The Colorado Constitution, in Article II, Section 6, gives every person the right to use the courts of this state. This includes the right to appear pro se — that is, without a lawyer (although it’s frequently said you will then have a fool for a client).
The right to access the courts is not, however, without limitations. In particular, lawsuits cannot be used to harass or annoy. But every once in a while this line gets crossed and the Colorado Supreme Court must take action to restore order. Such a case, involving a man named Robert A. Francis (himself a lawyer), was decided by the court in September. In this case, the court entered an order stating that Francis, “whether acting individually or on behalf of a trust or some other entity, is now enjoined from proceeding pro se as a proponent of a claim in any present or future litigation in the state courts of Colorado.” Thus, although Francis can still sue people, he now needs to be represented by a lawyer to do so.
What led to this ruling? Back in 2010, Francis got crosswise with the unit owners association for Aspen Mountain Condominiums. He was unhappy about a sewage drain backup that damaged his unit and a decision to raise his share of common area expenses from 8% to 9%, and he filed a lawsuit in Pitkin County District Court intended to address these issues. But this lawsuit quickly got out of control, with Francis then filing additional lawsuits in district courts, county courts and small claims courts in Pitkin County, Eagle County and Denver County. Francis named as defendants in these lawsuits not just the owners association and members of its board but also a property management company and its owner; multiple lawyers who showed up in these cases; a contractor; a title company; and American Family Insurance. In all, Francis, over a 10-year period, filed 26 lawsuits in addition to his initial lawsuit. The Colorado Supreme Court, in its September decision, described these additional lawsuits as “duplicative, frivolous, groundless and vexatious.”
The court said that, after Francis refused to back down, notwithstanding warnings, reprimands and the suspension of his law license, it was incumbent on the court to step in and say “enough.” Francis, the opinion said, had forced the courts of this state to “play a game of judicial whack-a-mole.” The court also said having further sanctions imposed on Francis by lower courts would be about as “useful as a mosquito net made of chicken wire.”
Early on in this drama, the condominium unit owners association asserted a counterclaim against Francis for failure to pay assessments and attorneys fees, ultimately resulting in a judgment against him in the amount of $285,447.92 (undoubtedly much larger by now). This led to a lien being filed against his unit and a proceeding to foreclose that lien. The Supreme Court’s decision didn’t give the status of the foreclosure but it could very well be that Francis has lost, or will end up losing, his property to foreclosure. In all events, it’s clear that Francis’ assault on the courts of Colorado provided him with little useful benefit (although he did manage to get his share of common area expenses back down to 8%).
Francis, by the way, does not hold the record for pro se lawsuit filings leading to Supreme Court intervention. That record is held by Rainsford and Winifred Winslow, husband and wife non-lawyers, who, over a 14-year period, filed 162 separate cases in state and federal courts.
Jim Flynn is with the Colorado Springs firm of Flynn & Wright LLC. You can contact him at email@example.com.