2.0 Constraint on Right to Petition: For Invalidation of Vexatious-Litigant Statutes

Every public court system must deal with abusive-litigation problems. Regulating court access is a framework consideration because the right to be heard is fundamental to due process. (Molski v. Evergreen Dynasty Corp. (9th Cir. 2008) 521 F.3d 1215, 1216 (dis. opn. of Berzon, C. J.) ["pre-filing orders infringe the fundamental right to access the courts"].) Unconstitutional practices accompanied vilification of litigiousness.

California was first to pass a vexatious-litigant statute (Code Civ. Proc., § 391 et seq.) and to include provision for prefiling orders; Texas and Hawaii have passed laws modeled on California's. The California statute allows the court to uphold a motion labeling a pro-se litigant vexatious if the party filed five unsuccessful lawsuits in the past seven years and the current action is one for which no reasonable attorney would anticipate success. The "vexatious litigant" label, once applied, was effectively deemed permanent until Lucket v. Panos (2008) 161 Cal.App.4th 77. The unsuccessful lawsuits need not have been frivolous themselves, and successful lawsuits don't change the calculus.

California's vexatious-litigant statute is less rights-protective than the federal standard, which insists on crucial distinctions California ignores: vexatiousness can't be equated with litigiousness; low-probability cases aren't necessarily baseless; and litigation doesn't become sham — hence unprotected — without bad-faith motivation. (Professional Real Estate Investment Inc. v. Columbia Pictures Industries Inc. (1993) 508 U.S. 49.) The U.S. Supreme Court hasn't formally considered whether the full protection of the right to access the courts on which federal law insists derives from the U.S. Constitution. The High Court qualified Bill Johnson's Restaurants Inc. v. NLRB (1983) 461 U. S. 731, disavowing complete absence of First Amendment protection for frivolous litigation. Even unmeritorious filings must receive some protection to secure breathing room for the First Amendment. (Be&K Constr. Co. v. NLRB (2002) 536 U.S. 516, 531.) Dicta suggest that it is likely federal requirements apply to the states under the Fourteenth Amendment. (But see Wolfe v. George (9th Cir. 2007) 486 F.3d 1120.)

California appellate courts have been gentle with the vexatious-litigant statute despite the rift with federal courts, even as superior-court judges respect the right to court access by their reluctance to impose prefiling orders. The most sophisticated challenge to the vexatious litigation statute was denied by the California Court of Appeal in Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43. Wolfgram maintained that suits against the government could not count toward his five losses because petitioning the government was a basic constitutional right. Analogy to well-settled precedent favored Wolfgram, the Supreme Court having held that the government could not sue for malicious prosecution because it would chill the right to petition. (City of Long Beach v. Bozek (1982) 31 Cal.3d 527, 538-9 [Bozek].)

Since Bozek held the government could not penalize petitioning activity, plaintiff Wolfgram sustained his argument. The Court of Appeal panel, however, agreed with the dissent in Bozek that it had been wrongly decided, and the court evaded Bozek's logic by holding the prefiling order is not a penalty keeping the litigant out of court, not noticing that neither is the analogously treated damages award for malicious prosecution. The Ninth Circuit made the penalty's terms clear in Moy v. United States (9th Cir. 1990) 906 F.2d 467, 470:

Among all other citizens, he is to be restricted in his right of access to the courts. As far as he is concerned, his future filings run the risk of delay and even possible rejection before he can call upon defendants to respond to those filings. ... We cannot predict what harm might come to him as a result, and he should not be forced to predict it either. What he does know is that a Sword of Damocles hangs over his hopes for federal access for the foreseeable future.

The dissent in Bozek, supra, 31 Cal.3d at p. 539 (dis. opn. of Kaus, J.) argued that petitioning activity includes actions against private persons. The Bozek court's holding, then, proves too much, excluding all suits for malicious prosecution. The dissenting Bozek argument ignores the reasoning of the Bozek court was itself based on numerous precedents holding the government could not sue for defamation. (See Bozek, supra, 31 Cal.3d at p. 545.) If the government can't sue for false speech directed against it, the same principles dictate it can't penalize for sham litigation against it. The right to free speech and petition are equally fundamental First Amendment rights.

One usually unremarked consequence of the vexatious-litigation statute is the poisoning of the courts against parties labeled "vexatious litigants." The witchhunt against more litigious citizens frees judges to express their natural antipathy toward parties carrying the vexatious-litigant label. Such prejudice is also suffered by attorneys with State Bar discipline records — sometimes, for frivolous filings. Legislation targeting aggressive attorneys or litigious parties creates a partly disenfranchised class in a climate subjecting it to increasingly limited enjoyment of fundamental rights, a second tier to our huge class of disenfranchised felons.