[Jonathan Adler, October 4, 2008 at 5:16pm] Trackbacks
44 Filings without Paying Fees Is Too Many:

The U.S. Court of Appeals for the D.C. Circuit allowed Tyrone Hurt to file pro se appeals without paying fees, but no longer. In a per curiam opinion released yesterday, the court explained:

Tyrone Hurt has filed numerous appeals without paying any filing fees. Finding Hurt abused the privilege of proceeding before this Court without paying the usually required fees, we revoke this privilege, dismiss his forty-four pending cases and bar him from filing any future civil appeals without paying the required fees.

Paul Milligan (mail):
he shouldn't be allowed to file a suit, PERIOD, without prior approval from a Judge.

And he should have to pay prevailing side's fees in ALL cases he's EVER filed, or ever will.
10.4.2008 6:21pm
one of many:
I have to disagree strongly with the court's reasoning, apparently it is attempting to use filing fees to limit access to the courts. While it may to some extent be bothersome to the court to continue to take up Hurt's claims and may tie up the court's time that does not justify using a filing fee as a means of escaping the judges' jobs. The filing fee is supposed to defray the cost of the clerkss in preparing the cases, and given the nature of these cases it would be hard for the clerks to expend $25 on one of these cases much less $350 or $450 (I believe these are DC charges for filing a civil suit and an appeal respectively although I may be wrong). Quite simply the judges dislike part of their job (rendering judgments on suits brought by a citizen) and are attempting to use a mechanism to recover the costs to the court to function instead as a gatekeeper.

Sanctions for frivolous suits are another matter. A filing fee based upon the actual cost of dealing with one of his suits would also be OK, if the court were upset about the cost the court were bearing. But as is clear from the ruling, it is not the money that bothers the court but the time it takes up.
10.4.2008 6:49pm
PersonFromPorlock:
Is access to a court a privilege or a right? It seems to me to fall pretty squarely under the right to petition government for a redress of grievances. I understand the utility of filing fees contra frivolous actions but I wonder if they aren't unconstitutional on their face.
10.4.2008 7:39pm
Fub:
one of many wrote at 10.4.2008 5:49pm:
Sanctions for frivolous suits are another matter. A filing fee based upon the actual cost of dealing with one of his suits would also be OK, if the court were upset about the cost the court were bearing. But as is clear from the ruling, it is not the money that bothers the court but the time it takes up.
There are problems with courts holding in pro per plaintiffs' suits frivolous. The term usually means without any basis in law or fact.

One problem is that a suit may be just a smidgen on the non-frivolous side. It may have a perfectly lawful cause with ridiculously insufficient facts asserted to support it. It may plead garbled and meaningless law, but allege sufficient facts to actually support some cause of action. Some courts will bend over backward not to find an in pro per pleading frivolous, for fear of denying a not-quite frivolous litigant access to the courts.

In California CCP 391 et seq, short of requiring only frivolity, permits a court to designate a in pro per litigant vexatious. The approximate requirement is five losing in pro per cases in seven years. That is considerable leeway. A vexatious litigant cannot file any further cases in any court without leave of the PJ of the court where he files.
10.4.2008 7:40pm
DiverDan (mail):
The filing of frivolous suits is NOT confined to IFP Plaintiffs. For yuks, check out the Pro Se Petition for Writ of Certiorari in Davidson v. Grossman, Supreme Court Docket 07-1525. [Disclosure - I'm counsel for a few of the many Respondents in this Case, a civil RICO action; we all waived the right to respond, as we could not have possibly done anything more that the Petitioner to persuade the Court that the Petition was a joke]. This is the third pro se Petition for Writ of Certiorari brought by that Plaintiff (the first two were equally amusing, complaining, among other things, of "institutional corruption" at the Arizona Supreme Court), and arose out of the third pro se RICO action brought by this Plaintiff, seeking millions in damages as well as a declaration that the Prescription Drug User Fee Act is unconstitutional, a declaration that an Arizona Rule of Civil Procedure is unconstitutional, and other relief. Each time his case was bounced by one court, he would appeal until he ran out of options, then file the same case in another court.
10.4.2008 7:48pm
DiverDan (mail):
I'll bet that this guy just ponies up the filing fees and keeps on filing frivolous lawsuits. The basic problem, inherent in so many similar situations, is that it is almost always impossible to convince an idiot that he is, in point of fact, an idiot.
10.4.2008 8:01pm
Chico's Bail Bonds (mail):
"The basic problem, inherent in so many similar situations, is that it is almost always impossible to convince an idiot that he is, in point of fact, an idiot."

These are truly words to live by.
10.4.2008 8:21pm
Sagar (mail):
would a "loser pays" system address frivolous lawsuits without impinging on citizens' right to have access to courts?
10.4.2008 11:49pm
JB:
Considering how often Overlawyered (and, to be fair, TortDeform also) reports on wrongly-decided cases, many of which have dragged on and on, I think loser-pays is likely to hurt more than it helps until other aspects of the civil legal system are cleaned up.

I'd start with actually painful penalties for abusive use of discovery, dilatory action, and other harassing abuses of the spirit, if not the letter, of the system.

When it's easier for the weaker party to maintain or defend a legitimate case, then it will be time to penalize the bringers of bad cases. Until then loser-pays will just raise the stakes on a bad gamble, which will only encourage more harassing suits.
10.5.2008 5:24am
Visitor Again:
"The basic problem, inherent in so many similar situations, is that it is almost always impossible to convince an idiot that he is, in point of fact, an idiot."

These are truly words to live by.

That is not the basic problem with respect to a large portion of these lawsuits.

A large number of these suits are filed by persons who are mentally ill. In fact the filing of these suits is a manifestation of their illness. There is no convincing them.

I and several of my acquaintances have been named defendants in lawsuits that were on their face frivolous. I would think almost anyone who is in the public eye or who has been an actor--lawyer or party--in a well-known lawsuit has had such suits filed against them by mentally disturbed plaintiffs.
10.5.2008 10:09am
Visitor Again:
Even a mentally disturbed plaintiff prone to filing frivolous lawsuits and appeals has the right to due process of law, which includes the right to have his appeal looked at before it is dismissed as frivolous.

It is unclear to me after reading the court's opinion that this plaintiff's 44 pending appeals were given an examination before they were dismissed. The closest the court comes is its statement that none of the more than 70 appeals he filed since 2006 had any chance of success.

Furthermore, commenter one of many is right that the court is using the filing fee to limit access to the courts. Today the mentally ill plaintiff ... tomorrow the unpopular plaintiff.
10.5.2008 10:30am
fortyninerdweet (mail):
Put me down with DiverDan on this one. And I love that word "vexatious". Reminds me of one of my kids.
10.5.2008 12:49pm
common sense (www):
@Visitor Again,
Do you say that they have a due process under the Constitution? My understanding was that the Constitution did not require any kind of automatic appeal; that was a purely statutory creation. If it's a purely statutory right, then I have no problem applying other statutes to reduce that right. If Congress disagrees with the interplay of those statutes, they can change them.
10.5.2008 1:21pm
Visitor Again:
There's no constitutional right to an appeal. But once a statutory right to appeal is established, due process attaches. There are numerous cases holding that arbitrary deprivation of a legislatively created right violates due process. In any event, I rather think there is no "other statute" authorizing dismissal of an appeal without any examination of it merely because the plaintiff has filed frivolous appeals in other cases.

Furthermore, use of filing fee requirements to limit access to the courts is, in my view, improper and runs afoul of both the right of access to the courts and the equal protection clause. But I must admit that proposition runs into considerable case law to the contrary.
10.5.2008 2:45pm
Bruce Hayden (mail) (www):
There's no constitutional right to an appeal. But once a statutory right to appeal is established, due process attaches. There are numerous cases holding that arbitrary deprivation of a legislatively created right violates due process. In any event, I rather think there is no "other statute" authorizing dismissal of an appeal without any examination of it merely because the plaintiff has filed frivolous appeals in other cases.
Let me suggest here that the judge does not appear to be forbidding the pro se litigant from filing appeals, just from filing them without paying the filing fees that most others have to file. The right would be to file appeals, while the privilege is to do so for free without paying the filing fees.
10.5.2008 8:25pm
r.friedman (mail):
The Supreme Court has, over the dissent of Justice Stevens, taken the same course. However, on Monday 10/6, the Court did so to 7 litigants, which I believe is the most it has ever done in a day (last year's long conference order excluded 4). Furthermore, the docket shows that two litigants had filed only two petitions each (Curiale, Barritt) and one only a single petition (Minniecheske). So either the Supreme Court has a standard for "abuse of the writ" other than numerosity and frivolousness, or there is an informal policy under which the Clerk holds pleadings unfiled until the Court can bar the litigant from IFP.
10.6.2008 12:41pm