Ronald Pierce v. Tani Cantil-Sakauye

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JAN 12 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RONALD PIERCE; KERRY HICKS; No. 13-17170
ANDREW KARRES; MICHELE
FOTINOS; AMIL HIRAMENK; LISA D.C. No. 3:13-cv-01295-JSW
HUNT-NOCERA; NICOLE ANN RAY;
ARCHIBALD CUNNINGHAM;
RICHARD RIFKIN, MEMORANDUM*

Plaintiffs - Appellants,

v.

TANI CANTIL-SAKAUYE, California
Chief Justice, Chair of Judicial Council;
STEVEN JAHR, Administrative
Director of the Administrative Office of
the Courts,

Defendants - Appellees.

Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding

Argued and Submitted December 8, 2015
San Francisco, California

Before: KOZINSKI, BYBEE and CHRISTEN, Circuit Judges.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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1. Chief Justice Cantil-Sakauye, sued in her administrative capacity as Chair

of the Judicial Council of California, is a proper defendant under the Ex parte

Young exception to sovereign immunity. Wolfe v. Strankman, 392 F.3d 358,

365–66 (9th Cir. 2004).

2. We need not decide what level of scrutiny applies here, because even

assuming heightened scrutiny applies, California’s vexatious litigant statute (VLS),

Cal. Civ. Proc. Code § 391 et seq., does not violate the Equal Protection or Due

Process rights of parents involved in custody disputes. California has “sufficiently

important” interests, Zablocki v. Redhail, 434 U.S. 374, 388 (1978), in ensuring

the orderly resolution of disputes and protecting parents and courts from vexatious

litigants. See Cox v. Louisiana, 379 U.S. 559, 562 (1965).

The VLS is “closely tailored,” Zablocki, 434 U.S. at 388, to advance these

interests. In Boddie v. Connecticut, a mandatory filing fee wasn’t sufficiently tied

to the state’s interest in preventing frivolous litigation to justify overriding “the

interest of [indigents] in having access to the only avenue open for dissolving their

allegedly untenable marriages.” 401 U.S. 371, 381 (1971). Unlike a mandatory

fee, the VLS doesn’t create an insurmountable hurdle to the “adjustment of a

fundamental human relationship.” Id. at 383. Instead, it calls for an individualized
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determination that a litigant is vexatious based on specific instances of harassing or

frivolous litigation tactics. See Cal. Civ. Proc. Code § 391(b); Wolfe v. George,

486 F.3d 1120, 1124–25 (9th Cir. 2007); see also Cal. Civ. Proc. Code §§

391.2–391.3. It then requires a court to examine a pro se parent’s proposed filings

to ensure that “the litigation has merit and has not been filed for the purposes of

harassment or delay” before allowing the parent to seek a custody-order

modification. See Cal. Civ. Proc. Code § 391.7(b); George, 486 F.3d at 1126–27.

And if a court orders a vexatious litigant to post security, see Cal. Civ. Proc. Code.

§ 391.7(b), it must “make an individualized determination of the appropriate

amount.” George, 486 F.3d at 1126–27 (citing Cal. Civ. Proc. Code § 391.3).

Nor does applying the VLS to parents in custody disputes “destroy

permanently all legal recognition of the parental relationship.” M.L.B. v. S.L.J.,

519 U.S. 102, 128 (1996). It does pose an additional hurdle to modifying a

custody order, but only after the litigant has been found to be vexatious. The

statute therefore does not unnecessarily perpetuate the “unique kind of

deprivation” that imposing record preparation fees on parents appealing parental

status termination decrees did. See id. at 127.
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3. Because plaintiffs cannot prevail on any of their constitutional claims, we

need not decide whether plaintiff Archibald Cunningham’s claims are barred.

AFFIRMED.