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The Right to Self-Representation in a Civil Proceeding
( Baba_v_S.F._Bd._Supervisors )

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The Right to Self-Representation in a Civil Proceeding
(Baba v S.F. Bd. Supervisors)

2. The Right to Self-Representation in a Civil Proceeding

At least by 1896, our Supreme Court recognized that a litigant has the right to represent him or herself in a civil proceeding in this state. (Philbrook v. Superior Court (1896) 111 Cal. 31, 54 (Philbrook).) Since then, California courts have repeatedly and consistently acknowledged this right. (See, e.g., O’Connell v. Judnich (1925) 71 Cal.App. 386, 388 (O’Connell); Culley v. Cochran (1930) 107 Cal.App. 525, 531; Gray v. Justice’s Court (1937) 18 Cal.App.2d 420, 423; Paradise v. Nowlin (1948) 86 Cal.App.2d 897, 898, questioned on other grounds in CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1147; Monastero v. Los Angeles Transit Co. (1955) 131 Cal.App.2d 156, 160; Doran v. Dreyer (1956) 143 Cal.App.2d 289, 290; People ex rel. Dept. of Pubic Works v. Malone (1965) 232 Cal.App.2d 531, 537; Abar v. Rogers (1981) 124 Cal.App.3d 862, 864-865; Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1055; J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 965; Drake v. Superior Court (1994) 21 Cal.App.4th 1826, 1830.)

This authority establishes a “general rule” that “‘any person may represent himself and his own interests, at law and in legal proceedings . . . .’” (J.W. v. Superior Court, supra, 17 Cal.App.4th at p. 965.) The decisions make clear that self-representation is not just a privilege but also a right. As one court explained: “It will be observed that the privilege of practicing law is confined to appearing in behalf of others. The right of one to appear and conduct his own case is not affected. One is a privilege and the other is a right.” (Gray v. Justice’s Court, supra, 18 Cal.App.2d at p. 423.) Furthermore, it appears that the existence of such a right was never a subject of judicial dispute. (See, e.g., Paradise v. Nowlin, supra, 86 Cal.App.2d at p. 898 [noting that this general rule is “overwhelmingly sustained by the authorities.”].)

Thus, it is undisputable that California recognizes a general right to represent oneself in a civil proceeding in California. However, we note that, in contrast to federal law, there is no California statute which expressly codifies this right. [5] We note this fact because it is unclear whether a local ordinance which conflicts with state decisional law rather than a state statute is invalid under article XI, section 7 of the California Constitution. (Chavez v. Sargent (1959) 52 Cal.2d 162, 177, disapproved on other grounds in Petri Cleaners, Inc. v. Automotive Employees, etc. (1960) 53 Cal.2d 455, 481-482.) In other words, our Supreme Court has declined to decide whether the term “general laws” in this constitutional provision includes decisional law. (Ibid.)

If forced to decide this question, we would be strongly influenced by the fact that, in numerous other contexts, the Legislature has defined the term “law” to expressly include decisional law. (See, e.g., Evid. Code, § 160; Gov. Code, § 811; Fam. Code, § 4901, subd (k); see also Code Civ. Proc., §§ 1895 & 1899.) However, we find it unnecessary to determine whether state judicial precedent will always prevail over a conflicting local ordinance. Instead, we hold that the unique characteristics of the right to self-representation in a civil proceeding establish that this right is indeed the general law of this state.

A closer look at the genesis of the right to self-representation in a civil proceeding reveals it has clear constitutional implications. As noted above, the earliest case we have found which acknowledges this right is Philbrook, supra, 111 Cal. 31. There, our Supreme Court reversed an order precluding a lawyer who had been suspended from practicing law from appearing pro per to prosecute a claim in court. The court reasoned that the judgment of suspension “did not, and did not attempt to limit petitioner in the exercise of any rights formerly enjoyed by him, saving those pertaining to the office of attorney at law.” Thus, the court held: “Petitioner having the undoubted right lawfully to acquire any form of property, has equally the right to its perfect enjoyment, and, as a necessary incident to that right, the full power accorded to all of appearing in person to prosecute or defend all actions for its protection or preservation.” (Id. at p. 34.)

Although the Philbrook court did not expressly rely on any constitutional provision to support its holding, it did refer to the right to acquire and enjoy property, a right expressly guaranteed the California Constitution. (Cal. Const. art 1., § 1 [“All people are by nature free and independent and have inalienable rights. Among these are . . . acquiring, possessing, and protecting property . . . .”].) Indeed, Philbrook was subsequently interpreted as recognizing that the right to self-representation is a necessary incident to the constitutional right to lawfully acquire, possess and protect property. (O’Connell, supra, 71 Cal.App. 386.)

O’Connell was an action for money had and received filed by an individual who had the claim assigned to him. (O’Connell, supra, 71 Cal.App. at p. 387.) The trial court struck the plaintiff’s complaint pursuant to former section 300 of the Code of Civil Procedure which stated: “‘No person who has been an attorney and counselor shall, while a judgment of disbarment or suspension is in force, appear in his own behalf as plaintiff in the prosecution of any action where the subject of said action has been assigned to him subsequent to the entry of the judgment of disbarment or suspension.’” (O’Connell, supra, at p. 387.) The O’Connell court reversed, finding this statute unconstitutional. The court invoked “[t]he very first section of the Constitution of this state” which declares that the right to acquire and protect property is an inalienable right and found that this right “must of necessity include the right to use all proper and legal means to accomplish those ends.” (Id. at p. 388.) The court reasoned that “[o]ne of the prime objects of the courts is to protect the constitutional rights of the citizen” and found that “[t]o say that one may not defend his own property is a usurpation of power by the legislature.” (Ibid.)

The O’Connell court also rejected the contention that the plaintiff was attempting to practice law in violation of the judgment of disbarment entered against him: “While the right to practice law is not a constitutional right but rather a mere statutory privilege, the plaintiff here does not purport to be practicing law. He is not acting as an attorney. . . . Appellant, having the right to lawfully acquire property, has under the Constitution the equal right to its perfect enjoyment, and, as a necessary incident to that right, the full power accorded to all of appearing in person to prosecute or defend all actions for its protection or preservation.” (O’Connell, supra, 71 Cal.App. at p. 388, citing Philbrook, supra, 111 Cal. 31.) Thus, the court held that when a statute “purports to prevent one from personally appearing in a court of justice in pursuit or defense of a constitutional right -- whether of person or property -- it must be regarded as unconstitutional.” (O’Connell, supra, 71 Cal.App. at p. 388.)

Philbrook and O’Connell illustrate that the right to self-representation in civil proceedings serves a crucial function under California law by ensuring that the citizens of this state can fully exercise their constitutional right to acquire, enjoy and defend their property. By the same token, these cases teach that, although the right to self-representation in a civil proceeding may not be, in and of itself, a constitutional right, depriving individuals of this right can create constitutional problems.

Another constitutional principle which appears to be intimately related to the right to self-representation in civil proceedings is the right to access to the courts. “Access to the courts is indeed a right guaranteed to all persons by the federal and state Constitutions. It is regarded as arising from the First Amendment right to petition the government for redress of grievances [citations], a right also protected by article I, section 3 of the California Constitution.” (Jersey v. John Muir Medical Center (2002) 97 Cal.App.4th 814, 821.) Absent a right to self-representation, an individual without funds to pay an attorney would not be afforded meaningful access to the courts. (Cf. People v. $30,000 United States Currency (1995) 35 Cal.App.4th 936, 942-943 [discussing general rule that civil litigant has no right to appointed counsel].) Thus, the state-recognized right to self-representation in a civil proceeding serves the important constitutional function of ensuring that the citizens of California have meaningful access to their courts.

Another unique characteristic of the right to self-representation in civil proceedings is that, although not expressly conferred by statute, this right was implicitly acknowledged by our Legislature when it enacted section 391, et seq., of the Code of Civil Procedure, the “vexatious litigant statute.” By imposing special rules and restrictions on litigants who appear in propria persona, this statute necessarily acknowledges the basic right to personally appear and conduct one’s own litigation in state court. In other words, a statute regulating the exercise of the right to self-representation necessarily acknowledges that such a right exists in the first place. (Cf. Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 58 (Wolfgram) [rejecting a constitutional challenge to the vexatious litigant statute but also expressly acknowledging that “it is true no citizen is required to hire a lawyer.”].)

That a right can be implicit as well as explicit in a statute is illustrated by People v. Williams, supra, 110 Cal.App.4th 1577, a case upon which appellants rely. The Williams court held that the Sixth Amendment right to self-representation does not extend to defendants in Mentally Disordered Offender (MDO) commitment proceedings which are essentially civil in nature. (Id. at p. 1588.) The court also found, however, that because defendants in these commitment proceedings have the statutory right to be represented by an attorney (see Pen. Code § 2972), they also have “by implication the right to refuse appointed counsel and represent themselves.” (People v. Williams, supra, at p. 1591.) In our view, if a statutory right to self-representation can be implied from the express statutory right to be represented by an attorney then, by a parity of reasoning, a statutory right to appear in propria persona can certainly be inferred from a statute imposing restrictions on the right to be a pro per litigant.

To summarize, the right to represent oneself in civil proceedings conducted in this state, though established by precedent rather than statute, is firmly embedded in California jurisprudence. This right is necessary to protect and ensure the free exercise of express constitutional rights including the right to acquire and protect property and to access the courts. It is also implicitly recognized by statute. For these reasons, we conclude that the right to represent oneself in civil proceedings is a general law of this state.

As noted at the outset of our analysis of this issue, a local ordinance conflicts with general law and is void under article XI, section 7 of the state constitution if it contradicts general law. (Sherwin-Williams Co. v. City of Los Angeles, supra, 4 Cal.4th at p. 897.) “[L]ocal legislation is “contradictory” to general law when it is inimical thereto. [Citation.]” (Id. at p. 898.) The waiver restrictions of section 37.10A(g) are certainly inimical to the state right to represent oneself in a civil proceeding. These restrictions require that a tenant participate in a legal proceeding in order to waive his rights under the Rent Ordinance and simultaneously deny that tenant the right to represent himself at that proceeding. These restrictions are imposed without regard to their effect on basic rights, at least ones with constitutional implications. Because the waiver restrictions of section 37.10A(g) conflict with general law, this part of the provision is invalid.

For the same reasons, the conduct restrictions imposed by section 37.10A(g) are also invalid. As noted above, the conduct restrictions purport to criminalize efforts by a landlord, or an individual acting on his or her behalf, to obtain a waiver of tenant rights from a tenant who has elected to represent him or herself in a proceeding conducted under the Rent Ordinance. These restrictions expressly make it “unlawful” to “seek or obtain” a waiver except as provided in section 37.10A(g). Since the waiver restrictions are themselves invalid, so too is this part of the provision which purports to criminalize efforts to obtain a waiver that does not comply with the invalid waiver restrictions.

Baba v. S.F. Bd. Supervisors-A103446-11/29/04 CA1/2

Date Posted	Docket #/File Format	Description
Nov 29 2004	A103446 [PDF] [DOC]	Baba v. S.F. Bd. Supervisors 11/29/04 CA1/2

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