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A Federal District Judge's Clash with a Repeat Litigant: An Unusual Case with Larger Ramifications For How We Define Justice and Fairness


Thursday, Nov. 20, 2008

The case of Jarek Molski v. Evergreen Dynasty Corp. is not likely to make the history books, but it is emblematic of a longstanding and deep division in our attitudes regarding access to courts and our collective ideals for the role of the judicial system in our democracy.

Mr. Molski is a thorn in the side of the court system, as well as of a host of business establishments, mainly restaurants, that he has sued for violations of the Americans with Disabilities Act (ADA). Molski, who is wheelchair-bound, claims that he has suffered various physical or other injuries because, he says, the establishments failed to properly comply with ADA parking, ramping, counter-height, or bathroom-architecture requirements.

Over the last decade, Molski has filed 334 lawsuits in the federal courts. Most were settled; others were dismissed for failure to prosecute. And then Molski ran into Judge Edward Rafeedie. Judge Rafeedie, who recently passed away, was a no-nonsense trial judge in the Central District of California who prided himself on having a speedy docket. While the case was idiosyncratic, the different values at stake in it have larger implications for our legal system and the values it serves.

The Clash Between Molski and Judge Rafeedie

Judge Rafeedie was assigned to preside over a case Molski had brought against the Mandarin Touch Restaurant, for injuries suffered from an allegedly misconfigured bathroom. It turned out that Molski had brought thirteen lawsuits alleging similar violations and similar injuries based on restaurant and winery experiences all falling within a single five-day period. Indeed, three of the lawsuits alleged similar injuries based on similar violations of the ADA, all for events taking place on the same day at three different businesses.

In light of this pattern, Rafeedie - to put it mildly - simply did not believe Molski's allegations of harm. In the judge's view, Molski (and the lawyer he repeatedly used) were engaged in a scheme of extortion by litigation - trumping up claims based on trivial violations of the law in order to obtain quick nuisance settlements.

Refusing to stand for this, Judge Rafeedie invoked a local rule in the Central District of California that authorizes a single district judge to direct the court's clerk not to accept further filings from vexatious litigants absent the payment of filing fees and written authorization from a judge or magistrate, who may demand an evidentiary showing before allowing the filing to go forward. On this basis, Rafeedie tried to close the courthouse door on Molski, at least in the Central District of California.

Why Judge Rafeedie's Decision to Bar Molski From Court is More Troubling than It May At First Seem

At first blush, it is hard to take offense at Judge Rafeedie's decision, but the issue is a lot stickier than it might appear on the surface. To begin, no one seems to dispute - and, indeed, Judge Rafeedie himself conceded - that most of the business establishments Molski sued were, in fact, violating the ADA. Thus, while Rafeedie viewed Molski as basically a scam artist, others might view him, instead, as serving the salutary purpose of "ADA gadfly," albeit while obtaining a profit for himself.

Judge Rafeedie's real beef with Molski had to do with Molski's alleged injuries and the whole idea that a person could suffer basically the same injury to the same parts of the body over and over again within a very short period of time. To Rafeedie, this simply was not credible.

But Judge Rafeedie reached this conclusion based on common sense and gut instinct, without conducting an evidentiary hearing or listening to a single witness or looking at any evidence. At the one hearing Rafeedie held, he simply lambasted Molski's lawyer. Molski himself was not even there.

And, thus, Judge Rafeedie's actions raised difficult questions about when a single district court judge may issue an order - binding on all the other judges in the district - that declares an individual to be vexatious, and thereby imposes severe restrictions to this person's ability to file future lawsuits.

The Ninth Circuit's Divided Response to Judge Rafeedie's Order

At the appellate court level, Judge Rafeedie's order set off a bit of a firestorm. Initially, three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed Rafeedie's ruling. But nine of the Ninth Circuit's judges voted to grant rehearing en banc (that is, rehearing by a larger panel of the Court as a whole). En banc review was denied, as the votes in favor fell short of the necessary majority of the court's active judges. However, the nine who voted in favor published a fairly scathing dissent from the denial. Moreover, Chief Judge Alex Kozinski wrote a second dissent from the denial, joined by three colleagues.

In the dissenters' view, Judge Rafeedie (and the appellate panel opinion affirming him) had trampled on the fundamental First Amendment right of every person to petition the government by filing suit in court. From their perspective, any judge seeking to restrict access to court bore a heavy burden to show that ordinary measures, such as sanctions in individual cases, would be ineffective to deter genuinely vexatious conduct. And in their view, Rafeedie was very far from meeting such a burden.

Indeed, the dissenters considered it outrageous for Rafeedie to issue a pre-filing order against Molski in the absence of any showing that his various lawsuits were substantively frivolous. Nor did the dissenters believe that Molski's lawsuits could be shown to be frivolous, for two reasons. First, as noted above, the businesses he sued appear to have, indeed, been in violation of the ADA. Second, the ADA itself does not require a showing of past injury, which was the more problematic part of Molski's various filings. The dissenters also objected to the idea of labeling Molski a liar in the absence of any evidentiary hearing at all.

A Similar Clash Over Frequent Filers That Divided the U.S. Supreme Court

In reading about Molski's case, in which review by the U.S. Supreme Court was just denied, I was reminded of a similar fight that erupted among the Justices back in the late 1980s. Back then, the Supreme Court's conservatives, led by Chief Justice Rehnquist, wanted to do away with the dozen or so seemingly unhinged souls who would flood the court every year with frivolous cert petitions. These "frequent filers," as they were known, would take advantage of the Court's open-door policy of waiving filing fees for anyone claiming indigence. The conservatives had no patience for these barnacles on the system, and they moved successfully to amend the rules to limit the number of unsuccessful petitions any individual could file without paying filing fees.

This was, of course, a small matter amid the huge issues that the Court was called upon to decide. But it stirred strong emotions in much the way Molski's case has riled many on the Ninth Circuit.

On one side of the fault line in our legal culture are those with an almost quaint and romantic commitment to a court system where indulging (up to a high threshold) the Molskis of the world is the price we must pay for a truly egalitarian court system that is open equally to all, including the misguided, the pathetic and the deranged. On the other side are those who see nothing noble in encouraging nuisance litigation and bristle at the idea of a large-hearted judiciary. As this side sees it, tolerating abusive litigants only encourages the misguided idea, cherished by some, of the courts as a wide-open venue for righting societal wrongs, rather than a venue for addressing injuries recognized by law with the limited remedies the law affords.

No doubt, Molski was oblivious to the philosophical maelstrom into which he was sailing. But it was decisive in his case and it will play a large, if subliminal role, in many others' cases in the years ahead.

Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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