[First published Dec 12, 2013 – republished Dec 7, 2014 after 593 views]
Equal Protection Error in Wolfgram v. Wells Fargo
Wolfgram v Wells Fargo Bank (1997) 53 Cal.App.4th 43, is often cited as authority for upholding the constitutionality of California’s so-called “Vexatious Litigant Statute” (California Civil Procedure Code, Sec 391 et seq. – “VLS”). Two previous blog posts – “Prior Restraint Errors in Wolfgram v. Wells Fargo Part 1” & “. . . Part 2” – discussed nine judicial errors by the author, Judge Fred K. Morrison, relating to the issue of prior restraint. This post continues the discussion – in regard to the issue of Equal Protection.
It seems, at first glance, that Judge Morrison declines to discuss the equal protection issue, saying that this issue was not raised in the briefs:
“Wolfgram’s suggestion that the statute thus discriminates against those who are unable to afford to hire a lawyer was not headed as an argument in the opening brief and is unaccompanied by analysis or authority.” (Wolfgram at 59, n.10).
Despite this, however, Judge Morrison actually does say that the legislature was reasonable in discriminating against pro se litigants. He makes unfounded presumptions and relies on stereotypes to “. . . demonstrate the soundness of the Legislature’s distinction between in propria persona suits and suits filed by attorneys.”.
In other words, Judge Morrison seems to be saying that the Legislature had a rational basis for making this discrimination. The “Rational Basis” test is one of the standards developed by the Supreme Court to test whether a state statute is constitutional in regard to First Amendment litigation.
“The level of judicial review for determining the constitutionality of a federal or state statute that does not implicate either a fundamental right or a suspect classification under the Due Process Clause and the Equal Protection Clause of the Constitution. When a court concludes that there is no fundamental liberty interest or suspect classification at stake, the law is presumed to be Constitutional unless it fails the rational basis test. Under the rational basis test, the courts will uphold a law if it is rationally related to a legitimate government purpose. The challenger of the constitutionality of the statute has the burden of proving that there is no conceivable legitimate purpose or that the law is not rationally related to it. This test is the most deferential of the three levels of review in due process or equal protection analysis (the other two levels being intermediate scrutiny and strict scrutiny), and it requires only a minimum level of judicial scrutiny. E.g., courts use the rational basis test when analyzing the constitutionality of statutes involving age discrimination, disability discrimination, or the Congressional regulation of aliens.” (http://www.law.corne…onal_basis_test – Cornell University Law School, Legal Information Institute, s.v., “Rational Basis Test” – emphasis added).
In a previous blog post, Equal Protection Error in Wolfe v. George, the point was made that, 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)) and, that therefore, the strict scrutiny standard – instead of the rational basis standard – should be applied in analyzing the VLS.
Thus, Judge Morrison’s rational basis discussion is really beside the point. The following discussion is intended to show that – even by the rational basis standard – the VLS does not pass constitutional scrutiny.
In Skinner v. Oklahoma (1942) 316 U.S. 535 a statute required sterilization of “habitual criminals”. But it exempted those convicted of white collar crimes such as embezzlement. The statute was held to be invalid under the equal protection clause because 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.
So too here, the VLS punishes “habitual litigants” – but exempts those “white collar” litigants who happen to hire a lawyer.
Judge Morrison’s position in regard to this issue is essentially as follows:
1 – The state may prevent meritless litigation from clogging the courts;
2 – Pro se litigants clog the courts with meritless litigation more than do represented litigants;
3- Therefore, the application of the VLS to only pro se litigants is rational.
Judge Morrison spills a lot of ink supporting the first premise. But no one argues against it (except to say that preventing meritless litigation, in general, cannot be at the expense of an individual’s fundamental right to litigate in propria persona).
The problem is with premise number 2.
It is simply not true that pro se litigants clog the courts with meritless litigation more than do represented litigants.
In fact it is a completely irrational premise.
First of all, a layman in propria persona has less skill than a lawyer in playing the litigation game. It is obviously more likely that a lawsuit with merit will be successful if filed and maintained by a lawyer than by a layman in propria persona. Yet the discrimination of the VLS is based on a presumption that five unsuccessful lawsuits filed by a pro se litigant were of less merit than five unsuccessful lawsuits filed by a lawyer.
A layman in propria persona – with little knowledge of the litigation game – is required to be more successful filing meritorious lawsuits than a lawyer – who is trained in litigation and whose business is litigation. That is irrational.
Secondly, Non-prisoner pro se litigants are real people with families, jobs and other things to do besides filing lawsuits.
Lawyers, on the other hand, are in the business of filing lawsuits.
The fact that “lawyers” and “groundless litigation” go hand in hand has been universally perceived by most of humanity since ancient times. Even the ancient Romans recognized that the danger of an increase ingroundless litigation is greater from lawyers’ greed than from innocent errors of pro se litigants. “During the rise of Rome, its citizens involved in lawsuits pleaded their own cases, as was true everywhere in the ancient world. . . . According to the lex cincia passed by the Senate in 204 BC, the advocati [legal experts] were forbidden from taking fees. During a Senate debate [47 AD.] of the issue, Senator Gaius Silius said:
“If no one paid a fee for lawsuits, there would be less of them! As it is, feuds, charges, malevolence and slander are encouraged.” (Tacitus, The Annals of Imperial Rome, Penguin Books, Harmondsworth, 1956,pg.233).
This common sense held sway for much of early American history also:
“Lawyers were actually banned outright or faced tight restrictions in many colonies for much of the 18th century. . . . The “Body of Liberties” adopted by the Massachusetts Bay Colony in 1641 expressed the typicalattitudes of the time: “Every man that findeth himselfe unfit to plead his own cause in any court shall have libertie to employ any man …, provided he give him noe fee or reward for his pain.”. .
Judge Morrison’s Error # 10 – Argument by Outliers (Unfounded Stereotypes & Presumptions)
Judge Morrison discusses one of the definitions of a VL:
“One type of “vexatious litigant” is a person who in a seven-year period “has commenced, prosecuted, or maintained in propria persona at least five litigations . . . Under the statute, the underlying suits need only have been “commenced, prosecuted, or maintained in propria persona,” . . .and “(i) finally determined adversely to the person . . .” (Wolfgram).
Judge Morrison cites the case Green v. Arnold as justification for the VLS’s arbitrary limitation of five cases in a seven year period:
“Under the statute, the underlying suits need only have been ‘commenced, prosecuted, or maintained in propria persona,’ . . . The rationale is that there is a limit to how many causes of action an individual is likely to accrue. (See Green v. Arnold (W.D.Tex.1981) 512 F.Supp. 650, 651.)”.
However, it is absurd to compare the bizarre Texas litigant in Green with the vast majority of the thousands of pro se litigants on the California pre-filing blacklist.
Green is an extreme exception among exceptions – an outlier of the nth degree. The following description is from the Green opinion:
“Clovis Carl Green, Jr. is an exceptional case, even in the exotic realm of prisoner litigation. “He may not be in a class by himself, but it doesn’t take long to call the roll.”
. . . . .
In his thorough opinion . . . Judge Hunter lists more than 500 suits filed by Green between 1972 and 1979. He has filed at least 29 more in the District of Columbia. . . . Since his arrival at La Tuna Federal Correctional Institution four months ago, Green has so far managed to file 25 suits in the Western District of Texas. . .
. . . . .
Besides the suits filed in his own behalf, Green has made a career of filing suits for other inmates as a “jailhouse lawyer.” . . .
. . . .
Since no human being could really generate more than 554 causes of action in one lifetime, one would assume that many of Green’s filings have been purely repetitions of previous suits, and so they were. . . . In addition, most courts have found them frivolous, irresponsible and unmeritorious. . . . , and some have been found malicious and in bad faith as well. In some instances, Green’s allegations have been so offensive that the Court has ordered his pleadings stricken as “vile and scandalous.” . . .
. . . . . . .
Furthermore, Green has attempted to deceive courts about his finances in an effort to proceed as a pauper. . . and to use terroristic threats in an attempt to intimidate court personnel . . . “ (emphasis added).
Mr. Green’s activities are a criminal abuse of the judicial system. His activities don’t bear the slightest resemblance to those of the majority of the thousands of people named on the VL blacklist.
Extrapolating from the several cases I have personal knowledge of, I can safely say that the vast majority of non-prisoner “vexatious litigants” have done nothing blameworthy at all. They are simply people who usually cannot afford to hire a lawyer. And they are brave enough to enter the courtroom alone.
They may be naive to believe that they should succeed if justice is on their side. They don’t realize that litigation is an intense war-like game, a chess-like game of strategy and tactics, an extension of the medieval trial-by-battle – which, incidentally, was evident in England even as late as 1818 (see Ashford v Thornton (1818) 106 ER 149).
Their lack of knowledge and skill in playing the litigation game is surely vexing to the judge – who serves as umpire. But, objectively speaking, they have done nothing more vexatious than what lawyers do on a regular basis.
Judge Morrison’s Error # 11 – A Faulty Paradigm of Litigation
Judge Morrison implies that litigation is not a game, saying the following:
“The prefiling order component of the vexatious litigant statute is a necessary method of curbing those for whom litigation has become a game. “
But litigation is very much a game-like contest. Our adversary judicial system is a gladiatorial contest – a throwback to the ancient “trial by combat” (known as “ trial by wager of battel” introduced to England by William the Conqueror) – where, unfortunately, the champion is not always the one with truth and justice on his side.
Judge Morrison overlooks that the correct paradigm of litigation is indeed that of a game – evolved today into the paradigm of a chess game with a large body of literature dealing with strategy and tactics – just as chess literature is replete with strategy and tactics..
Although US Supreme Court Justice Felix Frankfurter has said that “Litigation is the pursuit of practical ends, not a game of chess.” (Indianapolis v. Chase Nat’l Bank, 314 U.S. 63, 69 (1941)) the consensus seems to be otherwise. Under our court system’s adversary paradigm of litigation it is a contest and the judge is a mere umpire.
Chief Justice Roberts of the United States Supreme Court proclaimed the following:
“Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules . . . .” (Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States Before the S. Comm. on the Judiciary, 109th Cong. 55 (2005) – statement of John G. Roberts, Jr., Nominee to be Chief Justice of the United States).
A search of the Los Angeles County Law Library catalog for titles having the terms “Litigation” and [“Strategy” or “Tactics”] results in 159 entries such as the following:
Basic trial tactics for conducting a civil trial – Questioning techniques and tactics / Jeffrey L. Kestler.- Eyewitness testimony : strategies and tactics / Edward Arnolds … [et al.] –
Pretrial discovery : strategy & tactics / by Edward J. Imwinkelried, Theodore Y. Blumoff.- Persuasion edge : winning psychological strategies and tactics for lawyers / Richard J. Crawford. – Pre-trial tactics and techniques in personal injury litigation / Theodore H. Friedman – Tactics and strategy under the new divorce law. – Winning trial tactics : [papers presented at the] Midwinter meeting 1967, New Orleans, Louisiana / prepared under the direction of Morgan P. Ames ; edited by Lynn S. Glasser. – Law and tactics in jury trials : the art of jury persuasion, tested court procedures. – Successful trial tactics. With a foreword by James Frank. – 73 ways to win [videorecording] : a treasury of litigation tactics and strategies. – Winning jury trials : trial tactics and sponsorship strategies / Robert H. Klonoff, Paul L. Colby.;
The obvious fact is that – because of the VLS – the rules of the litigation game are not the same for pro se litigants as for other litigants. Pro se litigants are denied equal protection because the rules of the game are much stricter for them than for represented litigants.
But, instead of acknowledging this, Judge Morrison distracts us by implying that litigation is not a game at all. The VLS denies equal protection by providing different game rules for pro se litigants than for represented litigants.
Take, for example, the famous McDonald’s coffee case (Liebeck v. McDonald’s Restaurants) where a New Mexico civil jury awarded $2.86 million to plaintiff Stella Liebeck who had suffered third-degree burns when, in her car, she accidentally spilled hot coffee in her lap after purchasing it from a McDonald’s restaurant. Now, if Ms Liebeck had sued McDonald’s in propria persona, is there any doubt that McDonald’s team of expensive lawyers would make sure she was branded a “vexatious litigant” (under VLS sec. 391 (b)(3)) for filing a “frivolous” action)? Isn’t coffee supposed to be hot? And didn’t she spill it on herself? McDonald’s didn’t pour the coffee on her.
However, a sharp, aggressive lawyer was able to carve out a case based on expert testimony regarding the temperature of the coffee being dangerous, based on numerous previous complaints to Mcdonald’s, etc.. He turned the case around – from simply someone seeking damages – to that of a large corporation’s callous disregard for the safety of its customers. He put on a grand Hollywood show and Ms. Liebeck was awarded millions of dollars in punitive damages (although before trial she had offered to settle for some $20,000). This controversial case was held up by many as an example of frivolous litigation. ABC News called the case “the poster child of excessive lawsuits” (Lauren Pearle, ‘I’m Being Sued for WHAT?’ – ABC News, May 2, 2007). My point is that success in litigation is less a function of the litigation’s merit than it is a function of the skill of the litigator.
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.”). But a pro se litigant will be stigmatized and blacklisted for life for exactly the same conduct. That is a failure of equal protection.
Judge Morrison’s Error # 12 – Unfair Stereotype of the Pro Se Litigant
Judge Morrison speaks of “. . . the persistent and obsessive litigant, appearing in pro. per., who has constantly pending a number of groundless actions, sometimes against Judges and other court officers who were concerned in the adverse decisions of previous actions.”. This is an unfair stereotype.
Pro se litigants are ordinary citizens seeking justice, and they are more and more doing so without a lawyer:
“What is different today from previous historical periods is that the pro se litigant is returning to court, insisting on access to justice without a lawyer. The surge in pro se litigation, particularly in the family courts of every common law country, is reported in official reports and anecdotally by judges and court managers and in systematic studies. Multiple causes are responsible for this trend, including increased literacy, consumerism, a sense of rugged individualism, the costs of litigation and attorneys’ fees, antilawyer sentiment, and the breakdown of family and religious institutions that formerly resolved many disputes that are now presented to courts instead.“ (Goldschmidt, “The Pro Se Litigant’s Struggle for Access to Justice: Meeting the Challenge of Bench and Bar Resistance”, FAMILY COURT REVIEW, Vol. 40 No. I, January 2002 36-62).
Judge Morrison’s snobbish elitism is apparent:
“Finally, it is true no citizen is required to hire a lawyer. Our mention of the “pro per” requirement of the statute . . . reflects the reality that a lawyer is often the best Judge of the merits of a proposed suit. . . . These facts demonstrate the soundness of the Legislature’s distinction between in propria persona suits and suits filed by attorneys. ( Taliaferro v. Hoogs, (supra) , 236 Cal. App. 2d at p. 527 [“Attorneys are governed by prescribed rules of ethics and professional conduct, and, as officers of the court, are subject to disbarment, suspension, and other disciplinary sanctions not applicable to litigants in propriapersona”].)” (Wolfgram).
However, Judge Morrison is out of step with history – as evidenced by the increasing surge in pro se litigation. There is nothing sacred about our adversary system. The 14th century procedural rigmarole benefits only the pocketbooks of the lawyer industry – not the general public.
We are a more sophisticated society now. Why, in a society where we can communicate around the world in seconds by internet, are we locked into anachronistic civil procedure rules and decisions involving life, death, liberty and property take years to resolve? Obviously, because we are being held hostage to the lawyer industry. The courts belong to the public, not to one industry – the lawyer industry!
The public wants judicial trials to result in truth and justice – not to result in a victory for the sharpest lawyer who plays the game with the most skill.
In a telling remark, Judge Morrison accuses Mr. Wolfgram of being a self-styled “philosopher” (Wolfgram at para 14). Now, what is more antithetical to the lawyer than the “philosopher”. The business of the philosopher is finding the truth – and the business of the lawyer is obscuring the truth in order to win the litigation game.
“ . . .
“Have you a lawyer?” asked the judge of a young man brought
“No, sir,” was the answer.
“Well, don’t you think you had better have one?” inquired His
“No, sir,” said the youth. “I don’t need one. I am going to tell the
From the jokester’s point of view only liars need lawyers—representatives whose stock in trade seems to be untruthfulness. Americans have been saying such things about attorneys since the founding of the Republic.” (Landsman, “The Growing Challenge of Pro Se Litigation” vol.13:2 Lewis & Clark Law Review 439, at p. 446).