Combating Frivolous Filings from Prisoners

Each year in Illinois, the bench and bar expend copious taxpayer resources to process and dispose of frivolous claims filed by state prisoners.  When confronted with prisoner-initiated litigation, the courts must strike a delicate balance between combating frivolous claims, on the one hand, and preserving the prisoner's right of access to the courts on the other.  Unless dealt with appropriately, a frivolous claim can spend years snaking through the trial and appellate courts like a parasite, consuming precious legal resources and wasting taxpayer dollars along the way.  Worse yet, when the courts fail to respond appropriately to a prisoner's first frivolous claim, the prisoner may take up an interest in what the appellate court has deemed "litigation for sport."

It's not always immediately clear whether a particular filing—such as a postconviction petition or a petition for relief from judgment under section 2-1401 of the Code of Civil Procedure—has any factual or legal merit.  But once it becomes clear that a prisoner is simply wasting the court's time with his bogus claim, the court should not simply dismiss the filing, kick the case up to the appellate court, and appoint the office of the State Appellate Defender (OSAD) as counsel on appeal.  That common course of action simply allows the frivolous claim to continue consuming judicial time and resources.  By following a few under-utilized statutes, Illinois courts can do more to combat frivolous prisoner litigation, while simultaneously respecting the fundamental right to access the courts.

At the trial court level, section 22-105 of the Code of Civil Procedure allows the court to collect costs from a prisoner who files a frivolous claim.  That statute provides that when a prisoner files a "pleading, motion, or other filing which purports to be a legal document" in certain civil proceedings, and the court "makes a specific finding that the [filing] is frivolous, the prisoner is responsible for the full payment of filing fees and actual court costs."  735 ILCS 5/22-105.  Such costs are collected directly from the prisoner's Department of Corrections trust account or individual account. 

Section 22-105 applies whenever a postconviction petition is summarily dismissed as frivolous or patently without merit at the first stage of postconviction proceedings.  People v. Alcozer, 241 Ill. 2d 248, 258, 948 N.E.2d 70, 77 (2011).  The statute also applies to habeas petitions under Article X of the Code of Civil Procedure, second or subsequent petitions under section 2-1401 of the Code of Civil Procedure, and claims brought under the Court of Claims Act.  The statute, which sets a fairly liberal standard for the court to collect costs from a prisoner, should be used more often than it is.  At the very least, after a prisoner's first frivolous filing, the court should admonish the prisoner that it will collect costs under section 22-105 if the prisoner files a subsequent frivolous filing.  Knowing that his bank account may take a hit, the prisoner will likely think twice before placing his next filing in the prison mail.  

In terms of safeguarding judicial resources, the trial court's most important decision comes after it dismisses a prisoner's frivolous claim, when it must decide whether to appoint OSAD as counsel on appeal.  The State Appellate Defender Act provides simply that OSAD "shall represent indigent persons on appeal in criminal and delinquent minor proceedings, when appointed to do so by a court[.]"  725 ILCS 105/10.  The supreme court has held that OSAD "may be appointed to represent indigents on appeal only as the Act provides." (Emphasis in original.)  Kirwan v. Karns, 119 Ill. 2d 431, 434, 519 N.E.2d 465, 466 (1988). 

Under the Kirwan court's interpretation of the State Appellate Defender Act, the trial court may not appoint OSAD as counsel on appeal from civil proceedings, such as proceedings under section 2-1401 of the Code of Civil Procedure.  The ubiquitous contrary practice, in which trial courts appoint OSAD in almost every case, should come to an end.  After dismissing a section 2-1401 petition, the trial court should not appoint OSAD—or any attorney—as counsel on appeal.  See People v. Kane, 2013 IL App (2d) 110594 ("There is no statutory basis for the appointment of counsel in a section 2–1401 proceeding.")  Instead, the court should admonish the prisoner that he has a right to appeal, and leave the rest up to him. 

Finally, when the appellate court disposes of a frivolous appeal from a prisoner, it should proceed with the following three steps: warn, punish, prevent.  First, the appellate court should determine whether the prisoner has shown a history of frivolous litigation and, if so, warn him in its order that subsequent frivolous appeals will result in sanctions under Illinois Supreme Court Rule 375(b).  Next, if the prisoner is bold enough to bring a subsequent frivolous appeal, the appellate court should direct the prisoner to show cause why the threatened sanctions should not be imposed.  Finally, as part of that order, the appellate court should direct its clerk to disregard subsequent appeals from the prisoner until the rule to show cause has been answered and/or the sanctions have been paid.  (For an example of this type of order, see the Fourth District Appellate Court's decision in Williams v. Commissary Department of Illinois Department of Corrections, 407 Ill. App. 3d 1135, 948 N.E.2d 1061 (2011).)

It's difficult to imagine the amount of man hours and taxpayer dollars that have been spent disposing of prisoners' frivolous legal claims when neither the law nor common sense dictated that such expenditures were necessary.  By utilizing the handful of statutes mentioned above, trial and appellate courts can significantly reduce the costs of frivolous claims, while maintaining prisoners' rights to access the courts.  But old habits die hard, and the State and OSAD should step up to remind the courts that frivolous claims from prisoners need not consume any more resources than the law requires.