No. 00-001

__________________________________________

Jane Private and Joe Public,

PETITIONERS, v.

Entertainment Tabloid, Inc. and RADTV, RESPONDENTS.

____________________

On Writ of Certiorari to the Supreme Court of

____________________

BRIEF FOR PETITIONERS ______________________________

Thomas Cockriel Benjamin Jacobs Counsel for Petitioners Team 38

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QUESTIONS PRESENTED FOR REVIEW

1. Does the Seventh Amendment or the Fourteenth Amendment of the United States Constitution

entitle Respondents to a jury trial in a civil action in a state whose legislature, based on legitimate

state interests, has expressly eliminated such jury trials?

2. Does a state trial court infringe on a plaintiff’s First Amendment right of court access by, without a

hearing or explanation, refusing to rule on a cause of action, ordering that plaintiff to file an

Amended Complaint without that cause of action, and striking that cause of action from the record?

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Table of Contents

QUESTIONS PRESENTED FOR REVIEW.............................................................................. i

TABLE OF CONTENTS ....................................................................................................ii

TABLE OF AUTHORITIES................................................................................................ iv

STATEMENT OF JURISDICTION .......................................................................................v

STATEMENT OF THE CASE ..............................................................................................1

SUMMARY OF THE ARGUMENT.......................................................................................4

ARGUMENT ..................................................................................................................6

I. NEITHER THE SEVENTH AMENDMENT NOR FOURTEENTH AMENDMENT GUARANTEES RESPONDENTS THE RIGHT TO A JURY TRIAL IN A CIVIL ACTION IN STATE COURT ................................................................................6

A. The Seventh Amendment Does Not Guarantee Respondents The Right To A Jury Trial In A Civil Action In State Court ....................................................................7

B. The Fourteenth Amendment Does Not Incorporate The Seventh Amendment To Apply To The States .........................................................................................8

1. The Court has never held that the Seventh Amendment is incorporated to apply to the states ..............................................................................8

2. The Seventh Amendment should not now be incorporated to apply to the states by the Fourteenth Amendment.......................................................9

a) The right to a jury trial is not fundamental to our scheme of ordered liberty or deeply rooted in this Nation’s history and tradition.. ..................9

b) Because there is no fundamental right involved, the elimination of jury trials in civil actions should be analyzed under rational basis review. .......... 10

c) Radnor’s elimination of jury trials passes rational basis review because it is ratioanlly related to a legitimate government interest ....................... 10

3. When a state chooses to offer more rights than the Fourteenth Amendment requires, the state may eliminate those rights without offending the Fourteenth Amendment.................................................... 11

II. THE FIRST AMENDMENT GUARANTEES PETITIONERS THE RIGHT TO PETITION THE GOVERNMENT AND PROHIBITS A STATE COURT FROM ARBITRARILY QUASHING PETITIONERS’ CAUSE OF ACTION. .............................. 11

A. The First Amendment’s Petition Clause Grants Petitioners A Right Of Access To The Courts. ....................................................................................................... 12

1. The Petition Clause encompasses all reasonably based causes of action ............….13

2. A request for declaratory judgment is entitled to the same First Amendment protection as any other cause of action....................................................... 14

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B. Petitioners’ Request For Declaratory Judgment Is Reasonably Based And Thus Protected by the First Amendment. .................................................................... 17

1. Petitioners’ request for declaratory judgment is objectively reasonable. .............. 18

2. Petitioners’ request for declaratory judgment is subjectively genuine.................. 21

C. The Radnor Circuit Court Violated Petitioners’ First Amendment Rights By Refusing To Respond To And Striking Their Well-Grounded Request...................................... 21

1. The Radnor Circuit Court had an obligation to respond to the Petitioners’ declaratory judgment request.................................................................. 22

2. The Radnor Circuit Court violated Petitioners’ First Amendment right of access to the courts by striking the request from the record. ............................ 24

CONCLUSION ............................................................................................................. 25

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TABLE OF AUTHORITIES

Cases BE & K Const. Co. v. N.L.R.B., 536 U.S. 516 (2002). ………………………………………passim Bill Johnsons v. N.L.R.B., 461 U.S. 731 (1983) …………………………………………...passim California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508 (1972)……………………...5, 12 City of Monterey v. Del Monte Dunes, 526 U.S. 687, 719 (1999)………………………………….7 Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 524 U.S. 424 (2001)…………………………..6 Crawford v. Bd. of Educ., 458 U.S. 527 (1982)………………………………………………...11 Curtis v. Loether, 415 U.S. 189 (1974)…………………………………………………....4, 6, 9 Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967)………………………………………………….18 De Jonge v. Oregon, 299 U.S. 353 (1937)……………………………………………………..12 E. R. R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961)…………………...13 Edwards v. Elliott, 88 U.S. 532 (1874)…………………………………………………………7 Flemming v. Nestor, 363 U.S. 603 (1960)……………………………………………………..10 Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)…………………………………………..19, 20 Lipman v. Brisbane Elementary Sch. Dist., 55 Cal. 2d 224 (Ca. 1961)…………………………….18 Maher v. Roe, 432 U.S. 464 (1977)…………………………………………………………..10 McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) ………………………………….…..4, 7, 9 MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007)……………………………………….15 Minneapolis & S. L. R. Co. v. Bombolis, 241 U.S. 211(1916)………………………………...passim Minnesota State Bd. for Cmty. Colleges v. Knight, 465 U.S. 271 (1984)….............................22, 23 Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009)…………………………………………15 Murel v. Balt. City Crim. Ct., 407 U.S. 355 (1972)…………………………………………….16 New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ……………………………………….6, 18 Ornelas v. United States, 517 U.S. 690 (1996) ………………………………………………….6 Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986)……………………………………18 Prof'l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49 (1993)……12, 13, 17, 21 Time, Inc. v. Firestone, 424 U.S. 448 (1976)……………………………………………….19, 20 United Mine Workers of America v. Ill. State Bar Ass’n, 389 U.S. 217 (1967)……………………….21 United States v. Bajakajian, 524 U.S. 321 (1998) ………………………………………………6 Walker v. Sauvinet, 92 U.S. 90 (1876)…………………………………………………………8 Washington v. Glucksberg, 521 U.S. 702 (1997)………………………………………………..11 Zemel v. Rusk, 381 U.S. 1 (1965)…………………………………………………………….14 Grievance Comm'n v. Jacobs (In re Jacobs), 44 F.3d 84 (2nd Cir. 1994), cert. denied 516 U.S. 817

(1995)………………………………………………………………………………7 Brown v. Kelly Broadcasting Co., 48 Cal.3d 711 (Ca. 1989)……………………………………..18 Constitutional Provisions CAL. CONST. art.1, § 1……………………………………………………………………..18 RADNOR CONST. art. 3, § 1……………………………………………………………..passim RADNOR CONST. art. 3, § 5……………………………………………………………..passim U.S. CONST. Art. III, § 1……………………………………………………………………10 U.S. CONST. AMEND. I………………………………………………………………….passim U.S. CONST. AMEND. VI……………………………………………………………………10 U.S. CONST. AMEND. VII……………………………………………………………….passim U.S. CONST. AMEND. XIV………………………………………………………………passim

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Statutes Fed. R. Civ. P. 11(b)(1)…………………………………………………………………....21 Fed. R. Civ. P. 11(b)(2)…………………………………………………………………… 21 Fed. R. Civ. P. 11(c)(1)…………………………………………………………………….21 Fed. R. Civ. P. 54(b)……………………………………………………………………….15 28 U.S.C. 1257(a)…………………………………………………………………………..vi 28 U.S.C. 1291…………………………………………………………………………….15 28 U.S.C. 2201…………………………………………………………………………….14 Other Andrews, Carol Rice, Access to Court Under the Petition Clause of the First Amendment: Defining the Right, 60

Ohio St. L.J. 557 (1999)……………………………………………………..23-24 Higginson, Stephen A., A Short History of the Right to Petition the Government for the Redress of Grievances, 96

Yale L.J. 142 (1986)………………………………………………….23 Hodgkiss, Anita, Petitioning and the Empowerment Theory of Practice, 96 Yale L.J. 569 (1987).........22 RESTATEMENT (SECOND) OF TORTS § 613 cmt. J (1965)………………………………………16 Spanbauer, Julie M., The First Amendment Right to Petition Government for a Redress of Grievances: Cut from a

Different Cloth, 21 Hastings Const. L.Q. 15, 49 (1993)………………………… 23 Wright, Miller, & Kane, Federal Practice and Procedure § 2759 (3d. ed. 1998)…………………...15

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STATEMENT OF JURISDICTION

The Radnor Supreme Court denied both parties’ request for review. Both parties timely filed

separate Certiorari petitions before the Supreme Court of the United States. The Supreme Court of the

United States granted in part Petitioners’ petition for writ of certiorari and in part Respondents’ petition

for writ of Certiorari. The jurisdiction of this Court rests on 28 U.S.C. §1257(a).

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STATEMENT OF THE CASE

Jane Private and Joe Public (“Petitioners”) are newlywed citizens of the U.S. state of Radnor.

Thurgood Marshall Moot Court Competition Problem at 2 (hereinafter “Problem”). Jane is a nurse at a

local children’s hospital and Joe is an actor. Id.

The Constitution of Radnor was approved by the citizens of Radnor by a referendum and was

approved by Congress as a condition of the state’s admission to the Union. Id. at 1. The Constitution of

Radnor does not mention the right to trial by jury in civil cases but the state legislature established, by

statute, the right to trial by jury in most civil cases. Id.

Article III, Section 5 of Radnor’s Constitution, protects Radnor’s citizens from abusive attacks

against their honor, reputation, and private or family life. Id. Furthermore, Article III, Section 1 of the

Radnor Constitution acknowledges that the dignity of the human being is inviolable. Id.

In an attempt to avoid defaulting on its financial obligations, the state legislature presented to its

citizens the Radnor Fiscal Emergency Plan (RFEP), a package of budget cuts and reforms. Id. The plan was

approved by 62% of the Radnor electorate. Id. As part of the reform plan, Radnor eliminated its Appellate

Court, decreased the number of Circuit Court Judges, and changed the Supreme Court’s jurisdiction to

discretionary-only in civil matters. Id. The statute granting jury trials in civil actions was also repealed. Id.

The Radnor Legislature and Judicial Branch Judiciary Committee determined that the judiciary

would not have been able to continue operating efficiently or within its annual budget without the savings

from eliminating jury trials in civil cases. Id. at 2.

Gossip Show is a tabloid entertainment television show produced by Entertainment Tabloid, Inc.

(ETI), a Radnor corporation. Id. Gossip Show is broadcast in the primetime slot on Radnor’s most popular

channel, Channel 5. Id. RADTV, a subsidiary of RAD International Group (RADIG), owns Channel 5. Id.

(ETI and RADTV hereinafter jointly known as “Respondents”).

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Dan Paparazzi, a reporter for Gossip Show, was sent to cover Jane and Joe’s wedding but was

denied access by Joe’s bodyguards. Id. Paparazzi then went on Gossip Show and insulted the couple, saying

their wedding looked like a “mafia wedding” and Jane was hidden like a “stolen hog.” Id. Paparazzi also

accused Joe of having sexual relations with Jane while Jane was a minor, which is a felony in Radnor. Id.

Paparazzi suggested the couple was getting married because Jane was two months pregnant. Id.

Jane and Joe were very distressed by Paparazzi’s accusations. Id. at 3. The couple even cancelled

their honeymoon to spend time together in their home, away from prying media. Id. Joe also lost lucrative

endorsement deals because of the accusations. Id.

Days after Paparazzi’s accusations, Joe appeared on a television show to attempt to set the record

straight. Id. He discussed how he met and started dating Jane, how she was not pregnant, and that they had

not had relations when she was a minor. Id. Even though Joe attempted to set the record straight, an

expert survey showed 80% of a 3000 person sample believed the statements were true. Id. at 4.

In December, Jane and Joe filed suit against Respondents, ETI and RADTV, for defamation and

slander under Radnor Law, claiming that the accusations on the Gossip Show broadcast caused the couple

great mental pain, anguish, and damage to Joe’s career. Id. at 3. Joe estimated that the accusations cost

him endorsement deals valued at more than $5 million. Id. at 4.

Jane and Joe also claimed they were entitled to the heightened privacy protections provided by

Radnor’s Constitution. RADNOR CONST. art.3, §§ 1, 5. They sought a declaratory statement that these

provisions should shift the burden to the Respondents to prove that the remarks were true or were

reasonably investigated before broadcasting. Id. at 4.

Respondents denied most of the allegations, including the burden shifting request, and filed a

counter-request for declaratory judgment. Id. at 5. Respondents also challenged the constitutionality of

the RFEP section that eliminated civil jury trials, claiming, inter alia, that the elimination violated the

Seventh and Fourteenth Amendments to the U.S. Constitution. Id.

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One month after Jane and Joe filed suit, Gossip Show aired another segment on the couple. Id.

This segment was even more acrimonious than the first and included anonymous accusations that Joe

cheated on an ex-girlfriend and had asked that woman to dress up and act as a young girl during sexual

encounters. Id. Jane was so distressed by this segment that she had to be hospitalized for deep depression

and her two-month pregnancy was unexpectedly terminated. Id.

Jane and Joe amended their complaint against EIT and RADTV to include the accusations in the

second Gossip Show segment and the even worse emotional damage. Id.

Jane and Joe filed a motion to dismiss Respondents’ declaratory judgment request on the grounds

that the Seventh Amendment does not apply to civil trials in state court, that the Amendment has not been

incorporated against the states, that it is not a privilege or immunity of citizenship, and that the citizens of

Radnor overwhelmingly support the removal of the statutory right. Id. at 5.

The presiding judge, without being moved by either party, ordered Jane and Joe’s Amended

Complaint be stricken from the record and ordered them to re-file their Amended Complaint without the

burden of proof shifting declaratory judgment request. Id. at 6. The judge also affirmed the section of the

RFEP that abolished jury trials in civil cases. Id.

Jane and Joe sought reconsideration by the Circuit Court, arguing that the judge’s removal of the

request violated their First Amendment right to petition the government for redress. Id. They merely

sought for the Circuit Court to either grant or deny the declaratory judgment request. Id. The Court,

again without an opinion explanation, declined to reconsider. Id.

Respondents also sought reconsideration, arguing that the Circuit Court was bound by the

Fourteenth Amendment to recognize a Seventh Amendment civil jury trial right in state courts. Id. The

Circuit Court declined to reconsider. Id.

Both sides sought discretionary review from the Radnor Supreme Court. Id. The Radnor Supreme

Court voted 5 to 4 against both requests for discretionary review, thus affirming the Circuit Court’s

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decisions. Id. at 7.

Both sides filed separate Certiorari petitions before the Supreme Court of the United States and the

Supreme Court consolidated and granted both petitions. Id. As to Respondents’ claims, the Court granted

review only of the Seventh and Fourteenth Amendment claims. Id.

SUMMARY OF THE ARGUMENT

I. Respondents are not guaranteed the right to a jury trial in civil actions in state court. The Supreme

Court of the United States has explicitly stated the Seventh Amendment does not guarantee litigants jury

trials in civil actions in state courts. “[T]he Seventh Amendment applies only to proceedings in courts of the

United States and does not in any manner whatever govern or regulate trials by jury in state courts.”

Minneapolis & S. L. R. Co. v. Bombolis, 241 U.S. 211, 217 (1916). This issue has been “completely and

conclusively . . . settled.” Id.

The Fourteenth Amendment does not guarantee the right either. This Court has “not held that the

right to jury trial in civil cases is an element of due process applicable to state courts through the Fourteenth

Amendment.” Curtis v. Loether, 415 U.S. 189, 192 n. 6 (1974). This Court only selectively incorporates

Amendments through the Fourteenth Amendment based on whether the right is “fundamental to our

scheme of ordered liberty or . . . whether this right is deeply rooted in this Nation’s history and tradition.”

McDonald v. City of Chicago, 130 S. Ct. 3020, 3036 (2010) (internal citations and quotations omitted). The

right to a jury trial in civil actions in state court is not fundamental to our scheme or ordered liberty and is

not a right deeply rooted in our Nation’s history and tradition. The right was not historically granted and

both Radnor’s electorate and Supreme Court did not view it as fundamental. The fact that the state offered

a right that was not required by the Constitution should not change the incorporation analysis.

This Court has refused to apply the Seventh Amendment to state court civil actions and has refused

to incorporate the Seventh Amendment to apply to state courts. This Court today should follow this

strong, century-old precedent.

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II. 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.

1. The Radnor Circuit Court violated this right by refusing to recognize Petitioners’ request for

declaratory judgment and ordering that the request be stricken from the record. In doing so, the Circuit

Court effectively closed the courthouse door on Petitioners.

This Court has expressly recognized that the First Amendment’s Petition Clause protects the right

of access to the courts. California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972). Jane

and Joe made an objectively reasonable, good-faith request for a declaratory statement that the burden of

proof should be shifted to Respondents in this case. Their request was grounded in the Radnor

Constitution, which grants an express right of privacy and protection from defamatory attacks. RADNOR

CONST. art. 3, §§ 1, 5.

Without explanation, the Circuit Court refused to grant or deny the request. The judge simply

ordered the Petitioners to re-file their complaint without the request for declaratory relief. And, by going

one step further and striking the initial request from the record, effectively muted Petitioners’ request

entirely.

The Circuit Court’s course of action robbed Petitioners of “one of the most precious liberties

safeguarded by the Bill of Rights.” BE & K Const. Co. v. N.L.R.B., 536 U.S. 516, 524 (2002). As a result,

Petitioners are left with no means of pursuing their well-grounded claim for relief and, because of the RFEP

legislation, have no right of appeal. Thus, the Radnor Circuit Court deprived Petitioners of their First

Amendment right to access the courts.

STANDARD OF REVIEW

The standard of review for both questions should be de novo. Both questions present issues of

constitutional interpretation. Specifically, the first question requires this Court to determine whether the

Fourteenth Amendment incorporates the Seventh Amendment. Problem at 7. The second question

6

requires this Court to determine whether the Radnor Circuit Court violated Petitioners’ First Amendment

right of access to the courts. Id.

This Court has expressly held that a “constitutional issue merits de novo review.” Cooper Indus., Inc.

v. Leatherman Tool Group, Inc., 524 U.S. 424, 431 (2001); see also United States v. Bajakajian, 524 U.S. 321,

336 (1998) (holding that question of whether a fine is constitutionally excessive under Eighth Amendment

should be reviewed de novo); Ornelas v. United States, 517 U.S. 690, 691 (1996) (holding that question of

whether a warrantless search was reasonable under Fourth Amendment should be reviewed de novo). Even

more specifically, this Court has explained the importance of reviewing First Amendment issues de novo:

“[T]he rule is that we examine for ourselves the statements in issue and the circumstances under which they

were made. . . . We must make an independent examination of the whole record, so as to assure ourselves

that the judgment does not constitute a forbidden intrusion on the field of free expression. New York Times

Co. v. Sullivan, 376 U.S. 254, 285 (1964).

Thus, this Court should review both questions presented de novo.

ARGUMENT

I. NEITHER THE SEVENTH AMENDMENT NOR FOURTEENTH AMENDMENT GUARANTEES RESPONDENTS THE RIGHT TO A JURY TRIAL IN A CIVIL ACTION IN STATE COURT.

The Seventh Amendment does not guarantee Respondents the right to a jury trial in civil actions in

state court. “[T]he Seventh Amendment applies only to proceedings in courts of the United States and does

not in any manner whatever govern or regulate trials by jury in state courts.” Bombolis, 241 U.S. at 217.

The issue has been “completely and conclusively . . . settled . . . without dissent or question from the

beginning . . . .” Id.

Further, this Court has “not held that the right to jury trial in civil cases is an element of due

process applicable to state courts through the Fourteenth Amendment.” Loether, 415 U.S. at 192 n. 6. This

Court only selectively incorporates Amendments based on whether the right is “fundamental to our scheme

7

of ordered liberty or . . . whether this right is deeply rooted in this Nation’s history and tradition.”

McDonald, 130 S. Ct. at 3036. As discussed below, the right to a jury trial in civil actions in state court is

not fundamental to our scheme of ordered liberty and is not a right deeply rooted in our Nation’s history

and tradition. The fact that the state once offered more rights than the Constitution requires does not

change the incorporation analysis.

This Court has refused to apply the Seventh Amendment to state court civil actions and has refused

to incorporate the Seventh Amendment to apply to state courts. Today, the Court today should follow this

strong, century-old precedent.

A. The Seventh Amendment Does Not Guarantee Respondents The Right To A Jury Trial In A Civil Action In State Court.

The Seventh Amendment does not guarantee litigants jury trials in civil actions in state courts. In

1874, this Court first suggested the Seventh Amendment does not apply to trials in state court. Edwards v.

Elliott, 88 U.S. 532, 557 (1874). The Court has continued with this jurisprudence. See e.g. City of

Monterey v. Del Monte Dunes, 526 U.S. 687, 719 (1999) (“It is settled law that the Seventh Amendment does

not apply [to suits brought in state court].”); Bombolis, 241 U.S. at 217 (“[T]he Seventh Amendment applies

only to proceedings in courts of the United States and does not in any manner whatever govern or regulate

trials by jury in state courts or the standards which must be applied concerning the same.”); Grievance

Comm'n v. Jacobs (In re Jacobs), 44 F.3d 84, 89 (2nd Cir. 1994), cert. denied 516 U.S. 817 (1995) (“[The] claim

that the Seventh Amendment required a jury trial in the state proceeding rests on an equally flawed

assertion that the Seventh Amendment applies to state as well as federal actions.”).

The issue has been “completely and conclusively . . . settled . . . without dissent or question from

the beginning . . .” and to suggest otherwise would suggest that “nothing whatever ha[s] been settled as to

the power of state and Federal governments or the authority of state and Federal courts . . . .” Bombolis,

241 U.S. at 217.

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Further, questioning this precedent is “to attempt to question the entire course of judicial ruling

and legislative practice both state and National which had prevailed from the commencement . . . .” Id.

This Court suggested there was “no ground for the proposition that the Amendment is applicable and

controlling in proceedings in state courts deriving their authority from state law. . . .” Id. at 219.

Protecting the independence of state courts is an important principle of Federalism. This Court has

recognized the independent and unique nature of state courts. Federal courts are created by the

Constitution and Congress. State courts are not. The two sets of courts have different jurisdictions and

hear different actions. To subject a state court to all provisions of the Constitution and Acts of Congress is

to turn state courts into hybrid state-federal courts:

[B]oth Federal and state courts would by fluctuating hybridization be bereft of all real, independent existence. . . . [W]hether they should be considered as state or as Federal courts would from day to day depend not upon the character and source of the authority with which they were endowed by the government creating them, but upon the mere subject-matter of the controversy which they were considering.

Id. at 221. Such a hybrid court system is an affront to our Nation’s governmental system. Radnor should

not be required to offer jury trials for civil actions.

B. The Fourteenth Amendment Does Not Incorporate The Seventh Amendment To Apply To The States.

1. The Court has never held that the Seventh Amendment is incorporated to apply to the states.

The right to a jury trial in civil cases has not been incorporated to apply to the states and is not

incorporated through the Fourteenth Amendment. In 1876, the Court said that neither the Privileges and

Immunity Clause nor the Due Process Clause guaranteed jury trials in state courts:

A trial by jury in suits at common law pending in the State courts is not, therefore, a privilege or immunity of national citizenship, which the States are forbidden by the Fourteenth Amendment to abridge. A State cannot deprive a person of his property without due process of law; but this does not necessarily imply that all trials in the State courts affecting the property of persons must be by jury.

Walker v. Sauvinet, 92 U.S. 90, 92-93 (1876).

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Although the Court has since incorporated many of the Amendments to apply to the states, the

Court has refused to incorporate the Seventh Amendment right to jury trial in civil cases. The Court has

“not held that the right to jury trial in civil cases is an element of due process applicable to state courts

through the Fourteenth Amendment.” Loether, 415 U.S. at 192, n. 6.

2. The Seventh Amendment should not now be incorporated to apply to the states by the Fourteenth Amendment.

The Court today should not now change course and act to incorporate the Seventh Amendment to

apply to the states. Respondents will argue for incorporation so litigants have similar rights in state court as

in federal court, but this argument should fail. Litigants do not receive similar rights in state courts and in

federal courts. This is one of the unique aspects of our Nation’s federal system. In discussing the

application of the Seventh Amendment to state court civil actions, this Court declared there was “no

relation whatever to the enforcement of rights in other forums merely because the right enforced is one

conferred by the law of the United States.” Bombolis, 241 U.S. at 220. The application of the Seventh

Amendment “to a condition to which it is not applicable would be not to interpret and enforce the

Constitution, but to distort and destroy it.” Id.

a) The right to a jury trial is not fundamental to our scheme of ordered liberty or deeply rooted in this Nation’s history and tradition.

When this Court analyzes an Amendment-guaranteed right to decide if incorporation is necessary

under the Due Process Clause, this Court first examines whether the right is “fundamental to our scheme of

ordered liberty” and “deeply rooted in this Nation's history and tradition.” McDonald, 130 S. Ct. at 3036.

Here, the right to a jury trial in a civil action in state court is not fundamental or deeply rooted. This is

evident in the Court precedent mentioned above and the federalism argument below. At a more local

level, it is apparent that the citizens of Radnor did not find the right fundamental; the state constitution did

not contain the right even though it mentioned jury trials for other actions and over sixty percent of the

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electorate voted to remove the statutory guarantee to a jury trial in a civil action in Radnor courts.

Problem at 1.

This Court recognizes that state courts are independent and unique from Federal courts. Federal

courts are created by the Constitution and Congress. U.S. CONST. art. III, § 1. State courts are created by

the states. The two sets of courts have different jurisdictions and hear different actions with different

procedures, remedies, punishments, and precedents. There is “no ground for the proposition that the

[Seventh] Amendment is applicable and controlling in proceedings in state courts deriving their authority

from state law. . . .” Bombolis, 241 U.S. at 219.

To subject a state court to all provisions of the Constitution and Acts of Congress is to turn state

courts into hybrid state-federal courts, a result clearly not envisioned by the Founding Fathers. Thus, the

incorporation of a right to a jury trial in civil actions in state court would be a clear affront to the Nation’s

federalism principle.

b) Because there is no fundamental right involved, the elimination of jury trials in civil actions should be analyzed under rational basis review.

Because the right to a jury trial in civil cases is not a fundamental right, this Court should analyze

Radnor’s elimination using rational basis review: Is Radnor’s elimination rationally related to a real or

hypothetical legitimate government interest? See Maher v. Roe, 432 U.S. 464, 470 (1977). Here, this Court

should use the rational basis test because the right is not fundamental or rooted in our Nation’s history, as

argued above, and Radnor has a legitimate interest in not defaulting on its obligations.

c) Radnor’s elimination of jury trials passes rational basis review because it is rationally related to a legitimate government interest.

Radnor has several legitimate government interests in eliminating jury trials. This Court accepts a

states actions under rational basis review unless the actions are “utterly lacking in rational justification.”

Flemming v. Nestor, 363 U.S. 603, 611 (1960). Americans are guaranteed the right to a speedy trial and to

eliminate Radnor’s judiciary would be a denial of fundamental rights. U.S. CONST. AMEND. VI. Also,

11

Radnor’s interest in funding its obligations is legitimate because a default on obligations could lead to a

decrease in the safety and wellbeing for the citizens of Radnor. States have legitimate interests in preserving

the lives and wellbeing of their citizens. Washington v. Glucksberg, 521 U.S. 702, 728 (1997). The

elimination effects all citizens similarly and no class was singled out or will be impacted more than another.

These interest are legitimate interests that should justify the elimination of jury trials in civil actions.

3. When a state chooses to offer more rights than the Fourteenth Amendment requires, the state may eliminate those rights without offending the Fourteenth Amendment.

When Radnor offered jury trials in civil actions, the state was offering more rights than required by

the Fourteenth Amendment. The state’s decision to eliminate some of those excess rights does not offend

the Fourteenth Amendment. This Court rejected “the contention that once a State chooses to do ‘more’

than the Fourteenth Amendment requires, it may never recede.” Crawford v. Bd. of Educ., 458 U.S. 527,

535 (1982). Such an interpretation of the Fourteenth Amendment would be “destructive of a State's

democratic processes and of its ability to experiment.” Id. Radnor experimented with the right but

ultimately found greater priorities to spend the state’s limited funds and this was perfectly constitutional.

Because neither the Seventh Amendment nor Fourteenth Amendment guarantees a right to a jury

trial in civil actions in state court, the decision of the Radnor Supreme Court upholding the constitutionality

of the RFEP legislation should be affirmed.

II. THE FIRST AMENDMENT GUARANTEES PETITIONERS THE RIGHT TO PETITION THE GOVERNMENT AND PROHIBITS A STATE COURT FROM ARBITRARILY QUASHING PETITIONERS’ CAUSE OF ACTION.

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. This Court has recognized this right to petition as one of “the most precious of the liberties safeguarded

by the Bill of Rights.” BE & K, 536 U.S. at 524. The right is so important that this Court expressly

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incorporated it to the states: “The right [to petition] is one that cannot be denied without violating those

fundamental principles of liberty and justice which lie at the base of all civil and political institutions-

principles which the Fourteenth Amendment embodies in the general terms of its due process clause.” De

Jonge v. Oregon, 299 U.S. 353, 364 (1937).

A. The First Amendment’s Petition Clause Grants Petitioners A Right Of Access To The Courts.

The First Amendment’s right to petition clause includes the right of access to the courts: “The right

of access to the courts is indeed but one aspect of the right to petition.” California Motor, 404 U.S. at 510;

Bill Johnson’s Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 741 (1983) (“[T]he right of access to the courts is an

aspect of the First Amendment). In California Motor, this Court held that a group of trucking companies

who were accused of conspiring to use the courts as a monopolizing instrument still had a right of access to

the courts under the First Amendment: “[I]t would be destructive of the rights . . . of petition to hold that

groups with common interests may not, without violating antitrust laws, use the channels and procedures of

state and federal agencies and courts to advocate their causes and points of view . . . vis-à-vis their

competitors.” 404 U.S. at 511.

The right extends beyond the antitrust context. In Bill Johnson’s, this Court held that the First

Amendment protects an employers’ right to file and prosecute a reasonably-based lawsuit, even if the

employer’s motive for filing the lawsuit was to retaliate against an employee for exercising her legal rights:

“The right of access to a court is too important to be called an unfair labor practice solely on the ground that

what is sought in court is to enjoin employees from exercising a protected right.” 461 U.S. at 741 (citations

omitted). This Court did note, however, that the First Amendment does not protect employers who file

lawsuits based on insubstantial claims-suits that the NLRB determines lack a “reasonable basis.” Id. at 743.

Well-grounded suits, however, are unequivocally protected by the First Amendment. Id.

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1. The Petition Clause encompasses all reasonably based causes of action.

Any reasonably based cause of action is protected by the First Amendment. See id.; Prof'l Real Estate

Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60 (1993) (holding that a lawsuit only loses First

Amendment protection as “sham” litigation if the suit is objectively and subjectively baseless). The First

Amendment interests involved in private litigation—“compensation for violated rights and interests, the

psychological benefits of vindication, and the public airing of disputed facts,”—are simply not promoted by

suits lacking a reasonable basis: “The First Amendment interests involved in private litigation . . . are not

advanced when the litigation is based on . . . knowingly frivolous claims.” Bill Johnson’s, 461 U.S. at 743.

Thus, to be entitled to First Amendment protection, Petitioners’ cause of action for declaratory

relief must merely be reasonably based. In determining whether a suit is reasonably based, it is necessary to

structure the inquiry “in a manner that will preserve the state plaintiff’s right to have a state court jury or

judge resolve genuine material factual or state-law legal disputes pertaining to the lawsuit.” Id. at 749.

Lawsuits only lose First Amendment protection if they are a “mere sham.” E. R. R. Presidents Conference v.

Noerr Motor Freight, Inc., 365 U.S. 127, 144 (1961). To be deemed “sham” litigation, a suit must be both

objectively and subjectively baseless: “[T]he lawsuit must be objectively baseless in the sense that no

reasonable litigant could realistically expect success on the merits” and the lawsuit must be subjectively

baseless in the sense that it is “an attempt to interfere directly with the business relationships of a

competitor.” Prof'l Real Estate, 508 U.S. at 60 (citation omitted) (emphasis in original). More generally, the

Court has held that “the genuineness of a grievance does not turn on whether it succeeds.” BE & K, 536

U.S. at 532. The Court explained the importance of extending the First Amendment to even unsuccessful

causes of action: “Nor does the text of the First Amendment speak in terms of successful petitioning-it

speaks simply of “the right of the people . . . to petition the Government for a redress of grievances.” Id.

Even unsuccessful suits, the Court explained, advance First Amendment interests:

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Like successful suits, unsuccessful suits allow the ‘public airing of disputed facts’. . . and raise matters of public concern. They also promote the evolution of the law by supporting the development of legal theories that may not gain acceptance the first time around. Moreover, the ability to lawfully prosecute even unsuccessful suits adds legitimacy to the court system as a designated alternative to force.

Id. (internal citations and quotations omitted). The Court’s broad definition of “reasonably based” suits

underscores the importance of protecting those First Amendment interests. As long as Petitioners’

declaratory judgment request is “reasonably based,” it must be protected.

2. A request for declaratory judgment is entitled to the same First Amendment protection as any other cause of action.

The Radnor Rules of Civil Procedure1 do not permit a Circuit Court judge to choose which causes

of actions to hear nor do they contemplate striking from the record a proper cause of action. Problem at 7.

The judge’s refusal to hear Petitioners’ request for declaratory relief and his Order to strike the request

should be subjected to the same scrutiny that such treatment of any claim for monetary relief would

receive. Respondents might point to the federal Declaratory Judgments Act, 28 U.S.C. § 2201, and the

federal cases interpreting that statute to argue that the decision whether to hear Petitioners’ request for

declaratory relief is within the trial court’s discretion. See Zemel v. Rusk, 381 U.S. 1, 19 (1965) (holding

that the Declaratory Judgments Act “is an enabling Act, which confers a discretion on the courts rather than

an absolute right upon the litigant.”). Application of federal law here, however, is inappropriate.

The procedural appellate implications of the circuit judge’s actions are severely different here than

they would be in a federal district court. Because of Radnor’s new RFEP legislation, Radnor no longer has

an intermediate appellate court. Problem at 1. Further, the Radnor Supreme Court now has discretionary-

only jurisdiction in civil matters. Id. Thus, if Petitioners lose on the merits of their defamation claims, it is

1 Because the problem does not provide the Radnor Rules of Civil Procedure, this brief will refer to, but does not purport to rely on, the Federal Rules of Civil Procedure and federal cases and statutes to provide some of the policies underlying requests for declaratory judgment.

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quite possible that they would never be able to appeal that decision to any court. And, because the circuit

court declined to hear the burden-shifting argument at all, that argument would never be heard at all. In

the federal system, however, if Petitioners lost on the merits they would have an undeniable right to appeal

that decision to a United States Circuit Court of Appeals. See 28 U.S.C. § 1291 (“The courts of appeals . . .

shall have jurisdiction of appeals from all final decisions of the district courts of the United States.”)

(emphasis added). Further, under the federal common law’s collateral order doctrine to § 1291, if a federal

district court judge refused to hear Petitioners’ burden-shifting argument then Petitioners would arguably

be able to immediately appeal that decision.2 See Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009).

Federal law provides much greater procedural appellate rights to litigants than Radnor law does.

Therefore, the Radnor Circuit Court’s actions have graver First Amendment policy concerns than would a

similar decision by a federal district judge.

Even federal law contemplates that if a court declines to hear a declaratory judgment request, it

must first consider the equitable, prudential and, policy arguments: “We leave the equitable, prudential,

and policy arguments in favor of such a discretionary dismissal for the lower courts’ consideration remand.”

MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 136 (2007); see also Wright, Miller, & Kane, Federal Practice

and Procedure § 2759 (3d. ed. 1998) (“It is always the duty of the court to strike a proper balance between

the needs of the Petitioner and the consequences of giving the desired relief.”).

2 Respondents might argue that because federal law does not require a district court to hear a request for declaratory judgment at all, see Zemel, 381 U.S. at 19, there would be no order from which Petitioners could collaterally appeal. This argument is misguided, however, because federal law does not contemplate a district court judge declining to hear a cause of action and affirmatively ordering it stricken from the record. In fact, if the district court wanted to enter final judgment on the merits without hearing the declaratory judgment request, it would have to expressly say so: “When an action presents more than one claim for relief . . . the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay.” Fed. R. Civ. P. 54(b) (emphases added).

16

The equitable and policy arguments at play here weigh heavily in favor of hearing Petitioners’

request for declaratory judgment. First, as discussed above, declining to even hear Petitioners’ request is

fatal to their right to ever be heard on the issue.

Further, the policy interests that the First Amendment right of access protects would be completely

circumvented if a state trial judge were permitted to simply decline to hear the declaratory request and

order it stricken from the record. This Court has repeatedly acknowledged those policy interests. See BE &

K Const. Co., 536 U.S. at 532 (arguing that protecting a litigant’s First Amendment right of access to the

courts “promote[s] the evolution of the law by supporting the development of legal theories that may not

gain acceptance the first time around.”).

These policy concerns are especially pertinent here because the legal theory that Petitioners’

declaratory request puts forth deals with the importance of protecting their privacy and dignity. By

including the explicit privacy provisions, the drafters of Radnor’s Constitution demonstrated a desire to use

the law as a means of preserving the “dignity of the human being” by protecting its citizens from “abusive

attacks against their honor reputation, and private or family life.” RADNOR CONST. art. 3, §§ 1, 5. Because

of the nature of defamation, the party with the burden has an “extraordinary burden of proof.” Murel v.

Balt. City Crim. Ct., 407 U.S. 355, 363 (1972). This is especially true when the burden is on the Petitioners,

because they have the onerous task of proving a negative. See RESTATEMENT (SECOND) OF TORTS § 613

cmt. J (1965) (“[P]lacing the burden on the party asserting the negative necessarily creates difficulties.”).

Here, Petitioners made a good-faith argument that the privacy provisions in the Radnor Constitution

contemplated this problem and implicitly provided an appropriate remedy of shifting the burden of proof.

Whether such an argument would be successful on the merits is debatable. What is not debatable,

however, is that the Circuit Court robbed Petitioners of the very rights they were seeking to enforce—the

opportunity to protect their dignity, reputation, and private life. The fact that this cause of action was for

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declaratory judgment, rather than an action for monetary damages has no impact on whether Petitioners’

First Amendment right to access the courts should be protected.

B. Petitioners’ Request For Declaratory Judgment Is Reasonably Based And Thus Protected by the First Amendment.

This Court has never created an explicit standard for a reasonably based cause of action that seeks a

declaration of the evidentiary burdens. In Professional Real Estate, however, the Court expressly articulated

the standard for an antitrust lawsuit to avoid being classified as sham litigation and thus qualify for First

Amendment protection. An antitrust lawsuit is only considered to be sham litigation if it is objectively

baseless and subjectively disingenuous. Prof'l Real Estate, 508 U.S. at 60. The Court has extended this

standard to other contexts. In BE & K, an employer’s unsuccessful lawsuit against a union alleging delaying

tactics was protected by the First Amendment and thus could not serve as a basis for an unfair labor practice

claim by the NLRB. 536 U.S. at 533-37. Extending Professional Real Estate’s definition of sham litigation to

the labor arena, the Court held that an employer’s mere lack of success in its claim against the union could

not by itself render the suit baseless, even if the Court found that it was filed with a retaliatory motive. Id.

at 533-34. Just as in Professional Real Estate, the Court held that an unsuccessful but reasonably based suit

may not be subject to liability (under the NLRA rather than the Sherman Act). Id. at 535. The Court

explained that since the suit was not objectively baseless, “such that no reasonable litigant could realistically

expect success on the merits,” Id. at 526 (quoting Prof’l Real Estate, 508 U.S. at 60-61), it was still entitled

to First Amendment protection. Id. at 533. The BE & K Court also extended the definition of subjective

genuineness from the antitrust context to the labor context. After Professional Real Estate Investors and BE & K

it is clear that a lawsuit is protected as long it is either objectively reasonable or subjectively genuine.

In the instant case, however, Petitioners’ request for declaratory judgment is both subjectively

genuine and objectively reasonable.

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1. Petitioners’ request for declaratory judgment is objectively reasonable.

Petitioners’ request is objectively reasonable; in fact, many reasonable litigants have debated this

question. Indeed, Court has wavered on the issue and state supreme courts throughout the country have

not provided a consistent answer to the question. Respondents may argue that this Court settled the issue

in New York Times Co. v. Sullivan, when it established that “a federal rule that prohibits a public official from

recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the

statement was made with . . . knowledge that it was false or with reckless disregard of whether it was false

or not.” 376 U.S. 254, 279-80 (1964) (emphases added); see Curtis Pub. Co. v. Butts, 388 U.S. 130, 164

(1967) (extending New York Times to apply not just to “public officials but also “public figures”); see also

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986) (extending New York Times to apply the

burden of proving falsity to private plaintiffs, but only “when a plaintiff seeks damages against a media

defendant for speech of public concern.”) (emphases added). Petitioners do not dispute that the holdings in

New York Times, Curtis, and Philadelphia Newspapers are still good law.

These holdings, however, in no way preclude Petitioners from making a reasonable, good-faith

argument that Jane Private (an indisputably private citizen) and Joe Public (arguably a private citizen)

should not be held such to such a burden in a defamation suit relating to their private conduct that is of

absolutely no public concern. Petitioners’ argument is further bolstered by Radnor’s constitutional provisions

expressly protecting individuals right to privacy.3 These provisions go at least as far, if not further, in

protecting privacy rights than any other state constitutional privacy provision. Compare RADNOR CONST.

art. 3, §§ 1, 5 with CAL. CONST. art.1, § 1 (“All people are by nature free and independent and have

inalienable rights. Among these are enjoying and defending life and liberty . . . and pursuing and obtaining

3 Radnor would not be the first state to require defendants in matters of private concern to prove the truthfulness of the statements. California places that burden on defendants. Lipman v. Brisbane Elementary Sch. Dist., 55 Cal. 2d 224, 233 (1961) (“The burden of proof with respect to truth or falsity is on the defendant.”) (abrogated on other grounds by Brown v. Kelly Broadcasting Co., 48 Cal.3d 711, 753 n. 37 (1989)).

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safety, happiness, and privacy.”). Given the importance that the drafters of Radnor’s Constitution placed

on protecting its citizens’ privacy and reputations, Petitioners’ request is at least reasonable.

This is especially true given the extremely private nature of the statements at issue and the

extremely private nature of at least one Petitioner, Jane Private. Jane Private is a nurse at a local children’s

hospital who has never put herself in the public spotlight and has never been exposed to public scrutiny.

Problem at 3. Even after developing a relationship with Joe Public, Jane took significant measures to

remain a private figure, including entering City Hall through an employee entrance to avoid the media

cameras on her wedding day. Id. She remained private even after Gossip Show’s initial defamatory report,

opting to cancel her honeymoon and choosing not to leave her home. Id. at 3.

In a case similar to the one at issue here, this Court held that the socially prominent wife of the

scion of the wealthy Firestone family was not a public figure, notwithstanding the facts that her divorce had

become the subject of much media attention, that she herself had held press conferences during the course

of the divorce, and that she instituted the divorce proceedings that sparked the publicity. Time, Inc. v.

Firestone, 424 U.S. 448, 454 n.3 (1976). This Court held that because Ms. Firestone “did not thrust herself

to the forefront of any particular public controversy in order to influence the resolution of the issues

involved in it” that “she assumed no special prominence in the resolution of public questions.” Id. at 455

(quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974)). This Court focused on whether Ms.

Firestone’s actions were intended to affect a matter of public interest, her divorce proceedings: “[W]e do

not think it can be assumed that any such purpose was intended.” Id. at 454 n.3 (emphasis added); see also

Gertz, 418 U.S. at 351-52 (holding that an attorney who had served briefly on housing committees

appointed by the mayor of Chicago, was active in the community, had published several books, was well

known in some circles, and represented a client in the middle of a public controversy still was not a public

figure because “he did not thrust himself into the vortex of this public issue, nor did he engage the public’s

attention in an attempt to influence its outcome.”). Because the plaintiffs in Firestone and Gertz were not

20

public figures, the Court in both cases held that “so long as they do not impose liability without fault, the

States may define for themselves the appropriate standard of liability for a publisher or broadcaster of

defamatory falsehood injurious to a private individual.” Firestone, 424 U.S. at 464 (quoting Gertz, 418 U.S.

at 347).

Here, Jane Private did even less than Ms. Firestone or Mr. Gertz to “thrust herself to the forefront

of a public controversy.” She, in fact, did absolutely nothing to thrust herself into the controversy.

Respondents may argue that by marrying Joe Public she became a public figure.4 This argument fails,

however. Ms. Firestone did not become a public figure by marrying into one of “America’s wealthiest

industrial families” and holding press conferences to discuss her very public divorce proceedings. Firestone,

424 U.S. at 450, 454 n.3. Thus, Jane Private could not become a public figure by merely marrying a

Radnor actor, especially since, unlike Ms. Firestone, she took extensive measures to stay out of the public

eye. See Problem at 2. Thus, the state of Radnor “may define for [itself] the appropriate standard of liability

for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” Firestone, 424 U.S.

at 464 (quoting Gertz, 418 U.S. at 347). Given the Court’s clear statement granting states the right to

define its own standard and Radnor’s policy embodied in its constitution of protecting an individual’s right

to protect her reputation, a reasonable litigant could certainly expect success on the merits of a cause of

action to shift the burden of proof to the defendant.

4 This Court need not address the issue of whether Joe Public is a public figure. The Petitioners are challenging the Radnor Circuit Court’s decision to refuse to hear and order to strike the declaratory request of both Petitioners. Given that the inquiry is whether any reasonable litigant could expect success on the merits, it is perfectly reasonable for a litigant to have thought that by consolidating the claims into one lawsuit the Court would consider a private figure analysis for purposes of their marriage and relationship, which the couple kept very private.

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2. Petitioners’ request for declaratory judgment is subjectively genuine.5

Petitioners’ request for declaratory judgment is subjectively genuine because they were not

motivated by an unlawful purpose. BE & K, 536 U.S. at 531 (“[I]n cases like Bill Johnson’s and Professional

Real Estate Investors, our holdings limited regulation to suits that were both objectively baseless and

subjectively motivated by an unlawful purpose.”). In Bill Johnson’s, the employer’s alleged unlawful purpose

was “to frustrate the operation of federal labor law” by filing a retaliatory lawsuit against an employee in

violation of the NLRA. 461 U.S. at 753. In Professional Real Estate, the alleged unlawful purpose was

whether the lawsuit concealed “an attempt to interfere directly with the business relationships of a

competitor . . . through the use of the governmental process—as opposed to the outcome of that process—as

an anticompetitive weapon.” 508 U.S. at 60-61 (emphasis in original) (internal quotations and citations

omitted).

There is no allegation of an unlawful purpose here.6 Petitioners made a good-faith claim based on

existing precedent and a state constitutional policy that favored protecting individuals’ reputations. Their

request for declaratory judgment, therefore, is subjectively genuine.

C. The Radnor Circuit Court Violated Petitioners’ First Amendment Rights By Refusing To Respond To And Striking Their Well-Grounded Request.

The right of access to the courts to petition for redress of grievances is “among the most precious of

the liberties safeguarded by the Bill of Rights.” United Mine Workers of America v. Ill. State Bar Ass’n, 389 U.S.

217, 222 (1967). This Court has held that states may not circumvent this right by indirectly restricting it:

“The First Amendment, however, would be a hollow promise if it left government free to destroy or erode

5 Petitioners submit that because the request was objectively reasonable, supra Section II(B)(1), this Court need not reach the issue of Petitioners’ subjective intent: “Only if challenged litigation is objectively meritless may a court examine the litigant’s subjective motivation.” Professional Real Estate Investors, 508 U.S. at 61. Petitioners, however, will address the issue arguendo. 6 It is possible that Respondents will argue that Petitioners request was filed in violation of Federal Rule of Civil Procedure 11(b)(1) and (2). Such an argument is inappropriate here, inter alia, because the remedy for violation of Rule 11 is court-imposed sanctions “after notice and reasonable opportunity to respond.” Fed. R. Civ. P. 11(c)(1) (emphases added).

22

its guarantees by indirect restraints so long as no law is passed that [expressly] prohibits free speech, press,

petition, or assembly as such.” Id. The Radnor Circuit Court’s failure to respond to Petitioners’

declaratory judgment request and its Order to strike the request from the record is an indirect restraint on

Petitioners’ First Amendment right of access to the courts.

1. The Radnor Circuit Court had an obligation to respond to the Petitioners’ declaratory judgment request.

If a court could simply refuse to hear a cause of action and order it to be stricken from the record,

it would indeed render the First Amendment a hollow promise: “If the government has no duty to consider

or respond to petitions, the right to petition contributes little to democratic decisionmaking. . . . The duty

to respond is essential to make petitioning a means of participation in democratic decisionmaking.” Anita

Hodgkiss, Petitioning and the Empowerment Theory of Practice, 96 Yale L.J. 569, 576 (1987). Logically,

allowing the Radnor Circuit Court to mute the Petitioners’ claim in the manner it did is no better than

completely stripping them of their right to file a cause of action: “Defining the right to petition as merely a

right to come forward is similar to saying that citizens can vote but candidates with the most votes will not

necessarily take office, or that plaintiffs can file lawsuits but defendants have no duty to answer.” Id; see also

Minnesota State Bd. for Cmty. Colleges v. Knight, 465 U.S. 271, 308-09 (1984) (Stevens, J., dissenting) (“[T]he

First Amendment was intended to secure something more than an exercise in futility-it guarantees a

meaningful opportunity to express one's views.”) (emphasis in original). To say that a court can order a

litigant to strike a well-grounded cause of action from the record, without hearing or ruling on the issue,

renders the First Amendment futile.

This view is supported not just by logic but also by the history of the Petition Clause. When the

Clause was being debated, “Congress did agree . . . that the government was required to respond to

petitions. Thus, history clearly supports a First Amendment right of governmental consideration and

23

response.”7 Julie M. Spanbauer, The First Amendment Right to Petition Government for a Redress of Grievances: Cut

from a Different Cloth, 21 Hastings Const. L.Q. 15, 49 (1993) (citations omitted).

Respondents may argue that this Court has never expressly recognized a government’s duty to

respond to a petition. They will likely rely on the majority opinion in Minnesota State Board, which held that

“nothing 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 communications of members

of the public on public issues.” 465 U.S. at 2865 (emphasis added). But Minnesota State Board does not

control this case. Most importantly, Minnesota State Board never addressed the issue of whether a court has a

duty to hear or respond to a request for grievances; rather, it only addressed the issue of whether

policymakers have such a duty. Id.

Indeed, there are significant differences between a petition to a policymaker and a petition to a

court that would favor imposing a duty to respond on the latter, but not necessarily the former:

Many of the policy reasons for limiting or rejecting a duty of response by the legislature or executive do not apply to courts. Unlike Congress and the President, courts, at least federal courts, are not accountable at the next election. And it is not impossible for courts to respond. In fact, courts have an elaborate mechanism for processing petitions. Indeed, history shows that the judiciary, unlike Congress, has always given petitioners some form of response, often including hearings and even appeal rights. More importantly, citizens typically have more invested in their civil complaints (as compared, for example, to a letter to the executive).

7 Several commentators have similarly argued that the history of the First Amendment shows that the Framers intended to impose an obligation of government response to petitions. See, e.g., Stephen A. Higginson, A Short History of the Right to Petition the Government for the Redress of Grievances, 96 Yale L.J. 142, 142, 155 (1986) (opening the article with a quote from John C. Calhoun’s 1840 Senate statement: “In colonial America, the right of citizens to petition their assemblies was an affirmative, remedial right which required governmental hearing and response.” Higginson also commented: “That the Framers meant to imply a corresponding governmental duty of fair hearing seems clear given the history of petitioning in the colonies and the colonies outrage at England’s refusal to listen to their grievances.”).

24

Carol Rice Andrews, Access to Court Under the Petition Clause of the First Amendment: Defining the Right, 60 Ohio

St. L.J. 557, 644-45 (1999). These differences provide significant policy reasons for imposing a duty to

respond on courts, and doing so would in no way run afoul of this Court’s holding in Minnesota State Board.8

2. The Radnor Circuit Court violated Petitioners’ First Amendment right of access to the courts by striking the request from the record.

This case is also distinct from Minnesota State Board, or for that matter any right to petition case this

Court has seen, because it is the first time that this Court has addressed whether a trial court may

affirmatively mute a litigant’s cause of action. Not only did the Radnor Circuit Court refuse to hear or rule

on Petitioners’ request for declaratory judgment, it also ordered the Petitioners to file an Amended

Complaint without the request and struck the original Complaint from the record. Problem at 6.

Petitioners’ counsel could not find one instance of a court taking such action.

But, based on this Court’s analysis in Bill Johnson’s, striking Petitioners’ well-grounded cause of

action must be a First Amendment violation. In holding that the NLRB could not enjoin the employer from

filing a well-grounded lawsuit, this Court explained that such a precedent would be a devastating blow to

the right of access to the courts: “We should be sensitive to these First Amendment values in construing the

NLRA. . . . The right of access to a court is too important to be called an unfair labor practice solely on the

ground that what is sought in court is to enjoin employees from exercising a protected right.” 461 U.S. at

741. The Radnor Circuit Court went even one step further than the NLRB. Not only did the judge

essentially enjoin Petitioners’ request by ignoring it, but also he sent a more crushing blow by ordering it

8 Though Petitioners submit that Minnesota State Board is limited to petitions to policymakers and thus is inapplicable here, Petitioners also submit in the alternative that many academic commentators believe that Minnesota State Board was incorrectly decided and should be overturned. Andrews, 60 Ohio St. L.J. at 636 (1999) (“Nevertheless, a number of academic commentators . . . have argued that [Minnesota State Board] is wrong, that the government does have a duty to respond. They essentially say that a failure to respond to a petition is itself an abridgment of the ‘right to petition.’”) (citations to several academic articles omitted).

25

stricken from the record, effectively ruining any chance for Petitioners to appeal. Thus, the judge’s

decision to strike Petitioners’ declaratory judgment request from the record violated their First

Amendment right of access to the courts.

CONCLUSION

For the aforementioned reasons, Petitioners respectfully submit that this Honorable Court:

(I) Affirm the Radnor Circuit Court’s decision upholding the section of the Radnor Fiscal

Emergency Plan that eliminated civil jury trials as a valid exercise of state authority.

(II) Order the Radnor Circuit Court judge to issue a decision on Petitioners’ request for

declaratory relief.

Respectfully submitted,

/s/ Thomas Cockriel /s/ Benjamin Jacobs Counsel for Petitioners Team 38