Birther lawsuits

Last week George Conk posted an entry on his blog (here) with respect to the New Jersey attorney who has filed a lawsuit claiming that Barack Obama is a "usurper" because he was not born in the United States.  Conk argues that the filing of this lawsuit violates the ethical obligations of the lawyers because it is so obviously without merit.  My starting point was to agree with that, particularly given my general agreement with those who have argued that the conduct of Yoo et al was unethical.  While in this case safeguards of judicial process exist which did not for Yoo, the same basic principle, that lawyers have some obligation to respect legality, comes into play. 

On reflection, though, I have some qualms about the virtues of this position in the birther case.  This is for two main reasons.  First, the problem with the lawsuit in New Jersey is not that it is manipulating the law in some way (at least as I understand it).  The problem is that it is asserting facts that are almost certainly untrue.  I.e., it is clear in law that the President must be born in America; the only question is whether the application of that rule to Obama causes any problems.  There are of course many constraints on the ability of lawyers to bring forward facts that are not true, and the frivolity restrictions on filing lawsuits would probably apply to factually frivolous lawsuits as well as to legally bogus ones.  But I think there might be a need to make some analytical distinctions between those two things - i.e., the nature of what constitutes unethical conduct in the filing of a factually frivolous lawsuit might be different from a legally frivolous one.  I would tend to think one should be more lenient with factual frivolity, if only because often a purpose of litigation is to discover what happened, and to provide access to a far better and more complete factual records than can be obtained otherwise.

Second, and to me more significantly, as a matter of public policy it seems better to have litigation such as this go through the Court.  It seems to me better to have a Court say to a birther, "I've looked at this and you're completely wrong and there is no issue whatsoever with Obama's place of birth" then to have a lawyer say that to a birther in private.  Preventing the court from pronouncing on the matter seems to me more likely to allow the birther movement to simply continue to spread its rumours and stories about the web, without the strong counter argument that the judgment would present.  This may not always be a strong argument for bringing frivolous litigation - private cases don't have the same public significance as Obama's place of birth - but it seems to me to have some weight here. 

Comments

[Monroe Freedman]

I don’t think the birther lawyers should be subjected to sanctions.

The traditional legal definition of frivolous is “obviously false on the face of the pleading,” as when something was pleaded that “conflicted with a judicially noticeable fact or was logically impossible, such as a plea of judgment recovered before the accrual of the cause of action.” Surely, a lawyer could properly be subjected to sanctions for filing a pleading that is frivolous in the sense of being “obviously false on [its] face.” Moreover, lawyers can properly be punished for filing or maintaining pleadings that are “sham” or “baseless,” that is, those that appear to state proper claims or defenses, but that are known to the lawyer to be false in fact.

The Supreme Court has gone somewhat further, by unanimously defining a “frivolous” claim as one based on an “indisputably meritless legal theory,” or one whose “factual contentions are clearly baseless,” such as a claim describing “fantastic or delusional scenarios.” Elaborating on that definition, the Court held that frivolousness can be found when the facts alleged “rise to the level of the irrational or the wholly incredible.” “Some improbable allegations might properly be disposed of on summary judgment,” the Court added, “but to dismiss them as frivolous without any factual development is to disregard the age-old insight that many allegations might be ‘strange, but true; for truth is always strange, Stranger than fiction.’”

Consider also that all of the leading cases in our casebooks began with a “frivolous” pleading. Cardozo noted that nine-tenths, and perhaps even more, of the cases appealed to the New York Court of Appeals during his time on that bench were “predetermined,” their fate “preestablished” by “inevitable laws” from the moment of their filing. MacPherson v. Buick Motor Co. appears to be a perfect example. In 1908, the Court of Appeals of New York had reaffirmed the long-established rule that a consumer cannot recover against the manufacturer of the product for negligence. Not long thereafter, the lawyer for MacPherson, who had been injured while driving a car with a defective wheel, sued the Buick Motor Company for negligent manufacture. Surely, MacPherson’s case was one of those that Cardozo called “predetermined.” The result of MacPherson’s appeal, however, was Cardozo’s most celebrated torts opinion, reversing established law and demonstrating the innovative decisionmaking for which he is so highly regarded.

As Professor Grant Gilmore observed, the MacPherson decision “imposed liability on [a defendant] who would almost certainly…not have been liable if anyone but Cardozo had been stating and analyzing the prior case law.” At the time of filing the complaint, however, MacPherson’s lawyer could not have known that Cardozo would choose to reverse a century of unbroken precedent that had only recently been reaffirmed. Much less could he have known that Cardozo would be able to carry a majority of the court with him. Without that frivolous-appearing complaint, Cardozo could not have changed the common law of manufacturer’s liability as he did.

Even Cardozo, the great innovator, observed that “the range of free activity for judges is relatively small.” Behind every innovative judge, therefore, is a lawyer whose creative (and, arguably, frivolous) litigating opened up that small field of opportunity, and made the precedent-setting decision possible.

(Citations are in ULE (3d ed. 2004), ch. 4.)

[Brad Wendel]

MacPherson is a red herring here, since Alice's post talks about factual frivolousness. It's tempting to talk about it, since I teach it in torts, along with the line of cases beginning with Winterbottom v. Wright, and it's actually not at all clear that the plaintiff's would have been legally frivolous even under modern standards, because of the trend begun by Thomas v. Winchester and cases following it. I don't think it's right to say that Cardozo reversed existing law. Rather, he decisively went with one line of cases over the other, but the theories supporting either result (i.e. liability or non-liability for the manufacturer in the absence of privity) were present in the law at the time the lawsuit was filed.

In any event, in the context of factual frivolousness, the standard in federal court is provided by Rule 11, which requires that factual contentions have evidentiary support, or at least will have evidentiary support after a reasonable opportunity for discovery. Fed. R. Civ. P. 11(b)(3). In all of these birther lawsuits, including the one in which the attorney was held in contempt for repeated frivolous filings, there is no evidentiary support for the proposition that President Obama wasn't born in the United States. (Never mind that he didn't need to be born in the United States to be a natural-born citizen, since one of his parents was a U.S. citizen.) This isn't a case that implicates the need to preserve the capacity of the law to evolve in response to changing mores. Rather, it is a case in which there is no factual support -- none -- for the plaintiff's claim. I don't see how the idea that "the law must be stable but it cannot stand still" has anything to do with wasting the time of federal courts on factually unfounded claims.

[George Conk]

Dear colleagues:

Thanks for the interesting reactions.

Attorney Mario Apuzzo asserts in the 2d amended verified complaint that Barack Obama has not “met his burden” of showing that he is a “natural born citizen”, because it was possible, allegedly, at that time to obtain a certificate of live birth for a child born outside the United States. The contemporary Honolulu Advertiser ‘s birth announcement is not mentioned. But on this basis Apuzzo, Kerchner, et al. allege that their First Amendment rights have been violated because their petition for redress of grievances has not been decided on the merits.

Rebuttal of the conspiratorial chain of facts would be a very time consuming proposition, requiring extensive discovery, and giving credence to an inherently implausible claim that Obama was born in Kenya, and other odd theories such as that on is natural born only if both parents are born here.

District Judge Jerome Simandle, a patient man, took the obvious route of dismissing on standing grouns: the constitutional requirement of a live `case and controversy’. Since Kerchner, et al, have no claim of personal stake in the truth or falsity of the claim that Obama is not entitled to hold the Office of President, the Judge is on solid ground.

Every lawyer is chargeable with knowledge of the law of standing, particularly in the federal courts where its constitutional origin is in the Article III case and controversy clause. Apuzzo certainly knows that since he constructed the theory that Kerchner might be injured in the event of recall to active duty in the Navy by being subject to an order issued by someone not entitled to be Commander in Chief.

Such a hypothetical scenario is not an injury sufficiently direct to entitle one to relief. Laird v. Tatum, 408 U.S. 1, 26-27 (U.S. 1972) No such ground for relief has ever been recognized by any federal court, as they have long required that a litigant have “ sustained or is immediately in danger of sustaining a direct injury as the result of that action . . . ." Ex parte Levitt, 302 U.S. 633, 634 (1937).

Even those under military surveillance for lawful civilian political activity were held in Laird v. Tatum to have no standing to seek a remedy for what they saw as the “chilling effect” on speech due to garrison state methods. And that was during an era when the sitting President had demonstrated a willingness to use the ordinary mechanisms of government to reward friends and to punish enemies.

Although I agree that the right to petition for redress of grievances is an under-recognized foundation for the openness of courts, and that factual assertions are a weaker ground for discipline (because of the right to develop and discover facts in litigation), neither of those overcomes the legal fact that such claims of injury as Apuzzo has asserted for Kerchner have been given no recognition in law.

Apuzzo and Kerchner have a right to rant under the First Amendment. But the right to sue requires a good faith argument that one has a case or controversy. I don’t believe that Apuzzo’s “standing” argument is one that a competent lawyer could reasonably hold in good faith after a reasonably thorough and diligent investigation of the law. - GWC

[Brad Wendel]

For the reference of others who may be following the birther lawyers story, in addition to the lawsuit mentioned by George Conk here, another lawyer, Orly Taitz, has gotten into trouble for frivolous filings in connection with birther claims. A reporter-blogger at Talking Points Memo has been following the story, and there are extensive links (including the judge's opinions) in these posts:

http://tpmmuckraker.talkingpointsmemo.com/2009/10/birther_orly_taitz_responds_to_judges_20k_fine_sho.php

http://tpmmuckraker.talkingpointsmemo.com/2009/10/judge_dismisses_taitz_birther_suit.php

http://tpmmuckraker.talkingpointsmemo.com/2009/10/birther_taitz_alleges_judge_met_with_eric_holder.php

Googling "Taitz Talking Points Memo" will turn up many hits. This case illustrates the point I made in my previous comment about the lack of an adequate factual foundation for contentions made in court filings.

[Monroe Freedman]

Brad,
You're right, of course, about the relevance of MacPherson to the immediate issue, although not to the general topic of frivolous pleadings. And Grant Gilmore, for one, disagrees with you about whether Cardozo's opinion was important in breaking new ground in New York and elsewhere in the country. After all, it's not Thomas v. Winchester that's featured as the leading case in our casebooks.

With regard to Rule 11, my concern is that too many sanctions under Rule 11 ignore the 1st Amendment, on factually as well as legal issues. As the Supreme Court has said, a case is factually frivolous only when the “factual contentions are clearly baseless,” such as a claim describing “fantastic or delusional scenarios.” Elaborating on that definition, the Court held that frivolousness can be found when the facts alleged “rise to the level of the irrational or the wholly incredible.” “Some improbable allegations might properly be disposed of on summary judgment,” the Court added, “but to dismiss them as frivolous without any factual development is to disregard the age-old insight that many allegations might be ‘strange, but true; for truth is always strange, Stranger than fiction.’”

I worked for Obama in a boiler room in Cleveland fielding questions from polling places. Nevertheless, I simply have no knowledge of where he was born, and I can't say that it's irrational or wholly incredible to believe that he was not born in the U.S.

[Brad Wendel]

Monroe --

I'll see your Grant Gilmore and raise you Edward Levi, whose great Introductiion to Legal Reasoning begins with a masterly analysis of the cases preceding MacPherson. It's true that Thomas v. Winchester isn't in our torts casebooks, but the value of MacPherson (pedagogically, at least) is that reading MacPherson allows the students to see the ways a line of cases can develop factually and culminate in a new and distinctive legal principle that nevertheless can be seen as firmly rooted in the original precedent. The cases between Thomas and MacPherson, involving the scaffolding and the coffee urn, apply the "inherent dangerousness" principle in ways that foreshadow MacPherson. I really do think it's an overstatement to see MacPherson as a huge turning point in the law, as opposed to a decision which consolidated a developing line of authority in a useful way.

As for the First Amendment, I would respond with a time, place, manner argument: The right to freedom of speech, freedom of the press, and to petition the government for the redress of grievances can be limited in ways that take account of the government's limited resources and need for efficiency, finality, and accuracy. Some petitions for redress of grievances can legitimately be brought as lawsuits in federal court. Others are limited by jurisdictional doctrines such as standing, ripeness, mootness, abstention, political-question, and so on. Your First Amendment argument against Rule 11 would seem to apply with equal force to these doctrines as well.

I agree that there are cases in which truth is stranger than fiction, but the test is not what any individual citizen happens to know. In the absence of any information one way or the other, I also have no idea whether Obama was born in Hawaii, or Kenya, or on the planet Krypton. But my knowledge isn't the standard -- it is whether a reasonable lawyer would believe that the claims are well founded, and federal courts (including the Supreme Court) have consistently held that there is an affirmative duty to investigate before filing a lawsuit. (There are numerous citations on p. 669 of the 4th edition of Hazard, et al.). Of course, some claims may have an adequate factual foundation only after a reasonable opportunity for discovery, and Rule 11 provides for discovery procedure by permitting an initial filing but recognizing an ongoing duty to supplement filings if further investigation reveals that they were not adequately grounded in fact. Even if a lawyer believes that some further discovery will be necessary, however, there is still an initial requirement of reasonable initial factual investigation.

This whole "birther" thing has been so exhaustively debunked that the only way to believe that there is adequate factual grounding for a lawsuit on that basis would be to entertain a vast conspiracy theory. I can't help quoting Annie Hall at this point:

Allison: So what are you saying, that everyone on the Warren Commission is in on the conspiracy?

Alvy: Well, why not?

Allison: Earl Warren?

Alvy: Honey, I don't know Earl Warren.

Allison: Lyndon Johnson?

Alvy: Lyndon Johnson is a politician. You know the ethics these guys have. It's a notch below child molester.

Allison: Then everyone's in on the conspiracy? The FBI, and the CIA, and J. Edgar Hoover, and oil companies, and the Pentagon, and the men's room attendant at the White House?

Alvy: I'd leave out the men's room attendant.

The point is, (1) the birther kooks require reasoning that is just this convoluted as "support" for their claims, and (2) it's not objectively reasonable to believe this sort of thing, and (3) a court can require a standard of objective reasonableness in pleading without violating the First Amendment.

-- Brad

[Alice Woolley]

Brad and George,

I'm willing to concede (since I don't know enough to argue it, and it sets up my point to concede it) that the case is factually and legally frivolous. But what is the effect of a lawyer suppressing this action. It saves court resources, and ensures lawyers are fostering legality, which in normal circumstances is a good thing. But this isn't normal circumstances, or a normal issue.

Let's say I'm a lawyer in NJ who is a huge Obama supporter. And, weirdly, a birther conspiracy theorist comes to my office and seeks to retain me to represent her. She has no better argument than the clients here, with issues with standing and with the factual validity of the claim. Couldn't I reasonably say, "It's true that I think this is an unmeritorious case. But these birther theories are out there, and they just get wilder and more outlandish by the minute. It's destabilizing and not in the public interest for that to be the case. If I go ahead, and make the best possible case for the conspiracy, and a judge throws it out, national stability - which arguably underlies legality in a functional sense - will in fact be fostered".

I don't think this argument is a general defence to a claim of frivolousness as Monroe is trying to maintain, but it to me complicates the issue in a case like this one.

Alice

[Brad Wendel]

Re Alice's point, I can see that this is a good, but it's kind of a collateral good, merely incidental to the primary purpose of litigation, which is to resolve disputes on the merits. Yes, there can be an expressive function to court judgments, as well as informational benefits. I can see how it could be a good thing to have a big public declaration that these birther folks are wackadoos and there is no credible evidence to support their claims. (I ordinarily deplore the practice of reporting the identity of the president who appointed federal judges, but in this case it helps that the judge in the Orly Taitz case was appointed by George W. Bush.) The question is whether this effect can be used as an excuse for a Rule 11 violation. The rule somewhere (I don't have it in front of me) says a lawyer must certify that a filing is not being presented for any improper purpose. I'm not sure filing a meritless claim becomes not-improper just because it will have the effect of educating the public. It's still a commitment of scarce judicial resources that could be used for other cases much closer to the core mission of adjudicating disputes on the merits.

Still, an interesting point I hadn't thought about in connection with Rule 11.

Brad

[Monroe Freedman]

I had intended to concede the argument to Brad. However, the point that Alice makes and that Brad seems to accept is that there is indeed a social good in giving people -- even people with highly questionable factual claims -- their day in court. And I question how much of judicial resources would actually be devoted to such relatively rare cases; at least we would not have the satellite litigation over frivolousness and sanctions.

[Brad Wendel]

I was a bit wishy-washy, but Monroe has rightly asked me to fish or cut bait on the "improper purpose" (Fed. R. Civ. P. 11(b)(1)) question. I don't have a case in front of me specifically holding this, but from reading a bunch of Rule 11 cases, I think it's a fair statement of the law that the various goods and bads to be balanced by the rule are internal to the specific case or controversy in question. (That's also in keeping with general principles of federal jurisdiction.) In other words, while there's a lot of talk in cases about not limiting the law's capacity for growth and change, the focus is really on the rights of a particular represented litigant. The concern is with the potential Mr. MacPherson whose claim might not be brought because lawyers were overdeterred by the threat of imposition of sanctions. The concern is not, however, with interests of non-parties who might benefit from a change in the law some day. This sounds like a hairsplitting distinction, but I think it comports with general Article III principles. The concern in general is with the rights of parties, not nonparties. Thus, in response to Alice's hypo, I'm going to have to commit to the position that it would be an "improper purpose" to demonstrate very publicly that these birther litigants are loony-tunes.