                                                           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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