[First published Nov.15, 2013 – 493 views until now]
Pierce v. Cantil-Sakauye class action Opening Brief filed 11-08-2013
“Arch Cunningham, the attorney representing the class of parents who were stigmatized as vexatious, has filed his opening brief with the Ninth District Circuit Court of Appeal. The brief specifically addresses the unconstitutionality of the vexatious litigant application in family law and how parents have been maliciously harmed by not having the first and fourteenth substantive and procedural due process right to seek redress from terminating custody orders. The brief in its entirety can be accessed here.
Any parent who has been stigmatized as vexatious is prevented from accessing a court of law, thus in effect their parental rights have been terminated.” (from the blog News & Views Riverside Superior Court and Family Law Abuse).
A copy of the opening brief can also be accessed here.
Mr. Cunningham makes a sharp distinction “ . . . between civil litigants and parents in custody disputes”.
He argues that . . . “A “vexatious litigant” litigating parental rights should be treated differently than “. . .your garden-variety ‘vexatious civil litigant,’” because he/she is “enmeshed in litigation touching on their fundamental parental rights” citing Santosky v. Kramer (1982) 455 U.S. 745; Stanley v. Illinois (1972) 405 U.S. 645)”.
And he argues further that litigation relating to parental rights involves “. . .adjustment of a fundamental human relationship . . .” so that the issue of access to the courts for these litigations requires a standard of strict scrutiny just as Boddie v. Connecticut (1971) 401 U.S. 371 required this in regard to divorce litigation. The standard of “ . . .“rational basis review,” which the Ninth Circuit applied in Wolfe” (referring to the Wolfe v. George case which is the subject of a previous blog) is inappropriate for parental rights litigation.
First of all, any attack on California’s so-called “vexatious litigants” statute (“VLS” – California Civil Procedure Code Section 391 et seq.) is certainly welcome and praiseworthy.
However, it doesn’t seem that Mr. Cunningham has hit the mark in framing the chief issue.
Wolfgram v Wells Fargo Bank (1997) 53 Cal.App.4th 43 (the case cited most frequently upholding the constitutionality of VLS) has addressed this issue as follows:
“ . . .Wolfgram argues the “prefiling” statute is overbroad because it prevents the filing of writs of habeas corpus and petitions for dissolution of marriage, resolution of paternity and adoption. We disagree. First, 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;. . .”.
Judge Morrison, author of the Wolfgram opinion, assures us that we can trust the presiding judge, qua official censor, to permit filing of parental rights litigation, just as the government censor can be trusted to allow the filing of any meritorious litigation.
The more important issue is that there should be no censorship at all of any litigation – even litigation filed by “. . .your garden-variety ‘vexatious civil litigant,’”.
Many systems are already in place to weed out unmeritorious litigation. Summary judgment motions, judgment on the pleadings motions. For abusive filings there are sanctions under Civ.Proc.Code sec. 128.5. For cases of abuse, there are actions for malicious prosecution. And for more extreme cases of harassment there is criminal prosecution under the barratry statute (Penal Code Sec. 158). All of these accomplish the same purpose without imposing an unconstitutional prior restraint (see previous blog posting on prior restraint) which the prefiling order under VLS sec. 391.7 does impose. “Unnecessary laws are not good laws, but traps for money” (Thomas Hobbes). and VLS sec. 391.7 is unnecessary for the purpose it is intended to accomplish..
The standard of strict scrutiny in analysing the constitutionality of sec. 391.7 should be applied because the right to file any litigation (not just parental rights litigation) if a fundamental right. At the risk of appearing to be repetitive (after all this blog is not a court brief!) I’ll repeat the sources stated in the earlier blog post in this regard . . .
“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.
If VLS sec. 391.7 is so clearly unconstitutional they why have appellate court judges in several cases made heroic efforts to uphold it? The reason is that sec. 391.7 is not so much a protection for a defendant litigant. It is of benefit to the judges themselves!
Pro se litigants simply don’t fit into the paradigm of our adversary system of litigation.
The adversary·process has been defined as follows:
“The central precept of the adversary process is that out of the sharp clash of proofs presented by adversaries in a highly structured forensic setting is most likely to come the information upon which a neutral and passive decision maker can base the resolution of a litigated dispute acceptable to both the parties and society.” (Stephan Landsman, THE ADVERSARY SYSTEM (Am.Enter.Inst.,c1984),p.2).
The adversary process has been historically linked to the jury trial. See Landsman, supra, pp.7-25.
Where even one of the litigants, is a laymen in propria persona, the purpose of the adversary system cannot be achieved.
The parties, and the system, under the adversary system:
“. . . have come to rely upon a class of skilled professional advocates to assemble and to present the testimony upon which decisions will be based. The advocates are expected to provide the forensic talents necessary to organize the evidence and to formulate the legal issues. If the lawyers fail to carry out their duty, development of the case will be impeded, and the adversary process may be undermined.” (Landsman, supra,p.4) .
Landsman, supra — although, essentially, a defense of the adversary system — recognizes that the adversary system is not appropriate for some types of disputes, for example disputes between family members.
“The adversary method is not equally useful in resolving all types of disputes . . . there are . . .settings in which adversary procedure does not seem appropriate. . . . Adversary procedure may exacerbate rather than resolve tensions and may not foster the kind of compromise essential to the restoration of harmony. For this reason, disputes between … family members . . . should usually be resolved in nonadversarial proceedings.” (Landsman,supra, at 52).
Ordinary 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 money-making, neatly-packaged litigation presented by expensive lawyers (which is much easier for judges to deal with). As one Australian judge put it: “ . . . litigants “with a blindness to procedural reality” are both a problem and quite distressing for judges.” (Freckelton,Vexatious Litigants: A Report on Consultation with Judicial Officers and VCAT Members, Law Reform Comm., Victoria, Australia, 1 October 2008 ).
The judge has a special duty to be patient and tolerant towards a pro per litigant.
“Where a party is not represented by counsel, the trial court will exhibit patience and tolerance and permit the widest latitude in any efforts to prove the charges made.” ( 8 8 C.J.S., Trial §36,p.95).
Several California cases recognize the special status of the pro per litigant. Pete v. Henderson (1954) 124 Cal.App.2d 487 holds that the court has a special duty to aid a layman litigant representing himself in propria persona. Campbell v. Jewish Committee for Personal Service (1954) 125 Cal.App.2d 771 holds that the court must be liberal in favor of the layman pro per litigant.
It’s much easier for a judge to simply throw a pro se litigant – who is vexing to the judge – out of the court system as a so-called “vexatious litigant” than it is for the judge to exhibit the required patience (especially now that there is a growing tide of pro se litigants for the judges to deal with).
Under VLS sec. 391.7 the judge can issue a prefiling order on his own motion. Thus sec. 391.7 has a built in conflict of interest. A basic axiom of American law (an obvious conflict of interest and due process violation) is that a judge does not initiate the litigation which he thereafter decides (there are exceptions where the judge can rule “on his own motion” – but VLS sec. 391.7 if far from being in the category of, say, a contempt-of-court proceeding).
Hopefully, there are some appellate court judges out there whose loyalty is to the administration of true justice rather than to maintaining the old boys’ club – litigation-as-a-chess-game paradigm – adversary system – where the unwashed masses of pro se litigants are not welcome..