• Recent Developments Regarding Ohio's Vexatious Litigator Statute
  • July 23, 2003 | Author: Alan E. Johnson
  • Law Firm: Marshall, Dennehey, Warner, Coleman & Goggin - Pittsburgh Office
  • One of the most annoying tasks besetting public officials, police officers, political subdivisions, and their insurers is dealing with frivolous litigation brought by habitual pro se litigators. Vexatious pro se plaintiffs are often attracted to the public arena. Seeking public attention, they are usually oblivious to the fact that all they achieve is notoriety.

    Ohio's vexatious litigator statute (Ohio Revised Code § 2323.52) was originally enacted in 1997. A June 28, 2002, amendment extended its application to proceedings in Ohio courts of appeals. The statute defines "vexatious conduct" as "conduct by a party" that "obviously serves merely to harass or maliciously injure another party to the civil action," or that "is not warranted under existing law and cannot be supported by a good faith argument for an extension, modification, or reversal of existing law." Ohio Revised Code ("R.C.") § 2323.52(A)(2). A "vexatious litigator" is "any person who has habitually, persistently, and without reasonable grounds engaged in vexatious conduct in a civil action or actions" in an Ohio court, "whether the person or another person instituted the civil action or actions, and whether the vexatious conduct was against the same party or against different parties in the civil action or actions;" however, "vexatious litigator" does not include an attorney admitted to practice in the courts of Ohio "unless that person is representing or has represented self pro se in the civil action or actions." R.C. 2323.52(A)(3).

    Under the statute, any person (including but not limited to the Office of the Attorney General, a prosecuting attorney, a city director of law, a village solicitor, or similar chief legal officer of a municipal corporation) who has defended against habitual and persistent vexatious conduct in an Ohio court may commence an action in a court of common pleas with personal jurisdiction over the alleged vexatious litigator to have that person declared a vexatious litigator. R.C. 2323.52(B). Such an action proceeds as any other civil action. R.C. 2323.52(C). If the subject individual is found to be a vexatious litigator, the court of common pleas may enter an order prohibiting that person, without prior leave of court, from instituting or continuing legal proceedings in Ohio courts. R.C. 2323.52(D). Thereafter, the court of common pleas or court of appeals considering the vexatious litigator's application for leave of court may not grant leave for the institution or continuance of, or the making of an application in, legal proceedings unless the court is satisfied that the proceedings or application are not an abuse of process, and that there are reasonable grounds for the proceedings or application. R.C. 2323.52(F). Any such denial of leave may not be appealed. R.C. 2323.52(G). The statute provides for the publication of vexatious litigator determinations throughout the Ohio judicial system to facilitate the clerks of the various courts in refusing to accept pleadings or other papers submitted for filing by vexatious litigators. R.C. 2323.52(H).

    On December 29, 2000, the Ohio Supreme Court held that the version of the vexatious litigator statute then in effect was constitutional in its entirety. Mayer v. Bristol, 91 Ohio St.3d 3, 740 N.E.2d 656 (2000). The Court further held, however, that the trial court's order exceeded its powers insofar as it attempted to restrict the vexatious litigator's filings in courts outside the judicial system of the State of Ohio. 91 Ohio St.3d at 19-20, 740 N.E.2d at 670.

    Two dissenting opinions in Mayer disagreed with the majority's holding that the statute's prohibition of an appeal from a denial of a vexatious litigator's application for leave to proceed is constitutional. Mayer, 91 Ohio St.3d at 20-21, 740 N.E.2d at 670-71 (J. Peter B. Abele, J., of the Fourth Appellate District, sitting for Lundberg Stratton, J., concurring in part and dissenting in part; Pfeiffer, J., dissenting). The majority had reasoned that "in this specific situation, under this particular statute, an original action in mandamus is an appropriate means by which the vexatious litigator could effectively challenge arbitrary denials of leave." 91 Ohio St.3d at 15, 740 N.E.2d at 666. However, allowing mandamus applications to the courts of appeals, for example, would appear to create a loophole for vexatious conduct. The June 28, 2002, amendment to the statute appears to close that loophole by subjecting any such applications to the requirement that the vexatious litigator obtain prior leave from the court of appeals. The Ohio Supreme Court has not to date addressed the constitutionality of this recent amendment.

    Ohio's vexatious litigator statute has been applied in contexts involving political subdivisions and their insurers. For example, the City of Middleburg Heights, a suburb of Cleveland, Ohio, was subjected to many lawsuits by a pro se plaintiff named Ivan Sawchyn. Mr. Sawchyn was also a perennial candidate (unsuccessful) for mayor and for the city council. In 1995, the Court of Appeals for Cuyahoga County Ohio affirmed an award of $10,000.00 in attorney's fees and costs on behalf of Middleburg Heights against Mr. Sawchyn under Ohio's frivolous conduct statute, R.C. 2323.51. Ivan Sawchyn v. City of Middleburg Heights, Eighth Appellate District No. 66687, 1995 Ohio App. LEXIS 4288 (September 28, 1995). The Court of Appeals' opinion referred to the repeated frivolous lawsuits Mr. Sawchyn had filed against Middleburg Heights, as well as the many other frivolous pro se lawsuits he had filed against other defendants. The court also observed, on the basis of Mr. Sawchyn's own testimony in the frivolous conduct evidentiary hearing, how he used his pro se litigation against the City as part of his political attempts to gain municipal office. Notwithstanding this decision, Mr. Sawchyn continued to file pro se actions against Middleburg Heights, its insurer, its attorneys, and members of the federal and Ohio judiciary, among others. See, for example, Sawchyn v. City of Middleburg Heights, Sixth Circuit Court of Appeals No. 98-4217, 1999 U.S. App. LEXIS 27413 (Oct. 22, 1999) (affirming, inter alia, a U.S. District Court requirement that Mr. Sawchyn obtain leave of court before filing further proceedings); Sawchyn v. Scottsdale Ins. Co., Sixth Circuit Court of Appeals No. 97-3046, 1997 U.S. App. LEXIS 34642 (Dec. 4, 1997). After Mr. Sawchyn filed additional actions against Middleburg Heights and its public officials in state court, the Middleburg Heights Director of Law filed an action to have Mr. Sawchyn declared a vexatious litigator. Although the Cuyahoga County Court of Common Pleas granted summary judgment in favor of Mr. Sawchyn on that request, the Court of Appeals reversed and held that Mr. Sawchyn was a vexatious litigator subject to the provisions of R.C. 2323.52. Hull v. Sawchyn, 145 Ohio App.3d 193, 762 N.E.2d 416 (2001).

    In Linda Wallace v. City of Rocky River, Eighth District App. No. 80182, 2002-Ohio-3901, 2002 Ohio App. LEXIS 3979 (Aug. 1, 2002), the Court of Appeals for Cuyahoga County, Ohio, affirmed a determination by the Cuyahoga County Court of Common Pleas that Linda Wallace was a vexatious litigator under R.C. 2323.52. As observed in the Court of Appeals' opinion, the City of Rocky River had filed a motion to declare Ms. Wallace a vexatious litigator on the basis that "she had filed no less than 58 lawsuits in the Cuyahoga County Court of Common Pleas since the late 1970's." The defendants in those lawsuits "ranged from local mayors, police officers, and prosecutors to social workers, judges, local hospitals and the Department of Children and Family Services."

    The enactment and application of Ohio's vexatious litigator statute has already had a beneficial effect in reducing the quantity of frivolous litigation against political subdivisions in Ohio. Such developments, in Ohio and in other jurisdictions, will enable public entities, along with their insurers and attorneys, to focus their attention on lawsuits that have at least some semblance of merit.