WE THE PEOPLE of the State of California, hereby declare California Civil Code §391 et seq clearly violates the equal protection clause of the United States Constitution, Amendment 14, §1 and declare it to be unconstitutional, based on the following:

CONSTITUTIONALITY OF CALIFORNIA'S SO-CALLED

"VEXATIOUS LITIGANT" STATUTE, by L. Neuton

This article analyzes several issues regarding the constitutionality of California's so-called "vexatious litigant" statute (Cal.Civ.Proc.Code sec. 391 et seq).

CALIFORNIA CIVIL PROCEDURE CODE §391 ET SEQ CONFLICTS WITH THE

UNITED STATES CONSTITUTION DESPITE THE WOLFGRAM AND 

TALIAFERRO CASES

The following two California Court of Appeal cases have concluded that sec.391 is constitutional: Taliaferro v. Hoogs (1965) 236 Cal.App.2d 521 and Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43. However, they are far from conclusive. No California Supreme Court cases have analyzed the constitutionality of the vexatious litigant statutes.

Under §§ 391.7 and 391(b)(4) the name of any litigant who fails to hire a lawyer may be put on an official blacklist distributed by Judicial Council for the purpose of being barred — for life (see §391(b)(4)) — from filing any litigation (except small claims court) and to be stigmatized as a "vexatious litigant".

This can result from conduct which is not at all blameworthy — something as inconsequential as having filed one or two motion papers in a single litigation which a judge deems to be unmeritorious (see §391(b)(3)) or having been unsuccessful in five litigations in a seven year period (see §391(b)(1)) regardless of the merit of those litigations. Of course, simply losing a lawsuit says nothing about the merit of the lawsuit. Even Wolfgram (at 58) admits: “As a matter of common experience even many meritorious suits fail, due to the vagaries of the trial process if nothing else. Many more colorable suits fail, either due to pretrial disposition or failure to persuade the trier of fact.”.

The constitutionality of the 1990 amendments to the vexatious litigant statutes, was an issue of concern to the Judicial Council of California before those amendments became law:

“We have reviewed SB 2675 regarding vexatious litigants and have the following comments:

1. The definition of vexatious litigant contained in Code of Civil Procedure section 391 (b)(4) is problematic since it basically forecloses the courts from anyone once a vexatious litigant label has been affixed to the person. This does not seem desirable from anyone’s standpoint.

 2. We question whether a litigant should ever be required to post security if litigation has merit and is not filed for purposes of delay or harassment. Would such a requirement be constitutional? . . .” (March 21,1990, letter from the Legislative Office of the Courts to the office of Senator Milton Marks -- copy at ER ).

Legislative History Materials are available from California State Archives, Office of Secretary of State, Sacramento -- regarding Senate Bill No. 1179 (1963) and Senate Bill No. 2675 (1990) (both relevant to §391 et.seq.)

SECTION 391.7 ET SEQ MAY BE CHALLENGED AS AN UNCONSTITUTIONALLY OVERBROAD STATUTE

The threat of being blacklisted chills the right to petition for all California pro se litigants. In addition, regarding those already blacklisted, the prefiling order sets up a lifetime threat of punishment for exercising their First Amendment right to file a lawsuit:

“. . . Disobedience of such an order by a vexatious litigant may be punished as a contempt of court.” (§391.7(a)).

The word “punished” makes it clear that the sanction is punitive and not merely regulative. Criminal rather than civil sanctions are intended by §391.7. Where the object of the proceedings is to vindicate the dignity or authority of the court, contempt proceedings are regarded as criminal in character, even though they arise from or are ancillary to a civil action. Morelli v. Superior Court of Los Angeles County 1 Cal.3d 328,333. Under §391.7, to exercise a fundamental First Amendment right, a blacklisted person “will have to take significant and costly compliance measures or risk criminal prosecution”. See Virginia v. American Booksellers Assn. (1987) 484 U.S. 383,392-393.

Overbreadth doctrine allows a pre-enforcement challenge to §391.7 to assert the facial invalidity of the statute.

“. . . when there is a danger of chilling free speech, the concern that constitutional adjudication be avoided whenever possible may be outweighed by society’s interest in having the statute challenged. ‘Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression’” (Secretary of State of Md. v. J. H. Munson Co. (1984) 467 U.S. 947,956-7).

“Facial challenges to overly broad statutes are allowed not primarily for the benefit of the litigant, but for the benefit of society _ to prevent the statute from chilling the First Amendment rights of other parties not before the court.” (Secretary of State of Md. v. J. H. Munson Co. (1984) 467 U.S. 947 which concerns a statute similar to that in Village of Schaumburg v. Citizens for a Better Environment (1979) 444 U.S. 620).

TALIAFERRO WAS DECIDED BEFORE THE 1990 AMENDMENTS TO THE STATUTE AND BEFORE BODDIE V. CONNECTICUT QUALIFIED

 COHEN V. BENEFICIAL LOAN CORP

Taliaferro is the source case cited by later cases upholding the constitutionality of the vexatious litigant statutes. However, Taliaferro was decided before those statutes were broadened in 1990 (adding §391.7, §391(b)(3), and §391(b)(4)). The new sections completely change the nature of the statute. In any event, its analysis is flawed as shown below.

[Note: In re Whitaker (1992) 6 Cal.App.4th 54 contains no constitutional analysis. It simply states that arguments presented by Mr. Whitaker regarding the constitutionality of the vexatious litigant statutes were rejected in a previous unpublished case. Childs v. Paine Webber Inc (1994) 29 Cal.App.4th 982 also contains no constitutional analysis except for the bald statement that “The vexatious litigant statutes are constitutional” citing Whitaker.]

Taliaffero’s due process analysis relies on Beyerbach v. Juno Oil Co. (1954) 42 Cal.2d 11. Beyerbach upholds the constitutionality of §834 of the California Corporations Code,

permitting a court to require security for costs and attorneys' fees of stockholders suing on behalf of a corporation. Beyerbach, in turn, relies on Cohen v. Beneficial Loan Corp (1949) 337 U.S. 541. Cohen, like Beyerbach, concerns only that one unique type of litigation — stockholder’s derivative actions. Cohen does not deny fundamental litigation rights in all types of cases (as does §391 et seq). Cohen discusses the unique nature of the “stockholder’s derivative action”:

“The very nature of the stockholder’s derivative action makes it one in the regulation of which the legislature of a state has wide powers. . . . a stockholder who brings suit on a cause of action derived from the corporation assumes a position, not technically as a trustee perhaps, but one of a fiduciary character. He sues, not for himself alone, but as representative of a class comprising all

who are similarly situated. The interests of all in the redress of the wrongs are taken into his hands, dependent upon his diligence, wisdom and integrity. And while the stockholders have chosen the corporate director or manager, they have no such election as to a plaintiff who steps forward to represent them. He is a self-chosen representative and a volunteer champion. The Federal Constitution does not oblige the State to place its litigating and adjudicating processes at the disposal of such a representative, at least without imposing standards of responsibility, liability and accountability which it considers will protect the interest he elects himself to represent.” (Cohen at 549 — emphasis added).

In this narrow context Cohen makes the statement (at p.552), echoed by Taliaferro (and by Wolfgram (at 50)):

“A state may set the terms on which it will permit litigations in its courts.” .

Taliaferro interprets this too broadly. Moreover, Taliaferro overlooks that the statutory security requirement for shareholders’ derivative suits “applies only to actions by shareholders in the right of a corporation. It does not authorize the requiring of security from shareholders who seek to vindicate their personal rights, even though they allege facts that would also give rise to a corporate cause of action” (Hagan v. Superior Court (1960) 53 Cal.2d 498, 503 — emphasis added).

Boddie v. Connecticut (1971) 401 U.S. 371 (striking down a filing fee as applied to divorce cases brought by indigents) makes this distinction clear — and in this respect the Supreme Court departed from Cohen.

“We think Cohen v. Beneficial Loan Corp., 337 U.S. 541 (1949), has no bearing on this case. Differences between divorce actions and derivative actions aside, unlike Cohen, where we considered merely a statute on its face, the application of this statute here operates to cut off entirely access to the courts.” (Boddie at n.9).

Likewise here, §391 et seq operates to cut off entirely access to the courts. Section 391 et seq, far from being narrowly-tailored, applies to all types of litigation rather than to one unique type.

The majority opinion in Boddie focuses on the fact that the state has a monopoly on the means for legally dissolving the marriage relationship. The concurring opinion of Mr. Justice Douglas uses equal protection analysis (invidious discrimination based on poverty) to arrive at the same result. [Note: Taliaferro sidesteps the equal protection issue by viewing only the lawyer side (as litigator) rather than the client side (as litigant): “The restriction . . . to persons proceeding in propria persona is not arbitrary or unreasonable. Attorneys are governed by prescribed rules of ethics and professional conduct, . . . not applicable to litigants in propria persona.”. ]

The concurring opinion (in part) of Mr. Justice Brennan holds that the courts cannot be closed to an indigent in any kind of litigation.

“A State has an ultimate monopoly of all judicial process and attendant enforcement machinery. As a practical matter, if disputes cannot be successfully settled between the parties, the court system is usually ‘the only forum effectively empowered to settle their disputes. . . . I see no constitutional distinction between appellants’ attempt to enforce this state statutory right [divorce] and an attempt to vindicate any other right arising under federal or state law. . . .” (Boddie at 387)

“Where money determines not merely ‘the kind of trial a man gets,’ . . . but whether he gets into court at all, the great principle of equal protection becomes a mockery. A State may not make its judicial processes available to some but deny them to others simply because they cannot pay a fee.” (Boddie at 389).

Likewise, a state cannot make its judicial processes available to those who hire a lawyer but deny them to others simply because they cannot afford to hire a lawyer.

WOLFGRAM’S DUE PROCESS ANALYSIS OVERLOOKS THAT EVEN A TEMPORARY DEPRIVATION OF A PROTECTED RIGHT (THE RIGHT TO FILE A LITIGATION) IS CONSTITUTIONALLY PROHIBITED (AS IN FUENTES V. SHEVIN)

Wolfgram (at 50-55) acknowledges that the right to sue is part of the right to petition under the First Amendment to the United States Constitution.

“The right to petition encompasses the right to sue. (California Transport v. Trucking Unlimited (1972) 404 U.S. 508,510 . . . ‘The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government.’ (Chambers v. Baltimore & O.R. Co. (1907) 207 U.S. 142,148 . . . ‘[L]itigation may well be the sole practicable avenue open to a minority to petition for redress of grievances.’ (N.A.A.C.P. v. Button (1963) 371 U.S. 415, 430 . . .)” (Wolfgram at 52-53).

“[T]he First Amendment, including specifically the right to petition, is ‘incorporated’ against the states by virtue of the Fourteenth Amendment. (Hague v. C.I.O. (1939) 307 U.S. 496, 512-513 . .” (Wolfgram at 52).

Wolfgram cites City of Long Beach v. Bozek (1982) 31 Cal.3d 527 as holding that a suit against the government occupies a preferred status — and that “existing remedies” such as sanctions under section 128.5 reduce the impact of “unwarranted” and “improper” litigation without “chilling” a litigant’s rights.

Despite acknowledging “the protected nature of the right to sue” (at 54), Wolfgram (at 60)

concludes that the prefiling order of §391.7 does not violate due process because “[t]he vexatious litigant has the right to petition the presiding judge of any court for permission to file any litigation he chooses, or to employ an attorneyto file suit.”. (Wolfgram at 49). [Note: ”The vexatious litigant who employs an attorney avoids the prefiling requirements but may still have to post security. (See Camerado Ins. Agency, Inc, v. Superior Court (1993) 12 Cal.App.4th 838 . . .)” ] [Note: However, under §391.7(b), he may still have to post a security — in which case it may constitute a permanent deprivation to an indigent litigant.]

In other words, the deprivation is "only temporary".

However, Wolfgram’s reasoning ignores the line of United States Supreme Court cases starting with Sniadach v. Family Finance Corp. (1969) 395 U.S. 337; Fuentes, supra at 85; Bell v. Burson (1971) 402 U.S. 535, etc. — and California Supreme Court cases — which hold that even a temporary governmental taking of property (i.e. prior to the time of hearing) violates due process.

[Note: “The fact that the individual may later recover the property if he prevails at a post-deprivation hearing does not satisfy constitutional requirements. ‘[A] temporary, nonfinal deprivation of property is nonetheless a ‘deprivation’ in the terms of the Fourteenth Amendment, and . . . must be preceded by a fair hearing.’” (Brooks v. Small Claims Court (1973) 8 Cal.3d 661,667). Beaudreau v. Superior Co. (1975) 14 Cal.3d 448, struck down a California statute (Gov.Code §§ 947,951) requiring the filing of an undertaking by a plaintiff in an action against a public entity or public employee].

The lifetime loss of the right to file meritorious litigation (not yet in existence at the time of the §391.7 hearing) — without first obtaining permission of a presiding judge — is an unconstitutional temporary taking of property.

“This Court has not . . . embraced the general proposition that a wrong may be done if it can be undone.” (Stanley v. Illinois (1972) 405 U.S. 645,647).

THE EXCLUSION OF BLAMEWORTHINESS FROM CONSIDERATION AT THE §391.2-, OR §391.7-, HEARING IS CONTRARY TO THE RULE OF BELL V. BURSON

Bell v. Burson (1971) 402 U.S. 535 struck down a Georgia statute which provided for suspending the drivers license of an uninsured motorist involved in an accident unless he posts security. The hearing conducted prior to the suspension excludes consideration of the motorist’s fault or liability for the accident. Just as “‘fault’ or ‘innocence’ are completely irrelevant factors” in a hearing under the unconstitutional Georgia statute, so too are “blameworthiness”, “bad faith”, and true “vexatiousness”, irrelevant factors in a hearing under §391.2 or §391.7.

Even the right to drive (which is a “privilege” rather than a “right”) cannot constitutionally be suspended “without that procedural due process required by the Fourteenth Amendment . . . which must be afforded the licensee on the question of his fault or liability for the accident” (Bell at 539-540).

THE STATUTE’S PRESUMPTIONS REGARDING THE BLAMEWORTHINESS OF PRO SE LITIGANTS IS CONTRARY TO STANLEY V. ILLINOIS

Stanley, supra, held that “[t]he State cannot, consistently with due process requirements, merely presume that unmarried fathers in general and [a] petitioner in particular are unsuitable and neglectful parents. Parental unfitness must be established on the basis of individualized proof”. Likewise, in regard to §391 et seq, California cannot merely presume that, in itself, a pro se litigant losing five actions in seven years (under §391(b)(1)) deserves punishment — without a showing of some kind of actual blameworthiness.

“Procedure by presumption is always cheaper and easier than individualized determination. But when . . . the procedure forecloses the determinative issues . . . it needlessly risks running roughshod over . . . important interests. It therefore cannot stand.” (Stanley at 656-657).

THE PAINS AND PENALTIES OF SECTION 391 ET SEQ APPLY ONLY TO LITIGANTS WHO FAIL TO HIRE A LAWYER (ATTORNEY-REPRESENTED LITIGANTS ARE EXEMPT) THEREFORE IT DENIES EQUAL PROTECTION UNDER THE 14TH AMENDMENT TO ALL CALIFORNIA PRO SE LITIGANTS

Wolfgram fails to analyze the statute in regard to equal protection:

“Wolfgram’s suggestion that the statute thus discriminates against those who are unable to afford to hire a lawyer was not headed as an argument in the opening brief and is unaccompanied by analysis or authority.” (Wolfgram at 59, n.10).

However, §391 et seq clearly violates the equal protection clause of the United States Constitution, Amendment 14, §1.

Just as the class of unmarried fathers in Stanley (at 658) are denied equal protection of the laws extended to other parents — so too are the class of pro se litigants under §391 et seq denied equal protection of the laws extended to other litigants. Denying pro se litigants the right to a hearing as to blameworthiness while granting this right to other litigants.

[Note: Compare §391 et seq with California Civil Procedure Code §128.5 (now superseded by §128.7) which applies equally to all litigants. To justify an award of sanctions under §128.5, there must be an assessment of subjective bad faith in addition to a finding that a particular action or tactic was frivolous. Summers v. City of Cathedral City (1990) 225 Cal.App.3d 1047,1070. A sanction under §128.5 is not imposed, even on a meritless action, if the action was not initiated for an “improper motive”. Lesser v. Huntington Harbor Corp. (2nd Dist.1985) 173 Cal.App.3d 922,935. In Llamas v. Diaz (1990) 218 Cal.App.3d 1043 the trial court refused to impose sanctions even after finding that the challenged action was completely without merit — but that the attorney who took the action was unaware of that fact. A layman in pro se should be expected to have less legal knowledge than an attorney:

"Even the intelligent and educated layman has small and sometimes no skill in the science of law." (Gideon v. Wainwright (1962) 372 U.S. 335,345).

Ineptitude is not synonymous with bad faith. Monex International, Ltd. V. Peinado (1990) 224 Cal.App.3d 1619. “Bad faith” is “. . ., not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive. . . .” (Black’s Law Dictionary, 6th ed 1990, s.v., “Bad faith”). Mistaken judgment is not “bad faith”. Neel v. Barnard (1944) 24 Cal.2d 406.]

“[E]qual protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of any one except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition . . .” (Barbier v. Connolly (1884) 113 U.S.27,31 — emphasis added). All litigants — whether self-represented or attorney-represented — should be treated equally. Taylor v. Bell (1971) 21 Cal.App.3d 1002,1009. However, under §391 et seq they are not. The pains and penalties of § 391 et seq apply only to litigants who fail to hire a lawyer — attorney represented litigants are exempt from the statute.

THE “STRICT SCRUTINY” STANDARD OF REVIEW IS APPLICABLE BECAUSE:

A) THE FUNDAMENTAL RIGHT OF ACCESS TO THE COURTS IS AFFECTED;

B) THE DISCRIMINATION AGAINST PRO SE LITIGANTS IS “INVIDIOUS”;

C) THE PRO SE CLASSIFICATION IS ITSELF A PROTECTED CLASS;

D) SPEECH IS BEING REGULATED IN A PUBLIC FORUM; AND,

 E) §391 ET SEQ DISCRIMINATES AGAINST A SUSPECT CLASSIFICATION (THOSE TOO POOR TO AFFORD ATTORNEYS’ FEES)

At the threshold of any equal protection analysis, the court must determine the level of scrutiny or standard of review which is appropriate to the case at hand. Gould v. Grubb (1975) 14 Cal.3d 661. If legislation involves a fundamental right or affects a suspect classification, the statute is closely scrutinized and will be upheld only if it is necessary for furtherance of a compelling state interest. County of Los Angeles v. Patrick (1992) 11 Cal.App.4th 1246.

Fundamental Right. The right to defend one's property in court (and to be free of government stigmatization) is a fundamental First Amendment right. California Motor Trans., supra.

In Pro Se. The right to do so in pro se is a further protected right. ". . . the right to file a lawsuit pro se is one of the most important rights under the constitution and laws." (Elmore v. McCammon (1986) 640 F.Supp. 905,911).

Invidious Discrimination. Section 391 et seq invidiously discriminates against so-called “vexatious litigants”. The label “vexatious litigant” is clearly a mark of discredit — a stigma. The word "vexatious" has been said to mean the same thing as "malicious". See 92 C.J.S., s.v. "Vexatious". The public branding of an individual implicates interests cognizable as either “liberty” or “property”. Jenkins v. McKeithen (1969) 395 U.S. 411. Where the State attaches “a badge of infamy” to the citizen, due process comes into play. See Wieman v. Updegraff (1952) 344 U.S. 183,191.

[Note: The actions for which a “vexatious” label may be affixed need not be malicious or truly “vexatious” in any way. “A State cannot foreclose the exercise of constitutional rights by mere labels.” (NAACP v. Button 371 U.S. 415,429).]

In Skinner v. Oklahoma (1942) 316 U.S. 535 a statute requiring sterilization of “habitual criminals” — but which exempted those convicted of white collar crimes such as embezzlement — was held to be invalid under the equal protection clause. So too here, §391 et seq exempts only those vexatious litigants who happen to hire a lawyer. It makes an invidious discrimination when it “lays an unequal hand on those who have committed intrinsically the same quality of offense” and punishes one and not the other. Skinner at 541.

Public Forum. The courts are a public forum. “When government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized.” (Carey v. Brown (1980) 447 U.S. 455,461-2).

“In a public forum, by definition, all parties have a constitutional right of access and the State must demonstrate compelling reasons for restricting access . . .” (Perry Education Assn. v. Perry Local Educators’ Assn (1983) 460 U.S. 37,55)

See also Cornelius v. NAACP Legal Defense & Ed.Fund (1985) 473 U.S. 788,800).

Suspect Classification. Sec. §391 et seq. discriminates against poor people who cannot afford attorneys’ fees to litigate civil or probate matters. The Supreme Court has overturned laws because of their impact on the poor. See Boddie, supra at 389.

Wealth is a suspect classification deserving of special scrutiny. See Douglas v. California (1963) 372 U.S. 353. The Supreme Court has ruled against wealth discrimination when fundamental rights would be conditioned on making payments beyond a person’s means.

[Note: “The discriminatory aspects of the vexatious litigant provisions would be most apparent in a situation involving a plaintiff who had been forced to proceed in propria persona because he lacked the funds to hire an attorney, and who was then forced to abandon his cause of action because he could not afford the required security. It might be argued with considerable force that while a state may apply a wide range of criteria in classifying persons or groups, financial capacity is not a permissible standard for conditioning access to the judicial system.” (Note: California’s Vexatious Litigant Legislation 52 CAL.L.REV. 204 (1964) at 205-206 — later citing Griffin v. Illinois (1956) 351 U.S. 12 and Burns v. Ohio (1959) 360 U.S. 252).]

SEC. 391 ET SEQ IS NOT NECESSARY FOR THE FURTHERANCE OF A COMPELLING STATE INTEREST.

Sec. 391 et seq is not necessary for the furtherance of a compelling state interest. The same legislative purpose is accomplished by the following: California Penal Code §158; California Civil Procedure Code § 128.5 (superseded by §128.7); California Civil Procedure Code §907; Motions for summary judgment; Actions for malicious prosecution; and, The rule of res judicata — all of which achieve the same purpose but without discrimination against the pro se litigant.

[”The rule of res judicata is to prevent vexatious litigation . . .” (Miller & Lux,Inc v. James (1919) 180 Cal. 38,44).]

EVEN UNDER A “LENIENT STANDARD” OF REVIEW THE CLASSIFICATION FAILS — THE PRESUMPTION THAT A LAWYER-REPRESENTED LITIGANT IS LESS LIKELY TO FILE GROUNDLESS LITIGATION IS IRRATIONAL

A discriminatory law cannot be sustained if the classification “appears to be altogether illusory” S. Royster Guano Co. v. Com. of Virginia (1920) 253 U.S. 412. Technically, any legal difference between a self-represented litigant and an attorney-represented litigant is completely illusory. The lawyer is simply an agent standing in the place of a litigant. A litigant is a litigant — whether self-represented or attorney-represented.

In practical terms as well the classification cannot stand. A discriminatory law will not be sustained if the legislature could not have reasonably concluded that the challenged classification would “promote a legitimate state purpose”. Willims v. Vermont (1985) 472 U.S. 14.

The purported purpose of §391 et seq is to curb “groundless litigation”. Wolfgram at App.249. The presumption is that a litigant who hires a lawyer to represent him is less likely to file groundless litigation than a litigant who doesn’t. This presumption is totally irrational.

“Under our adversary system, the role of counsel is not to make sure the truth is ascertained but to advance his client’s cause by any ethical means. Within the limits of professional propriety, causing delay and sowing confusion not only are his right but may be his duty.” (Walters v. Nat. Assn. of Radiation Survivors (1984) 473 U.S. 305,325 (upholding constitutionality of 38 U.S.C. §3404(c) which limits to $10 the fee that may be paid an attorney representing a veteran seeking VA benefits). The fact that “lawyers” and “groundless litigation” go hand in hand has been universally perceived by most of humanity since ancient times.

The ancient Romans recognized that the danger of an increase in groundless litigation is greater from lawyers’ greed than from innocent errors of pro se litigants.

[Note: “During the rise of Rome, its citizens involved in lawsuits pleaded their own cases, as was true everywhere in the ancient world. . . . According to the lex cincia passed by the Senate in 204 BC, the advocati [legal experts] were forbidden from taking fees. During a Senate debate [47 AD.] of the issue, Senator Gaius Silius said:

“If no one paid a fee for lawsuits, there would be less of them! As it is, feuds, charges, malevolence and slander are encouraged.” (Tacitus, The Annals of Imperial Rome, Penguin Books, Harmondsworth, 1956, pg.233). ]

Section 391 et seq — which was originated by a trade association of attorneys (the Los Angeles County Bar Association) (see ER 44) — attempts to legitimize the lawyer industry’s growing monopoly over our judicial system by making scapegoats of pro se litigants.

[Note: “‘We all know that law offices are big businesses, that they may have billion-dollar or million-dollar clients, they’re run with computers, and all the rest. And so the argument may be made that to term them noncommercial is sanctimonious humbug.” (Bates v. State Bar of Arizona (1976) 433 U.S. 350,368 (n.19)).]

[Note: “Lawyers were actually banned outright or faced tight restrictions in many colonies for much of the 18th century. . . . The "Body of Liberties" adopted by the Massachusetts Bay Colony in 1641 expressed the typical attitudes of the time: "Every man that findeth himselfe unfit to plead his own cause in any court shall have libertie to employ any man ..., provided he give him noe fee or reward for his pain.". . . The strong tradition that each American should be able to master the laws probably peaked in the years between . . . 1825 and . . . 1865. Most states enforced few if any restrictions on non-lawyers appearing in court on behalf of others — as Lincoln himself did before he talked a judge into granting him attorney status. . . . the American Bar Association convinced states to pass "unauthorized practice of law" statutes in the 1920s and 1930s, which effectively gave lawyers a monopoly over the sale of legal information. . . . in the last two decades many Americans . . . have begun to assert their historical and constitutional right to participate in the legal decisions that affect their lives. Unfortunately, the Bar — despite the fact that its leaders concede that at least 100 million Americans can't afford lawyers — continues to resist this powerful democratic trend.” (Warner, Every American a Lawyer” at http://www.nolo.com/everyam.html>).]

The definition of “vexatious litigant” as someone losing five litigations in a seven year period (§391(b)(1)) is not reasonably related to the purpose of curbing groundless litigation.

The definition does not inquire into the merit of the underlying litigations Litigiousness,

alone, cannot support a prefiling injunction. See De Long v. Mansfield (1990) 912 F.2d 1144. “A prefiling order cannot issue merely upon a showing of litigiousness.” Moy v. United States (9th cir,1990) 906 F.2d 467,470.. “The mere fact that a party has prevailed in a suit does not mean that the party has not engaged in vexatious and groundless litigation. For example, a party may combine sound and ultimately successful defenses with frivolous ones designed solely to harass the opposing party.” (In re Kun (1989) 868 F.2d 1069).

[Note: Section 391(b)(1) punishes “litigiousness” rather than “vexatiousness” and, to this extent, is contrary to public policy.

“. . . untrammeled access to the courts promotes social peace by providing the citizenry with an alternative to potentially dangerous self-help methods of redressing private grievances.” Crowley v. Katleman (1994) 8 Cal.4th 666,694.

Litigiousness, alone, cannot support a prefiling injunction. See De Long v. Mansfield (1990) 912 F.2d 1144. “A prefiling order cannot issue merely upon a showing of litigiousness.” Moy v. United States (9th cir,1990) 906 F.2d 467,470.]

SECTION 391.7 VIOLATES DUE PROCESS BY OFFENDING THE GUARANTEE OF THE MAGNA CHARTA THAT JUSTICE IS NOT FOR SALE — LITIGANTS CANNOT BE REQUIRED TO PAY TRIBUTE TO OFFICERS OF THE COURT IN ORDER TO BE HEARD

Due process is violated if a practice or rule “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” (Snyder v. Massachusetts (1934) 291 U.S. 97,105. The guarantee of the Magna Charta that justice is not for sale is just such a principle.

“To none will we sell, to none deny or delay, right or justice.” (Magna Charta, 40). The guaranty of free justice is derived from the Magna Charta. “It is intended to prohibit gratuities or exactions given or demanded for the direct purposes of influencing the course of legal proceedings and to prevent the selling of justice by the sovereign . . . the guaranty is aimed not merely against bribery and corruption, but against the imposition of unreasonable charges for the use of the courts.” (16D CJS, s.v., Constitutional Law, § 1433 — emphasis added).

Under California law, an attorney at law is regarded as an officer of the court, of any court in which he appears. People v. Mattson (1959) 51 Cal.2d 777,793.

Every litigant must hire a lawyer in order to be avoid the snares of §391 et seq. A litigant blacklisted under §391.7 must hire a lawyer just to be heard initially. Therefore, §391.7 offends the guarantee of the Magna Charta that justice is not for sale.

The courts of California belong to the public — not to one particular industry. “Courts exist to promote justice, and thus to serve the public interest.” (American Bar Association, Canons of Judicial Ethics §2).

THE BLACKLISTING SCHEME OF SEC. 391.7 CONSTITUTES GOVERNMENT CENSORSHIP BY AN UNLAWFUL PRIOR RESTRAINT ON THE RIGHT TO PETITION — IMPERMISSIBLE UNDER THE FIRST AMENDMENT

WOLFGRAM’S “LICENSING SCHEME” PARADIGM IS FLAWED

Wolfgram cites no authority for holding that a prefiling order under §391.7 is not prior restraint. Smith v. Silvey (1983) 149 Cal.App.3d 400 determined that a particular injunction against filing — which was only “partial” — was nevertheless determined to be prior restraint. Smith was cited by Wolfgram (App.253) but was never factually distinguished. Wolfgram holds (App.253-254) that the restraint is only partial, is not content based, and it is presumed the presiding judge will allow a colorable claim to be filed upon application.

[Note: Wolfgram overlooks that “For a citizen to be made to forego even a part of so basic a liberty . . ., the subordinating interest of the State must be compelling.” (Sweezy v. New Hampshire (1956) 354 U.S. 234,265 — concurring opinion).] < [Note: How does the presiding judge make a determination that the proposed litigation is “colorable” if not by reviewing the content of the papers?]

[Note: Wolfgram overlooks that “If a person’s right to a hearing depends on the will or caprice of others, or on the discretion of the judge who is to make a decision on the issue, that person is not protected in his or her constitutional rights.” (13 CAL JUR (Rev) Part 1, s.v.”Constitutional Law”, §287 (noting Re Lambert (1901) 134 Cal. 626)).]

Wolfgram considers §391.7 (“[t]o the extent it keeps vexatious litigants from clogging

courts”) to be “closer to ‘licensing or permit systems’” rather than being a prior restraint requiring a showing of clear and present danger.

[Note: Wolfgram overlooks that congestion in the courts is not a ground for denying access to

the courts. See Weeks v. Roberts (1968) 68 Cal.2d 802. “It is the task of the law to remedy wrongs which merit redress even at the expense of incurring a torrent of litigation.” (1 Am Jur 2d §43, s.v. “Novelty of action”). Pro se litigants are not the cause of overcrowded courts. The honest straightforward pro se litigant who makes mistakes out of ignorance is far less a threat to the judicial system then the conniving lawyer who turns a simple dispute into years and years of fee-generating (and court-congesting) litigation. Abuse of judicial process is properly the subject of case-by-case judicial determinations.]

However, Wolfgram overlooks that a licensing scheme “avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system.” Freedman v. Maryland (1964) 380 U.S. 51,58. None of the procedural requirements are met by §391.7. For example, there must be an opportunity for an adversary hearing. Carroll v. Princess Anne (1968) 393 U.S. 175,182-3. The Supreme Court has “condemned statutes . . . which required that permits be obtained from local officials as a prerequisite to the use of public places, on the grounds that a license requirement constituted a prior restraint . . ., and, in the absence of narrowly drawn, reasonable and definite standards for the officials to follow, must be invalid.” (Niemotko v. Maryland (1951) 340 U.S. 268,271). Under §391.7 no such standards exist. Sec. 391.7(b) requires only that the litigation to “have merit”. However, the merit of litigation is determined by the litigation itself not by a pre-judgment.

[Note: Incidentally, the right to file litigation is not limited to “meritorious litigation”. “[A] man with a poor case is as much entitled to have it judicially determined by usual legal process as the man with a good case" (Bartholomew v. Bartholomew (1942) 56 Cal.App.2d 216,224). "[O]ur courts, both state and federal, have always been open to litigation of complaints irrespective of how baseless they eventually prove to be." (Stevens v. Frick (1966) 259 F.Supp.654, 657).]

[Note: A pre-filing restrictive order must be narrowly tailored to closely fit the specific vice encountered (De Long v. Hennessey (1990) 912 F.2d 1144; Bridges v. California (1941) 314 U.S. 252). This is not the case under §391.7.]

Sec. 391.7 constitutes government censorship. So-called “vexatious litigants” are suppressed and censored just as were the newspapers found to be “malicious, scandalous and defamatory” in Near v. Minnesota (1930) 283 U.S. 697,712. Where the Minnesota courts were empowered to enjoin the dissemination of future issues of a publication because its past issues had been found offensive — “This is the essence of censorship.”. Near at 713.

SECTION 391.7 CIRCUMVENTS THE CRIMINAL PROCEDURAL PROTECTIONS

OF CALIFORNIA’S BARRATRY STATUTES

The purported purpose of §391 et seq is to curb “groundless litigation”. Wolfgram at 48.

This is the same purpose as California Penal Code §158.

[Note: California Penal Code §§ 158 & 159 state the following:

“158. Common barratry is the practice of exciting groundless judicial proceedings, and is punishable by imprisonment in the county jail not exceeding six months and by fine not exceeding one thousand dollars ($1,000).”;

“159. No person can be convicted of common barratry except upon proof that he has excited suits or proceedings at law in at least three instances, and with a corrupt or malicious intent to vex and annoy.”.]

The operation of §391.7 is a form of regulation impermissibly superimposed on the state’s criminal regulation of groundless litigation. Therefore, §391.7 circumvents the criminal procedural protections of California Penal Code §158 (& §159). It has the same vice as that found in Bantam Books, Inc. v. Sullivan (1963) 372 U.S. 58 (involving regulation of obscenity by a state commission).

“Herein lies the vice of the system. The Commission's operation is a form of effective state regulation super-imposed upon the State's criminal regulation of obscenity and making such regulation largely unnecessary. In thus obviating the need to employ criminal sanctions, the State has at the same time eliminated the safeguards of the criminal process. Criminal sanctions may be applied only after a determination of obscenity has been made in a criminal trial hedged about with the procedural safeguards of the criminal process. The Commission's practice is in striking contrast, in that it provides no safeguards whatever against the suppression of nonobscene, and therefore constitutionally protected, matter. . . .”. (Bantam at 69-70).

Likewise, under §391.7, constitutionally protected (meritorious) litigation is suppressed.

LIFETIME LOSS OF A FUNDAMENTAL CONSTITUTIONAL RIGHT IS PUNISHMENT UNCONSTITUTIONALLY DISPROPORTIONATE TO THE “OFFENSE” OF LOSING FIVE LITIGATIONS IN A SEVEN-YEAR PERIOD

The Eighth Amendment to the U.S. Constitution prohibits “all punishments which by their excessive length or severity are greatly disproportionate to the offenses charged.”.

The gravity of the offense and the harshness of the penalty are two of the criteria used for determining whether a punishment is unconstitutionally disproportionate. Solem v. Helm (1983) 463 U.S. 277.

A California statute making it a crime merely to be addicted to the use of narcotics without any further blameworthy conduct, was held unconstitutional under the Eighth and Fourteenth Amendments. Robinson v. California (1961) 370 U.S. 660

“. . . imprisonment for ninety days is not, in the abstract, a punishment which is cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the “crime” of having a common cold.” (Robinson,supra at 667).

In other words, any significant punishment for conduct that is not at all blameworthy is unconstitutional. The §391 punishments are significant. However, the “offense” is no more blameworthy than having a common cold. The gravity of the “offense” is zero [Losing five lawsuits in a seven year period (§391(b)(1))], or near- [A single “tactic” deemed to be “frivolous” (§391(b)(3))]. Therefore the punishment is disproportionate.

Another criteria used for determining constitutionality is comparison with the punishments imposed on other offenders in the same jurisdiction. Solem. In California, lawyer-represented litigants receive no punishment whatsoever for having lost five litigations in the previous seven year period.

SECTION 391(B)(3) DENIES THE LAYMAN PRO SE LITIGANT DUE PROCESS OF LAW BY HOLDING HIS FILINGS TO THE STANDARD OF AN ATTORNEY

Section 391(b)(3) denies due process of law by holding the filings of a layman pro se litigant to the standard of an attorney — contrary to Haines v. Kerner (1972) 404 U.S. 519,520 (“allegations of the pro se litigant” are held “to less stringent standards than formal pleadings drafted by lawyers”) (in Dioguardi v. Durning (1944) 139 F.2d 774, a recent immigrant layman with limited English language ability achieved an appellate reversal in pro se).

Moreover §391(b)(3) gives any judge discretion to strip a layman pro se litigant of fundamental constitutional rights based solely on that particular judge's subjective interpretation of the term “tactics that are frivolous".

The phrase "tactics that are frivolous" -- especially when applied to filings of a layman pro se litigant -- is too indefinite a term to be the basis of enforcement. The term “frivolous” is inherently vague and subjective. Frivolousness is in the eye of the beholder. A civil statute which is too indefinite to enforce is invalid. See Seaboard Acc.Corp. v. Shay (1931) 214 Cal.361.

[Note: "Webster's defines the term 'frivolous' to mean 'of little or no weight or importance.' Webster's does not say 'of little or no weight or importance' to whom." (GOLDSMITH, "Frivolity is in the Eye of the Beholder", 139 N.J.L.J. 435 (1-30-95, p.23)).]

A statute that "either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application" is invalid under the due process clauses of both the Fifth and Fourteenth Amendments to the United States Constitution. Connally v. General Construction Co. (1926) 269 U.S. 385,391; Wotton v. Bush (1953) 41 Cal.2d 460,464.

California Civil Procedure Code §391(b)(4) (“§391(b)(4)”) denies the pro se litigant due

process of law — by applying a mere finding made in one action as res judicata for all future actions. The "vexatious litigant" finding is just that, a finding. It is not an order or a judgment. A finding is not a judgment. Sec.391(b)(4) denies due process of law to all so-called “vexatious litigants” because, under §391(b)(4), the finding that a pro se litigant is a “vexatious litigant” is given the res judicata force of a judgment and made applicable to all future actions without benefit of a hearing.

However, a finding made in one time and circumstance should not be controlling for dissimilar times and circumstances. See Clemmer v. Hartford Ins. Co. (1978) 22 Cal.3d 865. ". . . finding outside of any issue in the case . . . has no greater dignity as evidence than hearsay." (Bank of Visalia v. Smith (1905) 146 Cal. 398, 402-403). “A finding without evidence is arbitrary and baseless” (Interstate Comm. Com. v. Louis. & Nash. R.R. (1912) 227 U.S. 88,91). Section 391(b)(4) gives greater dignity to the finding than to the order which is supported by the finding — and thereby short-circuits the judicial process and denies due process of law. Furthermore, the presumption under §391(b)(4) of blameworthiness is arbitrary. A statute creating a presumption that is arbitrary or that operates to deny a fair opportunity to repel it violates the due process clause of the Fourteenth Amendment. Manley v. State of Georgia (1928) 279 U.S. 1,6. “Mere legislative fiat may not take the place of fact in the determination of issues involving life, liberty or property.” (Manley,supra at 6). Blameworthiness must be determined on a case-by-case basis to meet the requirements of the Fourteenth Amendment. The due process clause of the Fourteenth Amendment to the Federal Constitution and that of the California Constitution both prohibit the state from depriving any person of life, liberty, or property without due process of law. Gabrielli v. Knickerbocker (1938) 12 Cal.2d 85.

SECTION §391.7 DENIES DUE PROCESS BY REQUIRING AN ACTION TO BE TAKEN

WITHOUT SPECIFYING THE PROCEDURE FOR ACCOMPLISHING THAT ACTION

A person blacklisted under §391.7 is required to obtain “leave of the presiding judge of the court where the litigation is proposed to be filed. Disobedience of such an order by a vexatious litigant may be punished as a contempt of court." (§391.7(a)).

However, nowhere does the statute specify what procedure the vexatious litigant should follow to obtain that leave. Contrast this with Brown v. Gibson (1983) 571 F.Supp.1075, where the court set out in detail a procedure for that single litigant to follow in filing a "Motion for Leave to File Civil Action".

It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Joint Anti-Fascist Refugee Committee v. McGrath (1951) 341 U.S. 123,179.

SECTION 391 ET SEQ CONSTITUTES A BILL OF ATTAINDER

PROHIBITED BY ARTICLE I, §10, UNITED STATES CONSTITUTION

Wolfgram refuses to consider the attainder issue:

“Wolfgram also states the statutory scheme ‘sets up a form of “attainder” whereby appellant

is deprived of his civil rights in perpetuum,’ but, for lack of argument heading or analysis, the point is waived.” (Wolfgram at 62).

A bill of attainder is "a legislative act which inflicts punishment without a judicial trial.". California State Employees' Assn. v. Flournoy (1973) 32 Cal.App.3d 219,224.

"No State shall . . . pass any bill of attainder" (U.S. Constitution, Art. I, §10). This clause was intended as an implementation of the separation of powers doctrine, as a general safeguard against legislative exercise of the judicial function. See United States v. Brown (1964) 381 U.S. 437,441-449.

Section §391 et seq. inflicts punishment on members of a particular class of persons without a judicial trial to determine whether each is individually blameworthy. "[L]egislative acts, no matter what their form, that apply . . . to easily ascertainable members of a group in such as way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution." (United States v. Lovett (1945) 328 U.S. 303, 315). The vice of attainder is that the Legislature decides for itself that certain persons or classes of persons are blameworthy and deserving of sanction. United States v. Brown at p. 445.

[Note: The hearing under §391(b)(2) does not determine blameworthiness and under §391.7 no hearing at all is required prior to being blacklisted for life.]

The Legislature circumvented a judicial proceeding by deciding for itself that persons who fall within the definitions of §391 et seq are actually (blameworthy) “vexatious litigants”.

Section 391 et seq inflicts punishment — rather than imposing a mere regulatory burden. Legislation which inflicts a deprivation on a named or described person or group constitutes a bill of attainder whether its aim is retributive, punishing past acts, or preventative, discouraging future conduct. Crain v. City of Mountain Home,Ark. (1979) 611 F.2d 726. The prohibited punishment may be of any form or severity. United States v. Brown at 447. The punishment of a bill of attainder may be of a civil rather than criminal nature. See United States v. Lovett (1945) 328 U.S. 303,316. A civil sanction constitutes “punishment” when the sanction, as applied in an individual case, serves purposes of retribution and deterrence, the twin goals of punishment. U.S. v. Morgan (1994) 845 F.Supp. 934,939-940. The deprivation of any civil right for past conduct is punishment for such conduct. Disqualification from the privilege of appearing in the courts has been imposed as punishment. Cummings v. State of Missouri (1866) 71 U.S. 277,320.

The legislative history shows that the 1990 amendment to the "vexatious litigant" statute was intended to punish one particular person -- Gary Coutin:

"This bill is apparently aimed at one individual, Gary Coutin, who is a graduate of Hastings College of the law. He . . . has filed numerous lawsuits against Hastings, members of the judiciary, the Attorney General, the Legislature, etc. . . ." (comment of Karen French in her note to Senator Presley).

Section 391.7 constitutes a legislative and executive encroachment on the powers of the judiciary, by dictating to the courts which individuals may be parties to an action. See Superior Court of Mendocino County v. County of Mendocino (1995) 34 Cal.App.4th 679). Constitutional courts cannot be limited in discharge of their functions by the executive branch. Vidal v. Backs (1933) 218 Cal. 99.

The blacklisting under §391.7 constitutes a government "taking" of property rights which are causes of action. A cause of action is property. Haro v. Southern Pac.R.Co. (1936) 17 Cal.App.2d 594. See James v. Oakland Traction Co. (1909) 10 Cal.App. 785; Anderson v. Ott (1932) 127 Cal.App. 122. The existence of Judicial Council’s blacklist is further confirmation that §391.7 is a bill of attainder:

“Officially prepared and proclaimed governmental blacklists possess almost every quality of bills of attainder.” (Joint Anti-Fascist Refugee Committee v. McGrath (1951) 341 U.S. 123,143-144).

Being blacklisted constitutes a permanent and lifelong (see §391(b)(4)) government defamation. "Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.. . . The purpose of such notice and hearing is to provide the person an opportunity to clear his name.". Board of Regents v. Roth (1971) 408 U.S.564,573). The victim of §391 et seq, however, cannot clear his name. ( http://lawreform.net/ )

For the moment and the time being, let this signed and dated document will suffice now as a formal letter of intent to declare myself an independent Sovereign and as such will not follow the above unconstitutional statute created by the government judicial employees of the State of California and which violates the U.S. Federal Constitution based on the above.

DATED:

Signed

By:                                                                             Witnessed By:

/s/

___________________________________                          ____________________________________

( Digital Electronic Signature )

Name and Address

Certified mail to:

Governor Gavin Newsom
1021 O Street, Suite 9000
Sacramento, CA 95814
Phone: (916) 445-2841
Fax: (916) 558-3160

https://www.gov.ca.gov/