Among the "existing remedies" which Bozek stated reduce the impact of "unwarranted" and "improper" litigation are sanctions under section 128.5 and a peace officer's ability to obtain reasonable fees for bad faith actions under section 1021.7. (Bozek, supra, 31 Cal. 3d at p. 537.) "In order to avoid the chilling effect upon the constitutional right of petition which would result if we were to allow municipalities to maintain actions for malicious prosecution, we conclude the best course is to defer to the legislatively provided remedy. An award of the expenses of suit by a trial court in an initial action will fully compensate a municipality for its expenses of defending suit. The availability of such an award, in combination with the criminal sanctions provided in Penal Code section 72 for the filing of false claims with the government and the possibility of malicious prosecution actions by individual city employees -- here the police officers -- provide an adequate deterrent to unwarranted lawsuits without unduly infringing upon the right of petition." (Id. at p. 538, fn. omitted.)

Bozek has been followed in several cases raising similar concerns about "chilling" a litigant's petition rights. (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal. 3d 1118, 1123 [270 Cal. Rptr. 1, 791 P.2d 587] [barring causes of action for interference with contractual relations and prospective advantage, where "interference" consists of inducing a party to seek a judicial interpretation of the contract]; Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal. 3d 1157 [232 Cal. Rptr. 567, 728 P.2d 1202] [tort of abuse of process does not encompass the mere filing or maintaining of a lawsuit]; Smith v. Silvey (1983) 149 Cal. App. 3d 400 [197 Cal. Rptr. 15] [injunction prohibiting complaints to public agencies dissolved].) " '[T]he principle of constitutional law that bars litigation arising from injuries received as a consequence of First Amendment petitioning activity [should be applied], regardless of the underlying cause of action asserted by the plaintiffs.' . . ." (Hi-Top Steel Corp. v. Lehrer (1994) 24 Cal. App. 4th 570, 578 [29 Cal. Rptr. 2d 646], citations omitted.)

Notwithstanding the protected nature of the right to sue, some suits may be undertaken with hostile intent and disguised as petitions for redress: "[I]mposing liability for [such] actions does not interfere with [the] state constitutional 'right to . . . petition government for redress of grievances' " because the actions were not taken in exercise of such right. (Hi-Top Steel Corp. v. Lehrer, supra, 24 Cal. App. 4th at pp. 578-579, see Blank v. Kirwan (1985) 39 Cal. 3d 311, 321-322 [216 Cal. Rptr. 718, 703 P.2d 58].)

This problem, as discussed in several California cases, is illuminated by cases discussing a peculiar issue arising in antitrust law: When can the filing of a lawsuit lead to antitrust liability? There is an established standard under federal law that the filing of a lawsuit is protected unless the suit is a "sham" designed to harm competitors. (See Hi-Top Steel Corp. v. Lehrer, supra, 24 Cal. App. 4th at pp. 574-583.) Such determination embraces the impropriety of the motive and "objective" baselessness of the action. Under federal law, absent "a patent lack of merit, an action protected under the First Amendment by the right of petition cannot be the basis for litigation. [Citation.]" (Ludwig v. Superior Court (1995) 37 Cal. App. 4th 8, 22 [43 Cal. Rptr. 2d 350].)

Ludwig, a "SLAPP-suit" dismissal case, cited Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc. (1993) 508 U.S. 49, 60 [113 S. Ct. 1920, 1928, 123 L. Ed. 2d 611, 623-624] which refined the "Noerr-Pennington" antitrust immunity doctrine and the "sham exception" thereto. "Sham" suits enjoy no constitutional immunity. (See McDonald v. Smith (1985) 472 U.S. 479, 484 [105 S. Ct. 2787, 2790-2791, 86 L. Ed. 2d 384, 389] [libel case].) Real Estate Investors clarified earlier cases and set out a two-part test for "shamness": In order for a suit to qualify as "sham" for antitrust purposes, "First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. . . . Only if challenged litigation is objectively meritless may a court examine the litigant's subjective motivation. Under this second part of our definition of sham, the court should focus on whether the baseless lawsuit conceals 'an attempt to interfere directly with the business relationships of a competitor,' . . . through the 'use [of] the governmental process -- as opposed to the outcome of that process -- as an anticompetitive weapon.' . . . ." (Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., supra, 508 U.S. at pp. 60-61 [113 S. Ct. at p. 1928, 123 L. Ed. 2d at p. 624], citations and fn. omitted; see Hi-Top Steel Corp. v. Lehrer, supra, 24 Cal. App. 4th at pp. 577-578.)

With this overview of the law regarding petition rights, we now turn to Wolfgram's contentions.

C. The Right to Petition and the Vexatious Litigant Statute.

The cases extending Bozek, supra, 31 Cal. App. 3d 527 in California do not elaborate on Bozek's elevation of petitions against the government to a place of special status. As stated, we are constrained to accept that that is the law in California. (See fn. 6, ante.) Wolfgram extracts from Bozek and the "sham" line of cases the rule that any liability predicated on the proper (i.e., nonfrivolous) exercise of the right to petition against the government is forbidden. If and only if a petition against the government meets the standards of a "sham" or frivolous suit can any penalty be exacted. Wolfgram then likens the vexatious litigant declaration to such a penalty. Since the underlying lawsuits need not themselves be frivolous, even if brought against the government, there is an impermissible "chill." [FN7] We disagree.

[FN7] Although all were meritless, we presume that Wolfgram's prior suits are not frivolous or "sham" as defined in the text. (See Bach v. McNelis (1989) 207 Cal. App. 3d 852, 875 [255 Cal. Rptr. 232].) We further presume the instant suit lacks merit. (Fn. 2, par. 2, ante.)

But, as demonstrated, the right to petition has never been absolute. For example, we upheld a conviction for "peaceable, nonobstructive picketing within the interior of the state Capitol building." (Simpson v. Municipal Court (1971) 14 Cal. App. 3d 591, 594 [92 Cal. Rptr. 417].) We recognized that the ultimate purpose of the Capitol was to facilitate political views, and that "the building's primary use requires assurances of free discussion and openness to petition," but we upheld the conviction, pointing out the narrowness of the ban, and that "the patrols would tend to chill and repress the views of others." (Id. at pp. 597, 598; see Paterson, Liberty of the Press, Speech, and Public Worship, supra, at pp. 34-35 and especially fn. 2 [petitioners swarmed into Commons; ensuing riot resulted in many deaths].) Similarly, the general right of persons to file lawsuits -- even suits against the government -- does not confer the right to clog the court system and impair everyone else's right to seek justice. As has been pointed out: "The constant suer for himself becomes a serious problem to others than the defendant he dogs. By clogging court calendars, he causes real detriment to those who have legitimate controversies to be determined and to the taxpayers who must provide the courts." (Taliaferro v. Hoogs (1965) 237 Cal. App. 2d 73, 74 [46 Cal. Rptr. 643].)

Wolfgram makes much of the quintessential form of "petition" against the government, the petition for a writ of habeas corpus. Although the "Great Writ" has its own constitutional font (U.S. Const., art. I, s. 9, cl. 2; Cal. Const., art. I, s. 11), it certainly has no less protection under the First Amendment for such reason. Yet even this "right to petition" is subject to abuse and, hence, to reasonable restrictions. (See Felker v. Turpin (1996) 518 U.S. [116 S. Ct. 2333, 135 L. Ed. 2d 827]; Johnson v. Avery (1969) 393 U.S. 483, 491 [89 S. Ct. 747, 751-752, 21 L. Ed. 2d 718, 724].) [FN8]

[FN8] The Antiterrorism and Effective Death Penalty Act of 1996 bars a second ("successive") habeas corpus application repeating a claim made in an earlier application and bars an application raising a new claim unless the applicant seeks relief based on a retroactive change in the law, or new facts not previously discoverable which would demonstrate a claim of constitutional error of sufficient magnitude to undermine the result at trial. A person seeking to file such an application in federal district court must obtain permission from a federal court of appeals. If, as Wolfgram maintains, there can be no limitation on the exercise of the right to petition against the government, this so-called "gatekeeper" provision would violate the First Amendment. Yet, Felker upholds the statutory "gatekeeper" mechanism. (518 U.S. at p.___ [116 S. Ct. at p. 2341, 135 L. Ed. 2d at p. 838].) Although the First Amendment was not mentioned in that case, it is unlikely that, if the petition clause means what Wolfgram claims it means, the court would miss the issue.

Wolfgram suggests that an impermissible "chill" occurs because a person who had lost several suits against the government might fear bringing yet another suit, for fear of being branded a vexatious litigant. That would occur if and only if the last suit lacked merit, 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, supra, 32 Cal. App. 4th at pp. 1582-1583.) [FN9] Such a suit is by definition not worthy and under settled rules of practice would ordinarily be disposed of by means of a demurrer, judgment on the pleadings, or summary judgment. "[B]aseless litigation is not immunized by the First Amendment right to petition." (Bill Johnson's Restaurants, Inc. v. NLRB (1983) 461 U.S. 731, 743 [103 S. Ct. 2161, 2170, 76 L. Ed. 2d 277, 289].)

[FN9] Language in Muller v. Tanner (1969) 2 Cal. App. 3d 445, 453 [82 Cal. Rptr. 738] that "It may be assumed that the trial court will recognize that success breeds success when it is proper to do so" does not mean a trial court has discretion to review the soundness of the underlying suits, only that the trial court does consider the merits of the suit in which the litigant is claimed to be vexatious.

As a matter of common experience even many meritorious suits fail, due to the vagaries of the trial process if nothing else. Many more colorable suits fail, either due to pretrial disposition or failure to persuade the trier of fact. Yet, loss of five suits in but seven years is remarkable. Most people never sue anybody. While that does not lessen any person's right to sue to correct real or perceived injustices, it does suggest that the inference to be drawn from the statute is, despite Wolfgram's contrary view, relatively narrow: Only those citizens who decline to hire lawyers, lose five suits in seven years, then undertake a sixth suit which lacks merit, will be labeled vexatious.

Finally, it is true no citizen is required to hire a lawyer. Our mention of the "pro per" requirement of the statute does not derive from any conspiracy to silence dissent, as Wolfgram posits. Instead, it reflects the reality that a lawyer is often the best judge of the merits of a proposed suit. Of course, some attorneys allow themselves to be used as puppets by their clients, but such abuse can be remedied. The vexatious litigant can be barred from court, even if he uses a "strawman" attorney. (See In re Shieh (1993) 17 Cal. App. 4th 1154, 1167 [21 Cal. Rptr. 2d 886] ["Shieh does not engage attorneys as neutral assessors of his claims, bound by ethical considerations not to pursue unmeritorious or frivolous matters on behalf of a prospective client. [Citation.] Rather, these attorneys who ostensibly 'represent' Shieh serve as mere puppets"].) And the attorney who effectively lends his license to another is simply asking for trouble. These facts demonstrate the soundness of the Legislature's distinction between in propria persona suits and suits filed by attorneys. (Taliaferro v. Hoogs, supra, 236 Cal. App. 2d at p. 527 ["Attorneys are governed by prescribed rules of ethics and professional conduct, and, as officers of the court, are subject to disbarment, suspension, and other disciplinary sanctions not applicable to litigants in propria persona"].) [FN10]

[FN10] Wolfgram's suggestion that the statute thus discriminates against those who are unable to afford to hire a lawyer was not headed as an argument in the opening brief and is unaccompanied by analysis or authority.

III. Prefiling Orders

Wolfgram contends the "prefiling" order constitutes an unlawful prior restraint on his right to petition and violates due process. We disagree.

A. Prior Restraint

Wolfgram relies on Smith v. Silvey, supra, 149 Cal. App. 3d 400, which invalidated an injunction prohibiting Silvey from contacting public agencies with complaints. The court held such injunction violated his right to petition the government and constituted a "prior restraint," invalid under the First Amendment without a showing of a "clear and present danger." (Pp. 406-407.) But in that and other "prior restraint" cases, content discrimination is present. (Danskin v. San Diego Unified Sch. Dist. (1946) 28 Cal. 2d 536, 545-548, 554 [171 P.2d 885] [applicant for use of auditorium cannot be required to swear lack of affiliation with given group], id. at pp. 556-557 (conc. opn. of Carter, J.); New York Times Co. v. United States (1971) 403 U.S. 713 [91 S. Ct. 2140, 29 L. Ed. 2d 822] [newspaper cannot be barred from publishing Pentagon Papers], Thomas v. Collins, supra, 323 U.S. 516 [union organizer cannot be enjoined from speaking without a license]; Bridges v. California (1941) 314 U.S. 252 [62 S. Ct. 190, 86 L. Ed. 192, 159 A.L.R. 1346] [vacating contempt consisting of comments about pending litigation]; Near v. Minnesota (1931) 283 U.S. 697, 713-723 [51 S. Ct. 625, 630-633, 75 L. Ed. 1357, 1366-1371] [newspaper cannot be enjoined from defamation (criticism of official conduct), but during war "government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops"]; Schenck v. United States (1919) 249 U.S. 47, 50-53 [39 S. Ct. 247, 248-249, 63 L. Ed. 470, 473-474].)

This line of cases involves government censorship. A vexatious litigant is not the subject of content discrimination. Wolfgram's assumption that judges (reviewing proposed filings) or attorneys employed by a litigant to bypass the prefiling order (as officers of the court), may perpetrate censorship as organs of the judiciary or of the government generally is unfounded. We presume attorneys and judges obey all laws, particularly the state and federal Constitutions, which they are sworn to uphold. (Evid. Code, s. 664 [presumption that official duty "regularly performed"]; Civ. Code, s. 3548 ["law has been obeyed"].)

The prefiling order component of the vexatious litigant statute is a necessary method of curbing those for whom litigation has become a game. Wolfgram has not established that a partial restriction on the ability to file suit has ever been held to be a "prior restraint" requiring a showing of clear and present danger and concomitant procedural safeguards. (See Tribe, American Constitutional Law (2d ed. 1988) s. 12.34-12.36, pp. 1039-1054.) To the extent it keeps vexatious litigants from clogging courts, it is closer to "licensing or permit systems which are administered pursuant to narrowly drawn, reasonable and definite standards" which represent "government's only practical means of managing competing uses of public facilities[.]" (Id. at p. 1051.) When a vexatious litigant knocks on the courthouse door with a colorable claim, he may enter.

B. Due Process

To the extent Wolfgram complains that the "prefiling" statute violates due process, we disagree: The vexatious litigant has the right to petition the presiding judge of any court for permission to file any litigation he chooses, or to employ an attorney to file suit. (s. 391.7, subd. (a).)

Wolfgram argues the "prefiling" statute is overbroad because it prevents the filing of writs of habeas corpus and petitions for dissolution of marriage, resolution of paternity and adoption. We disagree. First, if a vexatious litigant chooses to file an action implicating family rights, which Wolfgram properly characterizes as subject to particular constitutional protections, the presiding judge of the proposed court presumably will take the nature of the action into consideration. For example, a declaration by the litigant that he is presently married and desires a divorce would, in all likelihood, constitute good cause to allow him to file a dissolution petition; the minimal delay and effort in drafting the request for permission to file the action would not be an unreasonable hurdle. Similarly, Wolfgram's claims regarding writs of habeas corpus, a type of litigation we have acknowledged merits unique constitutional protection, fail, because we presume a presiding judge would consider the special nature of the Great Writ in deciding whether to allow the filing of a petition therefor. A preliminary declaration by the litigant that he is in actual or constructive custody, and entitled to release or other relief based on some legal theory, can hardly be burdensome, since such allegations must appear in the petition in any event. (Pen. Code, s. 1474 ["petition must also state in what the alleged illegality consists"]. See Fischer et al., Appeals and Writs in Criminal Cases (Cont.Ed.Bar 1982) Writs in California State Courts, s. 2.93-2.96, pp. 278-281; see also Judicial Council Forms Manual (Bancroft-Whitney 1994) Forms MC-270, MC-275, pp. 677, 683 [requiring specification of grounds for relief].) A prefiling order does not constitute a suspension of the writ of habeas corpus as proscribed by the state and federal Constitutions. (U.S. Const., art. I, s. 9, cl. 2; Cal. Const., art. I., s. 11, see Felker v. Turpin, supra, 518 U.S. at p. [116 L. Ed. 2d at pp. 2341-2342, 135 L. Ed. 2d at p. 840.)

Moreover, as to all categories of cases, if a presiding judge refused to exercise or abused his or her discretion, the aggrieved litigant could file an original mandamus action in a higher court to compel the presiding judge to act according to law. (Cal. Const., art. VI, s. 10; Code Civ. Proc., s. 1085; State Farm etc. Ins. Co. v. Superior Court (1956) 47 Cal. 2d 428, 432 [304 P.2d 13]; cf. Marble v. Latchford Glass Co. (1962) 205 Cal. App. 2d 171, 175-176 [22 Cal. Rptr. 789].) In a case involving a claim by a litigant that a trial court erroneously refused to allow him to file an independent suit against a receiver, but required him to intervene in the receivership matter, the California Supreme Court held "It must, of course, be conceded that if upon the showing made upon the application for leave to sue, no discretion was left to respondent [Judge Coffey] but to grant the petition, then petitioner is entitled to the issuance of this writ of mandate to compel respondent to act as the law required him to do," i.e., grant leave to sue. (De Forrest v. Coffey (1908) 154 Cal. 444, 448 [98 P. 27]; see Vitug v. Griffin (1989) 214 Cal. App. 3d 488, 492-493 [262 Cal. Rptr. 588].) The same would apply to a vexatious litigant who has demonstrated "the litigation has merit and has not been filed for the purposes of harassment or delay" (s. 391.7, subd. (b)), but who has been denied leave to proceed with the suit. [FN11]

[FN11] In order to file the mandamus petition attacking the lower court's refusal to file the complaint or petition the litigant must either employ counsel or seek from the presiding justice of the appellate court permission to file an original mandamus action. The litigant who proceeds in propria persona must persuade the appellate court's presiding justice that the mandamus action "has merit and has not been filed for the purposes of harassment or delay." (s. 391.7, subd. (b).) Whether or not counsel is employed, security may be required. (See p. 49, supra.)

Wolfgram also states the statutory scheme "sets up a form of 'attainder' whereby appellant is deprived of his civil rights in perpetuum," but, for lack of argument heading or analysis, the point is waived.

IV., V. [*]

[*] See footnote 1, ante, page 43.

DISPOSITION

The judgment is affirmed.

Sparks, Acting P. J., and Nicholson, J., concurred.

A petition for a rehearing was denied March 27, 1997, and appellants' petition for review by the Supreme Court was denied May 28, 1997. Baxter, J., did not participate therein.