9th Circuit Backs Vexatious Challenge

Jeff Chorney
The Recorder
12-16-2004

A unanimous panel of the 9th U.S. Circuit Court of Appeals has revived a suit against Chief Justice Ronald George over the constitutionality of California's vexatious litigant statute.

The decision overturns U.S. District Judge Saundra Armstrong, who had tossed the case. The suit alleges the statute violates the First Amendment and equal protection and due process clauses.

Although the panel agreed with the lower court that George and other judges sued have judicial immunity, it ruled that the chief is not shielded from litigation over actions he takes as an administrator.

The litigant in question, 73-year-old Burton Wolfe, is a longtime alternative journalist and author in San Francisco. In 1968, he published a book about hippies and later wrote a biography of Church of Satan founder Anton LaVey. Wolfe now runs a Web site -- www.burtonhwolfe.com -- where he fumes about everything from the "fraud" of Christianity to the demise of the alternative press and the plight of pro se litigants.

A self-proclaimed "public interest litigator," Wolfe has filed dozens of suits in San Francisco Superior Court over everything from noise in his neighborhood to discount cards at a local camera store, according to court records. He said in an interview that he never filed a case unless there was some kind of benefit to the public.

"The main thing I was doing was helping people with legal problems when they couldn't get lawyers,"said Wolfe, who has worked as a cab driver as well as a writer and now describes himself as an "old fart living on Social Security."

Of the more than 40 suits he's filed in San Francisco, he said he settled about 25 for a total of $200,000 or so. He used the money mostly to bankroll a now-defunct nonprofit called Homosapiens Educational and Legal Project. Burton said he founded H.E.L.P. in 1986 to assist cab drivers with legal problems.

But it wasn't the sheer volume of suits that landed him on the state blacklist of vexatious litigants.

People on the list can be required to get permission from their local presiding judge or post security bonds before filing any more suits. There are several ways to get listed, including the repeated filing of pointless suits. For Wolfe, it was his repeated losses in lawsuits over the employment status of cab drivers.

He eventually persuaded a state court to take him off. Then, worried that he might end up back on the list, he filed a pre-emptive strike in federal court attacking the constitutionality of the state vexatious litigant statute.

On his Web site, Wolfe calls the statute "the most discriminatory, unconstitutional law in the history of American jurisprudence."

"Thousands of lawyerless litigants have been victimized by it, including myself, and I will either succeed in having it thrown into the garbage can where it belongs or die in the attempt," he writes.

Although Tuesday's decision keeps Wolfe's case alive, it wasn't totally in his favor.

Wolfe had named George, the state Judicial Council, the state of California and several judges in his complaint. But the 9th Circuit panel -- Senior Judge Thomas Nelson and Judges William Fletcher and Marsha Berzon -- limited the defendants to George and a court services analyst who maintains the list of vexatious litigants.

Jill Theresa Bowers, the state deputy attorney general who represented the defendants, said Tuesday she hadn't yet discussed with George whether to appeal the ruling. She complained that Wolfe was allowed to introduce new facts in his appeal that hadn't been considered by the district court.

Wolfe filed the original suit on his own, but at the 9th Circuit was represented by Brian Murray, an associate at Jones Day in Chicago. Wolfe initially did not want a lawyer; the court appointed Murray through its pro bono project.

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