Legislature(2007 - 2008)BELTZ 211
01/30/2008 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB7 | |
| SB247 | |
| SB226 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 247 | TELECONFERENCED | |
| *+ | SB 226 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | HB 7 | ||
SB 226-VEXATIOUS LITIGANTS
2:21:45 PM
VICE CHAIR HUGGINS announced the consideration of SB 226.
CINDY SMITH, Staff, to Senator Hollis French, sponsor of SB 226,
paraphrased the following sponsor statement:
SB 226 creates a process in statute for courts to
manage the problem of lawsuits brought by individuals
who are "vexatious litigants."
A vexatious litigant is defined as a person who, among
other things, repeatedly litigates the same claims or
previous adverse decisions against the same parties,
files multiple frivolous lawsuits, repeatedly files
pleadings or motions that are frivolous or in bad
faith, or repeatedly engages in tactics that are
without merit or intended to cause unnecessary delay.
This bill allows the court to impose reasonable
restrictions on vexatious litigants' access to the
court. Under SB 226 a court can require conditions,
such as the posting of security or prefiling review of
a complaint by a presiding judge, before an action
filed by a vexatious litigant can proceed. Several
states have passed similar legislation to control the
problem of vexatious litigation. The provisions in
this bill are based on California's Code of Civil
Procedure.
Vexatious litigation needlessly burdens the resources
of the court system, and creates unnecessary expense
for individuals who are the target of this litigation
in the public and private sectors. It is certainly
important to recognize and protect the individual's
right to litigate claims in our court system. SB 226
will only affect those few cases that are clearly
without merit. This bill will provide means for
screening out extreme examples of meritless cases
before they are filed.
MS. SMITH emphasized that this is discretionary and page 3,
lines 12-31, provide a definition for "vexatious litigant." She
deferred questions about the bill mechanics to Mr. Ford and
noted that Mr. Maassen was online to testify.
2:24:20 PM
SENATOR WIELECHOWSKI asked if this applies only to people who
initiate lawsuits. Do we have no vexatious defendants?
MIKE FORD, Legislative Liaison, Civil Division, Department of
Law (DOL), referred to the definition of "vexatious litigant" on
page 3. The idea under paragraph (A) is that you are the
plaintiff and not the defendant, but the provision under
paragraphs (B) (C) and (D) could apply to a defendant.
VICE-CHAIR HUGGINS asked what kind of a problem this is in
Alaska.
MR. FORD explained that the problem isn't the number of people
who are engaged in this conduct, because it's a small
percentage. The problem is that a significantly small number of
people absorb a significantly large amount of court system
resources.
VICE-CHAIR HUGGINS asked if a vexatious litigant would be
"vaccinated" from this bill if he or she hired an attorney.
MR. FORD said the intent of the bill is to deal with people who
are causing the problem and acting as their own attorney. Other
tools are available to deal with attorneys who pursue cases
without merit.
VICE-CHAIR HUGGINS asked if this would apply to liens. He
referred to an issue related to the fish and game board that
came up when he first became a senator.
MR. FORD opined that that could be an example of abuse.
SENATOR THERRIAULT asked if this targets "jailhouse litigants."
MR. FORD explained that other provisions apply to that type of
litigation.
SENATOR THERRIAULT asked if this mirrors what was done to
address "jailhouse litigation."
2:28:32 PM
MR. FORD replied it's a mirror in the sense that it's intended
to control a certain kind of litigation.
SENATOR THERRIAULT asked if the incarcerated people would still
be dealt with under the other section of statute.
MR. FORD said yes, this is civil litigation.
VICE-CHAIR HUGGINS stated his intention is to hold the bill.
MR. FORD relayed that this is also a private sector concern.
SENATOR WIELECHOWSKI asked if the bill raises any constitutional
issues or if there have been challenges in other states.
MR. FORD replied he's not aware of any successful challenge.
SENATOR THERRIAULT read the analysis section of the Department
of Law fiscal note and questioned why it says the bill will
amend the Constitution of the State of Alaska. It can't do that.
MR. FORD acknowledged that the fiscal note needs correcting.
2:30:17 PM
PETER MAASSEN, Anchorage Attorney representing himself,
testified in support of SB 226. He has practiced law in
Anchorage for 27 years and in that time he's encountered very
few vexatious litigants. Describing access to the courthouse as
an important safety valve, he said that under most circumstances
he'd be suspicious of attempts to put restrictions on such
access. However, there are limits to what the court, the
Department of Law, private litigants, and private attorneys need
to put up with. "That's where SB 226 comes into play and can
provide a very good tool for the judiciary."
MR. MAASSEN explained that he's been litigating with Mr. DeNardo
since 2002. Initially State Farm Insurance hired him to
represent a landlord in an eviction suit against Mr. DeNardo. A
year later Mr. DeNardo filed suit against him, his law firm, and
Judge Gleeson for conspiring to deny discovery. That delayed
resolution of the underlying suit for a year. Ultimately those
suits were resolved but Mr. DeNardo brought further suit against
the landlords, he and his law firm, and three judges. All the
decisions were against Mr. DeNardo but each one required time
and money to put together either a motion to dismiss or a motion
for summary judgment.
MR. MAASSEN said that since this is what he does for a living he
can't get too upset, but it has impacted his personal life. When
he applied for a construction loan he had to tell the bank that
Mr. DeNardo was seeking $5 million in damages in each of several
lawsuits pending against him. This is something that litigants
in ordinary litigation shouldn't have to deal with in
perpetuity, he said.
2:34:41 PM
MR. MAASSEN, speaking as a layman, said some vexatious litigants
are probably mentally ill. "We have to feel sorry for them and
find some way to deal with them." Allowing them to vent through
the court system at the expense of private parties and their
attorneys isn't the way to do it. SB 226 is a good tool for
judges to use.
2:35:21 PM
JED WHITTAKER, private citizen from Anchorage, opposed SB 226.
Under the constitution everyone has equal protection and that
means that everyone has equal access to the courts regardless of
financial standing. Although some people may cause problems,
judges have the right to dismiss lawsuits that are frivolous.
Creating legislation to address a problem that judges can
already solve only makes government bigger and denies equal
protection.
SENATOR THERRIAULT asked how he would suggest dealing with
people who bring frivolous lawsuits and don't care if court and
attorney fees are charged to them because they don't have two
nickels to rub together. They're judgment proof. "How do we deal
with that aspect of the equality in the system?"
MR. WHITTAKER suggested the legislature seek advice from the
Alaska Supreme Court to see if this is really a problem because
not many people have the capacity to engage in litigation on a
pro se basis. The court system isn't perfect but judges should
exercise discretion as necessary, he said.
2:39:13 PM
MR. FORD explained that SB 226 is intended to limit access to
the court only "in a surgically precise way." The bill is
designed to address an issue that arises in very few cases but
that impacts far beyond its litigation sphere. Judges have a lot
of authority but dismissing cases is the nuclear option. "I
don't know of any cases where it's ever been used."
SENATOR McGUIRE said there's a tendency for lawyers to advocate
for their client regardless of how unreasonable the position may
be. And judges are reluctant to dismiss cases in the fear that
there might be something there. She encouraged the Department of
Law (DOL) to think about whether the language ought to be
defined in terms of the motion to dismiss and in Rule 11
[Federal Rule of Civil Procedure 11] to make it clear that the
judge should be a gatekeeper. "There are so many merit based
cases, but these few cases … cost people. … It's a tremendous
drain."
SENATOR McGUIRE encouraged DOL and the sponsor to look at it as
a triangle. The legislature can do something, the Bar
Association can look at its cannons and rules of the court, and
lawyers can look at their own ethics and ask if the case is
appropriate irrespective of the fees.
2:43:42 PM
VICE-CHAIR HUGGINS noted that the definition says without the
assistance of an attorney and that there's also a way to deal
with attorneys who file cases without merit.
MR. FORD said the idea was focus the bill as narrowly as
possible. "So those cases that were brought without the
assistance of an attorney, but also meet this other criteria are
the cases we're talking about." An advantage to SB 226 as
opposed to relying on a judge's discretion is that it's a tool
that will be consistently applied across the state.
2:44:53 PM
SENATOR WIELECHOWSKI said he presumes this would not apply to
workers' compensation cases.
MR. FORD said it does not apply.
SENATOR WIELECHOWSKI said access to the courts is an important
issue. The rich have access and the poor are judgment proof. In
Alaska this issue has a real impact on the middle class. When
they've been damaged, that's their redress. "That's where you
have the David and Goliath standoff. And they're on equal
footing with the multi-billion dollar corporation."
SENATOR WIELECHOWSKI said he's concerned about not only this
issue but also about defendants who work the system and fight
everything. They may lose five or ten cases and have to pay
someone $50,000, but that's nothing for a huge corporation.
In putting this together we need to give some thought on how
this will impact the majority of people in Alaska and their
access to lawsuits and a judicial system that's really stacked
against them, he said.
2:46:58 PM
VICE-CHAIR HUGGINS announced he would hold SB 226 in committee.
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