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 To avoid unmanageable caseloads, the courts took shortcuts, including nonprecedential, unpublished opinions and penalties for litigation deviating from paradigm.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.

kanBARoo Court. 31st Installment. Bills of Attainder Revisited

The Benninghoff Miscarriage of Justice criticized an oppressive Court of Appeal decision, where the Fourth District construed Government Code section 6126, subdivision (b), to exclusively prohibit former State Bar Members like Benninghoff from practicing administrative law. The Sixth Installment suggested that Benninghoff might have successfully attacked the judgment as enforcing an invalid bill of attainder. Even though the criteria for bills of attainder have proven unsuitable for objective application, the breadth of the imposed occupational debarment, peculiarly arbitrary, would make an exceptional bill of attainder case.

The bill of attainder clause has become impossible to apply because of its unsystematic attenuation. To see how weak has become the U. S. Constitution’s bill of attainder clause (Article I, sections 9 and 10), consider that the leading case is Nixon v. Administrator of General Services (1977) 433 U.S. 425, the case deciding that a law taking possession of ex-President Nixon’s papers was not a bill of attainder. The subject legislation referred to Nixon—and only to Nixon—by name, in the aftermath of his being forced out of office in disgrace, bearing a despised pardon for his high crimes.

A bill of attainder legislatively punishes specified or clearly classified persons, thereby impugning principles of both due process and separation of powers. “Attainder” derives from “taint,” and political victors have often passed laws of attainder to further humiliate a defeated political rival; usually the laws convey the sense of moral obloquy. An extraordinary measure directed against a defeated chief of state, personally named, might seem a textbook bill of attainder, notwithstanding Congress’s wisdom, fulsomely praised.

So it would have seemed, at the post-Civil War renaissance of the bill-of-attainder clause. The contemporary law governing the constitutional ban on bills of attainder, universally recognized as an odious tool of oppression, began with two post-Civil War cases involving the occupational debarment of professionals—one an attorney—who refused to swear oaths of non-participation in the vanquished Confederate government. The U.S. Supreme Court held that debarment from the occupations of teaching and the law punishments per se. (See Cummings v. Missouri (1867) 71 U.S. 277 and Ex parte Garland (1867) 71 U.S. 333.)

The next political struggles sufficiently vehement to turn High Court attention toward the instinct to taint occurred in the post-war period, under McCarthyism and its aftermath, when the Government tried to fire Communists from their jobs, deport them, and bar them from labor-union office. These oscillating five-to-four-case outcomes, exquisitely sensitive to the court’s political composition, show indifference to stare decisis. Opinions authored by Justices Black and Douglas expanding the clause’s protection were opposed in dissents by Justice Frankfurter. Then a period of Frankfurter’s dominance, where the court without exception ruled against applying the bill of attainder clause, followed by the return to dominance of Justice Black and Douglas’s faction, joined by Chief Justice Warren, the court throughout these ideological swings never expressly over-ruling its earlier holdings.

Justice Frankfurter's untiring application of his regulatory versus punitive dichotomy harmed legal doctrine, the repair still in process. Frankfurter’s scheme required asking, regarding a measure inflicting an adverse outcome on specified citizens, whether its focus was outward, on conditions in civil society, or inward, on the mind or behavior of the target citizens. Frankfurter’s analysis could have deemed regulatory the Civil War cases’ occupational debarments, passing muster under the bill of attainder clause, because Legislators believed that these professional applicants were unreliable teachers of youth or officers of justice, as the Frankfurter-dominated Supreme Court held for laws barring Communists from municipal employment.

The punitive/regulatory distinction has proven impossible to draw objectively, a deficiency usually received as good reason to drop or reform the analysis, but it has burrowed deeply into the law, and many measures that the courts would once regard as bills of attainder or ex post facto laws have become accepted practice, including the legislation on Nixon’s papers, mandatory registration for sex offenders, prohibition of gun ownership by ex-felons, and civil property forfeitures for drug-law enforcement.

The Supreme Court developed the modern test for punitiveness in the bill of attainder clause context in Nixon v. Administrator General Services, supra, where the court required analysis of three factors: 1) is the punishment historically the kind imposed by bills of attainder; 2) does any non-punitive purpose actually achieved by the measure justify it; and 3) does the legislative history clearly show an intent to punish. Factor 3 requires so high a standard of proof as generally impossible to meet. Factor 2 restates the punitive/regulatory dichotomy, without disturbing its subjectivity The post-Civil War cases, however, leave their residue in the first factor. Those cases stated unequivocally that certain measures are inherently punitive: death, imprisonment, property forfeiture, and permanent occupational debarment.

Although variously expressing their holdings, most federal appellate circuits treat the first factor, historical attainder punishments, as creating a presumption of punitiveness, rebuttable only by clear and convincing evidence. (See for example, Bellsouth Corp. v. FCC (D.C. Cir. 1998) 144 F.3d 58.) This is why the California disbarment law itself would survive bill of attainder challenge, although the procedure imposes penalties without a hearing before the judicial courts. Clear and convincing evidence might be marshaled justifying the non-judicial disbarment proceeding as designed to regulate the practice of law. But Benninghoff was subjected to an occupational debarment that could not have been deemed necessary for the regulation of law because practice in the administrative law courts is unregulated.