“Birther” plaintiffs sanctioned for frivolous legal claims

September 4, 2012

Birthers sanctionsAs an attorney, losing in court is pretty disheartening.

Of course, losing isn’t a case’s worst possible outcome; being sanctioned by the court is.

This is what happened in the case of the “Birther” case I wrote about in July.

Two of the defendants in that case – the Tennessee Democratic Party and its chair Chip Forrester – filed for sanctions against the plaintiffs.

The defendants claimed that the plaintiffs’ legal claims – that President Barack Obama is ineligible to run in the 2012 election because he is not a U.S. citizen – were frivolous, and that the filing attorneys should have known that at the time of the filing.

The defendants’ motion rested on two different legal theories.

The first is Federal Rules of Civil Procedure Rule 11, which requires attorneys to certify that their court filings aren’t frivolous (i.e. are made in good faith, have legally and factually sound bases, etc).

Rule 11 allows for sanctions against an attorney if the court determines (either by another party’s motion or the court’s own initiative) that Rule 11 has been violated.

The court denied the defendants’ motion, not because the court didn’t think the plaintiffs’ claims were frivolous, but because the court determined that the defendants did not comply with Rule 11’s “safe harbor” provision.

The provision requires that a party moving for sanctions give the opposing party 21 days’ notice to give them an opportunity to remedy the deficiencies in their filing.

Although the defendants did provide 21 days’ notice to the plaintiffs, the notice was “informal” in that it was only a letter to the plaintiffs informing them of the defendants’ intention to file for sanctions.

The court ruled that the defendants should have served the actual motion on the plaintiffs 21 days before filing, which they did not.

The plaintiffs weren’t so fortunate with the defendants’ second sanctions legal theory.

That theory is based on 28 U.S.C. § 1927, which, in far less verbose terms than Rule 11, holds that frivolous filings are subject to sanctions.

The court agreed with the defendants that the plaintiffs’ complaint was based on frivolous legal theories.

However, the opinion wasn’t as politically charged as you might believe.

Just the opposite, actually: the court seemingly went out of its way to avoid making a political statement.

What gives that away?

The fact that the court found it necessary to sanction the plaintiffs based on the frivolousness of their standing claims.

What was so frivolous about these claims?

As discussed in more detail in my July post, one plaintiff essentially claimed “taxpayer standing,” two others claimed “competitive standing,” and the organization behind them claimed “associational standing.”

Although the “taxpayer standing” claim is certainly the most frivolous of the three, I have seen more frivolous claims go unsanctioned…which makes the court’s determination of the other claims as “frivolous” even more curious.

Could this just be a particularly intolerant court?


But the fact that the opinion found it necessary to explicitly “emphasize” that the court “takes no position on the relative merits of the parties’ positions” on the case’s core issues (i.e. Obama’s citizenship) would seem to suggest a different explanation.

Namely, that the court wanted to sanction as frivolous the “Birthers” claims about President Obama’s eligibility to hold office without actually taking an official stance on the matter.

Nevertheless, even though the court took “no position” on the merits of the “Birther” claims, the sanctions still serve as a strong deterrent to future “Birther” lawsuits, since virtually every other case was dismissed for lack of standing.

Whether these lawsuits are indeed deterred remains to be seen, but, then again, “Birthers” have always been quite persistent.