The Supreme Court of the United States

Transcription

1 IN THE The Supreme Court of the United States JOE PUBLIC AND JANE PRIVATE, Petitioners v. ENTERTAINMENT TABLOID INC. AND RADTV, Respondents On Writ of Certiorari to the United States Supreme Court Team # 15 Attorneys for the Respondents, ETI and RADTV

2 TABLE OF CONTENTS Table of Contents... ii Table of Authorities... iii Statement of Jurisdiction... viii Questions Presented... ix Statement of the Facts... x Summary of the Argument... xii Argument... 1 I. THE SEVENTH AMENDMENT RIGHT TO A JURY TRIAL IS FUNDAMENTAL AND THEREFORE SHOULD BE INCORPORATED AGAINST THE STATES UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT... 1 A. Petitioners' Defamation Suit is analogous to the common law tort of slander which preserved a right to a jury trial in 1789 and therefore, Respondents' right to a jury trial is protected by the Seventh Amendment... 2 B. This Court should incorporate the Seventh Amendment against the States under the Due Process Clause of the Fourteenth Amendment... 5 II. THE PETITIONER'S FIRST AMENDMENT RIGHT TO PETITION THE GOVERNMENT WAS NOT VIOLATED WHEN THE JUDGE STRUCK A DECLARATORY JUDGMENT FROM THE RECORD AND ORDERED THEM TO RESUBMIT THE PLEADING WITHOUT IT BECAUSE THE FIRST AMENDMENT ONLY GUARANTEES INTIAL ACCESS TO COURTS AND BECAUSE THE PETITIONERS' CLAIM IS BASELESS LITIGATION... 9 A. The Petitioners are not entitled to First Amendment protection because the First Amendment only guarantees intitial access to courts, which the they receieved B. Even if this Honorable Court believes the First Amendment right to petition for redress of grievances applies to the Petitioners' motion, their motion for declaratory judgment was baseless and is not entitled to First Amendment protection This Court should adopt a two-part standard to determine which lawsuits are afforded First Amendment protections, when a judge interferes with a party's access to courts The Petitioners' motion for declaratory judgment regarding the shifting burden of proof will fail both prongs of the two-part test Conclusion ii

3 TABLE OF AUTHORITIES Constitutional Provisions U.S. Constitutional Provisions U.S. CONST. ammend. I.9 U.S. CONST. ammend. VII.1 U.S. CONST. ammend. XIV, 1.2 State Constitutional Provisions COLO. CONST. art. II, LA. CONST. art. I, UTAH CONST. art. I, 10.1 WYO. CONST. art. I, 9 1 U.S. Statutes 28 U.S.C. 1257(a) (2010)...xiii 28 U.S.C (2010) xiii Jurisprudence Supreme Court Cases Bailey v. Central Vermont Ry. Inc., 319 U.S. 350 (1943).7 Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654 (1935)...2 BE & K Construction v. N.L.R.B., 536 U.S. 516 (2002)..15 Bill Johnson s Rests., Inc., v. Nat l Labor Relations Bd., 461 U.S. 731 (1983) , 14, 15, 16 Borough of Duryea, Pa v. Guarnieri, 131 S. Ct (2011)...11 iii

4 Bose Corp. v. Consumers Union, 466 U.S. 485 (1984)...4 California Motor Transp. Co., v. Trucking Unlimited, 404 U.S. 508 (1972)...10 Connecticut v. Doeher, 501 U.S. 1 (1991)...11 Duncan v. Louisiana, 391 U.S. 145 (1968)...6 Fuentes v. Shevin, 407 U.S. 67 (1983)...11 Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)...4, 15, 17 Granfinanciera, S.A.v. Nordberg, 492 U.S. 33 (1989)...2 Hustler v. Falwell, 485 U.S. 46 (1998)...17 Hutchinson v. Proxmire, 443 U.S. 111 (1979)...18 Markman v. Westview Instruments, 517 U.S. 370 (1996)...2, 5 McDonald v. City of Chicago, 130 S.Ct (2010)...2, 6 McDonald v. Smith, 472 U.S. 479, 484 (1985)...14, 17 Milkovich v Lorain Journal Co., 491 U.S. 1 (1990)...18 Minneapolis & St. Louis Railroad v. Bombolis, 241 U.S. 211 (1916)...1 Minnesota State Board for Community Colleges v. Knight 465 U.S. 271 (1984)...10 iv

5 Moore v. E. Cleveland, 431 U.S. 494 (1977)...6 New York Times Co. v. Sullivan, 376 U.S. 254 (1964)...4 Palko v. Connecticut, 302 U.S. 319 (1937)...5 Parsons v. Bedford, 28 U.S. (3 Pet.) 433 (1830)...1, 3, 7 Philadelphia Newspapers, Inc., v. Hepps, 475 U.S. 767, 769 (1986)...7, 17 Poe v. Ullman, 367 U.S. 497 (1961)...7 Prof'l Real Estate Investors, Inc., v. Columbia Pictures Industries, Inc., 508 U.S. 49 (1993)...15 Pullman-Standard v. Swint, 456 U.S. 273 (1982)...4 Ross v. Bernhard, 396 U.S. 531 (1969)...3, 4 Smith v. Arkansas State Highway Employees, 441 U.S. 463 (1979)...10 Thompson v. Utah, 170 U.S. 343 (1898)...6 Time, Inc., v. Firestone, 424 U.S. 448 (1976)...17, 18, 19 Twining v. New Jersey, 211 U.S. 78 (1908)...5 Walker v. New Mexico & Southern Pacific Railroad Co., 165 U.S. 593 (1897)...7 Washington v. Glucksberg, 521 U.S. 702 (1997)...6 Whitney v. California, 274 U.S. 357 (1927)...5 v

6 Courts of Appeal Cases Flowers v. Carville, 310 F.3d 1118 (9th Cir. 2002)...17, 18 Lawrence v. Kuenhold, 271 F. App x 763, 766 (10th Cir. 2008)...12 Sidney Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983)...12 We the People Foundation v. U.S., 485 F.3d 140 (D.C. Cir. 2007), cert denied 552 U.S (2008)...10, 11 Other Court Cases City of Colton v. American Promotional Events, Inc., 2012 WL (C.D. Cal. 2012)...12 Gearhart v. WSAZ, Inc., 150 F. Supp. 98 (E.D. Ky. 1957), aff'd, 254 F.2d 242 (6th Cir. 1958)...4 Metcalf v. KFOR-TV, Inc., 828 F. Supp (W.D. Okla. 1992) S & W Seafoods Co. v. Jacor Broadcasting of Atlanta, 194 Ga. App. 233 S.E.2d 228 (1989)...5 Law Reviews Secondary Sources Appleman, Laura H. The Lost Meaning of the Jury Trial Right, 84 IND. L.J. 397 (2009)...8 Goebel, Julius King's Law and Local Custom in Seventeenth Century New England, 31 COLUM. L. REV. 416 (1931)...6 Kane, Mary Kay Civil Jury Trial: The Case for Reasoned Iconoclasm, 28 HASTINGS L.J. 1 (1976)...1 Lovell, Colin Rhys Reception of Defamation By the Common Law, 15 VAND. L. REV (1962)...3 vi

7 Moses, Margaret L. What The Jury Must Hear: The Supreme Court's Evolving Seventh Amendment Jurisprudence, 68 GEO. WASH. L. REV. 183 (2000)...1 Paranzino, Gary Anthony The Failure of Libel Law and Independent Appellate Review: Making Sense of Bose Corp. v. Consumers Union of United States, Inc., 71 CORNELL L. REV. 477 (1986)...4 Thomas, Suja A. Judicial Modesty and the Jury, 76 U. COLO. L. REV. 767 (2005)...8 Wolfram, Charles W. The Constitutional History of the Seventh Amendment, 57 MINN. L. REV. 639 (1973)...6 Miscellaneous Blackstone Commentaries de Tocqueville, Alexis Democracy in America 286 (Francis Bowen trans., Alfred A. Knopf, Inc. 4th prtg. 1948) (1835)...7 Elliott, Jonathan, The Debates in the Several State Conventions on the Adoption of Federal Constitution 324, 544 (Jonathan Elliot ed., 2d ed. 1836)...8 Eldredge, Lawrenece H. The Law of Defamation 1 (1978)...3 Jefferson, Thomas The Writings of Thomas Jefferson 408 (Albert Ellery Bergh ed., 1905)...7 Smolla, Rodney A. The Law of Defamation 2d 1: vii

8 STATEMENT OF JURISDICTION The Radnor Supreme Court denied Respondents request for discretionary review. Respondents filed a petition for writ of certiorari which was subsequently granted. This Court has jurisdiction under 28 U.S.C. 1257(a) and 28 U.S.C viii

9 QUESTIONS PRESENTED 1. Whether in a suit for defamation, the right to a jury trial, which would qualify for protection under the Seventh Amendment is a fundamental liberty interest applicable against state governments by the selective incorporation doctrine of the Due Process Clause of the Fourteenth Amendment. 2. Whether the Petitioners First Amendment Right to petition the government for redress of grievances was violated, when a judge, sua sponte, struck a motion for declaratory judgment from their pleading and ordered the Petitioners to resubmit their pleading with out the declaratory judgment. ix

10 STATEMENT OF THE FACTS This case arises amidst the background of sweeping legislation recently passed in the State of Radnor. R. at 1. Due to severe budgetary concerns, the Radnor legislature recently enacted the Radnor Fiscal Emergency Plan (RFEP). Id. Under the RFEP, Radnor eliminated its Appellate Court, established discretionary-only jurisdiction for its Supreme Court in all civil disputes and repealed the statutory grant of a right to a jury trial in all civil cases. R. at 2. The Radnor legislature passed the RFEP and the same was approved by popular vote. Id. This suit at issue arises out of a defamation suit filed by Petitioners Joe Public and wife Jane Private against Respondents Entertainment Tabloid Inc. ( ETI ) and RADTV, two corporations incorporated under the laws of the state of Radnor. Id. ETI produces the television entertainment news program Gossip Show which is broadcast on Channel 5, the most viewed television station in the state of Radnor. Id. Channel 5 is owned by RADTV. Id. The Petitioner, Joe Public is a popular television actor in Radnor. R. at. 2. On May 23, Gossip Show aired a segment which dealt with the recent marriage of Petitioners. Id. On December 2, Petitioners filed suit in Radnor Circuit Court against ETI and RADTV alleging the contents of the May 23 broadcast was defamatory. R. at 3. Petitioner Joe Public claimed the broadcast had directly lead to termination of two of Mr. Public s endorsement deals valued at over five million dollars, as well as great pain and suffering. R. at 4. Petitioners alleged in their Complaint that Respondents were responsible for the contents of the May 23 broadcast and were therefore liable to Petitioners for damages. Id. Petitioners argued that the Radnor Constitution entitled them to heightened protection of their privacy and requested declaratory judgment that the burden of proof be shifted to Respondents to prove that the remarks made in the broadcast were true or were reasonably investigated before being broadcast. R. at 4. x

11 Respondents answered denying the majority of the complaint, including Petitioners request for declaratory judgment, requested a trial by jury, and filed a counter-request for declaratory judgment. Id. In their request for declaratory judgment, Respondents argued, as they do now, that the section of the RFEP which abolished the right to a jury trial in all civil cases was an unconstitutional denial of their due process rights. Id. One month after the original suit, Gossip Show aired an additional investigative report about Petitioner Joe Public. R. at 5. Petitioners were subsequently granted leave to amend their petition to include new defamation claims for the investigative report. Id. Petitioners also filed a motion to dismiss Respondents counter-request for declaratory judgment. Id. The Radnor Circuit Court judge subsequently ordered the amended complaint be stricken from the record and ordered Petitioners to resubmit their Complaint without the request for declaratory judgment regarding the burden of proof. R. at 6. The judge also affirmed the portions of the RFEP that abolished the statutory right to civil jury trials. Petitioners and Respondents both sought reconsideration from the Radnor Circuit Court which was subsequently denied without opinion. Id. Petitioners and Respondents both sought discretionary review from the Radnor Supreme Court. The Radnor Supreme Court denied both requests for discretionary review and affirmed the decision of the Circuit Court. R. at 7. From this decision, Respondents Entertainment Tabloid, Inc. and RADTV appeal to this honorable Court. xi

12 SUMMARY OF THE ARGUMENT I This Court should reverse the decision of the Randor Supreme Court and hold that the Seventh Amendment right to jury trials should be incorporated to the states. The portion of the Radnor Fiscal Emergency Plan (RFEP) that repealed the statutory right to a trial by jury in all civil cases deprived Respondents of a fundamental right and is therefore unconstitutional under the Due Process Clause of the Fourteenth Amendment. More importantly, the RFEP uprooted the landscape of trials for defamation which preserves a jury trial right in most other states. In so doing, the state of Radnor ignored the constitutional right to jury trial concerning reputational injury without citing or considering the historical record in England as of The Due Process Clause of the Fourteenth Amendment protects fundamental rights from state infringement. A right is fundamental to due process if it is deeply rooted in this nation s history and tradition and is fundamental to the scheme of ordered liberty favored in the United States. The right to a civil jury has been recognized and preserved in this country since the first colonists arrived from England with the Common Law. The jury trial was necessary to guard the accused against the arbitrary power of appointed judges as well as to preserve the right of communities to dispense their own justice, both of which are fundamental tenets of American liberty. The Seventh Amendment, which applies to defamation actions, preserves the right to jury trial as it existed in England in 1791 when the Bill of Rights was adopted. This constitutional right extends to statutory and other claims which are analogous to claims that existed at common law, such as the instant suit for broadcast defamation. The Seventh Amendment has not yet been held applicable to the states. However, nearly all states provide civil jury trial guarantees. Respondents have been sued for defamation, a cause of action preserved by the Seventh xii

13 Amendment, and request a trial by jury. Radnor s new fiscal plan has eliminated that right for Respondents. This Court should hold Radnor s abolition of civil jury trials is an unconstitutional denial of due process and hold the Seventh Amendment applicable to the states to prevent any similar infringements in the future. Radnor s actions serve to illustrate the mischief of attempting to pierce bedrock constitutional principle in the name of economic expediency. The judgment of the Radnor circuit court affirming the RFEP should be reversed. II This Court should affirm the decision of the Radnor Supreme Court and hold that the Petitioners First Amendment right to petition the government for redress of grievances was not violated when a circuit court judge struck a motion for declaratory judgment from the pleading and ordered Petitioners to re-file their pleading without the motion. Petitioners are not entitled to First Amendment protection because the right to petition for redress of grievances only protects initial access to courts. The right to petition does impose an obligation on the government to respond to or consider petitions. Therefore, the Petitioners received more response than the First Amendment guarantees because the judge viewed their pleading and took it into consideration. Further, declaratory judgment is not a redress of grievances for the purpose of the First Amendment because it does not seek a remedy for a wrong. Instead, declaratory judgment seeks a definition of rights and obligations. Lastly, under Federal Rule of Civil Procedure 12(f) a judge has the authority to strike a motion or pleading sua sponte, thus the judge s behavior was not outside the scope of constitutional protections. Petitioners are also not entitled to First Amendment protection because the stricken motion was baseless and outside the scope of the petition clause s protections. Two main standards currently exist to determine whether a lawsuit is baseless. However, the instant case xiii

14 provides a novel situation in which the current standards are not adequate. This court should apply a two-part test to determine whether ongoing litigation is baseless when a judge interferes with a party s access to the courts. First, this Court should ask whether the litigation is reasonably likely to survive summary judgment. If it is, the litigation should be afforded First Amendment protection. Second, in the event the litigation will not survive summary judgment, this Court should ask whether a reasonable plaintiff could believe that the litigation would be successful in court at the time of filing. If the litigation survives this objective test, then it too should be afforded First Amendment protections. The Petitioners motion for declaratory judgment, regarding the shifting burden of proof will not survive either steps of the test. First, no material issue of fact exists, because there is no need for a credibility determination to be made. Second, no reasonable plaintiff would believe this motion would succeed at the time it was filed. Petitioners asked the lower court to shift the burden of proof to the Respondents to prove the truth of alleged defamatory statements. However, the burden only properly shifts when a plaintiff is a private person in a private dispute. Otherwise, the burden remains on the plaintiff to prove a defendant knowingly made false statements. Here, Petitioners are both public figures. Public figures always carry the burden of proof in defamation suits. No reasonable litigant could believe that this motion for declaratory judgment could possibly succeed. Respondents respectfully request that this Court affirm the decision of the lower court and hold that the judge s order did not violate the Petitioners First Amendment rights. xiv

15 ARGUMENT I. THE SEVENTH AMENDMENT RIGHT TO A JURY TRIAL IS FUNDAMENTAL AND SHOULD THEREFORE BE INCORPORATED AGAINST THE STATES UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. The civil jury is a cornerstone of democratic government. Juries provide protection against the unjust use of governmental power and allow the people to maintain an active role in the process of justice. The right to a civil jury is enshrined in the Seventh Amendment to the Bill of Rights. U.S. CONST. amend. VII. The Seventh Amendment reads, in pertinent part, that [i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. Id. The American people have long considered the civil jury to be a dear right. Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 434 (1830). The Supreme Court has traditionally declined to hold the Seventh Amendment effective against the states through Fourteenth Amendment. Minneapolis & St. Louis Railroad v. Bombolis, 241 U.S. 211 (1916). However, almost every state in the union 1 except Radnor protects the right to a civil jury through its own constitution or through statute. See Margaret L. Moses, What The Jury Must Hear: The Supreme Court's Evolving Seventh Amendment Jurisprudence, 68 GEO. WASH. L. REV. 183 (2000). While the Radnor Constitution is silent with regards to civil jury trials, Radnor protected this right through statute until it was repealed by the Radnor Fiscal Emergency Plan. ( RFEP ) The RFEP destroyed the uniform protection of the civil jury amongst the states. The RFEP deprived Respondents of their right to have their fellow citizens determine the issues of fact in a 1 The only states without constitutional guarantees are Colorado (COLO. CONST. art. II, 23 expressly guarantees a right to jury only in criminal cases) and Louisiana (LA. CONST. art. I, 17 guarantees a right to jury only in criminal cases). Utah and Wyoming (UTAH CONST. art. I, 10 and WYO. CONST. art. I, 9) both lack an express provision, but courts have nonetheless assumed a constitutional right. See Kane, Civil Jury Trial: The Case for Reasoned Iconoclasm, 28 HASTINGS L.J. 1, 7-12 (1976) 1

16 defamation suit against them. Under the guise of fiscal and political expediency, the State of Radnor violated a fundamental principle of liberty and justice that is basic to our system of jurisprudence and essential to the American concept of a fair trial. The Fourteenth Amendment provides, among other things, that a State may not abridge the privileges or immunities of citizens of the United States or deprive any person of life, liberty, or property, without due process of law. U.S. CONST. amend. XIV, 1. For many decades, the question of which rights are protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause. McDonald v. City of Chicago, 130 S. Ct (2010). Defamation is a suit at common law contemplated by the Seventh Amendment and the right to a civil jury trial is a fundamental right contemplated by this Court's jurisprudence for protection under the Due Process Clause of the Fourteenth Amendment. Applying this Court's doctrine of incorporation, the concept of due process requires the Seventh Amendment be held binding against the states to prevent a state such as Radnor from abridging this fundamental right. A. A suit for defamation is analogous to the common law tort of slander which was tried to a jury in 1791 and therefore, the instant cause of action is protected by the Seventh Amendment. This Court has consistently recognized that the Seventh Amendment preserves the right to a jury for causes of action which were tried by a jury under English Common Law at the time the Amendment was adopted in Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654 (1935); Markman v. Westview Instruments, Inc., 517 U.S. 370, 376 (1996). Under this historical test, the Court must first determine whether a specific cause of action was tried at the time of the founding or is at least analogous to one tried at that time. See, e.g., Granfinanciera, S.A.v. Nordberg, 492 U.S. 33, 42 (1989); Tull v. United States, 481 U.S. 412 (1987). While juries 2

17 traditionally decide questions of fact, the inclusion of questions of law will not necessarily render a case unfit for a jury. Markman, 517 U.S. at 376. In such a situation, a court must next determine if a jury is needed to preserve the substance of the common-law right as it existed in Id. Should a court answer these questions in the affirmative, a litigant is constitutionally entitled to have his case heard by a jury. This Court has also stated that the Seventh Amendment protects not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered. Parsons, 28 U.S. at 437. Defamation law is a set of legal rules that protect persons from reputational injury. See Laurence H. Eldredge, The Law of Defamation 1 (1978). Current defamation law encompasses the twin common law torts of libel and slander. Id. While slander involves oral communication that causes reputational injury, libel involves defamation through written or printed words. See Rodney A. Smolla, The Law of Defamation 2d 1:11. Both forms of defamation were well known to the English Common Law. Until 1640, libel was adjudicated as a crime before the Court of the Star Chamber, while slander became a staple of the common law courts and was regularly adjudicated by a jury. See Colin Rhys Lovell, The Reception of Defamation By the Common Law, 15 VAND. L. REV. 1051, (1962). After the abolition of the Star Chamber, the law of libel was fully absorbed into the common law. Id. at By 1792, common law juries were fully empowered to determine all issues in libel actions. Id. at This has recognized, in dicta, that the Seventh Amendment preserves the right to a jury trial in an action for libel and slander. Ross v. Bernhard, 396 U.S. 531, 533 (1969). 3

18 A defendant may escape liability for defamation of a public official absent proof that the defamatory statements were published with knowledge of their falsity or in reckless disregard of the truth, or what is known as actual malice. New York Times Co. v. Sullivan, 376 U.S. 254 (1964). This privilege has been extended to public figures who evidence general fame or notoriety in the community and pervasive involvement in ordering the affairs of society. Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974). This Court has determined the actual malice standard to be a mixed question of law and fact. Bose Corp. v. Consumers Union, 466 U.S. 485, 502 (1984). See also Gary Anthony Paranzino, The Failure of Libel Law and Independent Appellate Review: Making Sense of Bose Corp. v. Consumers Union of United States, Inc., 71 CORNELL L.REV. 477 (1986). Mixed questions of law and fact are those questions which have embedded not only pure factual elements, but also indicia of legal principles. The Supreme Court has stated that a mixed question of law and fact is a question in which historical facts are admitted or established, the rule of law is not in dispute, and the issue is whether the facts satisfy the statutory standard. In other words, whether the rule of law as applied to the established facts is or is not violated. Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982). The Court has demonstrated an affinity for jury trials in cases involving mixed questions of law and fact. Ross, 396 U.S. at 533. The decisions concerning whether defamation by television broadcast constitutes libel or slander, or a separate tort, are in conflict. Defamation by radio or television has been held by some courts to be slander. Metcalf v. KFOR-TV, Inc., 828 F. Supp (W.D. Okla. 1992). Other courts consider television broadcast defamation to be libel. Gearhart v. WSAZ, Inc., 150 F. Supp. 98 (E.D. Ky. 1957), aff'd, 254 F.2d 242 (6th Cir. 1958). Under one jurisdiction's approach, a separate cause of action is recognized for defamation by broadcast, which includes elements of 4

19 both libel and slander. S & W Seafoods Co. v. Jacor Broadcasting of Atlanta, 194 Ga. App. 233, 390 S.E. 2d 228 (1989). In the instant case, Petitioners claim that the May 23, 2012 Gossip Show broadcast was defamatory, and that Respondents are liable for harm endured as a result. Respondents requested and were denied a trial by jury. While an action for defamation through a television broadcast did not exist at the founding, it is clearly analogous to the tort action for slander as it existed in Joe Public, as a television celebrity, qualifies as a public person who must prove actual malice to prevail in a defamation suit. Determining actual malice is a mixed question of law and fact that is most properly to be considered by a jury. Thus, it is clear that the instant case requires jury fact finding under the historic test and is protected cause of action under the Seventh Amendment. B. Respondents right to a jury in the instant case is a fundamental right protected by the Due Process Clause of the Fourteenth Amendment and cannot be abridged by a state government. Beginning in the late nineteenth century, the Supreme Court decided that the Fourteenth Amendment protects rights against state infringement if they are in the conception of due process of law and not because those rights are enumerated in the first eight Amendments. Twining v. New Jersey, 211 U.S. 78, 99 (1908). In 1927, Justice Brandeis stated that all fundamental rights comprised within the term liberty are protected by the federal Constitution from invasion by the states. Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring). Justice Cardozo later defined these fundamental rights as those rooted in the traditions and conscience of our people and of the very essence of a scheme of ordered liberty. Palko v. Connecticut, 302 U.S. 319, 325 (1937). Thus, the Fourteenth Amendment was 5

20 said to incorporate certain constitutional rights against state action. Washington v. Glucksberg, 521 U.S. 702, 719 (1997). For many decades this court has analyzed the rights protected by the Fourteenth Amendment against infringement by the states under the Amendment s Due Process Clause under a process of selective incorporation. Duncan v. Louisiana, 391 U.S. 145 (1968); McDonald v. City of Chicago, 130 S.Ct. 3020, 3031 (2010). Under a selective incorporation analysis, determining whether a particular right is fundamental and therefore protected under the Due Process Clause involves a two-step inquiry: (1) whether the right at issue is necessary to an Anglo-American regime of ordered liberty, and (2) whether the right is deeply rooted in this Nation's history and tradition. Moore v. E. Cleveland, 431 U.S. 494, 503 (1977); Duncan, 391 U.S. at 149 n.14 (1968). The right to the civil jury is deeply rooted in our nation s history and legal tradition. Blackstone called the right to a jury the glory of the English law and the most transcendent privilege that any subject can enjoy. 3 William Blackstone Commentaries, *379. The Supreme Court noted that those who traveled from England to America brought with them this great privilege [the jury trial] as their birthright and inheritance, as a part of that admirable common law which had fenced around and interposed barriers on every side against the approaches of arbitrary power. Thompson v. Utah, 170 U.S. 343, (1898). The right to a civil jury trial was guaranteed in the colony of New Plymouth as early as See Julius Goebel, King's Law and Local Custom in Seventeenth Century New England, 31 COLUM. L. REV. 416, 436 (1931). After the break with Great Britain, all thirteen original states preserved the institution of a civil jury that existed before the Revolution within their constitutions or through statute. See Charles W. Wolfram, The Constitutional History of the Seventh Amendment, 57 MINN. L. REV. 639, 653 n.49 (1973). Patrick Henry called civil juries the best appendage of freedom, one 6

21 which our ancestors secured [with] their lives and property. 3 The Debates in the Several State Conventions on the Adoption of Federal Constitution 324, 544 (Jonathan Elliot ed., 2d ed. 1836). Thomas Jefferson, writing in 1789, regarded trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution. 7 The Writings of Thomas Jefferson 408 (Albert Ellery Bergh ed., 1905). A principal objection raised during the Philadelphia Convention regarding the original draft of the U.S. Constitution was that it did not provide a right to a civil jury trial. Id. at 657. These objections helped lead to the right s codification in the Bill of Rights as the Seventh Amendment. In the years since the amendment s adoption, the Supreme Court has consistently defended the right to a civil jury through the Seventh Amendment. In 1830, Justice Story noted that The trial by jury is justly dear to the American people. It has always been an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy. Parsons, 28 U.S. at 434. In 1897, the Supreme Court stated that questions of fact in common law actions shall be settled by a jury, and that the court shall not assume directly or indirectly to take from the jury or to itself such prerogative. Walker v. New Mexico & Southern Pacific Railroad Co., 165 U.S. 593 (1897). In 1943, the Court held that [t]he right to trial by jury is a basic and fundamental feature of our system. Bailey v. Central Vermont Ry. Inc., 319 U.S. 350, 354 (1943). The right to a civil jury is also necessary to our nation s regime of ordered liberty. Justice Harlan described ordered liberty as a concept comprising a continuum of rights that allowed an individual to be free from arbitrary impositions and purposeless restraints, Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting). Americans have long recognized that a civil jury trial is a fundamental element in the right of the people to dispense justice within their 7

22 communities free from the arbitrary control of the state. See Laura H. Appleman, The Lost Meaning of the Jury Trial Right, 84 IND. L. J. 397 (2009). Tocqueville stated that the jury was the voice of the community represented by that institution. Alexis de Tocqueville, Democracy in America 286 (Francis Bowen trans., Alfred A. Knopf, Inc. 4th prtg. 1948) (1835). Thus, the jury was fundamental to protect the accused s right to be judged by his peers rather than by the state and to protect a community s ability to control the justice dispensed on its local citizens. The jury is also fundamental in the separation of powers and federalism. See Suja A. Thomas, Judicial Modesty and the Jury, 76 U. COLO. L.REV. 767, 792 (2005). Just as the electorate functions as a check on the arbitrary power of the legislative and the executive branches, the jury allows the people to check the arbitrary power of the judicial branch. In the instant case, the portions of the RFEP that deprived Radnor citizens of a right to a jury in all civil cases violate the fundamental rights of American citizens. Clearly, the civil jury has a long history in Anglo-American history and law. The civil jury is essential to maintain the individual rights of the accused, ensure control of the people over the dispersal of justice and to provide a popular check on the power of the judiciary in a republican government. The right to a civil jury should properly be recognized as fundamental to ordered liberty. The Supreme Court should overrule its holding in Bombolis and hold that the Seventh Amendment is fully applicable to the states. In the alternative, even if this honorable court declines to incorporate the Seventh Amendment, the RFEP s abolition of all civil jury trials is a clear violation of the Due Process Clause of the Fourteenth Amendment. The right to a civil jury is fundamental and its complete abridgment by the state of Radnor is unconstitutional. 8

23 II. THE PETITIONERS FIRST AMENDMENT RIGHT TO PETITION THE GOVERNMENT WAS NOT VIOLATED WHEN THE JUDGE STRUCK A DECLARATORY JUDGMENT FROM THE RECORD AND ORDERED THEM TO RESUBMIT THE PLEADING WITHOUT IT BECAUSE THE FIRST AMENDMENT ONLY GUARANTEES INITIAL ACCESS TO COURTS AND BECAUSE THE PETITIONERS CLAIM IS BASELESS LITIGATION. The First Amendment to the United States Constitution states, 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. At issue in this case, is the scope of protection afforded under the right to petition clause. This court should affirm the State Supreme Court s decision and hold that Petitioners First Amendment right to petition for redress of grievances was not violated when a circuit court judge struck their motion for declaratory judgment from the record and ordered the party to refile their complaint with out the declaratory judgment. First, the Petitioners are not afforded First Amendment protections because the First Amendment right to petition only guarantees initial access to courts, which the Petitioners received. Second, even if this Honorable Court should believe the First Amendment affords greater protection than initial access, the Petitioners still should not be afforded First Amendment protection, because their motion for declaratory judgment was baseless, thus outside the scope of First Amendment protections. 9

24 A. The Petitioners are not entitled to First Amendment protection because the First Amendment only guarantees initial access to courts, which they received. The Petitioners First Amendment right to petition the government for redress of grievances was not violated when the judge struck their declaratory judgment from the record and ordered them to resubmit the pleading without it. [T]he right of access to the court is an aspect of the First Amendment right to petition the Government for redress of grievances. Bill Johnson s Rests., Inc., v. Nat l Labor Relations Bd., 461 U.S. 731, 741 (1983); see also California Motor Transp. Co., v. Trucking Unlimited, 404 U.S. 508, 510 (1972). However, the right to petition for redress of grievances does not carry with it the entitlement to a response. See Smith v. Arkansas State Highway Employees, 441 U.S. 463, (1979). Further, in Minnesota State Board for Community Colleges v. Knight, this Court reaffirmed its holding in Smith and held 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 individual s communications on public issues. 465 U.S. 271, 285 (1984). In We the People Foundation v. U.S., the District of Columbia Circuit Court held the petition clause does not incorporate a right to receive an official consideration or a response to a petition for redress of grievances, when plaintiffs filed numerous petitions to the Legislative and Executive Branches for redress of grievances regarding tax, privacy, and war issues, demanding an adequate response. 485 F.3d 140 (D.C. Cir. 2007), cert denied 552 U.S (2008). The plaintiffs attempted to distinguish this Court s prior precedent in Smith and Knight arguing that those cases involved petitions to state officials regarding public policy and not to the Federal Government about constitutional violations. Id. at 143. The court dismissed this argument stating 10

25 that [n]othing in the two Supreme Court opinions hints at a limitation on their holdings to certain kinds of petitions or certain levels of Government. Id. at 144 (emphasis in original). This suggests, that petitions to the judicial branch would also be afforded the same kind of protection under the First Amendment. Similar to the plaintiffs in We the People Foundation, who submitted multiple petitions for grievances to the Federal Government and were dissatisfied when they received no response, here, the Petitioners submitted their pleading to the court and were also dissatisfied by the response received. However, unlike the plaintiffs in We the People Foundation, here, the Petitioners actually received both consideration and a response. R. at 6. Upon review from the judge, their cause of action was stricken from the record and the Petitioners were ordered to resubmit his pleading without the declaratory judgment request. R. at 6. The Petitioners received more consideration and response than the petitioner in We the People Foundation. Because this Court has held that no response or consideration is required from the Government under the First Amendment, and the Petitioners actually received a response, the judge s actions in no way violated their First Amendment Right to Petition for Redress of Grievances, as they received more than they were due. While the Petitioners will likely argue that this Court s interpretation of the First Amendment is too narrow and should encompass more than just initial access to the courts, to offer this remedy as procedural due process remedies constitutional violations that occur during the judicial process. See Fuentes v. Shevin, 407 U.S. 67 (1983); Connecticut v. Doeher, 501 U.S. 1 (1991). Further, declaratory judgment is not the kind of petition afforded protection under the First Amendment. The First Amendment guarantees a right to petition for redress of grievances. 11

26 Redress of grievances is interpreted by the courts to mean a remedy of wrongs. See Borough of Duryea, Pa v. Guarnieri, 131 S. Ct. 2488, 2494 (2011) (stating that [t]he right of access to courts for redress of wrongs is an aspect of the First Amendment right to petition the government ). This means a party must seek a remedy for a wrong that has occurred to them. Declaratory judgment however, does not provide a remedy for a wrong. A declaratory judgment is meant to define the legal rights and obligations of the parties in anticipation of some future conduct, not simply to proclaim liability from a past act. Lawrence v. Kuenhold, 271 F. App x 763, 766 (10th Cir. 2008). Thus, a declaratory judgment merely defines rights, unlike an injunction or monetary damages, which truly remedy a wrong. When the Petitioners requested declaratory judgment regarding the burden of proof, their motion was not within the First Amendment framework, because the request did not seek an actual remedy or redress of grievances. Therefore, Petitioners are not entitled to any First Amendment protection in regard to the judge s actions. Further, a court has the authority to strike pleadings sua sponte without any motion at all. City of Colton v. American Promotional Events, Inc., 2012 WL (C.D. Cal. 2012). Federal Rule of Civil Procedure 12(f) provides that the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. [T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial.... Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Here, the judge was within his procedural rights to strike the declaratory judgment request from the record. Unless, the Petitioners are attempting to question the constitutionality of 12

27 Rule 12(f), it is very unlikely that a state judge s behavior, consistent with a Federal Civil Procedure Rule, would be deemed in violation of the Petitioners First Amendment rights. The Petitioners First Amendment claim should fail because the right to petition for redress of grievances only encompasses initial access to the courts. Issues pertaining to procedure while in court should be considered under the Due Process Clause. Further, the Petitioners had initial access to the courts, as they filed his pleading with the court, and even received consideration and a response. The response they received was more than the First Amendment requires, because the First Amendment does not impose on the government an obligation to respond or give consideration to petitions. Moreover, the motion for declaratory judgment that was stricken from the record is not afforded First Amendment protection. A declaratory judgment does not seek a remedy for a wrong it merely asks for a definition of the parties rights. Lastly, in accordance with Federal Rule of Civil Procedure 12(f), the judge was within his power to strike the motion sua sponte. For these reasons the Petitioners claim should fail. B. Even if this Honorable Court believes the First Amendment right to petition for redress of grievances is applicable Petitioners motion, the their motion for declaratory judgment was baseless not entitled to First Amendment protection. This case is novel because no jurisprudentially similar standard exists for determining when a lawsuit, under these circumstances, is baseless. A standard must be ascertained before discussing the merits of this case. Thus, the proper standard for baseless litigation will be discussed first, and then the facts of this case will be applied to the baseless litigation standard. i. This Court should adopt a two-part standard to determine which lawsuits are afforded First Amendment protections, when a judge interferes with a party s access to courts. 13

28 The right to petition is not an absolute right and baseless litigation is not immunized by the First Amendment. McDonald v. Smith, 472 U.S. 479, 484 (1985). Just as false statements are not immunized by the First Amendment right to freedom of speech,... baseless litigation is not immunized by the First Amendment right to petition. Bill Johnson s Restaurants, Inc., v. N.L.R.B., 461 U.S. 731, 744 (1983) (internal citations omitted). Thus, litigation that is baseless will fall outside the scope of protection of the First Amendment. In determining whether the Petitioners declaratory judgment claim should be afforded First Amendment protection, the standard for baseless litigation must be ascertained. In Bill Johnson s this Court held [t]he NLRB may not halt the prosecution of a statecourt lawsuit, regardless of the plaintiff s motive, unless the suit lacks a reasonable basis in fact or law. Id. at 731. In defining baseless the Court stated that the inquiry need not be limited to bare pleadings, if there is genuine issue of material fact that turns on credibility of witnesses or on proper inferences to be drawn from disputed facts, it cannot be concluded that suit should be enjoined. Id. at 745. In Bill Johnson s a restaurant employee filed a labor dispute against her employer and later held demonstrations in front of the restaurant. Id. at 733. The employer filed a state-suit for property damage and defamation and the administrative law judge (ALJ), overseeing the labor review board hearing, moved to enjoin the lawsuit pending in state court because the ALJ found it to be filed for retaliatory purposes. Id. The employer claimed immunity under the First Amendment right to petition. Id. Later, in Prof'l Real Estate Investors, Inc., v. Columbia Pictures Industries, Inc., this Court held in order to constitute sham litigation within the meaning of exception to Noerr doctrine immunity from antitrust liability, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on merits, and such baseless lawsuits 14

29 must conceal an attempt to interfere directly with the business relationship of a competitor. 508 U.S. 49, 60 (1993) (emphasis in original). In Prof'l Real Estate Investors, Columbia Pictures sued Professional Real Estate Investors (PRE) for copyright infringement stemming from hotel movie rentals. Id. at 53. PRE counter-sued for antitrust violations under the Sherman Antitrust Act and claimed Columbia s copyright action was mere sham that cloaked underlying acts of monopolization and conspiracy to restrain trade. Id. at 53. In BE & K Construction v. N.L.R.B., this Court discussed and clarified the two competing standards for baseless litigation, but ultimately decided the merits of the case on statutory grounds. 536 U.S. 516 (2002). Justice O Connor stated the standard set forth in Prof'l Real Estate Investors was applicable to anti-trust cases and that Bill Johnson s standard delineated the parameters for ongoing suits. Id. at The standard created in BE & K Construction is applicable to completed suits. Id. Further, Justice O Connor discussed a need for breathing room in baseless litigation suits. Id. at 531. Just as false speech has some merit in the market place of ideas, because false speech protects speech that matters, not all baseless litigation should be without constitutional protection. Id. (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974). However, the case at hand is different from the prior jurisprudence. First, Prof'l Real Estate Investors created a standard for anti-trust litigation filed for seemingly retaliatory purposes. Further, Bill Johnson s involved a labor board dispute in which an ALJ attempted to halt ongoing litigation in state court. The issue here is novel in the jurisprudence. Here, the Petitioners question the constitutionality of a judge striking his declaratory judgment from the record and effectively interfering with ongoing litigation. Thus a new standard should apply. 15

30 The standard in judging the merits of this Petitioners case should be two pronged. First, the summary judgment standard set forth in Bill Johnson s should provide absolute First Amendment protection to ongoing cases. Thus, if it is reasonably likely that the case will survive summary judgment, it should be afforded First Amendment protections. Second, the reasonability test set forth in Prof'l Real Estate Investors should provide the breathing room for cases that will not survive summary judgment, but were not completely unfounded. This Court should apply a two-prong analysis in cases where a court denies access to a plaintiff. The first question to ask is whether issues of material facts exist within the case or whether the case requires inferences to be drawn from the facts. If the case does, it is likely to survive summary judgment and will be afforded absolute protection under the First Amendment. If a case fails the first test, the second question to ask is whether, at the time of filing, the litigations seemed objectively likely to succeed. If a reasonable plaintiff could believe the suit a success then First Amendment protection is afforded. ii. The Petitioners motion for declaratory judgment regarding the shifting burden of proof will fail both prongs of the two-part test. The Plaintiff s claim would not survive summary judgment because no disputed issues of material fact, regarding whether the Petitioners were public or private persons, existed at the time the declaratory judgment was stricken from the record. Because the evidence supporting the burden shifting declaratory judgment claim was well documented in publications and news reports, a review for credibility would not be needed. Further, the declaratory judgment claim regarding the shifting burden of proof would not meet the second prong of the standard because at the time the declaratory judgment was filed, it would not have been objectively reasonable for the Petitioners to believe the motion a success. 16

31 This is because Mr. Public, under the jurisprudence, will always carry the burden of proof, and for the reasons following, Ms. Private will as well. A public figure plaintiff must bear the burden of proving falsity of speech as well as fault, in order to prevail in a suit for defamation. Gertz v. Robert Welch, 18 U.S. 323 (1974). Further, when a newspaper publishes speech of public concern, a private-figure plaintiff cannot recover damages without showing that the statements at issue are false. Philadelphia Newspapers, Inc., v. Hepps, 475 U.S. 767, 769 (1986). When the matter involves a private citizen and an issue of private concern, the courts have deferred to common law and allowed the defendant to prove the truth of the defamatory statement. See Time, Inc., v. Firestone, 424 U.S. 448 (1976). Here, to whom the burden of proof rests is not the most important issue. The most important issue is whether Ms. Private is properly categorized as a public person. Ms. Private is a public person, and at the very least a private person thrust into a public controversy. In Gertz, this Court defined a public figure for the purposes of the First Amendment: For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. 418 U.S. at 345. Many people have been considered public figures. See e.g., Hustler v. Falwell, 485 U.S. 46 (1998) (a well-known television pastor); Flowers v. Carville, 310 F.3d 1118 (9th Cir. 2002) (the President s mistress who thrust herself even further into the scandal when she leaked their recorded conversations); c.f. Time, Inc., v. Firestone, 424 U.S. 448 (1976) (wife of wealthy industrial family was not a public figure because she did not voluntarily thrust herself into the public eye since she was compelled to go to court for a divorce); McDonald v. Smith, 472 U.S. 17