Metropolitan News-Enterprise


Wednesday, December 15, 2004


Page 1


Ninth Circuit Revives Challenge to Vexatious Litigant Statute


By KENNETH OFGANG, Staff Writer/Appellate Courts


A constitutional challenge to California’s vexatious litigant statute was reinstated yesterday by the Ninth U.S. Circuit Court of Appeals.

The panel held that U.S. District Judge Saundra B. Armstrong was in error when she concluded that she lacked jurisdiction over the suit by San Francisco taxicab driver Burton Wolfe under the Rooker-Feldman abstention doctrine. The ruling does not address the merits of Wolfe’s claim that Code of Civil Procedure Secs. 391 through 391.7 violate his rights to due process, equal protection, and free speech and to petition for the redress of grievances.

Wolfe has filed a number of suits challenging the business practices of the taxi companies, including the signing of vehicle lease agreements that Wolfe argues are an illegal means by which the companies deny drivers the rights that they would be entitled to if classified as employees.

How Law Works

Under the statute, a pro per plaintiff who files five unsuccessful suits in a seven-year period, other than in small claims court, is subject to a prefiling order, under which the individual may not file any more pro per actions without leave of the presiding judge. The vexatious-litigant designation may also be attached to a self-represented plaintiff who continues to relitigate issues that have been determined adversely to him or her, or who repeatedly files frivolous pleadings or papers.

 Wolfe was designated a vexatious litigant by the San Francisco Superior Court in 1992, but had the order lifted in 1999. Within 10 months of having the prefiling order rescinded, he filed six pro per lawsuits, then filed his federal action under 42 U.S.C. Sec. 1983.

Armstrong ruled that Rooker-Feldman precluded the court from hearing the case. The doctrine generally bars federal courts, other than the U.S. Supreme Court on review of a decision of the state’s highest court, from hearing challenges to final judgments of state courts.

But Judge William Fletcher, writing for the Ninth Circuit, said the doctrine did not apply because Wolfe was not challenging the prior orders that had found him to be a vexatious litigant, but was suing to enjoin the state courts from declaring him to be a vexatious litigant in the future.

While Wolfe’s complaint contains a number of allegations relating to the prior proceedings, Fletcher explained, they are best explained as “part of his part of his demonstration that he is sufficiently threatened with actual harm from the future operation of the Vexatious Litigant Statute that he has standing to bring the present suit,” rather than “as de facto appeals from the decisions in those prior actions.”

Can’t Sue Judges

The panel did rule that Wolfe had improperly named some defendants, including the state, the Judicial Council, and individual judges. The state and the Judicial Council are not “persons” and thus cannot be sued under Sec. 1983, and judges generally cannot be sued in their judicial capacities, Fletcher explained.

The suit may proceed, however, against Chief Justice Ronald M. George in his administrative capacity as Judicial Council chair, and against a Judicial Council employee allegedly responsible for implementing the statute, Fletcher said, noting that Wolfe can obtain all of the relief he seeks in the case without suing anyone else.

The case is Wolfe v. Strankman, 02-15720.


Copyright 2004, Metropolitan News Company