“Vexatious Litigant” Title Takes On Real Meaning in Phoenix Case

We have written before about changes to Arizona guardianship, conservatorship and probate proceedings adopted in the past year. Changes involved both probate laws and court rules. One thread running through both sets of changes: the notion that proceedings in probate court could be unnecessarily complicated by “vexatious litigants.”

The problem of a vexatious litigant should be obvious. In a court environment focused on thorough investigation — especially when there are allegations of wrong-doing — the costs can easily spiral out of control. There needs to be some mechanism to stop repetitive filings that impede, rather than advance, the cause of justice.

As it happens, the Arizona Court of Appeals has been dealing with just such a vexatious litigant for a year now. Five separate cases test the probate court’s ability to control multiple and frivolous filings by someone who has been tagged as vexatious. The vexatious litigant in those cases? The subject of the guardianship/conservatorship.

Mark Peterson (not his real name) first came to the attention of the Arizona court system after a party where, he alleged, he was assaulted by several other individuals. He filed lawsuits against several people who were at the party. He sued the attorney who represented some of the partygoers. He harassed family members of others in attendance.

The Arizona courts ordered Peterson not to harass any of the people involved. It dismissed his lawsuits. It even entered a $30,000 sanction against him. The court’s presiding judge declared him a vexatious litigant, and ordered that he could not file any more lawsuits without the judge’s permission. He kept harassing his victims.

In an attempt to deal with Peterson, the judge appointed an attorney as his “guardian ad litem,” and authorized her to file a guardianship, conservatorship and/or mental health petition on him. She did, and the court appointed the Maricopa County Public Fiduciary (a public guardianship agency in Arizona). Peterson filed a petition to terminate the guardianship and conservatorship. The court did end the conservatorship, but maintained the guardianship; it also approved an order his guardian ad litem had obtained, ordering him not to harass her or go to her office at all. The Public Fiduciary filed a final conservatorship accounting, and the court approved their account.

Peterson appealed, and in January of last year the Court of Appeals upheld everything the probate court had ordered — partly on the basis that Peterson’s appeal was improperly filed. The appellate judges approved the court’s process for limiting Peterson’s ability to file motions and court actions.

Meanwhile, Peterson had already filed a request with the probate court that he be permitted to file a lawsuit against AHCCCS, Arizona’s Medicaid agency, and a malpractice action against his treating medical team. The probate court had conducted two hearings on his request, and had denied him the authority to file additional lawsuits unless he first met with his guardian ad litem, and convinced his court-appointed attorney or guardian to file the lawsuits. Peterson appealed this denial, even as the appellate court was still considering his first (actually his third — but his first guardianship-related) appeal.

The Court of Appeals dismissed this appeal, too. It found that Peterson had failed to provide an adequate record (he had not ordered and paid for transcripts of the probate court hearing), and that the order finding him to be a vexatious litigant was proper.

That was not the last appeal, however. While the other two appeals were pending, Peterson filed a petition asking the probate court to terminate his guardianship and lift the pre-filing limitations on his access to the courts. The probate judge denied his petition, and — you probably guessed this — he appealed.

The Arizona Court of Appeals denied Peterson’s most recent request, just as it had denied the earlier appeals. It is well-settled by now, ruled the appellate judges, that Peterson is a vexatious litigant, and the restrictions on his ability to file multiple petitions, motions and lawsuits are appropriate in the circumstances.

One interesting item to note about the three probate-related appeals orders covering Mr. Peterson: the first was a 12-page opinion, the second 11 pages and the most recent down to 10 pages. Apparently the Court of Appeals is having less trouble upholding Peterson’s status as a vexatious litigant with each visit he makes to their court. In Re Petramala, January 14, 2011, May 5, 2011 and February 23, 2012 (unpublished memorandum decisions).

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