Howard v. Sharpe , 266 Ga. 771 ( 1996 )

Benham, Chief Justice,

dissenting.

I dissent from the majority’s opinion for two reasons: I believe that the habeas court’s sanctions are overly broad, and the court’s mandate that Howard obtain permission from it prior to seeking future relief is an illegal attempt to retain jurisdiction.

1. The habeas court’s prohibitions against Howard “acting as a ‘jailhouse lawyer’ ” and “giv[ing] legal assistance to any other inmates” are overly broad. The habeas court failed to specify what actions entail “acting as a ‘jailhouse lawyer,’ ” and also failed to state what conduct is encompassed in the meaning of “giv[ing] legal assistance.” Is giving an address of a particular court acting as a jailhouse lawyer or rendering legal assistance? Is giving the proper spelling of a legal term acting as a jailhouse lawyer or rendering legal assistance?

Further, I believe that the habeas court’s broad prohibition against acting as a jailhouse lawyer and rendering legal assistance to others presents a potential question of whether Howard’s freedom of speech and freedom of association rights are being violated. See generally Bullock v. City of Dallas, 248 Ga. 164 (281 SE2d 613) (1981); Aycock v. Police Committee of the Bd. of Aldermen, 133 Ga. App. 883 (212 SE2d 456) (1975). The habeas court has not set forth sufficient reasons to justify its broad and potentially constitutionally invasive sanctions.

2. I also believe that the habeas court’s mandate that Howard obtain permission from it prior to seeking relief in any other action is an illegal attempt to retain jurisdiction. Compare Heard v. Vegas, 233 Ga. 911 (213 SE2d 873) (1975) (“a court cannot attempt to retain jurisdiction [in a child custody case] after its final order”); compare also Anthony v. Anthony, 212 Ga. 356 (92 SE2d 857) (1956). Although the majority has determined that the habeas court’s order mandates that Howard obtain permission from any judge of the court, the habeas court’s express ruling dictates that Howard seek permission from the undersigned habeas court judge when attempting to file a claim in forma pauperis. This mandate is certainly overreaching and is not narrowly drawn; instead, I believe that the habeas court’s restrictions infringe upon Howard’s right to access to the courts (see Bounds v. Smith, 430 U. S. 817 (97 SC 1491, 52 LE2d 72) (1977) and Giles v. Ford, 258 Ga. 245 (1) (368 SE2d 318) (1988)) and, contrary to the majority’s conclusions, are not warranted by the particular circumstances of this case. The mandate ignores the statutorily created safeguards which are already in place to address the problem of frivolous suits being filed. OCGA § 9-15-2 (d) gives the superior court authority to deny filing of a pleading to a party seeking in forma pauperis status. Under this Code provision, the court in which Howard is attempting to file a claim may deny filing of the claim “if the pleading shows on its face such a complete absence of any justiciable issue of law or fact that the court could not reasonably grant any relief against any party named therein.” Yizar v. Ault, 265 Ga. 708 (462 SE2d 141) (1995). There are also procedural safeguards in place for parties who are not seeking in forma pauperis status, but file pleadings and pay the costs of such filings. For example, under OCGA § 9-15-14 (a) & (b), a party who has been found by the court to have filed a frivolous pleading may be ordered to pay the attorney fees and costs of defending the pleading or action.

For the foregoing reasons, I would affirm the denial of Howard’s petition for habeas corpus relief, but would strike the portion of the judgment imposing sanctions and would remand to the habeas court for reconsideration of the issue of sanctions. Therefore, I respectfully dissent.

I am authorized to state that Justice Sears joins in Division 1 of this dissent.