Birch (Bruce) v. Dist. Ct. (State) ( 2015 )

 emphasizes that the court's order of July 24, 2014, "remains in effect and
the Clerk is directed to return, unopened, any correspondence to [Birch]."
"Mandamus is an extraordinary remedy, and the decision to
entertain a petition for a writ of mandamus rests within our discretion."
Jones v. Eighth Judicial Dist. Court, 130 Nev., Adv. Op. 53, 330 P.3d 475,
478 (2014). "We have indicated that mandamus is the appropriate vehicle
for challenging orders that restrict a litigant's access to the courts." Id.;
see also Round Hill Gen. Improvement Dist. v. Newman, 97 Nev. 601, 637
P.2d 534 (1981) ("Mandamus will not lie to control discretionary action,
unless discretion is manifestly abused or is exercised arbitrarily or
capriciously." (internal citation omitted)). We elect to exercise our
discretion and consider the merits of Birch's writ petition.
We have recognized the district court's "inherent authority to
issue orders that restrict a litigant's filings that challenge a judgment of
conviction and sentence if the court determines that the litigant is
vexatious," Jones, 130 Nev., Adv. Op. 53, 330 P.3d at 479, and we have
outlined a four-step analysis for the district courts to employ, id. at 479-80
(concluding that the litigant must have reasonable notice of and
opportunity to oppose a restrictive order; that the district court must
create a record explaining the reasons for the restrictive order and
consider any less onerous sanctions when the restrictive order precludes a
litigant from filing challenges to a judgment of conviction or sentence; that
the district court must make findings as to the vexatious nature of the
litigant's actions; and that the order must be narrowly drafted to address
the specific problem and must set forth an appropriate standard by which
to measure any future filings).
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We conclude the district court acted arbitrarily and
capriciously by entering the restrictive order on July 24, 2014, and that
the subsequent July 20, 2015, order did not remedy the problem.' From
the record, it does not appear the district court considered all four steps
outlined in Jones before entering the restrictive order, and no other
authority allowing the district court to order the return of unopened
correspondence that contains documents for filing is cited. See Huebner v.
State, 107 Nev. 328, 332, 810 P.2d 1209, 1212 (1991) (holding that court
clerk must "stamp clearly the actual date of receipt on each and every
document submitted for filing, whether submitted by an attorney or by an
individual attempting to proceed in proper person, and whether or not the
document is actually filed"); see also Whitman v. Whitman, 108 Nev. 949,
951-52, 840 P.2d 1232, 1233-34 (1992) (holding that the court clerk has no
authority to return documents submitted for filing but instead has a duty
to maintain such documents and keep an accurate record of the case).
Accordingly, we
ORDER the petition GRANTED AND DIRECT THE CLERK
OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the
district court to vacate the portions of its July 24, 2014, and July 20, 2015,
'While the district court attempted to tailor the restrictive order by
allowing the filing of Birch's complaint and any legal pleadings related
thereto, we are not convinced that this provision could be practically
achieved when Birch's letters are being returned without being opened.
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orders that direct the court clerk to return, unopened, correspondence
from Birch. 2
, J.
Gibbons
1- A7
Ad&e.0
Pickering
cc: Hon. Patrick Flanagan, District Judge
Bruce Harrison Birch
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
2 Wehave received the pro se documents submitted in this matter
and conclude that no further relief is warranted.
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