How vague is “frivolous”? – Part 1

[First published Feb 20, 2014 – republished Dec 8, 2014 after 629 views]

How vague is “frivolous”? – Part 1

In 1995 – in the Los Angeles County probate court – in the course of a proceeding for petition for division of trust under California Probate Code sec. 15412 – a layman in propria persona filed Petitioner’s In Limine Motion for an Order Setting Mode of Trial to be Inquisitorial Rather Than Adversarial (“inquisitorial motion” – online copy is redacted). The trustee/bank (“bank”) filed a response (online copy redacted) . The petitioner filed a Supplement to his motion (online copy redacted) with additional points and authorities.

At the hearing, the judge called this motion “unusual, if not bizarre” and he made this motion the basis, inter alia, for an order declaring petitioner a “vexatious litigant” under California’s so-called “Vexatious Litigant” statute (California Civil Procedure Code Sec.391 et seq – “VLS”). 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”.

Two questions arise:

Question 1: Was the inquisitorial motion truly “frivolous” as contemplated by CCP Sec. 391(b)(3)?

Question 2: Is CCP Sec. 391(b)(3) constitutionally void for vagueness in that it is directed to the person of ordinary intelligence, a non-lawyer, who has no opportunity to know what tactics are, or are not, “frivolous”?

(This blog post is concerned with the first question. In a later post I hope to explore the second question.)

The petitioner in the example above had been invited by the bank to file his petition. After complaining that his rights in the trust were being sacrificed to his three co-beneficiaries he stated his intention to seek division of trust emphasizing that: ” … this should be done as amicably as possible, and with the least expense for all concerned”. The senior vice president of the bank’s trust department wrote to him the following . . .

“You have indicated that you may choose to file a Petition with the Probate Court regarding this matter. You are, of course, free to do so. [Bank] . . ., as Trustee, will carry out whatever decision the Court renders.”.

The petitioner expected little, if any, opposition to his petition. However, after it was filed, the bank hired one of the most expensive law firms in Los Angeles and a team of lawyers began racking up enormous legal fees to prepare a joint trial statement.

These fees came out of the beneficiaries’ monthly trust income.
Petitioner’s inquisitorial motion was intended to reduce everyone’s expenses (except the lawyers’). It was the exact opposite of the kind of “harassment” which the VLS was intended to remedy.

The adversarial mode of trial involves much less expense for the litigants and the court:

“A less adversarial trial is: . . . flexible to meet the needs of particular situations; expected to cost less and reduce the time spent in court; and less formal and less adversarial than a traditional trial.” (Family Court of Australia – http://www.familycou…s/FCOA_mc_LAT).

The inquisitorial mode of trial is more efficient and inexpensive:

“The adversarial mode is party driven, as each side has the opportunity to present its best case, and the judge or hearing officer makes a decision based on the evidence the parties have mustered. Advocates take an active role, whereas the judge remains a passive participant. By contrast, in the inquisitorial model more familiar to continental systems, the judge takes a far more active role in directing the case and developing the evidence, whereas the advocate takes a passive role. See McNeil v. Wisconsin, 501 U.S. 171, 181 n.2 (1991) (“What makes a system adversarial rather than inquisitorial is not the presence of counsel . . . but rather, the presence of a judge who does not (as an inquisitor does) conduct the factual and legal investigation himself, but instead decides on the basis of facts and arguments pro and con adduced by the parties.”); see also Stephan Landsman, A Brief Survey of the Development of the Adversary System, 44 Ohio St. L.J. 713, 714-15, 724 (1983); Jeffrey S. Wolfe & Lisa B. Proszek, Interaction Dynamics in Federal Administrative Decision Making: The Role of the Inquisitorial Judge and the Adversarial Lawyer, 33 Tulsa L.J. 293, 313-15 (1997).” (US v. Loughner).

The inquisitorial motion may seem frivolous from the lawyers’ point of view, which is that the purpose of courts and litigation is to enrich the lawyer industry rather than to achieve justice. However, for the ordinary citizen, reducing litigation expenses is very reasonable and certainly not frivolous.

Even within our American court system, the inquisitorial mode of litigation is no longer considered “frivolous”. For example, in the 2012 case of United States of America v. Jared Lee Loughner, No. 11-10339, (9th Cir. 03/05/2012) the 9th Circuit court considered whether a so-called “Harper hearing” – to determine if a mentally ill person can be forcibly-administered medication – was adversarial or inquisitorial. The majority found it to be adversarial and discusses the difference as follows:

“Our concerns may stem from some confusion over the nature of Harper hearings. Although the Court characterized Washington’s policy in Harper as “an adversary hearing,” 494 U.S. at 235, BOP’s regulations create something of a hybrid between an adversarial hearing and an inquisitorial hearing. The expectations of advocates participating in those respective hearings are quite different.

The concurring opinion found Harper hearings to be inquisitorial:

“I disagree with Judge Bybee’s categorization of a Harper hearing as “adversarial” rather than”inquisitorial” to the extent the categorization is used to support a due process requirement for a staff representative to act as an adversarial advocate. As he recognized, “[w]hat makes a system adversarial rather than inquisitorial is not the presence of counsel . . . but rather, the presence of a judge who does not (as an inquisitor does) conduct the factual and legal investigation himself, but instead decides on the basis of facts and arguments pro and con adduced by the parties.” McNeil v. Wisconsin, 501 U.S. 171, 181, n.2 (1991).“ (US v. Loughner, Senior Judge Wallace, concurring in part).

In any case, the court recognized that, even in the US, many proceedings are inquisitorial rather than adversarial:

“Although the adversarial model is more familiar, we have examples of inquisitorial proceedings, particularly in agencies charged with administering benefits programs, such as social security or veterans’ benefits. See Sims v. Apfel, 530 U.S. 103, 110-11 (2000) (“Social Security proceedings are inquisitorialrather than adversarial.”); Nat’l Ass’n of Radiation Survivors, 473 U.S. at 309-11 (explaining that the Veterans’ Administration benefits system is not an “adversary mode”).” (US v. Loughner).

Therefore, a pre-trial motion for an inquisitorial mode of trial should not be considered “frivolous” – especially when made by a layman pro se litigant concerned with reducing litigation expenses. The stigmatization of the petitioner as a “vexatious litigant” exemplifies the abuse of the VLS because of its inherent vagueness. When is a statute impermissibly vague?

“A statute is ‘vague’ if its language is so unclear that a person of reasonable intelligence cannot tell what it prohibits, opening the way to arbitrary and discriminatory enforcement.” (U.S. v. Williams (2008) 553 U.S. 285).

This is the case with the VLS.

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