Robert E. Zorn v. S. Scott Smith
No. 09-035
Supreme Court of Vermont
February 4, 2011
2011 VT 10 | 19 A.3d 112
Present: Dooley, Johnson and Burgess, JJ., and Crawford, Supr. J. and Cook, D.J. (Ret.), Specially Assigned
right to confront and impeach witnesses, always a linchpin of our criminal process, is most important when the prosecution‘s case, as here, essentially depends upon the credibility of a single witness. Because the error cannot be considered harmless beyond a reasonable doubt and is of constitutional dimension, the conviction must be reversed and the case remanded for new trial.
¶ 14. Having disposed of the appeal on confrontation grounds, we need not resolve defendant‘s other claims of error.
Reversed and remanded.
S. Scott Smith, Pro Se, Rutland, Defendant-Appellee.
¶ 1. Burgess, J. 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
¶ 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
¶ 6. Treating the “amended complaint” as a motion to disqualify the trial judge, she referred the matter to the administrative judge. See
¶ 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 lаck 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
¶ 10. In its subsequent January 2009 order, the cоurt 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.”
¶ 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 abusе 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 sanc- tion 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.
¶ 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
¶ 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, е.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.”
¶ 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
¶ 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, 483 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 thе 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,
¶ 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, agаin, 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
¶ 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. Acсordingly, 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.
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.
¶ 29. Dooley, J., dissenting. No lawyer in the State of Vermont has the obligation to ensure that this plaintiff, or any other person, obtains access to the courts for purposes of presenting a meritorious or arguably meritorious case. Lawyers are private actors who extend, or refuse to extend, legal services based on many considerations, including economic reward and ability to get along with the client. Even lаwyers in publicly-funded agencies created to extend legal services to the indigent have the ability to refuse to accept prospective clients for reasons not based on the merits of the client‘s case. The sanction in this case, even as diluted by the majority, fundamentally transfers the responsibility of the Vermont Judiciary to provide “right and justice” to “every person” to private actors who do not have to honor the constitutional mandate and against whom plaintiff has no remedy if they fail to assist plaintiff‘s access to the courts. See
¶ 30. The majority upholds the restrictive injunction because “the superior court‘s order here is measured and the least restrictive answer to the reasonably anticipated ongoing violation of the rules by [plaintiff] if left to his own devices.” Ante, ¶ 23 (emphasis added). In fact, the injunction issued here is the most restrictive sanction possible exactly because it limits plaintiff‘s access to the courts with no judicial review. In facing what it deemed similar circumstances involving litigation by this plaintiff, the United States District Court for the District of Vermont imposed a less restrictive sаnction of requiring judicial approval of plaintiff‘s filings before they are accepted. See Zorn v. Brown, File No. 1:05-CV-297 (D. Vt. Nov. 30, 2005) (doc. 50). Exactly because that sanction involves court review of plaintiff‘s filings to ensure they are not frivolous or otherwise unmeritorious, it is significantly less restrictive than the one imposed in this case. The Eleventh Circuit rejected the sanction of requiring lawyer representation as a prerequisite to future filings because it unduly burdened litigants’ access to the courts.1 See
¶ 31. While the foregoing paragraphs represent the fundamental reason for my disagreement with the majority decision, it is not the only reason. I agree that plaintiff‘s actions warrant a sanction for violation of Rule 11. I also agree that under the Safir factors the case has reached the point where a restrictive injunction may be necessary. See Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986). In my judgment, however, sanctions should occur earlier and escalate to a restrictive injunction only if lesser sanctions fail. I think this point is particularly appropriate in this very unusual case.
¶ 32. In stating my disagreement, I start with the fundamental principles that have to govern our actions.
¶ 33. Because it presents circumstances rarely, if ever, present in cases involving sanctions for frivolous filings, this is a very unusual case in three ways. First, it started
¶ 34. Second, plaintiff has been a frequent, and often successful, pro se litigant in the Vermont courts. Plaintiff here instigated fourteen other cases, filed during the period from July 1989 through July 2005.2 In all but one of these cases, plaintiff appeared pro se. In eight of the fourteen cases, he won a favorable judgment, usually for a relatively small monetary amount. He prevailed in one of two cases brought as small claims.
¶ 35. Third, plaintiff has not appeared in forma pauperis in this or any of the other cases. He has paid considerable money in filing fees over the years and continues to pay those fees. Thus, there is every indication that he is capable of paying a monetary sanction, but that form of sanction was never imposed upon him.
¶ 36. In a fourth way, the case is not unusual. Plaintiff‘s filings have become more and more incoherent and erratic in recent years. This is not the only case in which such behavior has occurred. As a consequence, the same trial judge issued a similar order against plaintiff in аnother case. Zorn v. Ryan, No. 327-7-05 Wrcv (Vt. Super. Ct. Oct. 6, 2008). In a nonprecedential order, a three-justice panel of this Court upheld the order, in part because plaintiff did not explicitly challenge it. Zorn v. Ryan, No. 2008-445 (Vt. April 15, 2009) (unpub. mem.), available at http://www.vermontjudiciary.org/d-upeo/eo08-445.pdf.
¶ 37. Finally, I think we also have to acknowledge a fifth factor because it is obvious although unstated by the trial court or by the majority. Whenever someone has tried to help plaintiff, that person has ended up as the latest defendant in plaintiff‘s latest amended complaint. For example, Superior Judge Harold Eaton, when reviewing a recusal motion against a trial judge in this case, went out of his way to explain exactly what plaintiff should do to enforce his judgment. Plaintiff never acted on the advice but added Judge Eaton to the list of alleged conspirators against plaintiff. In these circumstances, no lawyer is likely to step forward to represent plaintiff.3 The order the majority
¶ 38. This point puts ¶ 24 of the majority decision in perspective. In essence, the majority is saying that no alternative sanction is appropriate because the alternatives do not make plaintiff go away, never to be seen (at least by the judge) again. Thus, the court says a filing preapproval requirement is inappropriate because it “requires additional court time devoted to evaluating, again, the substance of filings.” Ante, ¶ 24. Under this philosophy the most restrictive possible sanction becomes the least restrictive possible sanction because the sanction must ensure that the trial judge never has to see the pro se litigant again and has no responsibility for whether the litigant has access to justice for a meritorious claim. In my judgment, this is a fundamental abandonment of judicial responsibility that cannot be squared with plaintiff‘s constitutional right of access to the courts in
¶ 39. The majority claims that the sanction is not unduly restrictive because courts “rely daily on attorneys to file pleadings and papers that are not entirely wasteful of courts’ time.” Ante, ¶ 25. The truth of this statement does little to alleviate my concerns. While lawyers are certainly obligated to еnsure that any filing they make is not frivolous, there is no reverse obligation. That is, lawyers are not required to file everything that is nonfrivolous. The fact remains that plaintiff may have a legitimate complaint, but be unable to find an attorney to represent his interests, and therefore his access to the courts will be denied.
¶ 40. In this case, the superior court did not act when plaintiff started to commence frivolous filings and finally acted to employ the most restrictive sanction possible with no consideration of a less restrictive sanction. I recognize that these five considerations make this a hard case, perhaps the textbook case on the pitfalls of dealing with pro se litigants. But several other options were available to the court, particularly if the court had acted earlier. The en banc decision in Procup contains a summary description of the types of sanctions that have been employed by courts in circumstances comparable to those present here.4 See Procup, 792 F.2d at 1072-73.
¶ 41. As an alternative, the court could have imposed a leave-to-file requirement on plaintiff. Procup, 792 F.2d at 1073 (listing as a sanction option having the court review pleadings prior to filing). As noted above, the United States District Court for the District of Vermont sanctioned plaintiff in this manner in a different case by restricting him from filing new cases or pleadings in cases without prior approval of the court. See Zorn v. Brown, File No. 1:05-CV-297 (D. Vt. Nov. 30, 2005) (doc. 50). There is no good reason why such a sanction could not have been used here. The majority‘s conclusion that such lesser sanctions would have been “futile” is nothing more than conjecture. Ante, ¶ 24. Rather than speculate on the outcome, especially about a right as important as access to the courts, plaintiff is entitled to an opportunity to demonstrate compliance. Further, I am not persuaded by the majority‘s assessment that preapproval is not an option because of the drain on judicial resources. I cannot believe that a summary review of plaintiff‘s attempted filings to ensure there is a new and arguably meritorious claim contained therein is such a drain on judicial resources that it will interfere with the processing of other cases in the court.
¶ 42. In sum, I dissent because the sanction upheld, even as narrowed by the majority, is the most restrictive sanction a court can impose short of an outright prohibition on future access to the court and in this case is de facto such a prohibition. It is inconsistent with the right of access for all litigants contained in
¶ 43. I am authorized to state that Justice Johnson joins this dissent.