The 9th U.S. Circuit Court of Appeals wrestled this week with the issue of whether a frequent filer of disability discrimination suits against restaurants and other businesses in California is a vexatious litigant.

One member of a three-judge panel sounded like he was willing to give Jarek Molski some benefit of the doubt. “Frequency isn't the test,” Judge J. Jerome Farris said during oral arguments on Molski's appeal of a December 2004 court order declaring him a vexatious litigant. “If he's being discriminated against often, he's got frequent complaints.”

Since 2003, Molski, a paraplegic confined to a wheelchair, has filed more than 350 suits in California, most of which have settled for an average of $4,000.

But Judge Ronald M. Gould questioned how Molski could go from one establishment to another in a single day and claim to have suffered the same physical injuries as a result of barriers to disabled access at each one of them.

“If a person put their hand on a burner on a stove and they burned it, they wouldn't be likely to put their hand back in the exact same place two or three hours later,” Gould reasoned.

A Los Angeles trial court judge issued the vexatious litigant order in Molski's case against Mandarin Touch, a Chinese restaurant. The order requires him to seek court permission before filing any new complaints.

Last month, another 9th Circuit panel granted Molski a new trial in his case against a coffee-shop that allegedly denied him reasonable access to its men's room. But appellate relief from the vexatious litigant stigma would really give him something to celebrate.

Here are some excerpts from the audiotape of the oral arguments:

Thomas C. Frankovich (counsel for Molski): The only thing that the court can say in terms of vexatiousness is the number of cases.

Judge Kevin T. Duffy: The only thing? How about that [demand] letter that went out from your outfit?

Frankovich starts reading from the letter.

Duffy: Counsel, that's in the record. Believe it or not, we've read it. OK?
......................................................................................

Judge Gould: Let's assume every single case brought is a valid [Americans with Disabilities Act] claim in the sense that there was some non-compliance with the ADA. Can the litigation still be harassing?

Robert H. Appert (counsel for Mandarin Touch): It stretches one's credibility to think that Mr. Molski would make transfer after transfer onto a toilet, particularly when he has testified in depositions that he uses a catheter and in order to relieve himself, he merely needs to empty his bag.