106 Harv. L. Rev. 1111, *
Copyright © 1993 The Harvard Law Review Association.
Harvard Law Review
106 Harv. L. Rev. 1111
LENGTH: 11182 words
NOTE: A PETITION CLAUSE ANALYSIS OF SUITS AGAINST THE GOVERNMENT:
IMPLICATIONS FOR RULE 11 SANCTIONS.
... The handful of Supreme Court cases that have explicitly considered petitioning have construed the clause to limit federal and state interference with the right to petition any department of the government with regard to any matter. ... Congress's response to petitions in the early years of the Republic also indicates that the original understanding of petitioning included a governmental duty to respond. ... Second, a suit against the government, unlike other general petitions, triggers a governmental duty to respond to petitions; this in turn ensures the advancement of the interest in government accountability through citizen participation. ... Filing such a suit is a proper judicial petition -- it represents a citizen's appeal to the courts to redress a grievance caused by some governmental agency. ... The eradication of the government's duty to respond to petitions signalled the erosion of the guarantee that general petitions would advance the interest of government accountability through citizen participation. ... Suits against the government, as double petitions, implicate both core values of the Petition Clause and are the most valuable type of petition; accordingly, courts should apply strict scrutiny to government regulation that infringes upon a citizen's right to file a double petition. ... These arguments in support of the unfettered application of the reasonable inquiry prong, however, suffer from three flaws. ...
[*1111] The ability to petition the government is a venerable Anglo- American political right guaranteed by the First Amendment.1 Despite the rich history of the petition right in both the development of popular sovereignty2 and in the resolution of important political issues,3 courts and scholars alike have virtually ignored the Petition Clause in developing First Amendment jurisprudence.4 The handful of Supreme Court cases that have explicitly considered petitioning have construed the clause to limit federal and state5 interference with the right to petition any department of the government6 with regard to any matter.7 The Court has also defined "petitions" to include a wide variety of activities, from sending letters to decisionmaking bodies to litigation, 8 lobbying efforts,9 boycotts,10 and other forms of protest.11
However, the Court has not clearly delineated the contours of the substantive right to petition. This failure contrasts sharply with the long line of cases in which the Court has identified the interests embodied by the Free Speech and Press Clauses,12 considered how [*1112] much those interests are furthered by different kinds of expression,13 and then weighed those interests against the government's interest in regulation. Instead of engaging in an independent tripartite analysis for the Petition Clause, the Court has subsumed14 the petition right into the rights of free speech and press.15
This Note criticizes the Court's failure to recognize the Petition Clause's distinct values16 and develops an alternative tripartite framework. Part I argues that the Petition Clause embodies substantive interests distinct from the interests advanced by the Free Speech and Press Clauses. It then identifies government accountability through citizen participation and neutral resolution of disputes as the Petition Clause's two main values. Part II considers how much these interests are furthered by different types of petitions, and argues that filing a suit against the government is a special type of activity that merits the greatest protection under the Clause. Part III applies the argument developed in Part II to Federal Rule of Civil Procedure 11, which inhibits citizens' ability to sue the government effectively, and concludes that the courts should interpret Rule 11 narrowly in suits against the government.[*1113]
I. THE INTERESTS SERVED BY THE PETITION CLAUSEA. The Right to Petition as a Distinct Substantive Right
The tendency of both courts and scholars to collapse the right to petition into the right to free expression renders the Petition Clause a redundancy, and thus runs afoul of the rule of construction set forth by Chief Justice Marshall in Marbury v. Madison17 that "[it] cannot be presumed, that any clause in the constitution is intended to be without effect."18 Some nonetheless argue that this construction is justified because the Petition Clause was "never meant to have an independent meaning" from the other expression clauses,19 and that the different expression clauses were separated simply for emphasis. A careful examination of the history and original understanding of the petition right, however, demonstrates its distinct nature and scope.
Petitioning as a political activity originated in England in the eleventh century20 and gained recognition as a political right in the mid-seventeenth century.21 Indeed, the rights to free speech, press, and assembly originated as derivative rights insofar as they were necessary to protect the preexisting right to petition. Free speech rights first developed because members of Parliament needed to discuss freely the petitions they received.22 Publications reporting petitions were the first to receive protection from the frequent prosecutions against the press for seditious libel.23 And public meetings to prepare petitions led to recognition of the right of public assembly.24 Moreover, the petition right was widely accorded greater importance than the rights of free expression. For example, in the eighteenth century, the House of Commons,25 the American colonies,26 and the first Continental Congress27 gave official recognition to the right to petition, but not to the rights of free speech or of the press.28[*1114]
The historical record shows that the Framers and ratifiers of the First Amendment also understood the petition right as distinct from the rights of free expression. In his original proposed draft of the Bill of Rights, Madison listed the right to petition and the rights to free speech and press in two separate sections.29 Some have argued that Congress's later fusion of these sections into the First Amendment30 undercuts the significance of Madison's original format.31 However, Congress also fused the Religion Clauses into the First Amendment, but that conflation has not been construed as mandating the same analysis for the freedoms of religion and expression. Furthermore, a "considerable majority" of Congress defeated a motion to strike the assembly provision from the First Amendment because of the understanding that all of the enumerated rights in the First Amendment were separate rights inherent in the people that should be specifically protected.32
The ratifying states also shared this understanding of the petition right as separate from the other First Amendment rights; many state declarations of rights33 and proposed lists of amendments from ratifying conventions included the petition right but not the speech right, or included the Petition Clause separately from the freedom of expression clauses.34B. Interests Served by Petitioning
In light of the history of the petition right, which shows the error of subsuming the Petition Clause into the Free Speech and Press Clauses, it is necessary to develop an analysis of the interests that are uniquely served by petitioning. Many judges and scholars have identified petitioning as embodying one particular interest.35 However, viewing the petition right as furthering one interest overlooks that the Petition Clause protects two different types of petitions, each of which serves a different function and embodies a different interest. "General [*1115] petitions" involve citizens' attempts to contribute to governmental decisionmaking or to change governmental behavior; accordingly, they encompass matters of relevance to the whole community, and are typically submitted to legislative or executive officials. By contrast, "judicial petitions" deal with individualized requests for mediation or resolution of a dispute and are submitted to courts, adjudicatory tribunals, or other neutral arbiters.36 The next two subsections develop this distinction and identify the values served by each category.
1. Government Accountability Through Citizen Participation as the Interest Behind General Petitions. -- General petitioning has played a central role in the development and exercise of popular sovereignty throughout British and American history.37 In medieval England, petitioning began as a way for barons to inform the King of their concerns and to influence his actions.38 Later, in the seventeenth century, Parliament gained the right to petition the King and to bring matters of public concern to his attention.39 This broadening of political participation culminated in the official recognition of the right of petition in the people themselves.40 The people used this newfound right to question the legality of the government's actions,41 to present their views on controversial matters,42 and to demand that the government, as the servant of the people, be responsive to the popular will.43 In the American colonies, disenfranchised groups could use [*1116] petitions to seek government accountability for their concerns and to rectify government misconduct.44 Indeed, by the nineteenth century, petitioning was described as "essential to . . . a free government"45 -- an inherent feature of a republican democracy,46 and one of the chief means for enhancing government accountability through the participation of citizens.47
Moreover, this interest in government accountability was understood to demand government response to petitions.48 Unrepresented American colonists, who exercised their right to petition the King or Parliament,49 expected the government to receive and respond to their petitions.50 The King's persistent refusal to answer the colonists' grievances outraged the colonists and was a significant factor that lead to the American Revolution.51 Indeed, frustration with the British government led the Framers to consider incorporating a people's right to "instruct their Representatives" in the First Amendment.52 Members of the first Congress easily defeated this right-ofinstruction proposal.53 Some discretion to reject some petitions, they reasoned, [*1117] would not undermine government accountability to the people, as long as Congress had a duty to consider petitions and fully respond to them.54
Congress's response to petitions in the early years of the Republic also indicates that the original understanding of petitioning included a governmental duty to respond. Congress viewed the receipt and serious consideration of every petition as an important part of its duties.55 Congress referred petitions to committees or to an executive department for a report,56 and even created committees to deal with particular types of petitions.57 Ultimately, most petitions resulted in either favorable legislation or an adverse committee report.58 Thus, throughout early Anglo-American history, general petitioning allowed the people a means of political participation that in turn demanded government response and promoted accountability.
2. Neutral Resolution of Disputes as the Interest Behind Judicial Petitions. -- Just as general petitions helped to shape the concept of popular sovereignty, judicial petitions helped to shape the judiciary as a separate branch of English and colonial American governments. Originally, the King (as the only body of government) entertained petitions ranging from pleas for a change in law to individual requests to settle private disputes.59 As the King realized that general and individual requests demanded and afforded different treatment, he began to refer all individual pleas to trial by auditors and chancellors.60 The recognition of the different functions served by these two types of petitions thus led to the separation of legislative and judicial powers.61 In the earliest colonial American governments, assemblies performed both legislative and judicial functions and thus responded to each type of petition.62 Most petitions involved private disputes [*1118] that required the assembly to investigate facts and to resolve conflicts through fair and neutral hearings.63 Even when the colonial assemblies became inundated with petitions and needed to accelerate the process, the assemblies retained the guarantee of full consideration of judicial petitions.64
Eventually, the assemblies began to address more general petitions that involved grievances common to the whole community, and to refer petitions regarding individual disputes to the courts. In turn, the judiciary developed standards of neutrality and independence in resolving disputes between two parties.65 This historical connection between the judicial petitions and the development of the norm of impartiality demonstrates that the neutral resolution of disputes should be regarded as the primary interest embodied by judicial petitions.II. THE SPECIAL NATURE OF SUITS AGAINST THE GOVERNMENT
Given the twin interests of government accountability through citizen participation and neutral resolution of disputes, a lawsuit filed against the government66 deserves the greatest protection under the Petition Clause67 for two reasons. First, suits against any governmental agency actually comprise two petitions -- one general and one judicial -- combined into one, and thereby concurrently serve the two primary interests of petitioning. Second, a suit against the government, unlike other general petitions, triggers a governmental duty to respond to petitions; this in turn ensures the advancement of the interest in government accountability through citizen participation.[*1119] A. The Double Petition
Most petitioning activity can be classified as either a general or a judicial petition. Filing a suit against a private citizen or corporation is protected as a judicial petition to the court. By contrast, sending a letter to a senator or to the president regarding a cabinet nominee is protected as a general petition. A suit against the government, however, is unique in that it combines two types of petitions to two distinct branches of the government. Filing such a suit is a proper judicial petition68 -- it represents a citizen's appeal to the courts to redress a grievance caused by some governmental agency. A suit against the government also constitutes an effective general petition to the identified agency.69 The plaintiff must serve a copy of the complaint -- a statement of the grievance -- upon the agency being sued.70 This act simultaneously makes that governmental agency aware of the citizen's particular grievance71 and demands redress by that agency, and thereby constitutes a general petition to the agency being sued. Moreover, the complaint served upon the defendant functions as a general petition because it requests that the agency take steps to correct its own wrongdoing -- for example, by changing an unconstitutional policy. Because it combines the functions of a general and a judicial petition, a suit against the government promotes both the interests of government accountability through citizen participation and of neutral resolution of a dispute.B. Governmental Duty to Respond to Suits Against the Government
The initiation of a suit against the government invokes a governmental duty of response, which ensures that the petition will actually inform the government about the citizen's concerns and influence governmental decisionmaking. Courts should recognize the value of the duty to respond in furthering the goal of government accountability and protect the only general petitions that still retain this feature -- suits against the government.
In the early Republic, the petition right embodied a governmental duty to receive and respond to petitions, and early Congresses generally responded to petitions.72 However, the governmental duty to respond to petitions dissipated during the antebellum era. In the 1830s, abolitionists began an aggressive campaign of petitions to Congress.73 [*1120] At first, Congress responded by issuing motions to refuse their prayers. As more and more petitions arrived, the Southern members of Congress urged the adoption of an "absolute gag" by prohibiting abolitionist petitions from being "received by this House, or entertained in any way whatever."74 Despite the arguments of many members of Congress that the imposition of a "gag rule" would be unconstitutional,75 the House of Representatives adopted by a vote of 117-58 the Pinckney Resolution, which ordered that all petitions relating to slavery "shall, without being either printed or referred, be laid upon the table, and that no further action whatsoever shall be had thereon."76 The gag rule was eventually repealed through the efforts of John Quincy Adams,77 but neither the practice nor the right of petitioning gained full restoration.78 The Supreme Court recently affirmed that the government is not required to listen to or respond to petitions.79
The eradication of the government's duty to respond to petitions signalled the erosion of the guarantee that general petitions would advance the interest of government accountability through citizen participation.80 In the wake of this development, some scholars have argued that the government should recognize the original meaning of the right to petition by restoring the duty to respond.81 However, this solution is impractical for the post-New Deal era; the government has assumed responsibility for so many aspects of our society and, in the process, has become so complex that it is unrealistic to expect members of Congress or the President even to read or listen to all citizen petitions, much less respond to them. Therefore, it is clear [*1121] that the more traditional forms of general petitions -- letters to government officials -- are no longer as effective in ensuring government accountability as they were when the governmental duty to respond was feasible.
The general petition aspect of suits against the government, however, still retains the duty to respond that other general petitions have lost. Whereas an agency might entirely ignore a lobbying effort aimed at convincing an agency to change an unconstitutional regulatory policy, it cannot ignore a suit that seeks a declaratory or injunctive order.82 Faced with a suit, that agency has to read and consider the claims of grievances contained in the complaint, because the agency must file an answer with the court.83 Even apart from the requirement to file an answer, the risk of being subject to an adverse judgment would compel the agency to take the claim seriously and to consider different options for redressing the citizen's grievance. Thus, because the double petition ensures that the agency will consider citizen complaints, and, accordingly, that suits will serve the interest of government accountability through citizen participation,84 courts should give special protection to suits against the government.III. APPLICATION OF THE DOUBLE PETITION ANALYSIS
The double petition analysis has implications for the rules regarding the requirements for, and possible consequences of, filing a lawsuit against the government. Courts should protect a citizen's ability to petition the government against infringement through such rules and doctrines. This Part analyzes one regulation that generally affects a citizen's right to file judicial petitions and has been used most frequently against citizens who file double petitions in the form of civil rights litigation against the government: Rule 11 sanctions.85
[*1122] Rule 11 is a particularly appropriate example of how the double petition analysis would operate. In the past, courts have split on the issue of the Petition Clause's applicability to Rule 11. Most courts have summarily rejected Petition Clause arguments that challenged the constitutional validity of Rule 11,86 and have claimed that "there is no constitutional right to bring frivolous lawsuits."87 But Judge Weinstein has recognized the constitutional value in suits against government agencies, and has argued that such litigation should not be discouraged through the imposition of Rule 11 sanctions.88 To resolve this conflict, the following sections undertake the task of re-examining the Petition Clause argument challenging Rule 11 sanctions.A. The Applicability of Petition Clause Analysis to Rule 11
Rule 11 allows the court to impose sanctions upon a party or that party's attorney for filing a pleading, motion, or other paper that is not "well grounded in fact" and "warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law"89 or is "interposed for any improper purpose, such as to harass."90 Any governmental regulation that implicates a person's right to present a petition to the government raises Petition Clause concerns; on its face, Rule 11 is such a regulation because it creates a possibility that a citizen will be sanctioned solely for presenting a judicial petition to the government. Although the government's duty to consider and respond to petitions has been debated in recent times,91 the citizen's right to present petitions is unquestionably protected by the Petition Clause.92 More than any other litigation-related activity, filing a complaint is a citizen's presentation of a judicial petition to the government93 and thus attains a special status in the context of the Petition Clause. Thus, when courts apply Rule 11 sanctions to complaints, courts punish citizens' presentation of judicial petitions.[*1123] B. Applicability of Strict Scrutiny Analysis
In cases involving the central interests that underlie First Amendment freedoms, the Court has applied a strict scrutiny test that requires the challenged governmental activity to be "necessary to serve a compelling state interest and [to be] narrowly drawn to achieve that end."94 In Free Speech Clause cases, for example, the Court has applied strict scrutiny to regulations of political speech,95 while applying a less demanding intermediate standard to regulations of lessvaluable commercial speech.96 Suits against the government, as double petitions, implicate both core values of the Petition Clause and are the most valuable type of petition; accordingly, courts should apply strict scrutiny to government regulation that infringes upon a citizen's right to file a double petition.97 This should include Rule 11 sanctions applied to complaints filed against the government.98
Before conducting a strict scrutiny analysis of Rule 11, however, it is necessary to consider the threshold issue of whether the different provisions of Rule 11 actually impede petitioning that genuinely furthers the two core interests of the Petition Clause and thereby mandates the application of the strict scrutiny standard.
1. The "Improper Purpose" Prong.-- The "improper purpose" prong of Rule 11 protects the judicial process from abuse by prohibiting a plaintiff from filing a complaint in order to harass the defendant.99 This prohibition should not trigger strict scrutiny because the sanctionable activity does not further either of the two interests embodied by the Petition Clause. First, filing a complaint merely to harass a government defendant does not further the interest in government accountability through citizen participation. It seeks only to annoy the government and to waste its time in the courts, rather than to inform it of citizens' concerns and to change governmental policies or actions. Second, a complaint that falls under the "improper purpose" prong does not further the interest in neutral resolution of [*1124] disputes. A person does not file a harassing complaint in order to ask a neutral governmental body to resolve a dispute with the government, but rather in the hope that invocation of the judicial process will embarrass and annoy government officials.
Ultimately, the practical effect of the "improper purpose" prong of Rule 11 is to punish efforts to disguise harassment as a legitimate petition. A complaint filed to harass the named government official or agency constitutes a fraudulent imitation of a legitimate double petitioning activity.100 The "improper purpose" prong of Rule 11 effectively carves out a "sham" exception101 to the Petition Clause analysis proposed in this Note. Consequently, this prong of Rule 11 should not be subject to strict scrutiny under the Petition Clause.
2. The "Reasonable Inquiry" Prong. -- Rule 11 also permits the court to sanction attorneys or parties if they did not conduct a "reasonable inquiry" to verify that the complaint "is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law."102 Some would argue that this prong, like the "improper purpose" prong, is a valid exception to the Petition Clause protection because it merely guards against the filing of baseless suits and "there is no constitutional right to bring frivolous lawsuits."103 Indeed, frivolous complaints do not even appear to fall within the language of the Petition Clause because such complaints do not present legally cognizable "grievances."
This position appears supported by an interest-driven analysis of this prong: this provision does not impair, but rather furthers, the two interests behind the Petition Clause and should therefore constitute a valid exception to the Petition Clause. The prong requires a citizen to act responsibly when using a general petition as a vehicle for participating in government decisionmaking. If a citizen need not investigate the facts relating to his grievance before making any assertions, the defendant might respond to the complaint by assuming the false allegations to be true and changing its policy accordingly.104 The prong might also further the interest in neutral resolution of [*1125] disputes. The requirement ensures that the information before the judge is reliable, and thus aides accurate and fair adjudications.105 Furthermore, this portion of Rule 11 decreases court congestion and allows more prompt and effective judicial response to the meritorious claims that deserve governmental attention.106 Thus, the reasonable inquiry prong may be viewed as regulating only the kind of activity that does not deserve constitutional protection.
These arguments in support of the unfettered application of the reasonable inquiry prong, however, suffer from three flaws. First, the reasonable inquiry prong is not justified by the argument that there is no constitutional right to file a frivolous claim. If the objective of the reasonable inquiry prong is to deter frivolous claims, then the requirement is overinclusive: not all claims that fail the reasonable inquiry requirement are necessarily frivolous. A party could be sanctioned under Rule 11 for filing claims without researching the underlying facts, even if those factual allegations happened to be true and the claims were not baseless.107
Second, some complaints that could be subject to Rule 11 sanctions under the "reasonable inquiry" prong may actually further Petition Clause interests. For example, allegations that turn out to be true, even if not substantiated by reasonable factual inquiries or legal research, could serve to inform the court and the defendant agency of governmental misconduct and thereby lead to an appropriate government response. Another example of sanctionable but constitutionally valuable complaints are those that are substantially true but that contain one factual allegation or claim that is false.108 Such complaints as a whole are not frivolous109 and constitute valuable petitions that should inform and influence the defendant agency's actions and should provide the bases for neutral resolution of disputes.110
[*1126] Third, even assuming that the reasonable inquiry prong only prohibits the filing of frivolous claims, that there is no Petition Clause right to file a frivolous claim, and that there is no constitutional value in filing such claims, it does not automatically follow that all such claims should be sanctioned. Just as it is necessary to protect some constitutionally valueless false statements in order to avoid chilling effects on valuable speech,111 it might be necessary to refrain from sanctioning some frivolous complaints in order to avoid deterring suits that represent valuable double petitions. Rule 11 sanctions can be substantial,112 and the possibility of sanctions for having just one claim or statement in the complaint that a judge determines unsubstantiated by an objectively reasonable inquiry could deter citizens from filing legitimate suits.
The threat of Rule 11 sanctions raises special concerns when applied to complaints against the government. Because these suits often require the assertion of a novel or controversial claim against a wellestablished governmental policy or official,113 the possibility that Rule 11 sanctions will chill zealous advocacy114 affects double petition suits against the government more than any other claims. Indeed, empirical studies have demonstrated that federal judges frequently invoke Rule 11 to sanction plaintiffs' civil rights claims against the government.115 A federal judge has even stated that "insubstantial lawsuits against high public officials . . . warrant firm application of [Rule 11]" because such suits "undermine the effectiveness of Government." 116
The "reasonable inquiry" prong of Rule 11 thus reaches double petitions that are not necessarily frivolous on the whole, prohibits [*1127] some lawsuits that would further the underlying interests of the Petition Clause, and poses a risk of chilling constitutionally protected petitioning activity. In these ways, this prong infringes upon a citizen's right to file a legitimate double petition under the Petition Clause when applied to complaints against the government. Accordingly, this prong should be subject to the strict scrutiny standard.
C. Strict Scrutiny Analysis of Rule 11
As currently construed, Rule 11 would not satisfy both the compelling interest and narrow tailoring requirements of strict scrutiny. The Supreme Court has held that "the central purpose of Rule 11 is to deter baseless filings in district court" and thereby ease congestion in federal courts.117 Given the high standard that a governmental interest must meet to be "compelling,"118 the deterrence of baseless filings to further judicial economy would not meet the compelling interest requirement. Moreover, even if a court held these interests to be "compelling," the reasonable inquiry prong of Rule 11 is not "narrowly tailored" to serve that interest119 because it reaches complaints that are not baseless.120
To avoid this constitutional problem with the current construction of, and the proposed amendments to, Rule 11, and to protect genuine efforts to present double petitions to the government, courts should construe Rule 11 to contain a subjective element:121 complaints against the government should be sanctionable only if the plaintiff had knowledge122 that the complaint, taken as a whole, was not well grounded in fact or was not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law. Through this construction, courts could sanction complaints against [*1128] the government that do not further the twin interests of general and judicial petitions without punishing or deterring those that further those interests.
This Note has developed an interest-based tripartite analysis for the Petition Clause: first, it has identified the core values of the clause; second, it has argued that suits against the government constitute "double petitions" that advance these interests the most; and third, it has weighed these constitutional values against the interests behind one particular governmental regulation -- Rule 11. Courts should extend this model and apply the double petition analysis to other government actions that potentially deter citizen suits.123 Courts should also further develop Petition Clause jurisprudence by carefully considering the appropriate level of protection required by each type of petition. Only by engaging in such analysis, independent of the Free Speech and Press Clauses, can courts restore the right to petition to its proper place in our constitutional scheme -- as an implicit and essential aspect of the "very idea of government, republican in form."124