United States v. 2007-04-30 | 05-16674 | WOLFE VSTRANKMAN | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 BURTON H. WOLFE,
Plaintiff-Appellant, No. 05-16674
v. D.C. No.
 CV-00-01047-SBARONALD M. GEORGE, Chief Justice;
DEBORAH SILVA, OPINION
Defendants-Appellees. 
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Submitted July 28, 2006*
San Francisco, California
Filed April 30, 2007
Before: Gilbert S. Merritt,** Andrew J. Kleinfeld, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Kleinfeld
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Gilbert S. Merritt, Senior Circuit Judge for the United
States Court of Appeals for the Sixth Circuit, sitting by designation.
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COUNSEL
Burton H. Wolfe, pro se, San Francisco, California, for the
appellant.
Jill Bowers, Deputy Attorney General for the state of Califor-
nia, Sacramento, California, for the appellee.
OPINION
KLEINFELD, Circuit Judge:
This is a challenge to the California vexatious litigant stat-
ute on numerous constitutional grounds.
Facts
Burton H. Wolfe filed a number of pro se complaints
regarding San Francisco taxicab companies. In 1992, the
Superior Court for the County of San Francisco deemed him
a “vexatious litigant” and imposed a prefiling order. As we
explain below, the order required Wolfe to present his com-
plaints for review by a judge before filing them. The order
was rescinded in 1999, and in less than a year Wolfe filed
another six lawsuits in the state courts.
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Wolfe brought this Section 19831 case in federal court,
challenging the constitutionality of California’s vexatious liti-
gant statute.2 The district court dismissed the case under the
Rooker-Feldman3 doctrine. Wolfe appeals for the second
time. In our previous decision, we rejected application of the
Rooker-Feldman doctrine, because Wolfe was not seeking
federal relief from a state court judgment.4 We concluded that
Wolfe had standing and a ripe dispute, even though no vexa-
tious litigant order applied to him when he sued, because his
history of lawsuits and the recently rescinded prefiling order
showed that he was sufficiently likely to be subjected to such
an order again.5 We concluded that most of the defendants
Wolfe had sued enjoyed sovereign immunity, but he neverthe-
less could, despite the Eleventh Amendment, seek declaratory
and injunctive relief against both the Chief Justice of the Cali-
fornia Supreme Court and the California official who admin-
istered vexatious litigant orders, in their official capacities.6
142 U.S.C. § 1983.
2Cal. Code Civ. Proc. §§ 391 et seq.
3See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462
(1983); Rooker v. Fid. Trust Co., 263 U.S. 413 (1923). The Rooker-
Feldman doctrine generally bars federal district courts “from exercising
subject matter jurisdiction over a suit that is a de facto appeal from a state
court judgment.” Kougasian v. TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir.
2004). The Supreme Court emphasized in Exxon Mobil Corp. v. Saudi
Basic Industries Corp. that the Rooker-Feldman doctrine “is confined to
cases of the kind from which the doctrine acquired its name: cases brought
by state-court losers complaining of injuries caused by state-court judg-
ments rendered before the district court proceedings commenced and
inviting district court review and rejection of those judgments. Rooker-
Feldman does not otherwise override or supplant preclusion doctrine or
augment the circumscribed doctrines that allow federal courts to stay or
dismiss proceedings in deference to state-court actions.” 544 U.S. 280,
284 (2005).
4Wolfe v. Strankman, 392 F.3d 358, 364 (9th Cir. 2004).
5Id.
6Id.
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On remand, Wolfe filed an amended complaint, claiming
that California’s vexatious litigant procedure violated his
rights on the grounds of:
1. Article I, section 9 - Bill of Attainder.
2. Article I, section 10 - Ex Post Facto.
3. Article VI - Oath of Office and Supremacy.
4. First Amendment - Petition for Redress of
Grievances.
5. Fifth Amendment - Double Jeopardy.
6. Eighth Amendment - Excessive Bail, Excessive
Fines, and Cruel and Unusual Punishment.
7. Ninth Amendment - Unenumerated Rights.
8. Fourteenth Amendment - Due Process.
9. Fourteenth Amendment - Equal Protection.
10. Overbreadth.
11. Vagueness.
12. 42 U.S.C. § 1983.
The district court reached all the claims on the merits and
granted judgment on the pleadings to defendants. Wolfe
appeals. We affirm.
Analysis
[1] Basically, the California statute defines “vexatious liti-
gant” as a pro se litigant who has lost at least five pro se law-
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suits in the preceding seven years, sued the same defendants
for the same alleged wrongs after losing, repeatedly filed
meritless papers or used frivolous tactical devices, or who has
already been declared a vexatious litigant for similar reasons.7
Defendants can move for an order requiring security by show-
ing that the plaintiff is a vexatious litigant and has no reason-
able probability of prevailing.8 And the state court may, on its
own motion or a defendant’s, “enter a prefiling order which
prohibits a vexatious litigant from filing any new litigation in
the courts of this state in propria persona without first obtain-
ing leave of the presiding judge of the court where the litiga-
tion is proposed to be filed.”9 The presiding judge “shall
permit the filing of that litigation only if it appears that the lit-
igation has merit and has not been filed for the purposes of
harassment or delay.”10
7See Cal. Code Civ. Proc. § 391(b) (“ ‘Vexatious litigant’ means a per-
son who does any of the following: (1) In the immediately preceding
seven-year period has commenced, prosecuted, or maintained in propria
persona at least five litigations other than in a small claims court that have
been (i) finally determined adversely to the person or (ii) unjustifiably per-
mitted 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 per-
sona, 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 determined.
(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 delay. (4) Has previously been declared to be a vexa-
tious litigant by any state or federal court of record in any action or pro-
ceeding based upon the same or substantially similar facts, transaction, or
occurrence.”).
8Id. §§ 391.1, 391.2, 391.3, 391.4, and 391.6.
9Id. § 391.7(a).
10Id. § 391.7(b).
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A long line of California decisions upholds this statutory
scheme against constitutional challenges similar to Wolfe’s.11
We see no reason to disagree with them. We affirm the dis-
trict court’s dismissal of all of Wolfe’s constitutional chal-
lenges. Like California, we impose prefiling requirements on
vexatious appellate litigants in light of decisions upholding
their legitimacy.12 Congress has also imposed somewhat simi-
lar procedures on prisoners who file in forma pauperis appeals,13
civil actions,14 and second or successive petitions for writs of
habeas corpus.15 In Rodriguez v. Cook we held that 28 U.S.C.
§ 1915(g), the analogous federal statute for vexatious prisoner
litigants, was subject only to rational basis review, not strict
scrutiny, and rejected constitutional challenges similar to
Wolfe’s.16
[2] The California vexatious litigant statute is not unconsti-
tutionally vague, because it “give[s] ‘fair notice to those who
might violate the statute.’ ”17 It is not overbroad, because there
is no constitutional right to file frivolous litigation.18 “Just as
false statements are not immunized by the First Amendment
11See, e.g., Moran v. Murtaugh Miller Meyer & Nelson, LLP, 55 Cal.
Rptr. 3d 112 (Cal. Ct. App. 2007); Wolfgram v. Wells Fargo Bank, 61 Cal.
Rptr. 2d 694 (Cal. Ct. App. 1997); Childs v. PaineWebber Inc., 35 Cal.
Rptr. 2d 93 (Cal. Ct. App. 1994).
12“We recognize that ‘there is strong precedent establishing the inherent
power of federal courts to regulate the activities of abusive litigants by
imposing carefully tailored restrictions under the appropriate circum-
stances.’ ” De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990)
(quoting Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir. 1989)).
1328 U.S.C. § 1915.
1428 U.S.C. § 1915A.
1528 U.S.C. § 2244(b).
16Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999).
17United States v. Cassel, 408 F.3d 622, 635 (9th Cir. 2005) (quoting
United States v. Gilbert, 813 F.2d 1523, 1530 (9th Cir. 1987)).
18Brodrick v. Oklahoma, 413 U.S. 601, 615 (1973) (“[W]e believe that
the overbreadth of a statute must not only be real, but substantial as well,
judged in relation to the statute’s plainly legitimate sweep.”).
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right to freedom of speech, . . . baseless litigation is not
immunized by the First Amendment right to petition.”19 Under
the California statute, a vexatious litigant may file potentially
meritorious claims not intended solely to harass or delay, so
the courthouse doors are not closed to him.20
[3] Wolfe argues that the California statute denies due pro-
cess of law by requiring “vexatious litigants” to furnish secur-
ity, because it imposes a financial barrier to access to the
courts. In Boddie v. Connecticut, the Supreme Court held that
the due process clause entitles indigents to file for divorce
even if they cannot pay a filing fee because of the special sta-
tus of marriage and divorce.21 But Boddie did not prohibit all
financial barriers to litigation, regardless of frivolity or vexa-
tiousness. “We do not decide that access for all individuals to
the courts is a right that is, in all circumstances, guaranteed
by the Due Process Clause of the Fourteenth Amendment so
that its exercise may not be placed beyond the reach of any
individual, for, as we have already noted, in the case before
us this right is the exclusive precondition to the adjustment of
a fundamental human relationship.”22 In United States v. Kras,
19Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S. 731, 743 (1983) (cita-
tions omitted).
20Cal. Code Civ. Proc. § 391.7(b). “The decision whether to allow the
litigant to proceed will be made on an individual basis, taking into account
such factors as the nature of the action below, the nature of the lower
court’s ruling, whether writ petition or appeal is the appropriate procedure
for seeking review in the Court of Appeal, the litigant’s claims of error
and whether the litigant has demonstrated improper reasons for bringing
the original litigation or for taking it to the next court level.” McColm v.
Westwood Park Assn., 73 Cal. Rptr. 2d 288, 293 (Cal. Ct. App. 1998).
21Boddie v. Connecticut, 401 U.S. 371, 383 (1971) (“[A] State may not,
consistent with the obligations imposed on it by the Due Process Clause
of the Fourteenth Amendment, pre-empt the right to dissolve this legal
relationship without affording all citizens access to the means it has pre-
scribed for doing so.”).
22Boddie v. Connecticut, 401 U.S. 371, 382-83 (1971) (holding that
when “[n]o suspect classification, such as race, nationality, or alienage is
present . . . . [t]he applicable standard is that of rational justification.”)
(citations omitted).
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the Supreme Court held that access to bankruptcy courts does
not “rise to the same constitutional level” as divorce,23 and in
Ortwein v. Schwab it reached the same conclusion for chal-
lenges to reduction of welfare benefits.24 Likewise, the Cali-
fornia vexatious litigant statute does not deprive Wolfe of the
opportunity to vindicate a fundamental right in court.
[4] Under these authorities, we review the California statute
for a rational basis.25 The California cases show that a rational
basis exists. “A state may set the terms on which it will permit
litigations in its courts.”26 “[I]t cannot seriously be said that a
state makes such unreasonable use of its power as to violate
the Constitution when it provides liability and security for
payment of reasonable expenses if a litigation of this charac-
ter is adjudged to be unsustainable.”27
[5] California’s vexatious litigation statute is “rationally
related to a legitimate state purpose.”28 First, vexatious liti-
gants tie up a great deal of a court’s time, denying that time
to litigants with substantial cases. Second, the state has an
interest in protecting defendants from harassment by frivolous
litigation, just as it has an interest in protecting people from
stalking.
[6] The California statute does not violate equal protection.
Frequent pro se litigants are not a suspect class meriting strict
scrutiny.29 A state can rationally distinguish litigants who sue
23United States v. Kras, 409 U.S. 434, 444 (1973).
24Ortwein v. Schwab, 410 U.S. 656, 660 (1973) (per curiam).
25See Kras, 409 U.S. at 448 (reviewing filing fee requirement for ratio-
nal basis when there was no fundamental right to discharge one’s debts in
bankruptcy).
26Taliaferro v. Hoogs, 46 Cal. Rptr. 147, 151 (Cal. Ct. App. 1965).
27Id.
28Pennell v. City of San Jose, 485 U.S. 1, 14 (1988) (internal quotation
marks and citations omitted).
29See Ortwein, 410 U.S. at 660 (holding that because poverty is not a
suspect classification subject to heightened review, “[t]he applicable stan-
dard is that of rational justification”) (citing Kras).
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and lose often, sue the same people for the same thing after
they have lost, and so on, from other litigants. When no bond
is required, the California prefiling order does little more than
require sua sponte review of a vexatious litigant’s complaint
to see whether it states a claim before imposing the burden of
litigation on a defendant. The defendant could move to dis-
miss for the same reason, so the statute is not a substantial or
irrational bar to access. Before the court can require security,
it must determine in an individualized hearing that “the plain-
tiff is a vexatious litigant and that there is not a reasonable
probability that he will prevail in the litigation.”30 The court
must also make an individualized determination of the appro-
priate amount of security.31
[7] The Double Jeopardy and Ex Post Facto Clauses do not
apply because the vexatious litigant statute does not impose
criminal penalties.32 The Eighth Amendment does not apply
because security, if required, is not a fine or punishment.33
The statute is not a bill of attainder because it does not single
30Cal. Code Civ. Proc. §§ 391.1, 391.2. Muller v. Tanner, 82 Cal. Rptr.
741 n.2 (Cal. Ct. App. 1969).
31Cal. Code Civ. Proc. § 391.3. Muller, 2 Cal. Rptr. at 752 (Cal. Ct.
App. 1969) (“In upholding the constitutionality of the provisions of the
statute dealing with this subject it was noted that the judge could fix the
amount of the fees from his knowledge of legal practice. This, however,
does not mean that he can, as was done in this case, look at a complaint
and determine, without further evidence, the time and labor which will be
expended to defeat the claim. Not even the nature of defendant’s defense
was disclosed.”).
32Hudson v. United States, 522 U.S. 93, 95-96 (1997) (holding Double
Jeopardy Clause applies only to criminal penalties); Cal. Dep’t of Corr.
v. Morales, 514 U.S. 499, 505 (1995) (holding Ex Post Facto Clause
applies only to criminal penalties).
33“[A]t the time of the drafting and ratification of the Amendment, the
word ‘fine’ was understood to mean a payment to a sovereign as punish-
ment for some offense. Then, as now, fines were assessed in criminal,
rather than in private civil, actions.” Browning-Ferris Indus. of Vermont
v. Kelco Disposal, Inc., 492 U.S. 257, 265 (1989) (footnotes omitted).
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anyone out.34 Wolfe’s Supremacy Clause and other arguments
are frivolous.
AFFIRMED.
34See SeaRiver Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 668
(9th Cir. 2002).
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