The Pro Se Dilemma: Washington Courts and Vexatious Pro Se Litigation
by David Goodnight, Greg Tolbert, and Jason Morgan
The right to seek redress for civil wrongs through the court system is a profound and deeply valuable aspect of the American system of justice. The right of self-representation in civil litigation forms a necessary and important role in our system of justice. The right to redress in the court system is not and should not be limited to those who can afford legal representation, or who are fortunate enough to secure pro bono counsel. And it makes great sense, given these values, to exercise some patience for those who are navigating complex legal waters.
Pro se participation in civil courtrooms is unique. More commonly, where specialized skills are required, pro se participation is not allowed (and can be prosecuted). When was the last time you saw a pro se pharmacist? Or pilot?
The right of open access also comes with a necessary and understandable cost. A pro se litigant's lack of training may lead to delay, unnecessary motion practice, or even occasionally filing claims that do not have a legitimate basis in fact or law. This article does not concern these understandable costs inherent in granting access to those untrained in the law. It concerns a different type of problem that occurs when one can say, without hesitation, that a line has been crossed. It concerns the abusive or dishonest pro se litigant.
It is one thing to make a mistake regarding an archaic rule of procedure or to lack appreciation for the particular elements of a cause of action. It is another to tell lies. And it is another thing altogether to go on an outright attack, based on false claims and representations. Or to sue court staff and judges. Or to make the same false or losing claim time and time again. This kind of abuse of the judicial system by vexatious litigants can never be justified by the right of access to justice and places an unnecessary drain on judicial resources as well as upon opposing parties.
Dealing with serial pro se litigants creates special problems for both opposing parties and the courts (not to mention the opportunity costs or social costs). The WSBA and the Rules of Professional Conduct normally operate to curtail abusive or misguided litigation practice by attorneys. The WSBA, however, has no oversight over pro se litigants. A pro se who engaged in practices that would, without question, cause a member of the Bar to lose his license has nothing to fear from the WSBA.
Instead, the only avenue for relief from serial litigants are the courts and, realistically, the trial courts. Washington courts recognize a number of means to sanction and restrain abuses of the judicial system, one of which is a money fine. This article outlines those existing remedies against vexatious pro se litigants. The difficulty with a money fine is two-fold. Oddly, trial courts generally are reluctant to impose money fines that are substantial or that come anywhere near approximating the economic costs imposed by the vexatious pro se litigant. And pro se litigants often lack resources to pay. Washington courts have recognized these difficulties and, recently, have been employing their "inherent" power to restrain abusive litigants by placing procedural and substantive limitations on existing and future filings. This tool, while it must be used judiciously, offers numerous benefits to litigants and courts and helps to preclude the vexatious pro se litigant from socializing litigation costs.
Defining the Problem
A litigant's decision to file and prosecute any civil lawsuit triggers tremendous procedural machinations that may include enormous public and private costs — e.g., to the judicial system, to defending litigants, and to taxpayers. The Rules of Professional Conduct and the Civil Rules recognize the tremendous costs of litigation and, accordingly, require litigants to limit court claims to good-faith assertions of fact and meritorious legal claims. These requirements are captured in Rule 11 and are well-recognized in the inherent power of the court. Both Rule 11 and the general standards of practice assume as a starting point that one is not lying or taking action in an abusive manner.
These protections, however, often break down in the face of pro se litigation and especially serial pro se litigation. Generally speaking, vexatious pro se litigants are immune from the downside risk of their behavior. Far more often than not, savvy vexatious pro se litigants will be able to characterize themselves as "a victim," the "downtrodden," a "community activist," or otherwise "seeking access to justice," such that courts are reluctant to hold them to account for their behavior regardless of whether the other participants seek such relief (and many don't, simply happy to try to minimize defense costs). And, when courts do attempt to hold such litigants accountable, the sanctions imposed are so trivial that it is merely a cost of doing business to vexatious pro se litigants.
A recent editorial in the Olympian discussed the tremendous social costs associated with two vexatious litigants who have filed, and lost, repeated lawsuits against the Port of Olympia.(1) At one point in time, the Port faced challenges from these pro se litigants in a federal court action, three actions before the Pollution Control Hearings Board, four superior court appeals, three appeals before the City of Olympia hearing examiner, and one case before the Washington State Supreme Court. Many of these challenges have been dismissed — as factually frivolous, untimely, or procedurally and substantively flawed. Many have alleged the same losing claims over and over again.
In the meantime, the article reported, the Port's costs and attorneys' fees over the last two years rose to more than $400,000 in defense of claims with no basis in law or fact. These are just the Port's costs. They do not include the costs to other defendants. The list of these "other defendants" is growing and now includes two judges from the Thurston County Superior Court, members of the court staff, City of Olympia staff, and a permittee.
In a recent case brought by two of these pro se litigants, a so-called "Original Action" was filed against two superior court judges in the Washington State Supreme Court, claiming the judges were denying them due process. Their claim was driven by wide-ranging allegations of misconduct, collusion, and fraud, attacking the integrity of the court. Suing a judge, of course, is a serious thing. One of the allegations was that the trial court had issued what the petitioners called an "extrajudicial" and "imperious" private correspondence. The word "imperious" means domineering or overbearing. The so-called private correspondence, it turns out, was a routine scheduling letter. And it was not private at all. It had been entered by the court in the record and, on its face, showed that it was sent to all parties and counsel.
The Supreme Court dismissed the Original Action as frivolous and an abuse of the right of access to the courts. At the request of the intervenor-permitee, the Court awarded money sanctions against both of the pro se petitioners. The Court also prevented future appeals from the same action in any Washington appellate court until the money sanction was paid. But here we see the reluctance of the Court to issue a sanction that fits the cost of the legal process initiated by these abusive litigants. Numerous private parties and the trial court judges had to retain counsel. Motions papers were filed. Argument was held. The Supreme Court wrote an opinion on the matter.
But the money fine of $500 per pro se litigant did not begin to cover the cost of the debacle and, apparently, was not much of a deterrent either. The litigants paid the fine and, within several weeks, filed several new actions against different trial court judges and numerous parties, including similar allegations. The end result? Virtually all of the expense of the frivolous claims and abusive tactics fell on opposing parties, the court, and, of course, local taxpayers.
Controlling Abusive Pro Se Litigation in Washington with Existing Mechanisms
Washington courts have a broad array of legal mechanisms for controlling vexatious or frivolous pro se litigation. First, Washington courts may award costs, including attorneys' fees, against any party, including a pro se litigant, who files a frivolous-action under RCW 4.84.185 (the "frivolous action statute"). The frivolous action statute allows a court to award attorneys' fees and expenses to the prevailing party against any "action, counter-claim, cross-claim, third-party claim, or defense" that is "frivolous and advanced without reasonable cause." An award under this provision requires written findings by the judge that the claim is both meritless and brought for the purposes of delay, nuisance, spite, or harassment. Sanctions under the frivolous actions statute are assessed against the parties, not the attorneys, and should apply with equal force to pro se litigants.
Second, Washington courts may sanction vexatious litigants under Civil Rule 11 (CR 11) by imposing fees and other "appropriate" sanctions. CR 11 requires that every pleading, motion, and legal memorandum, including those filed by a pro se, must be signed to ensure that "it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." Under CR 11, Washington courts can, and do, impose the full costs of litigation on pro se litigants who pursue frivolous claims, and hold a pro se litigant to a reasonable-attorney standard.
Third, Washington courts also have inherent power to impose monetary sanctions, including attorneys' fees, on actions that are brought in bad faith. Bad-faith actions include actions that are "intentionally frivolous" and actions brought for the purpose of harassment.(2) The court's inherent power is broader than CR 11 (which applies to pleadings and motions filed in court) and extends to pre-litigation conduct necessitating legal resolution; procedural bad faith, including vexatious conduct in the course of litigation; as well as substantive bad faith, including intentional filing of frivolous claims or claims based on improper motive. In order to support an inherent authority sanction, the court must make a finding of bad faith.
Beyond monetary sanctions, Washington courts have the inherent power to restrain vexatious litigants from abusing the right of access to the courts. Although few Washington courts have tested the limits of this power, the Court of Appeals, Division III, in Yurtis v. Phipps, recently utilized its inherent authority to prohibit a vexatious pro se from filing any further claims related to a particular transaction.(3) Relying on existing precedent, the court in Yurtis concluded that there is no absolute and unconditional right to access the courts, and the "requirement that a litigant proceed in good faith and comply with court rules has always been implicit in the right of access." Courts can use this inherent power to permanently enjoin the filing of particular suits, or to prohibit the filing of motions altogether. To exercise such power, the court must make a finding of a pattern of abusive and frivolous litigation. The court should tailor injunctive relief narrowly to remedy proven abuses, and should not amount to a total denial of access to the courts.
The Court in Yurtis recognized that "every court of justice has the inherent power to control the conduct of litigants who impede the orderly administration of justice," and the "need for judicial finality and the potential for abuse of this revered system by those who would flood the courts with repetitive, frivolous claims which have already been adjudicated at least once."
Federal Responses to Vexatious Litigation
By contrast, the federal court system has developed a robust vexatious-litigant doctrine to curb abusive pro se litigation. Federal courts frequently issue "pre-filing" injunctions against vexatious litigants, requiring the litigant to seek leave of the court before filing any civil suit. It appears that federal district court judges, in particular, have had less hesitation in drawing some hard and fast boundaries to cabin abusive litigation.
The Ninth Circuit established a specific set of criteria under which district courts can issue pre-filing injunctions: (1) the court must give notice and an opportunity to oppose the order; (2) the court must have an adequate record to demonstrate an abuse of the judicial system; (3) the court must make a substantive finding that the litigation was frivolous or harassing; and (4) the order must be narrowly tailored to address the abuses at issue.
Utilizing this inherent power, federal courts have crafted a broad array of remedies:
• Requiring a pro se to seek leave of court before any new filings.
• Requiring a pro se to obtain legal counsel prior to filing any new civil actions.
• Permanently prohibiting future actions against particular defendants based on certain facts or legal theories.
• Requiring a pro se to submit complaint along with a copy of the injunction order and a list of all current actions pending before the courts.
• Requiring a pro se to post bond for costs of litigation prior to entering any new action.
These remedies must always be justified based on the facts and circumstances of each case.
Reinvigorating Washington's Vexatious-Litigation Doctrine
Despite significant authority to control vexatious pro se litigation, these tools remain significantly under-utilized. This may be due to an inadequate sense of appreciation of the enormous private and societal costs of abusive litigation. The wide procedural latitude afforded by Washington courts to pro se litigants may also inadvertently foster abusive litigation in some cases, leading to the kind of abuses described in the case of the Port of Olympia.
Raising Awareness
One mechanism for curbing abusive pro se litigation may come from raising awareness in the bar of the activities of vexatious litigants. Vexatious litigants often file the same kinds of cases, in a repeated fashion, in different tribunals, many of which never result in a published (or even unpublished) decision. A defendant faced with a vexatious pro se litigant may not even be aware that a pattern exists. The Washington State Bar Association could increase awareness of vexatious pro se activities by keeping a database of pro se activities. Although the Bar Association has no oversight over pro se activities, it can help attorneys and the courts deal with vexatious litigants by keeping track of the cases they file, the grounds of those cases, and the ultimate disposition of those cases. Such information would be invaluable in establishing the kind of pattern of abusive practice necessary to support aggressive injunctive relief against future filings. Superior courts similarly can facilitate this process by issuing written memorandums dismissing frivolous pro se actions. By raising awareness of the practices of individual pro se litigants, the courts can more appropriately respond to specific offenses based on the pattern of that pro se's practice before the courts.
Using Existing Tools
Courts can also reduce the impacts of vexatious pro se litigation by more aggressively using the frivolous-action statute. Concerns that a pro se will not be able to afford such costs should not be part of the consideration. Rather, failure to pay such fees can provide grounds for enjoining future litigation until such fees are paid. Although a court must balance the pro se's right to access, the Legislature has already determined that cost of frivolous actions should be borne by the proponent of a frivolous claim.
Washington courts also should not hesitate to impose costs where only a portion of a lawsuit is frivolous. A pro se litigant may have one legitimate claim that is filed along with a dozen other claims that lack any basis in law or fact or, worse yet, is based on outright falsehoods. For example, a pro se litigant might file a facially valid land-use appeal of a city permit decision, and include with that claim reckless or demonstrably false allegations of negligence against individual city employees. One claim is facially valid, the other claim is patently frivolous and included simply to harass city employees. As amended in 1991, the frivolous-action statute no longer requires consideration of the case as a whole, and allows an award of fees based on specific actions or defenses. Assessment of fees incurred for responding to frivolous portions of claims may significantly discourage tagging on additional claims.
Adopting the Federal Standards for Pre-Filing Restrictions
Washington courts should carefully consider meeting egregious violations with procedural or substantive restraints on future filings. Often, the only way to prevent opposing parties, courts, and taxpayers from bearing costs associated with frivolous litigation is to prevent suits from being filed in the first place. Although Washington has not developed the scope of its inherent power in great detail, the test outlined by the Ninth Circuit provides a framework that is consistent with Washington law, and would provide for restrictions tailored to the problems created by the individual litigant.
Consider Social Costs of Private Vexatious Pro Se Litigation
Finally, as to vexatious pro se litigants, Washington courts need to discard the "access to justice blinders." It is one thing to relax (i.e., ignore) the applicable rules for a pro se litigant. It is quite another to do so for vexatious pro se litigants. When a pro se litigant files multiple actions, the court's "leniency" is, in effect, a penalty to the other parties who follow the rules. The private benefits that drive vexatious pro se litigants (e.g., emotion, self-aggrandizement, attention, financial, etc.) simply do not outweigh the rights of others. Vexatious pro se litigants who cry "access to justice" when their behavior is challenged simply disregard the rights of other participants, the courts, and the public.
Conclusion
Certainly, not every pro se litigant filing a legal or factually deficient claim warrants strong reprisals from the courts. A pro se litigant who has filed numerous civil suits with false statements of fact or containing claims already dismissed, however, should not be entitled to such leniency. Every time a court grants a vexatious pro se litigant leeway, it not only encourages future non-compliance, but it extends a private benefit to the pro se litigant at the detriment of the other parties, the court system, and the public taxpayers.
Framed another way — given the American preference for judicial resolution of civil disputes, there are certain mistakes and errors a court should tolerate from pro se litigants as part of the costs of justice — e.g., mistakes of procedure, timing, or format. But there are other "errors" that should not be tolerated, not even once — e.g., filing a claim twice; filing a claim without a good-faith factual basis; or filing a claim for an improper purpose such as harassment, annoyance, or delay.
By responding to these abuses with swift action for real monetary sanctions, and where appropriate, pre-filing or other restraints, courts will send a clear message to litigants — abuse of the system will not be tolerated. Any other response only encourages abuse of the judicial system at the expense of others.
David Goodnight is a graduate of Valparaiso University and Yale Law School and a trial partner at Stoel Rives, L.L.P. Greg Tolbert is a graduate of the College of William and Mary and former Washington State Supreme Court judicial law clerk. Jason T. Morgan is an associate at Stoel Rives, LLP, where his practice focuses on environmental and land-use litigation.
NOTES
1. See editorial: "Activism must not cross the line to harassment," The Olympian, March 9, 2008.
2. Rogerson Hiller Corp. v. Port of Port Angeles, 96 Wash. App. 918, 982 P.2d 131 (1999).
3. Yurtis v. Phipps, 181 P.3d 849, 2008 WL 852595 (2008).
