United States District Court, N.D. California
August 22, 2005.
BURTON H. WOLFE, Plaintiff,
RONALD M. GEORGE, et al., Defendants.
The opinion of the court was delivered by: SAUNDRA ARMSTRONG, District Judge
In accordance with the Court's Order denying Plaintiff's Motion
for Judgment on the Pleadings and granting Defendants'
Cross-Motion for Judgment on the Pleadings,
IT IS HEREBY ORDERED THAT final judgment is entered in favor of
Defendants on all of Plaintiff's causes of action. All matters
calendared in this action are VACATED. The Clerk shall close the
file and terminate any pending matters.
IT IS SO ORDERED. ORDER
[Docket Nos. 264, 276, 285].
This matter comes before the Court on Plaintiff's Motion for
Judgment on the Pleadings [Docket No. 264] and Defendants'
Cross-Motion for Judgment on the Pleadings [Docket No. 276].
Having read and considered the arguments presented by the parties
in the papers submitted to the Court, and having heard the
argument of Plaintiff and Defendants' counsel at the June 28,
2005 hearing, the Court hereby DENIES Plaintiff's Motion for
Judgment on the Pleadings and GRANTS Defendants' Cross-Motion for
Judgment on the Pleadings.
A. Procedural Background.
On March 27, 2000, Plaintiff Burton Wolfe ("Plaintiff"), filed
a Complaint, in propria persona, under 42 U.S.C. § 1983, challenging the constitutionality of
California's Vexatious Litigant Statute. He named as defendants:
(1) Justice Gary Strankman, Chief Justice Ronald George, Deborah
Silva, the Judicial Council of California, and State of
California (collectively known as the "State Defendants"); and
(2) Judge Alfred Chiantelli, Judge David Garcia, and Judge Ronald
Quidachay (collectively known as the "Judge Defendants").
On March 29, 2002, this Court dismissed Plaintiff's Complaint
under Federal Rule of Civil Procedure 12(b)(1) for lack of
subject matter jurisdiction pursuant to the Rooker-Feldman
doctrine after finding that Plaintiff's action appeared to be a
de facto appeal of prior state court decisions. See Rooker v.
Fidelity Trust Co., 263 U.S. 413, 415-16 (1923); District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-86
(1983). The Court also dismissed the State Defendants and the
Judge Defendants from the lawsuit. Plaintiff subsequently
On December 14, 2004, the Ninth Circuit held that this Court
erred by dismissing the suit under Rooker-Feldman. See Wolfe v.
Strankman, 392 F.3d 358, 364 (9th Cir. 2004). Specifically, the
Ninth Circuit found that Plaintiff's references to his
involvement in prior state court actions went to show that
Plaintiff had standing, and were not de facto appeals from the
decisions in those prior actions. Id. However, the Ninth
Circuit affirmed the dismissal of the State of California and the
Judicial Council of California on the grounds that they are not
"persons" subject to suit under § 1983. Id. at 361. The court
further affirmed the dismissal of the Judge Defendants, Justice
Strankman, and Chief Justice George in his judicial capacity.
Id. Finally, the court reversed the dismissal of Chief Justice
George, in his administrative capacity, and Ms. Silva, and
remanded to this Court for further proceedings. Id.
On February 8, 2005, Plaintiff filed a First Amended Complaint,
in propria persona, on behalf of himself and on behalf of all
persons appearing in the courts of California without
representation, for Declaratory and Prospective Injunctive
Relief. In the First Amended Complaint, Plaintiff alleges that
California's Vexatious Litigant Statute, California Code of Civil
Procedure §§ 391 et seq., is unconstitutional. On February 23,
2005, Plaintiff filed a Motion for Judgment on the Pleadings or,
in the alternative, for Declaratory Judgment. On May 6, 2005,
Defendants filed a Cross-Motion for Judgment on the Pleadings. B. Statutory Background.
California's Vexatious Litigant Statute (the "statute") is
codified at California Code of Civil Procedure §§ 391 et seq.
The statute defines a vexatious litigant as a person who:
(1) In the immediately preceding seven-year period
has commenced, prosecuted, or maintained in propria
persona at least five litigations other than in small
claims court that have been (i) finally determined
adversely to the person or (ii) unjustifiably
permitted to remain pending at least two years
without having been brought to trial or hearing.
(2) After a litigation has been finally determined
against the person, repeatedly relitigates or
attempts to relitigate, in propria persona, either
(i) the validity of the determination against the
same defendant or defendants as to whom the
litigation was finally determined or (ii) the cause
of action, claim, controversy, or any of the issues
of fact or law, determined or concluded by the final
determination against the same defendant or
defendants as to whom the litigation was finally
(3) In any litigation while acting in propria
persona, repeatedly files unmeritorious motions,
pleadings, or other papers, conducts unnecessary
discovery, or engages in other tactics that are
frivolous or solely intended to cause unnecessary
(4) Has previously been declared to be a vexatious
litigant by any state or federal court of record in
any action or proceeding based upon the same or
substantially similar facts, transaction, or
Cal. Code of Civ. Proc. § 391(b)(1)-(4). Pursuant to the statute,
a defendant may move the court to require the pro se plaintiff to
provide security if the defendant can make a showing that the
plaintiff is a vexatious litigant and that there is not a
reasonable probability that the plaintiff will prevail in the
litigation against the moving party. See Cal. Code of Civ.
Proc. § 391.1. Upon making the requisite findings, the court may
then order the plaintiff to provide a security*fn1
compensates for the reasonable costs and attorney fees of
defending the suit. Cal. Code Civ. Proc. §§ 391.1, 391.3. If the
plaintiff fails to post the security, the action may be
dismissed. Cal. Code Civ. Proc. § 391.4.
Once a plaintiff has been declared a "vexatious litigant"
within the meaning of the statute, the court may also enter an
order prohibiting that plaintiff from filing new state court
litigation absent leave of the presiding judge where the
litigation is proposed to be filed. Cal. Code Civ. Proc. § 391.7.
This order is referred to as a "prefiling" order. Cal. Code Civ. Proc.
§ 391.7. After the prefiling order is issued, the presiding judge
shall permit the filing of further litigation if it appears that
the litigation has merit and has not been filed for the purposes
of harassment or delay. Cal. Code of Civ. Proc. § 391.7(b).
A. Motion for Judgment on the Pleadings.
Under Federal Rule of Civil Procedure 12(c), any party may move
for judgment on the pleadings at any time after the pleadings are
closed but within such time as not to delay the trial.
Fed.R.Civ.P. 12(c). "For the purposes of the motion, the allegations
of the non-moving party must be accepted as true, while the
allegations of the moving party which have been denied are
assumed to be false." Hal Roach Studios, Inc. v. Richard Feiner
and Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1990). Judgment on
the pleadings is proper when the moving party clearly establishes
on the face of the pleadings that no material issue of fact
remains to be resolved and that it is entitled to judgment as a
matter of law. Id. When brought by the defendant, a motion for
judgment on the pleadings under Federal Rule of Civil Procedure
12(c) is a "means to challenge the sufficiency of the complaint
after an answer has been filed." New.Net, Inc. v. Lavasoft,
356 F.Supp.2d 1090, 1115 (C.D. Cal. 2004). A motion for judgment on
the pleadings is therefore similar to a motion to dismiss. Id.
When the district court must go beyond the pleadings to resolve
an issue on a motion for judgment on the pleadings, the
proceeding is properly treated as a motion for summary judgment.
Fed.R.Civ.P. 12(c); Bonilla v. Oakland Scavenger Co.,
697 F.2d 1297, 1301 (9th Cir. 1982).
B. Declaratory Judgment.
28 U.S.C. § 2201 provides that "[i]n a case of actual
controversy within its jurisdiction . . . any court of the
United States, upon the filing of an appropriate pleading, may declare
the rights and other legal relations of any interested party
seeking such declaration, whether or not further relief is or
could be sought. Any such declaration shall have the force and
effect of a final judgment or decree and shall be reviewable as
such." 28 U.S.C. § 2201.
Declaratory judgment is appropriate where, as here, an
injunction is not available because there are no pending state
court proceedings. Steffel v. Thompson, 415 U.S. 452, 463
(1974) ("When no state prosecution is pending and the only
question is whether declaratory relief is appropriate, the congressional scheme that makes the federal courts the primary
guardians of constitutional rights, and the express congressional
authorization of declaratory relief, afforded because it is a
less harsh and abrasive remedy than the injunction, become the
factors of primary significance.")
A. Plaintiff's and Defendants' Cross-Motions for Judgment on
In his Motion for Judgment on the Pleadings, Plaintiff seeks a
declaratory judgment from this Court that California's Vexatious
Litigant Statute, California Code Civil Procedure §§ 391 et
seq., is unconstitutional.*fn2 Plaintiff asserts the
following bases for a finding that the Vexatious Litigant Statute
is unconstitutional: (1) it violates the First Amendment; (2) it
is overbroad; (2) it is vague; (3) it violates the due process
clause of the Fifth and Fourteenth Amendments;*fn3 (4) it
violates the equal protection clause of the Fourteenth Amendment;
(5) it violates the double jeopardy clause of the
Fifth Amendment; (6) it violates the excessive fines clause of the
Eighth Amendment; (7) it is an impermissible ex post facto law or
bill of attainder; and (8) it generally conflicts with federal
law and violates 42 U.S.C. § 1983. Defendants, on the other hand,
move for judgment on the pleadings on the basis that the
Vexatious Litigant Statute is not unconstitutional on any of the
aforementioned grounds. Additionally, Defendants assert that
Plaintiff lacks standing to assert third-party rights.*fn4 1. Constitutionality under the First Amendment.
a. First Amendment Right to Petition for Grievances.
With respect to Plaintiff's First Amendment claim, the Court
must first determine whether the Vexatious Litigant Statute
actually encroaches upon a right guaranteed by the
The United States Supreme Court has long recognized that the
right to petition for a redress or grievance is a liberty
safeguarded by the Bill of Rights and is intimately connected
both in origin and in purpose with the other First Amendment
rights of free speech and free press. United Mine Workers of
America, Dist. 12 v. Illinois State Bar Ass'n, 389 U.S. 217, 222
(1967).*fn5 However, the Supreme Court has also consistently
held that "baseless litigation is not immunized by the
First Amendment right to petition." Bill Johnson's Restaurants, Inc.
v. N.L.R.B., 461 U.S. 731, 743 (1983) ("[S]ince sham litigation
by definition does not involve a bona fide grievance, it does not
come within the first amendment right to petition."). In fact, as
the Supreme Court stated in Bill Johnson's Restaurants, "The
first amendment interests involved in private litigation
compensation for violated rights and interest, the psychological
benefits of vindication, public airing of disputed facts are
not advanced when the litigation is based on intentional
falsehoods or on knowingly frivolous claims." Id.
Applying the Bill Johnson's Restaurant holding to the
Vexatious Litigant Statute, the Court finds that the Vexatious
Litigant Statute does not violate the First Amendment. By its
very terms, the statute is only implicated once the state court
has concluded that there is "no reasonable probability that [the
plaintiff] will prevail in the litigation against the moving
defendant." Cal. Code Civ. Proc. § 391.3. Further, even when a
plaintiff has been declared a vexatious litigant, the statute
does not preclude a plaintiff from filing subsequent lawsuits, so
long as those lawsuits have merit. See Cal. Code Civ. Proc. §
391.7; see Wolfgram v. Wells Fargo Bank, 53 Cal. App. 4th 43,
60 (1997) ("When a vexatious litigant knocks on the courthouse
door with a colorable claim, he may enter.") Thus, to the extent
that Plaintiff's argument is premised on his belief that the
Vexatious Litigant Statute encroaches upon a First Amendment
right because it is a prohibitive ban on meritorious litigation,
his argument is fatally flawed. The Vexatious Litigant Statute is
not, as Plaintiff contends, an absolute ban on the right to
petition for grievances.
Plaintiff has also not proven that the Statute is
unconstitutionally vague. "It is a basic principle of due process
that an enactment is void for vagueness if its prohibitions are
not clearly defined." Greyned v. City of Rockford,
408 U.S. 104, 108 (1972). To survive a vagueness challenge, the statute
must give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may act
accordingly. Id. This is particularly important when sensitive
areas of First Amendment freedoms are involved; in such cases,
the statute must have sufficiently clear terms such that citizens
are not led to "steer far wider of the unlawful zone . . . than
if the boundaries of the forbidden areas were clearly marked."
Id. The statute must also provide explicit standards for those
who apply it so that arbitrary and discriminatory enforcement is
In support of his vagueness challenge, Plaintiff contends that
the statute fails to provide warning of what conduct is
proscribed because it does not define the terms "finally
determined adversely," "unmeritorious pleadings," "unnecessary
discovery," or "other tactics that are frivolous." Having
considered Plaintiff's arguments, the Court finds that there is
absolutely no merit to the contention that words such as "final,"
adverse," "unmeritorious," "unnecessary," "tactics," or
"frivolous" are incomprehensible to a person of ordinary
intelligence. Second, while it may be true that a complete
stranger to litigation may not readily understand the correct
meaning of the terms "discovery" and "pleadings," Plaintiff's
contention that an "ordinary person" would not understand these
terms is completely undermined by the fact that the "ordinary
person" in this context is a person who either: (1) has engaged
in litigation on at least five prior occasions within seven
years; (2) is actively involved in current litigation; or (3) has
recently been involved in litigation and is reinitiating that
litigation. See Cal. Code Civ. Proc. § 391(b). Thus, the
argument that such a person is not able to comprehend fairly
basic concepts of litigation is tenuous, at best, and defies
credibility. The Vexatious Litigant Statute simply has no
applicability to a person who is a complete stranger to
Moreover, even assuming, arguendo, that "sensitive areas of
First Amendment freedoms" are involved, the Court does not find
that there is any lack of clarity in the statute that would leads
citizens to "steer far wider of the unlawful zone" than
necessary. The activity "prohibited" by the statute is unmistakeably clear: it is the pursuit of litigation that lacks
merit and is instituted solely for the sake of harassment and
delay. Indeed, the definition of the term "vexatious litigant"
alone contains a considerable amount of detail. See Cal. Code
Civ. Proc. § 391. Since this is not "a vague, general . . .
ordinance, but a statute written specifically for the [court]
context, where the prohibited disturbances are easily measured by
their impact" the Court finds that the statute gives "fair notice
to those to whom it is directed." See Grayned, 408 U.S. at 112.
Additionally, since the statute provides for actual notice and
a hearing before it is even triggered, there is arguably nothing
to "steer clear of" at all, as even a person who unjustifiably
pursues frivolous litigation is free to continue his activities
until his opponent asks the court to intervene. Cal. Code Civ.
Proc. § 391.1. Significantly, even then, the person cannot be
declared a "vexatious litigant" until after the court has
conducted a hearing and given the plaintiff the opportunity to be
Plaintiff's alternative argument, that the alleged "vagueness"
of the statute enables judges to interpret the statute in an
arbitrary and discriminatory manner, is also unpersuasive.
Undisputedly, even outside of the Vexatious Litigant context,
judges are regularly called upon to determine what constitutes
a "final adverse determination," an "unmeritorious pleading,"
"frivolous tactics," or "unnecessary discovery." See, e.g.,
Cal. Code Civ. Proc. 128.5 ("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 unnecessary delay."); see also Cal. Rule of
Court 27(e) (permitting Court of Appeal to "impose sanctions,
including the award or denial of costs, on a party or an attorney
for (a) taking a frivolous appeal or appealing solely to cause
delay; (b) including in the record any matter not reasonably
material to the appeal's determination; or (c) committing any
other unreasonable violation of these rules."). The fact that a
judge performs this function is one of the most fundamental
underpinnings of the judicial system. See, e.g., Ellis v. Roshei
Corp., 143 Cal.App.3d 642, 648 (1983) ("A trial court is
empowered to exercise its supervisory power in such a manner as
to provide for the orderly conduct of the court's business and to
`guard against inept procedures and unnecessary indulgences which
would tend to hinder, hamper or delay the conduct and dispatch of
its proceedings.'"). Thus, Plaintiff's argument that "a judge
can[not] come up with applicable definitions for such terms" is
wholly without merit. The case law makes clear that California
state court judges are, in fact, consistently and fairly construing the
statute. See, e.g., Childs v. Painewebber Inc.,
29 Cal.App.4th 982, 992 (1994).
Plaintiff's position is also based entirely on the faulty
premise that "in a CCP 391 proceeding a First Amendment right is
at stake." Again, by definition, a "CCP 391 proceeding" involves
only litigation where the plaintiff cannot demonstrate that he
has any reasonable likelihood of prevailing. Such frivolous
litigation is not protected by the First Amendment.
Finally, Plaintiff's concern that litigants are often required
to post securities of varying amounts, or subjected to prefiling
orders with varying standards, does not compel the conclusion
that judges are enforcing the statute in an arbitrary or
discriminatory manner. If anything, it suggests that state court
judges are appropriately deciding each matter on a case-by-case
basis, after giving careful consideration to the particular facts
of the situation. This supports a finding of constitutionality.
Grayned, 408 U.S. at 119 ("[the] decision is made, as it should
be, on an individualized basis, given the particular fact
situation."). Accordingly, the Court finds that the Vexatious
Litigant Statute is not unconstitutionally vague.
Plaintiff's argument that the Vexatious Litigant Statute is
unconstitutionally overbroad is also flawed. Although "[a] clear
and precise enactment may nevertheless be `overbroad' if in its
reach it prohibits constitutionally protected conduct," there is
simply no basis to conclude that the Vexatious Litigant Statute
"sweeps within its prohibitions" constitutionally protected
activities. Greyned, 408 U.S. at 115.
First, as set forth above, the Vexatious Litigant Statute is
not a prohibitive ban on the general right to petition for bona
fide grievances. In fact, the Vexatious Litigant Statute does
not prohibit the filing of meritorious litigation or special
proceedings, such as the filing of a habeus corpus petition.
See, e.g., In re Bittaker, 55 Cal. App. 4th 1004, 1011-12
(1997) (holding that a petition for writ of habeus corpus is not
a civil action or proceedings within the meaning of the Vexatious
Litigant Statute). Second, the purpose of the Vexatious Litigant
Statute is undeniably significant and legitimate. Specifically,
the purpose of the statute is to protect courts from "the
unreasonable burden placed upon [them] by groundless litigation
[which] prevents the speedy consideration of proper litigation
and [consumes] tremendous time and effort." First Western Dev. Corp.
v. Superior Court, 212 Cal. App. 3d 860, 870 (1989). The
Vexatious Litigant also protects the general public, as well,
because "[t]he constant suer . . . becomes a serious problem to
others than the defendant he dogs . . . [b]y clogging court
calendars, he causes real detriment to those who have legitimate
controversies to be determined and to the taxpayers who must
provide the courts." Taliaferro v. Hoogs, 237 Cal. App. 2d 73,
Although Plaintiff does not dispute that the inherent purpose
of the Vexatious Litigant Statute is important and legitimate, he
argues that the statute must be overturned because there are
"many [other] ways of dealing with nuisance litigants that are
less drastic than imposing affordable monetary barriers or
blacklisting them." However, this argument is entirely
insufficient to support an overbreadth challenge to the
constitutionality of a statute that (1) serves a substantial and
legitimate purpose, and (2) is not aimed at, and does not
encompass, constitutionally protected speech or activities. See
Hicks v. Virginia, 539 U.S. 113, 118 (2003) ("[T]here comes a
point at which . . . [one] cannot justify prohibiting . . .
enforcement of . . . a law that reflects `legitimate state
interests in maintaining comprehensive controls over harmful,
constitutionally unprotected conduct.'"). Since the Vexatious
Litigant Statute is specifically aimed at controlling
constitutionally unprotected conduct, the "legitimate state
interest" standard mandates that the Court uphold its validity.
Even assuming that the statute does affect constitutionally
protected speech, however, Plaintiff has not shown that the
statute is unconstitutionally "overbroad." A statute affecting
constitutionally protected speech is not overbroad if it is
narrowly tailored and does not prohibit substantially more
protected speech or conduct than necessary. Ironically, here, the
very purpose of the notice and hearing requirement of the
statute, as well as the "prefiling order" process set forth in
the statute, is to ensure that constitutionally protected
activities (i.e. the filing of meritorious claims) are not
prohibited in any way. Thus, like the ordinance scrutinized and
ultimately upheld by the Supreme Court in Grayned, the
Vexatious Litigant Statute is constitutional because it is
narrowly tailored to further the compelling interest in having a
legal system that is not needlessly disrupted by baseless and
frivolous litigation. Grayned, 408 U.S. at 121 ("Far from
having an impermissibly broad prophylactic ordinance, . . . [the
statute] punishes only conduct which disrupts or is about to
disrupt normal . . . activities."); see also Cox v. State of
Louisiana, 379 U.S. 559, 562 (1965) ("Since we are committed to
a government of laws and not of men, it is of the utmost importance that the
administration of justice be absolutely fair and orderly. This
Court has recognized that the unhindered and untrammeled
functioning of our courts is part of the very foundation of our
constitutional democracy."). As such, Plaintiff's overbreadth
4. Constitutionality under the Fourteenth Amendment.
a. Procedural Due Process.
Next, Plaintiff argues that the Vexatious Litigant Statute
violates the fundamental precepts of due process of fair
treatment, fair play, decency, and justice guaranteed by the
Fourteenth Amendment. It should be noted that this same argument
was previously considered by the California Court of Appeals in
Wolfgram and ultimately rejected. See Wolfgram,
53 Cal. App. 4th at 60.
The Supreme Court has established that due process "requires,
at a minimum, that absent a countervailing state interest of
overriding significance, persons forced to settle their claims of
right and duty through the judicial process must be given a
meaningful opportunity to be heard." Boddie v. Connecticut,
401 U.S. 371, 377 (1971). Here, the Vexatious Litigant Statute
fulfills the requirements set forth in Boddie because (1) the
state's interest in controlling the unfettered abuse of the legal
system overrides a litigant's personal interest in filing
frivolous pleadings, and (2) the statute provides a litigant with
an ample and meaningful opportunity to be heard. In fact, it is
beyond dispute that the Vexatious Litigant Statute explicitly
provides for notice and opportunity to be heard before the
plaintiff is subjected to any adverse effects of the statute.
Moreover, even when a prefiling order has been entered, there is
never a "blanket" prohibition on further filings; a plaintiff
deemed to be a vexatious litigant may always file a new action so
long as the presiding judge determines that the litigation has
merit and has not been filed for the purpose of harassment or
delay. Cal. Code Civ. Proc. § 391.7(b). Such determinations are
appropriately made on a case-by-case basis. Id. If the
plaintiff believes that he has been wrongly denied of the
opportunity to pursue meritorious litigation, relief by way of
mandamus is immediately available to challenge the presiding
judge's abuse of discretion. Cal. Code Civ. Proc. § 1085.
b. Substantive Due Process and the Equal Protection Clause of
the Fourteenth Amendment.
Plaintiff also argues that the Vexatious Litigant Statute
violates the due process and equal protection clauses of the
Fourteenth Amendment because it unfairly discriminates against
pro se litigants in that it (1) imposes a financial barrier to the pro se
litigant's "right to sue," and (2) creates a disparity between
how pro se litigants and represented parties are treated by the
courts. These arguments, however, are insufficient to invalidate
the statute under the Fourteenth Amendment.
First, the fact that the vexatious litigant may be required
to pay a "security" does not violate the Fourteenth Amendment
since this so-called "financial barrier" only serves to bar
frivolous litigation, which is not protected by the Constitution.
See California Code of Civil Procedure § 391.3 (stating that
the Court may only order the payment of a security once the court
has determined, "after hearing the evidence upon the motion, . . .
that the plaintiff is a vexatious litigant and that there is
no reasonable probability that the plaintiff will prevail in the
litigation against the moving defendant.") (emphasis added);
see also Cal. Code Civ. Proc. § 391(c) (the amount of the
security is limited to the opposing party's "reasonable
expenses . . . incurred in or in connection with a litigation
instituted, caused to be instituted, or maintained or caused to
be maintained by a vexatious litigant.") (emphasis added).
Relying primarily on the Supreme Court's holding in Boddie,
and the District of Columbia Court of Appeals's holding in In re
Green, 669 F.2d 779, 785 (D.C. Cir. 1981), Plaintiff essentially
seeks to have this Court hold that the imposition of any cost
associated with civil litigation is unconstitutional.*fn6
This is not, however, what the Fourteenth Amendment requires, and
Plaintiff's reliance on Boddie and Green is utterly
misplaced. In fact, in Green, the District of Columbia Court of
Appeals expressly acknowledged that the "right of access to the
courts . . . is neither absolute or unconditional." In re
Green, 669 F.2d at 785. Further, in United States v. Kras,
409 U.S. 434, 446 (1973), the Supreme Court declined to follow this
particular holding in Boddie after noting that Boddie's
holding was limited to cases involving a state's regulation of a
fundamental right, such as marriage. Id. at 446 ("We are . . .
of the opinion that the [bankruptcy] filing fee requirement does
not deny [the litigant of] the equal protection of the laws.").
Thus, under Kras, in cases where a fundamental right is not
implicated, a statute will be upheld if there is a rational
justification for it. Id.; see also Ortwein v. Schwab, 410 U.S. 656, 656 (1973) (upholding validity of appellate filing fee
applied to indigents seeking to appeal an adverse welfare
Plaintiff's alternative argument that the Vexatious Litigant
Statute unfairly disadvantages pro se litigants is also
fundamentally flawed. While Plaintiff may subjectively believe
that the statute is a "weapon" hurled against unsuspecting
persons who are "unskilled at law," it has long been recognized
that the Vexatious Litigant Statute was enacted for the purpose
of protecting defendants from overly litigious, vexing, and
harassing plaintiffs and protecting the courts from having to
expend countless hours dealing with meritless litigation. This is
clear not only from the history of the statute but also from the
very terms of the statute itself. See, e.g., First Western Dev.
Corp. v. Superior Court, 212 Cal. App. 3d 860, 870 (1989) ("The
vexatious litigant statutes were enacted to require a person
found a vexatious litigant to put up security for the reasonable
expenses of a defendant who becomes the target of one of these
obsessive and persistent litigants whose conduct can cause
serious financial results to the unfortunate object of his
Additionally, the Vexatious Litigant Statute does not, as
Plaintiff's contends, subject pro se litigants to undue burdens
that are not equally borne by attorneys and represented parties.
Indeed, the Vexatious Litigant Statute is not unique; the
California Code of Civil Procedure contains other similar
measures intended to control the filing of frivolous litigation.
See, e.g., Cal. Code Civ. Proc. § 128.5 (providing for the
imposition of sanctions against an attorney or party who
litigates in bad faith); Cal. Code of Civ. Proc. § 907 (allowing
a Court of Appeals to impose costs on an attorney or party who
pursues a frivolous appeal); Cal Code Civ. Proc. § 128.7
(providing for the imposition of sanctions against an attorney
who submits papers to the court for the sole purpose of harassing
the opposing party or causing delay).
Attorneys are also subject to California Business and
Professions Code § 6068, which provides, inter alia, that an
attorney must: (1) support the Constitution and laws of the
United States and California, (2) maintain the respect due to the
courts of justice and judicial officers, (3) counsel or maintain
only actions, proceedings, or defenses that appear to him or her
legal or just; (4) employ means only as are consistent with
truth, and never to seek to mislead the judge or any judicial
officer by an artifice or false statement of fact or law; and (5)
not encourage either the commencement or the continuance of an action or proceeding for a corrupt motive of
passion or interest. Cal. B & P Code § 6068. Additionally, an
attorney's conduct is regulated by the State Bar of California
and California's Rules of Professional Responsibility. See Cal.
B & P Code § 6068.7 (providing that a court must notify the State
Bar when sanctions in excess of $1,000 are imposed.)
Although Plaintiff attempts to distinguish the Vexatious
Litigant Statute by noting that lawyers are not subject to a rule
that "disciplines" them for "losing five lawsuits in seven
years," Plaintiff conveniently overlooks the fact that a pro se
litigant's prior litigation record only becomes relevant when
that litigant attempts to pursue a sixth litigation that has no
reasonable probability of success. This distinction is
significant and Plaintiff's failure to even acknowledge it makes
his argument unpersuasive.
Further, in evaluating Plaintiff's argument, the Ninth
Circuit's analysis in Rodriguez is instructive. In Rodriguez,
the Ninth Circuit considered a Fifth Amendment challenge to
28 U.S.C. § 1915(g) (commonly referred to as the "three-strike
rule").*fn7 Rodriguez, 169 F.3d at 1179. In upholding the
three-strike rule, the Ninth Circuit noted that "requiring
prisoners to make the same financial decisions as non-prisoners
before filing a cause of action does not violate equal
protection." Id. The court also stated that "[a]lthough
prisoners are entitled to meaningful access to the courts, courts
are not obliged to be a playground where prisoners with nothing
better to do continuously file frivolous claims. Only after
demonstrating an inability to function within the judicial system
is an indigent inmate asked to pay for access to the courts."
Id. at 1180. Accordingly, the Ninth Circuit concluded that §
1915(g) permissibly "precludes prisoners with a history of
abusing the legal system from continuing to abuse it while
enjoying IFP status." Id. Thus, under the holding of
Rodriguez, neither the security provision of the Vexatious
Litigant Statute nor its analogous "six-strike rule" can be
Accordingly, the Court hereby finds that the Vexatious Litigant
Statute does not violate the due process or equal protection
clause of the Fourteenth Amendment. 5. Double Jeopardy Clause of the Fifth Amendment.
Plaintiff also argues that the Vexatious Litigant Statute
violates the double jeopardy clause of the Fifth Amendment. While
the double jeopardy clause may be enforced against the states due
to its incorporation into the due process clause of the
Fourteenth Amendment, see Benton v. Maryland, 395 U.S. 784, 794
(1969), the double jeopardy clause simply does not apply to the
Vexatious Litigant Statute.
Specifically, the double jeopardy clause serves to prohibit
multiple punishments for criminal conduct. See Abbate v.
United States, 359 U.S. 187, 198-99 (1959) ("The basis of the
Fifth Amendment protection against double jeopardy is that a
person shall not be harassed by successive trials; that an
accused shall not have to marshal the resources and energies
necessary for his defense more than once for the same alleged
criminal acts.") (emphasis added). Although the cases upon
which Plaintiff relies namely United States v. Halper,
490 U.S. 435 (1989) and United States v. $405,089.23 U.S. Currency,
33 F.3d 1210 (9th Cir. 1994) discuss the fact that a civil fine
may be considered "punitive," significantly, both cases involved
a predicate criminal offense. See Halper, 490 U.S. at 437
(defendant initially charged under criminal false claims act
statute); see also $405,089.23 U.S. Currency, 33 F.3d at 1213
(defendants initially charged with conspiracy and money
laundering arising out of large-scale methamphetamine
manufacturing operation). Further, the holding in Halper was
later abrogated by the Supreme Court in Hudson v.
United States, 522 U.S. 93, 98-99 (1997) (holding that the double
jeopardy clause "protects only against the imposition of multiple
criminal punishments for the same offense."). Thus, the fact that
Plaintiff subjectively feels that the Vexatious Litigant Statute
operates as a "punishment" is irrelevant. The relevant inquiry
under the Fifth Amendment is whether the statute serves as a
second punishment for a criminal offense, which it clearly does
not. Indeed, in order to reach this conclusion, the Court would
have to first accept the utterly preposterous premise that the
pursuit of frivolous litigation is criminal conduct. Accordingly,
the Court finds that Plaintiff has failed to state a claim under
the double jeopardy clause of the Fifth Amendment.
6. Excessive Fines Clause of the Eighth Amendment.
Plaintiff's argument that the Vexatious Litigant Statute
violates the excessive fines clause of the Eighth Amendment is
equally without merit. Plaintiff's specific contention is that
the Vexatious Litigant Statute violates the excessive fines clause of the
Eighth Amendment because it punishes, as wells as deters, use of the
courts. However, like Plaintiff's double jeopardy clause
allegation, Plaintiff's excessive fines clause claim relies
entirely upon the assumption that the Vexatious Litigant Statute
is somehow related to criminal conduct. This assumption is
unjustified under the applicable case law.
The Eighth Amendment reads in its entirety: "Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted." Const. Amend. VIII. The Supreme
Court has long understood the Eighth Amendment to apply
primarily, and perhaps exclusively, to criminal prosecutions and
punishments. Browning-Ferris Indus. of Vermont, Inc. v. Kelco
Disposal, Inc., 492 U.S.257, 262 (1989); see, e.g., Fong Yue
Ting v. United States, 149 U.S. 698, 730 (1893) (stating that
Eighth Amendment is inapplicable to deportation because
deportation is not punishment for a crime). "Bail, fines, and
punishment traditionally have been associated with the criminal
process, and by subjecting the three to parallel limitations the
text of the Amendment suggests an intention to limit the power of
those entrusted with the criminal-law function of government."
Browning-Ferris, 149 U.S. at 263 (quoting Ingraham v. Wright,
430 U.S. 651, 664-668 (1977)).
Although the Supreme Court has held that the Eighth Amendment
excessive fines clause extends to civil forfeiture proceedings,
see Alexander v. United States, 509 U.S. 544, 559-59 (1993),
Plaintiff's attempt to equate the "security" provision of the
Vexatious Litigant Statute with a "civil forfeiture" is wholly
without merit. Notably, there are significant differences between
a "civil forfeiture" and a "security" which Plaintiff overlooks.
First, a civil forfeiture proceeding necessarily relates to prior
criminal conduct. See, e.g., United States v. Premises Known as
RR#1, 14 F.3d 864, 869 (3d Cir. 1994) ("The Government bears the
initial burden of proof in attaching property for trial in civil
forfeiture cases and to do so it must establish some connection
between the alleged criminal activity and the . . . property the
Government seeks to forfeit."); see also United States v.
Certain Real Property and Premises, 954 F.2d 29, 33 (2nd Cir.
1992) (stating that 21 U.S.C. § 881(a)(7) provides for the
forfeiture of real property which is used, or intended to be
used, in any manner or part, to commit, or to facilitate the
commission of a violation of the narcotics laws). Second, in a
civil forfeiture proceeding, the Government is the entity who
retains the money or property. In contrast, under the Vexatious
Litigant Statute, the "security" is provided for the exclusive
benefit of the opposing party. See Cal. Code Civ. Proc. §
391(c) (defining a security as "an undertaking to assure payment, to the party
for whose benefit the undertaking is required to be furnished,
of the party's reasonable expenses.") (emphasis added). These
distinctions are important, as they are critical features that
bring a civil forfeiture within the ambit of the
Eighth Amendment. See Browning-Ferris, 492 U.S. at 265 ("[W]e think it
significant that at the time of the drafting and ratification of
the Amendment, the word "fine" was understood to mean a payment
to a sovereign as punishment for some offense.").
Accordingly, there is no basis upon which this Court can
conclude that the Vexatious Litigant Statute violates the
excessive fines clause of the Eighth Amendment.
7. The Ex Post Facto Clause and the Bill of Attainder Clause.
Plaintiff's argument that the Vexatious Litigant Statute is an
ex post facto law prohibited by the Article 1, Section 10 of the
United States Constitution is also baseless. The Supreme Court
has expressly held that the ex post facto clause is aimed at laws
that "retroactively alter the definition of crimes or increase
the punishment for criminal acts." California Dept. of
Corrections v. Morales, 514 U.S. 499, 504 (1995) (emphasis
added). For example, the ex post facto clause "is violated if a
change in the law creates `a sufficient risk of increasing the
measure of punishment attached to the covered crime.'" Himes v.
Thompson, 336 F.3d 848, 855 (9th Cir. 2003) (quoting California
Dep't of Corr. v. Morales, 514 U.S. 499 (1995)). Since the
Vexatious Litigant Statute does not involve penal legislation,
the ex post facto clause is simply inapplicable to this
Plaintiff has also not demonstrated that the Vexatious Litigant
Statute is an unconstitutional "bill of attainder." A bill of
attainder is "a law that legislatively determines guilt and
inflicts punishment upon an identifiable individual without
provision of the protections of a judicial trial." Nixon v.
Adm'r of Gen. Servs., 433 U.S. 425, 468 (1977). As stated by the
Supreme Court in Nixon, "Just as Article III confines the
Judiciary to the task of adjudicating concrete `cases or
controversies,' so too the Bill of Attainder Clause was found to
`reflect . . . the Framers' belief that the Legislative Branch is
not so well suited as politically independent judges and juries
to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons.'" Id. (quoting
United States v. Brown, 381 U.S. 437, 445 (1965)). Given that
the inherent concern of the bill of attainder clause is the
separation of powers doctrine, Plaintiff's attempt to define the
Vexatious Litigant Statute as a "bill of attainder" is decidedly
strained. However, even assuming, arguendo, that the Vexatious
Litigant Statute falls within the ambit of the bill of attainder
clause, Plaintiff still fails to demonstrate that it meets the
criteria set forth by the Supreme Court in Selective Service
System v. Minnesota Pub. Interest Research Group, 468 U.S. 841,
In Selective Service System, the Supreme Court noted that, to
constitute a bill of attainder, the statute must (1) specify the
affected persons, and (2) inflict punishment (3) without a
judicial trial. Id. Three inquiries determine whether a statute
inflicts punishment on the specified individual or group: (1)
whether the challenged statute falls within the historical
meaning of legislative punishment; (2) whether the statute,
viewed in terms of the type and severity of burdens imposed,
reasonably can be said to further nonpunitive legislative
purposes; and (3) whether the legislative record evinces a
congressional intent to punish. Id. at 852. Although Plaintiff
vigorously argues that the Vexatious Litigant Statute is a
"sadistic" statute that was enacted for the sole purpose of
punishing pro se litigants, there is simply no credible support
for this conclusion outside of Plaintiff's own speculative
theories. As noted previously, it has been consistently
recognized that the purpose of the statute was to protect courts
and defendants from "the unreasonable burden placed upon [them]
by groundless litigation." First Western Dev. Corp. v. Superior
Court, 212 Cal. App. 3d 860, 870 (1989). Since this purpose is
decidedly legitimate and non-punitive, Plaintiff has not
demonstrated that the Vexatious Litigant Statute is a "bill of
8. Supremacy Clause.
Last, Plaintiff argues that the Vexatious Litigant Statute
conflicts with numerous federal laws thereby violating the
Supremacy Clause of the United States Constitution. Specifically,
he contends that the Vexatious Litigant Statute "conflicts with
the right under Title 28 U.S.C. § 1654 to litigate in pro per and
the right provided under Title 28 U.S.C. § 1915 . . . to conduct
a case without prepayment of fees or imposition of `security.'" Additionally, Plaintiff argues that
the statute violates 42 U.S.C. § 1983.*fn9 All of these
arguments lack merit.
First, there is no inherent conflict with 28 U.S.C. § 1654,
which provides that "parties may plead and conduct their own
cases personally" according to the rules of such courts. Id.
Nor is there a conflict with 28 U.S.C. § 1915, which explicitly
provides that a federal court may dismiss a case filed in forma
pauperis if the court determines that the action or appeal is
frivolous, malicious, or fails to state a claim on which relief
may be granted. 28 U.S.C. § 1915(e). As to Plaintiff's § 1983
claim, as previously explained, supra, this is premised on his
flawed assumption that a person has an absolute right to file
litigation, regardless of its merits. There is no such right
under the Constitution. See Bill Johnson's Restaurants, Inc.,
461 U.S. at 743 ("[B]aseless litigation is not immunized by the
First Amendment right to petition."). Accordingly, Plaintiff has
failed to state a claim under the Supremacy Clause.
9. Third Party Standing.
Although the Court has concluded that the Vexatious Litigant
Statute is constitutional and that Defendants are entitled to
judgment as a matter of law on the merits of Plaintiff's
Complaint, the Court will briefly address Defendant's objection
to Plaintiff's purported third-party standing.
As previously noted, supra, Plaintiff seeks declaratory
judgment in this action on behalf of himself and on behalf of
"all persons appearing or trying to appear in the Courts of
California without benefit of representation by counsel."
First Amended Complaint ("FAC") at 1:23-25. Defendants have conceded
that Plaintiff has standing to pursue this action on behalf of
himself. See Wolfe, 392 F.3d at 364 (finding that Plaintiff's
prior state court actions are sufficient to establish that
Plaintiff is threatened with actual harm from the future
operation of the Vexatious Litigant Statute and therefore
sufficient to establish standing). However, Defendants argue that
Plaintiff does not have standing to assert constitutional
rights on behalf of other persons.
"Article III of the Constitution limits the `judicial power' of
the United States to the resolution of `cases' and
`controversies.'" Valley Forge Christian College v. Americans
United for Separation of Church & State, 454 U.S. 464, 471 (1982) (citations omitted).
Generally, there are three requirements for Article III standing:
(1) injury in fact, which means an invasion of a legally
protected interest that is (a) concrete and particularized, and
(b) actual or imminent, not conjectural or hypothetical; (2) a
causal relationship between the injury and the challenged
conduct, which means that the injury fairly can be traced to the
challenged action of the defendants, and has not resulted from
the independent action of some third party not before the court;
and (3) a likelihood that the injury will be redressed by a
favorable decision, which means that the prospect of obtaining
relief from the injury as a result of a favorable ruling is not
too speculative. Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992). The party invoking federal jurisdiction bears the
burden of establishing each of these elements. Id.
Courts typically employ a presumption against third-party
standing. Singleton v. Wulff, 428 U.S. 106, 113-14 (1976).
However, the presumption may be rebutted in circumstances where:
(1) the litigant has suffered an injury in fact and has a close
relation to the third party; and (2) where there is some
hindrance to the third-party's ability to protect his or her own
interests. See Powers v. Ohio, 499 U.S. 400, 411 (1991).
Plaintiff argues that he meets both of these exceptions due to
the unique nature and circumstances of this case.*fn10 The
Court does not find Plaintiff's argument persuasive. First,
Plaintiff's contention that "all persons appearing or trying to
appear in the Courts of California without benefit of
representation by counsel" are subjected to the Vexatious
Litigant Statute results from a gross misreading of the Statute.
As this Court has observed, supra, the terms of the Statute
make it clear that it applies to only a limited class of persons;
specifically, it applies only to those persons who have
demonstrated a clear inability to pursue meritorious litigation
or who have utterly failed to adroitly navigate the California
court system. Accordingly, the class of persons that Plaintiff
seeks to represent is unnecessarily overbroad and, therefore, Plaintiff has not
demonstrated that he has a close relationship with such parties.
Second, Plaintiff has not effectively demonstrated that there is
any hindrance to the third parties' abilities to protect their
own interests. To the contrary, as Defendants correctly note, a
person determined to be a "vexatious litigant" can always
challenge such determination through the appropriate appellate
process. In fact, it appears that Plaintiff's belief that third
parties are hindered in pursuing such litigation is premised
solely on Plaintiff's subjective belief that other persons are
not capable of "proceeding with the level of ability and
competence that they now have with Wolfe effectively representing
them." Pl's Supp. Reply to Def's Mot. at 12:8-10. This argument
has no basis in law or fact. Further, because the Court has
concluded that Plaintiff has not raised a cognizable claim under
the First Amendment, the Supreme Court's holding in Broadrick v.
Oklahoma, 413 U.S. 601, 612 (1973) does not support Plaintiff's
position. See id. (finding that the restriction on third-party
standing is relaxed when the plaintiff is asserting a
First Amendment claim). Accordingly, the Court sustains Defendants'
objection to Plaintiff's assertion of standing on behalf of "all
persons appearing or trying to appear in the Courts of California
without benefit of representation by counsel."
IT IS HEREBY ORDERED THAT Plaintiff's Motion for Judgment on
the Pleadings [Docket No. 264] is DENIED and Defendants'
Cross-Motion for Judgment on the Pleadings [Docket No. 276] is
IT IS FURTHER ORDERED THAT Plaintiff's Request for Judicial
Notice [Docket No. 285] is GRANTED IN PART AND DENIED IN PART.
IT IS SO ORDERED.
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