Jones v. Eighth Jud. Dist. Ct.

130 Nev., Advance Opinion 53
IN THE SUPREME COURT OF THE STATE OF NEVADA
DARRYL L. JONES, No. 63303
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT FILED
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF JUL 0 3 2014
CLARK; AND THE HONORABLE :pp K. LINDEMAN
CLER SWT
DOUG SMITH, DISTRICT JUDGE, BY '
DEPUTY CLERK
Respondents,
and
THE STATE OF NEVADA,
Real Party in Interest.
Original proper person petition for a writ of mandamus
challenging a district court order labeling petitioner a vexatious litigant
and restricting his access to the courts.
Petition granted.
Darryl L. Jones, Indian Springs,
in Proper Person.
Catherine Cortez Masto, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District
Attorney, Clark County,
for Real Party in Interest.
BEFORE HARDESTY, DOUGLAS and CHERRY, JJ.
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OPINION
By the Court, DOUGLAS, J.:
In considering this petition, we address whether the district
court has the authority to restrict a criminal defendant's access to the
courts in order to challenge a judgment of conviction and sentence or the
computation of time served under a judgment of conviction and, if so, what
approach courts should take when restricting that access.
Petitioner Darryl Jones filed a timely post-conviction petition
for a writ of habeas corpus challenging his judgment of conviction and
sentence, his first such petition. Jones represented himself in the post-
conviction proceeding. Based on motions filed by Jones, including a
motion for the appointment of post-conviction counsel, the district court
determined that Jones was a vexatious litigant and issued an order
restricting Jones' ability to file further documents in the district court.
Jones filed this original petition to challenge that order.
This court has held that a district court has authority to label
indigent proper person civil litigants as vexatious litigants and to restrict
their access to the courts. Jordan v. State ex rel. Dep't of Motor Vehicles &
Public Safety, 121 Nev. 44, 59, 110 P.3d 30, 41-42 (2005), abrogated on
other grounds by Buzz Stew, L.L.C. v. City of N. Las Vegas, 124 Nev. 224,
228 n.6, 181 P.3d 670, 672 n.6 (2008). It has not addressed restrictive
orders that prohibit a litigant from challenging a judgment of conviction or
the litigant's custody status pursuant to a judgment of conviction. We
conclude that the district court may restrict a litigant from filing petitions
and motions that challenge a judgment of conviction or the litigant's
custody status pursuant to a judgment of conviction and that the
guidelines set forth in Jordan adequately protect a litigant's rights while
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providing instruction for the district courts as to when a restrictive order
is warranted and the proper scope of a restrictive order. A court imposing
access restrictions on a vexatious litigant with respect to filings that
involve post-conviction challenges to a judgment of conviction or
computation of time served pursuant to a judgment of conviction must: (1)
provide notice of and an opportunity to oppose the proposed restrictions;
(2) create an adequate record that includes a list of the filings or other
reasons that led it to conclude that a restrictive order is needed, including
consideration of other less onerous sanctions to curb the repetitive or
abusive activities; (3) make substantive findings as to the frivolous or
harassing nature of the litigant's actions; and (4) narrowly tailor the
restrictions to address the specific problem and set an appropriate
standard by which to measure future filings. Under the facts presented in
this case, we conclude that the district court acted arbitrarily and
capriciously when it determined that Jones was a vexatious litigant and
entered an order restricting his access to the court. We therefore grant
the petition.
FACTS AND PROCEDURAL HISTORY
Jones was convicted, pursuant to a jury verdict, of five counts
of burglary, one count of attempted theft, five counts of obtaining and
using the personal identification information of another, four counts of
theft, two counts of grand larceny auto, two counts of obtaining property
under false pretenses, and one count of possession for sale of a document
or personal identifying information to establish false status or identity.
He was sentenced to a total of approximately 51 to 134 years in prison.
On direct appeal, this court reversed the judgment of conviction as to four
counts but affirmed as to the remaining counts. Jones v. State, Docket No.
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55508 (Order Affirming in Part, Reversing in Part, and Remanding,
November 5, 2010).
After his appeal, Jones filed a timely post-conviction petition
for a writ of habeas corpus on December 21, 2010. At the time, he was not
represented by counsel He filed amendments to the petition in proper
person on January 24, 2011, and February 3, 2011.
Jones filed in proper person a motion for the production of
documents on April 14, 2011, and a motion to extend his prison copy limit
on April 20, 2011. On April 28, 2011, the State filed a consolidated
opposition and a request for vexatious litigant determination. At a
hearing held on May 11, 2011, regarding Jones' motion for the production
of documents, the district court stated in passing that Jones was a
vexatious litigant and that he would be referred to the chief judge for an
official determination. Jones was not present at this hearing, nor was he
represented by counsel at the hearing.
A cursory order designating Jones a vexatious litigant was
entered on June 16, 2011. The order lists four orders as proof that Jones
is a vexatious litigant: a March 14, 2011, order denying Jones' motion for
the appointment of counsel; a May 2, 2011, order denying Jones' motion to
extend prison copy work and motion for the production of documents; a
May 9, 2011, order denying Jones' post-conviction petition for a writ of
habeas corpus;' and the order finding that Jones was a vexatious litigant.
1 0nMarch 7, 2011, the district court issued a minute order vacating
Jones' petition because it exceeded the department's 20-page limit and
informed Jones that he needed to comply with the limit and refile. Jones
filed a notice of appeal. Because the district court had not yet entered a
written order, we directed the district court to do so. The district court
then entered a written "Order Vacating Hearing on Defendant's Petition
continued on next page...
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It further states in a conclusory fashion that Jones' filings have not been
made in good faith and that they have been filed solely for the purpose of
harassing the State and the district court. Finally, the order states "that
all future filings by defendant in this matter are referred to the Chief
Judge for review and approval before they may come before this
Department." Jones filed this petition for a writ of mandamus to
challenge the order designating him as a vexatious litigant and restricting
his access to the court.
DISCUSSION
Mandamus is an extraordinary remedy, and the decision to
entertain a petition for a writ of mandamus rests within our discretion.
See Poulos v. Eighth Judicial Dist. Court, 98 Nev. 453, 455, 652 P.2d 1177,
1178 (1982); see also State ex rel. Dep't of Transp. v. Thompson, 99 Nev.
358, 360, 662 P.2d 1338, 1339 (1983). We have indicated that mandamus
is the appropriate vehicle for challenging orders that restrict a litigant's
access to the courts. Peck v. Crouser, 129 Nev. , 295 P.3d 586, 588
(2013). Because Jones has no other remedy at law and the petition raises
an important issue involving his right to access the courts, we exercise our
...continued
for a Writ of Habeas Corpus" on July 13, 2011. The written order stated
that the petition was unreasonably and excessively lengthy, and contained
grounds that were not relevant, discernible, or cognizable by the district
court. The order further indicated that Jones was required to refile his
petition before the district court would consider it This court reversed the
district court order and remanded for the district court to consider the
petition on the merits. Jones v. State, Docket No. 58052 (Order of
Reversal and Remand, September 14, 2011). We also suggested that the
district court should appoint post-conviction counsel to represent Jones,
which it did on October 14, 2011.
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discretion to entertain the petition. See State ix Eighth Judicial Dist.
Court (Armstrong), 127 Nev. „ 267 P.3d 777, 779-80 (2011).
In 2005, in a civil case, this court recognized that Nevada
courts have "the power to permanently restrict a litigant's right to access
the courts," Jordan v. State ex rel. Dep't of Motor Vehicles & Public Safety,
121 Nev. 44, 59, 110 P.3d 30, 41-42 (2005), and approved procedures to
guide courts in determining whether to restrict a litigant's access to the
courts and in narrowly tailoring a restrictive order, id. at 60-62, 110 P.3d
at 42-44. The court also recognized that constitutional considerations
preclude courts from imposing a complete ban on filings by an indigent
proper person litigant "if the ban prevents the litigant from proceeding in
criminal cases and in original civil actions that sufficiently implicate a
fundamental right." Id. at 62, 110 P.3d at 43. Jordan did not discuss the
propriety of restrictive orders that limit filings that challenge a judgment
of conviction or the computation of time served pursuant to a judgment of
conviction.
While Nevada has not considered restrictive orders in the
criminal or post-conviction context, many other jurisdictions have
concluded that the courts may issue restrictive orders to curb repetitive or
abusive activities by litigants in challenging a judgment of conviction.
Courts in some jurisdictions have determined that they have the inherent
authority to impose sanctions and that injunctive restrictions on filings by
vexatious litigants are necessary and prudent to curb conduct that would
impair the rights of other litigants and the court's ability to carry out its
functions. See Alexander v. United States, 121 F.3d 312, 315-16 (7th Cir.
1997); Carter v. United States, 733 F.2d 735, 737 (10th Cir. 1984); Rivera
v. State, 728 So. 2d 1165, 1166 (Fla. 1998); Howard v. Sharpe, 470 S.E.2d
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678, 680 (Ga. 1996). Other states, like Ohio, have vexatious-litigant
statutes that allow courts to find criminal defendants filing post-conviction
petitions for writs of habeas corpus to be vexatious litigants. 2 See Ohio
Rev. Code Ann. § 2323.52; Baumgartner v. Duffey, 904 N.E.2d 534, 535
(Ohio 2009) (applying Ohio Rev. Code Ann. § 2323.52 to petitions for writs
of habeas corpus).
Although Nevada does not have a specific vexatious-litigant
statute, we conclude that the district courts have 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. Similar to the federal and state courts and this court's
conclusions in Jordan, the authority to issue a restrictive order is based on
the fact that the courts are constitutionally authorized to issue all writs
proper and necessary to complete the exercise of their jurisdiction and that
"courts possess inherent powers of equity and of control over the exercise
of their jurisdiction." Jordan, 121 Nev. at 59, 110 P.3d at 41 (citing Nev.
Const. art. 6 §§ 4, 6(1)). The filing of numerous petitions and other
motions challenging a judgment of conviction and sentence takes up
significant judicial resources, and the use of restrictive orders may help
curb vexatious behavior and preserve scarce judicial resources. But the
right to access the courts is an important constitutional concern, Sullivan
v. Eighth Judicial Dist. Court, 111 Nev. 1367, 1372, 904 P.2d 1039, 1042
2Texas and California also have vexatious-litigant statutes but,
based on the language of the statutes, have concluded that their statutes
only apply to civil cases and that post-conviction petitions for a writ of
habeas corpus are more criminal in nature than civil. See Aranda v.
District Clerk, 207 S.W.3d 785, 786 (Tex. Crim App. 2006); In re Bittaker,
64 Cal. Rptr. 2d 679, 683 (Ct. App. 1997).
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(1995), and one that should not be restricted as a sanction for vexatious
litigation without careful consideration. These competing interests must
be carefully balanced, particularly where the restrictive order would limit
a litigant's access to the courts in order to challenge a judgment of
conviction and sentence. We conclude that the four-step analysis set forth
in Jordan provides the appropriate balance between the litigant's right to
access the courts to challenge a judgment of conviction and sentence and
the public's interest in protecting scarce judicial resources from repetitious
and vexatious litigation. See generally Jordan, 121 Nev. at 60 & n.27, 110
P.3d at 42 & n.27.
The first part of the analysis "protects the litigant's due
process rights." Id. at 60, 110 P.3d at 43. Thus, "the litigant must be
provided reasonable notice of and an opportunity to oppose a restrictive
order's issuance." Id. at 60, 110 P.3d at 42.
The second part of the analysis focuses on the record
supporting a restrictive order. The district court must create an adequate
record for review that includes a list of the petitions or motions, or an
explanation of the reasons, "that led it to conclude that a restrictive order
was needed to curb repetitive or abusive activities." Id. at 60, 110 P.3d at
43. In the context of restrictive orders that preclude a litigant from filing
documents that challenge a judgment of conviction and sentence, the
district court must also consider whether there are other, less onerous
sanctions available to curb the repetitive or abusive activities. See id. at
60, 110 P.3d at 42 ("[VVle note a general reluctance to impose restrictive
orders when standard remedies like sanctions are available and adequate
to address the abusive litigation."). There are several standard remedies
available to district courts to curb abusive litigation challenging a
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judgment of conviction and sentence. 3 If a litigant is filing a second or
successive petition and raises the same claims that have been previously
determined on the merits or raises claims that are new or different from
those previously raised, the district court has the authority to summarily
dismiss the petition without ordering the State to respond. See NRS
34.810(2); NRS 34.745(4). Another available sanction is to refer the
litigant to the Department of Corrections for the forfeiture of credits
previously earned. See NRS 209.451(1)(d), (5) (providing for the forfeiture
of credits if an inmate files a petition for a writ of habeas corpus in state or
federal court that contains a claim or defense that is included for an
improper purpose, is not warranted by existing law or does not argue for a
reasonable change in the law, or contains allegations not supported by
evidence); see also Nev. Dep't of Corr. Admin. Regulation 707.02(5) (2010)
(setting forth that it is a major violation (MJ 48) of the prison rules to
violate a rule of court, submit false documents, violate the rules of civil,
criminal, or appellate procedure, or to receive sanctions or warning for any
such action from any court). Therefore, the district court should consider
whether there are other standard remedies that are available and
3 We note that in Nevada there is no fee for filing a post-conviction
petition for a writ of habeas corpus, NRS 34.724(1), and district court
clerks cannot charge a filing fee that is not authorized by law, NRS 19.070;
see also NRS 19.013(5) (stating that no filing fee may be charged to any
defendant or the defendant's attorney in any criminal case or in habeas
corpus proceedings); NRS 2.250(1)(d) (stating that the supreme court clerk
cannot charge a filing fee in any action where the State is a party, or
where the appeal is from a habeas corpus proceeding that is criminal in
nature or where an appeal is taken from a criminal proceeding or from a
special proceeding arising out of a criminal proceeding). As a result,
Nevada courts cannot use a filing fee to curb abusive post-conviction
litigation.
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adequate to curb the abusive litigation before entering a restrictive order
preventing the filing of a petition or motion.
The third part of the analysis focuses on whether the litigant's
actions identified by the district court in the second part of the analysis
are vexatious. "fTlhe district court must make substantive findings as to
the frivolous or harassing nature of the litigant's actions." Jordan, 121
Nev. at 61, 110 P.3d at 43 (internal quotation marks and citations
omitted). 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. In other words, the purpose of a restrictive order
must be to curb vexatious litigation, not just litigiousness. Id.
The final part of the analysis is focused on protecting the
litigant's constitutional right to access the courts by ensuring that the
restrictive order is narrowly tailored. "[T]he order must be narrowly
drawn to address the specific problem encountered" and must set an
appropriate standard by which any future filings will be measured. Id. at
61-62, 110 P.3d at 43-44. For example, if the specific problem is that the
litigant repeatedly asserts the same claim or type of claim, the restrictive
order should be limited to filings raising the same claim or type of claim.
Further, if the district court determines that a litigant has been abusive in
his filings challenging a judgment of conviction, the restrictive order
should only bar abusive challenges to the judgment of conviction. Such an
order thus would not preclude the litigant from filing a challenge to the
computation of time served pursuant to a judgment of conviction based on
a disciplinary hearing that resulted in the forfeiture of credits. The order
should be no more restrictive than warranted by the litigant's vexatious
actions.
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Turning to the restrictive order challenged by Jones, the
question is whether the district court arbitrarily or capriciously exercised
or manifestly abused its discretion. Peck, 129 Nev. at , 295 P.3d at 588;
see also Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637
P.2d 534, 536 (1981). "An arbitrary or capricious exercise of discretion is
one founded on prejudice or preference rather than on reason, or contrary
to the evidence or established rules of law." Armstrong, 127 Nev. at ,
267 P.3d at 780 (internal quotation marks and citations omitted).
Similarly, "[a] manifest abuse of discretion is laj clearly erroneous
interpretation of the law or a clearly erroneous application of a law or
rule."' Id. (quoting Steward v. McDonald, 958 S.W.2d 297, 300 (Ark.
1997)).
Although this court had not clearly addressed restrictive
orders that limit a criminal defendant's filings that challenge a judgment
of conviction and sentence before today, our decision in Jordan provided at
least some relevant guidance as the only decision by this court related to
restrictive orders. It does not appear that the district court considered
Jordan.
First, the district court failed to provide Jones with reasonable
notice of, and an opportunity to oppose, the restrictive order's issuance.
The State filed its request for vexatious determination on April 28, 2011.
That motion did not put Jones on notice that the court was considering a
restrictive order because it did not request such an order. In the motion,
the State did not mention a restrictive order or Jordan; rather, the State
asked the court to sanction Jones' allegedly vexatious litigation practices
pursuant to NRS 209.451, which provides for the forfeiture of credits.
There also is no record of Jones being given an opportunity to oppose the
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issuance of a restrictive order. The determination that Jones was
vexatious appears to have been made at a hearing on May 11, 2011, when
the district court summarily stated that "Jones is a vexatious litigator." 4
Jones was not present at that hearing and was not represented by
counsel •The district court's quick decision without a hearing did not
5
allow Jones to oppose the issuance of a restrictive order in writing or
orally. Because the notice and the opportunity to oppose were inadequate
or nonexistent, the restrictive order violated Jones' due process rights.
Second, the district court failed to create an adequate record
for review or to give an explanation of the reasons that led it to conclude
that a restrictive order was necessary. The district court's conclusory
statement that Jones' filings were not made in good faith and had been
filed solely to harass the State and the district court is not supported by
the record. The district court merely listed four of its own orders in
4 The court indicated that it believed it had to transfer the matter to
the chief judge "to make [the] final determination" as to Jones being a
vexatious litigant At a brief proceeding on the record one month later,
the district court indicated that it "was determined" that Jones was a
vexatious litigant and that the court would prepare findings of fact and
send them to the chief judge. It does not appear that the matter was ever
referred to the chief judge. A few days later, the respondent district court
judge entered the restrictive order.
5 The State suggests that Jones' attorney was informed at the May
11, 2011, hearing that the district court was considering a vexatious
determination. But the record does not indicate that Jones was
represented by counsel or was present at that hearing. The counsel that
the State suggests had notice was the Clark County Public Defender's
Office. Although that office may have represented Jones early in the
criminal case before conflict counsel was appointed, the office did not
represent him in the post-conviction proceeding.
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support of its determination. Those orders denied appellant's motion for
the appointment of counsel, motion for the production of documents,
motion to extend prison copy work, and found Jones to be a vexatious
litigant. The motions cited by the district court as being harassing and
not made in good faith are all normal motions that are routinely filed
during a post-conviction proceeding and were not excessive in quantity.
The order does not indicate that Jones had previously instituted other
collateral challenges to his judgment of conviction and sentence or filed
similar motions that were determined to be meritless or otherwise
resulted in an adverse resolution. Nor is there any indication that the
district court had considered other, less severe sanctions to curb Jones'
perceived vexatious actions. Therefore, the district court failed to
demonstrate that there was an adequate record or reasons supporting a
restrictive order.
Third, the district court failed to make substantive findings as
to the frivolous or harassing nature of Jones' actions. Again, the district
court's conclusory statement that Jones' filings have not been made in
good faith and were filed only to harass is not sufficient.
Finally, the restrictive order was not narrowly drawn to
address the "problem" encountered. The district court put a blanket
restriction on Jones' ability to file documents "in this matter." The order
is not limited to addressing the specific problems perceived by the district
court. The order also does not set forth an appropriate standard against
which future filings should be measured. The order merely states that the
chief judge will review all filings before they may be filed in the district
court. There is no guidance to either Jones or the chief judge as to what
may pass scrutiny and what will not be filed.
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Because the restrictive order runs afoul of the applicable
guidelines, we conclude that the district court acted arbitrarily and
capriciously in designating Jones a vexatious litigant and entering the
restrictive order. We therefore grant the petition. The clerk of this court
shall issue a writ of mandamus directing the district court to vacate its
June 16, 2011, order designating Jones a vexatious litigant and restricting
his access to the court.
J.
We concur:
J.
Hardesty
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