State CA court of appeal discriminates against litigants violating federal fourteenth amendment equal protection standard.

The application of the vexatious litigant statute in diverse cases and circumstances has been discussed at length. The courts of appeal in the State of California, including the Fourth District Court of Appeal, have an informal policy not defined in any title eight rules,  requiring that litigants who have allegedly been deemed vexatious file a written application demonstrating the merit of the appeal, when the term application is missing in its entirety from the CCP 391 statute.

DATE

DESCRIPTION

NOTES

03/21/2014

Notice of appeal lodged/received.

    dtd Mar 17, 2014; xxxxxxx

03/21/2014

To court.

    misc file

03/26/2014

To presiding justice for signature.

    Proposed order

03/27/2014

Stay order filed.

    Appeal is stayed, per CCP § 391.7(c). Applnt’s rqst for permission to file appeal & a correctly completed civil case info statement due w/in 10 days.

This informal policy discriminates again a certain class of litigants;  prohibited by the Fourteenth Amendment to the United States and specifies that this class of litigants is not accorded the first amendment right to governmental redress or the fourteenth amendment right to procedural and substantive due process.

Indeed our State Supreme court has already specified that no merit polices that do not accord a litigant the fourteenth amendment right to equal protection violate the stringent equal protection standard that  federal standards require. That standard has been exclusively applied to criminal appeals and juvenile criminal cases is known as the Wende standard (People v. Wende, (1979) 600 P. 2d 1071), a discriminatory holding as under the fourteenth amendment the equal protection standard applies to ALL litigants.

The fourteenth amendment of the United States specifically states: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV. 

In Anders v. California, (Anders v. California, (1967) 386 U.S. 738) the United States Supreme Court held unconstitutional the no-merit letter procedure set forth in In re Nash (1964) 61 Cal.2d 491 [39 Cal. Rptr. 205, 393 P.2d 405], for handling appeals by indigent defendants. The court concluded that the no-merit letter procedure failed to satisfy the constitutional requirement of substantial equality and fair process under the Fourteenth Amendment to the Constitution of the United States. In particular, the court found the procedure defective because it did not require a finding by the court that the appeal was frivolous and because it did not require counsel to act in any greater capacity than that of amicus curiae.

Counsel must act “in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. … His role as advocate requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned…. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.” (386 U.S. at p. 744 [18 L.Ed.2d at p. 498].)

In People v. Feggans (1967) 67 Cal.2d 444 [62 Cal. Rptr. 419, 432 P.2d 21], the court responded to the Supreme Court’s mandate as follows: “Under Anders, regardless of how frivolous an appeal may appear …, a no-merit letter will not suffice. Counsel must prepare a brief to assist the court in understanding the facts and the legal issues in the case. The brief must set forth a statement of the facts with citations to the transcript, discuss the legal issues with citations of appropriate authority, and argue all issues that are arguable…. If counsel concludes that there are no arguable issues and the appeal is frivolous, he may limit his brief to a statement of the facts and applicable law and may ask to withdraw from the case, but he must not argue the case against his client. Counsel is not allowed to withdraw from the case until the court is satisfied that he has discharged his duty to the court and his client to set forth adequately the facts and issues involved. If counsel is allowed to withdraw, defendant must be given an opportunity to present a brief, and thereafter the court must decide for itself whether the appeal is frivolous. [Citations.] If any contention raised is reasonably arguable, no matter how the court feels it will probably be resolved, the court must appoint another counsel to argue the appeal.” (People v.Feggans, supra, 67 Cal.2d at pp. 447-448.). People v. Wende, (1979) 600 P. 2d 1071.

Courts cannot discriminate between the application of what is considered to be substantive and procedural due process to satisfy the stringent equal protection standard of the fourteenth amendment among certain litigants and discriminate among family law litigants. To do so would be utterly prejudicial to one class of litigants, in this case family law litigants, where a different standard has been developed to “deem” a matter frivolous rather than addressing the content and merit of the appeal or writ proceeding or matter filed in any case, in particular in family law. The Federal Supreme Court has already struck down this type of 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 the appellant had to demonstrate the merit of an appeal for the purpose of reinstating the appeal, before the record on appeal had been filed.

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