It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [93]
Although as a simple matter this rule clearly violates the historical proscription of punishments appended to the right to petition, it is worthwhile to discuss precisely how it infringes upon the right. First, frivolous and well researched are not the same thing. The problem is that Rule 11 only punishes those petitions which are inadequately researched, rather than those which are genuinely frivolous. Consequently, it will punish those petitions which are meritorious, but have not been adequately researched. Imagine, for example, that a government official is caught accepting payments in exchange for awarding subsidies to one particular company. When one business owner in the industry does further research and discovers that he has a claim against the government, he files suit. Having discussed the complaint with a few of his friends who are also business owners harmed by the grant of subsidies to the competitor, they copy the original complaint (a kind of petition, for our purposes) and also file suit. Although they no doubt have meritorious claims against the government, they will face punishment for simply not doing the research themselves. How can this be squared with the Seven Bishops Case, and the understanding at the time of the founding?
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Moreover, the threat of fines can deter otherwise meritorious claims, particularly where those claims are “novel or controversial.” This is often the case for suits against the government, since petitioners are frequently challenging a traditional and entrenched governmental practice, such as segregation. And as has been noted before, “today’s frivolity may be tomorrow’s law.” Thus, in addition to discouraging the redress of legitimate grievances, punishing petitioners who take up these difficult cases stifles the beneficial growth of the law.
One of the best examples of so-called frivolous lawsuits which eventually became today’s law is the Brown v. Board of Education line of cases. These petitioners in 1954 stood for the position that “separate but equal is inherently unequal,” a difficult argument to make in light of Plessy v. Ferguson’s explicit rejection of that position in 1896. Are these the sorts of developments that we should be discouraging? Or weren’t these exactly the kinds of popular movements which the right to petition the government was intended to protect?
The Brown v. Board of Education (1954) case is particularly instructive. Governments throughout the United States, mainly in the South, were stubbornly unwilling to cease making public school–related decisions—building schools, hiring and firing teachers, allocating school budgets—based on race. The Congress was unwilling to use its Fourteenth Amendment powers to intercede. Only a petition to the courts to redress grievances liberated generations of African Americans from ignorance spawned by the states.
As one might then imagine, Rule 11 motions have a well-documented, disproportionate impact on civil rights petitioners; although civil rights claims made up 7.6 percent of total filings in the first two years of the rule’s existence, they made up 22.3 percent of Rule 11 cases. It is time that we abolish Rule 11 and encourage, rather than punish, petitioners to take up their grievances with the government and modify the existing law.
So why is it that Rule 11 motions have remained the law? A federal judge once said, “Insubstantial lawsuits against high public officials . . . warrant firm application of [Rule 11 because they] undermine the effectiveness of Government.” However, we have already rejected the claim that effectiveness of government can ever trump the need for robust protection of constitutional rights. Fortunately, this judge was not presiding over the legally “insubstantial” Brown v. Board of Education line of cases, which no doubt undermined the effective