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Halting Abusive Lawyers

Victims of Fred Phelps' and others' abusive litigation have a variety of legal options for fighting back.

Fred Phelps, Sr. has been blessed with 13 children. But one man's blessing can be a whole city's curse. Unfortunately for the citizens and public officials of the city of Topeka, 11 of Fred Phelps, Sr.'s children followed in their father's footsteps by becoming attorneys.

Nine of these remain loyal to their father, working for Phelps Chartered, the family firm. Although Fred Phelps, Sr. has been barred from practicing law in Kansas for "using his position as a lawyer as a weapon," Kansas v. Phelps, 598 P.2d 180, 185 (Kan. 1979), some of his children carry on his campaign of abusive litigation (see A City Held Hostage).

But victims of the improper use of the courts can fight back. Unlike picketing, which benefits from strong First Amendment protections, use of the courts is subject to significant restrictions.

"The right of access to the courts is neither absolute nor unconditional ... and there is no constitutional right of access to the courts to prosecute an action that is frivolous or malicious."Triparti v. Beaman, 878 F.2d 351, 353 (10th Cir. 1989).

Fighting Back
Victims of abusive litigation have a variety of options. Rule 11 of the Federal Rules of Civil Procedure and similar state rules, for example, forbid frivolous claims and claims filed for improper purposes. Monetary sanctions, including reasonable attorney's fees incurred in defending against improper claims, are available for violations of these rules.

Defendants have successfully invoked Rule 11 against the Phelps family in the past. One court found that Phelps Chartered "willfully continued to advance groundless and patently frivolous litigation against [the] defendant" and that such conduct was "tantamount to bad faith."Glass v. Pfeffer, 849 F.2d 1261, 1265 (10th Cir. 1988).

Another described Fred Phelps, Jr.'s filing of a complaint as a "travesty" and his failure to voluntarily dismiss the case as "an even grosser injustice" before awarding the defendant attorney's fees. Surface v. Commerce Bank of Hutchinson, 1990 WL 129218 at *1 (D. Kan. 1990).

In addition to Rule 11, various federal and state statutes authorize the award of fees against attorneys who unreasonably and vexatiously use the courts to delay, harass, or increase the opposition's costs. See e.g. 28 U.S.C. § 1927.

Courts may also resort to their "inherent powers" to discipline those who engage in misconduct. These inherent powers are capable of reaching the "full range of litigation abuses" committed by a party or its counsel. Chambers v. NASCO, Inc., 501 U.S.32, 46 (1991).

Due to the breadth of their inherent powers, courts must exercise them with restraint. Nonetheless, courts may punish parties and attorneys who "act in bad faith, vexatiously, wantonly or for oppressive reasons." Id. at 45-46.

Two related torts, malicious prosecution and abuse of process, allow victims of frivolous lawsuits to turn the tables on the party who sued them. A party commits the tort of malicious prosecution when it files a "frivolous" case, one without legal justification. A party commits the tort of abuse of process when it sues with an improper motive, regardless of the legal merits of the claim.

For example, it is an abuse of process to commence a legally meritorious suit if one's goal is to extort the adversary. Victims of either malicious prosecution or abuse of process are entitled to money damages, including compensation for emotional distress.

There is another remedy that can stop those with a history of filing abusive claims before they get started. Courts can restrict them from filing further lawsuits altogether. Where a person has engaged in a longstanding pattern of abusive litigation, courts have the authority to place reasonable restrictions on their ability to file new cases. See Kansas v. Lynn, 975 P.2d 813 (Kan Ct. App. 1999); Howard v. Mail-Well Envelope Co., 150 F.3d 1227 (10th Cir. 1998).

To preserve the right of a litigant to bring legitimate claims, filing restrictions cannot forever shut the courthouse door. But the courts may require an individual with a history of filing meritless claims to demonstrate that any proposed new lawsuit is not frivolous before the complaint is filed. See Kansas v. Lynn, 975 P.2d 813 (Kan. Ct. App. 1999).

Filing restrictions may be the best way to stop the most egregious abuses of the courts. They certainly seem like the only way to stop the Phelps family's reign of tyranny by litigation in Topeka.