Wolfe v. George – Judge Kleinfeld’s Judicial Shortchange

[First published Oct. 23, 2013 – 216 views until now]

California’s so-called “Vexatious Litigants” Statute” (“VLS” – California Civil Procedure Code Section 391 et seq) 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 (“pro se litigant” or “litigant in propria persona”) and who also meets certain other conditions. It is not applicable to a litigant represented by a lawyer.

The VLS was originated by a trade association of attorneys – the Los Angeles County Bar Association.

“The idea began with the Los Angeles County Bar Association and was pursued by the State Bar, which argued ‘The need for the adoption of this legislation is that there is an unreasonable burden placed upon the courts by groundless litigation, which, in turn, prevents the speedy consideration of deserving and proper litigation . . .’”. (Wolfgram v Wells Fargo Bank (1997) 53 Cal.App.4th 43).

In other words, citizens not represented by a lawyer – and often with little or no knowledge of the law (pro se litigants) – burden the courts and take time away from what is described as “deserving and proper” litigation – i.e., money-making, neatly-packaged litigation presented by expensive lawyers (which is much easier for judges to deal with).

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 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).

In any one litigation – even if that person has never before seen the inside of a courtroom – a litigant who fails to hire a lawyer files any papers – or does anything at all – which a judge considers to be “frivolous” – can be labeled a so-called vexatious litigant”.

A civil statute which is too indefinite to enforce is invalid. See Seaboard Acc.Corp. v. Shay (1931} 214 Cal.361. It would seem that – because the phrase “tactics that are frivolous” in VLS Sec. 391(b} (3) is intended to be applied to laymen pro se litigants – the statute is too indefinite to enforce and is, therefore, invalid.

And, to the extent VLS Sec. 391(b} (3} requires for compliance, a “reasonable attorney” standard of knowledge, skill, experience and conduct, it denies due process to laymen pro se litigants. VLS Sec. 391(b} (3} prohibits engaging in “tactics that are frivolous”. However, as shown below, recognition of whether or not a litigation tactic is frivolous requires the knowledge, skill and experience of an attorney.

Constitutional objections to the VLS were discussed – very briefly – and rejected in the published federal appellate decision of Wolfe v. George (9th. Cir. 2007) 486 F.3d 1120. The short shrift given to Mr. Wolfe’s cogent arguments in the opinion is a classic example of what Bernard Witkin calls “judicial shortchange”.

“I know that there is a Law of Judicial Parsimony, which states that a court should decide no more than it must. That law has merit, for it prevents courts from deciding matters not thoroughly presented. But sometimes courts extend this “law” to the point of deciding no more than is necessary to get the case off the desk. Judicial Parsimony then becomes judicial shortchange. And this often happens. Litigants are entitled to an opinion that charts a course for them to follow or tells them where they stand. And too often they do not get it. The court’s opinion slithers out through some pinhole, . . . .” (Witkin, Manual on Appellate Court Opinions (West Pub.Co., 1977) at p.123)

Mr. Wolfe asserted twelve grounds by which the VLS violated his rights, three of these were the following:

(9) Fourteenth Amendment – Equal Protection;
(10) Overbreadth; and
(11) Vagueness.

The following arguments in regard to issue (11) Vagueness are copied from Mr. Wolfe’s Reply Brief (at p. 7 – 10).

[Incidentally, the Los Angeles County Law Library has copies of briefs filed in 9th circuit cases (as well as California appellate court and supreme court cases) and they will email particular copies of them for a modest fee.]

Mr. Wolfe’s Reply Brief sets forth the vagueness issue as follows:

“The key test for vagueness is whether or not the person who will be subject to the definitions can understand what they mean so that the person can have fair warning of what is prohibited.

What do the definitions of a ‘vexatious litigant’ in CCP sec. 391(b) mean? Since no meanings appear on the face of the statute itself and the California Supreme Court has declined to supply any, the task of providing meanings has been left to the California Court of Appeal. But the Court of Appeal has failed to provide meanings for the definitions (‘unmeritorious’ pleadings or papers, ‘unnecessary discovery’, ‘other tactics that are frivolous’) tested in a CCP 391 motion, with the exception that rather ambiguous meanings have been applied to ‘litigations . . . finally determined adversely’; and the Court of Appeal has experienced a torturous, unsuccessful struggle to come up with a consistent meaning for that one.

In Taliaferro v. Hoogs, 237 Cal.App.2d 73 (1965), the Court of Appeal defined the term as ‘unsuccessful suits.’ Id, page 75. (There was no indication from the Court as to whether or not it should be construed from that meaning that the lawsuits examined for purposes of a CCP 391 motion were dismissed because they lacked merit.)
In Childs v. Paine Webber, Inc., 29 Cal.App. 4th 982 (1994), the Court of Appeal, noting that ‘final determination’ is not defined in CCP sec. 391(b), settled upon the principle that ‘a judgment is final for all purposes when all avenues for direct review have been exhausted.’ Id, page 993. (On that basis, the CCP 391 “vexatious litigant” order in this case was reversed.)

In Tokerud v. Capitalbank Sacramento, 38 Cal.App.4th 775 (1995), the Court of Appeal held in one part of the opinion that “a voluntary unilateral dismissal of the underlying dispute is generally considered a termination in favor of the defendant.” Id., page 779. Wolfe has seen judges use that part of the opinion to declare a pro se plaintiff to be a “vexatious litigant” without looking beyond “generally considered” to the exception; and though no evidence of Wolfe’s observation is before this Court, certainly this Court can assume, hypothetically, that such a result is possible.
The exception in Tokerud to “generally considered” is this: “where the dismissal leaves some doubt regarding the defendant’s liability, as when the dismissal is part of a negotiated settlement,” then the dismissal will “not be deemed a termination favorable to the defendant.” Id.,pages 779-780.

Thus, the view of “finally determined adversely” in the case relied upon by Appellees’ attorney, Taliaferro v. Hoogs (supra), wherein the definition is “unsuccessful suits,” is in conflict with the views of other divisions (or justices) of the California Court of Appeal.
The question, then, is how a self-represented lay person, untrained and unskilled in law, is to know if past litigations should be construed as having been “finally determined adversely” to her or him under any one of the conflicting definitions of that phrase in opinions from the California Court of Appeal that might lead to a finding in the course of a future litigation that she or he is a “vexatious litigant”? If Court of Appeal justices are so uncertain of the meaning that they issue conflicting versions of it, and reverse superior court judges’ findings on the matter, how then should an unskilled lay person know what to make of it?

What does “other tactics that are frivolous” mean? An observer of pro se litigants’ struggles in the state courts will find that these individuals are presenting pleading papers and arguments that they consider to be supportive of their cause. That they may find a definition of “frivolous” in case law telling them the terms means that which the average attorney would construe as meritless is of no help to them, since they do not know and cannot be expected to know what criteria are used by the average attorney.
What does “unnecessary discovery” mean? Every day, in the Discovery Department of the San Francisco Superior Court, lawyers argue like dogs snarling for the right to unclaimed meat over the interrogatories and requests for production of documents at issue. If skilled lawyers do not know and must leave it to a court commissioner/judge pro tem to decide, how can an unskilled lay person who manages mirabile dictu to get as far as the discovery process know what he or she is entitled to discover – or, to put it as in CCP 391 – what is or is not “unnecessary discovery”?”

And Mr. Wolfe states at p. 13 of his reply brief the following:

“Held as the test for vagueness: “standards of permissible statutory vagueness are strict in the area of free expression.” N.A.A.C.P. v. Button, 371 U.S. 415, 429 (1963). The danger of vagueness, especially in relation to overbreadth of a statute, does not depend upon the notice of what is prohibited, but rather “upon the danger of tolerating in the area of First Amendment freedoms” a law “susceptible of sweeping” application. Id, page 433. Because First Amendment freedoms need breathing space to survive, “government may regulate in the area only with narrow specificity.” Id. A “vague and broad statute lends itself to selective enforcement against unpopular causes.” Id., page 435. When dismissal of an action is allowed under the terms of a statute, it cannot b e assumed that ambiguities in those terms “will be resolved in favor of adequate protection of First Amendment rights.” Id.,page 438. “Broad prophylactic rules in the area of free speech are suspect.” Id. The First Amendment right to advocate in the courts is so precious that there must be a clear statutory definition of the terms used in that statute. Id.,page 434, emphasis added. clearly, CCP 391 fails to meet that test.
As Wolfe argued in the district court, the problem with CCP 391 is that it does not contain definitions of the terms, used to determine whether or not a self-represented person is a “vexatious litigant”, on the face of the statute itself, and that situation leads to arbitrary decisions: . . .
Also see, Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 498-499 (1982) [when a statute impacts on a First Amendment right, a strict test for vagueness must be applied]: California Teachers Assn. v. State Board of Education, 271 F. 3d 1141, 1151 (9th Cir. 2001)[“a statute’s vagueness exceeds constitutional limits if its deterrent effect on legitimate expression is both real and substantial, and if the statute is not readily subject to a narrowing construction by the state courts”];

In the above argument, Mr. Wolfe makes several significant points regarding the VLS:

1. There is serious disagreement among lawyers, judges and appellate courts as to the meanings of terms in the VLS such as “unmeritorious pleadings or papers”, “’unnecessary discovery”, “other tactics that are frivolous”, and “litigations . . . finally determined adversely”.

2. Neither the VLS itself nor the courts have defined these terms in the context of the VLS (as other statutes have defined ambiguous terms within themselves).

3. The VLS applies only to the pro se litigant who is generally a layman with little or no knowledge of the law.

4. If lawyers and judges are not clear on the meanings of these terms, how can a non- lawyer – the very people targeted by the statute – be expected to know what they mean?

Now, instead of addressing Mr. Wolfe’s salient points, Circuit Judge Andrew Kleinfeld (the author of the Wolfe opinion) has completely sidestepped the issues raised by Mr. Wolfe – by a one-sentence disposition of this critical vagueness issue (at para 39), as follows:

“The California vexatious litigant statute is not unconstitutionally vague,
because it “give[s] ‘fair notice to those who might violate the statute.’ “*fn19”.

Of course, any statute would not be unconstitutionally vague if it gave “fair notice” – so what is Judge Kleinfeld telling us by this statement? Mr. Wolfe has shown by extensive, well reasoned arguments how the VLSfails to give fair notice. Judge Kleinfeld answers with no reasoning at all simply the bald statement that it does give “fair notice”..

Footnote 19 – cited by Judge Kleinfeld for his conclusion in this regard – notes the 9th circuit case, United States v. Cassel,
“ *fn19 United States v. Cassel, 408 F.3d 622, 635 (9th Cir. 2005) (quoting United States v. Gilbert, 813 F.2d 1523, 1530 (9th Cir. 1987)).”.

However, these two opinions provide no support at all for Judge Kleinfeld’s conclusion.

“Cassel also argues that the statute is unconstitutional because it is unacceptably vague. This contention is inconsistent with our decision in United States v. Tabacca, 924 F.2d 906 (9th Cir. 1991). In Tabacca we rejected a vagueness challenge to 49 U.S.C.App. § 1472(j), which criminalizes “intimidat[ing], or threaten[ing]” a member of the crew onboard an airplane. We held that the term “intimidate” was not unconstitutionally vague because the statute clearly includes modifying language which provides parameters of conduct. The proscribed acts must occur while aboard an aircraft and must “interfere with the performance by … [an] attendant of his duties….” Id. at 913.
Those limitations on the statute’s scope, we held, gave the defendant reasonable notice of the sort of “intimidation” that was proscribed. Similar limitations exist in this case: the “intimidation” punishable under 18 U.S.C. § 1860 must occur in connection with a public sale of land, and it must hinder or prevent someone from bidding in such a sale. That suffices to give “fair notice to those who might violate” the statute, and so Cassel’s vagueness challenge fails. See Gilbert, 813 F.2d at 1530.” (Cassel at para 42-43).

Amazingly, Judge Kleinfeld has overlooked that the Cassel opinion he cites to support his conclusion does exactly the opposite. Cassel actually supports Mr. Wolfe’s contention that VLS is unconstitutionally vague, where it states:

“We held that the term “intimidate” was not unconstitutionally vague because the statute clearly includes modifying language which provides parameters of conduct.”

Mr. Wolfe’s point was exactly that the VLS does not include language which provides parameters of conduct.

Likewise, the Gilbert case, is of no help to Judge Kleinfeld.

It states the following:

“”A statute may be void for vagueness if it fails to give adequate notice to people of ordinary intelligence concerning the conduct it proscribes. Schwartzmiller v. Gardner, 752 F.2d 1341, 1345 (9th Cir.1984). The standards for permissible statutory vagueness are strict in the area of free expression. NAACP v. Button, 371 U.S. 415, 432, 83 S.Ct. 328, 337-38, 9 L.Ed.2d 405 (1963). A statute may be found to be unconstitutional if it prohibits privileged exercises of first amendment rights even if the defendant has not engaged in the privileged conduct.”

So far, the Gilbert opinion is saying the same as Mr. Wolfe was arguing.

It then discusses legislation which “specifically forbids certain action. No one “by force or threat of force” may injure, intimidate or interfere with anyone who is lawfully aiding or encouraging others in “occupying … any dwelling.” 42 U.S.C. § 3631.” and concludes that sec. 3631 does indeed give “fair notice”:

Moreover, legislation which proscribes the use of force or the threat of force should not be found to be void for vagueness. See United States v. Velasquez, 772 F.2d 1348, 1357 (7th Cir.1985), cert. denied,___ U.S. ___, 106 S.Ct. 1211, 89 L.Ed.2d 323 (1986). Such legislation does not prohibit threats generally and hence is not intended to exploit the natural ambiguity of such words as “threat” or “intimidate.” See id.”

The US Supreme Court Velasquez opinion, once again, supports Mr. Wolfe’s contention rather than Judge Kleinfeld’s conclusion:

Velasquez discusses a statute which “. . . punishes the making of a threat to do bodily harm to or destroy or damage the property of the informant as punishment (retaliation) for his informing. Such a prohibition is not vague or over-broad. Government cannot be effective if it cannot punish people who intimidate witnesses or informants by threatening to hurt them or damage their property, and no form of words would be significantly clearer than that employed in this statute. The First Amendment is remotely if at all involved. A threat to break a person’s knees or pulverize his automobile as punishment for his having given information to the government is a statement of intention rather than an idea or opinion and is not part of the marketplace of ideas.
Cases that express concern with the constitutionality of general statutes punishing threats or intimidation do so because of the potential application of such statutes to “threats” that contain ideas or advocacy, such as a “threat” to picket an organization if it does not yield to a demand to take some social or political action. See, e.g., State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982); Wurtz v. Risley, 719 F.2d 1438(9th Cir.1983). The statute at issue in this case is not a prohibition of threats generally and hence does not exploit the ambiguity of such words as threat, intimidate, and coerce; the statute is confined to threats to retaliate forcibly against government witnesses and informants. The statute’s limited scope takes it out of the realm of social or political conflict where threats to engage in behavior that may be unlawful may nevertheless be part of the marketplace of ideas, broadly conceived to embrace the rough competition that is so much a staple of political discourse. See, e.g., Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664 (1969) (per curiam); United States v. Merrill, 746 F.2d 458, 462 (9th Cir.1984);United States v. Lincoln, 589 F.2d 379, 382 (8th Cir.1979); United States v. Kelner, 534 F.2d 1020, 1025-28 (2d Cir.1976); United States v. Ferrugia, 604 F.Supp. 668, 674 (E.D.N.Y.1985)” (emphasis added).

Judge Kleinfeld’s inability – or his disinclination – to distinguish between use of the word
“threat” very limited in scope by the statute – on the one hand – and the word “frivolous” not limited at all in the VLS – on the other hand – is disturbing. Judge Kleinfeld is not doing his job properly, a job for which American taxpayers pay him more than $184,000 per year. [ Table of judicial salaries is at http://www.uscourts.gov/JudgesAndJudgeships/JudicialCompensation/judicial-salaries-since-1968.aspx ] And the rule for judges in regard to their written opinions is that it is “. . . . not enough that a decision be correct – it must also be fair and reasonable and readily understood. The burden of the judicial opinion is to explain and to persuade and to satisfy the world that the decision is principled and sound. What the court says, and how it says it, is as important as what the court decides. “.(Federal Judicial Center, Judicial Writing Manual,1991, p. vii – online at http://www.fjc.gov/public/pdf.nsf/lookup/JudiWrit.pdf/$file/JudiWrit.pdf)

Judge Kleinfeld’s opinion in Wolfe v. George is not correct, fair or reasonable. It cannot be understood at all. It is a classic “Judicial Shortchange”.

In another case – Wolfgram v Wells Fargo Bank cited above – justice is perverted by an appellate court judge – Judge Fred K. Morrison – to heroically defend the VLS – and even more so. Wolfgram is the leading opinion, cited in case after case – and often without further analysis – as authority for upholding the constitutionality of VLS. However, the Wolfgram opinion is based on errors, including fallacious reasoning, stereotypes and unfounded presumptions.

What motivates appellate court judges to pervert justice in defense of this particular statute?

A possible answer is that VLS is a unique statute. It involves a built-in conflict of interest because, here, the judges themselves have a personal interest in upholding a law which makes life easier for them in their job as judges.

Pro se litigants are generally lay people with little or no knowledge of the law. Usually they cannot afford today’s astronomical lawyers’ fees so they represent themselves. President Jimmy Carter, in a speech to Los Angeles County Bar Association, May 4, 1978, stated the problem – which is probably even worse today:

“We have the heaviest concentration of lawyers on Earth—1 for every 500 Americans . . . We have more litigation, but I am not sure that we have more justice. No resources of talent and training in our own society, even including the medical care, is more wastefully or unfairly distributed than legal skills. Ninety percent of our lawyers serve 10 percent of our people. We are over-lawyered and under-represented.”.

Many of these pro se litigants naively believe that if their cause is just then they should be successful. They don’t realize that they are entering a shark tank, that litigation is a game of skill, that the courts exist to enrich the lawyer industry – not to achieve justice.

Wolfgram 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 that is not correct. 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. Wolfgram overlooks that the paradigm of litigation is, indeed, 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 that litigation very much resembles a game such as chess.

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.;

Instead of acknowledging the obvious fact that – because of the VLS – the rules of the litigation game are not the same for pro se litigants as they are for lawyer-represented litigants, Wolfgram distracts us by implying that litigation is not a game at all. Because VLS provides different rules for pro se litigants playing the game – it therefore denies them equal protection.

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.

How the VLS violates constitutional void-for-vagueness doctrine is an issue which touches upon questions regarding the very nature and purpose of litigation itself.

Is the purpose of litigation simply to settle disputes among citizens so that the business of government can go on as efficiently as possible? Or is the purpose of litigation to achieve justice and fairness among citizens consistent with a system of morality? These two views are fundamentally and philosophically opposed. And this difference in philosophy is at the heart of our discussion because the issue of VLS violating equal protection doctrine and the issue of VLS violating vagueness doctrine are two sides of the same coin. .

Take, for example, the doctrine of res judicata (that a matter cannot be relitigated once it has been judged on the merits). VLS, at sec. 391(b)(2) labels, as a VL, a pro se litigant who “repeatedly relitigates or attempts to relitigate” a matter already decided. Now, VLS applies only to the pro se litigant “ . . . who [is] generally the intelligent and educated layman [who] has small and sometimes no skill in the science of law” (see Gideon v. Wainwright, 372 U.S. 335 (1963))

. And so, an ordinary layman might think that if newly discovered evidence shows clearly that a mistake was made in a judgment, the court would want to correct its mistake. He doesn’t realize that within the cult of lawyers and judges res judicata is a sacred principle.
The necessity for the new doctrine called “actual innocence”.and the rise of organizations such as the Innocence Project and others like it attest to the fact that our current adversary system is a failure.

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