spouse in preparation of Title VII law suit, were protected by the First Amendment). This court thus concludes that the First Amendment guarantees an individual meaningful access to the adjudicatory process and protects efforts to obtain in legal representation to effectuate this access.
The weight of plaintiffs' First Amendment interests is not diminished because ionizing radiation claimants seek meaningful access to the adjudication procedures of an administrative agency. As the Supreme Court observed in California Motor Transp. Co. v. Trucking Ltd., 404 U.S. 508, 510, 30 L. Ed. 2d 642, 92 S. Ct. 609 (1972), the First Amendment protects the right to petition an administrative agency:
the same philosophy governs the approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government . . . . the right of access to the courts is indeed but one aspect of the right to petition.
The fact that plaintiffs in this case seek economic compensation from the VA for the health repercussions of exposure to ionizing radiation, rather than seeking only to make a political statement through their actions, does not deny plaintiffs First Amendment protection. See, e.g., United Mine Workers, 389 U.S. at 221-22 (First Amendment gives union right to hire attorney to assist members in processing of workers' compensation claims). Moreover, as the tremendous public interest generated by this case and the flurry of legislative activity with regard to "atomic veterans" demonstrates, the ionizing radiation claims at issue here implicate important political values. Indeed, ionizing radiation claimants have found themselves at the center of a political controversy concerning the safety of nuclear testing and weapons and the government's responsibility to provide for veterans allegedly exposed to radiation during military service.
It is also now beyond question that the First Amendment protects plaintiffs' right to pay another to assist them in effectuating their right to petition. In Meyer v. Grant, 486 U.S. 414, 100 L. Ed. 2d 425, 108 S. Ct. 1886 (1988), the Supreme Court struck down a Colorado statute prohibiting payment of initiative petition circulators, holding that the statute infringed on appellees' First Amendment right to petition the government and was not narrowly tailored to achieve the government's stated goal. The Meyer Court also rejected the argument that appellees had other effective means to disseminate their ideas, observing that "the First Amendment protects appellees' right not only to advocate their cause but also to select what they believe to be the most effective means for so doing." Meyer, 486 U.S. at 424.
If anything, plaintiffs' position is more compelling than that of appellees in Meyer. As this court's findings of fact demonstrate, retaining counsel is often plaintiffs only means of effectively pursuing their ionizing radiation claims. In such a context, there can be no doubt that plaintiffs' First Amendment right encompasses the right to pay an attorney for legal assistance and the $ 10 fee limitation trammels plaintiffs' First Amendment interests.
Restrictions on First Amendment interests pass constitutional muster only when they are narrowly tailored to serve a legitimate state interest. Riley v. National Federation of the Blind of North Carolina, 487 U.S. 781, 789, 101 L. Ed. 2d 669, 108 S. Ct. 2667 (1988). As discussed above, the Veterans' Judicial Review Act, removes the $ 10 fee limitation for many ionizing radiation claimants. As a result, the government can hardly maintain that it has a continued interest in preserving the supposed "informal" and "non-adversarial" nature of the VA adjudication process by effectively denying attorneys to those not covered by the terms of the JRA. Even assuming arguendo that the state could legitimately retain an interest in protecting those IR claimants not affected by the JRA from unscrupulous lawyers, this "paternalistic" government interest could not counterbalance the plaintiffs' First Amendment rights. In Riley, the state of North Carolina attempted to defend statutory limits on the fees of professional solicitors of charitable contributions with "the paternalistic premise that charities' speech must be regulated for their own benefit." 498 U.S. at 790. Finding this purported government interest to be unsound, the Court noted:
the First Amendment mandates that we presume that speakers, not the government, know best both what they want to say and how to say it. . . . To this end, the government, even with the purest of motives, may not substitute its judgment as to how best to speak for that of speakers and listeners . . .
Id., 487 U.S. at 709-91 (citations omitted).
Moreover, even if there were legitimate government interests at stake in this case, the fee limitation is not narrowly tailored to serve them. For example, the state's paternalistic interest in protecting IR claimants from unscrupulous attorneys would be equally served by the type of "reasonable fee" provision contained in the JRA, while at the same time allowing IR claimants the opportunity to obtain legal representation. In addition, the government might temper the formality and adversarial nature of the IR claim adjudication process by, for example, limiting the number of hearings, the length of written submissions, and the time for argument. See NARS II, 473 U.S. at 363 (Stevens, J., dissenting).
For the foregoing reasons, the court concludes that the $ 10 fee limitation violates plaintiffs' First Amendment right to free speech and to petition the government.
In light of the above findings of fact and conclusions of law, the court rules that the $ 10 fee limitation violates plaintiffs' constitutional rights under both the Fifth and First Amendments.
IT IS SO ORDERED.
MARILYN HALL PATEL
United States District Judge