December 16, 2008

Invoke Rule Eleven On The Thomas More Law Center

The closest thing that exists in the world of litigation to a rule or statute banning the filing of frivolous lawsuits is Federal Rule of Civil Procedure 11.

The reason that "frivolous lawsuits" are not banned is because that concept is, faced with critical analysis, quite difficult to define and chilling to the Constitutional right of citizens and companies to use the courts to redress their grievances. Many people think, for instance, that the "McDonald's Hot Coffee Lawsuit" is a frivolous lawsuit -- but they haven't bothered to check out what the plaintiff had to say for herself before pronouncing that judgment. You might still side with McDonald's after reading those facts, but any reasonable person hearing the other side of the story would agree that there was something to the claim even if it should have been a loser.

But a lawsuit must still have some merit, as set forth in Federal Rule of Civil Procedure 11(b):
By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it — an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
If you violate this rule, you get one shot to explain yourself to an angry, impatient, and skeptical Federal judge who already thinks you broke the rule about why you didn't. If you fail in this endeavor, you will have to pay a substantial monetary sanction to the court and to the other side in your case. One joke I make to my attorney friends when we discuss how we occasionally have to make arguments that are out of the box is, "Hey, I've been practicing fifteen years and I still haven't had to pay any Rule 11 sanctions!"

I do not believe that attorneys associated with the Thomas More Law Center will be able to make similar jokes in the near future.

The reason I say that is the newly-filed lawsuit of Murray v. Paulson, filed by the Thomas More Law Center, a non-profit law firm and bastion of conservative culture warriors. Although TMLC bills itself as "The Sword and Shield for People of Faith," I would note that it should more properly adopt the motto "The Sword and Shield for People of Christian Faith,"* as this bigoted, misguided, ill-informed, and ultimately sanctionable lawsuit amply demonstrates.

Murray v. Paulson concerns itself with part of the $40 billion that Congress and the President so unwisely have issued in devalued currency to prop up American Insurance Group (AIG). So far, so good. But the objection is not that this is an ill-considered, counter-effective, damage-prolonging, deficit-busting, corporate-welfare boondoggle. Doing so would obviously run afoul of the ban on taxpayer lawsuits and the principles of comity and separation of powers that prevent courts from second-guessing Congress and the President in making budgetary decisions. Indeed, Murray hardly objects to the basic idea behind the Emergency Economic Stabilization Act of 2008 at all.

Instead, here's what TMLC found to object to:
1. This civil rights action challenges that portion of the “Emergency Economic Stabilization Act of 2008” (or “Act”) (12 U.S.C. § 5201 et seq.) enacted by the United States Congress pursuant to Congress’ taxing and spending power that appropriated $40 billion in taxpayer money to fund and financially support the United States government’s majority ownership interest in American International Group, Inc. (“AIG”), which engages in Shariah-based Islamic religious activities that are anti-Christian, anti-Jewish, and anti-American. The use of these taxpayer funds to approve, promote, endorse, support, and fund these Shariah-based Islamic religious activities violates the Establishment Clause of the First Amendment to the United States Constitution.

2.This action also challenges the United States government’s broad policy and practice of approving, endorsing, promoting, funding, and supporting Shariah-compliant financial products and business plans, such as Takaful Insurance. This governmental policy and practice conveys a message of endorsement and promotion of Shariah-based Islam and its religious beliefs and an accompanying message of disfavor of and hostility toward Christianity and Judaism and their religious beliefs in violation of the Establishment Clause.

3. As our history reveals, this Nation was founded upon values that acknowledge the importance of religion, respect for the right of conscience, and respect for the free exercise of religion. These values, which are Christian values, are enshrined in the religion clauses of the First Amendment.

4. The Shariah-based Islamic religious practices and activities that the government-owned AIG engages in—activities that are funded and financially supported by American taxpayers,including Plaintiff, who is forced to contribute to them—are antithetical to our Nation’s values, customs, and traditions with regard to religious liberty, religious tolerance, and the proscriptions of the First Amendment. These government-funded activities not only convey a message of disfavor of and hostility toward Christians, Jews, and those who do not follow or abide by Islamic law based on the Quran or the teachings of the Prophet Mohammed, but they also embody actual commercial practices which are pervasively sectarian and which disfavor Christians, Jews, and other “infidels,” including Americans.

5. The Act and the policies, practices, and actions of Defendants with regard to Shariah-compliant finance as set forth in this Complaint send a message to those who are non-adherents to Shariah-based Islam that they are outsiders, not full members of the political community, and an accompanying message to those who are adherents to Shariah-based Islam that they are insiders, favored members of the political community.
Oh, well, I take it back. I guess it is a taxpayer standing lawsuit.

Now, bear in mind that they lose for that reason alone. As taxpayers, we cannot object to the government spending our tax dollars. That's what we elect the government to do. The taxpayer's remedy is to vote for different public officials who will make different decisions in the future.

But more to the point is the overt anti-Islamicism readily apparent in the pleadings. Any mention of or accommodation to Islam is "anti-American" and therefore unconstitutional. Christianity, enjoying special status in the First Amendment, is different -- it is apparently entitled to special treatment from the government.

Are these guys reading the same First Amendment that I am? Because my copy of it reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
I don't see any particular religion named or singled out for special treatment here -- either favorable or unfavorable.

The lawsuit does not challenge the AIG subsidy itself, but rather complains that by assuming operational control of AIG, and tolerating the Islamic-friendly investment and insurance products offered by one of the several hundred AIG companies, the government is endorsing, ratifying, and promoting Islam, and criticizing and attacking Christianity.

Does anyone really think that? Really? That doesn't even pass the giggle test.

And why, can you explain to me, does the logic of paragraph 5 not apply to displays of Christian religious symbology on governmental buildings -- like, for instance, a Nativity scene on the lawn of City Hall? Does that not "send a message to those who are non-adherents to [Christianity] that they are outsiders, not full members of the political community" and also send "an accompanying message to those who are adherents to [Christianity] that they are insiders, favored members of the political community"?

Now, I'll grant that the government owning and operating an insurance company is inherently problematic for a lot of reasons. But this is not one of them. Given that the government is going to be involved in this activity at all, the government has to do commercially reasonable things with the asset that it now controls. That means selling products that cater to specific niches in the market. Like Muslims. Or Jews. Or Christians.

But TMLC has no apparent objection to financial products and services like this, but they do have an objection to the functionally identical product being offered to Muslims. In fact, a Christian-friendly investment vehicle will buy and sell functionally the same sorts of stocks and other securities that a Muslim-friendly investment vehicle will -- it will refrain from investing in alcohol manufacturers, purveyors of sexually explicit magazines, maybe tobacco companies, and (hopefully) companies that capitalize on slave or child labor.

Well, what's wrong with that? Why would a good Christian object to those sorts of things?†

Well, for starters, it acknowledges the tolerated existence of Islam within America, as if Islam were inherently any worse than any other religion, and provides something to accommodate Muslim customers of the now government-run insurance and financial firm that faces such difficult monetary challenges in these troubled times who take the ethical and religious restrictions of their religion seriously -- in other words, it enables Muslims to practice Islam in a meaningful way.

Bear in mind, I think Islam is every bit as full of nonsense, contradictions, antiscience, and outright moral danger as Christianity. So my only problem with the government continuing to offer a product like this is that AIG was not doing such a great job on its own before the government took over, so for the government to simply continue AIG's former policies blindly may not be such a swift idea. I'd hope that the managers sent in by Secretary Paulson are trying to shake things up a little bit. Maybe this product doesn't attract enough investors or provide sufficient return on investment to generate profit. I don't know. But if it is a profitable product, then AIG should keep on selling it whether the government is on the Board of Directors or not.

Bear in mind, to call someone "Muslim" is to say virtually nothing about their moral worth. Sharia is not inherently evil; many Muslim legal and religious teachings are objectively quite praiseworthy. Evil is done in the name of Sharia, to be sure. But good is done in the name of Sharia at least as often. Other parts of Sharia are subject to reasonable debate between enlightened and well-meaning people about their moral worth. Still other parts of Sharia are indeed questionable, but every religion suffers from questionable passages in their holy works. Consider, for instance, Exodus 34:11-14, or Deuteronomy 7:2, or Joshua 10:40, all of which glorify and provide divine sanction for acts that can only be described as genocide. So if the argument is that "Islam is an immoral religion," the Judeo-Christians out there should not be throwing any stones.

Regardless, I can think of no credible argument that the First Amendment embodies "Christian" principles. The Bible teaches government by autocracy and theocracy; democracy is virtually unknown as a governmental device anywhere in the Bible. Jesus explicitly commands his followers to submit to military dictatorship in Mark 12:17.

Christianity, at least as manifested by TMLC's own pleadings, appears to be remarkably intolerant (again, see Exodus 34:11-14 for an expression of Judeo-Christian tolerance) and the First Amendment is among the most powerful injunctions to religious tolerance in Anglo-American law. Nor would I list "tolerance of other religions" as a Christian virtue.

(Religious tolerance is hardly an Islamic virtue, either. In many parts of the world, being anything but a Muslim is a good way to get yourself quite dead. I'm not arguing that Islam is, in practice, any better than Christianity when it comes to tolerance. But the U.S. Constitution is a religiously tolerant document and the government it creates is, in practice, generally pretty religiously tolerant, which is one reason why I'm such a fan of it. And I'm not talking about Muslim legal activists here, either.)

Now, I can think of no credible argument that the government lacks the power to take over a troubled insurance and financial services company. I can think of plenty of arguments for why it's a terrible idea to do it, but that doesn't mean the government lacks the power to make that decision in the first place.

And given that the government has taken over AIG, the government therefore also has the power to sell the same sorts of products that AIG was selling prior to the takeover. That includes investment vehicles that are tailored to be compliant with the demands of particular categories of investors, and to engage in marketing activities intended to attract investors to those products. Why? Because that's what a financial services company does.

If a bankruptcy court took over a kosher meat packer, it would find itself continuing to run and administer the day-to-day business of the meat packer, which would include observing Kosher rules about how to slaughter and bleed the animals, and hiring a rabbi to bless the meat products and certify that they were kosher. Otherwise, the products produced by the meat-packer would not be kosher and the market for those products would not buy them. This does not violate the Establishment Clause because no one could possibly confuse a receivership for permanent operation; the Court is not becoming identified with the Jewish faith by imposing the receivership. In theory, the takeover of AIG is to be an impermanent state of affairs (we'll see about that); certainly the public as a whole does not think of AIG and the U.S. Government as the same thing and the idea that the U.S. Government, which is still under the direction of President Bush, would use AIG to try to encourage people to become Muslims is to have drunk very deeply of a strong batch of Kool-Aid.

No safe harbor here. This lawsuit is bad on so many levels, it bothers me that allegedly competent attorneys put their names on it. It is bigoted against Muslims and seeks to paint all Muslims as the equivalent of the terrorists who attacked us on 9/11. It presupposes the truth of the blatantly incorrect "Christian Nation" theory of American history.‡ It blatantly asks for sympathy for the plaintiff because he is a combat veteran. And because it is so obviously wrong and incorrect, it is clearly cannon fodder in the cultural war, intended to become another brick in the wall of "the courts are anti-Christian" that the religious right seeks to build around itself as if Christians are somehow an oppressed minority in the United States.

It is in that light that I understand Murray v. Paulson -- this is grist for the mill intended to make Christians distrust the courts. Of course the courts are going to rule against these kinds of "Christian legal theories," because the theories are so very, very silly that a first-year law student wouldn't offer them without experiencing some level of humiliation.

The lawsuit fails every prong of the Rule 11(b) test:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
This lawsuit is presented for an improper purpose. It is presented to 1) effect an Establishment of religion, enshrining Christianity as the officially-favored religion of the United States and Islam as an officially-disfavored religion of the United States, and 2) to cast the judicial system of the United States into disrepute with a particular segment of the population. For that reason alone, it violates Rule 11(b).
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
No nonfrivolous legal or factual theory enshrining a special place for Christianity in the government's treatment of religion can be advanced in the face of the First Amendment. No nonfrivolous legal theory exists that Congress exceeded its authority in passing the law that led tot he takeover of AIG. Debatably, Secretary Paulson exceeded his authority in what amounts to a stock purchase of AIG rather than purchasing troubled assets out of AIG's stable, but this lawsuit does not make that contention. Because the lawsuit instead makes an incredible claim flatly contradicted by the plain language of the First Amendment, the complaint violates Rule 11(b).
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
No substantial evidentiary support exists for the risible proposition that America is a "Christian Nation" in any sense other than irrelevant demographics.‡ The Constitution is a secular document, it mentions no religion and explicitly disclaims an Establishment of an official religion. Further, no substantial evidentiary support exists or can exist for the proposition that by taking over AIG, the government is endorsing Islam. The government is trying, with debatable wisdom, to stabilize a deteriorating economy -- not to encourage people to convert to Islam. These claims are so far beyond the realm of common sense and the limits of admissible evidence that they, too, constitute a violation of Rule 11(b).

The TMLC should be ashamed of itself and should withdraw the lawsuit immediately. Failing that, the United States Attorney's office should file a Rule 12(b)(6) motion in this case and bitch-slap the TMLC into a Rule 11 hearing for tens of thousands of dollars' worth of monetary sanctions and a review of the TMLC's 501(c)(3) status.

See also more condemnations of this misuse of the civil justice system from the rightward but nonreligious side of the blogosphere at Secular Right and Volokh Conspiracy.


* In so doing, I would draw scarce objection from TMLC itself, which describes itself as "...dedicated to the defense and promotion of the religious freedom of Christians, time-honored family values, and the sanctity of human life."

† Maybe the problem is that these otherwise morally-defensible decisions about how to invest money come with an Arabic-sounding name attached to them. Perhaps all the government needs to do is have AIG rename it the "St. Thomas More Fund."

‡ Now, that's not to say that Christianity has not been of powerful cultural significance in our history. Of course it has, and many (although not all) of its influences have been positive and morally praiseworthy. It's one thing to say that historically, most Americans have been Christians. It's something else to say that the Constitution of the United States creates a Christian form of government, and it is only to that last proposition that I object.

6 comments:

David Schraub said...

I don't disagree at all that these guys should be Rule 11'd to death. Quick quibbles though:

1) There are no such thing as "Judeo-Christians". There are Christians who like cloak themselves in faux-diversity by tacking on "Judeo-" to essentially Christian political or social positions, but it is rare when any linkage to actual Jewish belief is anything more than coincidental (no Jewish group, I'm sure, would be caught dead joining this lawsuit).

2) Church/state suits often can get around the general ban on taxpayer standing through Flast v. Cohen. The Roberts court took a hatchet to Flast in the Hein case, but refused to overrule Flast, making Hein unintelligible and rendering the actual rule unclear.

stella said...
This comment has been removed by a blog administrator.
Transplanted Lawyer said...

Second comment deleted for violation of "no advertising" policy.

Joshua said...

David, the term "Judeo-Christian" is also used by some Jews and Jewish groups when they want to sound like they are part of some larger religious/moral system. And certain Jewish groups will use the term when they are trying to promote some alliance of Judaism and Christianity against all other comers. To me, Judaism seems in many ways more similar to Islam than to Christianity but that's only tangentially related.

Bunny said...

Does anyone know what has happened to this lawsuit? I cant seem to find any updates on it - was an injunction ever granted?

Transplanted Lawyer said...

Well, the District Court didn't see it the way I did and on May 26, 2009, denied the Government's motion to dismiss under Rules 12(b)(1) and 12(b)(6). That effectively immunizes TMLC from Rule 11 sanctions because at least one judge agrees that they brought a colorable claim.

From there, you'll have to go to PACER, and follow the case number (E.D. Mi. case no. 2:08-cv-15147-LPZ-MKM) to get the current status. I'd have to image there is some sort of settlement or disposition by now, and if TMLC isn't loudly crowing its victory then that means there was either an out-of-court settlement (possibly involving confidentiality) or a disposition favorable to the government. After reading the linked order on the 12(b)(6) motion, I still think the district judge got it wrong and the case falls entirely within the parameters of Hein, but I shouldn't be surprised if the courts choose to apply already-inconsistent standing rules in an inconsistent fashion.