55th Installment. Vindicating the Right to Litigate

When economic expansion abated in the middle 1970s, means for adjudicating and satisfying legal rights fell short of the newly authorized suits. To avoid unmanageable caseloads, the courts took shortcuts, including nonprecedential, unpublished opinions and penalties for litigation deviating from paradigm. While Justice Black, for example, had once argued for a reoriented, textualist First Amendment jurisprudence, under today's sensibilities, filing an appeal using a free-speech theory as unconventional as Justice Black's risks sanction. The courts instituted a gradient of litigation constraints, all anchored in draconian measures. The two groups of litigants, represented and unrepresented, were each assigned a unique ultimate deterrent: for litigants represented by lawyers, State Bar discipline; for pro se litigants, the vexatious-litigant classification.

In California, the same constitutional issues apply to each litigation deterrent: both involve a mixture of First and Fifth Amendment issues centered on the right to petition and equal protection of the law. A pattern of litigation error occurs when in-court civil libertarians sue or defend to undermine the unconscionable vexatious litigation statute (which I treat here and here in my legal-theory blog) or State Bar discipline for allegedly frivolous filings. In State Bar cases, attorneys trying to invalidate Bar procedures have argued mostly right to petition, in vexatious litigation cases equal protection. In-court civil libertarians should apply the reverse strategy for each, equal protection for the State Bar cases, the right to petition in vexatious litigant cases. These laws' opponents committed the same error for an identical reason, seduction by the obvious. (See preceding hyperlinks.) Freedom of petition is the obvious objection to constraints on lawyers' petition rights because an economically privileged group's unequal protection goes against intuition. Unequal protection is the obvious counter to the vexatious litigation laws because the laws harm the poor. The Legislature's effort to avoid these arguments outweighs their obviousness, whereas the statutes’ drafters ignored the arguments invisible to in-court civil libertarians.

Recognizing this pattern allows State Bar opponents to use vexatious-litigant holdings advantageously. The tactic is unstable over the long run because it depends on bad law, but the courtroom is anathema to philosophic consistency. A legal opposition should take advantage of the law's cracks as they appear because systematic overhaul in court isn't realistic. In Installment 53, I sketched an equal-protection argument against the State Bar's infringement of the right to petition. The vexatious-litigant statute is both problem and solution. Problem because the putative counterbalance avoiding Fifth Amendment invalidation of State Bar filing constraint is unrepresented litigants' parallel constraint. Solution because courts upholding the vexatious litigant statute hold only a complete litigation ban violates the Fifth Amendment. (Wolfe v. George (9th Cir. 2007) 486 F.3d 1120, 1126-7.) The threat of disbarment, State Bar opponents should contend, is a complete ban. The courts hold "vexatious litigants" aren't barred from filing their suits, but attorneys won't knowingly risk disbarment. The deterrent applied to attorneys is qualitatively harsher, tantamount to prohibition. The comparison proves fundamental-rights discrimination against attorneys.