Team Number 16
IN THE
Supreme Court of the United States
_________
JOE PUBLIC; JANE PRIVATE,
Petitioner,
v.
EDI; RADTV
Respondent.
_________
On Writ of Certiorari to
The Supreme Court of the State of Radnor
_________
BRIEF FOR PETITIONER
_________
PETITIONER A
PETITIONER B
COUNSELS OF RECORD
QUESTIONS PRESENTED
A.
Whether Defendants are entitled to a civil jury trial under the Seventh and
Fourteenth Amendments to the Constitution of the United States, when the
Seventh Amendment has not been incorporated against the United States.
B.
Whether striking a cause of action and ordering a plaintiff to file an amended
complaint without it violates that plaintiff’s First Amendment rights, when
that Amendment grants the right to petition the government for redress of
grievances; and the Supreme Court requires that judicial access be effective
and meaningful.
i
TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................................................................... i
TABLE OF CONTENTS ................................................................................................ ii
TABLE OF AUTHORITIES ......................................................................................... iv
STATEMENT OF JURISDICTION .............................................................................. 1
SUMMARY OF ARGUMENT ....................................................................................... 2
STATEMENT OF THE FACTS .................................................................................... 3
ARGUMENT .................................................................................................................. 5
I.
II.
REPEAL OF THE RADNOR CIVIL JURY TRIAL RIGHT IS
CONSTITUTIONAL BECAUSE THE RADNOR CONSTITUTION DOES
NOT PROTECT THE CIVIL JURY TRIAL RIGHT, THE SEVENTH
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES HAS
NOT BEEN INCORPORATED AGAINST THE STATES, AND THE
RADNOR FISCAL EMERGENCY PLAN COMPLIES WITH FOURTEENTH
AMENDMENT DUE PROCESS. ....................................................................... 5
A.
The unincorporated Seventh Amendment imposes no restrictions upon
the Radnor Fiscal Emergency Plan and the Seventh Amendment
should remain unincorporated as it does not protect a fundamental
right .......................................................................................................... 6
B.
The due process clause of the Fourteenth Amendment does not bar the
Radnor Fiscal Emergency Plan because the requirements of procedural
and substantive due process have been met ......................................... 10
ORDERING A PLAINTIFF TO FILE A COMPLAINT WITHOUT ONE OF
HIS DESIRED CAUSES OF ACTION VIOLATES THAT PLAINTIFF’S
FIRST AMENDMENT RIGHT TO PETITION THE GOVERNMENT FOR
REDRESS OF GRIEVANCES BECAUSE THE RIGHT IS FUNDAMENTAL
AND MUST BE MEANINGFUL. .................................................................... 12
A.
The First Amendment right to petition is one that must be meaningful,
a definition that includes not throwing a cause of action out for no
reason, as demonstrated by antitrust, labor law, and the Federal Rules
of Civil Procedure ................................................................................... 13
ii
B.
1.
Antitrust Law ............................................................................. 14
2.
Labor Law .................................................................................... 15
3.
Federal Rules of Civil Procedure ................................................ 17
The Court should find that the actions taken by the lower court in this
case violated the Plaintiff’s First Amendment right to petition the
government because to hold otherwise would open the door to total
judicial discretion with no opportunity for to challenge judicial action
and would make the language of the First Amendment redundant. ... 18
CONCLUSION............................................................................................................. 20
iii
TABLE OF AUTHORITIES
Constitutional Amendments
U.S. Const. amend I ..................................................................................................... 12
U.S. Const. amend VII ................................................................................................... 8
United States Supreme Court Cases
Bill Johnson’s Restaurants, Inc. v. N.L.R.B., 461 U.S. 731 (1983) .......... 13, 14, 15, 16
Bounds v. Smith, 430 U.S. 817 (1977) ........................................................................ 13
California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972) .... 13, 14
Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) ..................................................... 19
Colgrove v. Battin, 413 U.S. 149 (1973) ........................................................................ 9
DeJonge v. Oregon, 299 U.S. 353 (1937) ..................................................................... 12
Fidelity & Deposit Co. v. United States, 187 U.S. 315 (1902) ...................................... 9
Galloway v. United States, 319 U.S. 372 (1943) ........................................................... 9
Gasoline Prods. Co. v. Champlin Ref. Co., 283 U.S. 494 (1931) .................................. 9
Goss v. Lopez, 419 U.S. 565 (1975) .............................................................................. 10
Link v. Wabash R. Co., 370 U.S. 626 (1962) ............................................................... 19
Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) ............................................... 10
McDonald v. City of Chicago, Ill., 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010) ....... 6, 10
McDonald v. Smith, 472 U.S. 479 (1985).................................................................... 13
Mine Workers v. Illinois Bar Assn., 389 U.S. 217 (1967) ........................................... 13
Minneapolis & St. L.R. Co. v. Bombolis, 241 U.S. 211 (1916) ..................................... 6
Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S.
49 (1993) ................................................................................................................. 14, 15
Roadway Exp., Inc. v. Piper, 447 U.S. 752 (1980) ...................................................... 19
Walker v. New Mexico & S. Pac. R.R. Co., 165 U.S. 593 (1897)................................... 9
Washington v. Glucksberg, 521 U.S. 702 (1997) ......................................................... 11
United States Court of Appeals Cases
Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819 (6th Cir. 1953) 17
GTFM, LLC v. TKN Sales, Inc., 257 F.3d 235 (2d Cir. 2001) ...................................... 6
Idris v. City of Chicago, Ill., 552 F.3d 564 (7th Cir. 2009) ......................................... 11
Immediato v. Rye Neck Sch. Dist., 73 F.3d 454 (2d Cir. 1996) .................................. 11
Stanbury Law Firm v. I.R.S., 221 F.3d 1059 (8th Cir. 2000) .................................... 17
Vasquez v. Hernandez, 60 F.3d. 325 (7th Cir. 1995) .................................................. 13
Wallace v. Tilley, 41 F.3d 296 (7th Cir. 1994) ............................................................ 10
We the People Found., Inc. v. U.S., C.A.D.C., 485 F.3d 140 (D.C. Cir. 2007) ............ 18
Weimer v. Amen, 870 F.2d 1400 (8th Cir. 1989) ......................................................... 10
Wolf v. Fauquier County Bd. of Supervisors, 555 F.3d 311 (4th Cir. 2009) .............. 10
iv
United States District Court Cases
Cronin v. Town of Amesbury, 895 F.Supp. 375 (D.Mass. 1995)................................. 18
Driving School Assoc. of Ohio v. Shipley, No. 1:92-CV-00083, 2006 WL 2667017,
(N.D.Ohio 2006) ........................................................................................................... 17
Jones v. Brown, 300 F.Supp.2d 674 (N.D.Ind. 2003).................................................. 18
Melancon v. McKeithen, 345 F.Supp. 1025 (E.D.La. 1972) .......................................... 6
Morales v. Thurman, 326 F.Supp. 677 (E.D.Tex. 1971) ............................................. 13
Nicholson v. Moran, 835 F.Supp. 692 (D.R.I. 1993) ................................................... 12
Palmigiano v. Travisono, 317 F.Supp. 776 (D.R.I. 1971) ........................................... 13
Resolution Trust Corp. v. Vanderweele, 833 F.Supp. 1383 (N.D.Ind. 1993).............. 17
Stengel v. City of Columbus, Ohio, 737 F.Supp. 1457 (S.D.Ohio 1988) ..................... 18
Thor Corp. v. Automatic Washer Co., 91 F.Supp. 829 (S.D.Iowa 1950) .................... 17
Wrench LLC v. Taco Bell Corp., 36 F.Supp.2d 787 (W.D.Mich. 1998) ................ 17, 18
State Court Cases
Rudolph v. Massachusetts Bay Ins. Co., 472 So.2d 901 (La. 1985).............................. 6
Norsby v. Jensen, 916 P.2d 555 (Colo. Ct. App. 1995) ................................................ 12
Statute
Fed. R. Civ. P. 12(f) ................................................................................................ 17, 18
Law Reviews
Edith Guild Henderson, The Background of the Seventh Amendment, 80 Harv. L.
Rev. 289, 296-97 (1966) ................................................................................................. 7
Kenneth S. Klein, The Myth of How to Interpret the Seventh Amendment Right to A
Civil Jury Trial, 53 Ohio St. L.J. 1005, 1009 (1992) ................................................ 7, 8
Other Authorities
Taylor Asen, State Constitutional Provisions, Statutes, and Court Decisions on Trial
by Jury, http://www.roscoepound.org/docs/2011%20judges%20forum/2011%20Forum
%20State%20Jury%20Trial%20Provisions.pdf (last visited March 2, 2013) .............. 7
v
STATEMENT OF JURISDICTION
The petitioners, Joe Public and Jane Private have exhausted all of the
remedies available under the law of the State of Radnor. The petitioners have filed
a petition for Certiorari before this honorable Court and this Court has granted said
petition. This Court has jurisdiction pursuant to 28 U.S.C.A. § 1257 as this case
draws into question the validity of a statute of the state of Radnor on the ground of
said statute being repugnant to the Constitution.
1
SUMMARY OF ARGUMENT
I.
The Radnor Fiscal Emergency Plan (RFEP) is constitutional for three
reasons. First, the Constitution of Radnor is silent with regard to civil jury
trials and thus the RFEP complies with Radnor law. Second, the RFEP does
not offend the Seventh Amendment to the Constitution of the United States
because the Seventh Amendment has not been incorporated against the
states and should remain unincorporated. Finally, the RFEP complies with
Fourteenth Amendment procedural and substantive due process.
II.
The petitioners in the present case had their First Amendment right to
petition the government for redress of grievances violated when the state
court struck a cause of action and ordered them to re-file their complaint
without that portion. The right is fundamental, and must be meaningful.
This court should find the right was violated and was not meaningful,
especially when viewed in light of antitrust and labor law decisions, and in
accordance with the Federal Rules of Civil Procedure. Importantly, by not
finding a violation of the right, this court would allow judges to dismiss
claims sua sponte with no oversight or restrictions, which would result in the
language of the first amendment being redundant.
2
STATEMENT OF THE FACTS
Joe Public and Jane Private are citizens of Radnor looking to begin their lives
together. Joe is an actor in the popular Radnor soap opera “Wild Flower”, while
Jane is a nurse at a local children’s hospital. While Jane is a young eighteen years
of age, the two enjoy a solid relationship and were recently married.
Dan Paparazzi is hosts a daily tabloid program entitled “Gossip Show”.
Gossip show is produced by the respondents Entertainment Tabloid, Inc. (ETI).
Gossip show is broadcast in Radnor on channel 5. Channel 5 is owned by
Responded RADTV, a subsidiary of Rad International Group (RADIG).
On May 23 “Gossip Show” aired a segment on the marriage of Joe Public and
Jane Private. Joe’s bodyguards kept Paparazzi Dan at bay; however, Paparazzi was
able to take pictures of Jane. When the segment aired Paparazzi stated the
“wedding looked like a mafia wedding with way too many bodyguards” and that
Jane was kept from the public eye as if she were a “stolen hog”. Paparazzi accused
Joe of having felony sexual relations with a minor; he stated Jane was two months
pregnant as a result; and that the marriage was a ploy to cover up the felonious
sexual acts.
The accusations took a toll. Not only were Joe and Jane forced to cancel their
honeymoon, Jane was confronted by her friends and family and required to remain
in her home in order to avoid throngs of reporters and photographers. Joe was not
spared. He received threats, obscene emails, and had some very lucrative
endorsement deals revoked.
3
Joe appeared on the competing program “Tabloid Zone” to set the record
straight. Joe denied the accusations and informed the public of the results of
Paparazzi’s actions.
Joe and Jane filed suit against ETI and RADTV on December 2nd. The claim
was based on the slanderous and defamatory remarks Paparazzi made through ETI
and RADTV. These remarks caused not only great mental pain and anguish, but
cost Joe in excess of 5 million dollars in endorsement fees.
While the case progressed “Gossip Show” aired a three-part, three-day
“investigative report” about Joe and Jane. The “investigative report” included an
interview with a young woman who claimed Joe had sexual encounters with her
while dating one of his “Wild Flower” costars. The woman stated Joe requested she
dress and act as a little girl.
The interview brought Joe and Jane new and disastrous problems. Most
notably, the stress Jane felt as a direct result of the slanderous broadcast resulted
in the termination of her two-month pregnancy. At only eight months into their
marriage Joe and Jane had lost what would have been their first child. Jane then
fell into deep depression which led to hospitalization and continuing outpatient
treatments.
4
ARGUMENT
The Radnor Fiscal Emergency Plan (RFEP) is constitutional because the
Constitution of Radnor is silent with regard to civil jury trials; because the Seventh
Amendment to the Constitution of the United States has not been incorporated
against the states; and because the RFEP complies with Fourteenth Amendment
due process.
Furthermore, when the state court struck one of the petitioner’s causes of
action for no reason, the petitioners had their First Amendment right to petition the
government for redress violated. That right is fundamental and must be
meaningful, and as case law, statutes, and public policy will demonstrate, the right
is not meaningful if the court can strike portions of a petition for no reason, and
with no oversight.
I.
THE RADNOR FISCAL EMERGENCY PLAN IS CONSTITUTIONAL
BECAUSE THE RADNOR CONSTITUTION IS SILENT WITH
REGARD TO CIVIL JURY TRIALS; THE SEVENTH AMENDMENT TO
THE CONSTITUTION OF THE UNITED STATES HAS NOT BEEN
INCORPORATED AGAINST THE STATES; AND THE RADNOR
FISCAL EMERGENCY PLAN COMPLIES WITH FOURTEENTH
AMENDMENT DUE PROCESS.
The Radnor Fiscal Emergency Plan (RFEP) must survive both state and
federal constitutional challenges to survive. The Constitution of the State of
Radnor does not protect the right to a trial by jury in civil cases and thus (RFEP) is
constitutional under Radnor law; however, for the RFEP to survive it must also
comply with applicable federal law under the Seventh and Fourteenth Amendments
to the Constitution of the United States.
5
A.
The unincorporated Seventh Amendment imposes no
restrictions upon the Radnor Fiscal Emergency Plan and the
Seventh Amendment should remain unincorporated as it does
not protect a fundamental right.
While the Seventh Amendment protects the civil jury trial right in federal
courts, the amendment has not been incorporated against the states and thus the
Radnor legislature may abrogate civil juries without worry of Seventh Amendment
compliance. Minneapolis & St. L.R. Co. v. Bombolis, 241 U.S. 211, 222 (1916);
GTFM, LLC v. TKN Sales, Inc., 257 F.3d 235, 240 (2d Cir. 2001). This Court has
supported this idea of non-incorporation for nearly one hundred years and should
continue to do so in this case because civil jury trials are not so fundamental as to
justify incorporation of the Seventh Amendment.
Only those rights which are fundamental to our scheme of ordered liberty
and system of justice should be incorporated and while civil jury trial rights are
important, those rights are not fundamental. McDonald v. City of Chicago, Ill., 130
S. Ct. 3020, 3034 (2010). The United States Supreme Court has consistently
decided the right to jury trials in civil cases is not so fundamental to the American
system of justice as to justify incorporation. Rudolph v. Massachusetts Bay Ins. Co.,
472 So. 2d 901, 902-03 (La. 1985) citing Melancon v. McKeithen, 345 F.Supp. 1025,
1035 (E.D.La.1972) aff'd 409 U.S. 943 (1973). This Court should not disturb this
precedent as the right to a civil jury trial is not, and never has been fundamental to
the American system of justice.
6
Notwithstanding, many of the Founding Fathers spoke of the importance of
civil juries. Patrick Henry called civil juries the “best appendage of freedom,” one
“which our ancestors secured [with] their lives and property.” Kenneth S. Klein, The
Myth of How to Interpret the Seventh Amendment Right to A Civil Jury Trial, 53
Ohio St. L.J. 1005, 1009 (1992). Thomas Jefferson considered “…trial by jury as the
only anchor, ever yet imagined by man, by which a government can be held to the
principles of it's [sic] constitution.” Id.
Indeed, the lack of express protection for civil jury trials was a major
hindrance to the adoption of the new Constitution. Alexander Hamilton lamented
that the lack of a constitutional provision protecting civil jury trials was one of the
largest hurdles in the ratification of the Constitution. See Edith Guild Henderson,
The Background of the Seventh Amendment, 80 Harv. L. Rev. 289, 296-97 (1966);
Klein, supra at 1009.
Yet As important as civil jury trial rights are they are not fundamental and
thus the Seventh Amendment should not be incorporated. During the time of the
ratification each state chose its own method for administering civil juries. Id. at
1015-16. While some protected the right, some abrogated the right altogether. Id.
Today protection and administration of civil juries still differs widely between the
states. While the Constitutions of New York, Massachusetts, and Delaware
expressly protect civil juries, those of Colorado and Louisiana remain silent as to
the issue. Taylor Asen, State Constitutional Provisions, Statutes, and Court
Decisions on Trial by Jury, http://www.roscoepound. org /docs/2011%20
7
judges%20forum/2011%20Forum%20State%20Jury%20Trial %20Provisions.pdf
(last visited March 2, 2013).
The vast differences between the states at the time of ratification is said to
account for the wording of the Seventh Amendment. The Seventh Amendment
states that “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 re-examined in any Court of the United States, than
according to the rules of the common law.” U.S. Const. amend VII. At least one
commentator feels the term “common law” was a direct result of the differing
standards of the states. See Klein, supra at 1020.
Klein argues the true intention behind the Seventh Amendment was to
afford protection to civil juries as the states always had and to allow states to
administer civil juries as they saw fit. While it is always difficult to gauge the
intention of the Framers, this argument intelligently applies the context of the
ratification to what the Seventh Amendment actually protects as a fundamental
right. See Id.
That fundamental right is the right of each state to administer civil juries as
they see fit, not the protection of civil juries per se. The common law of each state
was different at the time of the ratification and the ability of the states to set their
own common law is what the Framers meant to protect with the Seventh
Amendment. While the Supreme Court has defined “common law” for the federal
courts, the Court has not incorporated the Seventh Amendment against the states
8
and has, thus far, protected the ability of the states to administer civil juries as they
see fit. Given the differing state history and standards regarding the
administration of civil juries, to include abrogating the civil jury trial right entirely,
the RFEP’s removal of the civil jury trial right is not novel and should not spur this
Court to incorporate the Seventh Amendment.
The RFEP is also in line with existing constitutional limitations as to what a
jury must hear. This Court has held many policies and procedures relating to what
a jury hears to be constitutional. Tools such as directed verdicts, summary
judgment, the number of jurors, partial new trials, and even setting aside general
verdicts and directing verdicts for a defendant on facts specially found have all been
held proper uses of state power. See Galloway v. United States, 319 U.S. 372, 395-96
(1943) (distinguished on other grounds); Fidelity & Deposit Co. v. United States, 187
U.S. 315, 319-21 (1902); Colgrove v. Battin, 413 U.S. 149, 158-60 (1973)
(distinguished on other grounds); Gasoline Prods. Co. v. Champlin Ref. Co., 283 U.S.
494, 498-99 (1931) (distinguished on other grounds); Walker v. New Mexico & S.
Pac. R.R. Co., 165 U.S. 593, 596-98 (1897) (distinguished on other grounds). The
RFEP goes no further than any of these limitations, especially since the Radnor
Supreme Court remains a court of last resort on the issue.
From the beginning of constitutional history states have been allowed to
administer or abrogate civil jury trials as they see fit and this Court should follow
that precedent in dealing with the RFEP. That precedent is proper because it
9
considers the fundamental right protected by the Seventh Amendment and
comports with the current policies and procedures as to what the jury must hear.
B.
The due process clause of the Fourteenth Amendment does not
bar the Radnor Fiscal Emergency Plan because the
requirements of procedural and substantive due process have
been met.
The adoption of the Fourteenth Amendment fundamentally altered the
nation’s legal system and thus the Radnor Fiscal Emergency Plan (RFEP) must also
comply with Fourteenth Amendment due process to survive. See McDonald, 130 S.
Ct. at 3028.
The cornerstone of Fourteenth Amendment due process is the prevention of
abusive governmental power. Weimer v. Amen, 870 F.2d 1400, 1405 (8th Cir. 1989).
Prevention is assured by requiring states to comply with procedural and
substantive due process when taking a person’s life, liberty or property. See Wallace
v. Tilley, 41 F.3d 296, 299 (7th Cir. 1994). Since a legal claim constitutes property,
the RFEP must comply with procedural and substantive due process to survive.
Logan v. Zimmerman Brush Co., 455 U.S. 422, 432 (1982). We begin with the
procedural.
Procedural due process provides merely a guarantee of fair procedures,
typically notice and an opportunity to be heard at the minimum. Wolf v. Fauquier
County Bd. of Supervisors, 555 F.3d 311, 323 (4th Cir. 2009) (citing Goss v. Lopez,
419 U.S. 565, 579, (1975)). Radnor has satisfied the demands of procedural due
process by providing a popular vote.
10
The popular vote satisfies procedural due process because it provides both
notice and an opportunity to be heard. The RFEP is somewhat unique in that it
removed a right from all of Radnor’s citizens. Therefore, to be constitutional the
RFEP must have provided those citizens with both notice and the opportunity to be
heard. The RFEP met this challenge by providing a popular vote. Through the
popular vote all citizens were notified of the election and had a chance to be heard
through the election process; thus, the RFEP has satisfied the demands of
procedural due process.
Indeed, were this Court to hold a popular vote insufficient in meeting the
concerns of procedural due process the result would likely inhibit any state or local
government from removing any statute which conferred a right upon the concerned
populace. There is simply little else Radnor could have done to give its citizens
notice and the right to be heard on this issue; therefore, this Court should hold the
RFEP to be in compliance with the requirements of procedural due process.
The final hurdle the RFEP must clear is that of substantive due process.
Substantive due process depends on the existence of a fundamental liberty interest,
Idris v. City of Chicago, Ill., 552 F.3d 564, 566 (7th Cir. 2009) (distinguished on
other grounds) (citing Washington v. Glucksberg, 521 U.S. 702, 719-22, (1997)).
Fundamental rights are subject to strict scrutiny, while statues encroaching on
other rights need only rationally advance a legitimate state interest. See Immediato
v. Rye Neck Sch. Dist., 73 F.3d 454, 461 (2d Cir. 1996).
11
Civil jury trials are not a fundamental right. As discussed above, it is the
idea that states be allowed to administer or abrogate civil juries as they see fit that
is fundamental; thus, the RFEP need only rationally advance a legitimate
government interest to survive.
State fiscal certainty is a legitimate government interest and since the RFEP
rationally advances this interest the RFEP should survive. Norsby v. Jensen, 916
P.2d 555, 562 (Colo. Ct. App. 1995). Radnor, like all states, must provide a stable
and productive society for all of its citizens. Fiscal certainty is a key component in
achieving these goals. The legislature and judiciary of Radnor determined that in
order to meet the needs of the state, various programs, including civil juries would
need to be removed in order for Radnor to operate within its new budget. The
resulting savings is essential for this plan; thus, the RFEP rationally advances the
legitimate interest of fiscal certainty and should survive.
II.
ORDERING A PLAINTIFF TO FILE A COMPLAINT WITHOUT ONE
OF HIS DESIRED CAUSES OF ACTION VIOLATES THAT
PLAINTIFF’S FIRST AMENDMENT RIGHT TO PETITION THE
GOVERNMENT FOR REDRESS OF GRIEVANCES BECAUSE THE
RIGHT IS FUNDAMENTAL AND MUST BE MEANINGFUL.
The First Amendment provides, in relevant part, that “Congress shall make
no law…abridging…the right of the people…to petition the government for a
redress of grievances.” U.S. Const. amend I. The First Amendment right to petition
the government for redress of grievances is applicable to the states because it has
been incorporated into the Fourteenth Amendment. Nicholson v. Moran, 835
F.Supp. 692, 695 (D.R.I. 1993) (citing DeJonge v. Oregon, 299 U.S. 353, 364 (1937)).
12
This right to petition is one of “the most precious of the liberties safeguarded by the
Bill of Rights.” Mine Workers v. Illinois Bar Assn., 389 U.S. 217, 222 (1967).
Further, “The Petition Clause…was inspired by the same ideals of liberty and
democracy that gave us the freedoms to speak, publish, and assemble.” McDonald
v. Smith, 472 U.S. 479, 485 (1985). Finally, “[t]he due process right to access to the
courts and the First Amendment right to petition officials and the courts…for
redress of grievances are fundamental rights.” Morales v. Thurman, 326 F.Supp.
677, 680 (E.D.Tex. 1971) (citing Palmigiano v. Travisono, 317 F.Supp. 776, 787
(D.R.I. 1971)).
A.
The First Amendment right to petition is one that must be
meaningful, a definition that includes not throwing a cause of
action out for no reason, as demonstrated by antitrust, labor
law, and the Federal Rules of Civil Procedure.
To begin, “[t]he right of individuals to pursue legal redress for claims which
have a reasonable basis in law and fact is protected by the First and Fourteenth
Amendments.” Vasquez v. Hernandez, 60 F.3d. 325, 328 (7th Cir. 1995) (citing Bill
Johnson’s Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 741 (1983)). One aspect of
the First Amendment’s right to petition the government for redress of grievances is
the right of access to the courts. Bill Johnson’s Restaurants, 461 U.S. at 741
(citing California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510
(1972)). Importantly, “[j]udicial access must be ‘adequate, effective, and
meaningful.’” Vasquez, 60 F.3d. at 328 (quoting Bounds v. Smith, 430 U.S. 817, 822
(1977)).
13
1.
Antitrust Law
One way that a business can negatively influence a rival is through sham
litigation – bringing a baseless claim in court in an effort to learn more about a
competitor or force that competitor to act in a certain way. When groups with
similar interests work together to bring about such a lawsuit, antitrust law can be
implicated. Indeed, the court has held that it does “not prohibit[] the filing of a
lawsuit, regardless of the plaintiff's anticompetitive intent or purpose in doing so,
unless the suit [is] a ‘mere sham’ filed for harassment purposes.” Bill Johnson’s
Restaurants, 461 U.S. at 741 (quoting California Motor Transport, 404 U.S. at 511).
Further, the Court has held that “it would be destructive of rights…of petition to
hold that groups with common interests may not…use the channels and procedures
of state and federal agencies and courts to advocate their causes and points of view.”
California Motor Transport, 404 U.S. at 511. Thus, in order to actually throw out a
claim because it is a “sham,” a court must determine first that the lawsuit is
“objectively baseless in the sense that no reasonable litigant could realistically
expect success on the merits. If an objective litigant could conclude that the suit is
reasonably calculated to elicit a favorable outcome, the suit is immunized.”
Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S.
49, 60 (1993). Second, if the challenged litigation is found to be objectively
meritless, the court must still examine the subjective motivation of the litigant. Id.
This test for determining when a claim made in court can be thrown out or
subject to antitrust litigation demonstrates that the Supreme Court is unwilling to
14
throw out a claim or subject it to attack for no reason. The claims that litigants in
antitrust cases want to attack are being made purely to gain a competitive
advantage in business, the claims are not being made to vindicate a person who was
wronged. Despite the ill intent of the groups bringing claims, they cannot be
attacked in their claims unless the opposing party can show the two elements of the
test given in Id.
The Supreme Court requires a litigant to show that a claim is objectively
meritless and the intent of the party bringing the claim was bad in order to attack
that claim with antitrust law. Id. Accordingly, it would fly in the face of the
Supreme Court if the court here was allowed to require the plaintiffs to file a
complaint without a certain claim, when there has been no showing that the claim
was meritless or that the plaintiff had bad intent. If the Supreme Court is willing
to protect claims made in court by groups that are inherently suspect and are
bringing litigation that benefits their business, it should also protect an individual
who wants to exercise his First Amendment right to bring a claim; especially when
it has not been shown that the claim is meritless or brought with any subjectively ill
intent.
2.
Labor Law
Under labor law, as with antitrust law, even when a suit is brought with ill
intent (retaliation in the case of labor law), the claim must also be baseless before it
will be enjoined. The Supreme Court has held that “[c]onsidering the First
Amendment right of access to the courts…[t]he filing and prosecution of a well-
15
founded lawsuit may not be enjoined as an unfair labor practice, even if it would not
have been commenced but for the plaintiff's desire to retaliate against the
defendant.” Bill Johnson’s Restaurants, 461 U.S. at 742-43. If a plaintiff has raised
issues of material fact, a Board cannot proceed with any actions that would take
away from the traditional function of a state court jury or judge. Id. at 745-46. This
is directly after the Court notes a “plaintiff's First Amendment interest in
petitioning the state court for redress of his grievance, [and] his interest in having
the factual dispute resolved by a jury.” Id. at 745. Finally, the Court stated “[i]f
judgment goes against the employer in the state court, however, or if his suit is
withdrawn or is otherwise shown to be without merit, the employer has had its day
in court.” Id. at 747.
The Court’s statements in Bill Johnson’s make it clear once again that the
First Amendment interest in petitioning the court for redress requires a court to
have some reason for dismissing a claim. A labor board cannot take over the duties
of a jury or state court unless the claim has been found to baseless. Id. at 745-46.
The court also states that an individual must have a judgment or a present a
meritless case before that person has had his day in court. Id. at 747. If the court
in the present case is allowed to dismiss a claim for absolutely no reason, it cannot
be argued that the plaintiff has had his day in court, thus the petition was not
meaningful. The Supreme Court’s decisions regarding labor law require a case to be
resolved or found to be meritless before an individual has had his day in court, even
if the claim was made to be retaliatory. Accordingly, the court in the present case
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should not be allowed to require the plaintiffs to file a complaint in the court
without a desired cause of action – to do so would be to deprive him of his day in
court and First Amendment right to petition the government.
3.
Federal Rules of Civil Procedure
When a case has been brought before a court, “[t]he court may strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.” Fed. R. Civ. P. 12(f). District Courts are given “liberal
discretion” to determine when to strike a portion of a pleading because it falls under
Rule 12(f) of the Federal Rules of Civil Procedure. Stanbury Law Firm v. I.R.S., 221
F.3d 1059, 1063 (8th Cir. 2000) (quoting Thor Corp. v. Automatic Washer Co., 91
F.Supp. 829, 832 (S.D.Iowa 1950)). However, “[a] motion to strike is a drastic
remedy that should be used sparingly and only when the purposes of justice
require. Driving School Assoc. of Ohio v. Shipley, No. 1:92-CV-00083, 2006 WL
2667017, at *1 (N.D.Ohio 2006) (citing Brown & Williamson Tobacco Corp. v.
United States, 201 F.2d 819, 822 (6th Cir. 1953)). Accordingly, “[c]ourts disfavor
motions to strike because they ‘propose[ ] a drastic remedy.’” Wrench LLC v. Taco
Bell Corp., 36 F.Supp.2d 787, 789 (W.D.Mich. 1998) (quoting Resolution Trust Corp.
v. Vanderweele, 833 F.Supp. 1383, 1387 (N.D.Ind. 1993)).
The Federal Rules of Civil Procedure and the case law surrounding them
illustrate that the court should only strike a portion of a complaint in extreme
situations, and the Rule 12(f) gives specific examples of when a court may strike a
portion of a pleading. The language is instructive in that the Rule allows a court to
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strike a portion of a pleading when it is “redundant, immaterial, impertinent, or
scandalous” but even then the court is not required to strike that portion. Fed. R.
Civ. P. 12(f). The Federal Rules of Civil Procedure, and the case law surrounding
them are in line with the Constitution. Those rules give only specific instances
where a court can, on its own, strike a portion of a pleading, and even then case law
advises judges to use strikes sparingly, even going so far as to say strikes are
disfavored. Wrench, 36 F.Supp.2d at 789. The Federal Rules and case law are in
line with the Constitution, and this court should adhere to the law set out by them,
and not allow the court in this case to require the plaintiffs to file their complaint
without a portion that they desire, especially when there has been no finding that
the stricken portion was without merit or otherwise “scandalous.”
B.
The Court should find that the actions taken by the lower
court in this case violated the Plaintiff’s First Amendment
right to petition the government because to hold otherwise
would open the door to total judicial discretion with no
opportunity for to challenge judicial action and would make
the language of the First Amendment redundant.
Many districts have made a determination that the right to petition the
government does not require the government to respond to that petition. See: We
the People Found., Inc. v. U.S., C.A.D.C., 485 F.3d 140, 143 (D.C. Cir. 2007); Jones
v. Brown, 300 F.Supp.2d 674, 679 (N.D.Ind. 2003); Cronin v. Town of Amesbury, 895
F.Supp. 375, 390 (D.Mass. 1995); Stengel v. City of Columbus, Ohio, 737 F.Supp.
1457, 1459 (S.D.Ohio 1988). With the issue in the present case, the practical way of
achieving a lack of government response is through sua sponte dismissal of the
Plaintiff’s claim. A court “may act sua sponte to dismiss a suit for failure to
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prosecute.” Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (citing Link v.
Wabash R. Co., 370 U.S. 626, 630-31 (1962)). However, “[b]ecause inherent powers
are shielded from direct democratic controls, they must be exercised with restraint
and discretion.” Roadway Exp., Inc. v. Piper, 447 U.S. 752, 764 (1980). “A primary
aspect of that discretion is the ability to fashion an appropriate sanction for
conduct which abuses the judicial process.” Chambers, 501 U.S. at 44-45.
If this court finds that the Plaintiff’s First Amendment right to petition the
government for redress of grievances was not violated, it will be opening the door to
judges; allowing them to dismiss any portion of any pleading for any (or no) reason
whatsoever. As noted above, judicial rules need to be exercised with “restraint and
discretion.” Roadway Exp., 447 U.S. at 764. To allow any judge to force a plaintiff
to file an amended complaint without a desired claim, without having made an
actual legal determination on why the claim should not be allowed, would allow the
judge to abuse the process and violate the plaintiff’s First Amendment rights,
without providing an opportunity to challenge the judge’s determination. This
would put an unacceptable amount of power in the hands of judges, without
protecting a fundamental Constitutional right.
Finally, if this Court agrees with the circuits mentioned above that believe
the right to petition does not include a response from the government, it will have
determined that the right to petition the government is not, in fact, any different to
the right to free speech. The right to petition the government, without a necessary
response from the government, is simply the right to free speech. If a plaintiff files
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a pleading with the court, but is told that he cannot file a portion of that pleading,
the plaintiff has exercised his right to free speech by writing the pleading, but has
received no other benefit. If the government, specifically the court, does not have to
respond to a pleading, and can instead simply deny a plaintiff’s claim, that
plaintiff’s right to petition the government has become only a right to free speech.
He is allowed to talk, but will not be heard by the government. This would be an
unacceptable way to define the right to petition the government, and would
improperly make the right to petition the government no different in practice from
the right to free speech – making the right “to petition the government for a redress
of grievances” superfluous in the First Amendment of the Constitution of the United
States.
CONCLUSION
For the foregoing reasons, this court should find that the repeal of the Radnor
civil jury trial right is constitutional, and the petitioners did have their First
Amendment right to petition the government for redress of grievances violated.
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