02/11/2008 01:30 PM Senate JUDICIARY

                   SB 226-VEXATIOUS LITIGANTS                                                                               
                                                                                                                              
CHAIR  FRENCH announced  the consideration  of SB  266. He  noted                                                               
that Dennis DeWitt  had distributed a letter of  support from the                                                               
National Federation of Independent Business/Alaska.                                                                             
                                                                                                                                
2:42:40 PM                                                                                                                    
SUSAN  COX, Senior  Assistant Attorney  General, Civil  Division,                                                               
Torts  and  Worker's  Compensation  Section,  Department  of  Law                                                               
(DOL), said she's  sorry she missed the last  hearing. In summary                                                               
the bill is  modeled on a California statute that  was enacted in                                                               
the  1960s  to  deal  with   frivolous  litigation  by  vexatious                                                               
litigators. Although  the courts  have inherent power  to control                                                               
abusive  litigation, this  bill creates  a uniform  mechanism for                                                               
dealing  with these  individuals  in the  court  system. The  DOL                                                               
supports  this is  an increasing  problem in  public and  private                                                               
sectors. She  relayed that she  has been a defendant  in repeated                                                               
nuisance litigation and has represented  clients who have been in                                                               
that position as well.                                                                                                          
                                                                                                                                
2:44:41 PM                                                                                                                    
MS.  COX  explained  that  in   the  bill  defines  a  "vexatious                                                               
litigant"  as   a  person  who,  without   legal  representation,                                                               
repeatedly files lawsuits against  the same parties or repeatedly                                                               
files  meritless  claims  within  a certain  period  of  time  or                                                               
repeatedly files  frivolous pleadings or  motions in a  case that                                                               
the court  considers to  be in bad  faith. Importantly,  the bill                                                               
does  not completely  block a  vexatious litigant  from filing  a                                                               
lawsuit  in any  circumstance. It  just establishes  hurtles that                                                               
the  vexatious  litigator  must overcome  before  the  courthouse                                                               
doors would  be open. The  idea is to control  abusive litigation                                                               
and  save the  court  system  and opposing  parties  the need  to                                                               
respond substantively to meritless and abusive lawsuits.                                                                        
                                                                                                                                
MS.  COX  said  the  DOL  has  some  "frequent  filers"  and  she                                                               
personally  has   a  number   of  cases   where  the   judge  has                                                               
subsequently  been added  as a  defendant. "We've  had an  appeal                                                               
before the Alaska Supreme Court within  the past year in which an                                                               
argument was made … that it was  time - in a particular case - to                                                               
set some limits on a  particular party's ability to file lawsuits                                                               
against judges."  The court recognized  it as a problem  and said                                                               
that there is  inherent authority in the court  system to control                                                               
the problem,  but it had  to be raised  at the trial  court level                                                               
first. We've attempted to do that  and have a case on appeal that                                                               
will  be  argued  in  April,  she said.  But  it  would  be  more                                                               
advantageous to have  a statutory framework within  which to work                                                               
and a uniform approach to the problem.                                                                                          
                                                                                                                                
2:48:25 PM                                                                                                                    
CHAIR FRENCH  noted that during  the previous hearing  one person                                                               
said this would violate the  First Amendment because it restricts                                                               
a person's  right to go to  court and get redress  of grievances.                                                               
The bill  packet contains a  court case upholding  the California                                                               
vexatious  litigant statute.  That  case discusses  a US  Supreme                                                               
Court holding  that baseless litigation  is not protected  by the                                                               
First Amendment right  to petition because it does  not involve a                                                               
bona  fide grievance.  It says,  "The  First Amendment  interests                                                               
involved  are  not  advanced  when the  litigation  is  based  on                                                               
intentional  falsehoods  or  on knowingly  frivolous  claims."  I                                                               
imagine that an  Alaska court would rule similarly,  he said, but                                                               
you can't be positive.                                                                                                          
                                                                                                                                
2:49:58 PM                                                                                                                    
MS. COX added  that there are statutes that  impose conditions on                                                               
filing of litigation  by inmates. A number  of those requirements                                                               
have  been challenged  on constitutional  grounds  and have  been                                                               
upheld.  "The  Alaska Supreme  Court  has  certainly indicated  a                                                               
willingness to  consider reasonable restrictions on  the right to                                                               
access the courts." A similar  result is expected here. Also, the                                                               
Ninth Circuit upheld the California  statues in Wolf v. George on                                                             
First Amendment and other constitutional grounds.                                                                               
                                                                                                                                
CHAIR FRENCH commented that it's a lengthy decision.                                                                            
                                                                                                                                
2:51:11 PM                                                                                                                    
SENATOR HUGGINS  said the definition  of vexatious litigant  is a                                                               
person who  is acting without  the assistance of an  attorney. He                                                               
referred to a previous comment that,  "we have other ways to deal                                                               
with that" and asked what they are.                                                                                             
                                                                                                                                
MS. COX  explained that  attorneys are  bound by  Civil Procedure                                                               
Rule 11. When they sign  pleadings, they are certifying that they                                                               
believe  the  filing has  merit  and  is  worthy of  the  court's                                                               
attention. If  attorneys act inappropriately the  bar association                                                               
can exert  its control. DOL has  found that in cases  of repeated                                                               
pro se  litigation the threat  of adverse attorney fee  awards is                                                               
not  a   sufficient  deterrent.  For  some   people  it's  almost                                                               
recreation. "This  bill is  aimed at those  who file  things that                                                               
are frivolous and without the use of counsel for that reason."                                                                  
                                                                                                                                
2:53:10 PM                                                                                                                    
SENATOR WIELECHOWSKI  asked if  this would  apply to  an attorney                                                               
acting pro se.                                                                                                                  
                                                                                                                                
MS. COX recalled some discussion  of that during the drafting. It                                                               
isn't  mentioned  specifically  but  if an  attorney  was  acting                                                               
without assistance of counsel then it would apply, she said.                                                                    
                                                                                                                                
SENATOR WIELECHOWSKI said  an attorney acting pro  se still faces                                                               
court discipline for filing an improper pleading.                                                                               
                                                                                                                                
MS.  COX replied  an attorney  would be  in a  slightly different                                                               
situation  than   the  average   pro  se  litigant.   She  hasn't                                                               
encountered  an  attorney  who has  filed  repeated  or  multiple                                                               
actions.                                                                                                                        
                                                                                                                                
SENATOR  McGUIRE  commented  that  exempting  attorneys  who  are                                                               
acting pro  se would  cause problems. "If  you're pro  se, you're                                                               
pro  se."  She  would  be   uncomfortable  exempting  a  licensed                                                               
attorney.                                                                                                                       
                                                                                                                                
CHAIR  FRENCH said  he shares  her concern.  It's anyone  without                                                               
assistance of counsel and it could be a lawyer without a lawyer.                                                                
                                                                                                                                
2:56:32 PM                                                                                                                    
CHAIR FRENCH  closed public  testimony. Noting  that this  is the                                                               
second hearing and the bill has  a finance referral, he asked for                                                               
the will of the committee.                                                                                                      
                                                                                                                                
SENATOR McGUIRE  motioned to  report SB  226 from  committee with                                                               
individual recommendations and attached fiscal note(s).                                                                         
                                                                                                                                
CHAIR FRENCH  announced that without  objection, SB 226  is moved                                                               
from committee.