Appeal from the judgment of the Superior Court of El Dorado County. Super. Ct. No. PV940511. Jack Halpin [*] and Claude D. Perasso, [**] Judges.

[*] Retired judge of the Shasta Superior Court, assigned by the Chief Justice pursuant to article Vi, section 6 of the California Constitution.

[**] Retired Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

NOTICE: Opinion certified for partial publication. [FN1]

[FN1] The Reporter of Decisions is directed to publish this opinion with the exception of parts IV. and V.

Kurt M. Simmons, in pro. per., for Plaintiffs and Appellants.
Sawamura, Nishimi & Chu and Lyle R. Nishimi for Defendants and Respondents.

JUDGES: Opinion by Morrison, J., with Sparks, Acting P. J., and Nicholson, J., concurring.

OPINION:

The trial court declared plaintiff John E. Wolfgram a vexatious litigant. He failed to post the required security and his action was dismissed. He and a purported coplaintiff, Attorney Kurt M. Simmons, appeal. In the published portion of the opinion we reject certain novel constitutional challenges to the vexatious litigant statute. We shall affirm.

Wolfgram, who styles himself "philosopher and blacklisted attorney," sued Wells Fargo Bank and others (Wells Fargo), alleging malicious prosecution and seeking to quiet title to certain realty. Wells Fargo moved to declare Wolfgram a vexatious litigant. The motion was supported by evidence tending to show lack of merit in this suit and by copies of court documents which established Wolfgram filed at least five unsuccessful suits against judges and other officials, alleging misdeeds such as election fraud and blacklisting. Wolfgram opposed the motion in part by urging suits against the government were privileged. [FN2]

[FN2] Wells Fargo relied on two other pleadings. One was an application to file a petition without paying fees, which was denied, but it appears the petition was filed. The other matter appears to be a motion denied for lack of a pending case. Both of these "suits," if these filings can be so characterized, were against government officials. Wells Fargo also included a copy of a State Bar Court decision. Because Wolfgram was the respondent in that case its inclusion in the motion appears to be an ad hominem attack against him.

Wolfgram heads no claim regarding the probable lack of merit in this suit. (Cal. Rules of Court, rule 15(a); Opdyk v. California Horse Racing Bd. (1995) 34 Cal. App. 4th 1826, 1831, fn. 4 [41 Cal. Rptr. 2d 263].) Accordingly, we presume, in support of the lower court's findings, that the instant suit lacks merit and, that "plaintiff's recovery is foreclosed as a matter of law or that there are insufficient facts to support recovery by the plaintiff on its legal theories, even if all the plaintiff's facts are credited." (Devereaux v. Latham & Watkins (1995) 32 Cal. App. 4th 1571, 1582-1583 [38 Cal. Rptr. 2d 849].)

DISCUSSION

I. Introduction

A. The Impetus for the Vexatious Litigant Statute.

"A problem [was] created by the persistent and obsessive litigant, appearing in pro. per., who has constantly pending a number of groundless actions, sometimes against judges and other court officers who were concerned in the adverse decisions of previous actions." (Note (1963) 38 State Bar J. 489; see Comment, The Vexatious Litigant (1966) 54 Cal.L.Rev. 1769, 1772-1773; accord, Halpin, Delay on Appeal (1963) 38 State Bar J. 279.) The Legislature adopted the vexatious litigant statute (Stats. 1963, ch. 1471, s.1, p. 3038), patterned after a statute permitting a court to require security in some derivative suits. (See Beyerbach v. Juno Oil Co. (1954) 42 Cal. 2d 11 [265 P.2d 1].) The idea began with the Los Angeles County Bar Association and was pursued by the State Bar, which argued, "The need for the adoption of this legislation is that there is an unreasonable burden placed upon the courts by groundless litigation, which, in turn, prevents the speedy consideration of deserving and proper litigation; the suits that have been filed against the judges themselves require the full time of three to four Deputy Attorneys General[.]" (Letter to Gov. Brown (July 3, 1963) Gov.'s Ch. Bill File, also citing Stafford v. Russell (1962) 201 Cal. App. 2d 719, 722 [20 Cal. Rptr. 112].)

B. The Statute.

Code of Civil Procedure section 391 et seq. (further unspecified references are to this code), provides as follows:

"In any litigation pending in any court of this state, . . . a defendant," (s. 391.1) defined as "a person (including corporation, association, partnership and firm or governmental entity) against whom a litigation is brought or maintained or sought to be brought or maintained" (s. 391, subd. (e)), "may move . . . for an order requiring the plaintiff to furnish security . . . upon a showing that . . . the plaintiff is a vexatious litigant and that there is not a reasonable probability that he will prevail in the litigation against the moving defendant." (s. 391.1.) Upon making the requisite findings, the court orders the plaintiff to give security, to compensate for the reasonable costs and attorney fees of defending the suit. (s. 391.1, 391.3) Upon failure to post security, the action is dismissed. (s. 391.4.)

The court may enter an order prohibiting the vexatious litigant from filing new state court litigation absent leave of the presiding judge where the litigation is proposed to be filed, referred to as a "prefiling" order. (s. 391.7.) The Judicial Council regularly publishes a list of such persons, to enable court clerks to enforce the statutory restriction. (s. 391.7, subd. (d).) A person subject to a prefiling order may still file state suits in two ways. First, he or she can persuade the presiding judge of the relevant court that "the litigation has merit and has not been filed for the purposes of harassment or delay," in which case the judge may condition such filing on posting security. Second, he or she can employ an attorney to file an action. (s. 391.7, subd. (b).) The vexatious litigant who employs an attorney avoids the prefiling requirements but may still have to post security. (See Camerado Ins. Agency, Inc. v. Superior Court (1993) 12 Cal. App. 4th 838 [16 Cal. Rptr. 2d 42].)

" 'Litigation' means any civil action or proceeding . . . in any state or federal court." (s. 391, subd. (a).) One type of "vexatious litigant" is a person who in a 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 permitted to remain pending at least two years[.]" (s. 391, subd. (b)(1).) Others are persons who repeatedly sue on the same cause of action (id., subd. (b)(2)), engage in frivolous tactics (id., subd. (b)(3)), or who have been declared vexatious (id., subd. (b)(4)).

C. The Contentions.

Under the statute, the underlying suits need only have been "commenced, prosecuted, or maintained in propria persona," not brought in small claims, and "(i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing." (s. 391, subd. (b)(1).) The rationale is that there is a limit to how many causes of action an individual is likely to accrue. (See Green v. Arnold (W.D.Tex. 1981) 512 F. Supp. 650, 651.)

Wolfgram urges that an unsuccessful, colorable (i.e., nonfrivolous) action against the government should not "count" as one of the underlying actions supporting a finding of vexatiousness, lest his right to petition the government be infringed. He further contends the requirement that he submit to a "prefiling order" before commencing future suits is unconstitutional because it is an unlawful "prior restraint" and violates due process.

To the extent Wells Fargo even addresses Wolfgram's contentions, it relies on cases which have rejected other constitutional challenges to the statute. Such mode of argument mirrors the declaration by the Fifth District Court of Appeal that "The vexatious litigant statutes are constitutional. (In re Whitaker (1992) 6 Cal. App. 4th 54, 56 . . . .)" (Childs v. PaineWebber Incorporated (1994) 29 Cal. App. 4th 982, 993 [35 Cal. Rptr. 2d 93].) We are unaware of any doctrine which insulates a statute from one constitutional attack, simply because it has survived a different constitutional attack. Wells Fargo also points to the unremarkable rule that "A state may set the terms on which it will permit litigations in its courts." (Cohen v. Beneficial Loan Corp. (1949) 337 U.S. 541, 552 [69 S. Ct. 1221, 1228, 93 L. Ed. 1528, 1539]; see Taliaferro v. Hoogs (1965) 236 Cal. App. 2d 521, 525-526 [46 Cal. Rptr. 147].) The generality quoted is of little utility. No case cited has measured the constitutionality of the statutes against the claims Wolfgram asserts. We do so now.

II. The Right to Petition

To place Wolfgram's contentions in perspective, we first outline the right of persons to sue, to "petition" for redress of grievances. In California law, there is an unusual distinction drawn between suits between persons and suits against the government. This distinction lends support to Wolfgram's contention that his suits against the government should not "count." However, because the "right" to petition was never absolute and because sufficient safeguards are contained within the statute, it does not impermissibly "chill" litigants.

A. The Common or Natural Law Origin of the Right to Petition.

The right to petition for redress of grievances is the right to complain about and complain to the government. The Magna Carta, chapter 61, purported to grant the right. Now it is viewed as a "natural" right (Paterson, Liberty of the Press, Speech, and Public Worship (1880) Right to Petition Parliament, pp. 30-31), was confirmed by parliamentary resolution in 1669 as an inherent right (Corwin, Constitution of the United States (2d ed. 1964) pp. 914-915), and was lodged in the Bill of Rights of 1689. (1 W. & M. sess. 2, ch. 2 [3 Stats. at Large 417] [". . . it is the right of the subjects to petition the king . . . all commitments and prosecutions for such petitioning are illegal"]; see San Filippo v. Bongiovanni (3d Cir. 1994) 30 F.3d 424, 443, fn. 23, quoting 1 Blackstone, Commentaries 143.) The right embraces dissent, and "would seem unnecessary to be expressly provided for in a republican government, since it results from the very nature and structure of its institutions. It is impossible that it could be practically denied until the spirit of liberty had wholly disappeared, and the people had become so servile and debased as to be unfit to exercise any of the privileges of freemen." (Story, Commentaries on the Constitution (1833) s. 998, p. 707; see 1 Cooley, Constitutional Limitations (8th ed. 1927) Protections to Personal Liberty, pp. 728, 729, quoting Lieber, Liberty and Self-Government (2d ed. 1859) p. 124 ["deprivation of it would at once be felt by every freeman as a degradation. The right of petitioning is indeed a necessary consequence of the right of free speech and deliberation, -- a simple, primitive, and natural right."].) [FN3]

[FN3] The "right to petition" is distinct from the "petition of right," permitting claims against the Crown. (See Clode, Petition of Right (1887) pp. 1-23; Wade & Bradley, Constitutional Law (1965) Proceedings Against the Crown, pp. 684-685; Chitty, Prerogatives of the Crown (1820) Petition of Right, pp. 340-352.)

B. The Constitutional Right to Petition.

The First Amendment to the United States Constitution provides in part: "Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble, and to petition the government for a redress of grievances." Despite the explicit reference to "Congress," the First Amendment, including specifically the right to petition, is "incorporated" against the states by virtue of the Fourteenth Amendment. (Hague v. C.I.O. (1939) 307 U.S. 496, 512-513 [59 S. Ct. 954, 963, 83 L. Ed. 1423, 1435].) Cases construing the California analog frequently rely on federal court interpretations of the First Amendment.

The original California petition clause spoke only of the right "to petition the legislature for redress of grievances." (Cal. Const. of 1849, art. I, s. 1, Cal. Const. of 1879, art. I, s. 10, italics added.) In 1974 the petition clause was redrafted to read: "The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good." (Cal. Const., art. I, s. 3, italics added.) It appears this redrafting codified existing law. As Governor Pat Brown -- who would later sign the vexatious litigant statute -- had argued, the original state petition clause "comprehends the entire spectrum of government and not merely the legislature." (Brown, The Right to Petition: Political or Legal Freedom? (1961) 8 UCLA L.Rev. 729, 732, fn. omitted; see Ballot Pamp., Proposed Amends. to Cal. Const., Gen. Elec. (Nov. 5, 1974), analysis by Legis. Analyst, p. 26 & argument in favor of Prop. 7, p. 28 [no substantive change]; but see Cal. Const. Revision Com., Proposed Revision (1971) art. 1, s. 12, pt. 5, p. 23 [clause "broadened"].)

The state right to petition has been called "an essential attribute of governing . . . vital to a basic process in the state's constitutional scheme -- direct initiation of change by the citizenry through initiative, referendum, and recall." (Robins v. Pruneyard Shopping Center (1979) 23 Cal. 3d 899, 907-908 [153 Cal. Rptr. 854, 592 P.2d 341], citations omitted, affd. sub nom. PruneYard Shopping Center v. Robins (1980) 447 U.S. 74 [100 S. Ct. 2035, 64 L. Ed. 2d 741]; accord, United States v. Cruikshank (1876) 92 U.S. 542, 552 [23 L. Ed. 588, 591] ["The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances"]; see Hague v. C.I.O., supra, 307 U.S. at pp. 513, 522 [59 S. Ct. at pp. 962-963, 967, 83 L. Ed. at pp. 1435, 1440]; Greene v. Hawaiian Dredging Co. (1945) 26 Cal. 2d 245, 251 [157 P.2d 367] [right to petition employer implied from "right of the governed to petition those exercising the powers of government"].) Although Robins spoke of reform via legislation and recall, litigation, too, may initiate change. The right to petition encompasses the right to sue. (California Transport v. Trucking Unlimited (1972) 404 U.S. 508, 510 [92 S. Ct. 609, 611-612, 30 L. Ed. 2d 642, 646].) [FN5] "The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government." (Chambers v. Baltimore & O. R. Co. (1907) 207 U.S. 142, 148 [28 S. Ct. 34, 35, 52 L. Ed. 143, 146].) "[L]itigation may well be the sole practicable avenue open to a minority to petition for redress of grievances." (N. A. A. C. P. v. Button (1963) 371 U.S. 415, 430 [83 S. Ct. 328, 336, 9 L. Ed. 2d 405, 416].)

[FN5] Blackstone distinguished the right of redress in the courts from the right to petition king or parliament. (1 Blackstone, Commentaries, supra, 141-143.) The former invokes the judicial power of government to redress a wrong committed by another, the latter is a prayer to redress a wrong committed by the government.

[FN6] The dissent correctly pointed out that the right to petition encompasses the right to file a private lawsuit, by which one litigant prays for the exercise of judicial power against another. (Bozek, supra, 31 Cal. 3d at pp. 539-540 (dis. opn. of Kaus, J.).) The dissent persuasively reasoned from this point that the result in Bozek is incorrect. However, we are not at liberty to reconsider the issue. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 455 [20 Cal. Rptr. 321, 369 P.2d 937].)