Bill Text: HI HB1965 | 2024 | Regular Session | Introduced

Hawaii House Bill 1965

HI State Legislature page for HB1965

Introduced

Bill Title: Relating To Abusive Litigation.

Spectrum: Partisan Bill (Democrat 29-1)

Status: (Introduced) 2024-01-31 - The committee(s) on JHA recommend(s) that the measure be deferred. [HB1965 Detail]

Download: Hawaii-2024-HB1965-Introduced.html

HOUSE OF REPRESENTATIVES	H.B. NO.	1965
THIRTY-SECOND LEGISLATURE, 2024
STATE OF HAWAII

A BILL FOR AN ACT

relating to abusive litigation.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that individuals who abuse their intimate partners have been known to misuse court proceedings to control, harass, intimidate, coerce, or impoverish the abused partner. This abuse of the litigation process occurs in a variety of contexts. In family court, abusers have used cases involving dissolution, legal separation, parenting-plan action or modification, a protection order, or child custody to harm or exploit their partner and children's well-being. Abusers have also filed meritless civil lawsuits alleging breach of contract, defamation, or another tort to force the abused partner to spend time, money, and emotional resources responding to the lawsuit. Due to the lengthy nature of legal proceedings, litigation abuse can extend long after the relationship has ended.

The legislature further finds that courts have considerable authority to respond to abusive litigation tactics while upholding litigants' constitutional right to access the courts. Because the courts have inherent authority to control the conduct of litigants, they have considerable discretion to fashion creative remedies in order to curb abusive litigation. The legislature intends to provide the courts with an additional tool to curb abusive litigation and to mitigate the harms perpetrated by abusive litigation.

Therefore, the purpose of this Act is to:

(1) Prohibit abusive litigation by a party who has been found by a court to have abused, stalked, or sexually assaulted the other party;

(2) Allow a court to dismiss a case or complaint upon a finding, based upon a preponderance of the evidence, that the primary purpose of the litigation is to abuse, harass, intimidate, or threaten the other party, or to maintain contact with the other party; and

(3) Allow a court to impose sanctions against a person found to be using abusive litigation, including awarding monetary amounts to the other party that were incurred in defending against the abusive litigation.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

ABUSIVE LITIGATION

§ -1 Definitions. As used in this chapter:

"Abusive litigation" means litigation in which the following apply:

(1) The opposing parties have a current or former relationship as a family or household member or there has been a civil order or criminal conviction determining that one of the parties stalked or sexually assaulted the other party;

(2) The party who is filing, initiating, advancing, or continuing the litigation has been found by a court to have abused, stalked, or sexually assaulted the other party pursuant to:

(A) An order for protection issued pursuant to section 586-3;

(B) A temporary restraining order issued pursuant to section 586-4;

(D) A no contact order pursuant to section 709-906(4);

(E) A foreign protective order issued pursuant to section 586-21;

(F) An order or decree issued pursuant to section 571-46 or section 580-74;

(G) A criminal conviction or a plea of nolo contendere, in this State or any other jurisdiction for any of the crimes identified in section 709-906 or section 711-1106.5, or a filing for any offense related to domestic violence offense;

(H) A pending criminal charge, in this State or any other jurisdiction, of domestic violence, as a result of which a court has imposed criminal conditions of release pertaining to the safety of the victim; or

(I) A signed affidavit from a domestic violence or sexual assault advocate or counselor working on behalf of an agency that assists victims of domestic violence and sexual assault; and

(3) The primary purpose of the litigation is found to be the abuse, harassment, intimidation, or threatening of the other party, or to maintain contact with the other party.

"Domestic violence" shall have the same meaning as in section 321-471.

"Family or household member" shall have the same meaning as section 586-1.

"Foreign protective order" means any order described by section 586-21.

"Litigation" means any kind of legal action or proceeding, including but not limited to:

(1) A filing of a summons, complaint, or petition;

(2) Serving a summons, complaint, or petition, regardless of whether it has been filed;

(3) Filing a motion, notice of court date, or order to appear;

(4) Serving a motion, notice of court date, or order to appear, regardless of whether it has been filed or scheduled;

(5) Filing a subpoena, subpoena duces tecum, interrogatories, request for production of documents, notice of deposition, or other discovery request; or

(6) Serving a subpoena, subpoena duces tecum, interrogatories, request for production of documents, notice of deposition, or other discovery request.

"Perpetrator of abusive litigation" means a person who files, initiates, advances, or continues litigation in violation of an order restricting abusive litigation.

"Protected party" means the party who requested and was granted an order finding and restricting abusive litigation.

§ -2 Finding of abusive litigation and order restricting abusive litigation. (a) A party may request the court to issue an order finding the opposing party has engaged in abusive litigation and restricting the abusive litigation. In the request, the requesting party shall demonstrate that:

(1) The opposing party has a current or former relationship as a family or household member with the requesting party or there has been a civil order or criminal conviction determining that the opposing stalked or sexually assaulted the requesting party; and

(2) The opposing party who is filing, initiating, advancing, or continuing the litigation has been found by a court to have abused, stalked, or sexually assaulted the requesting party pursuant to:

(A) An order for protection issued pursuant to section 586-3;

(B) A temporary restraining order issued pursuant to section 586-4;

(D) A no contact order pursuant to section 709-906(4);

(E) A foreign protective order issued pursuant to section 586-21;

(F) An order or decree issued pursuant to section 571-46 or section 580-74;

(I) A signed affidavit from a domestic violence or sexual assault advocate or counselor working on behalf of an agency that assists victims of domestic violence and sexual assault.

(b) A party may request an order finding and restricting abusive litigation:

(1) In any answer or response to the litigation being filed, initiated, advanced, or continued;

(2) By motion made at any time during any open or ongoing case;

(3) In an answer or response to any motion or request for an order;

(4) Orally in any hearing; or

(5) By petition.

(c) In the event that no formal complaint, motion, petition, or other pleading has been filed, the intermediate court of appeals shall have jurisdiction to hear the request and issue an order restricting abusive litigation.

(d) In the event that the litigation alleged to be abusive is filed in the family court, the family court may hear a request for an order restricting abusive litigation.

(e) In the event that the litigation alleged to be abusive is filed in the district court, the district court may hear a request for an order restricting abusive litigation.

(f) In the event that the litigation alleged to be abusive is filed in the circuit court, the circuit court may hear a request for an order restricting abusive litigation.

(g) Upon the request of a party for an order finding and restricting abusive litigation, the applicable court shall hold a hearing pursuant to section -3.

(h) The court administrator of the applicable court shall create:

(1) Forms for a petition or motion for an order restricting abusive litigation; and

(2) The form for an order restricting abusive litigation.

The forms shall be maintained by the clerk of the applicable court.

(i) No filing fee shall be charged to the responding party for proceedings pursuant to this section.

§ -3 Hearing; procedure. (a) At the hearing before the court pursuant to this chapter, evidence of any of the following shall create a rebuttable presumption that the litigation is being filed, initiated, advanced, or continued primarily for the purpose of harassing, intimidating, threatening, or maintaining contact with the other party and is therefore abusive litigation:

(1) The same or substantially similar issues between the same or substantially similar parties have been litigated within the past five years in the same court or any other court of competent jurisdiction;

(2) The same or substantially similar issues between the same or substantially similar parties have been raised, pled, or alleged in the past five years and were decided on the merits or dismissed;

(3) Within the last five years, the party allegedly engaging in abusive litigation has been sanctioned by any court for filing one or more cases, petitions, motions, or other filings that were found to have been frivolous, vexatious, intransigent, or brought in bad faith involving the same opposing party;

(4) A court has determined that the party allegedly engaging in abusive litigation has previously engaged in abusive litigation or similar conduct and has been subject to a court order imposing prefiling restrictions;

(5) Proffered legal claims are not based on existing law or by a reasonable argument for the extension, modification, or reversal of existing law, or the establishment of new law;

(6) Allegations and other factual contentions are made without adequate evidentiary support or are unlikely to have evidentiary support after a reasonable opportunity for further investigation; or

(7) An issue or issues that are the basis of the litigation have previously been filed in one or more other courts or jurisdictions and the actions have been litigated and disposed of unfavorably to the party filing, initiating, advancing, or continuing the litigation.

§ -4 Burden of proof; procedure; order restricting abusive litigation; sanctions. (a) Pursuant to section -3, if the court finds by a preponderance of the evidence that a party is engaging in abusive litigation and that any or all of the motions or actions pending before the court constitute abusive litigation, the litigation may be dismissed, denied, stricken, or otherwise disposed of with prejudice.

(b) Upon a finding of abusive litigation and after providing the parties an opportunity to be heard, the court may enter an order restricting abusive litigation that shall include conditions deemed necessary and appropriate, including:

(1) Awarding the protected party reasonable attorney's fees and the costs of responding to the abusive litigation, including the cost of seeking the order restricting abusive litigation;

(2) Awarding the protected party all costs of the abusive litigation, including but not limited to court costs; lost wages; transportation costs, including traveling to court to review files or pleadings; and childcare costs incurred as a result of defending against the abusive litigation;

(3) Identifying the protected party and imposing filing restrictions upon the party found to have engaged in abusive litigation that pertains to any future litigation against the protected party or the protected party's dependents; and

(4) Any other relief deemed necessary and appropriate by the court.

(c) If, pursuant to section -3, the court finds that the litigation does not constitute abusive litigation, the court shall enter written findings and the litigation shall proceed.

(d) Nothing in this section shall be construed to limit the court's inherent authority to control the proceedings and litigants before it.

(e) The provisions of this section are nonexclusive and shall not affect any other remedy available under the law.

§ -5 Filing of a new case; advancing or continuing abusive litigation; restrictions. (a) Except as otherwise provided in this section, a person who is subject to an order restricting abusive litigation shall be prohibited from filing or initiating new litigation and from advancing or continuing the abusive litigation against the protected party for the period of time that the restrictions are in effect.

(b) A person against whom filing restrictions have been ordered and who wishes to initiate a new case against the protected party or file a motion in an existing case against the protected party during the period of time that the filing restrictions are in effect shall make an application to the court. Upon the filing of an application, the court shall issue an order scheduling a hearing to determine whether the proposed litigation or motion in an existing case constitutes abusive litigation or if there are reasonable and legitimate grounds upon which the proposed litigation or motion is based.

(c) The scheduling order shall notify the protected party of the party's right to appear or participate in the hearing. The order shall specify that if the protected party declines to appear or participate in the hearing, the protected party is required to submit a written response. When possible, the protected party shall be permitted to appear remotely.

(d) Following the hearing, if the court determines that the proposed litigation or motion that a person against whom filing restrictions have been ordered is making application to file constitutes abusive litigation, the application shall be denied, dismissed, or otherwise disposed of with prejudice.

(e) If the court determines that the proposed litigation or motion does not constitute abusive litigation, the court shall grant the application and issue an order permitting the filing of the proposed litigation or motion. The order shall be attached to the front of the pleading to be filed with the clerk. The protected party shall be served with a copy of the order at the same time as the underlying pleading.

(f) The court shall make findings and issue a written order supporting the court's ruling.

(g) If the application is granted pursuant to this section, the period of time commencing with the filing of the application and ending with the issuance of an order permitting the filing shall not be computed as part of any applicable period of limitations within which the matter shall be instituted.

(h) If a protected party is served with a pleading filed by the person against whom filing restrictions have been ordered, and the pleading does not have an attached order allowing the pleading, the protected party may respond to the pleading by filing a copy of the order restricting abusive litigation and shall be under no obligation or duty to respond to the pleading; answer interrogatories or any other discovery request; or appear for depositions or any other responsive action required by rule or statute in a civil action.

(i) If it is brought to the attention of the court that a person against whom prefiling restrictions have been ordered has filed a new case or is continuing an existing case without having been granted permission pursuant to this section, the court shall dismiss, deny, or otherwise dispose of the matter. The court may take whatever action against the perpetrator of abusive litigation that the court deems necessary and appropriate for a violation of the order restricting abusive litigation."

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

Report Title:

Abusive Litigation

Description:

Establishes a court's authority to issue an order restricting abusive litigation.

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.