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.