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Public Policy Objections to California’s So-Called

“Vexatious Litigant” statute.

California's so-called "vexatious litigants" statute ("VLS" - CCP 391 et seq) is contrary to public policy.  

a.  ‘The exercise of the legal right cannot be affected by the motive which controls it.’. See Connolly v. Union Sewer Pipe Company, 184 U.S. 540 (1902).   A fundamental principle of American law is that the motive which prompts someone to sue is " . . . not open to judicial inquiry, because, having a legal right to sue, it is immaterial whether his motives are good or bad, and he is not required to give his reasons for the attempt to assert his legal rights.".

b.  "Punishing the victim" is the epitome of injustice.  In general,  the layman pro se litigant is the victim of an inherently vexatious adversary system of litigation.  Litigation is an intense war-like, or chess-like, game of strategy and tactics.   The pro se litigant's lack of knowledge and skill in playing the litigation game is surely vexing to the judge – who serves as umpire.  But, usually nothing done is more vexatious than what lawyers do on a routine basis.  

“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).   

In re Kun (1989) 868 F.2d 1069 (holding that attorneys’ fees could be awarded to an unsuccessful party) acknowledges that  . . . “The mere fact that a party has prevailed in a suit does not mean that the party has not engaged in vexatious and groundless litigation. For example, a party may combine sound and ultimately successful defenses with frivolous ones designed solely to harass the opposing party.”.

Even Wolfgram v Wells Fargo Bank (1997) 53 Cal.App.4th 43, the leading case upholding the constitutionality of the VLS, admits that a layman pro se litigant, with little or no lawyering skill, could easily lose meritorious litigations without having done anything blameworthy at all.

“As a matter of common experience even many meritorious suits fail, due to the vagaries of the trial process if nothing else.  Many more colorable suits fail, either due to pretrial disposition or failure to persuade the trier of fact.”.

After conceding that meritorious lawsuits do fail, Wolfgram suggests that losing five lawsuits by one litigant within seven years creates the inference of vexatiousness.  However, a more reasonable inference from five lost lawsuits is that the litigant had incompetent counsel (viz. him- or herself). While many lawsuits that have merit fail – it would seem to be obvious that a higher percentage of meritorious lawsuits brought by pro se litigants should indeed fail – due to the lack of legal knowledge and skill of most pro se litigants (who are laymen).  This lack of skill obviously makes it much more likely that the failed lawsuits were, in fact, meritorious and would have been successful if litigated by a skilled and savvy lawyer (the likelihood of success increasing relative to the skill of the lawyer).

 c.  The VLS undermines public policy favoring a level playing field in litigation.   Where a layman pro se litigant is opposed by a lawyer-represented litigant the playing field is already grossly uneven.

 The lawyer is a hired gun. He is a professional - paid money by one stranger to go into court and slander another stranger. The lawyer’s creed is Cicero's maxim: “When you have no basis for an argument, abuse the plaintiff.” (Pro Flacco, Cicero). In other words, “when you don’t have a case – slander the other side”.  This is bad enough.

However, the VLS provides the lawyer with a massive weapon which outrageously undermines the already unequal playing field - the government itself will join in to slander the hapless pro se litigant who, through ignorance of the process, may file  one or two motions which a judge considers to be "frivolous".  (The VLS – at CCP Sec. 391(b)(3) – allows a California judge to stigmatize and strip a pro se litigant of fundamental constitutional rights – based solely on that person’s alleged “tactics that are frivolous”.)

 c.  Public policy does not favor judicial solutions to medical problems.  

For example, a California statute making it a crime merely to be addicted to the use of narcotics without any further blameworthy conduct, was held unconstitutional under the Eighth and Fourteenth Amendments. Robinson v. California (1961) 370 U.S. 660:

“. . . imprisonment for ninety days is not, in the abstract, a punishment which is cruel or unusual.  But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the “crime” of having a common cold.” (Robinson,supra at 667).

Under the VLS, the stigma "vexatious litigant" can be (and usually is) applied to people who do not actually litigate vexatiously.  

There are, however, some people who do actually litigate vexatiously.   For example, Wolfgram cites the case of Green v. Arnold, 512 F.Supp. 650 (1981).  Green is an extreme exception among exceptions – an outlier of the nth degree. The following description is from the Green opinion:

“Clovis Carl Green, Jr. is an exceptional case, even in the exotic realm of prisoner litigation.   . . Judge Hunter lists more than 500 suits filed by Green between 1972 and 1979.. . . . .Besides the suits filed in his own behalf, Green has made a career of filing suits for other inmates as a “jailhouse lawyer.” . . .Since no human being could really generate more than 554 causes of action in one lifetime, one would assume that many of Green’s filings have been purely repetitions of previous suits, and so they were. . . . In addition, most courts have found them frivolous, irresponsible and unmeritorious. . . . , and some have been found malicious and in bad faith as well. In some instances, Green’s allegations have been so offensive that the Court has ordered his pleadings stricken as “vile and scandalous.” . . .  Furthermore, Green has attempted . . .  to use terroristic threats in an attempt to intimidate court personnel . . . “ (emphasis added).


Mr. Green’s abuse of the judicial system doesn't bear the slightest resemblance to the majority of thousands of people named on the VL blacklist.   It is misleading for Wolfgram to cite Mr. Green as justification for the VLS’s arbitrary limitation of five cases in a seven year period.   

In any case, somewhere in between the few litigants like Mr. Green - and the many litigants who are blacklisted for innocent errors made out of ignorance - there is a category of people who suffer from the malady known as "paranoia querulans":

"paranoia querulans: . . .

A form of paranoia or delusional disorder associated with incessant litigious actions intended to obtain legal remedies for perceived wrongs that appear trivial or insignificant to others. Also called Querulantenwahn. [From paranoia + Latin querulus complaining or peevish, from queri to complain] (From:  paranoia querulans  in  A Dictionary of Psychology)".

What we call “vexatious litigation” has been described as a personality disorder - a medical issue.  In France, for example, information about such a person is treated as a confidential medical record.  In California, this information is published on a blacklist on a government web site!    An article by Professor Benjamin Levy (Univ Paris Diderot, Sorbonne) “From Paranoia Querulans to Vexatious Litigants: A Short Study on Madness Between Psychiatry and the Law” (History of Psychiatry, Sept 2014 25:299-316) examines the question of why . . .

 “[W]hile German, . .. French psychiatrists, from the nineteenth century on, had been busy inventing new nosological concepts which gave rise to the pathologisation of overzealous suitors, the English-speaking experts preferred to create purely juridic measures designed to keep the most difficult complainants at bay . . . why were unreasonable suitors considered vexatious litigants and not pathological litigants by the authorities of the English-speaking countries?  Why were juridic measures taken but no diagnosis made?  Why did the legal perspective prevail over the medical viewpoint” (p.2).

The fact that the juridic measures did prevail in English-speaking countries is contrary to our public policy as expressed in Robinson, supra.