Arch Cunningham, the attorney representing the class of parents who were stigmatized as vexatious, has filed his opening brief with the Ninth District Circuit Court of Appeal. The brief specifically addresses the unconstitutionality of the vexatious litigant application in family law and how parents have been maliciously harmed by not having the first and fourteenth substantive and procedural due process right to seek redress from terminating custody orders. The brief in its entirety can be accessed here.
Any parent who has been stigmatized as vexatious is prevented from accessing a court of law, thus in effect their parental rights have been terminated.
The judicial council has also implemented vexatious litigant recommendations and forms which have no basis in family law, as they are not referenced in the family law statute nor the corresponding rules of court.
As an example family law litigants are literally ‘forced” by a trial court to file an MC 701 application to present their family law motion. The form specifically states that it’s an optional form on the form itself. The trial Court MANDATES that litigants use this form otherwise it refuses to file the litigation. Litigants are harassed numerous times by the trial court clerks who refuse to accept any litigation unless it is accompanied by an MC 701 form, which is OPTIONAL.
The scope of discretion always resides in the particular law being applied by the court, i.e., in the `”legal principles governing the subject of [the] action ….”‘” (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 337 [67 Cal.Rptr.3d 286], citing City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297 [255 Cal.Rptr. 704] and County of Yolo v. Garcia (1993) 20 Cal.App.4th 1771, 1778 [25 Cal.Rptr.2d 681] [“range of judicial discretion is determined by analogy to the rules contained in the general law and in the specific body or system of law in which the discretionary authority is granted”].) In the case of the VLS statute the underlying merit standard is the action upon which the litigation is based.
Pursuant to CCP § 391.7, the application to file litigation is not referenced in any fashion. It merely specifies that a litigant has to obtain “leave” from the presiding judge but does not specify whether the form of leave is oral or written. The word application is missing from the statute and is not incorporated by reference in any capacity as an application that an allegedly “vexatious” litigant has to submit to the court. The only filing that is referenced in the vexatious statute is whether the action to be filed has merit and the resulting order from the presiding justice pursuant to CCP § 391.7.
There is also no terminology in the VLS that specifies that a court can implement a malicious stay until the merit of the application AND filing has been “recognized” delaying the case for months and years, subjecting a parent and his/her children to further irreparable harm, nor is a time frame of months to decide an application referenced. Pursuant to California rules of court 1.20 a, a document is deemed filed on the date when it is received by the clerk. The time frame for the filing is governed by the underlying action of the litigation presented.
The trial courts further refuse to file the MC 701 forms with the attached litigation on the date it is received which is mandated by CA rules of court 1.20 a and refuse to address the litigation in the time frame specified by the statute under which the litigation is filed, in family law, for example CA family code §246. The Supreme Court has already struck down the invidious discrimination displayed by a court of appeal and a district court who engages in discrimination in the case of In Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 where a litigant had to demonstrate the merit of an appeal to reinstate an appeal.
In California the relevant appeal court in a similar manner forces family law litigants to file applications for an appeal although the term appeal is not referenced as new litigation in any capacity in the vexatious litigant statute, nor is the actual written application for an appeal mandated by any statute. The unconstitutional nature of demonstrating a merit of an appeal prior to an appeal being filed has already been struck down as discriminatory by a Supreme Court.
The trial court and appellate court’s action further delay, harass and subject parents and their children to irreparable harm violating their procedural and substantive due process due to a VLS stigmatization not referenced for family law motions, confirming that the VLS application has no bearing on family law proceedings and the constitutionally protected relationship of a parent and their child. The fourteenth amendment substantive due process right to a protected familial parent child relationship was already recognized in IDK, Inc. v. County of Clark, 836 F.2d 1185, 1192 (9th Cir. Nev. 1988) and Carey v. Population Services International, 431 U.S. 678, 684-685 (1977), where the United States Supreme Court repeatedly teaches that there is “a right of personal privacy” which includes “family relationships,” and “child rearing and education”. The malicious VLS harassment that parents are subjected to violates that right.