Wednesday, April 17, 2013

H.B. 6692 Bill to Prevent Frivolous Litigation Part II: Supplemental Testimony

     On Monday CT Attorney Wyatt Kopp proposed legislation in front of the Judiciary Committee to curb the state taxpayers from financing frivolous litigation through court fee waivers. The proposed bill in its entirely is discussed in our blog post linked below.     Kopp encourages people w ho support this to write the Connecticut Judiciary Committee an e-mail supporting HB 6692. The e-mail address for the Judiciary Committee is ------------------------------------------------------------------------------------------------------------------------------ 
I wanted to thank the Judiciary Committee for hearing my testimony on H.B. 6692 which would reform the present fee waiver system.  Rep. Ritter made a very interesting comment during the testimony when he noted that it is difficult to determine which cases are frivolous.  The wisdom of the proposed reform is that it takes that determination out of the hands of third parties and places it on the litigants themselves to make that determination.  
An indigent litigant, under the proposed reform, would simply have to ask themselves whether the case is worth doing the community service to pursue.  In that sense, the reform offers an alternative that achieves the very some consideration that a litigant who is not eligible for a fee waiver has to make.  The proposed reform takes the determination of whether a case is frivolous and places it where it belongs which is on the litigant themselves rather than third parties.  When access to the system is completely free, there is no incentive whatsoever for a litigant to self-regulate their claims.
The presence of court fees serve the dual purpose of both funding the court and encouraging litigants to make a determination of whether a case is worth the fees to file it.  In this sense, the presence of fees encourages the self-regulation of claims.  On an even more general level, money results in the allocation of scarce resources and it sets priorities.   It is because of the presence of fees in the system, for those who do pay, that you do not see any cases of frivolous litigation by persons or businesses who do have to pay the fees.   Frivolous litigation is not a problem among persons and businesses paying the fees for the very reason that they have to ask themselves, is this case worth the initial investment of fees to file it?
The significance of Rep. Ritter’s comments are that they support H.B. 6692 for the very reason that the litigants themselves should be determining whether their claims are frivolous and the present system has taken away all the incentives to do so.  As a result, third parties such as judges are called on to make that determination because the litigants themselves are encouraged by the present system to file claims for any petty grievance no matter how small because it is free.
Members of the committee heard testimony from representatives of legal service organization who claimed that H.B. 6692 would run afoul of the Supreme Court’s ruling in Boddie v. Connecticut.  They did not, however, tell the committee that nowhere in Boddie did the Supreme Court hold that money must be the exclusive form of payment for court fees.  In Boddie, there was no other option other than paying court fees.  The reform of H.B. 6692 simply offers another alternative to the payment of court fees that may be viable for persons who do not have money.  More significantly, the courts can even waive the community service requirement if it presents a hardship.
The legal service representatives also argued that the present remedies available are adequate.  They testified that judges are “reluctant” to avail themselves of those remedies.  Judith Fusari was only stopped after she filed 136 separate civil action and 58 appeals.  Cecelia Lebby is still going strong after 81 separate civil cases and 44 appeals.  Sylvester Traylor just recently filed yet another lawsuit against the town of Waterford, and its First Selectman, in the last week.  To argue that the present remedies are adequate in the face of these abuses simply ignores reality.
One legal services representative dismissed the serial filers by characterizing them as “frequent fliers.”  These serial filers are no laughing matter when one has to defend against their actions.  Municipalities have to dip into scarce and already stretched funds to defend against these lawsuits.  The municipalities could be using those resources to help people in the community who have basic needs such as the elderly.  Each municipality provides resources that help people directly who have real and present needs.  Defending against the frivolous litigation promoted by the present fee waiver system reduces those scarce resources.
Surely, members of the Judiciary Committee have served in local governments and some presently sit on human service commissions in which the issue of scarce resources in a stark reality.  In fact, the phrase “scarce resources” was probably one of the most used phrases I heard during the entire day I sat through the testimony on various bills.
Access to the courts is not infringed by H.B. 6692.  It simply offers an alternative method of payment that takes into account an individual’s particular circumstances.  Even under the present system there are questions on the fee waiver form which ask for a person’s assets.  Why would the form ask for a person’s assets if it were not expected that they would sell them to fund the matter for which they seek a waiver?  The reason why information on assets is asked for on the fee waiver form is that the present system actually does take into account a person’s personal circumstances.  To be fair, most will not have assets who seek a fee waiver, but the questions would not be there on the form if the court were not already empowered to deny the fee waiver because a person has assets that they would be expected to sell.  This is a significant point because H.B. 6692 also takes into account a person’s personal circumstances by recognizing that while a litigant may not have cash to pay the fees, they may be able to provide a service as an alternative form of payment.
Finally, if I could suggest one change to H.B. 6692, it would be to only apply it to cases involving money damages.  This change would be positive because the problem appears exclusive to cases involving money damages.
Very truly yours,
Wyatt Kopp

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