Zorn v. Smith

2011 VT 10, 19 A.3d 112, 189 Vt. 219, 2011 Vt. LEXIS 10

• Court: Supreme Court of Vermont
• Decided: February 4, 2011
• Docket: 2009-035
• Status: Published

Opinions

Burgess, J.

¶ 1. Plaintiff Robert E. Zorn appeals pro se from an order prohibiting him from filing any additional documents with the Rutland Superior Court clerk except through a licensed attorney. We affirm the trial court’s order except in two respects. First, the order is clarified to limit its pleading restriction to this particular case and, second, the order is modified to permit Zorn to demonstrate financial inability, if any, to comply with the order.

¶2. This case began in September 2000, when Zorn, then represented by counsel, sued defendant Smith for legal malpractice. It was alleged that he paid Smith a retainer and Smith agreed to file a complaint on Zorn’s behalf in a defective-automobile case. Smith told Zorn that the complaint had been filed when in fact it had not, and due to Smith’s inaction, the statute of limitations ran on the claim. Zorn moved for summary judgment on his malpractice claim, which Smith did not oppose. The court thus granted summary judgment to Zorn and in an August 2001 order it awarded him $26,108.00, plus interest.

¶ 3. In January 2002, Zorn entered a pro se notice of appearance and filed a motion for trustee process, seeking to collect the judgment from Smith. See V.R.C.P. 4.2. Smith did not appear at a hearing scheduled on the motion, but agreed in late January to respond to post-judgment interrogatories. The court scheduled an April 2002 hearing on Zorn’s motion for financial disclosure. Smith again failed to appear, and a warrant issued for his arrest. Served with the warrant, Smith personally appeared before the court to state that he had not received notice of the hearing and had not received any interrogatories from Zorn. The court vacated the warrant. At a subsequent hearing on April 23, 2002, the parties agreed that Smith would submit a payment plan or respond to the financial discovery requests within thirty days. There is no evidence that Smith honored this agreement.

¶ 4. No action appears in the case over the next four years until October 2006, when Zorn requested and ultimately obtained a writ of execution on the judgment. The writ was served on Smith in January 2007, and returned with a payment of $50, leaving an outstanding balance, including interest, of $43,448.22. In September 2007, Zorn filed a motion for criminal contempt, alleging that Smith had failed to make any payments toward the debt or disclose financial documents as ordered. The court denied the motion, explaining that only civil contempt was available to Zorn under the rules.

¶ 5. Zorn filed another motion for contempt in March 2008, as well as a motion for renewal of judgment and an “ancillary amended complaint” naming the trial judge as a defendant. In May 2008, Zorn filed a “motion for summary judgment.” The motions were largely incomprehensible. The motion for contempt, for example, stated that: “since the boycotting of Smith the defendant is under larceny by extortion Model Penal Code 223.4 as well as the court’s failure to find that Smith was in his official capacity in part at the time of the fraud.” The court noted, correctly, that there was no legal basis for amending complaints and moving for summary judgment six to seven years after final judgment had been entered in the case. The filings are replete with claims that Smith engaged in conspiracy, racketeering, and organized crime, and that the trial judge was complicit in such acts.

¶ 6. Treating the “amended complaint” as a motion to disqualify the trial judge, she referred the matter to the administrative judge. See V.R.C.P. 40(e). Disqualification was denied in September 2008. In the meantime, in June and September 2008, Zorn filed more papers with the superior court about complaints made to the FBI and IRS over the court’s denial of his motions, claiming the court’s actions were unconstitutional, conspiratorial, and treasonous. What the court was expected to do with these filings was not clear, except that Zorn sought “revestment” of his judgment order. Also in September 2008, Zorn filed another motion for summary judgment “pursuant to new facts,” but reflecting old history and requesting no relief actionable under law. The court found none of the filings warranted by the rules.

¶ 7. Shortly thereafter, Zorn filed a “motion in opposition” to the administrative judge’s order and a motion for “entry by default for summary judgment.” These requests were denied. In December 2008, Zorn filed a document entitled “Motion to compel summary judgment by violation of the State of Vermont and or officials as judges to violate higher Court orders and Supreme Court orders.” Zorn also sought an interlocutory appeal, which was denied.

¶ 8. In January 2009, the court issued two orders. One denied Zorn’s contempt motion for discovery violations for lack of any underlying orders or requests for discovery. The second denied Zorn’s renewal-of-judgment motion for lack of a new and necessary complaint on the debt, but outlined the method by which Zorn could refresh his judgment against Smith.

¶ 9. In a separate order, the court directed Mr. Zorn to show cause, in five pages or less, why he should not be- sanctioned under Vermont Rule of Civil Procedure 11(c) for filing five motions between March 2008 and September 2008 lacking legal and evidentiary support. The procedural and substantive deficiencies in these filings were spelled out. Instead of addressing the court’s order, Zorn submitted another lengthy filing expressing frustration with the court’s failure to enforce the arrest warrant vacated seven years earlier, and reiterating his allegations of “extortion,” “racketeering,” and a “fully orchestrated conspiracy” between Smith and the judges.

¶ 10. In its subsequent January 2009 order, the court sanctioned Zorn under Rule 11 for violating the rules’ pleading and procedural requirements. Continuous dealing with Zorn’s repetitive and unwarranted motions, the court reasoned, would undermine its allocation of resources to promote the interest of justice for all litigants. The court concluded that the conduct described in its earlier order violated Rule 11(b)(2) and (b)(3) and that sanctions should be imposed.

¶ 11. Turning to an appropriate sanction, the court recognized that its order must be “limited to what is sufficient to deter repetition of such conduct.” V.R.C.P. 11(c)(2). It expressly sought to deter future repetitive and unwarranted filings, while allowing Zorn court access. Based on these considerations, the court directed that the Rutland Superior Court clerk “refuse to accept for filing any future pleading, petition, complaint, motion, letter, or other document from Mr. Zorn unless signed by an attorney licensed to practice in the State of Vermont in accordance with Rule 11.” The court explained that its sanction would help ensure prospective compliance with the requirements of Rule 11(b) and deter repetitive filings, while permitting access to the court. This appeal followed.

¶ 12. Zorn’s submissions on appeal largely mirror his filings below. There are extensive allegations of misconduct by the judges who have dealt with this and his other cases. The briefing is generally difficult to follow, as in the following statement of the case:

The Rutland County Superior Judge Teachout, has a continuous prejudice of against plaintiff appellant, uncontested by her outrages, acts of difiance [sic] of the rights to join the partys [sic], herself, and the judges, in which she states the plaintiff appellant is frustrated by her actions, which is total destruction of the due process rights of the contract rights of mandate rule ....

Nevertheless, we infer a challenge to the court’s imposition of its sanction under Rule 11(c), and address that issue. See Beyel v. Degan, 142 Vt. 617, 619, 458 A.2d 1137, 1138 (1983) (mindful of appellant’s pro se status, the Court reluctantly addresses issues apparently raised on appeal, notwithstanding appellant’s failure to comply with appellate rules on adequate briefing).

¶ 13. We affirm the trial court’s decision as fully within its discretion, see State v. Delaney, 157 Vt. 247, 256, 598 A.2d 138, 143 (1991) (Supreme Court reviews decision to impose sanctions under Rule 11 for abuse of discretion), except in two particulars. First, absent finding a broader pattern of pleading misconduct beyond this case, the sanction needs to be limited to this case and matters properly arising within this case only. Second, the sanetion as issued would preclude Zorn from even a cogent claim of indigence, so it must be modified to allow Zorn the opportunity to assert and demonstrate, pro se, that he is without the resources to comply with the court’s order.

¶ 14. Otherwise, the trial court’s process was authorized. Under Rule 11, any document submitted to the court is certified to present allegations supported by evidence and legal contentions warranted by law. V.R.C.P. 11(b)(2), (3). Upon belief that these requirements have been violated, the court may issue an order describing the specific conduct in question and direct a party to show cause why no violation should be found. V.R.C.P. 11(c)(1)(B). After considering the party’s response, the court may impose a sanction that is “limited to what is sufficient to deter repetition of such conduct.” V.R.C.P. 11(c)(2). The superior court followed this procedure.

¶ 15. Sanction by the court was warranted under the rule. The court identified five filings that plainly violated Rule 11. The filings were repetitive and unsupported by fact or law. These findings are not discernibly challenged on appeal. In response to the show cause order, Zorn relied on no law or rule to justify his submissions, but instead offered more of the same mere allegations of conspiracy between defendant and virtually every member of the judiciary coming into contact with this or other cases involving him. Presented with just another violation of the sort cited in its show cause order, the court acted within its authority to find that these repeated, unsupported, and largely indecipherable filings earned a sanction under Rule 11(c).

¶ 16. The question of how best to cure such misbehavior posed a challenge. As the court recognized, this case implicates the litigant’s access to the courts as well as the judiciary’s interest in avoiding diversion of its resources to process pointless papers at the expense of time and justice due other litigants. The right of access to justice is fundamental in our state constitution. See Vt. Const. ch. I, art. 4 (stating that “[ejvery person within this state ought to find a certain remedy [for injury], by having recourse to the laws” and that “every person ought to obtain right and justice, freely, and without being obliged to purchase it”); Jacobsen v. Garzo, 149 Vt. 205, 208, 542 A.2d 265, 267 (1988). This right is not unlimited, however, and litigants are not “free to abuse the courts by inundating them with frivolous suits which burden the administration of the courts for no useful purpose.” In re Lawsuits of Carter, 510 S.E.2d 91, 93 (Ga. Ct. App. 1998); see also Martin v. District of Columbia Court of Appeals, 506 U.S. 1, 3 (1992) (per curiam) (imposing sanction where petitioner’s filings for certiorari review had a deleterious effect on the Court’s fair allocation of judicial resources).

¶ 17. Limits and burdens on judicial resources are not academic. Our courts are closed one day per month due to extreme fiscal pressure — only recently reduced from one and one-half days’ closure. Rule 11 affords the trial court the necessary means to avoid being held hostage by paperwork from vexatious litigants. See, e.g., In re McDonald, 489 U.S. 180, 184 (1989) (recognizing that courts have responsibility to ensure that their “resources are allocated in a way that promotes the interests of justice”). No litigant enjoys a constitutional right to delay justice to others and occupy the court’s time with unfounded filings. Others litigating in good faith are entitled to justice in the courts “promptly and without delay.” Vt. Const. ch. I, art. 4; see, e.g., Peterson v. State, 817 So. 2d 838, 840 (Fla. 2002) (explaining that to further right of every citizen to have access to the courts, courts must sometimes “limit the filings of individuals who have deluged the Clerk’s office with incomprehensible correspondence, and filed multiple frivolous petitions” (quotation omitted)).

¶ 18. The sanction imposed here was supported and reasonable under the circumstances, when limited to this case and provided that Zorn has the opportunity to prove a lack of means necessary to comply with the court’s order. Essentially, the superior court enjoined Zorn from appearing pro se. The Second Circuit offers a useful summary of factors employed by courts in judging whether a prefiling injunction against a litigant is warranted:

(1) the litigant’s history of litigation and in particular whether it entailed vexatious, harassing or duplicative lawsuits; (2) the litigant’s motive in pursuing the litigation, e.g., does the litigant have an objective good faith expectation of prevailing?; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and (5) whether other sanctions would be adequate to protect the courts and other parties.

Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986). The ultimate question is “whether a litigant who has a history of vexatious litigation is likely to continue to abuse the judicial process and harass other parties.” Id. The Safir analysis strikes an appropriate balance between a litigant’s right of access to the courts and the court’s need to protect itself as an institution and other parties from the waste of judicial resources.

¶ 19. Applying the Safir factors, we conclude the court acted within its discretion in restricting, while not barring, Zorn from filing additional materials in this case. The recent history of this litigation reflects a pattern of chronic vexatious, baseless, and frivolous filings. The superior court’s conclusions that Zorn’s claims are fantastic and without any good faith basis are supported by the content of the filings and is not challenged in any substantive manner by Zorn. The court’s conclusion that his filings present an undue burden on the court is evident insofar that limited judicial resources devoted to Zorn’s filings are wasted and distract from the administration of justice due others. Similarly, this conclusion is not challenged in any particular on appeal. Limits in this case present no “diminution of our support for the principle of free access to the courts,” but are properly viewed as furthering the right of access by permitting courts “to devote our finite resources to the consideration of legitimate claims of persons who have not abused the process.” Attwood v. Singletary, 661 So. 2d 1216, 1217 (Fla. 1995); see also De Long v. Hennessey, 912 F.2d 1144, 1148 (9th Cir. 1990) (“Flagrant abuse of the judicial process cannot be tolerated because it enables one person to preempt the use of judicial time that properly could be used to consider the meritorious claims of other litigants.”).

¶ 20. The reasonable expectation of the trial court, given Zorn’s habit, was that Zorn would continue to file unreasonable and wasteful motions, demands, and papers. Baseless submissions were, at this point, serial. Zorn ignored instructions offered by the trial court on how to pursue collection on his judgment according to law. When told what was wrong with his previous submissions, and in the face of an order to show cause why he should not be sanctioned for repeatedly filing papers in violation of the rules, Zorn violated the rules again.

¶21. Zorn’s persistent disregard may stem from frustration with the court in collecting what he is owed. Even so, whatever impediments Zorn has to abiding by the rules do not require that the judiciary and the public simply accommodate his violations. After demonstrating his commitment to violating Rule 11, Zorn earned a Rule 11 sanction. See Urban v. United Nations, 768 F.2d 1497, 1499 (D.C. Cir. 1985) (per curiam) (finding that litigant’s numerous allegations lacked even an arguable basis in law and fact and justified sanctions); Miles v. Angelone, 488 F. Supp. 2d 491, 496 (E.D. Va. 2007) (mem.) (upholding sanctions where petitioner continued to reassert claims that the state committed fraud, his claims had been rejected repeatedly, and the court could determine no “good-faith basis for his continuing to pursue these matters”).

¶ 22. Zorn is not assisted by counsel, and although pro se litigants receive some leeway from the courts, they are still “bound by the ordinary rules of civil procedure.” Vahlteich v. Knott, 139 Vt. 588, 591, 433 A.2d 287, 288 (1981). These include the obligations of Rule 11 and sanctions for noncompliance. See Pandozy v. Segan, 518 F. Supp. 2d 550, 558 (S.D.N.Y. 2007) (stating that the “special solicitude that a pro se plaintiff must face does not extend to the willful, obstinate refusal to play by the basic rules of the system upon whose very power the plaintiff is calling to vindicate his rights.” (quotation omitted)). Zorn’s pro se status is but one factor to consider in deciding whether and how to sanction a litigant; it is no passport to waste the court’s time indefinitely.

¶ 23. Mindful that “broad filing restrictions against pro se plaintiffs should be approached with particular caution,” Cok v. Family Court of Rhode Island, 985 F.2d 32, 35 (1st Cir. 1993) (quotation omitted), we are satisfied, except in the two respects previously noted and discussed further below, that the superior court’s order here is measured and the least restrictive answer to the reasonably anticipated ongoing violation of the rules by Zorn if left to his own devices. See De Long, 912 F.2d at 1149 (stating that “orders restricting a person’s access to the courts must be based on adequate justification supported in the record and narrowly tailored to address the abuse perceived”); Cok v. Read, 770 A.2d 441, 444 (R.I. 2001) (recognizing that to preserve resources, courts may place “reasonable limits on the filings of litigants who abuse the judicial system” but that “such a sanction should be drawn narrowly” so as not to “impermissibly infringe upon a litigator’s right of access to the courts” (quotation omitted)). Zorn’s access to justice is preserved, while the court’s resources are not occupied by deciphering papers to no useful purpose. Zorn proffers no less restrictive and effective solution.

¶24. The dissent contends that lesser sanctions, like fines or preapproval of Zorn’s motions, should be exhausted before resorting to the trial court’s bar of further filings without a lawyer. Less restrictive measures might be appropriate in a different case, but the record of waste and recalcitrance here supports the conclusion that lesser sanctions would likely be futile. Moreover, monetary penalties or judicial previews would mean more, rather than less, judicial investment in wasteful filings. Fines would necessitate hearings on ability to pay and willfulness. Preapproval requires additional court time devoted to evaluating, again, the substance of filings. Neither of these options would advance the litigation, and, given Zorn’s pattern of unsubstantiated filings, both would result in further waste. The lesser sanction of preapproval was imposed on Zorn in another case, as pointed out by the dissent, post, ¶ 30, but to no lasting effect in this matter. Choosing, instead, what it perceived to be a more effective approach was no abuse of discretion by the trial court.

¶ 25. Nor, as characterized by the dissent, is the imposition of a lawyer an abdication of the court’s screening function — especially in this case, where the court repeatedly screened Zorn’s pro se submissions and determined them baseless. Courts rely daily on attorneys to file pleadings and papers that are not entirely wasteful of courts’ time. Attorneys are obligated not only under Rule 11, but by their licensure as well, to assure that their submissions meet minimum standards of substance. See V.R.Pr.C. 3.1 (prohibiting unfounded and frivolous claims or defenses); id. 8.4(d) (defining professional misconduct to include “conduct that is prejudicial to the administration of justice”). Given Zorn’s continuing violations, it was not unreasonable for the court to interpose a lawyer’s certification between Zorn and the court’s mail slot.

¶ 26. As previously noted, however, applying the sanction to “any pleading, complaint, motion, letter or other document” in Rutland Superior Court as currently set forth in the order is overbroad. There are no findings below of similar abuses by Zorn in other litigation. On this record, it is not evident that his frustration in this case is, or would be, so expressed in others. Accordingly, the sanction is revised to apply only to this case and any derivatives raising the same claims. In other words, only matters stemming from the original Zorn v. S. Scott Smith litigation, which were raised or could have been raised in the past, are subject to this sanction.

¶27. Should Zorn’s violation of the rules become evident in other cases, the superior court can extend its sanction as appropriate.

¶ 28. The sanction also requires revision to permit Zorn, pro se, to assert and prove that he is without the means to retain an attorney as necessary to comply with the order. If indigent or without viable resources, the sanction as written would deny Zorn access to justice. Zorn is in the best position to know and marshal the evidence of his means and efforts to secure legal assistance. It is left to Zorn to move for reconsideration on those grounds, should he be inclined to do so.

The trial court’s decision is affirmed, as modified to explicitly limit its application to this case and to allow Zorn the opportunity to move for reconsideration due to inability to afford counsel.