NOT FOR PUBLICATION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.
page 2
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
page 3
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.
page 4
3. Because plaintiffs cannot prevail on any of their constitutional claims, we
need not decide whether plaintiff Archibald Cunningham’s claims are barred.
AFFIRMED.