TEAM NO. 3
IN THE
Supreme Court of the United States
_____________________________________________
JOE PUBLIC & JANE PRIVATE,
Petitioners,
v.
ENTERTAINMENT TABLOID, INC. & RADTV,
Respondents.
__________________________________________
On Writ of Certiorari to the
Supreme Court of Radnor
BRIEF FOR PETITIONERS
Counsel for Petitioners
March 12, 2013
TEAM NO. 3
IN THE
Supreme Court of the United States
_____________________________________________
JOE PUBLIC & JANE PRIVATE,
Petitioners,
v.
ENTERTAINMENT TABLOID, INC. & RADTV,
Respondents.
__________________________________________
On Writ of Certiorari to the
Supreme Court of Radnor
BRIEF FOR PETITIONERS
Counsel for Petitioners
March 12, 2013
TABLE OF CONTENTS
TABLE OF CONTENTS ..................................................................................... ii
TABLE OF AUTHORITIES ............................................................................... v
STATEMENT OF QUESTIONS PRESENTED ................................................ ix
STATEMENT OF JURISDICTION ................................................................... x
SUMMARY OF ARGUMENT
STATEMENT OF FACTS
............................................................................ 1
.................................................................................. 2
ARGUMENT ....................................................................................................... 4
I.
Respondents are not entitled to a civil jury trial
under the Seventh and Fourteenth Amendments of
the United States Constitution. .............................................................. 5
A. The Seventh Amendment does not apply to the
states. .................................................................................................. 6
1. The Court has never incorporated the
Seventh Amendment. .............................................................. 6
2. Stare decisis compels the Court not to
upset settled Seventh Amendment
precedent. ................................................................................. 7
B. Even if the Court reexamines the Seventh
Amendment under selective incorporation, the
right to a civil jury trial should still not apply to
the states. ............................................................................................ 9
1. The right to a civil jury trial is not
fundamental to the American scheme of
ordered liberty. ......................................................................... 9
2. Incorporation is unnecessary.
................................................. 11
3. Incorporation presents serious federalism
concerns. ................................................................................... 13
ii
C. The Seventh Amendment should not be
incorporated under the Privileges and
Immunities clause of the Fourteenth
Amendment. ........................................................................................ 14
II.
The Circuit Court’s decision to strike Mr. Public
and Ms. Private’s declaratory judgment request
from the record violates their First Amendment
right to petition the government for redress of
grievances. ................................................................................................ 15
A. The right to petition the judiciary cannot be
infringed unless the claim is objectively
baseless. ............................................................................................... 15
1. The right to petition the government
includes the right to petition the judicial
branch. ...................................................................................... 16
2. The right to petition does not protect
objectively baseless claims. ..................................................... 16
B. The right to petition protects Mr. Public and Ms.
Private’s declaratory judgment request because
the request was not objectively baseless. .......................................... 17
1. The validity of the declaratory judgment
request is contingent on whether the
First Amendment burden-shifting
requirements are implicated by Ms.
Private’s status and the type of
controversy at issue. ................................................................ 17
2. Petitioners’ statuses do not rise to the
level of general-purpose or limitedpurpose public figures. ............................................................ 18
3. The defamatory statements are not of
public concern. ......................................................................... 20
C. As long as a claim is not objectively baseless,
the right to petition the courts compels a
response. .............................................................................................. 21
iii
1. The right to petition is separate from the
right to free expression, and should not be
treated as a redundancy. ......................................................... 21
2. Petitions to the judicial branch demand a
minimal response to prevent the right
from being stripped of its meaning. ........................................ 22
3. Precedent restraining the duty to respond
in other contexts does not extend to the
judicial branch. ........................................................................ 22
a. Though the policymaking arms of
the executive branch are not
obligated to individually respond to
petitions, the same rationale does
not apply to the judicial branch. .................................. 23
b. The public concern requirement
imposed on public employees is
also inapplicable to Mr. Public and
Ms. Private. ................................................................... 23
4. The Circuit Court’s actions failed to
satisfy the Petition Clause because the
judge refused to issue a response. ........................................... 24
CONCLUSION .................................................................................................... 25
iv
TABLE OF AUTHORITIES
Constitutions and Statutes
U.S. Const. amend. I ........................................................................... 21
U.S. Const. amend. VII ....................................................................... 11
U.S. Const. amend. XIV, § 1 ............................................................... 14
Radnor Const. art. III ......................................................................... 18
28 U.S.C. § 1257(a)
............................................................................. x
U.S. Supreme Court Cases
Adamson v. California,
332 U.S. 46 (1947) .................................................................... 9
Baltimore & Carolina Line v. Redman,
295 U.S. 654 (1935) .................................................................. 12
BE & K Constr. Co. v. NLRB,
536 U.S. 516, (2002) ................................................................. 16, 17
Bill Johnson’s Rest., Inc. v. NLRB,
461 U.S. 731 (1983) .................................................................. 16
Borough of Duryea, Pa. v. Guarnieri,
131 S. Ct. 2488 (2011) .............................................................. 16, 23
Cal. Motor Transp. Co. v. Trucking Unlimited,
404 U.S. 508 (1972) .................................................................. 16
Chicago, R.I. & P.R. Co. v. Cole,
251 U.S. 54 (1919) .................................................................... 6, 7
Curtis Pub. Co. v. Butts,
388 U.S. 130 (1967) .................................................................. 19
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,
472 U.S. 749 (1985) .................................................................. 20
v
Duncan v. Louisiana,
391 U.S. 145 (1968) .................................................................. 9
Gasperini v. Ctr. for Humanities, Inc.,
518 U.S. 415 (1996) .................................................................. 6
Gideon v. Wainwright,
372 U.S. 335 (1963) .................................................................. 9
Gertz v. Robert Welch, Inc.,
418 U.S. 323 (1974) .................................................................. 18-19
Holden v. Hardy,
169 U.S. 366 (1898) .................................................................. 14
Holmes v. Jennison,
39 U.S. 540 (1840) .................................................................... 21
Hurtado v. California,
110 U.S. 516 (1884) .................................................................. 9
Malloy v. Hogan,
378 U.S. 1 (1964) ...................................................................... 9
Marbury v. Madison,
5 U.S. 137 (1803) ...................................................................... 24-25
McDonald v. City of Chicago, Ill.,
130 S. Ct. 3020 (2010) .............................................................. passim
Minn. State Bd. for Cmty. Coll. v. Knight,
465 U.S. 271 (1984) .................................................................. 23
Minneapolis & St. Louis R.R. Co. v. Bombolis,
241 U.S. 211 (1916) .................................................................. 6
New York Times Co. v. Sullivan,
376 U.S. 254, (1964) ................................................................. 17
Payne v. Tennessee,
501 U.S. 808 (1991) .................................................................. 7
vi
Philadelphia Newspapers, Inc. v. Hepps,
475 U.S. 767 (1986) .................................................................. 17
Planned Parenthood of Se. Pa. v. Casey,
505 U.S. 833 (1992) .................................................................. 7-8
Pointer v. Texas,
380 U.S. 400 (1965) .................................................................. 9
Prof’l Real Estate Investors v. Columbia Pictures Indus.,
Inc.,
508 U.S. 49 (1993) .................................................................... 16
San Diego v. Roe,
543 U.S. 77 (2004) .................................................................... 20
State Oil Co. v. Khan,
522 U.S. 3 (1997) ...................................................................... 7
Slaughter-House Cases,
83 U.S. 36 (1872) ...................................................................... 14
Time, Inc. v. Firestone,
424 U.S. 448 (1976) .................................................................. 19
United States v. Cruikshank,
92 U.S. 542 (1875) .................................................................... 15
United States v. Mosely,
238 U.S. 383 (1915) .................................................................. 22
Walker v. Sauvinet,
92 U.S. 90 (1875) ...................................................................... 6, 7
Washington v. Texas,
388 U.S. 14 (1967) .................................................................... 9
Wright v. United States,
302 U.S. 583 (1938) .................................................................. 21
Other Cases
Bryant v. Military Dept. of Miss.,
597 F.3d 678 (5th Cir. 2010) .................................................... 16-17
vii
Cardtoons v. Major League Baseball Players Ass’n,
208 F.3d 885 (10th Cir. 2000) .................................................. 16-17
Sellars v. Stauffer Comm. Inc.,
684 P.2d 450 (Kan. Ct. App. 1984) .......................................... 19-20
Sleem v. Yale Univ.,
843 F. Supp. 57 (M.D.N.C. 1993)
............................................ 17-18
Square D Co. v. Niagara Frontier Tariff Bureau, Inc.,
760 F.2d 1347 (2d Cir. 1985) ................................................... 24
Trial Court Documents
Petition for Writ of Certiorari, Torres v. Telemundo de
P.R., Inc.,
133 S. Ct. 845 (2013) (No. 12-347) .......................................... 24-25
Secondary Sources
Akhil Reed Amar, The Bill of Rights: Creation and
Reconstruction (1998) ............................................................... 10, 11-12, 13
Carol Rice Andrews, A Right of Access to Court Under the
Petition Clause of the First Amendment: Defining the
Right, 60 Ohio St. L.J. 557 (1999) ........................................... 15-16, 21-22
Charles W. Wolfram, The Constitutional History of the
Seventh Amendment, 57 Minn. L. Rev. 639 (1973)
................ 10
Gary Lawson & Guy Seidman, Downsizing the Right to
Petition, 93 Nw. U. L. Rev. 739 (1999) .................................... 22
1 Jacob A. Stein, Stein on Personal Injury Damages § 5:40 (3d.
ed. 2012) ................................................................................... 20-21
Patrick T. Conley & John P. Kaminski, The Bill of Rights
and the States (1992) ............................................................... 10
The Federalist No. 83 (Alexander Hamilton)
.................................... 10, 12
viii
STATEMENT OF QUESTIONS PRESENTED
I. Should the long-standing precedent that the Seventh Amendment does not apply
in state court be reversed in order to provide ETI and RADTV a civil jury trial in
this case, thereby upsetting over 220 years of balanced federalism?
II. Under the First Amendment right to petition the government for redress of
grievances, should a trial court judge have the authority to arbitrarily order a
party to re-file a complaint without a declaratory judgment request and have the
request stricken from the record without providing any explanation to the
parties involved?
ix
STATEMENT OF JURISDICTION
The Radnor Circuit Court struck Petitioners’ declaratory judgment request
from the record and affirmed the section of the Radnor Fiscal Emergency Plan that
abolished jury trials in civil cases. Record at 6. The Circuit Court denied
reconsideration requests from both parties. R. at 6. Radnor has eliminated all
intermediate appellate courts. R. at 1. The Radnor Supreme Court denied both
requests for discretionary review, affirming the Circuit Court’s decision. R. at 7.
Petitioners and Respondents both filed timely petitions for writ of certiorari in this
Court. R. at 7. This Court’s jurisdiction rests on 28 U.S.C. § 1257(a).
x
SUMMARY OF ARGUMENT
This case hinges upon the proper balance of federalism, judicial power, and
the rights of individual litigants.
Seventh Amendment Issue. Respondents incorrectly argue that they are
entitled to a civil jury trial in state court under the Seventh and Fourteenth
Amendments. The Court should reject Respondents’ argument for three reasons.
First, it is long-settled that the Seventh Amendment does not bind the states.
Therefore, the Seventh Amendment right to a civil jury trial does not apply in state
court, and the doctrine of stare decisis compels the Court to affirm this holding.
Second, even if the Court takes a fresh look at the Seventh Amendment under
selective incorporation, the Seventh Amendment should still not apply to the states
because: the right to a civil jury trial is not fundamental; incorporation is
unnecessary; and incorporation presents serious federalism issues. Third, the right
should not be applied to the states under the Privileges and Immunities Clause of
the Fourteenth Amendment because the Court has effectively abandoned the
Clause as a vehicle for incorporation.
Right to Petition Issue. Conversely, the right to petition the government is
among the most sacrosanct of Constitutional guarantees because it preserves the
very idea of government by the people. The right applies to all branches of
government, including the judiciary. As long as the issue is not objectively baseless
at the time it is filed, petition rights should be unencumbered. Here, Mr. Public and
Ms. Private’s declaratory judgment request was not objectively baseless. Since one
1
party—Ms. Private—was a private figure and the defamation claim is not a matter
of public concern, Radnor defamation law applies without implicating First
Amendment media protections. Petitioners’ declaratory judgment request proposed
a burden-shifting scheme based on Radnor Constitutional law, and since the First
Amendment was not implicated, the request was not objectively baseless.
Petitioners thus maintained full rights under the Petition Clause. Further, if the
right to petition is to have substance beyond the guarantees of the separate right to
free expression, the right to petition in the judicial context must include a right to a
response from the court. Mr. Public and Ms. Private deserved at least a summary
explanation of the judge’s decision. Instead, the judge arbitrarily ordered the
request to be stricken from the record. This action left Mr. Public and Ms. Private
with no means of adjudicating their novel question of law and violated their rights
under the Petition Clause.
The Court should affirm that Respondents are not entitled to a civil jury trial
in state court, and reverse the Circuit Court’s decision to strike Petitioners’
declaratory judgment request because it violates their First Amendment right to
petition the government for redress of grievances.
STATEMENT OF FACTS
Background. As part of a last-ditch effort to save the State of Radnor from
financial ruin, the Legislature presented the Radnor Fiscal Emergency Plan to the
Radnor electorate during the November general elections. Record at 1. The Plan,
supported by a majority of Radnor voters, made significant changes to the judicial
2
branch, including elimination of the Radnor Appellate Court, and establishment of
discretionary-only jurisdiction for the Supreme Court in civil matters. R. at 1. In
desperate search of cuts, the Legislature repealed the statutory right to a civil jury
trial.
R.
at
1-2.
By
implementing
these
changes,
Radnor
has
realized
“indispensable” savings, allowing it to operate efficiently within its budget. R. at 2.
The Marriage. Joe Public, an actor in a Radnor soap opera, recently married
18-year-old Jane Private. R. at 2. Ms. Private had never been exposed to any form of
public scrutiny before her marriage. R. at 2. To protect her privacy, Ms. Private
arrived at the ceremony through a back entrance away from the cameras, and was
not interviewed or voluntarily photographed. R. at 2.
The Defamatory Statements. Paparazzi Dan covered the wedding for the
tabloid news broadcast, Gossip Show, which is produced by Entertainment Tabloid,
Inc. (ETI) and broadcasted on a channel owned by RADTV. R. at 2. He reported that
Ms. Private had maintained a sexual relationship with Mr. Public when she was a
minor, and that the couple married because she became pregnant. R. at 3. Ms.
Private was deeply affected by the reports, to the point that the couple cancelled
their honeymoon and couldn’t leave home for days. R. at 3. Mr. Public received
threatening emails and lost lucrative endorsements because of the negative
publicity. R. at 3. Ms. Public suffered immense damage from the reports; her
pregnancy terminated and she was diagnosed with a mental illness. R. at 5.
The Lawsuit. Mr. Public and Ms. Private (Petitioners) filed suit for slander
against ETI and RADTV (Respondents.) R. at 3. Their complaint asserted that
3
Article III of the Radnor Constitution entitled them to heightened privacy
protection that would require Respondents to bear the burden of proving that the
remarks were true or reasonably investigated before broadcasting. R. at 4.
Respondents opposed the motion and challenged the constitutionality of Radnor’s
elimination of civil jury trials. R. at 5.
The Amended Complaint. After further reports by Gossip Show about Mr.
Public’s sexual history, the court granted leave to file an amended complaint
incorporating the new causes of action. R. at 5. Several months later, the judge, sua
sponte, struck the amended complaint from the record, and ordered Petitioners to
re-file the amended complaint without the request for the shift of the burden of
proof. R. at 6. The judge also granted Petitioners’ motion to dismiss Respondents’
request on the civil jury trial issue. R. at 6. The Circuit Court denied requests for
reconsideration by both parties on each issue. R. at 6.
Appellate History. Both parties sought discretionary review from the
Radnor Supreme Court. R. at 6. Mr. Public and Ms. Private argued that the forced
removal of the burden-shifting issue violated their First Amendment right to
petition. R. at 6. ETI and RADTV alleged that the abolition of civil juries was
unconstitutional. R. at 7. The Radnor Supreme Court denied both requests. R. at 7.
The U.S. Supreme Court then granted certiorari on both issues. R. at 7.
ARGUMENT
Introduction: This case concerns the enforcement of two Bill of Rights
guarantees against the states. One, if imposed on the states for the first time, would
4
result in an unwarranted intrusion on the states’ autonomy to determine their civil
jury rules, and would disrupt over 220 years of balanced federalism in this area of
the law. The other would ensure preservation of the deeply-rooted right of a citizen
to engage in meaningful conversation with the judicial branch of government. By
demanding a jury trial while simultaneously advocating for a judge’s right to toss
out claims on a whim, Respondents are talking out of both sides of their mouths.
They claim that the right to defend their case in front of a jury is critical, yet they
are not concerned with whether Petitioners’ claims ever even get in front of the
court, let alone a jury. Permitting a judge to arbitrarily throw out claims does not do
much to protect a right to a jury.
This Court should affirm that Respondents are not entitled to a civil jury
trial and that Radnor’s elimination of the civil jury right was constitutional.
Further, this Court should reverse the Circuit Court’s order to strike Petitioners’
request from the record because it violated their First Amendment right to petition
the government for redress of grievances.
I.
Respondents are not entitled to a civil jury trial under the Seventh and
Fourteenth Amendments of the United States Constitution.
Respondents argue that they are entitled to a state civil jury trial under the
Seventh and Fourteenth Amendments. However, the Seventh Amendment does not
apply in state court. Because Bill of Rights guarantees do not automatically apply to
the states, only rights that have been incorporated through the Fourteenth
Amendment are enforceable against the states. The right to a civil jury trial has
5
never been incorporated. Respondents’ request would upset over 220 years of
balanced federalism and explicit precedent.
The Court should reject Respondents’ argument for three reasons. First, stare
decisis compels the Court to affirm the longstanding holding that the Seventh
Amendment does not bind the states. Second, even if the Court chooses to look
beyond this settled, black-letter law and reevaluate the Seventh Amendment under
selective incorporation, the right to a civil jury trial should still not apply to the
states. Finally, the Seventh Amendment should not be incorporated under the
Privileges and Immunities Clause of the Fourteenth Amendment.
A. The Seventh Amendment does not apply to the states.
For nearly 140 years, this Court has held that the Seventh Amendment does
not apply in state court. In fact, the Court has noted that this principle is “so
completely and conclusively” settled, that to concede that it is “open to contention
would be to grant that nothing whatever had been settled as to . . . the authority of
state and Federal courts and their mode of procedure from the beginning.”
Minneapolis & St. Louis R.R. Co. v. Bombolis, 241 U.S. 211, 217 (1916).
1. The Court has never incorporated the Seventh Amendment.
Long ago, more recently, and in between, this Court has held that the
Seventh Amendment does not apply to the states. See Walker v. Sauvinet, 92 U.S.
90, 92-93 (1875); McDonald v. City of Chicago, Ill., 130 S. Ct. 3020, 3034-35 n.13
(2010); Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 432 (1996); Minneapolis
& St. Louis R.R. Co. v. Bombolis, 241 U.S. 211, 217 (1916); Chicago, R.I. & P.R. Co.
v. Cole, 251 U.S. 54, 56 (1919). After nearly 140 years, this holding has never been
6
disturbed. In 2010, the Court reiterated that the Seventh Amendment has not been
incorporated through the Fourteenth Amendment. McDonald v. City of Chicago, Ill.,
130 S. Ct. 3020, 3034-35 n.13 (2010). Therefore, because the Seventh Amendment
does not apply to the states, the states are free to regulate civil jury trials as they
see fit. Walker v. Sauvinet, 92 U.S. 90, 92-93 (1875). States may modify, limit, or
even do away with civil jury trials altogether. See Chicago, R.I. & P.R. Co. v. Cole,
251 U.S. 54, 56 (1919).
2. Stare decisis compels the Court not to upset settled Seventh
Amendment precedent.
The doctrine of stare decisis compels the Court to affirm that the Seventh
Amendment does not apply to the states. Under stare decisis, the Court approaches
reconsideration of its previous decisions with “the utmost caution.” State Oil Co. v.
Khan, 522 U.S. 3, 20 (1997). While stare decisis is not an absolute rule, it is “the
preferred course because it 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).
Under the common law system, balanced adherence to judicial precedent is of
paramount importance. Precedent provides an invaluable safeguard against the
fallacies of human judges and a crucial restraint on judicial power. These important
considerations are also balanced against the need for the law to adjust and grow as
society changes over time. The Court should only overrule a prior decision if the
underpinnings of the original holding have weakened in such a way that affects the
7
central holding. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 860 (1992).
Here, the Court should adhere to nearly 140 years of explicit precedent, the
underpinnings of which remain firm today.
Stare decisis also protects important reliance interests. Given the substantial
reliance interest involved here, it is crucial that the law be settled and predictable.
The Court’s explicit holdings on the Seventh Amendment guide the conduct of
countless litigants, attorneys, legislatures, and courts. These persons continue to
rely on this settled rule: the Seventh Amendment does not apply to the states.
Recently, McDonald recognized that stare decisis could prevent incorporation
of the Seventh Amendment. The Court noted that, along with the Seventh
Amendment, several Bill of Rights guarantees remain unincorporated today.1
McDonald, 130 S. Ct. at 3034-35 n.13. For future incorporation, any fundamental
Bill of Rights guarantees would be fully binding on the states “unless stare decisis
counsels otherwise.” Id. at 3046. Thus, stare decisis can prevent incorporation of Bill
of Rights guarantees and the Court can end its analysis there.
This Court should adhere to stare decisis and affirm that the Seventh
Amendment does not bind the states. Accordingly, Radnor has the right to eliminate
all civil jury trials and Respondents are not entitled to a civil jury trial. However,
even if the Court chooses to look beyond precedent, the result is the same.
The following guarantees are unincorporated: the Third Amendment’s protection
against quartering of soldiers; the Fifth Amendment’s grand jury indictment
requirement; the Seventh Amendment’s right to a civil jury trial; and the Eighth
1
8
B. Even if the Court reevaluates the Seventh Amendment under
Selective Incorporation, the right to a civil jury trial should still
not apply to the states.
Over the years, the Court has contemplated several different theories of
incorporation for applying the Bill of Rights guarantees to the states.2 In the 1960s,
the Court began applying selective incorporation to hold that “the Due Process
Clause
fully
incorporates
particular
rights
contained
in
the
first
eight
Amendments.” McDonald, 130 S. Ct. at 3034. See, e.g., Gideon v. Wainwright, 372
U.S. 335, 341 (1963); Malloy v. Hogan, 378 U.S. 1, 5-6 (1964); Pointer v. Texas, 380
U.S. 400, 403-04 (1965); Washington v. Texas, 388 U.S. 14, 18 (1967); Duncan v.
Louisiana, 391 U.S. 145, 147-48 (1968). Under this theory, a right is incorporated if
the right is fundamental to the American scheme of ordered liberty and system of
justice. See McDonald, 130 S. Ct. at 3034 (citing Duncan, 391 U.S. at 149 n.14.).
Even if the Court takes a fresh look under selective incorporation, the right
should not be incorporated because: (1) the right to a civil jury trial is not
fundamental; (2) incorporation would be unnecessary; and (3) incorporation
presents serious federalism concerns.
1. The right to a civil jury trial is not fundamental to the
American scheme of ordered liberty.
Primarily, the Seventh Amendment should not be incorporated against the
states because the right to civil jury trial is not fundamental to the American
These theories include: total/complete incorporation (see Adamson v. California,
332 U.S. 46, 71-72 (1947) (Black, J., dissenting)); incorporation based on
fundamental rights/fairness (see Hurtado v. California, 110 U.S. 516 (1884)); and
selective incorporation.
2
9
scheme of ordered liberty. To determine whether the Second Amendment right to
bear arms is fundamental, the Court analyzed the right’s origins in England and
the protection of the right in the states at the time of the ratification of the Bill of
Rights. See McDonald, 130 S. Ct. at 3036-42. Unlike the right to bear arms, the
right to a civil jury trial is not fundamental.
No consensus emerged amongst the Framers about the civil jury trial right.
The right to a civil jury trial was “a principal Antifederalist demand,” but there was
“no consensus on the extent of the civil jury’s power, and the state practices were
too diverse for the right to be hammered out precisely.” Patrick T. Conley & John P.
Kaminski, The Bill of Rights and the States 505 (1992). However, even the
Antifederalists “never insisted that juries be employed in all civil cases.” Id. While
some Framers argued for a civil jury right, some argued against a jury trial right,
and still others argued for a jury trial right based only on state jury rights. See
Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 90 (1998).
Further, there was no consensus amongst the states regarding the right.
Scholars agree that state jury rights “varied considerably . . . and were evolving
over time” at the adoption of the Seventh Amendment. Amar, supra, at 89 (citing
The Federalist No. 83 (Alexander Hamilton); Charles W. Wolfram, The
Constitutional History of the Seventh Amendment, 57 Minn. L. Rev. 639, 665
(1973)). Because state civil jury rights varied so widely, many Framers even
opposed including the Amendment in the Bill of Rights. Wolfram, Constitutional
History, supra, at 665-66 (1973).
10
Finally, Radnor citizens themselves do not believe that the civil jury trial
right is fundamental. The original Radnor Constitution did not include the right. R.
at 1. Later, after Radnor adopted a statutory right, 62% of Radnor citizens voted to
pass the Radnor Fiscal Emergency Plan, which included the proposed elimination of
civil jury trials. Id. Though Respondents argue that this right is “deeply-rooted,”
Radnor citizens clearly felt that the financial exigency outweighed the need for a
civil jury trial right.
2. Incorporation is unnecessary.
Because the Seventh Amendment is different from all other Bill of Rights
guarantees, incorporation is unnecessary. The Seventh Amendment requires that
“in suits at common law, where the value in controversy shall exceed twenty dollars,
the right of a trial by jury shall be preserved.” U.S. Const. amend. VII (emphasis
added). Scholars disagree about what exactly the Amendment seeks to “preserve”—
whether it preserves the civil jury trial rights that existed at common law in 1791 or
current state civil jury trial rights. However, the best interpretation of the Seventh
Amendment accounts for its unique wording, specifically the word “preserved.”
The “right to a civil jury trial in the late eighteenth century was widely
understood as defined only by state-law rules.” Amar, supra, at 89. According to
renowned constitutional scholar, Akhil Amar, the best interpretation of the Seventh
Amendment is that it seeks to “preserve” those current state-law jury rules.
Essentially, it establishes a dynamic “state-law floor” that “shifts as state law
shifts.” Id. Under this interpretation, if a state court would provide a civil jury, “a
11
federal court hearing the same case must follow—must ‘preserve’—that state-law
jury right.” Id.
The use of the word “preserved” in the Seventh Amendment likewise
demands this state-law based construction. “Preserved” is used exactly once in the
entire Bill of Rights—in the Seventh Amendment. Linguistically, the word
“preserve” is an etymological cousin to the word “reserve.” Amar, supra, at 90. Like
“preserved,” the word “reserved” is also used in a similarly state-law based
Amendment, the Tenth. Amar asserts that “textually, it is hard to see why the word
preserved in the Seventh Amendment requires a radically different approach from
the one given its etymological cousin, reserved, in the Tenth Amendment.” Id.
This reading of the Seventh Amendment differs from the current view of the
Amendment,3 but it “enjoys considerable historical support.” Amar, supra, at 89.
Hamilton wrote that “cases in the federal courts should be tried by jury, if in the
State where the courts sat, that mode of trial would obtain in a similar case in the
State courts.” Amar, supra, at 89 (quoting The Federalist No. 83 (Alexander
Hamilton)). Furthermore, “many other commentators in 1788, both Federalist and
Anti-[federalist], suggested that dynamic conformity with state jury rules would
make good sense.” Amar, supra, at 89.
Under this interpretation, incorporation of the Seventh Amendment would
have two general effects: first, a federal court would be bound to preserve whatever
The Seventh Amendment has traditionally been interpreted to preserve the civil
jury trial rights that existed at common law when the amendment was adopted in
1791. Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657 (1935).
3
12
state civil jury trial rights were provided in that state; and second, a state court
would have to apply its own civil jury trial rules—something it would surely do
anyway. Therefore, it would be unnecessary to enforce this right against the states
because the right is already based on state law.
Regardless of whether the Seventh Amendment is incorporated, Radnor’s
lack of jury trials is constitutional. If incorporated, Radnor state courts would be
bound only to apply current Radnor jury rules, or rather, the lack thereof. The
Radnor Constitution is silent regarding a civil jury trial right, and the Legislature
repealed the statutory civil jury trial right. R. at 1-2. Because this interpretation of
the Seventh Amendment requires that courts protect only whatever jury rights a
state chooses to protect, Radnor remains free to modify its civil jury trial rights, or
even eliminate them completely. Thus, the incorporated Seventh Amendment would
actually protect Radnor’s lack of a civil jury trial right and would not entitle the
respondents to a state civil jury trial in this case.
3. Incorporation presents serious federalism concerns.
The Seventh Amendment “is rooted in federalism concerns that should not be
imposed on states.” Amar, supra, at 222. Since the framing of the Constitution, the
states have had absolute autonomy to determine their civil jury rights. Further, the
Court has refrained from interfering with other procedure-based Bill of Rights
guarantees, like the grand jury indictment and unanimity requirements. See
McDonald, 130 S. Ct. at 3034-35 n.13 (2010). The Court should likewise refrain
from interfering with the civil jury trial right. The Seventh Amendment was
designed to require the new national courts to at least mirror state systems, thus
13
alleviating the Framers’ fears about federal courts. If the Seventh Amendment is
enforced against the states now, it will disrupt over 220 years of balanced
federalism in this area of the law.
Incorporation of the Seventh Amendment would be too intrusive. Radnor is
on the brink of financial ruin. The Radnor Fiscal Emergency Plan made drastic, but
necessary, cuts to the judicial branch. However, all cuts were well within the
bounds of both the Radnor and the Federal Constitution. Principles of federalism
demand that Radnor be able to manage its own judicial system, especially in the
face of financial crisis. Further, state civil justice systems do not need to be
micromanaged by the federal government. Regardless of whether the states are
compelled to provide civil jury trials, states are always compelled to provide due
process. Holden v. Hardy, 169 U.S. 366, 389-90 (1898). Thus, the Due Process
Clause of the Fourteenth Amendment already supervises state court proceedings.
C. The Seventh Amendment should not be incorporated under the
Privileges and Immunities Clause of the Fourteenth Amendment.
The Privileges and Immunities Clause of the Fourteenth Amendment states
that “no state shall make or enforce any law which shall abridge the privileges and
immunities of citizens of the United States.” U.S. Const. amend. XIV, § 1. The
Privileges and Immunities Clause of the Fourteenth Amendment is not used for
incorporation. See Slaughter-House Cases, 83 U.S. 36 (1872). Thus, there is no
argument for using the Clause to apply the Seventh Amendment to the states.
Though many scholars disagree with the early decision to disregard the Clause as a
vehicle for incorporation, the Court has never waivered. McDonald, 130 S. Ct. at
14
3029. Despite urging from Justice Thomas, the McDonald Court refused to even
consider the theory. McDonald, 130 S. Ct. at 3030-31. Thus, for incorporation
purposes, the Privileges and Immunities Clause is dead.
For the above stated reasons, Respondents are not entitled to a civil jury.
II.
The Circuit Court’s decision to strike Mr. Public and Ms. Private’s
declaratory judgment request from the record violates their First
Amendment right to petition the government for redress of grievances.
Mr. and Ms. Public filed suit alleging slander by ETI and RADTV. R. at 3.
Mr. Public and Ms. Private also requested a declaratory judgment on a novel
question of law based on a Radnor constitutional provision. R. at 4. Instead of
issuing a ruling, the judge arbitrarily ordered the request stricken from the record.
R. at 6. This brazen act stripped Petitioners of any means of adjudicating the issue,
and represents a gross violation of the right to petition the government.
This action violated Mr. Public’s and Ms. Private’s right to petition the
government for redress of grievances because: (1) the government cannot infringe
on petition rights unless the claim is objectively baseless; (2) Mr. Public and Ms.
Private’s declaratory judgment request is protected by the Petition Clause because
it was not baseless; (3) the right to petition the judicial branch compels a response;
and (4) the judge’s sua sponte dismissal was not an adequate response.
A. The right to petition the judiciary cannot be infringed unless the
claim is objectively baseless.
The right to petition the government is among the most ancient and
fundamental of rights, predating the adoption of the Constitution itself. United
States v. Cruikshank, 92 U.S. 542, 552 (1875). Blackstone wrote that the right to
15
petition was one “appertaining to every individual.” Carol Rice Andrews, A Right of
Access to Court Under the Petition Clause of the First Amendment: Defining the
Right, 60 Ohio St. L.J. 557, 602 (1999). Corporations, public-sector employees, and
other private citizens have successfully invoked their individual right to petition.
See, e.g., Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508 (1972); Bill
Johnson’s Rest., Inc. v. NLRB, 461 U.S. 731 (1983); Borough of Duryea, Pa. v.
Guarnieri, 131 S. Ct. 2488 (2011). The right to petition ensures that government is
coterminous with the people, rather than an aloof body separated from its subjects.
1. The right to petition the government includes the right to
petition the judicial branch.
The right to petition applies to all branches of government. Cal. Motor
Transport Co., 404 U.S. at 510. The Petition Clause does not simply protect letters
from concerned citizens and town hall meetings with elected officials. It also
“protects the right of individuals to appeal to courts . . . for resolution of legal
disputes.” Guarnieri, 131 S. Ct. at 2494. The right to petition the judiciary can be
limited only if the claim is objectively baseless.
2. The right to petition does not protect objectively baseless
claims.
The right to petition the judiciary is not absolute. Claims that are: (1)
objectively baseless; and (2) subjectively motivated by an unlawful purpose are not
protected by the Petition Clause. Prof’l Real Estate Investors v. Columbia Pictures
Indus., Inc., 508 U.S. 49, 60 (1993). Although this test originated in antitrust law, it
has been applied in civil rights, labor, and tort cases. BE & K Constr. Co. v. NLRB,
536 U.S. 516, 536 (2002); Bryant v. Military Dept. of Miss., 597 F.3d 678, 690 (5th
16
Cir. 2010); Cardtoons v. Major League Baseball Players Ass’n, 208 F.3d 885, 900
(10th Cir. 2000). If a claim is not objectively baseless, citizens are entitled to the full
scope of the right to petition the government.
The objective prong does not require that Petitioners prove they will actually
prevail on their declaratory judgment request. BE & K Constr. Co., 536 U.S. at 526.
Rather, it recognizes that even losing claims add value to the legal system by
providing opportunities for the “evolution of the law.” Id. Thus, as long as
Petitioners can demonstrate that the request was not objectively baseless, their
Petition Clause rights cannot be infringed. The analysis concludes there.
B. The right to petition protects Mr. Public and Ms. Private’s
declaratory judgment request because the request was not
objectively baseless.
A claim is objectively baseless if no reasonable litigant could realistically
expect success on the merits. Id. Determining whether the burden-shifting request
is objectively baseless here requires an analysis of the relevant constitutional
restrictions on defamation claims.
1. The validity of the declaratory judgment request is
contingent on whether First Amendment burden-shifting
requirements are implicated by Petitioners’ statuses and the
type of controversy at issue.
In some defamation claims, the First Amendment controls the allocation of
the burden of proof. See, e.g,. New York Times Co. v. Sullivan, 376 U.S. 254, 279-280
(1964); Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986). If First
Amendment burden-shifting rules control here, Mr. Public and Ms. Private’s
request might be objectively baseless. However, when private-party plaintiffs sue on
17
matters of private concern, state law instead controls burden allocation. See Sleem
v. Yale Univ., 843 F. Supp. 57, 59 (M.D.N.C. 1993).
Here, the burden-shifting request is based on heightened privacy protections
afforded by Article III of the Radnor Constitution. R. at 3; Radnor Const. art. III.
Because Ms. Private is: (1) a private figure; and (2) her defamation claims involve
matters of no public concern, First Amendment burden requirements do not apply.
Instead, Radnor defamation law controls.
A declaratory judgment request is the proper procedure for asking the court
to determine burdens of proof in Radnor. R. at 4. As a result of Ms. Private’s status
and the nature of the controversy at issue, Radnor burden allocation rules should at
least apply to her claims, even if they wouldn’t apply to Mr. Public’s claims. Ms.
Private’s assertion that the Article III privacy protections require defamation
defendants to bear the burden of proof is not baseless. There is no available Radnor
case law that negates such an argument. The discussion below is not intended to
conclusively prove that the burden should be shifted—but rather that the request
had an objective basis worthy of Petition Clause protection.
2. Petitioners’ statuses do not rise to the level of generalpurpose or limited-purpose public figures.
There are two types of plaintiffs for defamation purposes: public figures and
private figures. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). A plaintiff can
achieve public figure status in two different ways. General-purpose public figures
have achieved pervasive notoriety “by the vigor and success with which they seek
the public’s attention.” Id. at 342. Limited-purpose public figures are otherwise
18
private figures that have voluntarily injected themselves into a public controversy.
Id. at 351. Society has a “legitimate and substantial interest in . . . the freedom of
the press to engage in uninhibited debate” about these figures, so the First
Amendment grants defendants greater protection by requiring plaintiffs to prove
actual malice and falsity. Curtis Pub. Co. v. Butts, 388 U.S. 130, 164 (1967).
Plaintiff status is a highly fact-specific inquiry. While Mr. Public was
certainly a known commodity, he deserved the right to dispute that his fame was
not such that he can be considered a public figure “for all purposes and all contexts.”
Gertz, 418 U.S. at 351. Even if Mr. Public is a public figure to some degree, Ms.
Private is not, which establishes that the request is not baseless as to her claims.
Ms. Private is not a general-purpose public figure because her fame does not
extend beyond her capacity in this controversy. R. at. 3. She is not a limited-purpose
public figure because she has not injected herself into the controversy. In Firestone,
a plaintiff who was married to a public figure sued a national magazine for
defamation based on a magazine report that she had committed adultery, resulting
in her divorce. Time, Inc. v. Firestone, 424 U.S. 448, 452 (1976). The plaintiff was a
private figure because instituting divorce proceedings did not rise to the level of
injecting oneself into a public controversy. Id. at 455. Even though the divorce was
highly publicized, and she was married to a public figure, she “assumed no
prominence in the resolution of public questions.” Id. at 454-55.
Here, similarly, Ms. Private is a separate claimant from her husband, and
her position must be evaluated independent of her husband’s status. See Sellars v.
19
Stauffer Comm. Inc., 684 P.2d 450 (Kan. Ct. App. 1984). She has intentionally been
kept away from the public eye. R. at 2. She has never appeared on television, and
has never been voluntarily photographed by the press. R. at 3. Ms. Public has
assumed no prominence in the in the resolution of a public question. She is thus not
a limited-purpose public figure because she has not voluntarily injected herself into
the controversy. Since Ms. Private is neither a general-purpose public figure, nor a
limited purpose public figure, she must be a private figure for defamation purposes.
3. The defamatory statements are not of public concern.
Speech on public issues occupies the “highest rung” of First Amendment
protection because it was fashioned to “assure unfettered interchange of ideas for
the bringing about of political and social changes desired by the people.” Dun &
Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759 (1985).
The defamatory statements about Petitioners are not of public concern. In
Dun & Bradstreet, defamatory statements about a business were not of public
concern because the statements were made “solely in the interest of the speaker,”
instead of the interest of the public, and “motivated by a desire for profit,” as
opposed to promoting political or social discourse. Id. at 762. Here, Gossip Show
reported that Ms. Private had engaged in intercourse as a minor and conceived a
child before marriage. R. at 3. This report advances no valuable political or social
debate. See San Diego v. Roe, 543 U.S. 77, 84 (2004). In fact, the statements about
Ms. Private’s alleged unchastity are so unfit for public debate that she likely would
have been entitled to presumed damages at common law. 1 Jacob A. Stein, Stein on
20
Personal Injury Damages § 5:40 (3d. ed. 2012). Gossip Show’s report impinges on
Jane’s honor with no societal benefit, and is thus of private concern.
Accordingly, Mr. Public deserved to at least contest his status. Still, because
Ms. Private is a private figure and the statements are not of public concern, Radnor
defamation law applies unencumbered by the First Amendment. Thus, the burden
shift is not baseless, and Mr. Public and Ms. Private deserved the full protections of
the Petition Clause.
C. As long as a claim is not objectively baseless, the right to petition
the courts compels a response.
If the claim is not objectively baseless, the right to petition is not limited and
should include a responsibility for the court to issue a minimal response because: (1)
the right to petition is distinct from the right to free expression; and (2) limiting the
right to merely filing claims would strip the right of meaning.
1. The right to petition is separate from the right to free
expression, and should not be treated as a redundancy.
Constitutional interpretation principles mandate that “each word have its
due force” because “no word [is] unnecessarily used, or needlessly added.” Wright v.
United States, 302 U.S. 583, 588 (1938). Provisions should not be read in a way that
renders others superfluous. See Holmes v. Jennison, 39 U.S. 540, 571 (1840).
If the Petition Clause guaranteed nothing more than an unlocked courthouse
door, the Clause would be superfluous. The First Amendment guarantees that
“Congress shall make no law abridging freedom of speech.” U.S. Const. amend. 1. If
the Petition Clause protected only the right to speak to the judicial branch, it would
be wholly subsumed by the Free Speech Clause. The right to petition, “without a
21
duty to respond, is meaningless and merely redundant of speech.” Andrews, Right of
Access, supra, at 635. The right to petition must attach a greater duty on the
government to respond, or the clause would be rendered a nullity.
2. Petitions to the judicial branch demand a minimal response
to prevent the right from being stripped of its meaning.
Given that the Petition Clause requires more in the judicial context than the
right to free expression, Mr. Public’s and Ms. Private’s rights are not vindicated by
merely filing a claim. At the very least, the courts have a duty “of minimal
response.” Id. The concept is so deeply rooted that a court entering a “secret
disposition of a matter would be universally condemned.” Gary Lawson & Guy
Seidman, Downsizing the Right to Petition, 93 Nw. U. L. Rev. 739, 758 (1999).
A minimal response is implicit in the concept of petitioning the judiciary. To
illustrate, the right to vote would be meaningless without a right to have that vote
counted. United States v. Mosely, 238 U.S. 383, 386 (1915). Similarly, the right to
file a valid claim is void of any significance if there is no corresponding duty for the
judge to respond. What good is the right to petition if the judge can place a filed
complaint directly into a paper shredder without violating the right? In the judicial
context, the response is the substance of the right to petition.
3. Precedent restraining the duty to respond in other contexts
does not extend to the judicial branch.
The government’s duty to respond has been explicitly discussed only in
contexts outside of the judiciary. However, the policy considerations for these
limitations are inapplicable to the judiciary.
22
a. Though the policymaking arms of the executive
branch are not obligated to individually respond to
petitions, the same rationale does not apply to the
judicial branch.
In the policymaking context, the right does not mandate a government
response. Minnesota St. Bd. for Cmty. Coll. v. Knight, 465 U.S. 271, 285 (1984). In
Knight, faculty argued that the First Amendment required the State Board for
Community Colleges to respond to each of their grievances individually. Knight, 465
U.S. at 285. However, the right to petition did not require a response from the
Board to each individual grievance. Id. For the policymaking arms of government,
mandatory individual responses to citizens would impose untold administrative and
functional burdens, and its policymaking process would “grind to a halt.” Id. at 285.
In contrast, requiring a judge to make a determination on a valid legal issue adds
no such burden. Such duties are the sole function of the judiciary. While the judicial
branch also has administrative burdens, the baselessness standard is in place to
address this concern. Accordingly, Knight should not apply to the judicial branch.
b. The public concern requirement imposed upon public
employees is also inapplicable to Mr. Public and Ms.
Private.
Petition rights are also limited for public employees suing the government.
Guarnieri, 131 S. Ct. at 2495. In Guarnieri, a police chief’s petition rights were not
violated because public-sector employees are only protected if the petition deals
with a matter of public concern. Id. at 2493. Mr. Public and Ms. Private do not have
to meet this standard because they are not public employees, nor are they suing the
23
government. Mr. Public and Ms. Private are entitled to full Petition Clause
protection, unlimited by the public concern test.
D. The Circuit Court’s actions failed to satisfy the Petition Clause
because the judge refused to issue a response.
The Circuit Court’s sua sponte dismissal—with no explanation of the
disposition—violates Mr. Public’s and Ms. Private’s petition rights. Instead of a
simple yes or no, the judge demanded that the Mr. and Ms. Public remove the
burden-shifting request from their amended complaint, with no explanation. The
request never even made it to the judge’s docket. R. at 6. The factual situation
under which this claim arises demonstrates the dangers of allowing a judge to
terminate petition rights at the point of filing a claim.
Sua sponte dismissals are viewed with suspicion in any case. Square D Co. v.
Niagara Frontier Tariff Bureau, Inc., 760 F.2d 1347, 1365 (2d Cir. 1985). The
current state of affairs in Radnor amplifies the important role the Petition Clause
plays in protecting against unlawful dismissals. The state of Radnor abolished its
intermediate Appellate Court and established discretionary-only jurisdiction for its
Supreme Court. R. at 1. Thus, the Circuit Court judge effectively extinguished the
petitioners’ request for declaratory judgment with no means of accountability.
Further, the judge’s action is not contemplated by the Radnor Rules of Civil
Procedure, which only allow the Circuit Court to grant or deny requests for
declaratory judgment. R. at 6.
The United States government is “emphatically a government of laws, not of
men.” Petition for Writ of Certiorari at 16, Torres v. Telemundo de P.R., Inc., 133 S.
24
Ct. 845 (2013) (No. 12-347) (citing Marbury v. Madison, 5 U.S. 137, 163 (1803)). To
allow a judge to unilaterally dispose of Petitioner’s grievance with no accountability
is to become of government of fallible men. There is no “constitutional or statutory
disposition that grants a judge authority to arbitrarily and unilaterally decide
which causes of action are presented in their courtrooms.” Id. at 10. If a court can
refuse to consider questions of law arbitrarily, citizens with legitimate grievances
like Mr. Public and Ms. Private will be left with nowhere to turn, based only on the
particular whims and fancies of the person on the bench. The actions of the Circuit
Court violated Mr. Public’s and Ms. Private’s petition rights, and were repugnant to
the American conception of justice.
CONCLUSION
The Seventh Amendment has never bound the states. The doctrine of stare
decisis and the uniqueness of the Seventh Amendment compel the Court to adhere
to this long-standing holding. Accordingly, Respondents are not entitled to a civil
jury trial and Radnor’s elimination of the civil jury trial right was constitutional.
Further, the Circuit Court violated Petitioners’ First Amendment right to petition
the government for redress of grievances when it arbitrarily struck a valid claim
from the record. Thus, Petitioners respectfully pray that this Court uphold Radnor’s
elimination of the civil jury right and reverse the decision of the Circuit Court
striking Petitioners’ declaratory judgment request.
25