Arizona Eagletarian

Arizona Eagletarian

Tuesday, January 14, 2014

Vexatious Litigants or Revolving Doors?

Last week, our good friend state Rep. John Kavanagh (R-LD23/Fountain Hills) filed HB2021. The bill would write into statutes governing how state courts operate (Arizona Revised Statutes Title 12) a new chapter on Vexatious Litigants. From the Georgetown Journal of Legal Ethics:
The popular conception that vexatious litigants routinely abuse the justice system for personal gain is reflected in, and perpetuated by, the news media, television drama, and political rhetoric. This widespread notion of lawyers and frivolity has translated into political capital for national and state politicians. In recent years, a virtual deluge of legislation has been proposed to curb frivolous suits and judgments. 
That blurb sets the context for Kavanagh's legislation. This video clip, the official trailer from the documentary HOT COFFEE sets the context even more poignantly:



The language in HB2021 appears to be virtually identical to that in California's code of civil procedure. Here's part of the language of Kavanagh's bill:
A person is a vexatious litigant if the court finds the person does any of the following:1.  In the immediately preceding seven-year period, has commenced, prosecuted or maintained in propria persona at least five litigations other than in a small claims court that have been either:
(a)  Finally determined adversely to the person.
(b)  Unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.
2.  After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate in propria persona either:(a)  The validity of the determination against the same defendant or defendants as to whom the litigation was finally determined.
(b)  The cause of action, claim or controversy or any of the issues of fact or law that were determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined. 

I have not been able to find, online, a reference to Arizona's code of civil procedure wherein any reference to vexatious litigants may be, but I DID find a 2011 Arizona Appeals Court opinion specifically referencing a person having been declared a vexatious litigant.
The court erred, however, by declaring Madison a vexatious litigant and restricting her ability to file future lawsuits against the Groseths or anyone else concerning the property sold at the trustee’s sale. To impose such restrictions, the court was required to find Madison’s existing and prior lawsuits were frivolous or harassing; it failed to do so. 
For these reasons, we affirm the judgment insofar as it dismisses Madison’s complaint, but we reverse that portion of the judgment declaring Madison a vexatious litigant and restricting her ability to file future lawsuits.
Since Arizona courts already have the ability to declare a person a vexatious litigant (apparently as a result of rules of court procedure), you might ask why we need it codified in statute?

Documents posted online by California public corruption gadfly website Badger Flats Gazette may provide some insight. A legislative summary of a 1990 bill indicates the intent was to "reduce the state's cost for defending frivolous lawsuits filed against the state." However, there has been concern (and litigation) as to whether that legislation (and codifying it in statute) would be unconstitutional. Apparently, a law like that can also be used to silence critics and political opponents.

We know that Kavanagh wrote a sanctimonious defense of private prisons that was published in the Arizona Republic just a few days ago. We also know that one of the problems that prompted the State of Idaho to terminate its relationship with private prison operator Corrections Corporation of America (CCA) was liability from lawsuits brought by inmates.
The CCA prison has been the subject of multiple lawsuits alleging rampant violence, understaffing, gang activity and contract fraud by CCA.
CCA acknowledged last year that falsified staffing reports were given to the state showing thousands of hours were staffed by CCA workers when the positions were actually vacant. And the Idaho State Police is investigating the operation of the facility for possible criminal activity.
A federal judge also has held CCA in contempt of court for failing to abide by the terms of a settlement agreement reached with inmates in a lawsuit claiming high rates of violence and chronic understaffing at the prison.
So, if former police detective John Kavanagh can deliver for the private prison industry a provision in Arizona statute making it impossible for inmates to learn from their mistakes (by filing successive unsuccessful lawsuits), then might he have assured himself of his next career move?

Could there be a lucrative position waiting for Kavanagh in the growth industry of importing humans for warehousing in Pinal County? Refer back to the Jack Abramoff video embedded in my first blog post about Yarbrough.

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Oh, and on the subject of saving the State of Arizona money by putting the brakes on frivolous lawsuits, do you think the irony may have escaped Kavanagh that the legislature has spent copious amounts of taxpayer dough on the lawsuit against the redistricting commission and on legal fees in a wide range of litigation stemming from legislation that the people of Arizona have consistently disapproved.

24 comments:

  1. Why is it conservatives such as AZ State Rep. Kavanagh feel the need to close the court house doors to the average person? The Roberts Court (US Supreme Court) has been closing the doors to the court house via "standing" and conservatives in state legislatures have been doing their best as well to close the door.

    If our elected representatives will not listen to us, then we have no choice but to seek out the assistance of the Courts, a supposedly co-equal branch of our governments.

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  2. As usual, you are cynically overreacting. I am only codifying existing Arizona court rules so that they are transparent and known to all.

    This bill was motivated by a constituent, not related to the private prison industry, I have a few, who was harassed by a vexatious litigant.

    There is no need for you to worry. I have not yet dropped my vexatious blogger bill.

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    1. And what is the true motivation? What was the "constituent's" true concern? Your bill goes beyond simple codification of a general rule of the courts. It targets those who have no other real avenue to bring to light abuses aimed toward them.

      Maybe you should propose a bill that limits the Legislature's ability to use the courts to attack voter approved measures such as AIRC. Talk about a vexatious litigant.

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  3. Whew! I am SO thankful you aren't going to outlaw vexatious bloggers. :)

    On the other hand, since it's already in court rules, I don't buy your explanation.

    It is brazenly unconstitutional to limit access to the courts.

    Don't you have IMPORTANT matters to resolve?

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  4. So court rules are brazenly unconstitutional?

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    1. So, you want to not only be lawmaker but judge? At some point (prior to claiming the position of God), you might want to let go and see what the people of Arizona want. I realize you're close to claiming that throne, but I think it's still a bit premature.

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    2. The "Supreme Being" complex seems to be a symptom of being a modern Republican.

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  5. You called the court rules I am codifying unconstitutional. Are you illiterate? Don't you read the comments you comment about?

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    1. Hmmm... am I illiterate? What is it you're trying to accomplish here, John? Because you are failing miserably at making any argument that could rationally be relied upon to support your intended conclusions.

      Name calling, complaining, blustering. None of it can reasonably be considered argument where by your reasons for introducing Vexatious Legislation. (That's not a typo).

      Please state your intentions. If you don't, we are left to guess. And will do so.

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  6. Can someone explain how a single constituent's experience justifies a change in Arizona law that affects everyone? That's one out of 6,553,255, or 0.000015259592%. That's hardly a trend worth worrying about.

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    1. That's a good question for John Kavanagh. Maybe he will take a break from trying to get a rise out of people here and engage in legitimate civil discourse.

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    2. The only constituent I can fathom to have that much pull is Sheriff Joe Arpaio, as he lives in Fountain Hills (if I remember correctly). But otherwise, I doubt its a constituent at all and falls into the "I had a constituent who says they saw a food stamp recipient buying king crab legs" category.

      Most likely lobbyist for the for-profit prison industry or ALEC or both made the request.

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    3. I understand that it IS ALEC model legislation. John has disclosed gifts from ALEC for its wine and dine excursions.

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  7. The conversation veered off after you did not answer my question, which was how can rules promulgated by the court be unconstitutional? Are you accusing the courts of promulgating unconstitutional rules? Please pick up the discourse by addressing that issue instead of suggesting that I want to be a judge, which has nothing to do with the conversation.

    Also, I did not know that this is ALEC legislation. Where did you see that? What is your source?

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    1. Try as you might, you don't decide the direction of "discourse" on this blog. If you want to do that, start your own blog.

      Your question, whether court rules are constitutional, is not germane to the discussion.

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  8. Ok. How did you come to the understanding that my bill is an ALEC bill? What is your source? Or are facts and proof also not germane to the discussion and your blog?

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    1. You said it. The person who states something is the one who is supposed to back it up. It's not guilty until proven innocent.

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    2. Did you not see my homage to you?

      http://stevemuratore.blogspot.com/2014/01/an-homage-to-john-kavanagh-principal.html

      Of course, I could have but did not titled it "My response to a vexatious legislant (legislator)!

      But seriously, my hope is that you genuinely appreciate the homage.

      I realize that may not come naturally to you, since you seem to take disagreement so seriously. To that, I'd simply suggest you lighten up.

      Case in point, I indicated my understanding that your vexatious bill is ALEC model legislation. Your latest comment includes this sentence, "It's not guilty until proven innocent."

      Are you suggesting I accused you of a crime?

      Are you suggesting that you disavow any connection to ALEC or to promoting ALEC model legislation? I honestly don't understand what you're getting at, other than trying to direct the conversation in your preferred direction. Which, as I've said repeatedly, is not your role here. It's not your right. It's not your privilege.

      You are not the King of Arizona. You are a SERVANT of the people of Arizona. But you haven't been acting much like a servant.

      "The servant-leader is servant first. It begins with the natural feeling that one wants to serve. Then conscious choice brings one to aspire to lead. The best test is: do those served grow as persons: do they, while being served, become healthier, wiser, freer, more autonomous, more likely themselves to become servants? And, what is the effect on the least privileged in society; will they benefit, or, at least, not be further deprived?" (Greenleaf, 1977/2002, p. 27)

      http://www.regent.edu/acad/global/publications/jvl/vol1_iss1/Spears_Final.pdf

      If you continue to post comments -- which IS a privilege I grant you -- you have to expect feedback. And if you want the last word in any discussion in comments on this blog, it will have to be something thoughtful, rational and reasonable. Impulsive responses (snarkiness) will certainly be subject to sharp criticism, not only by me.

      Can you take it like a man?

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  9. Why is John Kavanagh so snarky?

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    1. Good question. I'd hate to hazard a guess. Maybe he will tell us.

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  10. Yup, Rep. John Kavanagh is definitely a contributing member to ALEC and he no doubt has some interest in the Civil Justice Task Force. ALEC is promoting a ‘Substantive Agenda’ with discussions on ‘Lawsuit Reform’, and on and on.
    I dare not say more, as I am sure I will faulter toward foul name-calling.

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  11. My life has been turned upside down by a vexatious litigant. Where are my rights? I am a law abiding citizen who is being harassed, bullied, financially drained and emotionally stressed to the point beyond where you think you can survive. This woman's daughter was doing my books and embezzling thousands of dollars. She is threatening lawsuits to scare me away from filing criminal charges on her daughter. After researching this woman she has been involved in 19 civil cases in Maricopa county alone in the last 10 years. Anyone who files a suit on her, she countersues, one case I found she had 22 countersuits (and lost them all of course). She filed BK to avoid paying out suits that she lost and had to pay the defendants attorney fees. Her daughter is stealing thousands from me and is on food stamps and ahcccs. She has a criminal lien on her vehicle and is hiding from the same courts she is abusing! It is unbelievable what rights this lady had! Not only that there are probably hundreds more than never went to court with her. She steals from you and then threatens you so you don't want to deal with her anymore. A guy contacted me that she was harassing right before me, I guess mine took precedence since possible jail time is involved (I have a lot of evidence, but the court system works slow). This guy had her daughter inputting data into Quickbooks, she had his books for 8 months and worked a total of 321 MINUTES on them (he had online version to track time spent). He paid her $200 (contracted at $19 an hour for data entry), and she refused to give him his books, receipts, etc back unless he gave her $750. She told him she put a utility patten on his logo art design and turned him into IRS & attorney general (baseless). She then put an order of protection against him and suing him for slander all while posting online what a crook he is and trying to ruin his business. Where are his rights? This is a huge problem and it needs to stop. I support 100% any law limiting vexatious litigants. It is not someones right to harass a person this way. We are talking about having to get permission before filing frivolous lawsuits because they have a history of filing them! Not rejecting them all together! Shouldn't her rights end where mine begin and I have the right not to be harassed and financially drained for no reason. I am only guessing the people who are upset about this are attorneys who will no longer get the repeat business and help to perpetuate these horrific crimes that are being perpetrated. Yes they are crimes! I am being robbed just as if someone stuck a gun to my head and took all my money, only that would be much faster. This is a slow tortuous crime and there should be severe consequences as well as labeling them vexatious.

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    1. Jennifer, your guess is probably way off about who would be upset about Kavanagh's vexatious legislation.

      The first point, and this obviates your support of Kavanagh completely, is that court rules already do the very thing you claim you want done.

      I direct you to http://issues.flemingandcurti.com/2012/03/04/vexatious-litigant-title-takes-on-real-meaning-in-phoenix-case/.

      The record at the flemingandcurti website details much the same kind of thing that you apparently experienced. The date on that article is March 2012. That's two years prior to the session in which Kavanagh wanted to usurp the responsibility of Arizona's court system.

      Arizona court rules already provide the same remedies Kavanagh's bill prescribed. There is no evidence the 2014 legislation will provide any further or speedier relief to people in situations such as yours. A litigant branded as vexatious is still going to have the right to appeal, all the way to the state supreme court.

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