FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BURTON H. WOLFE, 

Plaintiff-Appellant, No. 05-16674

v. D.C. No.  CV-00-01047-SBA RONALD M. GEORGE, Chief Justice;

DEBORAH SILVA, OPINION

Defendants-Appellees. 

Appeal from the United States District Court

for the Northern District of California

Saundra B. Armstrong, District Judge, Presiding

Submitted July 28, 2006*

San Francisco, California

Filed April 30, 2007

Before: Gilbert S. Merritt,** Andrew J. Kleinfeld, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Kleinfeld

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

**The Honorable Gilbert S. Merritt, Senior Circuit Judge for the United

States Court of Appeals for the Sixth Circuit, sitting by designation. 

4761
COUNSEL

Burton H. Wolfe, pro se, San Francisco, California, for the

appellant. 

Jill Bowers, Deputy Attorney General for the state of California, Sacramento, California, for the appellee. 

OPINION

KLEINFELD, Circuit Judge: 

This is a challenge to the California vexatious litigant statute on numerous constitutional grounds. 

Facts

Burton H. Wolfe filed a number of pro se complaints

regarding San Francisco taxicab companies. In 1992, the

Superior Court for the County of San Francisco deemed him

a “vexatious litigant” and imposed a prefiling order. As we

explain below, the order required Wolfe to present his complaints for review by a judge before filing them. The order

was rescinded in 1999, and in less than a year Wolfe filed

another six lawsuits in the state courts. 

WOLFE v. GEORGE 4763
Wolfe brought this Section 19831

 case in federal court,

challenging the constitutionality of California’s vexatious litigant statute.2

 The district court dismissed the case under the

Rooker-Feldman3 doctrine. Wolfe appeals for the second

time. In our previous decision, we rejected application of the

Rooker-Feldman doctrine, because Wolfe was not seeking

federal relief from a state court judgment.4 We concluded that

Wolfe had standing and a ripe dispute, even though no vexatious litigant order applied to him when he sued, because his

history of lawsuits and the recently rescinded prefiling order

showed that he was sufficiently likely to be subjected to such

an order again.5 We concluded that most of the defendants

Wolfe had sued enjoyed sovereign immunity, but he nevertheless could, despite the Eleventh Amendment, seek declaratory

and injunctive relief against both the Chief Justice of the California Supreme Court and the California official who administered vexatious litigant orders, in their official capacities.6

1

42 U.S.C. § 1983. 

2Cal. Code Civ. Proc. §§ 391 et seq. 

3

See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462

(1983); Rooker v. Fid. Trust Co., 263 U.S. 413 (1923). The RookerFeldman doctrine generally bars federal district courts “from exercising

subject matter jurisdiction over a suit that is a de facto appeal from a state

court judgment.” Kougasian v. TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir.

2004). The Supreme Court emphasized in Exxon Mobil Corp. v. Saudi

Basic Industries Corp. that the Rooker-Feldman doctrine “is confined to

cases of the kind from which the doctrine acquired its name: cases brought

by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and

inviting district court review and rejection of those judgments. RookerFeldman does not otherwise override or supplant preclusion doctrine or

augment the circumscribed doctrines that allow federal courts to stay or

dismiss proceedings in deference to state-court actions.” 544 U.S. 280,

284 (2005). 

4Wolfe v. Strankman, 392 F.3d 358, 364 (9th Cir. 2004). 

5

Id. 

6

Id. 

4764 WOLFE v. GEORGE
On remand, Wolfe filed an amended complaint, claiming

that California’s vexatious litigant procedure violated his

rights on the grounds of:

1. Article I, section 9 - Bill of Attainder. 

2. Article I, section 10 - Ex Post Facto. 

3. Article VI - Oath of Office and Supremacy. 

4. First Amendment - Petition for Redress of

Grievances. 

5. Fifth Amendment - Double Jeopardy. 

6. Eighth Amendment - Excessive Bail, Excessive

Fines, and Cruel and Unusual Punishment. 

7. Ninth Amendment - Unenumerated Rights. 

8. Fourteenth Amendment - Due Process. 

9. Fourteenth Amendment - Equal Protection. 

10. Overbreadth. 

11. Vagueness. 

12. 42 U.S.C. § 1983. 

The district court reached all the claims on the merits and

granted judgment on the pleadings to defendants. Wolfe

appeals. We affirm. 

Analysis

[1] Basically, the California statute defines “vexatious litigant” as a pro se litigant who has lost at least five pro se lawWOLFE v. GEORGE 4765
suits in the preceding seven years, sued the same defendants

for the same alleged wrongs after losing, repeatedly filed

meritless papers or used frivolous tactical devices, or who has

already been declared a vexatious litigant for similar reasons.7

Defendants can move for an order requiring security by showing that the plaintiff is a vexatious litigant and has no reasonable probability of prevailing.8

 And the state court may, on its

own motion or a defendant’s, “enter a prefiling order which

prohibits a vexatious litigant from filing any new litigation in

the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed.”

9

 The presiding judge “shall

permit the filing of that litigation only if it appears that the litigation has merit and has not been filed for the purposes of

harassment or delay.”

10

7

See Cal. Code Civ. Proc. § 391(b) (“ ‘Vexatious litigant’ means a person who does any of the following: (1) In the immediately preceding

seven-year period has commenced, prosecuted, or maintained in propria

persona at least five litigations other than in a small claims court that have

been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought

to trial or hearing. (2) After a litigation has been finally determined against

the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant

or defendants as to whom the litigation was finally determined or (ii) the

cause of action, claim, controversy, or any of the issues of fact or law,

determined or concluded by the final determination against the same

defendant or defendants as to whom the litigation was finally determined.

(3) In any litigation while acting in propria persona, repeatedly files

unmeritorious motions, pleadings, or other papers, conducts unnecessary

discovery, or engages in other tactics that are frivolous or solely intended

to cause unnecessary delay. (4) Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or

occurrence.”). 

8

Id. §§ 391.1, 391.2, 391.3, 391.4, and 391.6. 

9

Id. § 391.7(a). 

10Id. § 391.7(b). 

4766 WOLFE v. GEORGE
A long line of California decisions upholds this statutory

scheme against constitutional challenges similar to Wolfe’s.11

We see no reason to disagree with them. We affirm the district court’s dismissal of all of Wolfe’s constitutional challenges. Like California, we impose prefiling requirements on

vexatious appellate litigants in light of decisions upholding

their legitimacy.12 Congress has also imposed somewhat similar procedures on prisoners who file in forma pauperis appeals,13

civil actions,14 and second or successive petitions for writs of

habeas corpus.15 In Rodriguez v. Cook we held that 28 U.S.C.

§ 1915(g), the analogous federal statute for vexatious prisoner

litigants, was subject only to rational basis review, not strict

scrutiny, and rejected constitutional challenges similar to

Wolfe’s.16

[2] The California vexatious litigant statute is not unconstitutionally vague, because it “give[s] ‘fair notice to those who

might violate the statute.’ ”

17 It is not overbroad, because there

is no constitutional right to file frivolous litigation.18 “Just as

false statements are not immunized by the First Amendment

11See, e.g., Moran v. Murtaugh Miller Meyer & Nelson, LLP, 55 Cal.

Rptr. 3d 112 (Cal. Ct. App. 2007); Wolfgram v. Wells Fargo Bank, 61 Cal.

Rptr. 2d 694 (Cal. Ct. App. 1997); Childs v. PaineWebber Inc., 35 Cal.

Rptr. 2d 93 (Cal. Ct. App. 1994). 

12“We recognize that ‘there is strong precedent establishing the inherent

power of federal courts to regulate the activities of abusive litigants by

imposing carefully tailored restrictions under the appropriate circumstances.’ ” De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990)

(quoting Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir. 1989)). 

1328 U.S.C. § 1915. 

1428 U.S.C. § 1915A. 

1528 U.S.C. § 2244(b). 

16Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999). 

17United States v. Cassel, 408 F.3d 622, 635 (9th Cir. 2005) (quoting

United States v. Gilbert, 813 F.2d 1523, 1530 (9th Cir. 1987)). 

18Brodrick v. Oklahoma, 413 U.S. 601, 615 (1973) (“[W]e believe that

the overbreadth of a statute must not only be real, but substantial as well,

judged in relation to the statute’s plainly legitimate sweep.”). 

WOLFE v. GEORGE 4767
right to freedom of speech, . . . baseless litigation is not

immunized by the First Amendment right to petition.”

19 Under

the California statute, a vexatious litigant may file potentially

meritorious claims not intended solely to harass or delay, so

the courthouse doors are not closed to him.20

[3] Wolfe argues that the California statute denies due process of law by requiring “vexatious litigants” to furnish security, because it imposes a financial barrier to access to the

courts. In Boddie v. Connecticut, the Supreme Court held that

the due process clause entitles indigents to file for divorce

even if they cannot pay a filing fee because of the special status of marriage and divorce.21 But Boddie did not prohibit all

financial barriers to litigation, regardless of frivolity or vexatiousness. “We do not decide that access for all individuals to

the courts is a right that is, in all circumstances, guaranteed

by the Due Process Clause of the Fourteenth Amendment so

that its exercise may not be placed beyond the reach of any

individual, for, as we have already noted, in the case before

us this right is the exclusive precondition to the adjustment of

a fundamental human relationship.”

22 In United States v. Kras,

19Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S. 731, 743 (1983) (citations omitted). 

20Cal. Code Civ. Proc. § 391.7(b). “The decision whether to allow the

litigant to proceed will be made on an individual basis, taking into account

such factors as the nature of the action below, the nature of the lower

court’s ruling, whether writ petition or appeal is the appropriate procedure

for seeking review in the Court of Appeal, the litigant’s claims of error

and whether the litigant has demonstrated improper reasons for bringing

the original litigation or for taking it to the next court level.” McColm v.

Westwood Park Assn., 73 Cal. Rptr. 2d 288, 293 (Cal. Ct. App. 1998). 

21Boddie v. Connecticut, 401 U.S. 371, 383 (1971) (“[A] State may not,

consistent with the obligations imposed on it by the Due Process Clause

of the Fourteenth Amendment, pre-empt the right to dissolve this legal

relationship without affording all citizens access to the means it has prescribed for doing so.”). 

22Boddie v. Connecticut, 401 U.S. 371, 382-83 (1971) (holding that

when “[n]o suspect classification, such as race, nationality, or alienage is

present . . . . [t]he applicable standard is that of rational justification.”)

(citations omitted). 

4768 WOLFE v. GEORGE
the Supreme Court held that access to bankruptcy courts does

not “rise to the same constitutional level” as divorce,23 and in

Ortwein v. Schwab it reached the same conclusion for challenges to reduction of welfare benefits.24 Likewise, the California vexatious litigant statute does not deprive Wolfe of the

opportunity to vindicate a fundamental right in court. 

[4] Under these authorities, we review the California statute

for a rational basis.25 The California cases show that a rational

basis exists. “A state may set the terms on which it will permit

litigations in its courts.”

26 “[I]t cannot seriously be said that a

state makes such unreasonable use of its power as to violate

the Constitution when it provides liability and security for

payment of reasonable expenses if a litigation of this character is adjudged to be unsustainable.”

27

[5] California’s vexatious litigation statute is “rationally

related to a legitimate state purpose.”

28 First, vexatious litigants tie up a great deal of a court’s time, denying that time

to litigants with substantial cases. Second, the state has an

interest in protecting defendants from harassment by frivolous

litigation, just as it has an interest in protecting people from

stalking. 

[6] The California statute does not violate equal protection.

Frequent pro se litigants are not a suspect class meriting strict

scrutiny.29 A state can rationally distinguish litigants who sue

23United States v. Kras, 409 U.S. 434, 444 (1973). 

24Ortwein v. Schwab, 410 U.S. 656, 660 (1973) (per curiam). 

25See Kras, 409 U.S. at 448 (reviewing filing fee requirement for rational basis when there was no fundamental right to discharge one’s debts in

bankruptcy). 

26Taliaferro v. Hoogs, 46 Cal. Rptr. 147, 151 (Cal. Ct. App. 1965). 

27Id. 

28Pennell v. City of San Jose, 485 U.S. 1, 14 (1988) (internal quotation

marks and citations omitted). 

29See Ortwein, 410 U.S. at 660 (holding that because poverty is not a

suspect classification subject to heightened review, “[t]he applicable standard is that of rational justification”) (citing Kras). 

WOLFE v. GEORGE 4769
and lose often, sue the same people for the same thing after

they have lost, and so on, from other litigants. When no bond

is required, the California prefiling order does little more than

require sua sponte review of a vexatious litigant’s complaint

to see whether it states a claim before imposing the burden of

litigation on a defendant. The defendant could move to dismiss for the same reason, so the statute is not a substantial or

irrational bar to access. Before the court can require security,

it must determine in an individualized hearing that “the plaintiff is a vexatious litigant and that there is not a reasonable

probability that he will prevail in the litigation.”

30 The court

must also make an individualized determination of the appropriate amount of security.31

[7] The Double Jeopardy and Ex Post Facto Clauses do not

apply because the vexatious litigant statute does not impose

criminal penalties.32 The Eighth Amendment does not apply

because security, if required, is not a fine or punishment.33

The statute is not a bill of attainder because it does not single

30Cal. Code Civ. Proc. §§ 391.1, 391.2. Muller v. Tanner, 82 Cal. Rptr.

741 n.2 (Cal. Ct. App. 1969). 

31Cal. Code Civ. Proc. § 391.3. Muller, 2 Cal. Rptr. at 752 (Cal. Ct.

App. 1969) (“In upholding the constitutionality of the provisions of the

statute dealing with this subject it was noted that the judge could fix the

amount of the fees from his knowledge of legal practice. This, however,

does not mean that he can, as was done in this case, look at a complaint

and determine, without further evidence, the time and labor which will be

expended to defeat the claim. Not even the nature of defendant’s defense

was disclosed.”). 

32Hudson v. United States, 522 U.S. 93, 95-96 (1997) (holding Double

Jeopardy Clause applies only to criminal penalties); Cal. Dep’t of Corr.

v. Morales, 514 U.S. 499, 505 (1995) (holding Ex Post Facto Clause

applies only to criminal penalties). 

33“[A]t the time of the drafting and ratification of the Amendment, the

word ‘fine’ was understood to mean a payment to a sovereign as punishment for some offense. Then, as now, fines were assessed in criminal,

rather than in private civil, actions.” Browning-Ferris Indus. of Vermont

v. Kelco Disposal, Inc., 492 U.S. 257, 265 (1989) (footnotes omitted). 

4770 WOLFE v. GEORGE
anyone out.34 Wolfe’s Supremacy Clause and other arguments

are frivolous. 

AFFIRMED. 

34See SeaRiver Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 668

(9th Cir. 2002). 

WOLFE v. GEORGE 4771