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Two sides to pro se litigation: Helping those who need assistance, curbing ‘frequent filers’

pro-seTwo parallel initiatives in the Virginia court system are designed to deal with two different groups of pro se litigants.

The Supreme Court of Virginia wants to help those who cannot afford a lawyer, but who seek relief in the courts and do not know how to start. A panel appointed by the high court is working to make the courts more user-friendly for these unrepresented parties.

Then there are the “frequent filers,” litigants without lawyers who return to the courthouse again and again, bearing a litany of grievances and tying up the docket with frivolous claims and motions.

The Supreme Court want to help judges as well, recently offering a seven-page outline on “Curtailing Vexatious Pro Se Litigation.”

It is clear that pro se parties, their concerns and their behavior have the attention of the leaders of the court system.

Repetitive litigation

Two courthouse regulars illustrate the “frequent filer” problem.

Dora Adkins repeatedly sued hotels, filing more than 14 lawsuits claiming various problems with hotel rooms. In all, she filed 41 pro se civil actions in the circuit courts of Northern Virginia. She filed 27 petitions for appeal in the Supreme Court of Virginia.

“Through her behavior over the past eight years, Adkins has unduly burdened opposing litigants and interfered with the administration of justice,” the Supreme Court said in an order two years ago.

The court imposed a pre-filing injunction prohibiting Adkins from filing anything with the Supreme Court without either using an attorney or obtaining leave of court.

Glenn Myer traveled a similar path with his court filings. His cases became such a burden on the Fairfax County Circuit Court that the Supreme Court recused all 15 judges and appointed a judge designate, retired Norfolk Judge Charles E. Poston.

Faced with another Myer lawsuit marked by “insulting, disparaging, and contemptuous language,” Poston imposed a pre-filing injunction last month.

But Poston went a step further than most such orders. The judge, in an April 15 opinion, imposed a prefiling injunction, requiring court permission before any additional filings. The injunction bars the litigator from further unapproved filings, not just in Fairfax County Circuit, but also in any other court of the state.

Poston elaborated in a footnote. “This Court does not restrict whether another court of this Commonwealth can accept filings from Plaintiff, only that Plaintiff will face contempt in this Court for failure to comply with this Letter Opinion or the accompanying court orders,” Poston wrote.

Poston’s opinion is Re: Myer v. All Dulles Area Muslim Society (VLW 019-8-036).

A judge’s toolkit

The Supreme Court, in its guidance for “Curtailing Vexatious Pro Se Litigation,” describes a pre-filing injunction as a “last resort.”  The outline indicates there are other tools available for judges, including limiting access to fee waivers and imposing monetary sanctions for bad-faith pleadings.

Indeed, a man who twice filed forged documents in a Fairfax case last year was jailed for 10 days for contempt and ordered to pay $127,702 in sanctions, fees and a fine. The pro se plaintiff now is asking the Supreme Court to hear his appeal.

The Supreme Court has endorsed a four-factor test for pre-filing bans, with consideration of the party’s history of litigation, any good faith basis for the pending litigation, the burden on courts and other parties and the adequacy of alternative sanctions.

The outline – prepared by court staff – did not endorse Poston’s wide-ranging approach. “A court should limit the reach of its injunction to its own territorial jurisdiction and allow other venues to exercise their discretion to impose similar injunctions,” the outline said.

Penalties for landlord

A Roanoke-area landlord who repeatedly flouted the rules in disputes with tenants was subject to an uncommon order in 2017. Roland “Spanky” Macher was told he may not file any legal claim or proceeding whatsoever in the 23rd District without a lawyer.

Another judge imposed more than $1,000 in sanctions on Macher in 2018, finding he abused the legal eviction procedure.

Opening doors for others

While judges confront the vexatious side of pro se litigation, a 19-member Supreme Court commission is hoping to help the vast majority of litigants without lawyers who just want their day in court.

The commission has launched a website at https://selfhelp.vacourts.gov/ offering resources for self-represented litigants. A page on landlord-tenant law, for instance, has links to videos on eviction and security deposits. “We hope to lead them in the right direction,” said commission co-chair John Whitfield – the executive director of Blue Ridge Legal Services Inc.

The page can be accessed through the main website for Virginia’s Judicial System, but the link is difficult to locate. Click on the tab labeled “For Citizens” and scroll down to find “Virginia’s Judicial System Court Self-Help.”

Other initiatives

Courts are more user-friendly in other ways, Whitfield said. The benchbook used by district level judges now includes practice points for dealing with unrepresented parties in civil matters. Clerks’ offices now display posters and bookmarks with information for self-represented litigants.

The Canons of Judicial Ethics have been revised to make it clear that judges can explain the process to unrepresented parties and can encourage pro bono contributions from lawyers and support for legal aid. Judges may inform unrepresented persons about free legal aid and similar assistance.

Some judges had expressed reservations about referring litigants to legal aid and encouraging pro bono work until the canons were changed to expressly approve of such activities, Whitfield said.

“That was a really important change in the judicial culture. It’s proved to be helpful for us,” Whitfield said.

More to come

Other initiatives are coming soon, he said. Work is underway to assemble a list of all court forms by subject matter. More videos for the self-help website are in production.

An ambitious project is a narrated interface to guide litigants – even those with limited literacy – through the process of filling out particular court forms. The Virginia Poverty Law Center and the University of Richmond law school are cooperating on that effort, Whitfield said.

Even changes to court cellphone policies may help, he said. The Supreme Court has urged local court officials to consider allowing cellphones into the courthouse, recognizing that many people now use their phones to store messages, photos, videos and calendar information that they would need in court.

Changing the system to allow more people to effectively represent themselves without lawyers is part of a three-part effort to address long-standing gaps in access to justice, Whitfield said. The other prongs are increased resources for legal aid and lawyers’ increased participation in pro bono work.

“By going at it with all three prongs, we might have a reasonable chance of closing the justice gap,” Whitfield said.