the Declaratory Judgment cause of actions, the Rules do
specifically define “meaningful access” to the courts. Specifically, the Rules define the
allowable actions that may be used in such matters in order to protect “meaningful access” to the
courts and those allowable actions that the Radnor Circuit Court did not use were to either: (1)
grant; (2) deny; or (3) withhold determination for a later time.
Unfortunately, no applicable case law touches on the subject of the courts striking
declaratory judgment cause of actions through Rule 12(f), rather than by taking allowable actions
under Rule 12(i) as previously discussed. This would allow a reasonable conclusion to be made
that such a circumvention of the Rules and such a denial of “meaningful access” to the courts has
never been contemplated as an allowable action that the courts may take. Although striking the
cause of action rather than by taking an allowable action under Rule 12(i) can only be considered
a circumvention of the Rules itself, it is important to analyze Rule 12(f).
Specifically, Rule 12(f) states, “The court may strike from a pleading…any redundant,
immaterial, impertinent, or scandalous matter,” and that the “the court may act on its own.” FED.
R. CIV. P. 12(f). The Circuits agree that “any” cause of action cannot be struck without reason;
30 thereby, allowing a reasonable conclusion to be made that without specific reasoning as defined
by Rule 12(f) the courts may not take such action without providing justification. Striking
causes of action are generally disfavored. Lakits v. York, 258 F. Supp. 2d 401, 409 (E.D. Pa.
2003). The standard for striking under Rule 12(f) is strict. In re Catanella and E.F. Hutton and
Co., Inc. Securities Litigation, 583 F.Supp. 1388, 1400 (E.D.Pa. 1984). Only “allegations that
are so unrelated” to plaintiffs’ claims as to be unworthy of any consideration should be stricken.
EEOC v. Ford Motor Co., 529 F.Supp. 643, 644 (D.Col. 1982); Oaks v. City of Fairhope, Ala.,
515 F.Supp. 1004, 1032 (S.D.Ala. 1981). In the absence of “justifying reasons,” it is an error for
the district court to deny facially valid motions. Halbert v. City of Sherman, Tex., 33 F.3d 526,
530 (5th Cir. 1994).
These Rules were created to protect “meaningful access” to the courts and they expressly
and explicitly define the allowable actions the Radnor Circuit Court may have taken when
handling the at issue Declaratory Judgment causes of action. Therefore, Joe Public and Jane
Private need not try to add more. Firstly, Joe Public and Jane Private filed through their
pleadings a Declaratory Judgment cause of action defined by Rule 12(c). Therefore, Rule 12(i),
governs the allowable actions the Radnor Circuit Court may have taken. Secondly, rather than
follow the expressly defined allowable actions of either granting, denying, or withholding
determination until a later time under Rule 12(i); the Radnor Circuit Court ordered the
Declaratory Judgment cause of action to be struck from the record under 12(f). Therefore, the
Radnor Circuit Court circumvented Rule 12(i)’s expressly set limitations on allowable actions.
Thirdly, the Radnor Circuit Court gave no reason at all in justifying the cause of action’s
striking. As Rule 12(f) expressly states the only reasons for striking a cause of action, the
Radnor Circuit Court failed to provide justification under Rule 12(f).
31 This Court should overturn the Supreme Court of Radnor’s affirmation of Radnor Circuit
Court’s order to strike the cause of action when the Rules of Civil Procedure define “meaningful
access” in this case under Rule 12(c) and 12(i) respectively. The Radnor Circuit Court’s
circumvention of these rules is a violation of Due Process that must be afforded when Joe Public
and Jane Private’s First Amendment right to petition is at issue. However, both Joe Public and
Jane Private are willing to accept a valid striking of the cause of action if the Radnor Circuit
Court provides the applicable and allowable justification under Rule 12(f) if the court has such.
C. The Radnor Circuit Court has no compelling justification in striking the
Declaratory Judgment cause of action outside of the limitations placed by Rule
12(i) and Rule 12(f) respectively.
This Court should apply strict scrutiny to such a violation of Joe Public and Jane
Private’s right to “meaningful access” of the courts afforded by Due Process. This Court has
previously held that where a claim to a fundamental right exists and “…in the absence of a
sufficient countervailing justification for the state’s action, there exists a denial of due process.”
Boddie, 401 U.S. at 380-81. For instance, in Boddie, an indigent woman sought a divorce within
state court only to be denied access to the courts by applicable court costs. Id. at 373-74. This
Court held that where a claim to a fundamental right exists the state must have a significant
overriding interest in taking an action that tramples those rights. Id. at 375, 380-81. The Court
reasoned that the state’s interest in both the prevention of frivolous litigation and as well the
protection of scarce judicial resources were both substantial state interests. Id. at 381. However,
the Court importantly concluded that protecting against frivolous litigation and cost effectiveness
of scarce judicial resources are both overridden by the delicacies of the plaintiff’s fundamental
right. Id. at 381. The Court importantly noted that reliable alternatives exist to protect the
allocation of judicial resources and as well protecting against frivolous litigation. Id. at 381-82.
32 This case is readily comparable to that of Boddie. First, just as in Boddie, the case at bar
involves a fundamental right which is protected by Due Process under the Fourteenth
Amendment. Therefore, the Radnor Circuit Court must have a sufficiently compelling state
interest to strike a cause of action rather than to answer in order to override Joe Public and Jane
Private’s fundamental rights to petition the government and have “meaningful access” to the
courts. Secondly, just as in Boddie, opposing counsel will contend that the Radnor Circuit
Court’s actions were in the name of protecting against frivolous litigation and/or to protect the
allocation of scarce judicial resources. However, as importantly noted in Boddie, in the name of
such interests, the court may exercise reliable alternatives to protect against the noted evils.
Additionally, as already discussed the Rules of Civil Procedure 12(i) and 12(f) respectively were
instituted to protect against frivolous litigation. If the Radnor Circuit Court truly was concerned
with protecting against frivolous litigation the court’s action of denying the cause of action under
12(i) or that of striking the cause-of-action and providing justification as defined by 12(f) were
readily available. However, the Radnor Circuit Court’s actions do not denote an actor protecting
against frivolous litigation. Furthermore, the Radnor Circuit Court must not have been
concerned with allocating scarce judicial resources as the filed lawsuit has now passed through
the Radnor Supreme Court, and is now before this Court. Only once a final determination is held
here will the case proceed on the merits. Therefore, the Radnor Circuit Court lacks any
reasonable or legitimate purpose to strike a cause of action rather than by deciding it, when such
a determination would end the cause of action just as fast as it was created and protect against
both frivolous litigation and misplacement of scarce judicial resources.
In conclusion, this Court should overturn the Radnor Supreme Court’s affirmation of the
Radnor Circuit Court’s striking the Declaratory Judgment cause of action when the court had no
33 compelling, substantial, or even reasonable/legitimate purpose in so doing. Rather, a final
determination on the cause of action would protect against all evils the Radnor Circuit Court may
deliver as justification.
CONCLUSION
For the foregoing reasons, Joe Public and Jane Private, respectfully request that this
Court uphold the Radnor Supreme Court’s decision to affirm the Circuit Court’s endorsement of
the Radnor Emergency Fiscal Plan holding that Respondents are not entitled to a trial by jury in
this defamation suit. Additionally, Joe Public and Jane Private pray this Court overturn the
Radnor Supreme Court’s affirmation of the Radnor Circuit Court’s striking a Declaratory
Judgment cause of action rather than answering when such violates Joe Public and Jane Private’s
First Amendment right to petition the government for civil redress that is protected by Due
Process under the Fourteenth Amendment.
Dated: March 12, 2013 Respectfully Submitted, ____________Petitioners______________ CERTIFICATE OF SERVICE This document certifies hand delivery of one copy of the foregoing brief to my
opponent’s mailbox on this 12th day of March, 2013.
______ Petitioners______________
34