THE BLOG

Overcoming the Stigma of 'Vexatious Litigator': An Impossible Task?

08/04/2014 09:43 pm ET | Updated Oct 04, 2014

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Two highly viewed YouTube videos from recent days stand in sharp contrast to each other, yet each video symbolizes an opposite end of the same continuum. Let's call that continuum "fairness."

One of the videos presents America's aspiration to a fundamental ideal of courtroom fairness, while the other captures a raw moment of egregious injustice and police-induced death.

The first video is a parade of smiling, lip-pierced faces, expressions of deep thought, optimistic color, dramatic shadows, neoclassical architecture and of course the stars and stripes.

The other is a stark cellphone video that captures not only the shaking voice of the young man holding the camera but the unjustifiable death, probably as a result of police choking, of a man whose only crime may have been selling individual cigarettes.

The dead man is black. "I can't breathe" were his last words. The officers were not black.

Alfred Banks' American experience lies somewhere between the two ends of that spectrum. Banks is a 62-year-old professional photographer who lives in San Diego. He is a small-business owner who earned his citizenship after emigrating to the U.S. from Nigeria in 1975.

Banks took his oath of allegiance to the United States of America and believed in the fabled American dream and its promise of a fair shake.

Among governmental institutions, it is the courts where equality and fairness are most expected.

Anyone who has ever done jury duty in a civil case or seen a courtroom drama unfold on television knows that litigants, defendants and even plaintiffs are generally protected from having jurors know about their past court cases.

But Banks and the handful of others who carry the mark of the so-called "vexatious litigator" have the deck stacked against them. They are effectively locked out of America's legal system.

"Basically, you're dead in the water," said San Diego attorney Steve Arnold. "There are many attorneys in the office building where I work. I could go to each and every one of them and ask them to represent someone with the 'vexatious litigator' status, and I guarantee you not a single one would even answer. They would simply laugh. OK, maybe they might say, 'Yeah, right.'"

Banks has to first get permission from a chief judge to file a lawsuit before he can even go to the court clerk's window to file. His inclination toward self-sufficiency as manifested in his decision to represent himself in court ultimately put him on a collision course with an insidious kind of discrimination -- and perhaps even some latent racism along the way.

There is a societal bias against "in propia personae" or "pro se" litigants in America. "Pro se" is the Latin term for representing oneself in court. Maybe you've heard the old saying "He who represents himself has a fool for a client." In fact, we might even say that, in court, all pro se litigants must overcome stereotypes ranging from eccentricity to questionable sanity.

But even if Banks were a little eccentric, when did it become OK for judges to discriminate against people they decide are not "like everyone else"?

Apparently it became OK to do so in the early 1960s, when California got its first "vexatious litigator" law. Prior to that, for nearly 200 years in America, anyone could file suit anytime they felt they had been wronged.

We now live in an unbrave new world where there exists for judges the option of effectively banning citizens from using the courts if they feel imposed upon by a self-represented litigant's precocious use the law.

It is hardly difficult to imagine a judge's inner narrative when a pro se plaintiff catches the judge in a procedural error. It may go something like this: "How dare this idiot come in here and use the law that we attorneys and judges have spent our entire adult lives studying and working at understanding. I've worked hard to get to this bench. Who does he think he is? I'll show this smart-ass!"

To be fair, the ability to put aside personal biases is virtually in the DNA of every self-respecting judge in America. But judges are only human. They can be perturbed when young, newly minted lawyers outwit them in court. Their judgment is thrown off sometimes when that happens. That is often why appeals courts send cases back to such judges for reconsideration.

Perhaps subconscious vulnerabilities are as significant as technical errors in terms of why we need appeals courts to begin with.

It's my belief that, at least in the case of Banks, one judge in particular, Judge Anthony Battaglia of the U.S. District Court for the Southern District of California, may have fallen prey to ego when pro se plaintiff Banks unwittingly hit a nerve just under the judge's proverbial skin.

According to Banks, Judge Battaglia noticed on a court docket that judges who had gone before him had erroneously ignored a Ninth Circuit Court of Appeals order to vacate Banks' designation as a vexatious litigator. Banks believes Judge Battaglia relied on that status as a basis for, as the judge said in open court, trying to "get rid of pro se's case as fast as we can."

Banks contends that since he has fallen under "vexatious litigator" status, judges and court clerks take every opportunity to hold him to the precise letter of the law and every procedural detail of the judicial bureaucratic process.

At the same time, Banks points to numerous examples of laxness and the benefit of the doubt that his opponents in court are afforded.

As if that weren't enough, on top of every docket seen by every judge and opposing attorney in all unrelated cases that he may now or may ever be involved in is a list of 16 previous lawsuits, going back to 1990, to which Banks has been a party. How can he get a fair shake when his entire legal history is laid bare even for opposing attorneys to see?

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You may think 16 lawsuits is a lot. But as we've already established, unrelated cases have no place in unrelated cases.

However, if repetition is a transgression that the courts should punish with the "vexatious litigator" status in order to avoid bogging the system down, then consider how many unnecessary filings, labor hours and judicial resources were consumed by opposing attorney Susan L. Germaise when, in District Court, she included Banks' complete Social Security number no fewer than three times, as well as other personal information.

Each time she did that, it cost Banks money to file motions to strike his full Social Security number from the record. By definition, repeating the same illegal filing three time over must be frivolous.

Astonishingly, Germaise did it again recently in a filing against Banks in the Ninth Circuit. Yet she remains licensed to argue cases freely, not as a vexatious litigator, even as Banks carries the weight of that very brand.

Repeatedly including a litigant's personal information may seem like an important yet, in the grand scheme of things, small error. However, taken in light of the nature of Banks' complaint -- the substance of the lawsuit itself, which is a credit-reporting error and apparent identity theft -- it becomes more severe. Besides, including the entire Social Security number is a violation of federal law.

Banks has formally filed a request to have Germaise sanctioned with a fine and disbarment for two years. The court has not yet ruled on his motion.

Meanwhile, even though he is a U.S. citizen, Banks has his hands tied as a vexatious litigator in some of the most important courts in the United States, including the State of California Superior Court, the State Court of Appeals, the U.S. District Court and the U.S. Bankruptcy Court.

Banks believes racism has every bit as much to do with why he has been cut out of his former right to be treated like anyone else in courts of law as does his pro se status. He is black. I am not. I would never dare to impose my Caucasian-centric notions of racism or my perception of an absence of racism over a black man's real-life experience at the hands of powerful judges. Would you?

Disclosure: At one point I was a paid consultant for Banks, but I no longer am. I wrote this blog post because I believe that it is unfair for courts to list any person's previous cases in the docket of a new, unrelated legal case.