# Amicus Curiae Brief — Phillips v. Washington Legal Foundation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0064%3A22 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1998 - **Citation:** 524 U.S. 156 ## Text _ | Bite (00) oct wo wet No. 96-1578 In The Supreme Court of the United States October Term, 1997 + HON. THOMAS R. PHILLIPS, et al., Petitioners, WASHINGTON LEGAL FOUNDATION, et al., Respondents. > On Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit ¢ BRIEF OF THE ASSOCIATION FOR OBJECTIVE LAW AS AMICUS CURIAE SUPPORTING RESPONDENTS 7 STEPHEN PLAFKER 1538 Marion Drive Glendale, CA 91205-3721 (818) 956-3288 Attorney for Amicus Curiae COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 TABLE OF CONTENTS INTEREST OF AMICUS CURIAE SUMMARY OF ARGUMENT ARGUMENT A. Summary of the Texas IOLTA Program B. The Importance of Property Rights CONCLUSION ... TABLE OF AUTHORITIES Page Cases Andrus v. Allard, 444 U.S. 51 (1979) ..............4.. 12 Bayard v. Singleton, 1 Martin 42 (N.C. 1797).......... i) Berman v. Parker, 348 U.S. 26 (1954) ..............05- 12 Citizens’ Savings & Loan Association v. Topeka, 20 Wall. (67 US.) GBS (167)... .ctcuesssconnneseaaee 14 City of Oakland v. Oakland Raiders, 32 Cal.3d 60, 183 Cal.Rptr. 673, 646 P.2d 835 (1982).............00- 12 Edwards v. California, 314 U.S. 160 (1941)............. 6 Everson v. Board of Education, 330 U.S. 1 (1947)....... 4 Grand Rapids School District v. Ball, 473 U.S. 373 th.) rrr 4 Griswold v. Connecticut, 381 U.S. 479 (1965)........... 6 Grosjean v. American Press Co., 297 U.S. 233 (1936) ..... 5 Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (| 12 Liggett & Myers Tobacco Company v. United States, 274 US. 215 (1987) ..0000000800000nn eee 12 Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (2974) . 0. ccccceceseesedene bneebee enn ain 5 New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ..... 5 Pierce v. Society of Sisters, 268 U.S. 510 (1925)......... 5 PruneYard Shopping Center v. Robins, 447 U.S. 74 (UDBG) . . 000000 e0 0 69 56.be nme si einme sme nnenennnn 5 s~-— —EE TABLE OF AUTHORITIES — Continued Page West Virginia State Board of Education v. Barnette, iene ak ines wonsecnsese ce ses 5 Wooley v. Maynard, 430 U.S. 705 (1977)............... 5 State Rutes Rules Governing the Operation of the Texas Equal Access to Justice Program, Rule 15 ................ 3 Booxs Charles Francis Adams (ed.), The Works of John Adams, Second President of the United States ENE ENS TST EUEPPOTCEPPELELE TTT TET 8 William Blackstone, Commentaries on the Laws of SEE GUE esc svcccccccsccccccocccssscsccccccess 7 Henry Steele Commager, Documents of American BOUT OP BOO CURED ec ccc cccccccscccccccccsccccess 5 Harold Holzer (ed.), The Lincoln-Douglas Debates CSR c heb edabeonédcensepesdtccccccccces ) John Locke, The Second Treatise of Government ECU RewetembGededtceccececccccesccccces 7 Ayn Rand, The Virtue of Selfishness (1964).......... 9, 13 Ayn Rand, Atlas Shrugged (2985) .............. 6, 13, 14 Joseph Story, Story’s Commentaries on the Constitu- tion of the United States (1833) ...........----+5005- 4 iv TABLE OF AUTHORITIES - Continued Page MISCELLANEOUS Brief of Conference of Chief Justices ................. 3 Potisomenn’ Debed. ..cccccccscvcscccscvcesscosccenssss 10 Movie, It’s a Wonderful Life.............----++0e00005 10 Declaration of Independence ............ 66660-00000 13 Note, Constitutional Law — Use of the Police Power for the Attainment of Aesthetic Considerations, 33 N. Cas. L. Row. GBF (ISGBD. 2. cccccccccccccsccccccesss 12 INTEREST OF AMICUS CURIAE! THE ASSOCIATION FOR OBJECTIVE LAW (TAFOL) is a Missouri non-profit corporation whose purpose is to advance Objectivism, the philosophy of Ayn Rand, as the basis of a proper legal system. TAFOL’s supporters are lawyers, law students and others, some residing in Texas, who subscribe to Ayn Rand’s philosophy and who would suffer harm should this Court reverse the decision of the court below. The non-lawyers are clients and potential clients of lawyers. In the ordinary course of events, their lawyers would hold some of their money in a trust account. Under IOLTA, the proceeds of this money would be used for programs which work against their self- interest. The lawyer supporters would be conscripted to assist in what amounts to theft of their clients’ property. ° SUMMARY OF ARGUMENT TAFOL’s opposition to the IOLTA program is based on Ayn Rand's political principles which are, of necessity, ! All parties to the within action have consented to the filing of the brief, and letters containing these consents have been filed with the Clerk of this Court. No counsel for any party to the within action has authored this brief in whole or in part. Respondent, Michael J]. Mazzone, is president of amicus curiae, The Association for Objective Law; he provided criticism and editorial comments of drafts of the brief. The Association for Objective Law has borne all costs of preparation and submission of this brief; there have been no monetary contributions in connection with the preparation of this brief from any party to this case or from any other person or entity. based on her metaphysics, epistemology and ethics. The basis of her ethical theory is rational self-interest. Its economic-political consequence is laissez-faire capitalism. Each individual has the absolute right to his own life. This necessitates control over his property without inter- ference so long as he does not violate anyone else's rights. The sole function of government is to protect all rights, especially the right of property. The IOLTA program is based on the opposite moral premise: that man is obligated to serve others. The politi- cal consequence of this premise is that one may be forced to support others. Many, if not most, of the suits sup- ported by IOLTA money are directed at enforcement of what are euphemistically called “entitlements,” i.e., forc- ing those who have money to support those who do not, IOLTA is a program that violates rights; it is a reversal of the proper function of government. It will be shown by quotations from English and American intellectual leaders throughout the years that the American system of government is implicitly based on Objectivist principles. Because the IOLTA program conflicts with these principles, it cannot be upheld. 7 ARGUMENT A. Summary of the Texas IOLTA Program William R. Summers is a businessman who regularly hires lawyers to represent him. As a condition of their representation, these lawyers require him to advance retainer fees which are held in trust accounts. In addition to retainer fees, these accounts typically contain clients’ money held for investment purposes and money held pending distribution. The law at issue in this case requires that the money in these accounts be made available to earn interest to provide legal services to low-income persons. Typical of the uses of the money are suits to secure entitlement to benefits such as, but not limited to, social security, aid to families with dependent children, food stamps, special educa- tion for the handicapped, Medicare, Medicaid, subsidized or public housing, or other eco- nomic, shelter or medical benefits provided directly to indigent individuals. Rules Governing the Operation of the Texas Equal Access to Justice Program, Rule 15, J.A. 118-119. No one ever asked Mr. Summers whether he wanted his money to be used to generate income to support these suits. When he complained, he found the chief justice of every state in the country declaring his claim of owner- ship a “fantasy,” sneering at his money as “paltry,” refer- ring to him as “silly.”? His lawyers were not given the freedom to determine how their accounts were to be used, nor whether they were willing to keep records for the benefit of the favored. Nor were the bankers asked whether giving the interest, and keeping the records, is economical. The IOLTA program thus takes proceeds of the efforts of Mr. Summers, and of others in positions similar to him. It conscripts the efforts and resources of lawyers 2 Brief of Conference of Chief Justices 8, 12. and banks, making them aiders and abetters in the confis- cation of their clients’ money. B. The Importance of Property Rights The fundamental problem with the IOLTA program is its ethical premise: that man has an obligation to serve others. The political consequence of this premise is that the state of Texas may declare that, unless Mr. Summers chooses to forego effective legal representation, he must put his funds at the disposal of the state. His own con- cerns are unimportant. The alternative moral basis is the ethics of rational self-interest. Each individual has a moral right to his own life. He decides how he is to expend his efforts and how the results of these efforts are to be used. The political consequence of this ethical theory is a limited govern- ment whose sole function is to secure liberty. The right to property is central to the implementation of this function. To the extent a man is forced to let someone else use his belongings, he is not free. Consider the following examples:* e The prohibition of an established religion is essentially a rule that the state may not take one’s property to support religion. Grand Rapids School District v. Ball, 473 U.S. 373, 385, 392 (1985); Everson v. Board of Education, 3 The cases in the following list are cited, not as authority, but as illustrations of the statements with which they are associated. 5 330 U.S. 1, 11-12, 16 (1947); Virginia Statute of Religious Liberty (1786), Henry Steele Com- mager, Documents of American History to 1898 (1963) 125. The free exercise of religion requires the abil- ity to construct and control buildings and to profit from business relationships. Pierce v. Society of Sisters, 268 U.S. 510, 532, 534, 535 (1925). Without complete control over property, every businessman serving the public can be, and many are, forced to support views to which he is opposed, despite the rule of West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), Wooley v. Maynard, 430 U.S. 705 (1977), and Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). Prune Yard Shopping Center v. Robins, 447 U.S. 74, 85 et seq. (1980). Freedom of the press requires control over printing presses, buildings to house them, newsprint, trucks, and money (Grosjean v. American Press Co., 297 U.S. 233 (1936)) as well as confidence that the proceeds of the sales of newspapers will not be taken because of disagreements with what is pub- lished (New York Times Co. v. Sullivan, 376 U.S. 254 (1964)). No one can sit alone in his own house and peacefully read pornography without the ability to lock the doors against those who disapprove. Stanley v. Georgia, 394 U.S. 557 (1969). The protection of the “intimate relation of husband and wife and their physician's role in one aspect of that relation” (Griswold v. The right of property is one of the foundations of the Connecticut, 381 U.S. 479, 482 (1965)) con- United States. Its importance was stated by the nation’s cerns nothing more than the ability to intellectual grandfather: exchange money for physical items. The great and chief end, therefore, of men’s ¢ To travel from place to place, one must have f uniting into commonwealths and putting them- control over an automobile and money to selves under government is the preservation of buy gasoline, to maintain the automobile, their property. and to buy food and shelter on the way. ; Edwards v. California, 314 US. 160 (1941). ngs cas The Second Treatise of Government (1952) 71 physical objects — the right to exclude others from one’s , So great moreover is the regard of the law property — is the essence of property rights. In each case, for private property, that it will not authorize this Court was asked to protect an intellectual or abstract the least violation of it; no, not even for the right. (Sometimes the request was successful, sometimes good of the whole community. If a new road, for not.) In fact, each of these claims was a demand for instance, were to be made through the grounds _ of a private person, it might perhaps be exten- sively beneficial to the public; but the law per- mits no man, or set of men, to do this without Just as man can’t exist without his body, so consent of the owner of the land. In vain may it no rights can exist without the right to translate ni ey “% a ay of Oe ~ cay i ought one’s rights into reality — to think, to work and 7 a st dap thre a aan ees ance re eee, ee ee any public tribunal, to be the judge ofthis com <<: 3 Pale « mon g , and to decide whether it expe- par ay eye od Byoseg a with dient or no. Besides, the public good is in ie woe eee Se oes nothing more essentially interested, than in the protection of every individual’s private rights, as modelled by the municipal law. undisturbed control over property. This control is neces- sary for the free exercise of any human activity: The source of property rights is the law of causality. All property and all forms of wealth are produced by man’s mind and labor. As you 1 William Blackstone, Commentaries on the Laws of England cannot have effects without causes, so you can- (1979) *135.4 not have wealth without its source: without intelligence. 4 Blackstone continues with the observation that the state Ayn Rand, Atlas Shrugged (1985) 1062. does condemn property. “[A]nd even this is an exertion of Its importance was understood by the Founding Fathers: [T]he original meaning of the word republic could be no other than a government in which the property of the people predominated and governed; and it had more relation to property than liberty. It signified a government, in which the property of the public, or people, and of every one of them, was secured and protected by law. This idea, indeed, implied liberty; because property cannot be secure unless the man be at liberty to acquire, use, or part with it, at his discretion, and unless he have his per- sonal liberty of life and limb, motion and rest, for that purpose. John Adams, Defence of the Constitutions of Government of the United States in 5 Charles Francis Adams (ed.), The Works of John Adams, Second President of the United States (1851) 454. Its importance was understood by early courts: The Court made a few observations on our constitution and system of government... . That by the constitution every citizen had undoubtedly a right to a decision of his prop- erty by a trial by jury. For that if the Legislature could take away this right and require him to stand condemned in his property without a trial, it might with as much authority require his life to be taken away without a trial by jury, and that he should stand condemned to die, without the formality of any trial at all: that if the mem- bers of the General Assembly could do this, they power, which the legislature indulges with caution, and which nothing but the legislature can perform.” 9 might with equal authority, not only render themselves the Legislators of the State for life, without any further election of the people, but from thence transmit the dignity and authority of legislation down to their heirs male forever. Bayard v. Singleton, 1 Martin 42, 45 (N.C. 1797). Its importance was stated in early treatises: [Protection of private property] is founded on natural equity, and is laid down by jurists as a principle of universal law. Indeed, in a free gov- ernment, almost all other rights would become utterly worthless, if the government possessed an uncontrollable power over the private for- tune of every citizen. One of the fundamental objects of every good government must be the due administration of justice; and how vain it would be to speak of such an administration, when all property is subject to the will or caprice of the legislature, and the rulers. 3 Joseph Story, Story’s Commentaries on the Constitution of the United States (1833) § 1784 (footnotes omitted). Its importance was understood by presidents: “[The principle of slavery] says you work, you toil, you earn bread, and I will eat it.” Abraham Lincoln in the last Lincoln Douglas Debate, October 15, 1858, Harold Holzer (ed.) The Lincoln-Douglas Debates (1993) 359. Its importance has been stated in a single sentence: “Without property rights, no other rights are possible.” Ayn Rand, “Man’s Rights” in The Virtue of Selfishness (1964) 94. The IOLTA program is inconsistent with support for property rights. Its defenders claim that it creates interest 10 without disturbing principal. But it is exclusive control over principal that makes interest possible. One makes interest by agreeing to relinquish, for a period of time, the right to prevent others from using his money. This is the reason that interest follows principal. This point is revealed in Petitioners’ use of a speech from the movie, It’s a Wonderful Life.> The ideal of this movie is embodied in the character of Peter Bailey, a man who owns a small town savings and loan association which he operates by lending to those in need. His life consists of sacrificing himself and his family for the bene- fit of his neighbors. When he dies, his son, George, con- tinues in his footsteps. George Bailey is the hero of the movie. As a young man, he has passionate ambitions to leave the town in which he grew up, to attend college, and to design build- ings and cities. Step by step, he sacrifices his ambitions to keep the savings and loan in business so that it can continue to lend to his neighbors. This movie views self-interest as evil. It is opposed to intelligence, common sense, ambitiousness, and success. The only successful, wealthy character is a banker who is portrayed as incredibly mean, nasty, dishonest, miser- able, and totally lacking in ethical principles. 5 “You're thinking of this place all wrong, as if I had the money back in the safe. The money’s not here. Well, your money’s in Joe’s house — that’s right next to yours — and in the Kennedy house, and Mrs. MacLain’s house, and a hundred others.” Petitioner’s Brief at 30. 11 The scene summarized by Petitioners involves George Bailey’s last sacrifice. He is just about to leave town for his honeymoon when he is interrupted with news that there is a run on his savings and loan. His neighbors, in a panic, are threatening to withdraw their money. The speech quoted by Petitioners is the beginning of his attempt to dissuade them. At first, it appears that he will fail, but he succeeds with the use of eloquence and by lending to the depositors the money he had saved for his honeymoon. The IOLTA program shares this movie's ethical prem- ises. Those who have wealth are expected to sacrifice for the benefit of those who do not. The IOLTA program, however then adds the inevitable political consequence of the ethical principle: force. Whereas George Bailey had to persuade his depositors to put their money to charitable uses, those running the IOLTA program use the power of the state. The movie’s speech as delivered by one running the IOLTA program would read: You’re thinking of this program all wrong, as if you have a right to the control of your money. Mr. Landlord, you have no choice, you must support your tenants’ suits against you. Mr. Tax- payer, you have to support lawyers’ bringing suits to force you to pay more for welfare. Mr. Voter, I know you’re opposed to racial quotas; that doesn’t matter, you have no choice; your money will go to organizations devoted to over- turning your vote in the courts. Mr. Employer, don’t you dare tell us we can’t force you to support the suit that prevents you from firing the incompetent employee - the employee whose actions will subject you to a million dol- lar harassment suit. 12 These ethical principles are behind every govern- mental program that takes from those who have and gives to those who do not. As a result of their acceptance, limitations on the powers of American state and federal governments have all but disappeared. Nothing now pre- vents any American government from taking property for any purpose. It may take real property to improve the beauty of its neighborhood: Berman v. Parker, 348 U.S. 26 (1954); Note, Constitutional Law — Use of the Police Power for the Attainment of Aesthetic Considerations, 33 N.Car. L. Rev. 482, 484 (1955). It may take tobacco products for use by soldiers: Liggett & Myers Tobacco Company v. United States, 274 U.S. 215 (1927). It may take a sports team on grounds that its citizens want to watch football: City of Oakland v. Oakland Raiders, 32 Cal.3d 60, 183 Cal.Rptr. 673, 646 P.2d 835 (1982). It may take property on grounds that the owner has more than the envious deem appropriate: Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984). It may make someone’s legally produced property sud- denly worthless: Andrus v. Allard, 444 U.S. 51 (1979). In the instant case, this Court can take the first step in restoring the government's proper functicn. To do so, one begins by examining the nature of man in civilized society: The basic social principle of the Objectivist ethics is that just as life is an end in itself, so every living human being is an end in himself, not the means to the ends or the welfare of others — and, therefore, that man must live for his own sake, neither sacrificing himself to others nor sacrificing others to himself * * * 13 Can man derive any personal benefit from living in a human society. Yes — if it is a human society. * * * The basic political principle of the Objectivist ethics is: no man may initiate the use of physical force against others. No man - or group or society or government — has the right to assume the role of a criminal and initiate the use of physical compulsion against any man. Men have the right to use physical force only in retaliation and only against those who initiate its use. Ayn Rand, “The Objectivist Ethics” in The Virtue of Selfish- ness (1964) 27, 32-33. Proper governments exist to prevent the initiation of force and to control its retaliatory use. The only proper purpose of a government is to protect man’s rights, which means: to protect him from physical violence. A proper govern- ment is only a policeman, acting as an agent of man’s self-defense, and, as such, may resort to force only against those who start the use of force. The only proper functions of government are: the police, to protect you from criminals; the army, to protect you from foreign invaders; and the courts, to protect your property and contracts from breach or fraud by others, to settle disputes by rational rules, according to objective law. Ayn Rand, Ailas Shrugged (1985) 1062-3. In the words of the Declaration of Independence, “to secure these rights, Governments are instituted among ” men. 14 15 The IOLTA program is an example of government CONCLUSION acting against its essential purpose, initiating force rather For the reasons stated above, the judgment of the than preventing it. Mr. Summers, and those like him, are ' Court of A Is should i forced to use their property for purposes which they do ppeals should be affirmed Respectfully submitted, not support. But a government that initiates the employment STEPHEN PLAFKER of force against men who had forced no one, the jen Marion Drive employment of armed compulsion against dis- | aaa aie — 91205-3721 armed victims, is a nightmare infernal machine | designed to annihilate morality: such a govern- | ment reverses its only moral purpose and | switches from the role of protector to the role of man’s deadliest enemy, from the role of police- | man to the role of a criminal vested with the ) right to the wielding of violence against victims deprived of the right of self-defense. Ayn Rand, Atlas Shrugged (1985) 1063. In the past, this Court disapproved of depredations of the government upon property: To lay with one hand the power of the govern- ment on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private for- tunes, is none the less a robbery because it is done under the forms of law and is called taxa- | tion. | Citizens’ Savings & Loan Association v. Topeka, 20 Wall. (87 U.S.) 655, 664 (1874). The Court should return to this approach. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0064%3A22. Public record. Not legal advice.