From RM: On restricting access to courts

Here is an interesting article with the basic law and then Kansas cases

http://www.kscourts.org/PDF/Request_for_Comments_on_Guidelines_for_Judges_to_Restrict_Filings.pdf

and here is an excerpt.

Generally tho, when a judge issues a “cannot file” order, it just means you have to file a motion to file and declaration with your motion.

Most pro se litigants do not know this, so it stops them from filing 95% of the time and the judge’s problem is solved.

 

Summary of Authorities for Judges Considering
Whether to Restrict Court Filings
This document, which was prepared by the Kansas Supreme Court Access to Justice
Committee, is intended to be a summary of current case law and legislation about restricting
court filings submitted by abusive litigants. The Summary of Authorities does not constitute a
rule or order of the court.
I. Constitutional Right of Access to the Courts.
The Fourteenth Amendment provides a right of access to the courts, which
includes access by inmates. Bounds v. Smith, 430 U.S. 817 (1977). This right is neither
absolute nor unconditional. A litigant has “no constitutional right of access to the courts
to prosecute an action that is frivolous or malicious.” Holt v. State, 290 Kan. 491, 500,
232 P.3d 848 (2010). Yet, “[l]itigiousness alone will not support an injunction restricting
filing activities.” Tripati v. Beamani, 878 F.2d 351, 353 (10th Cir. 1989). Federal courts
have recognized a court’s inherent power to control the actions of abusive litigants “by
imposing carefully tailored restrictions in appropriate circumstances.” Ford v. Pryor, 553
F.3d 1174, 1180 (10th Cir. 2008) (citations omitted). Citing these Tenth Circuit
decisions, the Kansas Supreme Court has held that Kansas district courts have inherent
power to impose carefully tailored restrictions on abusive litigants in appropriate
circumstances and has authority to direct a district court clerk to refrain from filing
pleadings in such cases. Holt, 290 Kan. at 500-02.
This Summary of Authorities reviews Kansas law for a judge of the district court
to consider when encountering a litigant who repeatedly files frivolous, malicious, or
duplicative pleadings. The court will need to evaluate several issues to determine
whether filing restrictions are justified, to fashion appropriate restrictions for an abusive
litigant, and to enforce those restrictions. The designation of a litigant as abusive should
be an extraordinary remedy to be used in the most extreme cases.

II. Are Filing Restrictions Justified?
A judge of the district court may, upon his or her own motion, make a
determination that an individual is an abusive litigant and make restrictions on filings in a
particular case or future cases. The court must first determine whether filing restrictions
are justified for a particular litigant. While some states have a statutory framework
defining restrictions,1
Kansas does not. Instead, except for certain habeas corpus filings,

1
The number of states with statutory provisions is difficult to establish. Some statutes relate specifically to inmate
filings and others have been held unconstitutional. Cf., Mulroony, Amanda L.B., Indiana’s “Three Strikes” Inmate
Litigation Limitations: 2009 Legislation Does Not Hit a Home Run, 44 Ind. L. Rev. 957 (2011). State statutes not
limited to inmate filings include: CAL. CCP. CODE § 391 (vexatious litigant is a person filing 5 cases in 7 years all
decided against the litigant); FL Civil Prac.§ 68.093 (vexatious litigant is a person filing 5 or more cases in previous
5 years that are decided against the litigant); Haw. Rev. Stat. § 634J-7 (vexatious litigant); Ohio Rev. Code §
2323.52 (vexatious conduct defined); TEX. CIV. PRAC. & REM. CODE ANN. § 11.051, et seq. (procedure to
determine if vexatious litigant, prohibit filings, and place on state list of vexatious litigants).

2 Rev. 6/5/2015
a Kansas court must turn to case law for guidance about what circumstances justify
imposition of filing restrictions.
A. Civil cases in Kansas courts: Does a pattern of litigation activity justify
restrictions?
1. Kansas Appellate Courts.

The Kansas Court of Appeals has held a court should consider
whether a litigant’s “pattern of litigation activity” justifies imposing filing
restrictions, noting numerous factors may be considered depending upon
the circumstances. State ex rel. Stoval v. Lynn, 26 Kan. App. 2d 79, 82,
975 P.2d 813, 815, rev. denied 267 Kan. 890 (1999) (hereinafter Lynn).
Paraphrasing, the court held that a “pattern of litigation activity” justifies
imposition of filing restrictions if:
(a) a litigant files numerous pleadings,
(b) the pleadings are manifestly abusive toward the court or another
litigant, and
(c) prior pleadings have not been successful for the litigant.

The court found a pattern of litigation activity justified imposing
filing restrictions where numerous cases were filed in state district court
(eight are listed) seeking information to support a litigant’s pending direct
criminal appeal. Lawsuits filed against the victim of rape charges,
witnesses, police investigators, prosecutors, judges, and a juror’s spouse
were held to be abusive and an attempt to harass those being sued. Lynn,
26 Kan. App. 2d at 79-82.
2. United States District Court for the District of Kansas.
The United States District Court for the District of Kansas has held
that several factors are relevant in deciding future restrictions are
appropriate, including:
(a) a litigant’s history of litigation and particularly whether this history
entailed vexatious, harassing, or duplicative lawsuits;
(b) a litigant’s motive in pursuing litigation, such as whether the
litigant has an objective good faith expectation of prevailing;
(c) whether a litigant is represented by counsel;
(d) whether a litigant has caused needless expense to other parties or
has posed an unnecessary burden on the courts and court
personnel; and
(e) whether other sanctions would be adequate to protect the court and
other parties.

3 Rev. 6/5/2015
An injunction issued by a federal district court was approved that
restricted filings “where the litigant’s abusive and lengthy history of
filings was properly set forth” in the court’s decision. United States v.
Kettler, No. 90-3011, 1991 WL 94457 at *6 (10th Cir. June 3, 1991).
The Kansas federal district court has stated that the most important
question in deciding if an injunction can issue restricting filings is
“whether the litigant who has a history of vexatious litigation is likely to
continue to abuse the judicial process and harass other parties.” Landrith
v. Schmidt, No. 12-2161-CM, 2012 WL 5995342 at *6 (D. Kan. Nov. 30,
2012) (Landrith). The Court entered an injunction against a disbarred
Kansas attorney who had filed multiple unsuccessful cases against
individuals involved in his disbarment proceedings, including the panel
that heard the proceedings, witnesses, and investigators. The restrictions
adopted are set forth later in this Summary of Authorities. See also, Salem
v Kansas, Case No. 15-2209-CM (D. KS March 26, 2015), Slip Op. pages
21-22 (filing restrictions recommended where 27 cases filed in 3 months
with many duplicative parties named).

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