Scott v. Dist. Ct. (Clark County Dist. Atty.) ( 2015 )

 by a reasonable argument for a change in law, does not contain allegations
or information presented as fact for which evidentiary support is not
available or is not likely to be discovered after further investigation, does
not contain a claim or defense for an improper purpose (such as harassing
the opponent or increasing the costs of litigation), is not repetitive or
violative of a court order, and complies with Rule 11 of NRCP; and (5)
provides that if no action is taken on a proposed filing within 30 days, the
petition for leave to file is deemed rejected without the need for judicial
action unless the court orders otherwise.
A challenge to a vexatious-litigant determination and pre-
filing injunction may be raised in an original petition for a writ of
mandamus. See Jones v. Eighth Judicial Dist. Court, 130 Nev., Adv. Op.
53, 330 P.3d 475, 478 (2014). In evaluating the district court's exercise of
discretion, this court considers: (1) whether the petitioner received
reasonable notice of and an opportunity to oppose the vexatious-litigant
determination and pre-filing injunction; (2) whether the district court has
created an adequate record for review of the vexatious finding and
whether there were less onerous sanctions than a pre-filing injunction to
curb repetitive and abusive activities; (3) whether the actions identified by
the district court at step 2 show the petitioner to be vexatious, which
requires a finding that the filings were without arguable factual or legal
basis or filed with the intent to harass; and (4) whether the restrictive
order is narrowly tailored to address the specific problem and sets forth an
appropriate standard by which any future filings will be measured. Id. at
479-80. Because the vexatious-litigant determination is discretionary, this
court must determine whether the district court arbitrarily or capriciously
exercised its discretion. Id. at 480.
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We conclude that the district court's order does not support a
vexatious-litigant determination. The order finding Scott to be vexatious
failed to adequately identify the filings that were without arguable factual
or legal basis or which were filed with the intent to harass and abuse the
court process. It is insufficient to simply list every filing by a litigant in
making a vexatious-litigant determination. As noted in Jones, the purpose
of the vexatious finding and any subsequent restrictive order "must be to
curb vexatious litigation, not just litigiousness." Id. "The filings must be
more than just repetitive or abusive—they must also be without an
arguable legal or factual basis, or filed with the intent to harass." Id. The
order specifically identifies only one claim that was repeated, a challenge
to habitual criminal adjudication, but fails to identify the filings in which
this claim was raised and fails to make the appropriate finding that these
filings were without an arguable legal or factual basis or were filed with
the intent to harass.'
Giving further cause for concern, the order states that "[t]he
frivolous nature of Defendant's repeated filings are supported by their
continuous denial by [the district] court, and by the subsequent affirmance
of [the district] court's denial of Defendant's repeated filings by the
Nevada Supreme Court." Again there is no citation to any specific filings
'Because the order does not identify the particular filings, it is not
clear if Scott has raised this claim in recent court filings or if Scott ceased
raising this claim at some point in the past, which would call into question
the need for a restrictive order at this date. The order further states that
Scott's continued assertion "of his alleged 'illegal confinement' can only be
construed as bad faith litigation strategy designed to vex and harass the
State and this court." However, no specific examples were given in
support of this finding and thus it does not support a vexatious-litigant
determination.
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in support of this finding. This finding is problematic in that it conflates a
frivolous claim with a determination that a claim lacked merit or was
procedurally barred. Jones requires the court to find that the filings were
without an arguable legal or factual basis or were filed with the intent to
harass. Id. The fact that a petitioner was unsuccessful in litigating a
particular filing is not a sufficient basis for a vexatious-litigant
determination. Under these circumstances, we conclude that the
vexatious-litigant determination was not supported by an adequate record.
We further conclude that the sanction imposed, the pre-filing
injunction, was not narrowly drawn in this case. Jones specifically
requires that any restrictive order be "narrowly drawn to address the
specific problem encountered,' and Jones requires the court to consider
any sanctions available that are less onerous than a restrictive order. Id.(quoting Jordan v. State ex rel. Dep't of Motor Vehicles and Public Safety,
121 Nev. 44, 61-62, 110 P.3d 30, 43-44 (2005)). Jones notes that when the
specific problem is a litigant filing the same claim repeatedly, a restrictive
order may be entered that prevents the litigant from raising that claim
again. Id. As noted above, only one specific claim was identified as being
frivolous—repeated challenges to the habitual criminal adjudication. Yet
the injunction prohibits Scott from filing any documents challenging the
validity of his judgment of conviction without permission of the court.
This restrictive order fails to narrowly tailor the sanction. Further, Scott
is prohibited from filing any documents challenging his "custody status."
However, this language is unclear as to what types of challenges are
covered under its umbrella and would likewise fail the requirement that
the order be narrowly tailored.
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While the restrictive order did provide an adequate measure
for how future filings would be considered, the pre-filing injunction in this
case included troubling language that "[a]ny 'Petition for Leave of Court to
Permit Filing of Court Papers' will be deemed rejected, without the need
for judicial action, on the 30th day after the date of each filing, unless the
Court orders otherwise." This is problematic in that a litigant, or a
reviewing court, would have no means of ascertaining whether the district
court received the document, considered it, or exercised its discretion
regarding the filing of a proposed document. The court must provide some
manner of informing the litigant and creating a record that a document
was rejected for filing. This provision is not supportable from the record.
Finally, we deny the State's request to dismiss this petition
based upon the equitable doctrine of laches. 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 ITS VEXATIOUS-LITIGANT FINDING AND
PRE-FILING INJUNCTION. 2
J.
,O; C./WA tup , J.
Gibbons Pickering
2 Nothing in this order precludes the district court from conducting
further vexatious-litigant proceedings and imposing sanctions that meet
the stringent requirements of Jones.
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cc: Hon. Susan Johnson, District Judge
Steven Larue Scott
Clark County District Attorney
Eighth District Court Clerk
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