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Sanctions: Wisconsin Court of Appeals Affirms Decision Limiting Pro Se Litigant’s Access to the Courts

Limiting a litigant’s ability to file suit is a very rare sanction, but the Wisconsin Court of Appeals recently upheld a circuit court’s decision to do so based on the plaintiff’s “extreme, substantial, and persistent” behavior. See Klein v. Padgett, 2022 WL 164524AP2167 (Wis. Ct. App., Jan. 19, 2022) (unpublished). In Klein, the circuit court issued an order limiting a pro se litigant’s ability to file additional actions relating to a particular matter as a sanction consistent with its authority under Wis. Stat. § 805.03 and based on several facts. First, the circuit court noted that the plaintiff failed to wait for motions to be evaluated and decisions to be rendered on those motions. Instead, he continuously filed more motions, exhibits, and other documents. As for the content of the plaintiff’s filings, the court also noted that the plaintiff did not contain his allegations to well-pled facts or the record. Instead, he operated under a “freewheeling, no-holds barred pattern of delay and distraction.” Second, the circuit court found that the Seventh Circuit had previously issued monetary sanctions against the plaintiff for his lack of diligence in appellate litigation. Despite these monetary sanctions, however, the plaintiff continued to disregard court procedure and court orders in that federal case. And according to the Seventh Circuit Court of Appeals, that disregard was “extreme, substantial, and persistent.”

Based on the above, the circuit court ordered that the plaintiff was barred from filing in any circuit court in the State of Wisconsin any suit, action, proceeding, or motion against the individuals involved in the pending litigation without first obtaining leave from the court in which he wished to make such a filing. In addition, any such motion for leave of court to file any such suit, action, proceeding, or motion must include a copy of the order for sanctions. The plaintiff appealed this sanction.

In its decision upholding the circuit court’s sanctions, the Court of Appeals noted that while persons have a constitutional right to access to the courts, that right is neither absolute nor unconditional. See Village of Tigerton v. Minniecheske, 211 Wis. 2d 777, 785, 565 N.W.2d 586 (Ct. App. 1997). For example, a court faced with a litigant engaged in a pattern of frivolous litigation has the authority to implement a remedy that may include restrictions on the litigant’s access to the court, because frivolous actions hinder a court’s ability to function efficiently and effectively and to fairly administer justice to litigants who have not brought frivolous actions.

The Court of Appeals also found that the extent of the order—requiring the plaintiff to seek leave of the court in order to file an action in any Wisconsin court—was narrowly tailored to matters involving a specific group of respondents against whom the plaintiff had launched a pattern of serial litigation. In other words, the restriction simply required the plaintiff to obtain approval of the court in which he wished to make the filing, “which basically means that the plaintiff is free to file any new and nonvexatious litigation.”

Given that this decision comes more than twenty years after the next most recent Wisconsin decision on this particular issue—limiting a pro se litigant’s access to the courts as sanctions—only time will tell as to whether this decision was simply an outlier based on unique and extreme facts, or if it may in fact signal the start of a trend toward ending frivolous litigation in Wisconsin.

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