“Vexatious Litigant” Statute

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

More to read: The Roles of Property Lawyers in Sales and Purchase of Property