Equal Protection Error in Wolfe v. George

[First published Dec 10, 2013 – republished Dec 8, 2014 after 261 views]

Equal Protection Error in Wolfe v. George

Under our Constitutional Equal Protection doctrine, all persons, or classes of persons, shall be treated equally “in the same place and in like circumstances” under the law – and “shall be treated alike, under like circumstances and considerations”,

“ . . . the guarantee of the equal protection of the laws means “that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and in like circumstances.” Missouri v. Lewis, 101 U.S. 22, 31. We have also said: “The Fourteenth Amendment, in declaring that no State ‘shall deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws,’ undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons . . . 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, . . .” (Connolly v. Union Sewer Pipe Company, 184 U.S. 540 (1902) – emphasis added).

California’s so-called “Vexatious Litigants” Statute” (“VLS” – California Civil Procedure Code Section 391 et seq) recognizes two classes of litigants – those who hire a lawyer to represent them and those who fail to hire a lawyer to represent them. The VLS does not apply equally to all litigants who come before the court. Pro se litigants are treated very differently from represented litigants by the VLS. The VLS applies much stricter standards and the possibility of serious penalties (including loss of right to file any litigation in pro per in the future) only to that class of litigants who fail to hire a lawyer (a “pro se litigant” or “litigant in propria persona”). In civil proceedings, the right to litigate in propria persona is a protected right under California law (see Baba v. Board of Supervisors of the City and County of San Francisco, 124 Cal.App.4th 504 (2004))
The VLS is not applicable to a litigant represented by a lawyer. Litigants who do hire a lawyer are immune from the impediments of the statute. For example, the pro se litigant who loses 5 lawsuits in a 7 year period may be branded a “vexatious litigant” and lose his right to litigate in propria persona. Whereas a represented litigant may lose any number of lawsuits with no adverse consequences at all. A pro se litigant who files even one motion which a judge considers to be “frivolous” can be stigmatized and blacklisted for life under the VLS. Whereas represented litigants stay in the game – and may even win their lawsuits despite frivolous tactics (see In re Kun (1989) 868 F.2d 1069 “ . . . a party may combine sound and ultimately successful defenses with frivolous ones designed solely to harass the opposing party.”). This unequal playing field clearly constitutes discrimination against pro se litigants and constitutes a failure of equal protection.

The US Supreme Court has applied different standards of review in considering equal protection violation claims.

“Until 1976, the Supreme Court usually ended up dealing with discrimination by using one of two possible levels of scrutiny: what has come to be called “strict scrutiny” (when a suspect class or fundamental right is involved), or instead the more lenient “rational basis review“. Strict scrutiny means that a challenged statute must be “narrowly tailored” to serve a “compelling” government interest, and must not have a “less restrictive” alternative. In contrast, rational basis scrutiny merely requires that a challenged statute be “reasonably related” to a “legitimate” government interest. . . . Choosing the standard of scrutiny can determine the outcome of a case, and the strict scrutiny standard is often described as “strict in theory and fatal in fact”. (Wikipedia, s.v., “Equal Protection Clause” – emphasis added).

Constitutional objections to the VLS were rejected in the published federal appellate decision of Wolfe v. George (9th. Cir. 2007) 486 F.3d 1120. Judge Andrew Kleinfeld (the author of the Wolfe opinion) briefly address the Equal Protection issue in regard to the VLS – ruling as follows:

“The California statute does not violate equal protection.   Frequent pro se litigants are not a suspect class meriting strict scrutiny.[Footnote 29] A state can rationally distinguish litigants who sue and lose often, sue the same people for the same thing after they have lost, and so on, from other litigants.

When no bond is required, the California prefiling order does little more than require sua sponte review of a vexatious litigant’s complaint to see whether it states a claim before imposing the burden of litigation on a defendant.   The defendant could move to dismiss for the same reason, so the statute is not a substantial or irrational bar to access. “

In footnote 29, Wolfe states the following:

“29.  See Ortwein, 410 U.S. at 660, 93 S.Ct. 1172 (holding that because poverty is not a suspect classification subject to heightened review, “[t]he applicable standard is that of rational justification”) (citing Kras ).”

First of all, to say that “poverty is not a suspect classification” is not so simple. Judge Kleinfeld cites Ortwein for this proposition. However he overlooks the distinction which Ortwein made from M.L.B. v. S.L.J. (1996) 519 U.S. 102 (applying strict scrutiny when a state denied a mother the right to appeal the termination of her fundamentally protected parental rights based upon her inability to pay record–preparation fees).

In Ortwein the issue was a $25.00 appellate filing fee (not an original case filing fee). There was no “protected liberty interest” involved. However, M.L.B.involved a fundamental right.

“This Court has also recognized a narrow category of civil cases in which the State must provide access to its judicial processes without regard to a party’s ability to pay court fees. See, e.g., Boddie v. Connecticut, 401 U. S. 371, 374 (divorce proceedings). Making clear, however, that a constitutional requirement to waive court fees in civil cases is the exception, not the general rule, the Court has refused to extend Griffin to the broad array of civil cases. See United States v. Kras, 409 U. S. 434, 445; Ortwein v. Schwab, 410 U. S. 656, 661 (per curiam). But the Court has consistently set apart from the mine run of civil cases those involving state controls or intrusions on family relationships. In that domain, to guard against undue official intrusion, the Court has examined closely and contextually the importance of the governmental interest advanced in defense of the intrusion. Pp. 8-12.” (M.L.B. v. S.L.J).

The right of access to the civil courts for the poor is recognized by our Supreme Court as a fundamental right:

“In a number of cases implicating fundamental rights’ infringements, the Court has specifically remarked upon the negative effects of these burdens disproportionately or uniquely upon the poor. This variety of equal-protection analysis and attendant concern for the poor has been evident, for example, when the Court has addressed . . . the right of access to civil courts when certain other fundamental rights are being contested . . .”. (Barnes & Chemerinsky, “The Disparate Treatment of Race and Class in Constitutional Jurisprudence”, Vol. 72:109, Law and Contemporary Problems).

In any case, Judge Kleinfeld has missed the point – because the question of whether or not poverty is a suspect classification is beside the point because the strict scrutiny standard applies for another reason..

The standard of strict scrutiny applies not only when a suspect classification is involved. It also applies when a fundamental right is involved. After discussing classifications, Congressional Research Service, Library of Congress, The Constitution of the United States of America, Analysis and Interpretation (US Gov. Printing Off., 1987) at p. 1705, states the following:

“The other phase of active review of classifications holds that when certain fundamental liberties and interests are involved, government classifications which adversely affect them must be justified by a showing of a compelling interest necessitating the classification and by a showing that the distinctions are required to further the governmental purpose. The effect of applying the test, as in the other branch of active review, is to deny to legislative judgments the deference usually accorded them and to dispense with the general presumption of constitutionality usually given state classifications. [citing Kramer v. Union Free School Dist. 395 U.S. 307 (1976); Vance v. Bradley, 440 U.S. 93 (1979)] . . . It is thought that the “fundamental right” theory had its origins in Skinner v. Oklahoma ex rel Williamson [316 U.S. 535,541 (1942)] .

“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall “deny to any person within its jurisdiction the equal protection of the laws,” which is essentially a direction that all persons similarly situated should be treated alike. . . .

The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. . . .

The general rule gives way, however, when a statute classifies by race, alienage, or national origin. . . . Similar oversight by the courts is due when state laws impinge on personal rights protected by the Constitution. Kramer v. Union Free School District No. 15, 395 U.S. 621 (1969); Shapiro v. Thompson, 394 U.S. 618 (1969); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942).” (City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) – emphasis added).

In other words, Judge Kleinfeld overlooked that the strict scrutiny standard applies in reviewing the VLS regardless of whether or not poverty is a suspect classification.

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