Prior Restraint Errors in Wolfgram v. Wells Fargo – Part 1

[First published Oct. 31, 2013 – 293 views until now]

Prior Restraint Errors in Wolfgram v. Wells Fargo – Part 1

Wolfgram v Wells Fargo Bank (1997) 53 Cal.App.4th 43, is the opinion cited in case after case – often without further analysis – as the chief authority for upholding the constitutionality of California’s so-called “Vexatious Litigant Statute” (California Civil Procedure Code, Sec 391 et seq. – “VLS”). However, the author of the Wolfgram opinion, Judge Fred K. Morrison, unfortunately has made numerous judicial errors in his opinion.

The Wolfgram conclusions are not correct. They are based on fallacious reasoning, stereotypes and unfounded presumptions. These errors require more than one blog post to discuss. In this post, I focus on the errors regarding the issue of prior restraint.
What is “Prior Restraint”?

“The concept of prior restraint, roughly speaking, deals with official restrictions imposed upon speech or other forms of expression in advance of actual publication. . . .

Prior restraint is thus distinguished from subsequent punishment, which is a penalty imposed after the communication has been made as a punishment for having made it. . . .

Again speaking generally, a system of prior restraint would prevent communication
from occurring at all; a system of subsequent punishment allows the communication
but imposes a penalty after the event. Of course, the deterrent effect of a later penalty
may operate to prevent a communication from ever being made. Nevertheless, for a
variety of reasons, the impact upon freedom of expression may be quite different,
depending upon whether the system of control is designed to block publication in
advance or deter it by subsequent punishment. . . .

In constitutional terms, the doctrine of prior restraint holds that the First Amendment
forbids the Federal Government to impose any system of prior restraint, with
certain limited exceptions, in any area of expression that is within the boundaries of
that Amendment. By incorporating the First Amendment in the Fourteenth
Amendment, the same limitations are applicable to the states.” (Emerson, Thomas I., “The Doctrine of Prior Restraint” (1955). Faculty Scholarship Series. Paper 2804. ).

The right to file a lawsuit is a protected fundamental right under the First Amendment and the right to file it in propria persona is a protected general law of California

The First Amendment to the US Constitution guarantees every citizen’s right to freedom of expression – “Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people . . . to petition the Government for a redress of grievances.”. “Despite the explicit reference to “Congress,” the First Amendment, including specifically the right to petition, is “incorporated” against the states by virtue of the Fourteenth Amendment. (Hague v. Committee for Industrial Organization (1939) 307 U.S. 496, 512-513, 59 S.Ct. 954, 962-963, 83 L.Ed. 1423, 1435.)   Cases construing the California analog frequently rely on federal court interpretations of the First Amendment.” (Wolfgram).

Judge Morrison (at 50-55) acknowledges that the right to sue is part of the protected right to petition under the First Amendment to the United States Constitution.

“The right to petition encompasses the right to sue. (California Transport v. Trucking Unlimited (1972) 404 U.S. 508,510 . . . (Wolfgram at 52).

And the right to petition is one of “the most precious of the liberties safeguarded by the Bill of Rights,” Mine Workers v. Illinois Bar Assn., 389 U. S. 217, 222 (1967). The right is implied by “[t]he very idea of a government, republican in form,” United States v. Cruikshank, 92 U. S. 542, 552 (1876).

‘The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government.’ (Chambers v. Baltimore & O.R. Co. (1907) 207 U.S. 142,148 . . ‘[L]itigation may well be the sole practicable avenue open to a minority to petition for redress of grievances.’ (N.A.A.C.P. v. Button (1963) 371 U.S. 415, 430 . . .)”

(Wolfgram at 52-53).

The right to litigate in propria persona is also a protected right


“The right to represent oneself in United States courts dates back to the founding of the country. Having its roots in the British common law, the right to pro se appearances evolved as a combined proposition of “natural law,” an early anti-lawyer sentiment, and the egalitarian “all men are created equal” concept that “financial status should not have a substantial impact on the outcome of litigation.” The American legal ideal is that both the wealthy and the pauper could have access to the courts and could be treated equally with the resulting decisions being as fair as possible. The development of pro se rights in the United States has been tied to the rights of indigents to have access to the courts. Open access to the courts for all citizens has also been viewed as being important for the development of law and public policy and the avoidance of citizens’ resorting to non-judicial self-help.” (“The Pro Se Phenomenon” Drew A. Swank, Esq.* BYU Journal of Public Law v. 19 p. 373).

In fact, lawyers were 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 typical attitudes 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.”.

Most states enforced few if any restrictions on non-lawyers appearing in court on behalf of others — as Lincoln himself did before he talked a judge into granting him attorney status. The American Bar Association convinced states to pass “unauthorized practice of law” statutes in the 1920s and 1930s, which effectively gave lawyers a monopoly over the sale of legal information;

Even a court exasperated by frivolous pro se filings recognizes this right:
“. . . the right to file a lawsuit pro se is one of the most important rights under the constitution and laws.” (Elmore v. McCammon (5th cir, SD Texas, 1986) 640 F.Supp. 905,911).

In Faretta v. California, 422 U.S. 806 (1975), the US Supreme Court ruled that criminal defendants have a constitutional right to refuse counsel and represent themselves in state criminal proceedings.

In civil proceedings, the right to litigate in propria persona is also a protected right under California law.

Baba v. Board of Supervisors of the City and County of San Francisco, 124 Cal.App.4th 504 (2004) states the following:

“. . .the right to represent oneself in civil proceedings conducted in this state, though

established by precedent rather than statute, is firmly embedded in California jurisprudence. This right is necessary to protect and ensure the free exercise of express constitutional rights including the right to acquire and protect property and to access the courts. It is also implicitly recognized by statute. For these reasons, we conclude that the right to represent oneself in civil proceedings is a general law of this state.. . .

“At least by 1896, our Supreme Court recognized that a litigant has the right to represent him or herself in a civil proceeding in this state. (Philbrook v. Superior Court (1896) 111 Cal. 31, 54 (Philbrook).) . . .

Since then, California courts have repeatedly and consistently acknowledged this right. (See, e.g., O’Connell v. Judnich (1925) 71 Cal.App. 386, 388 (O’Connell); Culley v. Cochran (1930) 107 Cal.App. 525, 531; Gray v. Justice’s Court (1937) 18 Cal.App.2d 420, 423; Paradise v. Nowlin (1948) 86 Cal.App.2d 897, 898, questioned on other grounds in CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1147; Monastero v. Los Angeles Transit Co. (1955) 131 Cal.App.2d 156, 160; Doran v. Dreyer (1956) 143 Cal.App.2d 289, 290; People ex rel. Dept. of Pubic Works v. Malone (1965) 232 Cal.App.2d 531, 537; Abar v. Rogers (1981) 124 Cal.App.3d 862, 864-865; Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1055; J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 965; Drake v. Superior Court (1994) 21 Cal.App.4th 1826, 1830.) . . .

This authority establishes a “general rule” that “`any person may represent himself and his own interests, at law and in legal proceedings . . . .'” (J.W. v. Superior Court, supra, 17 Cal.App.4th at p. 965.) . . .

The decisions make clear that self-representation is not just a privilege but also a right. As one court explained: “It will be observed that the privilege of practicing law is confined to appearing in behalf of others. The right of one to appear and conduct his own case is not affected. One is a privilege and the other is a right.” (Gray v. Justice’s Court, supra, 18 Cal.App.2d at p. 423.) . . .

Furthermore, It appears that the existence of such a right was never a subject of judicial dispute. (See, e.g., Paradise v. Nowlin, supra, 86 Cal.App.2d at p. 898 [noting that this general rule is “overwhelmingly sustained by the authorities.”].)” (Baba, supra).

The government, state, federal, or local, is prohibited from restraining or oppressing this right by censorship of any kind either before or after the publication of the expression.

The Pre-Filing Order of Cal.Civ.Proc. Sec.391.7 – which prohibits the filing by certain blacklisted people of any litigation in propria persona without approval by a censor – constitutes an impermissible Prior Restraint

California’s VLS was passed by the California Legislature in 1963. The VLS permits a defendant to move the court to require a security for litigation from a litigant who fails to hire a lawyer (a “pro se litigant” or “litigant in propria persona”) and who also meets certain other conditions.

In 1990, the California Legislature amended the VLS, adding Sec. 391.7. This provides state court judges the power to issue “prefiling orders” which, once issued, bar individuals previously or contemporaneously classified as vexatious litigants from filing additional complaints without first obtaining leave from the court where the litigation is proposed to be filed. Under Sections 391.7 and 391(b)(4) of the VLS, the name of any litigant who fails to hire a lawyer and meets certain other criteria (which, incidentally, may be completely blameless) may be put on an official blacklist distributed by Judicial Council of California for the purpose of being barred from filing any litigation in California (except small claims court) and to be stigmatized as a “vexatious litigant” – for life (see sec. 391(b)(4) – although see sec. 391.8).

Prior restraints are “administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.” Alexander v. United States, 509 U.S. 544, 550 (1993).

A “Prior restraint” is a form of government censorship:

“The concept of prior restraint, roughly speaking, deals with official restrictions

imposed upon speech or other forms of expression in advance of actual publication. Prior restraint is thus distinguished from subsequent punishment, which is a penalty imposed after the communication has been made as a punishment for having made it. Again speaking generally, a system of prior restraint would prevent communication from occurring at all; a system of subsequent punishment allows the communication but imposes a penalty after the event. (Emerson, Thomas I.,”The Doctrine of Prior Restraint” (1955). Faculty Scholarship Series. Paper 2804. http://digitalcommon…ss_papers/2804)

In order to curb “groundless litigation” the California Legislature has enacted several systems:

(1) California Penal Code Sec. 158 which states the following: “158. Common barratry is the practice of exciting groundless judicial proceedings, and is punishable by imprisonment in the county jail . . .”;

(2) California Civil Procedure Code Sec. 128.5: “128.5. (a) Every trial court may order a party, the party’s attorney, or both to pay any reasonable expenses, including attorney’s fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessarydelay. . . .”.

(3) A motion for summary judgment under Cal.Civ.Proc.Code 437c – “(a) Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit . . . “,

(4) A motion for judgment on the pleadings under Cal.Civ.Proc.Code sec. 438 – “(b) (1) A party may move for judgment on the pleadings. (2) The court may upon its own motion grant a motion for judgment on the pleadings. © (1) The motion provided for in this section may only be made on one of the following grounds: . . . (B) If the moving party is a defendant, that either of the following conditions exist: (i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint. (ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant.”.

(5) A demurrer under Cal.Civ.Proc.Code sec. 430.10 – “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:
(a)The court has no jurisdiction of the subject of the cause of action alleged in the pleading.
(b)The person who filed the pleading does not have the legal capacity to sue. ©There is another action pending between the same parties on the same cause of action. (d)There is a defect or misjoinder of parties. (e)The pleading does not state facts sufficient to constitute a cause of action. (f)The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

(6) A motion under anti-SLAPP statute Cal.Civ.Code sec. 425.16. Generally, a “SLAPP” is a civil complaint arising from defendant’s communications to government or speech on an issue of public interest. Ordinary civil claims such as defamation, etc., are used to transform public debate into lawsuits. Sec. 425.16 allows a judge to decide at the outset of the suit whether the SLAPP has a “probability” of winning. If the judge finds that it does not, the SLAPP must be dismissed, and the SLAPP target wins his or her legal defense costs and attorneys’ fees. The expressive activity protected under Sec. 425.16 includes any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;

(7) Prefiling order under VLS Sec. 391.7 which prohibits filing of any litigation by a particular class of people (a VL) except after it has been pre-screened (censored) – the litigation is permitted to be filed . . . “. . . only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay” (Sec. 391.7(b)).

Each of systems “1” – “6” above is an effective means of curbing litigation lacking merit by means of subsequent consequences (or punishment).

The prefiling order under VLS Sec. 391.7, is intended to do the same thing. Thus, the prefiling order under Sec. 391.7 would seem to be a classic case of an impermissible prior restraint. However, Judge Morrison rules that this is not so, making the following errors . . .

Judge Morrison’s Error # 1 – Mischaracterizing Sec. 391.7 as a “licensing system”

Judge Morrison mis-characterizes the VLS sec. 391.7 pre-filing order and blacklisting scheme as a benign licensing system rather than as a matter of government censorship in the form of a prior restraint:.

“To the extent it keeps vexatious litigants from clogging courts, it is closer to “licensing or permit systems which are administered pursuant to narrowly drawn, reasonable and definite standards” which represent “government’s only practical means of managing competing uses of public facilities.”.
However, that characterization is not correct. The Sec. 391.7 scheme is, in actuality, a prior restraint on the right to petition in the strictest sense of that term, because prospective petitioners are compelled by threat of contempt of court to seek permission from a government censor (the presiding judge) before the petition takes place. See Near v. Minnesota ex rel. Olson, 283 U. S. 697, 712-713 (1931). Here the prospective petitioners must ask an agent of the government (the censor/judge) for prior permission to petition.

This type of restriction gives the censor/judge a power analogous to the licensing laws implemented in 16th- and 17th-century England, exactly the type of laws and governmental practices that the First Amendment was originally drawn to prohibit. See Thomas v. Chicago Park Dist., 534 U. S. 316, 320 (2002); Lovell v. City of Griffin, 303 U. S. 444, 451-452 (1938); Near, supra, at 713-714.

The definition of “prior restraint” in Alexander v. United States, 509 U.S. 544 (1993) clarifies how the doctrine is clearly applicable to Sec. 391.7:

“The term prior restraint is used “to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.” M. Nimmer, Nimmer on Freedom of Speech § 4.03, p. 4-14 (1984) (emphasis added). Temporary restraining orders and permanent injunctions — i.e., court orders that actually forbid speech activities — are classic examples of prior restraints. See id., § 4.03, at 4-16. This understanding of what constitutes a prior restraint is borne out by our cases, even those on which petitioner relies. In Near v. Minnesota ex rel. Olson, supra, we invalidated a court order that perpetually enjoined the named party, who had published a newspaper containing articles found to violate a state nuisance statute, from producing any future “malicious, scandalous and defamatory” publication. Near, therefore, involved a true restraint on future speech — a permanent injunction. So, too, did Organization for a Better Austin v. Keefe, 402 U.S. 415, 29 L. Ed. 2d 1, 91 S. Ct. 1575 (1971), and Vance v. Universal Amusement Co., 445 U.S. 308, 63 L. Ed. 2d 413, 100 S. Ct. 1156 (1980) (per curiam), two other cases cited by petitioner. In Keefe, we vacated an order ” enjoining petitioners from distributing leaflets anywhere in the town of Westchester, Illinois.” 402 U.S., at 415 (emphasis added). And in Vance, we struck down a Texas statute that authorized courts, upon a showing that obscene films had been shown in the past, to issue an injunction of indefinite duration prohibiting the future exhibition of films that have not yet been found to be obscene. 445 U.S., at 311. See also New York Times Co. v. United States, 403 U.S. 713, 714, 29 L. Ed. 2d 822, 91 S. Ct. 2140 (1971) (per curiam) (Government sought to enjoin publication of the Pentagon Papers).”.

Just as we see that “court orders that actually forbid speech activities — are classic examples of prior restraints” – we can see that a prefiling court order under Sec. 391.7 is a classic example of a prior restraint.

Just as the restraint on future speech in Near was an impermissible permanent injunction, so too is the pre-filing order under Sec. 391.7. (Incidentally, another issue (for another blog post) is the the absence, under Sec. 391.7, of all the elements required for the issuance of a permanent injunction.)

And just as in Vance – where, even though past films were obscene, it was impermissible to prohibit future exhibition of films “not yet found to be obscene” – it is likewise impermissible to prohibit future litigation “not yet found to be vexatious (or without merit)”. Moreover, in Vance the past films were actually obscene – but under Sec. 391.7 doesn’t require a finding of “actual vexatiousness” or even of anything actually blameworthy at all on the part of the injunctionee.

Judge Morrison’s Error # 2 – A “Licensing System” paradigm for Sec. 391.7 fails because Wolfgram involves a Fundamental First Amendment right.

Judge Morrison overlooks the critical point made in Vance – that his “licensing system” analysis must fail because the regulation in this case involves a fundamental First Amendment right . . .

“ . . . the state has tried to distinguish the instant case from Near v. Minnesota, supra, but the attempt is not successful. In both cases, the state made the mistake of prohibiting future conduct after a finding of undesirable present conduct. When that future conduct may be protected by the first amendment, the whole system must fail, because the dividing line between protected and unprotected speech may be ‘dim and uncertain.’ Bantam Books v. Sullivan, 372 U.S. [58, 372 U. S. 66 (1963)]. The separation of these forms of speech calls for ‘sensitive tools,’ Speiser v. Randall,357 U. S. 513 . . . (1958), not the heavy hand of the public nuisance statute.” (Vance at fn 3).
The state’s mistake in Vance is the same mistake made by Judge Morrison in Wolfgram.

In Speiser v. Randall, 357 U.S. 513 (1958) the appellants were denied tax exemptions by a statute which required a loyalty oath as evidence of non-criminal activity.

“The vice of the present procedure is that, where particular speech falls close to the line separating the lawful and the unlawful, the possibility of mistaken factfinding – inherent in all litigation – will create the danger that the legitimate utterance will be penalized. The man who knows that he must bring forth proof and persuade another of the lawfulness of his conduct necessarily must steer far wider of the unlawful zone than if the State must bear these burdens. This is especially to be feared when the complexity of the proofs and the generality of the standards applied, cf. Dennis v. United States, supra, provide but shifting sands on which the litigant must maintain his position. How can a claimant whose declaration is rejected possibly sustain the burden of proving the negative of these complex factual elements? In practical operation, therefore, this procedural device must necessarily produce a result which the State could not command directly. It can only result in a deterrence of speech which the Constitution makes free. “It is apparent that a constitutional prohibition cannot be transgressed indirectly by the creation of a statutory presumption any more than it can be violated by direct enactment. The power to create presumptions is not a means of escape from constitutional restrictions.” Bailey v. Alabama, 219 U.S. 219, 239 “. (Speiser at 527).

Judge Morrison’s Error # 3 – The prefiling order under sec. 391.7 is not a content neutral regulation

Judge Morrison, under the heading “Prior Restraint”, discusses Smith v. Silvey (1983) 149 Cal.App 3d 400, a case which cites a list of cases – all of which seem to set out a strong argument for sec.391.7’s prefiling order being an impermissible prior restraint.

But then Wolfgram suddenly shifts into reverse – stating the following:

“This line of cases involves government censorship. A vexatious litigant is not the subject of content discrimination. Wolfgram’s assumption that Judges (reviewing proposed filings) or attorneys employed by a litigant to bypass the prefiling order (as officers of the court), may perpetuate censorship as organs of the judiciary or of the government generally is unfounded. We presume attorneys and judges obey all laws, . . .”.

Judge Morrison’s view – that the prefiling order is a content neutral regulation – is obviously not correct..

“Content-neutral restrictions limit communication without regard to the message conveyed. Laws that prohibit noisy speeches near a hospital, ban billboards in residential communities, impose license fees for parades and demonstrations, or forbid the distribution of leaflets in public places are examples of content-neutral restrictions. Content-based restrictions, on the other hand, limit communication because of the message conveyed. Laws that prohibit seditious libel, ban the publication of confidential information, forbid the hiring of teachers who advocate the violent overthrow of government, or outlaw the display of the swastika in certain neighborhoods” (Geoffrey R. Stone, Content Regulation and the First Amendment, 25 Wm. & Mary L. Rev. 189 (1983),

Under the pre-filing order of sec. 391.7 . . .

“The presiding judge shall permit the filing of that litigation only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay”.

How can the censoring judge know if the proposed litigation “has merit” if he does not consider its content – i.e., “the message conveyed”? If the censoring judge is not considering the content of the proposed filing what is it that he is considering? The color of the paper? The size of the type? It should go without saying that he is considering the content of the proposed filing. The judge/censor must consider the message conveyed by the proposed filing in order to determine whether or not the litigation has merit (and, as Judge Morrison points out, we presume that the judge will do what he is legally required to do).

Judge Morrison apparently did not understand the difference between censorship and content-neutral restrictions. Under VLS 391.7, the litigation screener obviously must examine the substance of the message intended to be filed – that is censorship:

“Content-based speech regulations examine the substance of the message conveyed.” (Geoffrey R. Stone, “Content Regulation and the First Amendment”, 25 Wm. & Mary L. Rev.189, 190 (1983) (analyzing the content-based and content-neutral distinction).


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