Obstruction of justice

A three-justice panel from the 3rd District Court of Appeals in Sacramento surprised the legal community this July by publishing a scathing opinion slapping a local attorney for pursuing a “frivolous” appeal. The court further demanded the attorney pay sanctions to the court “to compensate it for the expense of processing, reviewing, and deciding a frivolous appeal.”

The terms “frivolous lawsuit” and “frivolous appeal” are ubiquitous in politics today but generally refer to cases in which no reasonable attorney could possibly find merit, or cases filed purely to harass defendants.

Published opinions like this one are rare, especially in the 3rd District, but when the court wants to set a precedent, or clarify the law, or simply to put its foot down, it publishes its opinion along with the argument behind it; these opinions are then distributed to the California State Bar and the public. In Johnson v. Lewis, the 3rd District definitely decided to put its foot down, leading the legal community to speculate that the court is growing increasingly tired of meritless lawsuits; publishing such an opinion sends a clear warning to other Sacramento attorneys.

The first paragraph of the court’s decision, written by presiding Justice Arthur Scotland, suggests that the decision was partly a response to public criticism of frivolous cases: “Time and again, public confidence in our legal system is tested when the general public wonders, and mutters, about why courts entertain ridiculous lawsuits. As will soon become apparent, this is such a case.” The decision goes on to accuse attorney Roger Miller of bringing forth an appeal that “indisputably has no merit,” a harsh criticism that Miller fears will affect his practice in the future.

In California, a growing wave of impatience with frivolous lawsuits is affecting more than just this opinion. Currently, a number of battles, both legal and political, are being fought against frivolous suits targeting businesses. In fact, the fight against frivolous cases will come to voters this November in the form of Proposition 64, which seeks to stop attorneys and the public from pursuing cases under California’s unfair-business-competition laws unless they can prove they suffered personal harm. Also, state Attorney General Bill Lockyer is suing law firms that bring frivolous lawsuits against small-business owners, and a California businessman currently is gathering signatures for a voter initiative to hold attorneys responsible for court fees when they bring frivolous suits. The fight against frivolousness is even tarnishing the public’s opinion of trial lawyers, which could affect the presidential election, (if you want proof, just Google “John Edwards” and “ambulance chaser”). Recently, even the U.S. 9th Circuit Court of Appeals, sometimes referred to as uniquely liberal, awarded sanctions to defendants faced with a frivolous appeal.

The fact is California’s courts are overburdened with cases, and though the number has shrunk slightly in recent years, it’s still a nearly unmanageable load. In California alone, more than one-and-a-half million civil cases have been filed in superior courts each year for the last two years. And 13,437 appeals were filed in 2002-2003. There is no court data regarding how many of those cases later were judged to be frivolous.

Defining a “frivolous lawsuit” can be tricky, according to attorneys, which is why the court’s recent opinion has unnerved some trial lawyers, including Miller, who’s been ordered to pay $7,000 in fees to the defendants—which only covers minor court costs—and $2,500 in sanctions to the court for wasting its time.

But both Miller and his client, Johnson, still believe the facts of the case support them.

Johnson v. Lewis began on the morning of December 3, 1999, when off-duty arson investigator Scott Lewis drove a Sacramento fire-district van eastbound on Highway 50 toward his office. It was his day off, but he was planning to do some paperwork. He was not wearing a uniform.

At the same time, plaintiff Polly Johnson was driving the same direction on Highway 50, on her way to work.

The court’s published opinion succinctly explained how the two crossed paths: “Lewis testified he first noticed plaintiff when, in the far left lane, she drove to within a few feet of his van. Plaintiff abruptly moved to the second lane, passed Lewis, cut in front of him nearly hitting his van, and sped off down the road.”

Lewis called the sheriff to report a reckless driver, but he also took matters into his own hands. Arson investigators have peace-officer authority, and Lewis claimed he feared Johnson would hurt herself or someone else, so he turned on the van’s attachable red light, activated his siren and caught up to her, urging her to pull over. According to Miller, Johnson, who was 22 years old at the time, didn’t trust that Lewis was a law-enforcement officer. “She looked in the rearview mirror, and he’s tailgating her. She said, ‘Who’s this guy? He’s a nut, some kind of a nut. … And so she tried to get away from him.”

“[Johnson] drove for several miles at speeds that reached 90 to 95 miles an hour before finally stopping,” read the court’s opinion.

Lewis pulled behind Johnson, urged her out of the car, handcuffed her and, when a sheriff’s deputy arrived, placed her in the back seat of the deputy’s car. Lewis then asked for permission to search Johnson’s car, which she granted. Asked in deposition what he was looking for, Lewis testified that he was looking for anything illegal that might have explained Johnson’s decision to flee. Meanwhile, the recently arrived sheriff’s deputy ran a check on Johnson’s license.

“The search and license check were negative,” read the court’s decision. “Lewis then decided to issue a citation for reckless driving and to release plaintiff.”

Though Johnson and Lewis seemed to agree on the basic facts of the case, Johnson found the entire experience distressing. She complained of being yelled at, feeling threatened and being left handcuffed on the side of the road while waiting for the deputy to arrive. She also claimed she wouldn’t have been driving recklessly if Lewis hadn’t chased her.

The ticket might have been the end of the story, except that Lewis had acted outside of his duties as an arson investigator. In a transcript from the deposition interview of Gary Monk, Lewis’ supervisor, Monk read from a district rule book: “Off-duty investigators shall not make misdemeanor traffic arrests.”

“Are there any exceptions to that that you know of?” Miller asked Monk during the deposition.

“Uh, when it’s in writing, says that you cannot, you are not to do it,” Monk replied. “This was a district policy, and it applied to all employees.”

Fire Marshal Vernon Brown contacted Johnson and asked her to write a summary of what happened, which was used as the basis of a citizen’s complaint against Lewis. Agreeing that Lewis had acted outside his job description, Brown met with the prosecutor and asked that Johnson’s traffic citation be dismissed.

Johnson was free of the ticket, but she was not interested in letting the issue drop. She filed a lawsuit accusing Lewis of multiple abuses, including false imprisonment, assault, battery and intentional infliction of emotional distress. She included the fire district and Sacramento County in her complaint, which asked for $100,000 in compensatory damages.

“If any person’s basic civil rights are suddenly squashed at the whim of another person, I do not consider it frivolous for that person to stand up and seek recourse for the damage that occurred,” wrote Johnson in a statement provided to SN&R. “I have absolutely no criminal record. Not even traffic violations. I am a law abiding, tax paying citizen.”

Lewis, now a sheriff’s deputy for Lake County, characterized the resulting litigation as “four years of hell.” During a phone interview, he claimed, “My actions were in the interest of public safety. … To have my motives questioned so vigorously was difficult.”

Miller, who takes on a few civil suits along with his regular load of cases regarding administrative and personnel issues, heard of Johnson through an attorney he worked with. He said he spoke with Johnson and noted that she admitted to speeding, which made him trust her. He looked into the case and agreed to take it on a contingency, hoping to receive 30 percent of Johnson’s award as payment for his services.

The case went through three different court processes. In the first, a mandatory “judicial arbitration,” the hearing in front of a retired judge lasted about an hour, according to one of Lewis’ attorneys, Michael Keddy. The judge recommended an award of $75,000 to Johnson.

“Frankly,” Keddy said, “I was quite surprised.”

Though the original decision favored Johnson, judicial arbitrations are not legally binding, said Keddy. Either party can reject the decision and move forward. “We did,” Keddy explained.

Asked why the defendants lost in arbitration, Keddy replied that his team had tried to prove that the suit was unwarranted but hadn’t gone far enough to convince the arbitration judge. Keddy wouldn’t make the same mistake again.

Hoping to avoid a jury trial, the defendants filed a “motion for summary judgment,” which Scotland referred to as a vehicle “to relatively quickly rid the judicial system of unmeritorious cases.”

This time, the Sacramento Superior Court sided with the defendants and declined to allow a civil trial. “Thereafter, the case took on an unusual posture,” read Scotland’s opinion.

Johnson appealed to the 3rd District Court of Appeals, claiming that Lewis did not have “probable cause” to arrest her as an off-duty arson investigator. The appellate court read up on the case and found that Johnson’s own admission to speeding was more than enough evidence for her arrest; they prepared to side with the defendants, also. The court then wrote a letter to Miller warning him that the court was considering “monetary sanctions,” adding that “an appeal may be held frivolous when it indisputably has no merit.”

Miller believed that a jury would not sympathize with a rogue arson investigator acting outside the boundaries of his job. Realizing that the appellate court would never grant him a jury trial, Miller reconsidered the appeal. If Johnson lost, she might be liable for attorneys’ fees, which could run into the hundreds of thousands of dollars.

Realizing that Johnson didn’t have any money, Miller approached the defendants and asked them to let him drop the appeal if he personally paid their court costs. He and the defendants’ attorneys worked out a deal in which Miller paid $7,000 in fees to the three defendants. In the published opinion, Scotland referred to Miller’s solution as “falling on his sword” for his client.

Miller then asked the appellate court to let him drop the appeal. The justices agreed but took their revenge on Miller and Johnson in the form of the published opinion and sanctions: “Having ‘dodged a bullet,’ so to speak, when the criminal case against her was dismissed despite the existence of ample probable cause to arrest her for endangering the public by driving recklessly at high speeds on a crowded freeway, plaintiff did not just go home and celebrate her good fortune. She filed a meritless lawsuit and then wasted this court’s time and resources by pursuing a frivolous appeal.”

John Whitesides, the attorney who represented Lewis in appeal, said by phone that he never thought the case was so simple or obvious as to be “frivolous” but agreed with the justices that some of Johnson’s allegations were. “Are peace officers prohibited from enforcing the law just because they’re off duty or out of uniform?” he asked.

Whitesides also speculated that the court was responding to the waste of its resources over a 20-minute traffic stop. If Johnson had been roughed up or spent time in jail, Whitesides said, this would have been a very different case.

As might be expected, Miller, who was interviewed sitting among boxes of documents related to this case, continues to disagree with the appellate court, believing that Johnson was harassed by someone who didn’t have the authority to arrest her and that she should have been compensated. But he does say that the case was never a “slam dunk.” He argues, however, that pursuing cases that won’t necessarily win isn’t the same as pursuing frivolous lawsuits. Traditionally, the public’s access to the courts has been heavily protected. “This [opinion] has a chilling effect on the motivation of lawyers to bring cases on appeal, or to the court in the first place,” he said.

Jay-Allen Eisen, an attorney involved in a local precedent-setting case on frivolous lawsuits, agreed. He warned that the more sanctions that are imposed, “the less likely that lawyers will challenge well-set law that needs to be changed.”

One of the oft-cited examples of difficult cases destined to win on appeal is Brown v. Board of Education, the landmark Supreme Court decision that ended segregation in public schools. Had attorneys been punished for pursuing unlikely cases, attorneys like Eisen argue, this one might not have made its way to the Supreme Court.

James Sturdevant, of the Consumer Attorneys of California, said that defining frivolous cases is not as easy as the court made it sound in its opinion. As an example, he referred to local attorney Michael Newdow’s recent case to strike the words “under God” from the Pledge of Allegiance. “Some [legal professionals] would say that’s the silliest court case ever filed,” said Sturdevant, “and some say it tears at the fabric of America.”

Though Scotland and other justices who sat on the appellate court’s three-person panel could not speak about the details of Johnson v. Lewis (the state Supreme Court could choose to review it still) a retired justice from the 3rd District did agree to talk about frivolous appeals in general.

Justice Robert Puglia retired from the court before Johnson v. Lewis but insisted that public access to the courts did not mean that frivolous lawsuits should be condoned. He claimed that all attorneys know how to recognize a frivolous lawsuit if they understand the law, which leaves Miller’s choice something of a mystery. “I would guess the attorney believes he has something to argue about,” Puglia said of Miller, but based on the court’s opinion, “he’s wrong.”

Puglia mentioned that all courts eventually set policy to limit frivolous suits and impose sanctions to limit misconduct, and that Scotland’s opinion is not particularly new or unusual. But he agreed with other legal professionals that published opinions from the 3rd District are rare. Puglia estimates that he was involved in more than 10,000 appeals but published an opinion, on average, only once a year.

In the 3rd District, the standard for frivolous lawsuits was laid out in 1992 with an opinion referred to as “re: the marriage of Flaherty.” Scotland quoted from the case in his opinion: “Any definition [of a frivolous appeal] must be read so as to avoid a chilling effect on the assertion of litigants’ rights on appeal. Counsel and their clients have a right to present issues that are arguably correct even if it is extremely unlikely that they will win on appeal.”

Though Flaherty warns against too broad a definition of “frivolous,” Scotland obviously found Johnson v. Lewis fully qualified: “Our review of the case persuades us that the issues raised by plaintiff are totally devoid of merit and that any reasonable attorney familiar with the law and the facts of this case would not have pursued this appeal.”

The defendants’ attorneys would agree. Keddy doesn’t think it’s hostility toward frivolous suits, or the public’s criticism of excessive litigation, or any other political issue that caused the court to sanction Miller: “I think the court really was offended,” said Keddy. “I thought the decision was entirely appropriate.”

Keddy agreed with Puglia and others who said that frivolous suits were a “terrible drain on the legal system,” and he claimed that it’s even hard to get a courtroom, because so many cases are filed. Like other attorneys interviewed for this story, Keddy could not estimate how many frivolous lawsuits he’d been involved in. Nor would he say whether Johnson v. Lewis was the least warranted of them.

Keddy may not see politics in the 3rd District’s decision, but California has begun to tighten controls on court access, and sanctions may be only one small step in a broader process to clean out the courts in California. Voters soon will help decide how far that fight will go.

Proposition 64 is characterized by supporters as the solution to frivolous lawsuits, but critics call it a corporate attempt to limit public access to the courts. In essence, Proposition 64 seeks to diminish California’s unique Unfair Competition Act, a law that allows citizens to sue companies for bad business practices even if they can’t prove they’ve personally been harmed by such practices [see “Drastic measure” by Cosmo Garvin, SN&R News, March 4].

Critics of Proposition 64 claim that the Unfair Competition Act, as it stands, has led to cases that forced Safeway to stop labeling meat as “fresh” after the expiration date and forced Microsoft to alert customers to potential flaws in its security system that made personal information accessible to hackers.

Pro-Proposition 64 advocates claim that these cases and others still would be brought, even without the “loophole in California’s law that lets [trial attorneys] ‘appoint’ themselves Attorney General and file lawsuits on behalf of the People of the State of California.”

The “loophole” has been ripe for abuse over the years. In fact, the state attorney general has recently made his own inroads against frivolous lawsuits by suing the Trevor Law Group, which allegedly used California’s unfair competition laws to target multiple small businesses, accuse them of minor regulatory violations and then send letters extorting thousands of dollars in settlements to drop the cases. Ironically, Lockyer’s case uses the same unfair-competition laws to target the Trevor Law Group.

A press release from Lockyer’s office claimed, “With its unlawful practices, the Trevor Law Group has abused one of the state’s most important consumer protection statutes and dishonored attorneys who practice law in the public interest.” The three lawyers of Trevor Law Group turned in their licenses to practice rather than face a trial before the State Bar.

Lockyer and Proposition 64 backers aren’t alone in trying to limit litigation. Robert McCracken, a retired small-business owner in Southern California, says he’s giving back to the business community by proposing a voter initiative to penalize any litigant who files a frivolous suit.

The voter initiative asks to “make it mandatory that the loser and their lawyers, of a frivolous lawsuit, pay the legal cost of the other side.” The initiative also seeks to hold judges accountable for not dismissing frivolous lawsuits, requiring them to defend their decision to continue or dismiss a case that either party calls frivolous. The initiative also asks that when the court imposes sanctions on an attorney or law firm, it also notify the State Bar, which would have an obligation to disbar or suspend the license of attorneys who are sanctioned repeatedly.

Miller, who said he’s never been sanctioned before and has no disciplinary marks against his license, makes such strong punishments seem almost unnecessary. He likely will return to simpler cases that are heard by administrative law judges, not juries, while the State Bar reviews his license and the order for court sanctions. Larry Doyle of the State Bar couldn’t say what, if anything, would happen to Miller’s license because of the appellate court’s opinion.

Miller claims that the Johnson case ate up not just court resources, but also his own. Having taken the case on a contingency, Miller, like the defendants’ lawyers, put in hundreds of hours on the case, hours for which he won’t be compensated. “It had an effect on me,” said Miller. “I mean, this case cost me my time and probably $25,000 out of pocket.”

Keddy estimated that Lewis’ defense costs equaled $70 or $80,000, though they were covered by Lewis’ insurance.

Though appellate-court judges refused to talk about the case, Sturdevant expected a response from the legal community. He expected that local legal professionals wouldn’t want this case to affect the outcomes of other cases, so they might ask the Supreme Court to de-publish the opinion. By press time, however, no request for de-publication had been received by the Supreme Court. Even Sturdevant’s own organization, the Consumer Attorneys of Sacramento, decided not to request de-publication because, as Sturdevant said, the case deals with citizen’s-arrest issues that won’t apply in many other cases.

In the meantime, the 3rd District continues to show its displeasure with attorneys who bring frivolous cases. Since publishing the opinion regarding Johnson v. Lewis, the appellate court has published at least one other that imposed sanctions on an attorney for bringing cases that have no merit. The attorney is ordered to pay $25,000 to the court for wasting its time, and to return attorney’s fees to each of three inmates who counted on him to challenge the legality of their incarcerations.

Regardless of the court’s future actions, the sanctions imposed in Johnson v. Lewis obviously had an effect on one lawyer; Miller, still stung by the court’s decision, doubts he’ll ever bring another long-shot case to the 3rd District. Asked what happens next, Miller said, “I put all this stuff in a box and forget about it.”

In fact, he may not have that option. Lewis currently is considering civil litigation against Johnson, Miller and possibly others. He plans to use the same argument Johnson tried against him: The defendant had no authority to do what she did; in bringing her lawsuit through the courts, he may claim, she acted without “probable cause.”