Legislature(2007 - 2008)BELTZ 211
02/11/2008 01:30 PM Senate JUDICIARY
Audio | Topic |
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Start | |
SB211 | |
SB247 | |
SB226 | |
Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
+= | SB 211 | TELECONFERENCED | |
+ | TELECONFERENCED | ||
+= | SB 226 | TELECONFERENCED | |
+= | SB 247 | TELECONFERENCED | |
+ | TELECONFERENCED |
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.
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