Legislators Look To Stop 'Serial Litigators'

JAY STAPLETON

The Connecticut Law Tribune

03-01-2013

She's not licensed to practice law in any state, but Cecelia Lebby spends so much time arguing in court that she considers it "a full-time job."

Lebby's last paid position was in a doughnut shop several years ago and she relies on disability income of about $700 month to survive. But her proficiency with pen and paper has made her well-known among judges in the New Britain Judicial District, where she has filed more than 80 lawsuits and 40 appeals. Lebby insists she is just protecting her legal rights from abusive acts.

"I just don't want to be wronged by people," she said. "I figure if I filed lawsuits, they would back off."

Lebby's prolific efforts have recently led her to be identified as one of a handful of "serial litigators" in the state. Because she is legally indigent, Lebby doesn't have to pay any court filing fees, and so she files for free — and files freely. But now, people like her are being targeted by some lawmakers.

A bill proposed by state Representative Timothy Bowles, D-Preston, would make poor people complete community service hours in exchange for having filing fees waived. Bowles said if a pro se knew he or she would have to put in several hours of added labor, that would cut down on the number of litigants who file 10 or 15 lawsuits a year.

Although of the total number of cases statewide filed by serial litigators isn't available, Bowles said the problem is real. "If we can close that loophole, I would be more satisfied," Bowles said. "These cases clog up the court system."

Even if his legislation doesn't pass, Bowles is hopeful that a discussion will raise possible solutions to the problem.

State Representative Gerald Fox III, co-chair of the Judiciary Committee, has agreed to at least consider the measure. "We offered to raise it for a public hearing and see what happens," Fox said. "I think there are some [legislators] who have reservations about it, but there are some who want to explore the issue."

Hesitant Judges

All told, the Judicial Branch waives about $2.8 million a year in fees for hundreds of indigent people. Under state law, not only is the $350 filing fee covered, but so is the $40 cost of state marshals serving the lawsuits.

The process of having a filing fee waived for indigency is fairly automatic. If a person fills out the application form and shows they are below the state poverty level ($13,000 in annual income for a single person and $28,000 for a family of four), the fees are waived.

Superior Court Judge Barbara Bellis, the presiding judge over the civil docket in Bridgeport, said she has indentified between six and 12 pro se litigants who have filed multiple lawsuits in her judicial district. Bellis said judges have little discretion on whether to approve a fee waiver, but they can always deny a claim brought by a self-represented party if it seems frivolous or doesn't make sense.

At the same time, she said, most judges "are not heavy-handed" when it comes to dismissing lawsuits that may seem farfetched. Many are reluctant to put pro se plaintiffs at a disadvantage when seeking redress from being wronged, Bellis said.

"If something is filed that is devoid of any merit, we have the authority to snuff it out on the spot," Bellis said. "It's rare that we do this, and it's done very cautiously. It's a big thing to do, to shut someone out of the court system."

Serial litigators include Judith Fusari of New Britain, who has received fee waivers for 136 lawsuits and 58 appeals, some of which have dragged on for three years. Fusari, for instance, sued a Hartford bar because she said her daughter's two friends were served allegedly poisoned drinks. She sued a store that allegedly wouldn't sell a friend a mortorized scooter used by disabled people. A judge warned Fusari that she lacked standing in that case, and that she could be sanctioned for practicing law without a license.

Then there's Sylvester Traylor of Waterford, who has brought several lawsuits using fee waivers, including one against state legislators and court officials. In dismissing one claim, Superior Court Judge Carl Schumann said Traylor's "litigious fervor … has clearly reached the point of becoming unnecessarly costly, wasteful and fruitless."

But Lebby has received the bulk of the recent publicity. Over the past seven years, she has filed lawsuits against Family Dollar, Walmart, Connecticut Light & Power and Target. She had one notable success; in 2010, she was paid a $7,500 settlement by the Stamford-based WWE.

Other than that, she has mostly met with defeat. In 2008, Lebby sued the Brett Michaels Fan Club for $22 million because she only received a Christmas card and no other benefits after paying membership dues; that case was dismissed. A lawyer who represented Michaels, the singer for the rock band Poison, said he didn't want to be named or quoted for this story. "She's sued me and filed a grievance against me before," the lawyer said, "and I don't want that to happen again."

The judges who encounter Lebby have been forced to move with care because Connecticut law requires them "to be solicitous of pro se litigants when it does not interfere with the rights of other parties." But the judges have not always been patient when considering her amateur legal work. Lebby's motions, filed by the pile, are often presented in handwritten scribble.

"The plaintiff's filings in new and pending cases have become so numerous and so regular," New Haven Superior Court Judge Patty Jenkins Pittman observed in 2010, "that substantial clerk and judge resources are devoted on an almost daily basis in attempting to sort out and respond to her frequent, vague and often illegible filings."

Pittman wrote with some frustration that Lebby's numerous cases were "incomprehensible and frivolous."

The last time Pittman found herself facing Lebby was in 2010, when Lebby filed a lawsuit seeking "fifty eight trillion dollars" for "legal malpractice and defamation" from the Torrington Police Department. According to the complaint Lebby filed on handwritten sheets of paper, the basis for the lawsuit was that a police officer had not investigated Lebby's report that her 20-year-old daughter had an injured lip.

In its response, the Torrington police department pointed out that since the complaint arose from an incident in Lebby's New Britain home, then it was up to the New Britain police to investigate.

Constitutional Claims

Some opposition to changing the law has already been raised by constitutional law advocates — including those who represent themselves in court. One of them is Brooklyn Macellaio, a former East Hartford resident who has filed dozens of lawsuits under the fee waiver system. Macellaio started filing pro se lawsuits against state authorities in 2009, when he paid a $7,800 cash bond after being arrested in a domestic violence case and claims the money was never returned after he got out of jail.

The lawsuit, which names a dozen defendants, remains pending in Superior Court.

"Look, I'm indigent," said Macellaio, who now lives in New York. "The state can not mandate that the poor indigent parties participate in community service. If such a party refuses, they would not have the constitutional right to access to court and due process upheld. No state in the country has approved such a law and the Supreme Court certainly would not allow this."

To back up his point, Macellaio pulled out a law book. "The state Constitution and Connecticut General Statutes 52-259(b) clearly state that 'no person shall be denied access to court due to the inability to pay court fees,' he said.

Others advocates better known in the legal community warned against chilling access to the courts for the poor. Pat Kaplan, the former executive director of Greater New Haven Legal Assistance Association and the current acting executive director of the New Haven County Bar Association, said legal aid agenices are closely watching the legislation.

"I would think there would be constitutional challenges if they were to pursue this," Kaplan said. "You're asking people who can't afford the fees, who are usually impoverished for one reason or another, disabled, working a low wage job, to pay what they can't afford, and they don't have time to do community service," Kaplan added: "Maybe the intention is to stop frivolous cases, but it would have the unintended consequences of harming people who need child support or other remedies. It would have the unintended consequence that are far greater than the value it would serve."•