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?