No. ____________
IN THE
Supreme Court of the United States
______________________________
JOE PUBLIC AND
JANE PRIVATE,
Petitioners,
V.
ENTERTAINMENT TABLOID, INC., AND
RADTV, INC.
Respondents.
_____________________________
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF RADNOR
______________________________
BRIEF FOR RESPONDENTS
______________________________
Maria Saab
Deirdre Potts
Team 10
Counsel for Respondents
Questions Presented
1. Whether in light of evolving conceptions of the Fourteenth Amendment Due Process
Clause, the Seventh Amendment should be incorporated against the states?
2. Whether a court violates a plaintiff’s First Amendment right to petition the government
for redress of grievances when it strikes a burden-shifting request without written opinion
and requires the plaintiff to re-file his complaint without it?
i
TABLE OF CONTENTS
QUESTIONS PRESENTED............................................................................................................i
TABLE OF CONTENTS.................................................................................................................ii
TABLE OF AUTHORITIES..........................................................................................................iv
CONSTITUTIONAL PROVISIONS INVOLVED.........................................................................1
JURISDICTION..............................................................................................................................1
STATEMENT OF THE CASE........................................................................................................1
I.
The Defamation Case...............................................................................................1
II.
Respondents’ Request for a Jury Trial.....................................................................1
III.
The Burden-Shifting Request..................................................................................2
SUMMARY OF ARGUMENT........................................................................................................3
ARGUMENT...................................................................................................................................4
I.
THE SEVENTH AMENDMENT RIGHT TO A TRIAL BY JURY IN CIVIL CASES
SHOULD BE INCORPORATED AGAINST THE STATES UNDER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.......................................4
A.
B.
Precedential Authority Regarding the Inapplicability of the Seventh Amendment
to the States Should be Overruled in Favor of Incorporation..................................6
1.
Seventh Amendment jurisprudence undercuts the precedent propounded
by Walker v. Sauvinet that the due process clause of the Fourteenth
Amendment does not require a state to utilize a jury in civil proceedings..7
2.
Recent developments regarding the evolution and expansion of the
incorporation doctrine favors the application of the Seventh Amendment
right to a trial by jury in civil cases to the states..........................................9
The Seventh Amendment is Applicable to the States Under the Test for
Incorporation Articulated in Duncan v. Louisiana.................................................12
ii
II.
1.
The right to trial by jury in civil cases is among the fundamental principles
of liberty and justice which lie at the base of all American civil and
political institutions....................................................................................13
2.
The right to trial by jury civil cases is basic in our system of
jurisprudence..............................................................................................14
3.
The right to a trial by jury in civil cases is a fundamental right, essential to
a fair trial....................................................................................................15
THE PETITION CLAUSE IS NOT VIOLATED WHEN A COURT STRIKES A
BURDEN-SHIFTING REQUEST WITHOUT WRITTEN OPINION BECAUSE A
LAWSUIT IS NOT A “PETITION” AND BECAUSE THE CONSTITUTION
DOES NOT REQUIRE THAT A COURT GIVE EXPLANATION FOR ITS
ACTIONS..........................................................................................................................16
A.
This Court has Never Actually Held that a Lawsuit is a “Petition” Within the
Meaning of the First Amendment..........................................................................16
B.
Lawsuits for Redress of a Private Harm are Not Among the Class of Activity that
the Petition Clause was Designed to Protect..........................................................18
C.
1.
Historical evidence confirms that a private lawsuit is not a “Petition.”....18
2.
Assuming arguendo that some lawsuits are Petitions, the First Amendment
does not protect a lawsuit that advances a purely private concern............20
Assuming Arguendo that a Lawsuit is a “Petition,” the First Amendment Does Not
Require a Court to Give an Explanation for Dismissing a Cause of Action..........21
1.
The Petition Clause protects only a right of “access” to the government..22
2.
As a matter of good policy, courts should be permitted to summarily
dismiss a cause of action without opining on the merits...........................24
CONCLUSION..............................................................................................................................25
iii
TABLE OF AUTHORITIES
United States Supreme Court Cases
Walker v. Sauvinet
92 U.S. 90 (1875). ...............................................................................................................3, 6, 7, 9
Duncan v. Louisiana
391 U.S. 145 (1968). ...................................................................................3, 10, 11, 12, 13, 14, 15
Twining v. New Jersey
211 U.S. 78 (1908). .................................................................................................................7, 8, 9
Palko v. Connecticut
58 S.Ct. 149 (1937). ..............................................................................................................8, 9, 10
Wagner v. Elec Mfg. Co. v. Lyndon
262 U.S. 226 (1923). .......................................................................................................................8
Hardware Dealers’ Mut. Fire Ins. Co. of Wisconsin v. Glidden Co.
284 U.S. 151 (1931). .......................................................................................................................8
Gitlow v. New York
372 U.S. 335 (1963). .......................................................................................................................8
Malloy v. Hogan
378 U.S. 1 (1964). ….......................................................................................................................9
Benton v. Maryland
395 U.S. 784 (1969). .......................................................................................................................9
McDonald v. City of Chicago, Ill.
130 S.Ct. 3020 (2010). ……...........................................................................................10, 11, 12
District of Columbia v. Heller
554 U.S. 570 (2008). ...............................................................................................................10, 18
Powell v. State of Alabama
287 U.S. 45 (1932). .......................................................................................................................13
In re Oliver
333 U.S. 257 (1948). .....................................................................................................................14
Jacob v. City of New York
iv
315 U.S. 752 (1942). .....................................................................................................................14
Borough of Duryea v. Guarnieri
131 S.Ct. 2488 (2011). ................................................................................................16, 17, 20, 21
BE & K Constr. Co. v. NLRB
536 U.S. 516 (2002). ...............................................................................................................16, 17
Sure–Tan, Inc. v. NLRB
467 U.S. 883 (1984). ...............................................................................................................16, 17
Bill Johnson’s Restaurants, Inc. v. NLRB
461 U.S. 731 (1983) ................................................................................................................16, 17
California Motor Transport v. Trucking Unlimited
404 U.S. 508 (1972). .....................................................................................................................17
Nevada Comm’n on Ethics v. Carrigan
131 S.Ct. 2343 (2011). ..................................................................................................................20
Minnesota State Bd. for Community Colleges v. Knight
465 U.S. 271 (1984). .........................................................................................................22, 23, 24
We the People Foundation, Inc. v. U.S.
485 F.3d 140 (2007). ...............................................................................................................22, 23
Smith v. Arkansas State Highway Employees
441 U.S. 463 (1979). .....................................................................................................................23
Christopher v. Harbury
536 U.S. 403 (2002). .....................................................................................................................25
Constitutional Provisions
U.S. Const. amend. I. ..............................................................................1, 4, 18, 20, 21, 22, 23, 25
U.S. Const. amend. II. ...............................................................................................................3, 10
U.S. Const. amend. V. .............................................................................................................3, 8, 9
U.S. Const. amend. VI. ...................................................................................................3, 9, 10, 15
U.S. Const. amend. VII. ..................................................................1, 3, 4, 6, 7, 8, 9, 11, 12, 13, 16
v
U.S. Const. amend. XIV. ......................................................................1, 3, 4, 5, 6, 7, 9, 10, 11, 15
Statutes
28 U.S.C. § 1257. ............................................................................................................................1
Section 8(a)(1) of the National Labor Relations Act. ...................................................................17
42 U.S.C. § 1983. ..........................................................................................................................17
Miscellaneous
James L. “Larry” Wright; M. Matthew Williams, Remember the Alamo: The Seventh
Amendment of the United States Constitution, the Doctrine of Incorporation, and State Caps on
Jury Awards, 45 S. Tex. L. Rev. 449, 464-65 (2004). ....................................................5, 8, 13, 15
Brent Tarter, Virginias and the Bill of Rights, in The Bill of Rights, 7 (Jon Kukla ed., 1987).....14
Michael Sean Quinn, Argument and Authority in Common Law Advocacy and Adjudication: An
Irreducible Pluralism of Principles, 74 Chi.-Kent L. Rev. 655, 710 (1999). ...............................16
Norman B. Smith, “Shall Make No Law Abridging ...”: An Analysis of the Neglected, but Nearly
Absolute, Right of Petition, 54 U. Cin. L. Rev. 1153, 1155 (1986). .......................................18, 19
Jonathan Weinberg, The Right to be Taken Seriously, 67 U. Miami L. Rev. 149, 192 (2012). ...19
Carol Rice Andrews, A Right of Access to Court Under the Petition Clause of the First
Amendment: De-fining the Right, 60 Ohio St. L.J. 557, 604–605, n. 159 (1999). ......................19
Marissa C.M. Doran, Note: Lawsuits as Information: Prisons, Courts, and a Troika Model of
Petition Harms, 122 Yale L.J. 1024, 1087 (2013). .......................................................................22
Gary Lawson & Guy Seidman, Downsizing the Right to Petition, 93 NW. U.L. REV. 739, 766
(1999). ...........................................................................................................................................22
vi
CONSTITUTIONAL PROVISIONS INVOLVED
This case involves questions related to the First Amendment right to petition, the Seventh
Amendment right to jury trial in a civil matter, and the Due Process Clause of the Fourteenth
Amendment. The full texts of these amendments are set forth in Appendices A, B, and C.
JURISDICTION
The Petitioners filed their Petition for Certiorari within 90 days of a judgment of last
resort in the Supreme Court of Radnor. Respondents filed a timely cross petition pursuant to Rule
13.4 of this Court. The jurisdiction of this Court is invoked under 28 U.S.C. § 1257.
STATEMENT OF THE CASE
I.
The Defamation Case
This dispute began with allegations of defamation by the Petitioners against the
Respondents. The Petitioners are a well-known actor and his wife. The Respondents are a
television entertainment news production company and its owner corporation, respectively. (R.
2). The Petitioners brought suit in the Radnor Circuit Court by publicly filing a formal
Complaint. (R.3).
A month after filing said Complaint, the Petitioners requested leave to file an Amended
Complaint that included new factual allegations of defamation and emotional damage. (R.5) The
court granted them leave to file that Amended Complaint, which also went on public record. Id.
II.
Respondents’ Request for a Jury Trial
Although the state constitution of Radnor does not reference jury trials in civil cases,
Radnor has always guaranteed a jury trial by statute. (R.1). In November in the midst of a fiscal
1
crisis, the Radnor electorate voted to eliminate jury trials in civil cases. Id. Voters also approved
a measure that reduced the number of Radnor Circuit Court judges by half. (R.1-2).
The Respondents, desiring a jury trial in the defamation case, questioned the
constitutionality of the referendum eliminating jury trials in civil cases. (R.4). Respondents
argued that Radnor could not abridge their right to a jury trial under the United States
Constitution, even by popular vote. Id. Respondents filed a declaratory judgment request to that
effect, which the Circuit Court denied. The presiding judge subsequently denied a petition for
reconsideration. Id.
III.
The Burden-Shifting Request
In conjunction with their defamation claims, the Petitioners made a request for a
declaratory judgment that the burden of proof in their defamation case be shifted to the
Respondents. (R.5). In other words, they sought a legal determination that, in a defamation case
in the state of Radnor, the defendant bears the burden of proving that its remarks were true or
reasonably investigated. Id. To advance this request, they presented their legal and factual
arguments to the Radnor Circuit Court judge. As a matter of course, the Complaint (including the
request) went in the public file. Id.
Several months after the Petitioners submitted their request to the Circuit Court, the
presiding judge ordered the Amended Complaint be stricken from the record and ordered
Petitioners to re-file their Amended Complaint without the request for burden shifting. (R.6).
Petitioners sought reconsideration from the Circuit Court and reconsideration was denied. Id.
The Supreme Court of Radnor, after receiving both parties’ Petitions for Certiorari, voted
5-4 to deny discretionary review on all claims. (R.7).
2
SUMMARY OF ARGUMENT
The Seventh Amendment right to a trial by jury in civil cases should be incorporated
against the states under the due process clause of the Fourteenth Amendment. (Part I). To the
extent that this Court’s decision in Walker v. Sauvinet permits a state court to refuse a jury trial in
a civil case, that decision should be overturned. (Part I.A.1). Incorporation of the Seventh
Amendment is consistent with modern due process jurisprudence, which has required states to
safeguard the majority of rights listed in the Bill of Rights. Recent decisions incorporating the
Second, Fifth, and Sixth Amendments favor the incorporation of the Seventh Amendment. (Part
I.A.2).
The Seventh Amendment should be incorporated because it meets the three-part test for
incorporation that this Court articulated in Duncan v. Louisiana. (Part I.B) First, the right to trial
by jury in civil cases is among the fundamental principles of liberty and justice that lie at the
base of all American civil and political institutions. (Part I.B.1). Next, the right to a trial by jury
in civil cases is basic to our system of jurisprudence. (Part I.B.2). Finally, the right to a trial by
jury in civil cases is a fundamental right, essential to a fair trial. (Part I.B.3).
Next, a burden-shifting request in a defamation case is not a constitutionally protected
“Petition.” (Part II). This Court has never held otherwise. (Part II.A). The Petition Clause
protects only those grievances that are presented to the executive and legislative branches of
government. The Drafters could not have intended to include private lawsuits among the class of
“Petitions” because lawsuits were not petitions in 18th century England or colonial America.
(Part B). When the Drafters sough to codify a pre-existing right, it was a right to democratic
participation and commentary in policymaking, not litigation. Even where this Court has
3
indicated that a lawsuit may be a “Petition,” it has afforded First Amendment protections only to
claims that implicate matters of “public concern” and more closely resemble a grievance than a
lawsuit. (Part II.B.1). Petitioners’ declaratory judgment request does not meet any “public
concern” test because it relates to the burden of proof in a defamation claim for monetary
damages; it does not advance any social, political, or community concern. (Part II.B.2).
Assuming arguendo that lawsuits are “Petitions,” the Constitution does not require a
government entity to give formal consideration or response. (Part II.C). This Court has held
unequivocally that the First Amendment is satisfied upon government receipt of a petition. (Part
II.C.1). As applied to lawsuits, the First Amendment is satisfied when a litigant enjoys the
freedom to present his claims and “air out” disputed facts in a public forum. (Part II.C.1). The
Petitioners enjoyed, and continue to enjoy, this freedom. Good policy also requires that a judge
have no constitutional obligation to give formal consideration or written response to every cause
of action. (Part II.C.2) To save time and money on a busy docket, a judge should have latitude to
quickly dispose of claims that he finds meritless. Moreover, a litigant’s right to obtain
discretionary review in an appellate court acts as a check on busy judges who might otherwise
abuse their discretion by summarily dismissing meritorious claims.
ARGUMENT
I.
THE SEVENTH AMENDMENT RIGHT TO A TRIAL BY JURY IN CIVIL CASES
SHOULD BE INCORPORATED AGAINST THE STATES UNDER THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.
The Seventh Amendment provides: In Suits at Common Law, where the value in
controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact
tried by a jury, shall be otherwise reexamined in any Court of the United States than according to
4
the rules of the Common Law. U.S. Const. amend. VII. The doctrine of incorporation provides
that the personal liberties guaranteed within the first eight amendments of the Bill of Rights
apply in the same strength and capacity to the states as the federal government. “The doctrine is
premised on the notion that, ‘[i]t is the duty of the courts to be watchful for the constitutional
rights of the citizen and against any stealthy encroachments thereon.’” James L. “Larry” Wright;
M. Matthew Williams, Remember the Alamo: The Seventh Amendment of the United States
Constitution, the Doctrine of Incorporation, and State Caps on Jury Awards, 45 S. Tex. L. Rev.
449, 464-65 (2004). The doctrine derives its legitimacy in pertinent part from the Fourteenth
Amendment which provides that, “no State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty or property, without due process or law; or deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV.
At the time of its passage in 1868, the Fourteenth Amendment embodied a national
interest in effecting certain and direct restrictions on the States’ activities affecting its citizens.
Slowly, the Court began to apply specific guarantees under the first eight amendments to the
states against evolving conceptions of the Due Process Clause. As a result, nearly all of the Bill
of Rights have been incorporated against the states.
The Seventh Amendment right to jury trial in civil matters has yet to be included in
expanding conceptions of due process and remains applicable only to the federal government.
While the Court has not ruled directly on the matter of incorporating the Seventh Amendment,
Seventh Amendment jurisprudence rejects the notion of incorporation that the Seventh
Amendment should be guaranteed beyond the, “Federal Court of the United States,” as
5
articulated within the amendment. The Court first formalized this rejection in Walker v. Sauvinet
stating that while the state could not deprive an individual of his property without due process of
law, the state was not bound to ensure due process by means of a jury. Walker v. Sauvinet, 92
U.S. 90, 93-94 (1875). Walker v. Sauvinet served as a foundation for a line of cases that continue
to reject the applicability of the Seventh Amendment to the states under the Due Process clause
of the Fourteenth Amendment. These cases, including Twining v. New Jersey and Palko v.
Connecticut, which the Court continues to rely upon, have been undercut by both more modern
and developed conceptions of the due process clause and the emergence of a more formalized
test for incorporation. In the natural progression of the law and changing, enhanced views of the
doctrine of incorporation, the Seventh Amendment right to a civil jury trial falls within the ambit
of guarantees already applied against the states through the Fourteenth Amendment.
A.
Precedential Authority Regarding the Inapplicability of the Seventh Amendment
to the States Should be Overruled in Favor of Incorporation.
The Supreme Court has not reviewed the applicability of the Seventh Amendment right to
civil jury trials to the states. Instead, the court continues to rely on early case law rejecting the
notion that the Due Process Clause of the Fourteenth Amendment may govern the form and
substance which the states guarantee legal rights to its citizens. The proposition the states remain
unaffected by the due process clause has been undermined by several recent cases that favor a
broader, more inclusive test for incorporation. Under this formulation, the Court has applied
nearly every guarantee of the first eight amendments to the states. In light of recent opinions by
this Court in favor of incorporating other rights, including the Sixth Amendment right to criminal
jury trial and the Second Amendment right to bear arms, the Court’s position that the Seventh
Amendment is inapplicable to the states must be reexamined.
6
1.
Seventh Amendment jurisprudence undercuts the precedent propounded by
Walker v. Sauvinet that the due process clause of the Fourteenth Amendment
does not require a state to utilize a jury in civil proceedings.
The Court’s first annunciated the inapplicability of the Seventh Amendment to the states
in the case of Walker v. Sauvinet. The Court expressly rejected the argument that the Seventh
Amendment right to jury trial in civil matters could apply to the states. Recognizing that while
the states were not exempt guaranteeing due process, “this did not necessarily imply that all trials
in the State courts affecting property of the person must be by jury.” Walker v. Sauvinet, 92 U.S.
90, 93-94 (1875). This opinion reflected the Court’s refusal to accept that the phrase articulated
in the Seventh Amendment, “Courts of the United States,” could mean anything but the Federal
Courts of United States (emphasis added); therefore, the Seventh Amendment’s trial by jury
could not be a,“privilege or immunity of national citizenship...[under] the Fourteenth
Amendment,” which the states were capable of abridging. Walker, 90 U.S. at 92-93. The Court
went further to say that so long as the law of due process remained a process belonging to and
regulated by the state, it could only determine whether, in application, it conformed to the
relevant state law. Id. at 94.
By the proposition that the Due Process clause of the Fourteenth Amendment did not
apply to the states, subsequent cases relied on Walker v. Sauvinet to reaffirm the unincorporated
status of the Seventh Amendment and to argue against incorporating other rights. Twining v. New
Jersey applied the Walker rationale to argue that the, “exemption from compulsory, selfincrimination is not a privilege or immunity of national citizenship guaranteed by this clause of
the [Fourteen]th Amendment against abridgment by the states.” Twining v. New Jersey, 211 U.S.
78, 99, 29 S.Ct. 14 (1908). The Twining court deferred to the states to manage their own systems
7
of due process, stating, “this court has, up to this time, sustained all state laws statutory or
judicially declared, regulating procedure, evidence, and methods of trial, and held them to be
consistent with due process of law.” Twining, 211 U.S. at 111. The court highlighted
that,“[a]mong the most notable of these decisions are those sustaining the denial of jury trial both
in civil and criminal cases...,” Twining, 211 U.S. at 111. While the Seventh Amendment right to
civil jury trial was not directly at issue in Twining, its mention served as a second affirmation of
the Walker position that the Due Process Clause is, “one almost impossible for the states to
violate.” James L. “Larry” Wright; M. Matthew Williams, Remember the Alamo: The Seventh
Amendment of the United States Constitution, the Doctrine of Incorporation, and State Caps on
Jury Awards, 45 S. Tex. L. Rev. 449, 487 (2004).
The Twining opinion endured the decades as the Court continued to reject the possibility
that the Seventh Amendment right to jury trial in civil matters, could be applied to the states. See
Wagner v. Electric Manufacturing Co. v. Lyndon, 262 U.S. 226, 232 (1923); Hardware Dealers’
Mutual Fire Insurance Co. of Wisconsin v. Glidden Co., 284 U.S. 151, 158 (1931). Despite that
by the Twentieth Century the Court began to slowly accept the idea that some of the guarantees
of the first eight amendments could be applied to the states, see Gitlow v. New York, 372 U.S.
335 (1963), incorporation continued to be the exception to the rule. This was especially the case
for the trial-based amendments as evidenced by Palko v. Connecticut, which formalized a very
narrow test for incorporation. To counter the defendant’s argument that the Fifth Amendment, as
well as the remainder of guarantees within the Bill of Rights, should be incorporated against the
states, the Court held that unless the right was of the, “very essence of a scheme of ordered
liberty... or [so] provincial as to maintain that a fair enlightened system of justice,” it need not be
8
applied to the states. Palko v. Connecticut, 58 S.Ct. 149, 152 (1937). The Fifth, Sixth, and
Seventh Amendments did not satisfy the test; according to the court, “[although these rights] may
have value and importance....they are not of the very essence of a scheme of ordered liberty. To
abolish them is not to violate a ‘principle of justice so rooted in the traditions and conscience of
our people as to be ranked as fundamental.” Id. at 152.
The Walker, Twining, and Palko line of cases exhibit the Court’s unrelenting position that
the Seventh Amendment can not be incorporated against the states. However, the timing of these
decisions pre-dates a wave of selective incorporation in the 1960s where several, specific
provisions of the Bill of Rights were deemed applicable to the states. The Seventh Amendment
was not directly at issue in Twining or Palko; however, in rejecting the applicability of the other
amendments to the states, the Seventh Amendment remained unincorporated. Therefore, when
Malloy v. Hogan, 378 U.S. 1, 6 (1964) made the Fifth Amendment right against selfincrimination applicable to the states and the right to double jeopardy was similarly applied in
Benton v. Maryland, 395 U.S. 784, 795 (1969), Twining and Palko were effectively overruled.
These cases can no longer guard the states against the Seventh Amendment when nearly all of
the Bill of Rights’ guarantees have since been incorporated. As the Seventh Amendment right to
civil jury trial remains one of two guarantees left unincorporated to the states, some more recent
cases lend formidable support that applying the doctrine of incorporation to the Seventh
Amendment is a natural, inevitable extension of the Due Process clause of the Fourteenth
Amendment.
2.
Recent developments regarding the evolution and expansion of the
incorporation doctrine favors the application of the Seventh Amendment
right to a trial by jury in civil cases to the states.
9
The doctrine of incorporation did not yield to the stringent test laid out in Palko.
Instead, an expansive view on the concept of due process has opened the doors for extending the
doctrine of incorporation to virtually all of the Bill of Rights’ guarantees. As recently as 2010,
the decision to incorporate the Second Amendment right to bear arms highlighted the
inviolability of the Due Process Clause of the Fourteenth Amendment against the states. In
McDonald v. City of Chicago, the notion that the Fourteenth Amendment applies to the states,
“only a watered-down, subjective version of the individual guarantees of the Bill of Rights was
expressly rejected because it would be incongruous to apply different standards of the right
depending on whether the claim asserted is in state or federal court.” 130 S.Ct. 3020, 3035
(2010). McDonald v. City of Chicago emerged in the wake of District of Columbia v. Heller, 554
U.S. 570 (2008), a case that held the Second Amendment protected an individual’s rights to bear
arms for traditionally lawful purposes, such as self-defense in the home and to federal enclaves;
however, the case did not settle whether this conception of the Second Amendment would in turn
be extended to the States. McDonald embodied the Second Amendment’s confrontation with the
states, when a state ordinance banning the possession of handguns became invalidated. After a
long exposition regarding the development of the Court’s perspective in applying the Due
Process Clause of the Fourteenth Amendment for the purpose of incorporating the Bill of Rights
against the states, the test pronounced in a Sixth Amendment case formed the legitimizing
argument for applying the doctrine of incorporation to the Second Amendment in this matter.
Duncan v. Louisiana, a case decided in 1968, argued that the Sixth Amendment criminal trial by
jury applied to the states by a process known as Selective Incorporation, which holds that
incorporation must occur when a right is found to be an implicit concept of ordered liberty or so
10
deeply rooted in our nation’s history and tradition. 391 U.S. 145, 148-49 (1968). Applying the
Duncan Selective Incorporation formula to the issues raised in McDonald, the Court held that
self-defense is a basic right and central component of the Second Amendment that has been
valued throughout Colonial and post-Revolutionary American history. Id. Therefore, “it is clear
that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear
arms among those fundamental rights necessary to our system of ordered liberty.” McDonald,
130 S.Ct. at 3045. Additionally in a separate concurring opinion, Justice Thomas stated that
beyond Duncan and the doctrine of incorporation, the Constitution, “clearly intended to protect
citizens' right of self defense and economic liberty...[and] the right to keep and bear arms is a
privilege of American citizenship that applies to the States through the Fourteenth Amendment's
Privileges or Immunities Clause.” Id. at 3059.
McDonald v. City of Chicago, like many of its predecessors, acknowledges the
conflicts of federalism that emerge while promoting the doctrine of incorporation to the Bill of
Rights’ guarantees. The Court is fully aware that, “if a Bill of Rights guarantee is fully binding
on the States... it thus limits (but by no means eliminates) their ability to devise solutions to
social problems that suits local needs and values.” Id. at 3050. The Court held that although
restrictions to experimentation and local variation become an inevitable result of incorporation,
“the relationship between the Bill of Rights’ guarantees and the States must be governed by a
single, neutral principle.” Id. at 3046. The Doctrine of Incorporation has applied virtually all of
the Bill of Rights to the states, establishing that the guarantees of the first eight amendments
serve as a minimum baseline of not only federal rights, but State and local rights as well. While
the Seventh Amendment remains unincorporated, the arguments made in McDonald v. City of
11
Chicago, bolstered by the test articulated in Duncan v. Louisiana, imply the Bill of Rights
guarantees were not arbitrarily ascertained by the Framers of the Constitution. Instead, including
these rights served as a natural and essential reflection of the values of the emerging nation at
that time. The inclusion of the Seventh Amendment right to civil jury trial within these Bill of
Rights means the Seventh Amendment shares this same “essential” quality, and therefore should
be applied to the states when assessed under Duncan’s formulation of Selective Incorporation.
B.
The Seventh Amendment is Made Applicable to the States Under the Test for
Incorporation Articulated in Duncan v. Louisiana.
Duncan v. Louisiana focused on the issue of whether the Sixth Amendment right to trial by
jury could be applied in the same manner to the states as applied to the federal government. The
test set forth by the court assessed the following factors: “[First], whether a right is among those
fundamental principles of liberty and justice which lie at the base of all the civil and political
institutions; [Second], whether it is basic in our system of jurisprudence; and [third] whether it is
a fundamental right essential to a fair trial. Duncan v. Louisiana, 391 U.S. 145, 148-149 (1968).
The Court reviewed English law to determine the treatment of the right at the time the
Constitution was written, American manifestations of the law, and the application of the right in
the state constitutions. In assessing the sufficiency of evidence supporting the importance of the
Sixth Amendment to state and federal rights, the Duncan court concluded, “even a skeletal
history was impressive support for considering the right to jury trial in criminal cases to be
fundamental to our system of jurisprudence.” Id. at 153-54. The Court’s continued and express
approval of the Duncan test for incorporation, made as recently as McDonald v. City of Chicago,
establishes that the Seventh Amendment can be evaluated similarly and with the same result as
12
other amendments recently applied to the states. The Duncan test for incorporation establishes,
therefore, that the Seventh Amendment right to civil jury trial be applied to the states.
1.
The right to trial by jury in civil cases is among the fundamental principles of
liberty and justice which lie at the base of all American civil and political
institutions.
To assess the first prong of the articulated test, the Duncan court first looked to English
law and tradition to assess the fundamental nature of the right to criminal jury trial in American
civil and political institution. Duncan v. Louisiana, 291 U.S. 145, 148-49 (1968), citing Powell v.
State of Alabama, 287 U.S. 45, 67, 53 S.CT. 55, 63, 77 L.ED 158 (1932). Applying a historical
analysis to the right of civil jury trial establishes that the civil jury trial existed as a right and
guaranteed long cherished under English tradition as well as imported and embraced in the
American Colonies. Colonists embraced the notion that they, too, shared the same privileges of
English law as those in Britain, the right to jury trial included. Preserving this right was
considered to be one of the greater conflicts at issue during the Constitutional Convention,
Alexander Hamilton acknowledged that the lack of civil jury trial formed one of the most
successful arguments against ratification. James L. “Larry” Wright; M. Matthew Williams,
Remember the Alamo: The Seventh Amendment of the United States Constitution, the Doctrine of
Incorporation, and State Caps on Jury Awards, 45 S. Tex. L. Rev. 449, 497 (2004), citing The
Federalist Papers No. 83.
Including the right to jury trial in civil matters to the Bill of Rights mirrored the
express approval and acceptance to the form of guarantees proposed by the Virginia Declaration
of Rights, which is seen as the predecessor to the Federal Bill of Rights; the right to criminal and
civil jury trial were included and deemed, “preferable to any other [trial], and ought to be held
13
sacred.” Id. at 504, citing Brent Tarter, Virginias and the Bill of Rights, in The Bill of Rights, 7
(Jon Kukla ed., 1987). Members of the Constitutional Convention agreed in the sanctity of the
system of jury trial, and seven of the original thirteen states included similar civil jury trial
guarantees in their state constitutions. As evidenced by the above history, the civil trial by jury
right assumed an integral role in the formation of the nation and it’s system of government. To
deny its applicability to the states equates to the importance placed in maintaining this right
through years of emigration, Revolution, and nation building.
2.
The right to trial by jury civil cases is basic in our system of jurisprudence.
Borrowing its analysis from the case of In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499,
507, 92 L.Ed. 682 (1948), the Duncan court next assessed what role the right to criminal jury
trial played in American system of jurisprudence. A similar examination of the role the right to
civil jury trial occupies in the American system of jurisprudence established that the civil jury
trial forms a basic and essential element of this system. The Supreme Court has stated that the,
“right of jury trial in civil cases at common law is a basic and fundamental feature... a right so
fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by
statute should be zealously guarded by the courts.” Jacob v. City of New York, 315 U.S. 752,
752-53 (1942). The jury trial forms one of the most cherished forms of civic duty, and embodies
what the Framers viewed as, “a safeguard against corrupt or overzealous prosecutor and against
the compliant biased or eccentric judge.” Duncan v. Louisiana, 391 U.S. 145, 156 (1968). The
jury trial provision in the Federal and State Constitutions reflect[ed] a fundamental decision
about the exercise of official power- a reluctance to entrust plenary powers over the life and
liberty of the citizen to one judge or to a group of judges.” The jury system thus reflects the
14
means by which the individual may participate with its government, and the means by which the
citizen may be protected by it.
3.
The right to a trial by jury in civil cases is a fundamental right, essential to a
fair trial.
Finally, the Duncan court evaluated the applicability of the Sixth amendment right to
criminal jury trial by assessing its’ importance based on notions of a fair trial. The Duncan Court
articulated that the jury trial served as:
(1) “fundamental to the American scheme of justice...(4) to provide “protection
against arbitrary action,” (5) “the common-sense judgment of a jury to the more
tutored but perhaps less sympathetic reaction of the single judge,” (6) to “reflect...
the reluctance to entrust plenary powers over the life and liberty of the citizen to
one judge or to a group of judges,”(7) the “[f]ear of unchecked power, typical of
our State and Federal Governments in other respects...(8) to prevent “miscarriages
of justice,” and (9) assure that “fair trials are provided for all defendants.” James
L. “Larry” Wright; M. Matthew Williams, Remember the Alamo: The Seventh
Amendment of the United States Constitution, the Doctrine of Incorporation, and
State Caps on Jury Awards, 45 S. Tex. L. Rev. 449, 517 (2004).
Stressing these principles, the Duncan court held that, “the Fourteenth Amendment guarantees a
right of jury trial in all criminal cases which, were they to be tried in a federal court, would come
with the Sixth Amendment guarantee.” Duncan, 391 U.S. at 148-149. These arguments lend
support of the importance of the jury system to ensure fairness in the adjudication of civil
matters. Civil jury trials were included in the Framers’ vision of an independent judiciary to
protect the citizen against, “arbitrary action.” Id. at 156.
A repeal on the right to civil jury trial constitutes the type of arbitrary action inflicted
by the state to the individual the Framers tried to eliminate. The Court has explicitly stated that
there is no room to deny the applicability of the Bill of Rights protections to the states; instead,
they, “are all to be enforced against the States under the Fourteenth Amendment according to the
15
same standards that protect those personal rights against federal encroachment.” Id. Under the
Duncan test for incorporation, the right to a jury trial in civil cases, as announced by the Seventh
Amendment, has a longstanding tradition in American civil and political institutions that is a
basic element of the American system of jurisprudence in guaranteeing a fair trial to the citizen.
The right must be incorporated against the state in order to ensure that no state is capable of
abridging the citizen’s access to systems of due process.
II.
THE PETITION CLAUSE IS NOT VIOLATED WHEN A COURT STRIKES A
BURDEN-SHIFTING REQUEST WITHOUT WRITTEN OPINION BECAUSE A
LAWSUIT IS NOT A “PETITION” AND BECAUSE THE CONSTITUTION
DOES NOT REQUIRE THAT A COURT GIVE EXPLANATION FOR ITS
ACTIONS.
A.
This Court has Never Actually Held that a Lawsuit is a “Petition” Within the
Meaning of the First Amendment.
The question of whether a lawsuit constitutes a “Petition” within the meaning of the First
Amendment is an open one. This Court has never delivered binding precedent on the issue. Even
if this court’s decision in Borough of Duryea v. Guarnieri appeared to resolve the constitutional
question, that decision is not dispositive because the Guarnieri court was never tasked with
deciding whether a lawsuit is a “Petition,” and never so held. See 131 S.Ct. 2488, 2494 (2011). In
any other instance where this Court has indicated that the Petition Clause may provide some
narrow protections to especial lawsuits, it has done so in dicta. See BE & K Constr. Co. v. NLRB,
536 U.S. 516, 534–536 (2002); Sure–Tan, Inc. v. NLRB, 467 U.S. 883, 896–897 (1984); Bill
Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 741–743 (1983).
Dictum is “[a]n opinion expressed by a court, but which, not being necessarily involved
in the case, lacks the force of adjudication.” Michael Sean Quinn, Argument and Authority in
Common Law Advocacy and Adjudication: An Irreducible Pluralism of Principles, 74 Chi.-Kent
16
L. Rev. 655, 710 (1999). Only when a given opinion is necessary for the adjudication of a case
does that opinion become a holding. Id. at 711. In the years of jurisprudence leading up to
Guarnieri, this Court has never actually held that a lawsuit is a “Petition.” See Guarnieri, 131
S.Ct. at 2502-03 (Scalia, J., dissenting). Even when it first speculated in 1972 in California
Motor Transport v. Trucking Unlimited that “access to courts” could be a component of First
Amendment rights, its holding was simply that certain antitrust immunity doctrine did not apply
to a business pursuing sham litigation to oust its competitors from a market. 404 U.S. 508, 510–
512 (1972). A collection of federal labor law cases that are cited to for the proposition that
lawsuit is a “Petition” are actually cases in which this Court based its holdings on statutory
interpretations of Section 8(a)(1) of the National Labor Relations Act. See BE & K Constr. Co. v.
NLRB, 536 U.S. 516, 534–536, 122 S.Ct. 2390, 153 L.Ed.2d 499 (2002); Sure–Tan, Inc. v. NLRB,
467 U.S. 883, 896–897, 104 S.Ct. 2803, 81 L.Ed.2d 732 (1984) Bill Johnson’s Restaurants, Inc.
v. NLRB, 461 U.S. 731, 741–743, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983).
In Guarnieri, this Court held that a government employer’s allegedly retaliatory actions
against an employee do not give rise to liability under the Petition Clause unless the employee’s
petition relates to a matter of public concern. 131 S.Ct. at 2500-01. In finding that the employee’s
petition did not relate to a matter of public concern, the Court observed that “[t]he parties
litigated the case on the premise that Guarnieri’s grievances and lawsuit are petitions protected
by the Petition Clause.” Id. at 2494. The Court went on to conclude that the employee’s 42
U.S.C. § 1983 claim would fail even if that Petition Clause premise were correct. Id. Any
conclusion by this Court about whether the lawsuit was a “Petition” was unnecessary to the
disposition of the case. Id. Indeed, as Justice Scalia noted in his dissent: “[t]he Court has never
17
actually held that a lawsuit is a constitutionally protected ‘Petition,’ nor does today’s opinion
hold that.” Id. As such, this Court is not bound by any of its prior jurisprudence on the
constitutional question of whether a private lawsuit is a “Petition.”
B.
Lawsuits for Redress of a Private Harm are Not Among the Class of Activity that
the Petition Clause was Designed to Protect.
1.
Historical evidence confirms that a private lawsuit is not a “Petition.”
This Court has always understood that the drafters of the First Amendment intended to
codify a set of pre-existing individual rights. See District of Columbia v. Heller, 554 U.S. 570,
579 (2008). Accordingly, this Court must look to historical practice to determine the First
Amendment’s scope. Id. The history of the Petition Clause suggests that civil lawsuits are not
true “Petitions” because, in both England and colonial America, a petition was an entreaty
directed to the executive or legislative branches. The idea that a lawsuit is not a “Petition” is
bolstered by the fact that litigants in this country waited close to 200 hundred years before
requesting that this Court afford First Amendment protections to their lawsuits.
The right to petition developed in feudal England principally as a right to petition the
executive, or the King. Disgruntled English nobility first codified the right to petition in the
Magna Carta of 1215, the “fundamental source of Anglo-American liberties”, in which the King
promised that: “[I]f we, our justiciar, or our bailiffs or any of our officers, shall in anything be at
fault toward anyone... [The barons may], laying the transgression before us, petition to have the
transgression redressed without delay.” See Norman B. Smith, “Shall Make No Law
Abridging ...”: An Analysis of the Neglected, but Nearly Absolute, Right of Petition, 54 U. Cin.
L. Rev. 1153, 1155 (1986) (emphasis added). Later, the right would expand to include
individuals’ petitions to the legislature (Parliament) and to the Crown bureaucracy. “Petitioning
18
became a safety valve for public discontent...subjects registered complaints, sought review of
official actions, and suggested changes in policies” to Parliament and the King. Jonathan
Weinberg, The Right to be Taken Seriously, 67 U. Miami L. Rev. 149, 192 (2012). Particularized
petitions pleading individual grievances were referred not to judges, but to auditors, and later to
the Chancellor, for “quasi-judicial” resolution. Id at 193. In sum, the Englishman’s right to
petition arose as a right to “democratic participation, and influence on public policy” (Id. at 194)
rather than as a right to institute private lawsuits in a court of law.
There is also historical evidence that “Petitions” in the colonies were directed exclusively
to the executive and legislative branches of government. The Stamp Act Congress of 1765 set
forth in its Declaration of Rights and Grievances that “it is the right of the British subjects in
these colonies to petition the King or either House of Parliament.” Smith, supra, at 1173. In
1774, the Declaration and Resolves of the First Continental Congress stated that the colonists
“have a right peaceably to assemble, consider of their grievances, and petition the King; and that
all prosecutions, prohibitory proclamations, and commitments for the same, are illegal.” Id. at
1174. As of 1781, seven state constitutions protected citizens’ right to apply or petition for
redress of grievances; all seven referred only to legislative petitions. See Carol Rice Andrews, A
Right of Access to Court Under the Petition Clause of the First Amendment: De-fining the Right,
60 Ohio St. L.J. 557, 604–605, n. 159 (1999). Indeed, in reading the text of the Petition Clause,
one might reasonably understand “Government” to mean the executive and legislative branches,
rather than the judiciary.
Next, “a universal and long-established tradition of prohibiting certain conduct creates a
strong presumption that the prohibition is constitutional: Principles of liberty fundamental
19
enough to have been embodied within constitutional guarantees are not readily erased from the
Nation’s consciousness.” Nevada Comm’n on Ethics v. Carrigan, 131 S.Ct. 2343, 2347-48
(2011) (internal quotation marks omitted). As Justice Scalia noted in his Guarnieri dissent, “[t]he
fact that the Court never affirmed a First Amendment right to litigate until its unsupported
dictum in 1972—after having heard almost 200 years’ worth of lawsuits, untold numbers of
which might have been affected by a First Amendment right to litigate—should give rise to a
strong suspicion that no such right exists.” 131 S.Ct. at 2504.
2.
Assuming arguendo that some lawsuits are Petitions, the First Amendment
does not protect a lawsuit that advances a purely private concern.
The Petition Clause cannot protect Petitioners’ burden-shifting request because a burdenshifting request in a defamation case does not advance matters of public concern. In instances
where this Court has indicated that a lawsuit may be a “Petition,” it has required that those
lawsuits implicate matters of “public concern” before affording them with First Amendment
protections. Guarnieri, 131 S.Ct. at 2500-01. Even though the Guarnieri court examined the
Right to Petition in the (limited) context of retaliatory actions against a public employee litigant,
the case has significant import because the Court declined to give First Amendment protections
to public employment lawsuits that do not “seek to communicate to the public or to advance a
political or social point of view” beyond the immediate context of the employment dispute. Id. at
2501. In applying a “public concern” test to a public employment petition, the Court noted that
the Right to Petition has been most useful as a tool to “address matters of great public import,”
such as civil rights for minorities. See Id. at 2500. Even where a government employer has taken
retaliatory action against a litigant employee (denial of overtime, overhaul of duties), if a “public
employee petitions as an employee on a matter of purely private concern, the employee’s First
20
Amendment interest must give way.” Id.
Although Petitioners in the instant case are not public employees, the rationale behind the
Guarnieri “public concern” test should apply to any lawsuit for which a litigant seeks First
Amendment protection. Because the historical right at the heart of the Petition Clause is a right
to “democratic participation, and influence on public policy” (Weinberg, supra, at 194) this
Court has been rightly concerned with limiting Petition Clause protections to lawsuits where a
public employee sues the government over matters of public concern. See Guarnieri, 131 S.Ct at
2494 (“[T]his case provides no necessity to consider the correct application of the Petition
Clause beyond that context”). Indeed, this Court has only applied Petition Clause analysis to a
narrow set of lawsuits: those that more closely resemble grievances against the government than
private litigation.
When Justice Kennedy noted that “[p]etitions to the government assume an added
dimension when they seek to advance political, social, or other ideas of interest to the
community as a whole” (id. at 2498) he surely did not contemplate a burden-shifting request in a
defamation case as falling among the class of petitions that add to the public conscience. Rather,
the Petitioners’ burden-shifting request in the Radnor circuit court intended to advance a purely
private concern: who would bear the burden and monetary costs of proving falsity. Moreover,
because the “public concern” test has applied even in instances of documented government
retaliation, it should apply with even more force when a government entity (in this case, a trial
court) has merely disposed of a suit without written opinion and without any further penalty. The
Petition Clause simply does not protect private, apolitical legal disputes over monetary damages.
C.
Assuming Arguendo that a Lawsuit is a “Petition,” the First Amendment Does Not
Require a Court to Give an Explanation for Dismissing a Cause of Action.
21
1.
The Petition Clause protects only a right of “access” to the government.
Assuming arguendo that lawsuits are “Petitions,” the Right to Petition is a right of access
to the courts; it is not a right to receive formal consideration or written response. Minnesota State
Bd. for Community Colleges v. Knight, 465 U.S. 271, 285 (1984); We the People Foundation,
Inc. v. U.S., 485 F.3d 140, 144-45 (2007). In the context of a lawsuit, the First Amendment is
satisfied when a plaintiff has free reign to make his complaint, to air out disputed facts, and to
request consideration -- even where that consideration is denied. Marissa C.M. Doran, Note:
Lawsuits as Information: Prisons, Courts, and a Troika Model of Petition Harms, 122 Yale L.J.
1024, 1087 (2013).
By the plain text of the First Amendment, the “right to petition the government for a
redress of grievances really is just a right to petition the government for a redress of grievances.”
Gary Lawson & Guy Seidman, Downsizing the Right to Petition, 93 NW. U.L. REV. 739, 766
(1999). Petitions provide an aggrieved individual with both an institutional alternative to
physical force and a public forum for the airing of disputed facts. Doran, supra, at 1084. If
lawsuits are Petitions, then “[t]he petition guarantee, as applied to lawsuits, is about ensuring the
individual’s fundamental right to access the courts. It is about guaranteeing the right of the public
to access information about closed institutions.” Id. at 1087. Importantly, the Petition Clause is
not a right to success in pursuing remedial change; rather, it applies to participants “even if, in
the end, they do not obtain the relief they seek.” Id. The Petition Clause is not violated simply
because a plaintiff’s claim, upon submission to a court, does not survive judicial inquiry.
A government entity, including a court, has no constitutional obligation to formally
consider a Petition or to respond in writing. For example, a state highway commission does not
22
violate the First Amendment by failing to formally consider or respond to grievances that
employees submit through their union. Smith v. Arkansas State Highway Employees, 441 U.S.
463, 463-64 & n. 1 (1979). Later, in holding that the state of Minnesota could constitutionally
refuse to confer with public employees other than a solitary group representative, this Court
recognized that, “[n]othing in the First Amendment or in this Court’s case law interpreting it
suggests that the rights to speak, associate, and petition require government policymakers to
listen or respond to individuals’ communications on public issues.” Knight, 465 U.S. at 285. An
individual is not deprived of a “meaningful” opportunity to express his views when a
government does not reply to a Petition, because “[Petition] rights, whatever their scope, entail
no government obligation to listen.” Id. at n.10. Even when a petition alleges that the federal
government has violated the Constitution, an executive agency has no obligation to enter into
“good faith exchanges” or to provide “documented and specific answers” to any individual. We
the People, 485 F.3d at 144-45.
In many ways, it is the practical exigencies of republican government that place significant
limit on Petition Clause rights, because “[i]t is inherent in a republican form of government that
direct public participation in government policymaking is limited.” See Knight, 465 U.S. at 285.
These exigencies of modern government fall as heavily on a judiciary branch as they do on
executive and legislative branches. If lawsuits are Petitions, then courts (like executive or
legislative entities) must have no First Amendment obligation to formally consider or respond to
a cause of action. Rather, the First Amendment is satisfied when litigants are permitted to present
their claim in a public forum for the airing of disputed facts. Indeed, if the Constitution required
a court to respond to every request for redress, then it might logically flow that this Court must
23
provide a formal opinion letter every time it exercises its discretion and denies a petition for a
Writ of Certiorari. Such an outcome would be absurd.
The Petitioners here enjoyed the freedom to present, publicly, their burden-shifting claim
against the Respondents. (R.3-5). The trial judge took pains to honor their First Amendment
rights when he heard the request, considered the merits for a period of months, and denied the
request without opinion. (R.5-6). Simply because the request is no longer on the public record
(R.6) does not mean that the Petitioners have not had ample opportunity to make their voices
heard. Even in the wake of the judge’s order to re-file, the Petitioners will be able to present, in
open court, the grievances at the core of their lawsuit: factual allegations of defamation. The trial
judge has even permitted the Petitioners to amend their Complaint to include additional facts
about the alleged defamation and resulting emotional damage. (R.5). If Petitioners are displeased
with the conduct of the judge, they are free to take recourse by lobbying the Radnor state
government for his removal. However, to require a judge to formally consider or give written
response to every Petition would be to extend the Petition Clause beyond its well-established
confines.
2.
As a matter of good policy, courts should be permitted to summarily dismiss
a cause of action without opining on the merits.
Good policy, as well as good law, supports the contention that a trial judge should not be
required to give a written opinion in every instance that he denies a request for declaratory
judgment. Petition Clause rights must be shaped, in part, by the exigencies and practicalities of
modern government, which serve to limit “direct public participation” in policymaking. See
Knight, 465 U.S. at 285. When a claim comes before an experienced trial judge, that judge
should have the latitude to quickly dispose of a cause of action that he views as meritless. This is
24
particularly true in a court system like Radnor’s, where fiscal concerns have reduced the number
of Circuit Court judges by half and judges must act efficiently and prudently. (R. 1.) Indeed, even
in true “loss of court access” cases (those in which a litigant is prevented altogether from
bringing a case) a claim of constitutional violation must be accompanied with a “nonfrivolous”
and “arguable” underlying claim. Christopher v. Harbury, 536 U.S. 403, 415 (2002). Such a rule
is evidence of this Court’s hesitance to offer any constitutional protection (including Fourteenth
Amendment protections) to a legal claim that is not likely to be successful. Id.
Finally, the right to appeal (or in this case, the right to request discretionary review) in an
appellate court acts as a substantial check on a busy trial judge who might otherwise abuse his
discretion by dismissing meritorious claims. A judge cannot do as he pleases without risking
reversal. As such, this Court should feel no hesitance in offering “discretion to respond” to
judges where it has already extended such discretion to executive agencies and legislatures who
do not risk appellate review when they refuse to respond to petitions. Among the three branches
of government, there is perhaps no branch better suited to use its own discretion in the
administration of justice than the judiciary itself. A holding today should reflect this conviction.
Conclusion
For the foregoing reasons, this Court should reverse the judgment of the Radnor Circuit
Court and find that the state of Radnor cannot constitutionally eliminate jury trials in a civil case.
This Court should also find that the Petitioners’ First Amendment rights have not been violated
in the Radnor courts below.
Respectfully Submitted,
Team 10, Counsel for Respondents
25
APPENDIX A
Seventh Amendment
“In Suits at Common Law, where the value in controversy shall exceed twenty dollars, the right
of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in
any Court of the United States than according to the rules of the Common Law.”
U.S. Const. amend. VII.
APPENDIX B
Fourteenth Amendment
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the state wherein they reside. No state shall make or enforce
any law which shall abridge the privileges or immunities of citizens of the United States; nor
shall any state deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.”
U.S. Const. amend. XIV, § 1
APPENDIX C
First Amendment
“Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievances.”
U.S. Const. amend. I.