State Attorney General Rob McKenna is proposing a "three-strikes" bill that would prevent inmates from filing suits at public expense if an inmate has filed three or more frivolous suits in the past.

Bill sponsor Rep. Charles Ross (R-14, Yakima) presented the bill to the house judiciary committee today. Ross said there were two competing interests—access to the courts and protecting the state against "unintended consequences" of "habitual offenders" who were using the justice system "for negative purposes."

The bill is based on a similar federal law passed in 1996. (The reason it's necessary at the state level, proponents say, is precisely because of the federal law—the three strikes rule only applies in federal court and now state courts have been overwhelmed with "abusive" lawsuits brought by inmates whose cases have been denied at the federal level.)

Opponents of the bill, such as the ACLU of Washington, testified this afternoon that there was "a danger of blocking truly meritorious claims" and worried about the constitutionality of basing dismissals "on the identity of the litigant" as opposed to the worth of the claim itself.

The federal law has been held constitutional, but as John Sinclair, who was testifying against the bill along with the ACLU on behalf of the Washington Association of Criminal Defense Lawyers, pointed out: "If you're poor, you can't bring suits; if you can afford a lawyer, you can file 40 lawsuits."

This recast the bill, showing that it could single out indigent prisoners with legitimate claims. Sinclair noted that Washington State's constitution is stronger on this point— guaranteeing legal representation for the poor— than the U.S. constitution, and the bill may be unconstitutional by Washington State standards.

Timothy Lang, a senior assistant attorney general from McKenna's office, testified that the bill was necessary to ward off  "abusive cases" that cost the state valuable time and money.

He noted two cases that would have not been allowed under the federal three strikes rule, both of which he called "unconstitutional on their face." In one, an inmate with no standing to file a lien claimed his constitutional rights were being denied because he wasn't being given the documents he needed to file the lien. In another, an inmate claimed he didn't have to undergo the remedial treatment that the Department of Corrections required because it wasn't part of his sentence. Lang pointed out that there is no rule preventing the DoC from prescribing additional treatment.

Lang presented a letter from this plaintiff which highlighted how abusive these cases can be.

The AG's office does have a point in this instance.

The letter from the inmate stated:
Attached please find what will be my initial discovery request. As you can see, it is quite substantial, so I thought that before so much time and effort goes into the thing, now might be the time to talk about alternative resolution of this matter. ...

The plaintiffs' desires are quite clear: We don't want to participate in any programs except those of our own choosing. In order to accomplish that goal, we are willing to spend the next couple of years in litigation.


In the alternative, you now have some forewarning as to the nature and scope of discovery.

However, acknowledging another point that the opponents made—that judges could already throw out frivolous cases—Lang told PubliCola: "We probably [have a pretty good chance of getting the judge to dismiss that one."

So why is the bill necessary?

"We're already four months in," Lang said.
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