A quiet revolution has transformed the U.S. courts. By the end of 1992, the last two Republican presidents will have appointed more than 60 percent of the federal bench. Most Reagan-Bush appointees--many of them former corporate and government defense lawyers--are selected more for political obedience than legal skills. Clearly, with Congress controlled by Democrats, the Republicans engineered a judicial overhaul in lieu of a legislative one.
As a result, public interest litigation is on death row. Hostile legal decisions that threaten to keep the disenfranchised out of the courts have made ruins of civil rights landmarks and frightened many away entirely from challenging government and corporate abuse.
To establish this culture of fear, conservative federal judges have a procedural weapon to strike down almost any case they don't like--"Rule 11." Passed by Congress in 1938 to deter frivolous lawsuits that have no basis in law or fact, Rule 11 was amended in 1983 to encourage judges to impose huge financial sanctions on lawyers, law firms, and clients who ostensibly violate the rule.
The amended Rule 11 gives judges much greater discretion to use, and abuse, it. Judges use vague criteria to determine whether lawyers did "sufficient" research before filing a case, had "proper" motives for suing, and based their case on law and fact. In other words, lawyers who need subpoena power to develop a case, are motivated by outrage and moral courage, or challenge legal precedent are plum targets of Rule 11.
Today, Rule 11 is used as a political weapon not unlike the McCarthy witch hunts of the 1950s. Well-known public-interest organizations have already felt the sting--some of them to the death.
For instance, the Southern Justice Institute (SJI) faced $93,000 in sanctions for suing North Carolina state officials on behalf of Native Americans and African Americans who have been harassed for their political activities. The judge tacked on an extra $30,000 fine (later revoked) for talking to the press about the case. The fine, which was later reduced to $50,000, is on appeal. Meanwhile, SJI is on the verge of financial ruin.
NAACP President Julius Chambers was slapped with $93,000 in Rule 11 sanctions after he charged the U.S. military with employee discrimination at Fort Bragg, North Carolina. The Center for Constitutional Rights filed suit on behalf of Haitian refugees and now faces a $10 million bond. Former U.S. Attorney General Ramsey Clark and his partner were fined $20,000 for representing 55 Libyan citizens harmed in the 1986 air strike on Libya.
And in a Rule 11 whopper, the Christic Institute--a Washington, D.C.-based public interest law firm--was fined $1.3 million (four times their total assets) for filing a civil racketeering suit against a group of American contra supporters, Cuban refugees, and CIA associates for a 1984 bombing attack and other terrorist activities. An appellate court added approximately $400,000 to the sanctions because Christic appealed the initial decision.
Under this pressure, the Institute in May had to lay off its entire staff and close its Washington, D.C. office. Federal marshals could seize all of its property as well as its clients' bank accounts.
IF THESE RULINGS were intended as a warning to others who challenge political abuse, they have worked. For grassroots and civil rights organizations that depend on small contributions, such financial penalties can be a death blow. Most public interest lawyers can hardly afford to keep losing cases, much less get stuck with ruinous sanctions for trying. Consequently, novel litigation--particularly in environmental and political arenas--has been stunted. Victims of U.S foreign policy, including those who suffered in the Gulf war and the Panamanian invasion, can rarely find an attorney willing to face Rule 11.
Skeptics may dismiss current Rule 11 targets as expendable, politically extravagant organizations. However, these "fringe" cases merely represent the thin end of the wedge. By gaining public acceptance, and provoking professional fear, conservative judges are moving in on more mainstream targets.
Increasingly, complaints against police brutality, employee discrimination, and unlawful search and seizure are ruled "frivolous." If this trend continues unchecked, the courthouse will do little more than adjudicate among the powerful and discipline the disenfranchised.
Dan Quayle and his Council on Competitiveness are trying to blame the country's recession on an over-litigious citizenry that can't get enough of industry-bashing and leftist legal terror. Quayle is proposing a series of legal "reforms" that would further reduce the individual's bargaining power in the courtroom. Already, judges are armed to exercise the White House's conservative agenda, with little independent oversight. Congress is too busy with its own re-election, and beholden to similar financial interests, to enforce critical checks and balances. Unfortunately, the Reagan and Bush administrations have filled the federal bench with young judges ready to squash civil rights plaintiffs. However, their fangs can still be dulled.
In fact, the U.S. Judicial Conference--the regulatory body for the U.S. court--is reviewing Rule 11 this fall for possible reform. Conservatives are pressuring the conference to give judges even more discretion over so-called "frivolous" cases. The public interest bar is pushing measures that further protect civil rights litigants. The conference will eventually submit its recommendations to the Supreme Court; any final reforms would have to be approved by Congress.
Federal rules that invite personal bias, such as Rule 11, need to be restructured and returned to their original, legitimate aims. But beyond legislative change, people of conscience must wedge their way back into the public courthouse so that, at the least, a person with a legitimate, justified grievance will not be punished for seeking redress.
Karen Brown, a former staff member for the Christic Institute, was a free-lance writer and the research coordinator for the Center for the Study of Commercialism in Washington, D.C., when this article appeared.
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