“Strict Scrutiny” Standard of Review is Applicable

Posted on December 2, 2022January 12, 2023 by Brooke McCrea

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)

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).]

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“Vexatious Litigant” Statute

Posted on November 29, 2022January 12, 2023 by Brooke McCrea

Under California’s novel “vexatious litigant” statute (California Civil Procedure Code section 391.7), the name of any litigant who fails to hire a lawyer (i.e., any pro se litigant) may be put on an official blacklist distributed by Judicial Council of California (Administrative Office of the Courts) for the purpose of being barred for life (see sec. 391(b)(4)) from filing any litigation in California (except in small claims court) and to be stigmatized for life 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.

Some Facts About California’s “Vexatious Litigant” Statute

The penalties of the statute apply only to those who fail to hire a lawyer
The statute was sponsored by the Los Angeles County Bar Association (a trade union for lawyers)
The statute may apply to someone who has had only one lawsuit in his entire life (if a judge deems any one of his court papers to be “without merit”)
The statute also applies to those who have lost 5 lawsuits in a 7 year period even if those lawsuits were completely meritorious

Victims of the Statute:

The phrase “vexatious litigant” conjurs up an image of someone filing zillions of groundless lawsuits. In a few isolated cases that may have been true. Those are the cases that were published. Those are the cases held up by the bar associations to lend dignity to the statute. [Note that the bar associations originally sponsored this statute which applies only to those who fail to hire a lawyer.]

The reality however is very different. In the vast majority of the cases (at least based on our initial research of court records) it is simple, ordinary people who are victims of the “vexatious litigant”statute. Unscrupulous lawyers use it as a tactical weapon. Most of those on the Judicial Council’s blacklist did nothing “vexatious”at all. Most of them are too poor to hire a lawyer. Some of them had never before been involved in any litigation. Some of them were the Defendants in the action (contrary to the letter and spirit of the statute intended to protect defendants not plaintiffs).

Constitutional Analysis of the Statute

The Statute is Overbroad

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

Taliaferro Was Decided Before the 1990 Amendments

Taliaferro was decided before the 1990 amendments to the statute and before boddie v. Connecticut qualified cohen v. Beneficial loan corp

Even Temporary Loss of Right to Sue is Prohibited

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)

There Need Not e a Showing of Blameworthiness

The exclusion of blameworthiness from consideration at the §391.2-, or §391.7-, hearing is contrary to the rule of bell v. Burson

The Statute Presumes Blameworthiness of Pro Se’s

The statute’s presumptions regarding the blameworthiness of pro se litigants is contrary to stanley v. Illinois

The Statute Denies Equal Protection to Pro Se Litigants

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

“Strict Scrutiny” Standard of Review is Applicable

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)

Statute Not Necessary for Compelling State Interest

Sec. 391 et seq is not necessary for the furtherance of a compelling state interest

Irrational Presumption of Statute Regarding Lawyers

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

Justice is Not for Sale (Magna Charta)

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

The Blacklisting Scheme of Sec.391.7 is Prior Restraint

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

Sec.391.7 Circumvents Criminal Procedural Protections

Section 391.7 circumvents the criminal procedural protections of california’s barratry statutes

The “Punishment” is Disproportionate

Lifetime loss of a fundamental constitutional right is punishment unconstitutionally disproportionate to the offense of losing five litigations in a seven-year period

Due Process: No Res Judicata for a Mere Finding

§391(b)(4) denies due process by applying a mere finding made in one action as res judicata for all future actions

Void for Vagueness

Section §391.7 denies due process by requiring an action to be taken without specifying the procedure for accomplishing that action

The Statute Constitutes a Bill of Attainder

Section 391 et seq constitutes a bill of attainder — prohibited by article i, §10, united states constitution

Tour: California’s “Vexatious Litigant” Statute
“Vexatious Litigant” Statute Information Center

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The “Punishment” is Disproportionate

Posted on November 27, 2022January 12, 2023 by Brooke McCrea

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-zero [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.

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Dimov v. U.S.Dist.Ct.

Posted on November 25, 2022January 12, 2023 by Brooke McCrea

Jim Dimov was named a “vexatious litigant” although he had been involved in ONLY ONE PREVIOUS LITIGATION. The quality of his “legal craftsmanship” was not up to the standards of Los Angeles County Superior Court Judge Robert H. O’Brien (In the matter of Jim Dimov, case number BP 008800 (1993)).

On March 10, 2000, represented by attorney Gary Coutin (himself a victim of the statute), Mr. Dimov filed COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (Dimov v. United States District Court for the Central District of California, case number 00-02590) in the United States District Court for the Central District of California challenging the constitutionality of District Court Local Rule 27a, which incorporates or permits the incorporation of California’s “vexatious litigant” statute as part of the federal rules of court.

More to read: The “Punishment” is Disproportionate