Judges ought to be more learned than witty, . . Francis Bacon
These two messages comprised an article in Citizens Law Journal (2004)]
The 9th Circuit’s non-publication rule (Circuit Rule 36-3) undermines the Doctrine of Precedent – the very foundation of Anglo-American law. In a published case, Judge Alex Kozinski ruled it constitutional – assuring the public not to worry about its being abused. Yet he, himself, abused the rule in two unpublished cases. A rule he sets forth as law in one opinion is completely contradicted by his own ruling in another, nearly identical, case (article revised 2-9-04).
A disturbing trend among federal appellate courts is to promulgate rules which allow selective publication of opinions and provide that the unpublished opinions do not constitute binding precedent and may not even be cited in unrelated cases. In the Ninth Circuit Court of Appeals such a non-publication/no-citation rule is Circuit Rule 36-3. Continue reading
[Originally published May 21, 2014]
[Please note: A copy of this message (with some personal information redacted) will be posted on the administrator’s blog at http://www.lawreform.us/ – along with responses, if any]
Mr. Darrell Mahood
Director, Jury Services
Los Angeles County Superior Court
May 21, 2014
Re: Summons for Jury Service (set for June 16, 2014)
I respectfully request to be excused from jury duty June 16, 2014, for the following reasons: Continue reading
[First published November 26, 2013 – 1393 views until now]
About the word “Vexatious”
In general usage, the word “vexatious” means blameworthy
English language dictionaries define “vexatious” conduct as conduct that is blameworthy. “Vexatious”, in general usage, refers to someone who does something blameworthy – someone who deliberately harasses or annoys someone else. Dictionary definitions of “vexatious” are the following: “. . . lacking justification and intended to harass . . .” (Webster’s Third New International Dictionary, 2002, S.v., “vexatious”) – “. . . Of legal actions: Instituted without sufficient grounds for the purpose of causing trouble or annoyance to the defendant.” (Shorter Oxford English Dictionary, 1973, S.v., “vexatious”). Continue reading
[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. Continue reading
[First published 29 Aug 2013]
Below is part of a recent response to a California Camera Ticket.
I thought this may be of interest to others. Does anyone know if this issue of the Jackson case is the same issue as that of the class action suit brought by an attorney named Robert D. Conaway in Barstow, California? Continue reading
[First published Mar 25, 2014 – republished Dec 8, 2014 after 466 views]
Under sec. 391(b)(3) of California’s so-called “Vexatious Litigant” statute (California Civil Procedure Code Sec.391 et seq – “VLS”) a pro se litigant may be punished for engaging in what is described therein as “tactics that are frivolous”. A previous blog post, How Vague is “Frivolous” – Part 1, described how a well-meaning pre-trial “inquisitorial motion” became the basis, inter alia, for an order declaring a layman, in propria persona, to be a “vexatious litigant” under Sec. 391(b)(3). The inquisitorial motion was intended to reduce all parties’ expenses – the very opposite of “harassment” as contemplated by the VLS. In that case, the stigmatization of the petitioner as a “vexatious litigant” exemplifies abuse of the VLS. The VLS is susceptible to abuse because it is inherently vague and indefinite. A civil statute which is too indefinite to enforce is invalid. See Seaboard Acc.Corp. v. Shay (1931) 214 Cal.361.
The question here is whether CCP sec. 391(b)(3) is constitutionally void for vagueness – particularly because it is directed to the non-lawyer, someone who has no opportunity to know the difference between litigation tactics that a judge may consider “frivolous” or “not frivolous”? Continue reading
[First published Oct. 31, 2013 – 233 views until now]
Judge Morrison’s Error # 4 – A “Partial Restriction” is still a “prior restraint”
Judge Morrison holds that what he describes as a “partial restriction” does not constitute a prior restraint.
“Wolfgram has not established that a partial restriction on the ability to file suit has ever been held to be a “prior restraint” requiring a showing of clear and present danger and concomitant procedural safeguards. . . . To the extent it keeps vexatious litigants from clogging courts, it is closer to “licensing or permit systems which are administered pursuant to narrowly draw, reasonable and definite standards” which represent “government’s only practical means of managing competing uses of public facilities[.]” . . . When a vexatious litigant knocks on the courthouse door with a colorable claim, he may enter.”.
However, Smith v. Silvey 149 Cal.App.3d 400 (1983) determined that a particular injunction against filing — which was only “partial” — was nevertheless determined to be prior restraint. Smith was cited by Judge Morrison but was not factually distinguished. Continue reading
[First published Oct. 31, 2013 – 293 views until now]
Prior Restraint Errors in Wolfgram v. Wells Fargo – Part 1
Wolfgram v Wells Fargo Bank (1997) 53 Cal.App.4th 43, is the opinion cited in case after case – often without further analysis – as the chief authority for upholding the constitutionality of California’s so-called “Vexatious Litigant Statute” (California Civil Procedure Code, Sec 391 et seq. – “VLS”). However, the author of the Wolfgram opinion, Judge Fred K. Morrison, unfortunately has made numerous judicial errors in his opinion.
The Wolfgram conclusions are not correct. They are based on fallacious reasoning, stereotypes and unfounded presumptions. These errors require more than one blog post to discuss. In this post, I focus on the errors regarding the issue of prior restraint. Continue reading
[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).
[First published Nov. 10, 2013 – 231 views]
What’s wrong with Taliaferro?
Taliaferro v. Hoogs (1965) 236 Cal.App.2d 521 is an appellate court opinion widely cited for upholding the constitutionality (of the original version) of California’s so-called “Vexatious Litigants” statute (“VLS”).
In 1965 Taliaferro ruled that the original 1963 VLS is not unconstitutional on due process grounds. However, as discussed below, Taliaferro errs by equating specialized lawsuits (viz. stockholders derivative actions) with all types of actions (e.g.. actions to vindicate personal rights). This distinction was made clear in a later US Supreme Court case, Boddie v. Connecticut, 401 U. S. 371, 374 (1971). Continue reading