About the Word “Vexatious”

[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”).

In other words, for the general public, a so-called “vexatious litigant” is a troublemaker – someone blameworthy. And, indeed, truly “vexatious” litigation is a crime in California – the crime of barratry. California Penal Code §§ 158 & 159 state the following:

“158. Common barratry is the practice of exciting groundless judicial proceedings, and is punishable by imprisonment in the county jail not exceeding six months and by fine not exceeding one thousand dollars ($1,000).” (emphasis added); “159. No person can be convicted of common barratry except upon proof that he has excited suits or proceedings at law in at least three instances, and with a corrupt or malicious intent to vex and annoy.” (emphasis added).

For the government to officially label a person as a “vexatious litigant” is to create a social stigmatization of that person.

Under the VLS, blameworthiness is not a requirement for the “vexatious” label

California’s so-called “Vexatious Litigants” Statute” (“VLS” – California Civil Procedure Code Section 391 et seq) defines the word “vexatious” as conduct that is NOT necessarily blameworthy.

For example, a layman pro se litigant, with little or no lawyering skill, could easily lose five perfectly meritorious litigations in a seven year period without having done anything blameworthy at all (see VLS sec. 391(b)(1)) – except for not hiring a lawyer (but he is, in fact, exercising a fundamental protected right to litigate without representation – see previous blog posting “Prior Restraint Errors in Wolfgram v. Wells Fargo – Part 1“ s.v.. “The right to litigate in propria persona is also a protected right”.)

Even Wolfgram v Wells Fargo Bank (1997) 53 Cal.App.4th 43 – the leading opinion cited as authority for upholding the constitutionality of VLS – admits this:

“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 many meritorious lawsuits do fail, the author of the Wolfgram opinion, Judge Fred K. Morrison, argues that losing five (possibly) meritorious lawsuits by one litigant within seven years creates the inference of vexatiousness. Can doing something blameless five times create the inference of blameworthiness? Using Judge Morrison’s arithmetic, 5 x 0 > 0 (instead of the correct 5 x 0 = 0).

Losing five lawsuits in a seven year period may create the inference of litigiousness – but not of vexatiousness. And litigiousness, alone, cannot support a prefiling injunction. See De Long v. Mansfield (1990) 912 F.2d 1144.

A litigious pro se litigant is a nuisance for judges – who are expected to show patience and tolerance toward them. 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 ).

However, 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 C.J.S., Trial §36, p.95).

In any case, “A prefiling order cannot issue merely upon a showing of litigiousness.” Moy v. United States (9th cir,1990) 906 F.2d 467,470.“

Actually, winning or losing a lawsuit has no connection at all with vexatiousness. In fact, a winning lawsuit may easily be more vexatious than one that is lost.

“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.” (In re Kun (1989) 868 F.2d 1069).

A more likely 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).

One consequence of our primitive adversary judicial system is that an apparently minor error by the litigator, can make all the difference between winning or losing a case. See the legal classic, The Art of Cross-Examination by Francis L. Wellman (Touchstone, 1997) for many examples of how the correct framing of a single question to a witness can make the difference between success and failure.

Inferring vexatiousness from litigiousness is contrary to the principle of law that the motives for bringing a lawsuit are immaterial. See Connolly v. Union Sewer Pipe Company, 184 U.S. 540 (1902) – where a patent infringement action was not stopped because the title holder was presumed to be “an obnoxious corporation, and is seeking to perpetuate the monopoly which is conferred upon it by its title to the letters patent” (an “odious and a wicked” combination) – the Connolly court stated the following:

“The party having such a patent has a right to bring suit on it, . . . if he believes the patent is being infringed; and the motive which prompts him 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. ‘The exercise of the legal right cannot be affected by the motive which controls it.’ Kiff v. Youmans, 86 N.Y. 329.”” (emphasis added).

The actions for which a “vexatious” label may be affixed need not be malicious or truly “vexatious” in any way. “A State cannot foreclose the exercise of constitutional rights by mere labels.” (NAACP v. Button 371 U.S. 415,429).]

The point of the above discussion is that under the VLS, a person can be punished by being stigmatized as a “vexatious litigant” although he has done nothing blameworthy at all.

The right to be free of official stigmatization is a liberty interest protected by 14th Amendment.

The following discussion is from The Constitution of the United States of America, Analysis and Interpretation, Senate Document 108-17 (US Gov Printing Off. 2004 – S.v., “Amendment 14 – Rights Guaranteed, Liberty Interest” – online at http://www.gpo.gov/fdsys/pkg/GPO-CONAN-2002/pdf/GPO-CONAN-2002.pdf ).

“The [Supreme] Court also appeared to have expanded the notion of ‘‘liberty’’ to include the right to be free of official stigmatization, and found that such threatened stigmatization could in and of itself require due process. 761 [Board of Regents v. Roth, 408 U.S. 564, 569–70 (1972); Goss v. Lopez, 419 U.S. 565 (1975)] Thus, in Wisconsin v. Constantineau, 762 [fn 762 762 400 U.S. 433 (1971).] the Court invalidated a statutory scheme in which persons could be labeled ‘‘excessive drinkers,’’ without any opportunity for a hearing and rebuttal, and could then be barred from places where alcohol was served. The Court, without discussing the source of the entitlement, noted that the governmental action impugned the individual’s reputation, honor, and integrity. But, in Paul v. Davis, 763 [fn 763 763 424 U.S. 693 (1976).] the Court appeared to retreat from recognizing damage to reputation alone, holding instead that the liberty interest extended only to those situations where loss of one’s reputation also resulted in loss of a statutory entitlement. . . . Here the Court, 424 U.S. at 701–10, distinguished Constantineau as being a ‘‘reputation-plus’’ case. That is, it involved not only the stigmatizing of one posted but it also ‘‘deprived the individual of a right previously held under state law – the right to purchase or obtain liquor in common with the rest of the citizenry.’’ 424 U.S. at 708. . . . the reputation-plus concept is now well-settled. See discussion supra. And see Board of Regents v. Roth, 408 U.S. 564, 573 (1972); Siegert v. Gilley, 500 U.S. 226 (1991); Paul v. Davis, 424 U.S. 693, 711–12 (1976). In a subsequent case, the Court looked to decisional law and the existence of common-law remedies as establishing a protected property interest. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9–12 (1978).”.

The VLS, like the statute in Wisconsin v. Constantineau, 400 U.S. 433 (1971) also falls under the well-established ‘‘reputation-plus’’ rule. That is, it involves not only stigmatizing the person defamed but it also ‘‘deprived the individual of a right previously held under state law”. In Constantineau it was “the right to purchase or obtain liquor in common with the rest of the citizenry” and under the VLS it is the right to file a lawsuit in propria persona in common with the rest of the citizenry.

Because a hearing under the VLS may result in loss of a protected liberty interest based on findings that do not require a finding of blameworthiness – Due Process is denied

“ . . . certainly where the State attaches “a badge of infamy” to the citizen, due process comes into play. Wieman v. Updegraff, 344 U.S. 183, 191. “The right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.” Anti-Fascist Committee v. McGrath, 341 U.S. 123, 168 (Frankfurter, J., concurring). . . . Where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential. “Posting” under the Wisconsin Act may to some be merely the mark of illness, to others it is a stigma, an official branding of a person. The label is a degrading one. Under the Wisconsin Act, a resident of Hartford is given no process at all. This appellee was not afforded a chance to defend herself.“ (Constantineau).

Fourteenth Amendment’s guarantee that no State shall deprive any person of property without due process of law. Under the VLS there is indeed a hearing.

But the hearing is not to determine blameworthiness but rather to determine whether the person falls under technical definition of the legislature which may be completely detached from any issue of blameworthiness.

It is analogous to the situation in Bell v. Burson, 402 U.S. 535 (1971) where. . .

“ . . . Georgia’s Motor Vehicle Safety Responsibility Act provides that the motor vehicle registration and driver’s license of an uninsured motorist involved in an accident shall be suspended unless he postssecurity to cover the amount of damages claimed by aggrieved parties in reports of the accident. The administrative hearing conducted prior to the suspension excludes consideration of the motorist’s fault or liability for the accident. The Georgia Court of Appeals rejected petitioner’s contention that the State’s statutory scheme, in failing before suspending the licenses to afford him a hearing on the question of his fault or liability, denied him due process in violation of the Fourteenth Amendment.” (emphasis added).

“The hearing required by the Due Process Clause must be “meaningful,” Armstrong v. Manzo, 380 U.S. 545, 552 (1965), and “appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., supra, at 313. It is a proposition which hardly seems to need explication that a hearing which excludes consideration of an element essential to the decision whether licenses of the nature here involved shall be suspended does not meet this standard.” (Bell v. Burson, 402 U.S. 535 (1971) at 541).

Stigmatization by VLS constitutes punishment of a criminal nature

The VLS is part of the Civil Procedure Code – not the Penal Code. It original purpose was simply to require a security from a so-called “vexatious litigant” in order for him to continue his litigation. In 1990 it was amended to allow imposition of a prefiling order prohibiting persons labeled as “vexatious litigant” from filing any litigation in propria persona without it first being censored by a presiding judge.

The VLS’s position in the civil code does not preclude its meting out punishment of a criminal nature.

“The notion that the label attached to the proceeding is dispositive runs contrary to the trend of our recent cases. In Halper we stated that “the labels `criminal’ and `civil’ are not of paramount importance” in determining whether a proceeding punishes an individual. 490 U. S., at 447. ”. (United States v. Ursery, 518 U.S. 267 (1996) at para 121).

In United States v. Halper, 490 U. S. 435 (1989), the US Supreme Court considered ” . . .whether and under what circumstances a civil penalty may constitute `punishment’ for the purposes of double jeopardy analysis”. The Court found that . . . case law did “not foreclose the possibility that in a particular case a civil penalty . . . may be so extreme and so divorced from the Government’s damages and expenses as to constitute punishment.” 490 U. S., at 442.

“The difference between civil law and criminal law turns on the difference between two different objects which law seeks to pursue – redress or punishment. The object of civil law is the redress of wrongs by compelling compensation or restitution: the wrongdoer is not punished; he only suffers so much harm as is necessary to make good the wrong he has done. The person who has suffered gets a definite benefit from the law, or at least he avoids a loss. On the other hand, in the case of crimes, the main object of the law is to punish the wrongdoer; to give him and others a strong inducement not to commit same or similar crimes, to reform him if possible and perhaps to satisfy the public sense that wrongdoing ought to meet with retribution.” (William Geldart, Introduction to English Law 146 (D.C.M. Yardley ed., 9th ed. 1984)).

The Halper opinion stated that “[A] civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term. . . “.

To stigmatize someone as a “vexatious litigant” serves no “redress of wrongs” – who benefits from the name-calling? Clearly, the object of the name-calling is to punish the pro se litigant for not hiring a lawyer and to give him a strong inducement not to continue irritating the community of judges. However, “`Retribution and deterrence are not legitimate non-punitive governmental objectives.'”(see Bell v. Wolfish, 441 U. S. 520, 539, n. 20 (1979)).
Vagueness is built into the VLS statute. It could have been titled “Security for Litigation Statute” because that was its original purpose. The Legislature, however, is free to define words as it pleases . . .

“The courts are compelled to follow legislative intent even if it leaps through a looking-glass. “‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’ [P] ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ [P] ‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.'” (Lewis Carroll, Through the Looking-Glass, ch. 6.) The Legislature is master of the words it uses, even if it engages in Humpty Dumpty’s confusing practice of departing from the usual and ordinary meaning of words.” (Oden v. Board of Administration, 23 Cal.App.4th 194 (1994), fn.4).

By including the word “vexatious” – the only purpose of which is to stigmatize the pro se litigant – the Legislature clearly had a punitive purpose.

Incidentally, the Wolfgram opinion itself illustrates some means (which are clearly punishments) previously employed by similar so-called “regulatory schemes” for curbing vexatious litigation:

“Other ways of curbing abusive litigants were tried. fn. 4” [Footnote 4] “In the Green case the court pointed out an earlier method of control, viz., chaining a mischief maker to a rock with a poisonous snake suspended above, dripping poison upon him, but conceded “That case arose prior to the Eighth Amendment.” (Green v. Arnold supra, 512 F.Supp. at p. 652, fn. 11.) The Chancellor of England once punished an abusive pleader by ordering “that the Warden of the Fleet … shall bring him into Westminster Hall … and then and there shall cut a hole in the myddest of the [pleading] and put the said Richard’s head through the same hole, [and] shall lead the same Richard, bare headed and bare faced, round about Westminster Hall, whilst the Courts are sitting, and shall shew him at the bar of every of the three Courts within the Hall, and shall … keep him prisoner, until he shall have paid 10l. to Her Majesty for a fine, and 20 nobles to the defendant, for his costs in respect of the aforesaid abuse[.]” (Mylward v. Weldon (Feb. 15, 1596); Registrar’s Book A. 1596, fo. 675, reprinted in Monro, Acta Cancellariae (1847) pp. 692-693.)“.

Another shaming and blacklisting statute was recently held to be constitutional by the US Supreme Court (Smith v. Doe, 538 U.S. 84 (2003)) which upheld the constitutionality of the Alaska Sex Offender Registration Act, under which convicted sex offenders must register with the government. Their name, address and additional personal information is published on the internet. That opinion states the following:

“Respondents’ argument that the Act, particularly its notification provisions, resembles shaming punishments of the colonial period is unpersuasive. In contrast to those punishments, the Act’s stigma results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public. The fact that Alaska posts offender information on the Internet does not alter this conclusion. Second, the Act does not subject respondents to an affirmative disability or restraint. It imposes no physical restraint, and so does not resemble imprisonment, the paradigmatic affirmative disability or restraint. Hudson, 522 U. S., at 104.”.

The differences between the Alaska statute and the VLS are clear.

Any punishment for blameless conduct is constitutionally disproportionate

The Eighth Amendment to the U.S. Constitution prohibits “all punishments which by their excessive length or severity are greatly disproportionate to the offenses charged.”. The gravity of the offense and the harshness of the penalty are two of the criteria used for determining whether a punishment is unconstitutionally disproportionate. Solem v. Helm (1983) 463 U.S. 277.

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).

In other words, any significant punishment for conduct that is not at all blameworthy is unconstitutional. The VLS punishments are significant. The “offense” is no more blameworthy than having a common cold. The gravity of the “offense” is zero [Losing five lawsuits in a seven year period (VLS Sec. 391(b)(1))], or near- zero [A single “tactic” deemed to be “frivolous” (VLS Sec. 391(b)(3))]. Therefore the punishment is disproportionate.

Another criteria used for determining constitutionality is comparison with the punishments imposed on other offenders in the same jurisdiction, see Solem. In California, lawyer-represented litigants receive no punishment whatsoever for having lost five litigations in the previous seven year period.

Constitutional objections to VLS were discussed in the published federal appellate decision of Wolfe v. George (9th. Cir. 2007) 486 F.3d 1120. The short shrift given to Mr. Wolfe’s cogent arguments is the subject of aprevious blog post.

An issue asserted in Mr. Wolfe’s opening brief is that “ . . . The six-pronged punishments created by the CCP 391 statutory scheme constitutes cruel and unusual punishment” and that “. . . ‘the prohibitive and punitive measures provided in CCP 391 violate the Excessive Fines Clause of the Eighth Amendment as applied to civil law, in that they serve not merely a remedial purpose but also the twin purposes of retribution and deterrence.” (references are made to lower court papers for support).

Circuit Judge Andrew Kleinfeld, the author of the Wolfe opinion, sidestepped this issue (at para 44) holding that . . . “The Double Jeopardy and Ex Post Facto Clauses do not apply because the vexatious litigant statute does not impose criminal penalties . . . The Eighth Amendment does not apply because security, if required, is not a fine or punishment. . . .”

Judge Kleinfeld’s view that VLS imposes no criminal penalties or punishment is not correct as shown above.

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