Patterico's Pontifications

9/3/2014

TechDirt on Brett Kimberlin Lawfare

Filed under: General — Patterico @ 7:58 am

TechDirt:

Reading Weigel’s account of the trial, you can quickly see why the judge ruled that way. So many of the points raised by Kimberlin clearly had nothing to do with anything coming anywhere near defamation, but rather were focused on “people said mean things online.” . . . . After the ruling, Kimberlin made it clear to Weigel that he wasn’t done, and he intended to keep bringing new legal actions to tie everyone up in court (Kimberlin, in the past has allegedly made similar threats, saying, “I have filed over a hundred lawsuits and another one will be no sweat for me. On the other hand, it will cost you a lot of time and money and for what,” in an email to another blogger (who posted the email).

That blogger was me, by the way.

For years we’ve written about various attempts by people to get others to shut up when they say or write unkind things. Our legal system isn’t supposed to allow that sort of thing. Kimberlin’s actions are, once again, a (strong) reminder why we really need a federal anti-SLAPP law that will help get bogus lawsuits designed to stifle constitutionally-protected speech tossed out quickly.

Indeed.

39 Responses to “TechDirt on Brett Kimberlin Lawfare”

  1. Mr. Kimberlin should give serious thought to taking a break once or twice during his week and spending time with a therapy dog in a safe controlled environment I think

    them pups can really help kickstart the healing there’s tons of studies what prove it

    happyfeet (8ce051)

  2. HF,

    Kimberlin is still continuing his career and has harassed people including Pat who as far as I can remember never bothered the guy until he came after them

    And still is – until he is finally sued back and loses

    Yet in all these articles they skirt the underage girlfriends and wife who has left him due to abuse – why all these writers skirt the big stuff I don’t know – at least this guy didn’t blame others for Kimberlins woes

    EPWJ (8f5c4e)

  3. He seems to define “vexatious litigant.” Why has this not been done ? Is he seeking different b=venues ?

    Mike K (90dfdc)

  4. Because they don’t want to get swatted, or sued, or something in between, but the whole thing reminded me of that hagiography, Newsweek did of Pellicano, some years back

    narciso (ee1f88)

  5. If you go to Popehat’s blog, I think they have a project trying to develop as much information as possible regarding the issue of vexatious litigant.

    rochf (f3fbb0)

  6. I think they have a ‘loser pays’ rule in civil litigation in Britain. Having to compensate the legal counsel for Stacy McCain and John Hoge would induce an abnormal tranquility for Kimberlin.

    Art Deco (ee8de5)

  7. Techdirt says:

    In the 1980s, he got lots of attention for claiming to have sold marijuana to Dan Quayle.

    Error!! Brett Kimberlin only got lots of attention in 1992, not in the 1980s, and the Mark Singer book came out about as soon as it could have bene expected to. (4 years, not around 10 years, later)

    In the 2000s, he got attention warning about e-voting machines and the possibility of fraud (something we wrote about extensively at the time as well). But in the 2010s, it appears his “deeply weird” journey has moved onto suing people who say things he doesn’t like.

    Error! It wasn’t “things he didn’t like”

    It was his criminal background, and thinmgs associated with that, and it was in messages or by people, who also disputed what he was saying about vote fraud, and accused him basically of being a total fraud and told people not to believe him.

    And websites were letting the truth about him be censored or removed.

    Sammy Finkelman (da8ac2)

  8. If you go to Popehat’s blog, I think they have a project trying to develop as much information as possible regarding the issue of vexatious litigant.

    rochf (f3fbb0) — 9/3/2014 @ 9:23 am

    Yep. That’s probably a good place to turn if one wants to make a difference. Kimberlin is actually not the only guy doing this stuff, albeit as far as I know he’s the worst.

    Dustin (7f67e8)

  9. PS: Patterico is “Blog of the Day” over at Legal Insurrection

    redc1c4 (abd49e)

  10. Oh, no. We do not need to federalize this. I’m going to repeat a comment here that I left on Prof. Reynolds’ post linking this same TechDirt post:

    Prof. Reynolds, I know that simply by linking this piece and re-asking its concluding question, you aren’t necessarily endorsing the idea of a new federal law.

    The federal courts already have ample authority, by rule and by precedent, to sanction abusive serial litigants. No broader remedies are needed there.

    To the extent there’s a systemic problem, it’s at the state-court level. But I do not believe that Brett Kimberlin, as toxic as he and his ilk are, is sufficient justification for imposing a one-size-fits-all solution on all state courts nationwide. That would be truly extraordinary, and truly revolutionary — in a very bad way. Do we want the feds as deeply entrenched in our state judicial systems as they are in, say, our state educational systems? I think that question answers itself for anyone with a clue.

    Perhaps there’s room instead for a “model law” and multi-state compact that would promote interstate judicial comity — something allowing for cross-border recognition of sister-states’ processes with an abbreviated, cheap, and simple procedure, perhaps with a rebuttable presumption that someone found to have abused one state’s judicial system must jump some extra hurdles in another state before being permitted to access that state’s civil justice system as a plaintiff. States could opt in or out of this, but as with the many similar interstate compacts on domestic relations, domestication of foreign judgments, and so forth, it’s likely that a good system would quickly be endorsed and adopted by state legislatures in a matter of a few years.

    Please, please: SPARE US from more federal solutions. Even when there are real problems, the federal solution usually creates others and/or simply makes the problems worse.

    Beldar (fa637a)

  11. Art Deco wrote above (#6 — 9/3/2014 @ 9:27 am):

    I think they have a ‘loser pays’ rule in civil litigation in Britain. Having to compensate the legal counsel for Stacy McCain and John Hoge would induce an abnormal tranquility for Kimberlin.

    But “loser pays” isn’t enough here. Merely shifting court costs and legal fees onto the abusive litigant is an ineffective deterrent. You need look no farther for proof of that than the massive uncollected final judgment for money damages entered against Kimberlin in favor of one of his victim’s widow.

    No, the only effective cure is one which either (a) bars the abusive litigant from further filings (unless he’s first gone through special pre-screening processes to get court permission), typically by a standing instruction to the relevant court clerks to refuse to accept such filings, or (b) puts the abusive litigant in jail, typically for either civil contempt (to induce him to make some specific change in his behavior in order to bring it into compliance with court orders) or criminal contempt (to punish the abusive litigant’s knowing and willful violation of existing court orders). Either remedy has constitutional ramifications: The federal Constitution and most state constitutions either contain express guarantees of open access to the courts, or else have been interpreted to imply as much. And a contempt order depriving someone of liberty can convert a civil proceeding into a quasi-criminal one in which the pro se litigant suddenly acquires a constitutional right to competent counsel at the state’s expense if he can’t afford it himself.

    Beldar (fa637a)

  12. I’m curious, Beldar, why is Kimberlin allowed to sue anyone while he refuses to pay that judgement. I would that would be an automatic bar against filing further suits. Or should be.

    Steve57 (e0f6ab)

  13. Here’s some dogs that don’t bark – all the people he’s messed with who hide and stay as far away from him as possible. It’s a long list. A long, long list.

    SarahW (267b14)

  14. The idea I get is that the Maryland courts don’t like to declare anyone a vexatious litigant and so they avoid it.

    That and Kimberlin may have some level of political connection which makes it that much harder.

    So it will be a slog to get the wheels to turn. Thus the Popehat mission.

    luagha (5cbe06)

  15. luagha (5cbe06) — 9/3/2014 @ 2:57 pm

    That and Kimberlin may have some level of political connection which makes it that much harder.

    Another thing for Weigel or others to hide.

    Not that we know it, but maybe too much looking might find that out.

    Sammy Finkelman (d22d64)

  16. There was never anyone better to throw under the bus and gain some cred for liberal housecleaning.

    SarahW (267b14)

  17. Beldar – I believe this blog’s buddy Cyrus Sanai was able to get his vexatious litigant label removed through some vexatious appeal process or other.

    daleyrocks (bf33e9)

  18. Daley

    They are tough to attach but IF ANYONE can do it – I have faith in Kimberlin

    EPWJ (8b746f)

  19. EPWJ – I think Sanai has sued judges as has Kimberlin and has had scorched earth litigation going on in two states for well beyond 10 years. Both are rare pieces of work.

    daleyrocks (bf33e9)

  20. Then we had Mary Kate “the horse whisperer” Petrano who claimed it was discrimination not to allow her to bring her service horse into court with her.

    daleyrocks (bf33e9)

  21. One reason some people support imposing a nationwide federal remedy is because some states are currently doing a poor job of identifying and dealing with vexatious litigants. But if that’s an adequate reason for abandoning federalism, then there’s no function of state government that can’t be federalized by the same logic. I’m pretty sure there’s no one “magic bullet” solution that only the feds are capable of figuring out. And it’s a perfectly legitimate basis for states to innovate in competetition with one another: Just ask Rick Perry, who’s made Texas’ “tort reform” (really “litigation reform”) successes a major part of his sales pitch for relocating Fortune-1000 businesses moving here.

    Steve57 (#13 — 9/3/2014 @ 11:48 am), I understand your impulse when you ask why anyone who has an unsatisfied money judgment against him or her is allowed to sue anyone else. The “official” answer to that would be along these lines: No American court, state or federal, has a rule that bright and simple. One’s civil debts, whether pursuant to a final court judgment or otherwise, don’t automatically disqualify one from exercising his or her constitutional rights (state and federal) to seek redress in the courts when injured. Even a deadbeat is entitled to the protection of the civil law from, for example, being run over by a negligently operated truck. Indeed, the courthouse doors (metaphorically) are open even to those on death row. Those rights of access to the court, as part of the enforcement of all other rights, are deemed so fundamental that any restriction or abridgment of them is highly suspect. And under the existing caselaw, the most that can be done is to erect additional hurdles that litigants found to be habitually vexatious have to jump — e.g., a procedure whereby the clerk automatically rejects new filings from such a vexatious litigant, except for special petitions for an exception to that rule based on exceptional circumstances.

    I think that even respecting those constitutional limitations, though, much more can — and emphatically should — be done to deal more effectively with vexatious litigants. Appropriately high and effective hurdles can be constructed, in other words, if there’s the political will for that.

    In many places, though, besides the constitutional strictures, there are strong historical passions regarding courthouse access. It wasn’t long ago, for example, that Deep South courthouses were truly “open” only for whites. And many places, including Texas, have strong populist/small-d democratic tendencies to preserve court access as an effective check on a suspect legislature or executive.

    Beldar (fa637a)

  22. One problem is that there’s no common definition for what constitutes a “vexatious litigant” from court to court and state to state. That could be fixed by a model law that becomes the basis for an interstate compact.

    This has worked very well as an implementation of dynamic federalism in the past. There is, for example, an interstate compact, based on a model law that’s now been adopted in most American states, on how to handle minor children who’ve been removed across state borders in alleged violation of custody orders. There’s a similar interstate compact, based on a model law, that permits the quick “domestication” of a civil judgment from one state so that it may be collected in a sister state (one in which the defendant has assets which can be seized by the sheriff and sold at auction).

    So my point is that these problems are serious, but we haven’t yet exhausted — or even seriously begun to explore — all the available solutions that are out there at the state level. Given that, I think it would be very rash indeed to try to craft a federal rule that would put control of who’s a “vexatious litigant” in the hands of some Washington bureaucrat. Hey, how’d you like it if the federal anti-SLAPP law involves or even requires the input of Eric Holder and his boss?

    Beldar (fa637a)

  23. (Or for that matter, how’d you like it if the chief interpreter of the federal anti-SLAPP statute becomes the U.S. Court of Appeals for the District of Columbia Circuit? These days it’s overwhelmingly dominated by Obama appointees crammed through since Reid went nuclear, and it’s just another outpost of the White House for all practical purposes.)

    Beldar (fa637a)

  24. Oh, one more thing you might appreciate, steve57, as a fellow Texan who’s lived through this:

    in 2003, Texas voters ratified an amendment to the state constitution in 2003 that was an essential step in the progress of “tort reform” during the last two-and-a-half decades. What was being amended by this Prop 12 was part of the “open access to the courthouse” provisions in the Texas constitution. The reason an amendment was needed was because in 1988, the trial-lawyer-dominated Texas Supreme Court (a/k/a the “infamous ’60 Minutes’ Texas Supreme Court) had interpreted the open access language in the Texas constitution to invalidate a 1977 attempt by the Texas Legislature to cap skyrocketing personal injury damage awards.

    So these are not unrelated topics, nor entirely new ones. But if you want an example of the kind of folks who prevent effective measures to control vexatious litigants, there you had it in Texas. And to undo it basically required the Texas GOP to flip Texas to a one-party Republican state whose population was willing to ratify the necessary state constitutional amendment. I suspect we can agree: That was no small feat, amigo, but it was worth the efforts over time.

    Beldar (fa637a)

  25. “in 2003, Texas voters ratified an amendment to the state constitution in 2003 that was an essential step in the progress of “tort reform” during the last two-and-a-half decades.”

    Beldar – In 1993 I helped a company buy some assets of an essentially brain dead Texas insurance carrier which had been killed by the personal injury environment which you reference. There was no way I could advise my client to assume any of the carrier’s liabilities under that litigation climate.

    daleyrocks (bf33e9)

  26. I’ve been asked if I would pay “nuisance value” by a plaintiff’s attorney. I’ve been ordered to negotiate “goodwill value” by the business’s insurer. It would have been nicer if my clients had been left alone in the first place. Of course. But I agree with Beldar. It’s better to have a court to fight things out in. Especially as I’m getting older and slower on the draw. ;)

    nk (dbc370)

  27. nk, although it’s not rare for us to agree, it’s nevertheless always a distinct pleasure having you concur.

    daleyrocks, re the insurance climate in Texas, your anecdote is apt. Not coincidentally, that was also the time of the “availability crisis” in commercial general liability insurance nationally and even internationally. Rabble-rousing state attorneys-general — Texas’ Jim Mattox prominent among them, but most prominent for suing independently of all his fellows, and in state rather than federal court — insisted in a series of early 1990s lawsuits that this was the result not of exploding litigation risks and skyrocketing judgments, but a dastardly conspiracy among insurers. I had the privilege of representing the Hartford Insurance Group in Mattox’ case in Austin, and I vividly recall asking former and long-time Texas Commissioner of Insurance Lyndon Olson what he thought of the “conspiracy theory,” and he gave a twenty-second belly-laugh on videotape, followed by [my paraphrase from memory]:

    The idea of the members of the insurance company having the coordination and self-discipline to run an effective conspiracy to raise prices and restrict availability of insurance is the most ridiculous thing I’ve ever heard. These companies have been competing against each other so viciously that they’d all drive each other out of business if the regulators would let them. You can blame that, you can blame loose underwriting, and you can certainly blame the so-called litigation crisis. But these guys could no more have come up with and executed that kind of plan than they could have re-mounted the Normandy Invasion.

    Beldar (fa637a)

  28. Sorry, that ought to have read “members of the insurance industry,” not “insurance company.” Apologies for the confusion.

    Beldar (fa637a)

  29. Lon Williams was a Southern lawyer, in the pulp era, who wrote some humorous and poignant short stories featuring Judge Steele, the leader of a vigilante group who was elected, against his will, judge of the first duly constituted court in a mining community. Nobody had more contempt for his court than he did. Lawyers and anti-lawyers will enjoy the stories. This one is free online http://www.munseys.com/disknine/satcamdex.htm (and the rest are available on Kindle or Nook for $1.00 each or 4/$3.00 if you like them).

    nk (dbc370)

  30. To the extent there’s a systemic problem, it’s at the state-court level. But I do not believe that Brett Kimberlin, as toxic as he and his ilk are, is sufficient justification for imposing a one-size-fits-all solution on all state courts nationwide. That would be truly extraordinary, and truly revolutionary — in a very bad way. Do we want the feds as deeply entrenched in our state judicial systems as they are in, say, our state educational systems? I think that question answers itself for anyone with a clue.

    Beldar,

    Maybe there’s a definitional confusion here as to what is meant by a “federal anti-SLAPP statute.”

    I don’t see why a federal anti-SLAPP law necessarily would impose a one-size-fits-all solution on all state courts. I have been sued twice, frivolously, in federal court. One of those cases is still on appeal (Nadia Naffe) and one is ongoing at the trial level (Kimberlin RICO suit). Now, I had some fairly strong anti-SLAPP protection in California in the Naffe litigation, although the judge dismissed on 12(b)(6) grounds and never got to the anti-SLAPP. In Maryland, the protection is so weak as to be almost non-existent.

    Those of us who have faced multiple frivolous SLAPP suits designed to shut us up would like to see some floor of protection, at least in federal court. What would be wrong with a federal statute that provided that minimal level of protection in federal courts, and said that if the state in question provides stronger anti-SLAPP safeguards, those can and should be used by the federal court sitting in diversity?

    Sure would help me out in Maryland, and I don’t see the horrible downside. It doesn’t mean the statute would have to apply in state courts at all, necessarily. But what about us federal defendants?

    Second, more arcane point for lawyers: some of the “procedural” safeguards of state anti-SLAPP statutes are occasionally ruled “procedural” rather than “substantive” for purposes of an Erie analysis, meaning they may not be applied at all in federal court. I’d love for a federal statute to say, at a minimum, that all state anti-SLAPP safeguards are to be applied in federal court.

    Patterico (9c670f)

  31. Patterico, you make some excellent points. I have many fewer reservations about a federal statute that only applied to federal courts. I’m less persuaded that there’s an urgent current problem of uncorrected abusive litigants in the federal court system. Some circuits are more aggressive than others in what they’ve done at the chief judge, judicial council, and circuit administrator level to deal with abusive litigants. But every federal circuit, even the Ninth, has some sort of “abusive-litigant remedy” system in place, even if somewhat obscure and only occasionally effective. I’m aware of at least some instances in which one federal circuit, or its component district courts, anyway, have taken judicial notice of an offender’s record of abuse as documented in orders of another federal circuit. That’s all to the good. Keeping a public spotlight on these abusers is essential, and there’s no good reason for it not to be a national spotlight that includes both the state and federal court systems.

    The total volume of civil litigation conducted in the state courts overall, of course, totally dwarfs the volume of civil cases in the federal court system. If there were an effective national compact of participating sister states, working under at least closely parallel versions of a model act, and sharing some sort of workable data base regarding offenders, I very much suspect that the federal courts would end up adopting that through caselaw or rule-making; that’s very much the kind of thing I can imagine Chief Justice Roberts putting in motion.

    But the effort would have to start at the state level, and only with a coalition of the willing (initially mostly southern states with a sprinkling of western and midwestern red states). I don’t expect to see Wisconsin or California or Massachusetts taking any more of a lead in this particular kind of litigation reform than they’ve taken in past years in tort reform more generally.

    Beldar (fa637a)

  32. Also, alas, I’m reasonably sure that no federal anti-SLAPP lawsuit is likely to get traction until January 2017 at the earliest.

    Beldar (fa637a)

  33. Bah. Not “federal anti-SLAPP lawsuit,” I meant (obviously I hope) “federal anti-SLAPP statute” there. Time to step away from the keyboard, Beldar.

    Good thing, too. Need to go yell at those kids on my lawn ….

    Beldar (fa637a)

  34. I know people whose lives have been made hell, one couple losing their home, on a SLAPP suit related to asking questions about the running of a charter school. They were sued for defamation, among other things, suggesting somebody was a crook. Well, a 50+ count federal indictment on the person later hasn’t made the SLAPP go away.

    I would hope you lawyers could at least find a way to be punitive to lawyers who engage in such things.

    MD in Philly (f9371b)

  35. “Not coincidentally, that was also the time of the “availability crisis” in commercial general liability insurance nationally and even internationally.”

    Beldar – Enjoyed the story. I love the euphemism “availability crisis.” You would see those when lawyers and regulators had so royally screwed up markets that no carrier wanted issue new policies. Texas had it issues, California blew up its workers comp market, New Jersey killed its personal auto market and the list could go on and on and on.

    daleyrocks (bf33e9)

  36. Well said, Beldar.

    SPQR (c4e119)

  37. I think respectfully to Beldar, when the states are not sufficiently protecting free speech, the 14th A empowers congress to correct it. Perhaps my perspective is warped by being “in the trenches” but there really needs to be some kind of federal anti-slapp approach. I think just the promise of attorneys fees and other inconvenience costs (such as lost work time) would defer the majority of this bull.

    That being said, don’t you know Patrick that you are defaming Brett by quoting his words? Apparently Brett believes it is reckless disregard for the truth to take him at his word. Which actually, to be fair, it kind of is. :-)

    Always be a happy warrior, folks.

    Btw, over a hogewash brett is continuing to huff and puff and proclaim he is about to sue various persons including myself again.

    Aaron "Worthing" Walker (76f6be)

  38. “I don’t expect to see Wisconsin or California or Massachusetts taking any more of a lead in this particular kind of litigation reform than they’ve taken in past years in tort reform more generally.”

    Oddly enough, California under no less than Jerry Brown as governor, passed the best (IMHO) med-mal reform in the country in 1975. It has withstood furious attacks by the plaintiff bar (which keeps changing its name) ever since. I think there may even be another shot at it on the ballot this fall. I’m retired so don’t pay as much attention anymore.

    Mike K (90dfdc)


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