Federal Judiciary

No En Banc Rehearing for Muzzled ADA Watchdog

By Robert Loblaw

Molski v. Evergreen Dynasty Corp., 05-56452 (9^th Cir., April 7, 2008)

Jarek Molski is a recurring character on this blog. He?s a wheelchair-bound activist who travels across California finding businesses that are failing to accommodate the disabled as required by federal and state law. Then he teams up with a favored law firm to file a boilerplate complaint claiming huge damages, usually resulting in a quick settlement. Supporters see Molski?s suits as a lawful means of ensuring that the disabled have full access to American life; opponents see it as a lucrative shakedown scam.

One of Molski?s most vigorous opponents is District Judge Rafeedie, who decided that Molski was a vexatious litigant. He imposed a prefiling order on Molksi and his law firm, requiring them to obtain special permission before filing any more law suits in the Central District of California. On appeal to the Ninth Circuit, a panel of that Court affirmed.

Molski requested en banc rehearing but failed to muster enough votes from the full court. The vote must have been pretty close, though, as nine judges sign a dissent from the denial of en banc rehearing. Judge Berzon writes the chief dissent, arguing that prefiling review is a draconian sanction that is only warranted in extreme cases. Here, the district judge erred in determining that Molski?s allegations were frivolous, and the panel erred in upholding such a serious restriction on the cherished First Amendment right to petition the Government for a redress of grievances.

Judge Kozinki signs on to this dissent and adds one of his own, calling on the judges of the Central District to amend the local rules to establish a more equitable process for prefiling orders that impact the entire district.. He writes,

Like Judge Berzon, I?m very sorry that such an order was ever entered, and on such a non-existent record. I?m even sorrier that our panel has seen fit to affirm it, and that our full court has chosen to look the other way. But ultimately, it?s up to the judges of the Central District to ensure that due process is upheld and that an injustice is avoided. I have every confidence that they will be equal to the task.

Full post as published by Decision of the Day on April 07, 2008 (boomark / email).