By Richard M. Zielinski
The Profession
Massachusetts courts continue to face difficult challenges. Hampered by extended backlogs, severe budget cuts, and prolonged hiring freezes, our hard working judges and dedicated court staff struggle every day to efficiently manage and provide a high quality of justice in thousands of legitimate cases involving important financial, personal and societal issues. Their efforts are additionally burdened by vexatious litigants who seem to regard the courts as their own personal complaint departments. This Article discusses the problem and calls upon judicial, legislative and bar leaders to put their heads together in an attempt to devise both fair and practical solutions to the problem.
What is vexatious litigation and why is it a problem in Massachusetts?
Defining vexatious litigation is difficult because litigants’ motives – whether in filing lawsuits to harass or control another party, litigating claims that are not legally recognized, or manipulating the system for personal gain – are quite diverse. Some common threads among vexatious litigants, however, are clear: their filings are often numerous, their claims largely without merit, and they impose enormous burdens on the court system and those required to respond to their claims.
In a recent article on “frequent fliers” of the court system, Massachusetts Lawyers Weekly newspaper reported that it had identified more than 450 complaints, appeals or other requests for relief filed in Massachusetts courts over the past three decades that were traceable back to just six litigants. In one notorious series of cases, a plaintiff filed at least one hundred and fifty separate lawsuits, resulting in more than ninety appeals, against his former girlfriend after their relationship ended. Ironically, a restraining order against that particular plaintiff failed to prevent him from using the judicial system to continue harassing the woman in question. The plaintiff’s repetitive and groundless actions have also been admonished by the Supreme Judicial Court, which presided over five of the plaintiff’s appeals for extraordinary relief in a single day. See Watson v. A Justice of the Boston Div. of the House Court Dep’t, 458 Mass. 1025 (2011).
Vexatious litigants also frequently turn their fire on judges, clerks, other court personnel and opposing counsel when cases are not resolved in their favor. For example, one such litigant brought over three hundred complaints in several states against public officials, various courts and judges due to events arising out of a series of traffic violations. See Azubuko v. McCabe, No. 1:108-CV-226, 2008 U.S. Dist. LEXIS 91798, at *1 (D. Mass. Oct. 27, 2008). Such conduct imposes inappropriate personal burdens on court personnel, diverts resources and time away from legitimate disputes, and subverts the purpose and basic functioning of our justice system. As the United States Supreme Court has noted in several per curiam decisions, “[t]he goal of fairly dispensing justice . . . is compromised when the Court is forced to devote its limited resources to the processing of repetitious and frivolous requests.” See In re Sindram, 498 U.S. 177, 179-80 (1989), In re Whitaker, 513 U.S. 1, 2 (1994), Whitaker v. Superior Court of California, 514 U.S. 208, 1447 (1995).
The Massachusetts courts and the Board of Bar Overseers have an array of weapons at their disposal that, for the most part, effectively deters lawyers from filing repeated, baseless lawsuits. The problem of vexatious litigation, however, does not appear to be primarily lawyer-driven. Instead, the vast majority of vexatious litigants are self-represented individuals, who need not be concerned about the spectre of Rule 11 sanctions or a complaint to the BBO. Even in federal court, where pro se plaintiffs are subject to Rule 11 sanctions, many vexatious litigants are judgment-proof, thereby blunting both the deterrent and punitive effects of monetary sanctions.
How Have Courts and Legislators Dealt with Vexatious Litigants?
Research suggests that Massachusetts courts and judges have inherent authority, rooted in common law, to take a variety of steps to curtail vexatious litigants. For example, a judge has inherent authority to dismiss a suit that is frivolous or designed to harass, or as necessary to prevent a fraud on the court. See, e.g., Munshani v. Signal Lake Venture Fund II, LP, 60 Mass.App.Ct. 714 (2004).
Another tool judges have at their disposal is the use of an injunction prohibiting a vexatious litigant from filing any new suit in a particular court. Although reasonably effective in curtailing vexatious litigation, injunctions are problematic in two respects. First, pre-filing bans curtail an individual’s constitutional right of access to the courts, so they should be used only when truly necessary and ordinarily should contain an exception allowing for the filing of a particular matter with prior judicial approval. Second, a determined plaintiff can often avoid the effect of an injunction by simply filing suit in a different forum. For example, one of the most prolific vexatious litigants in the Commonwealth avoided pre-filing bans in both Suffolk Superior Court and the United States District Court in Massachusetts by filing suits in courts stretching from New Jersey to Georgia. See Azubuko v. Boston Public Schools, 2006 WL 1373161 (D.N.J. 2006); Azubuko v. Berkshire Mut. Ins., 2003 U.S. Dist. LEXIS 26768 (N.D. Ga. Oct. 22, 2003). Unfortunately, Massachusetts does not currently have an effective administrative system in place to track problematic plaintiffs and enforce bans across its various divisions.
At least six states have enacted legislation to address the problem of vexatious litigants – California, Hawaii, Texas, Florida, Ohio, and Connecticut. These statutes include remedies ranging from a bond requirement to cover defendant’s costs (not unlike the bond requirement in G.L. c. 231, s. 60B, the medical malpractice statute), to pre-filing orders barring vexatious litigants from filing additional suits without prior leave of court.
One challenge in drafting legislation is defining precisely what constitutes a vexatious litigant. In California, for example, a litigant is “vexatious” if he meets any one of a number of tests, including repeatedly re-litigating a claim after a final, adverse judgment; repeatedly filing unmeritorious motions; or bringing at least five suits (other than small claims suits) in the prior seven years that have been resolved against him or permitted to remain pending at least two years without justification. Cal. Civ. Proc. Code § 391(b). In Ohio, by contrast, a litigant is vexatious if she “persistently engages in vexatious conduct in a civil action,” regardless of whether or not she initiated the suit. Vexatious conduct, in turn, is defined as behavior that either harasses another party, is unwarranted under existing law, or is designed to delay. Ohio Rev. Code Ann. § 2323.52(A)(2).
Whether based on the number of lawsuits filed or the litigant’s motives or conduct any fixed, statutory definition of “vexatious litigant” is bound to be both over as well as under inclusive when it comes to real world litigants. Perhaps this problem can be overcome by leaving the issue of whether a particular litigant is or is not vexatious to be determined by an appropriate judicial officer on a case by case basis, applying a set of pre-determined but somewhat flexible statutory factors.
What more can and should Massachusetts do to address the problem?
Courts, legislators and commentators from around the country have not agreed on the most effective means of curtailing vexatious litigation. But nearly all agree that the problem is real and continuing and, especially in difficult economic times, poses a genuine threat to the administration of justice and a cost to society. I urge members of the judiciary, our state legislators, and the leaders of the organized bar to convene a task force or other group to further study the problem and formulate recommendations for how we might best address the problem in Massachusetts.
Richard M. Zielinski is a Director in the Litigation group of Goulston & Storrs, P.C. He is also a past member of the Massachusetts Board of Bar Overseers, the Boston Bar Association Council, and a Fellow and past State Chair of the American College of Trial Lawyers (ACTL). Richard wishes to thank Alana Van der Mude and Keerthi Sugumaran, associates at Goulston & Storrs, for their valuable assistance in researching and drafting this Article.
