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Monday, October 20, 2014

Misunderstanding Rule 11

Via Slate, the lame-duck attorney general of Arizona cited FRCP 11 sanctions as a basis for no longer defending (or appealing, although that would be covered by FRAP 38) same-sex marriage bans. The argument, it seems, is that defending the bans (or appealing) would be seen as imposing unnecessary delay or expense or as a frivolous argument not warranted by existing law. Mark Stern at Slate and Josh Blackman both see this more as a political move. I want to suggest it must be, because the argument is wrong legally.

First, FRCP 11(b)(1) only prohibits actions done for the purpose of causing delay or expense. It is surely a legitimate purpose for government to obtain a definitive and binding Supreme Court ruling on an issue of constitutional import.

Second, since SCOTUS has not spoken on the issue, it cannot be said that Arizona's constitutional arguments, even if a clear loser in the Ninth Circuit, are frivolous before SCOTUS. As Josh points out, neither SCOTUS's undoing of stays or cert. denials are binding precedent. And the state always can pose an argument for "modifying, or reversing existing law," perhaps by seeking en banc Ninth Circuit review. Or the state can skip unfriendly Ninth Circuit law by seeking cert before the court of appeals judgment. But any of those options requires that the state first defend and appeal to the Ninth Circuit. Surely FRCP 11 cannot be read to cut-off such litigation strategies.

Finally, let's be serious. When was the last time the government was sanctioned for defending the constitutional validity of one of its laws?

Posted by Howard Wasserman on October 20, 2014 at 06:07 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


The discussion suggests he isn't just making a "moral" case, but also (or perhaps mainly) doesn't want to spend a true enough pretty fruitless effort here.

Posted by: Joe | Oct 21, 2014 5:04:23 PM

He's an elected politician, if he wants to make a moral case he should make a moral case. Not hide the ball behind an extremely weak Rule 11 argument. Even if you were going to cite a rule FRAP 38 is a better choice.

Posted by: brad | Oct 21, 2014 2:14:26 PM

All of this is of course only applicable if there is a colorable argument, a good faith case to be made. You've assumed that someone could argue in good faith that the Constitution allows treating people differently, for compelling state reasons, and thereby burdening a fundamental right.

With all due empathy for past errors, I deny that in 2014 and forward anyone can thus argue in good faith.

That's because the argument for discrimination is riddled with bad faith, with religion masquerading as solicitude for tradition. Which, see Loving and Lawrence, is a terrible justification for discriminating.

Posted by: joe | Oct 21, 2014 12:33:27 PM

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