Prior Restraint Errors in Wolfgram v. Wells Fargo – Part 2

[First published Oct. 31, 2013 – 233 views until now]

Judge Morrison’s Error # 4 – A “Partial Restriction” is still a “prior restraint”

Judge Morrison holds that what he describes as a “partial restriction” does not constitute a prior restraint.

“Wolfgram has not established that a partial restriction on the ability to file suit has ever been held to be a “prior restraint” requiring a showing of clear and present danger and concomitant procedural safeguards. . . . To the extent it keeps vexatious litigants from clogging courts, it is closer to “licensing or permit systems which are administered pursuant to narrowly draw, reasonable and definite standards” which represent “government’s only practical means of managing competing uses of public facilities[.]”  . . . When a vexatious litigant knocks on the courthouse door with a colorable claim, he may enter.”.

However, Smith v. Silvey 149 Cal.App.3d 400 (1983) determined that a particular injunction against filing — which was only “partial” — was nevertheless determined to be prior restraint. Smith was cited by Judge Morrison but was not factually distinguished.

Judge Morrison overlooks that “For a citizen to be made to forego even a part of so basic a liberty . . ., the subordinating interest of the State must be compelling.” (Sweezy v. New Hampshire (1956) 354 U.S. 234,265 — concurring opinion).

Judge Morrison overlooks that “If a person’s right to a hearing depends on the will or caprice of others, or on the discretion of the judge who is to make a decision on the issue, that person is not protected in his or her constitutional rights.” (13 CAL JUR (Rev) Part 1, s.v.”Constitutional Law”, §287 (noting Re Lambert (1901) 134 Cal. 626); Estate of Buchman 123 Cal.App. 2nd 546 (1954); 47 ALR 2d 291). Under VLS sec. 391.7, judge/censor

Judge Morrison considers §391.7 (“[t]o the extent it keeps vexatious litigants from clogging courts”) to be “closer to ‘licensing or permit systems’” rather than being a prior restraint requiring a showing of clear and present danger. Judge Morrison overlooks that congestion in the courts is not a ground for denying access to the courts. See Weeks v. Roberts (1968) 68 Cal.2d 802. “It is the task of the law to remedy wrongs which merit redress even at the expense of incurring a torrent of litigation.” (1 Am Jur 2d §43, s.v. “Novelty of action”).

Pro se litigants are not the cause of overcrowded courts. The honest straightforward pro se litigant who makes mistakes out of ignorance is far less a threat to the judicial system then the conniving lawyer who turns a simple dispute into years and years of fee-generating (and court-congesting) litigation. Abuse of judicial process is properly the subject of case-by-case judicial determinations.

Judge Morrison’s Error # 5 – That the censor is a judge does not save the statute

Judge Morrison (as quoted above) assures us – In regard to the prefiling order under sec. 391.7 – that judges or lawyers, qua censors, will not “perpetuate censorship”:

“We presume attorneys and judges obey all laws, particularly the state and federal constitutions, which they are sworn to uphold.”.

However, it does not matter that the censor is a judge. See Vance v. Universal Amusement Co. which states the following in regard to a statute imposing a prior restraint on obscenity:

“Nor is the statute saved merely because the temporary restraint is entered by a state trial judge, rather than an administrative censor. That a judge might be thought more likely than an administrative censor to determine accurately that a work is obscene does not change the unconstitutional character of the restraint if erroneously entered.”.

In any case, Judge Morrison’s confidence in lawyers and judges in the role of censors is grossly misplaced.

A. The Lawyer as a Censor in regard to Groundless Litigation

“ . . .
“Have you a lawyer?” asked the judge of a young man brought
before him.
“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).

Judge Morrison relies on the lawyer’s status as an “officer of the court”.

Notwithstanding claims of professionalism and ethical standards coming from bar associations, the notion that a lawyer will put his professional integrity above his greedy commercial interests is “sanctimonious humbug” to use the words of the US Supreme Court in Bates v. State Bar of Arizona (1976) 433 U.S. 350,368 (n.19):

“. . . ‘We all know that law offices are big businesses, . . . the argument may be made that to term them noncommercial is sanctimonious humbug.”.

Unlike Judge Morrison, most Americans do not have faith in the honesty and integrity of lawyers. In the Dec. 2011 Gallup Poll (“Honesty/Ethics in Professions”) Lawyers received only 19% high rating from respondents – below real estate agents (20%) but above labor union leaders (18%), stockbrokers (12%), lobbyists (7%) and car salespeople (7%).

But the Gallup poll was based on general considerations. Here we are talking about the lawyer as a censor to prevent groundless litigation.

The purported purpose of §391 et seq is to curb “groundless litigation”. Wolfgram at App.249. The presumption is that a litigant who hires a lawyer to represent him is less likely to file groundless litigation than a litigant who doesn’t.

However, this presumption is totally unfounded. The US Supreme Court has recognized that it is, indeed, part of the lawyer’s job – “[w]ithin the limits of professional propriety” – to litigate just as vexatiously as a (pro se) so-called “vexatious litigant” defined by sec. 391 et seq:

“Under our adversary system, the role of counsel is not to make sure the truth is ascertained but to advance his client’s cause by any ethical means. Within the limits of professional propriety, causing delay and sowing confusion not only are his right but may be his duty.” (Walters v. Nat. Assn. of Radiation Survivors (1984) 473 U.S. 305,325 (upholding constitutionality of 38 U.S.C. §3404© which limits to $10 the fee that may be paid an attorney representing a veteran seeking VA benefits).

The fact that “lawyers” and “groundless litigation” go hand in hand has been universally perceived by most of humanity since ancient times. The lawyer has been held up as an object of scorn and derision by the greatest thinkers of society throughout American history and even from ancient times:

“The case against the lawyer has not been stated more bitterly than by Plato . . . A philosopher has his talk out in peace, and wanders at will from one subject to another, not caring whether his words are many or few, if only he attains the truth. But the lawyer is always in a hurry; there is the water flowing through the water-clock to drive him on and not allow him to develop his points at will; there is his adversary standing over him, enforcing his rights; there is the pleading to be read, from which he must not deviate. He is a servant continually disputing before his master, who is seated, and has the cause in his hands. As a consequence, . . . his character becomes small and warped. . . . he has been driven into crooked ways; from the first he has practiced deception and retaliation, and has become bent and stunted. . . . he thinks he has become clever and wise. His narrow, keen, pettifogging mind reveals its helplessness when, divorced from its pleas and rejoinders, . . ..” (Huntington Cairns, Legal Philosophy from Plato to Hegel(Johns Hopkins Pr.,1949, p.74-75; citing Theaet. 175-177;Rep.405).

Other examples abound in literature, e.g., Jonathan Swift’s Gulliver’s Travels, Chapter V: “[T]here was a society of men among us, bred up from their youth in the art of proving by words multiplied for the purpose, that white is black, and black is white, according as they are paid.”; etc., etc. See ROTH, Devil’s advocates (Nolo Pr.,1989) for 171 pages of more examples.

The ancient Romans recognized that the danger of an increase in groundless 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).

The lawyer is a hired gun. He is paid money by one stranger to go into court and slander another stranger. Whoever has justice on his side is not his concern. His only “moral” concern is to what extent he zealously represents his client – not whether justice is achieved. And if he is representing the guilty it is his solemn obligation to see that justice is perverted. So it’s no wonder that lawyers have been attacked throughout history:

“The historian J.B. McMaster wrote that during the early American Republic: ‘. . . [lawyers] were denounced as banditti, as bloodsuckers, as pickpockets, as windbags, as smooth-tongued rogues . . . . The mere sight of a lawyer . . . was enough to call forth an oath or a muttered curse. . . .” (citing J.B. McMaster, History of the People of the United States, vol.1, quoted in Warren, A History of the American Bar (Boston, Little,Brown,1911), pg. 216.)

B. The Judge as a Censor in regard to Groundless Litigation

Historically, American judges have also been widely mistrusted. Restrictions on the instructions and comments that a judge can make, before a jury, grew out of this mistrust. The law of evidence, as it evolved in America, reflects a system of checks and balances of its own:

“The modern European law of evidence is fairly simple and rational; the law of evidence lets most everything in and trusts the judge to separate the good from bad. But American law distrusts the judge; it gives the jury full fact-finding power, and in criminal cases, the final word on innocence or guilt. Yet the law has distrusted the jury almost as much as it has distrusted the judge and the laws of evidence grew up as a countervailing force.” Friedman, p. 135.

It is, of course, silly to consider the judge/censor under VLS sec. 391.7 to be any more law-abiding than any of the official censors who were disallowed in the line of prior restraint cases. In fact, the contrary is much more realistic. It would not be incorrect to say that the per capita number of dishonest judges far exceeds the per capita number of dishonest people in the general population. See for example, Ashman, The Finest Judges Money Can Buy: and Other Forms of Judicial Pollution (Nash Pub., 1973) which documents a whole slew of crooked judges up to 1973. And there has been no shortage of corrupt judges since then.

Judge Morrison’s Error # 6 – Assurances that the censor will be fair cannot justify impermissible censorship

Judge Morrison assures us not to worry that specially protected proceedings might not be permitted under the prefiling order. We can presume that the censor will be fair!

“, if a vexatious litigant chooses to file an action implicating family rights, which Wolfgram properly characterizes as subject to particular constitutional protections, the presiding
Judge of the proposed court presumably will take the nature of the action into consideration. For example, a declaration by the litigant that he is presently married and desires a divorce would, in all likelihood, constitute good cause to allow him to file a dissolution petition; the minimal delay and effort in drafting the request for permission to file the action would not be an unreasonable hurdle. Similarly, Wolfgram’s claims regarding writs of habeas corpus, a type of litigation we have acknowledged merits unique
constitutional protection, fail, because we presume a presiding Judge would consider the special nature of the Great Writ in deciding whether to allow the filing of a petition therefor” (Wolfgram at para 64).

However, Judge Morrison cites no authority for his novel proposition that the presumed future fairness of the censor can justify constitutionally impermissible censorship.

Judge Morrison’s Error # 7 – The opinion fails to make a meaningful distinction between the Sec. 391.7 prefiling order and the prohibited injunction of Smith v. Silvey (1983) 149 CalApp 3d 400

In the Wolfgram case, Mr. Wolfgram relied on Smith v. Silvey as support for his assertion that Sec. 391.7 imposes an unconstitutional prior restraint.

“Wolfgram relies on Smith v. Silvey, supra, 149 Cal. App. 3d 400, which invalidated an injunction prohibiting Silvey from contacting public agencies with complaints. The court held such injunction violated his right to petition the government and constituted a “prior restraint,” invalid under the First Amendment without a showing of a “clear and present danger.” (Pp. 406-407.) But in that and other “prior restraint” cases, content discrimination is present. (Danskin v. San Diego Unified Sch. Dist. (1946) 28 Cal. 2d 536, 545-548, 554 [171 P.2d 885] [applicant for use of auditorium cannot be required to swear lack of affiliation with given group], id. at pp. 556-557 (conc. opn. of Carter, J.); New York Times Co. v. United States (1971) 403 U.S. 713 [91 S. Ct. 2140, 29 L.Ed.2d 822] [newspaper cannot be barred from publishing Pentagon Papers], Thomas v. Collins, supra, 323 U.S. 516 [union organizer cannot be enjoined from speaking without a license]; Bridges v. California (1941) 314 U.S. 252 [62 S.Ct. 190, 86 L.Ed. 192, 159 A.L.R. 1346] [vacating contempt consisting of comments about pending litigation]; Near v. Minnesota (1931) 283 U.S. 697, 713-723 [51 S.Ct. 625, 630-633, 75 L.Ed. 1357, 1366-1371] [newspaper cannot be enjoined from defamation [53 Cal. App. 4th 60] (criticism of official conduct), but during war “government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops”]; Schenck v. United States (1919)249 U.S. 47, 50-53 [39 S.Ct. 247, 248-249, 63 L.Ed. 470, 473-474].)”.

Judge Morrison rejects application of Smith v. Silvey by holding that the Sec. 391.7 order does not involve content discrimination.

“This line of cases involves government censorship. A vexatious litigant is not the subject of content discrimination.””.

However, as shown above (Error # 2) the Sec. 391.7 order does indeed involve content discrimination. Thus, Judge Morrison has failed to make any meaningful distinction between the prefiling order of 391.7 and the unconstitutional injunction in Smith v. Silvey.

Judge Morrison’s Error #8 – The view is incorrect that the pre-filing order is no greater a prior restraint than other systems of curbing groundless litigation

The same idea is expressed in the context of a criminal prior restraint struck down in Vance v. Universal Amusement Co..

“A Texas public nuisance statute, construed as authorizing state judges, on the basis of a showing that a theater exhibited obscene films in the past, to enjoin its future exhibition of films not yet found to be obscene, is unconstitutional as authorizing an invalid prior restraint. The statute cannot be considered to be valid on the asserted ground that it constitutes no greater a prior restraint than any criminal statute, since presumably an exhibitor would be subject to contempt proceedings for violating a preliminary restraining order under the statute even if the film is ultimately found to be nonobscene, whereas nonobscenity would be a defense to any criminal prosecution.” (Vance, supra, Syllabuis).

In other words, where a First Amendment right is involved one cannot be compelled to first prove the innocence of the action, even if there is a history of guilt in the past. Likewise, a VL cannot be compelled to prove that a proposed litigation has merit before it is filed.

Judge Morrison’s Error # 9 – Incorrect to rely on Felker v.Turpin to give legitimacy to sec. 391.7’s “gatekeeping” function.

Wolfgram opinion states the following:

“The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) bars a second (“successive”) habeas corpus application repeating a claim made in an earlier application and bars an application raising a new claim unless the applicant seeks relief based on a retroactive change in the law, or new facts not previously discoverable which would demonstrate a claim of constitutional error of sufficient magnitude to undermine the result at trial.   A person seeking to file such an application in federal district court must obtain permission from a federal court of appeals.   If, as Wolfgram maintains, there can be no limitation on the exercise of the right to petition against the government, this so-called “gatekeeper” provision would violate the First Amendment.   Yet, Felker upholds the statutory “gatekeeper” mechanism.  (518 U.S. at —- - —-, 116 S.Ct. at pp. 2338-2339, 135 L.Ed.2d at p. 838.)   Although the First Amendment was not mentioned in that case, it is unlikely that, if the Petition Clause means what Wolfgram claims it means, the court would miss the issue.”

The Supreme Court did not “miss the issue” – Judge Morrison missed the issue.

Felker v. Turpin, 518 U.S. 1051 (1996). is discussing “. . . a “gatekeeping” mechanism for the consideration of second or successive applications in district court. The prospective applicant must file in the court of appeals a motion for leave to file a second or successive habeas application in the district court.”.

It is not discussing an original lawsuit or claim at all – whereas Sec. 391.7 precludes all original claims or lawsuits. See Stewart v. Martinezvillareal, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (U.S. 05/18/1998) which makes this distinction clear (“The fact that this was the second time that respondent asked the federal courts to provide relief on his Ford claim does not mean that there were two separate applications, the second of which was necessarily subject to [the “gatekeeping”] Section 2244(b) . . . To hold otherwise would mean that a dismissal of a first habeas petition for technical procedural reasons, having nothing to do with the claim’s merits, would bar the prisoner from ever obtaining federal habeas review. The State’s reliance on Felker v. Turpin, supra, for a contrary interpretation is misplaced.”).

Under AEDPA a person convicted of murder – AFTER TRIAL – and after, presumably, multiple levels of appeals then – and only then – files “successive” unsuccessful habeas petitions can have further habeas petitions pre-screened.

Whereas, under sec. 391.7, a completely blameless person who through lack of lawyering skill has lost five meritorious lawsuits (under sec. 391) or who (under sec. 391) has been in court only once in his/her life but filed in good faith papers which a judge considers to be “frivolous” is subject to pre-screening of ANY lawsuit at all.

There is obviously no comparison to these two statutes. Felker has no bearing on the constitutionality of sec. 391.7.

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