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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