Legal View: They don?t know what 'frivolous' is

By David Ziemer
The Daily Record Newswire

We all hear a lot about “frivolous lawsuits.” Obviously, there are also “frivolous defenses,” “frivolous arguments,” and, of course, “frivolous people.”

Not everyone will agree on what constitutes a frivolous lawsuit or defense. If I were to file a lawsuit challenging the authority of the federal or state government to impose a minimum wage, the progressives would probably consider that frivolous, because the courts abdicated their duty to enforce the Constitution more than 70 years ago. West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).

On the other hand, if the government were to bring an action against an employer for not paying someone the minimum wage, I would consider that frivolous. Notwithstanding the courts’ abdication of their duties, the Constitution hasn’t changed, and Adkins v. Children’s Hospital, 261 U.S. 525 (1923), which struck down a minimum wage, is just as correct today as it was then. Anyone who says otherwise simply doesn’t like the Constitution.

But to get to that part that we can all agree on — the 7th Circuit uses a seriously warped definition of “frivolous.”

Whenever the 7th Circuit uses the term, remember the words of Inigo Montoya in “The Princess Bride": “You keep using that word. I do not think       it means what you think it means.”

A friend of mine once filed a no-merit brief with the court, asking to be dismissed from her appointment to a case, because there were no non-frivolous arguments for appeal.

The court rejected the brief, and instructed her to argue X.

So, she argues X as best she can, even though she considers it a losing argument; and then when she gets to oral argument, the judges berate her for making a frivolous argument.

You people think I make this stuff up? You don’t know me very well. And you’re even less familiar with the 7th Circuit.

The problem is longstanding. Consider Turgeon v. Premark Int’l, Inc., 87 F.3d 218 (7th Cir.1996). One issue was whether Title VII’s definition of “employees” could include former employees. The court held it did not, and affirmed sanctions against the plaintiff for raising a frivolous argument.

However, there was nothing frivolous about the argument. As Judge Ilana Diamond Rovner wrote in dissent, “the issue can hardly be regarded as frivolous since the Supreme Court has recently granted certiorari to consider the circuit split [on the issue].” Turgeon, 87 F.3d at 223 (Rovner, J., concurring in part, and dissenting in part).

Little has changed over the years. Consider U.S. v. Easter, 553 F.3d 519 (7th Cir. 2009). At issue were mandatory minimum sentences in 18 U.S.C. 924(c). The plain language of the statute provides for the minimums unless the defendant is sentenced to a greater minimum sentence under some “other provision of law.”

The question was whether this meant any other statute anywhere in the U.S. Code, or only other minimum sentences that may be imposed for sec. 924(c) violations.

Even though the 2nd Circuit had adopted the former interpretation in U.S. v. Whitley, 529 F.3d 150, 158 (2d Cir. 2008), the 7th Circuit held it would be frivolous to even argue for such an interpretation.

Earlier this month, the U.S. Supreme Court affirmed that the 7th Circuit’s interpretation was correct. Abbott v. U.S., No. 09-479 (Nov. 15, 2010). (

Nevertheless, I would hope that we can all agree that, if an argument is accepted by a federal court of appeals, and the Supreme Court grants certiorari to consider the argument, it is necessarily not frivolous, regardless of how the Supreme Court ultimately rules.

In fact, I would even go so far as to posit that it is “frivolous” to argue to the contrary.