Barnes v. Eighth Judicial Dist. Court of State of Nev., In and For Clark County
| Decision Date | 31 December 1987 |
| Docket Number | 17872,Nos. 17633,18044 and 18362,s. 17633 |
| Citation | 103 Nev. 679,748 P.2d 483 |
| Parties | Carroll E. BARNES, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT OF the STATE of NEVADA, In and For the COUNTY of CLARK, and The Honorable Miriam Shearing, District Judge, Respondent. William C. FRANKELL, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT OF the STATE of NEVADA, In and For the COUNTY of CLARK, and The Honorable Miriam Shearing, District Judge, Respondent. William M. DOYLE, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT OF the STATE of NEVADA, In and For the COUNTY of CLARK, and The Honorable Miriam Shearing, District Judge, Respondent. Jesus LUERA, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT OF the STATE of NEVADA, In and For the COUNTY of CLARK, and The Honorable Miriam Shearing, District Judge, Respondent. |
| Court | Nevada Supreme Court |
William C. FRANKELL, Petitioner,
v.
and For the COUNTY of CLARK, and The Honorable
v.
and For the COUNTY of CLARK, and The Honorable
v.
and For the COUNTY of CLARK, and The Honorable
Nos. 17633, 17872, 18044 and 18362.
Supreme Court of Nevada.
As Corrected Jan. 22, 1988.
Carroll E. Barnes, in pro. per.
William C. Frankell, in pro. per.
William M. Doyle, in pro. per.
Jesus Luera, in pro. per.
Brian McKay, Atty. Gen. and Page Y. Underwood, Deputy Atty. Gen., Carson City, Rex Bell, Dist. Atty., Las Vegas, for respondent.
These proper person petitions for writs of mandamus challenge the refusal of the respondent district court to file petitioners' complaints below. Because these petitions present identical issues and similar facts, we have consolidated them for disposition. See NRAP 3(b). 1
Petitioners Carroll Barnes, William Frankell, and Jesus Luera are prisoners who prepared and attempted to file in the Eighth Judicial District Court complaints against their respective attorneys for legal malpractice. The complaint prepared by Barnes alleged that an attorney appointed to represent him in a post-conviction matter had represented him in a negligent manner. Similarly, Frankell's complaint alleged that the court-appointed attorney who represented him at his criminal trial did so in a negligent manner. Luera's complaint alleged that Luera's privately retained counsel represented him negligently at his criminal trial.
The complaints were accompanied by motions to proceed in forma pauperis and were mailed to the clerk of the Eighth Judicial District Court, who forwarded those documents to respondent Shearing, who was then the Chief Judge of that district. Respondent, in letters to the petitioners, denied the motions to proceed in forma pauperis because they were not supported by the affidavit of an attorney stating that the complaints had merit as required by NRS 12.015(1). Accordingly, respondent refused to allow petitioners' complaints to be filed.
In response to respondent's letter, Petitioner Barnes filed his petition for a writ of mandamus in this court (Docket No. 17633). Petitioners Frankell and Luera, however, filed in the federal district court civil rights complaints pursuant to 42 U.S.C. § 1983. The federal district court dismissed petitioner Frankell's action, ruling, inter alia, that respondent, as a judicial officer, was immune from liability for money damages in that civil rights action, that the complaint did not show that Frankell was deprived of any federal constitutional right, and that Frankell had an adequate state law remedy available in the form of a mandamus petition to this court.
After the federal district court dismissed his complaint, Frankell filed his petition for a writ of mandamus in this court (Docket No. 17872). The federal court returned Luera's complaint to him unfiled, and Luera then filed his petition for a writ of mandamus in this court (Docket No. 18362).
On December 20, 1986, Petitioner William Doyle mailed a "Petition for Writ of Habeas Corpus or as an Alternative Writ of Mandamus" to the Clerk of the Eighth Judicial District Court. At that time, Doyle was a prisoner incarcerated at the Southern Desert Correctional Center. Doyle's petition alleged that the Department of Prisons had acted arbitrarily and capriciously when, in a disciplinary proceeding, it deprived him of certain accumulated work-time credits. Doyle's petition, like the Barnes, Frankell, and Luera complaints, was accompanied by a motion to proceed in forma pauperis. On December 26, 1986, respondent sent Doyle a letter stating that he had failed to submit the affidavit of an attorney to support his motion to proceed in forma pauperis as required by NRS 12.015. Therefore, respondent refused to allow Doyle to file his pleadings. Doyle then filed his petition for a writ of mandamus in this court (Docket No. 18044).
A writ of mandamus is available to compel the performance of an act which the law requires as a duty resulting from an office, trust or station, NRS 34.160, or to control an arbitrary or capricious exercise of discretion. See Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981). Mandamus will not issue, however, where the petitioner has a plain, speedy and adequate remedy in the ordinary course of law. NRS 34.170. Further, mandamus is an extraordinary remedy, and the decision as to whether a petition will be entertained lies within the discretion of this court. See Poulos v. District Court, 98 Nev. 453, 652 P.2d 1177, (1982).
In the present case, respondent's actions in refusing to allow the filing of petitioners' pleadings are not appealable determinations. See NRAP 3A(b); NRS 12.015(4) (). Further, the gravamen of these petitions is that respondent acted arbitrarily and capriciously when it refused to allow the filing of the petitioners' pleadings. It appears that these petitioners are without a plain, speedy and adequate remedy in the ordinary course of law to challenge respondent's refusal to file their pleadings. Further, it appears that respondent's actions will escape review if these petitions are not entertained by this court. Accordingly, we will exercise our discretion and consider the merits of these petitions.
Respondent's refusal to file the pleadings submitted by the petitioners was based on the petitioners' noncompliance with the provisions of NRS 12.015(1), which provides:
1. Any person who desires to prosecute or defend a civil action may file an affidavit with the court setting forth with particularity facts concerning his income, property and other resources which establish that he is unable to prosecute or defend such action because he is unable to pay the costs of so doing. The affidavit must be supported by the certificate of an attorney that such person has a meritorious cause of action or defense. If the judge is satisfied that such person is unable to pay such costs, he shall order:
(a) The clerk of the court:
(1) To allow such person to commence or defend such action without costs; and
(2) To file or issue any necessary writ, process, pleading or paper without charge.
(b) The sheriff or other appropriate public officer within this state to make personal service of any necessary writ, process, pleading or paper without charge.
(Emphasis Added). Specifically, respondent based its actions on the fact that petitioners had failed to submit the affidavit of an attorney stating that their actions had merit.
In their petitions for writs of mandamus, however, petitioners assert that, as prisoners, they cannot afford to pay the costs necessary to obtain the required certificate of an attorney. Petitioners therefore argue that the district court's application of NRS 12.015, supra, unconstitutionally denied them their right to access to the courts.
Respondent, however, correctly notes that although an indigent has a right of reasonable access to the courts, the right of access is not unrestricted. Because plaintiffs who are allowed to proceed in forma pauperis are not affected by economic deterrents to filing frivolous lawsuits, the courts may be justified in treating such actions differently from cases filed by plaintiffs who have paid the requisite filing fee. See Franklin v. Murphy, 745 F.2d 1221, 1226 (9th Cir.1984). Indeed, the states are free to restrict the right of an indigent to a waiver of filing fees as long as the case does not implicate a fundamental interest and the litigant has some alternative course of action that is not conditioned on the payment of a fee. See Piatt v. MacDougall, 773 F.2d 1032 (9th Cir.1985). See generally Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973) (); United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973) (); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) (). An unreasonable restriction on the ability of an indigent to obtain a waiver of filing fees may, however, violate the equal protection clause of the United States Constitution. See Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972). Nevada's constitution also contains a guarantee of equal protection. 2
Respondent correctly asserts that the complaints which petitioners Barnes, Frankell and Luera attempted to file below asserted causes of actions for malpractice against their attorneys; thus, none of those complaints implicate any fundamental right recognized by the United States Constitution. Because the complaints do not implicate a fundamental right, NRS 12.015 must be held constitutional if the classification scheme created by that statute is rationally related to furthering a legitimate state interest. See Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979); State Farm v. All Electric, Inc., 99 Nev. 222, 660 P.2d 995 (1983). "Legislative classifications must apply uniformly to all who are similarly situated, and the distinctions...
To continue reading
Request your trial
-
Jordan v. State Dep't of Motor Vehicles
...that a prisoner's "right to represent himself is guaranteed by the United States Constitution"). 6. See Barnes v. District Court, 103 Nev. 679, 683, 748 P.2d 483, 486 (1987) (noting that "plaintiffs who are allowed to proceed in forma pauperis are not affected by economic deterrents to fili......
-
Peck v. Zipf
...we are not persuaded by Zeier.Court access remains reasonably unfetteredPeck relies on our decision in Barnes v. Eighth Judicial District Court, 103 Nev. 679, 748 P.2d 483 (1987), for the proposition that NRS 41A.071 is overbroad and unconstitutionally restricts an indigent or incarcerated ......
-
State ex rel. Tyler v. Douglas County Dist. Court
...both in writing and in person. Although an indigent person has a right of reasonable access to the court, Barnes v. Eighth Judicial District Court, 103 Nev. 679, 748 P.2d 483 (1987); see In re Green, 598 F.2d 1126 (8th Cir.1979); Eisemann v. Miller, 101 Idaho 692, 619 P.2d 1145 (1980), that......
-
Sullivan v. Eighth Judicial Dist. Court In and For County of Clark
...submitted to them and to preserve the right of citizens to access to the courts, whether indigent or not. Barnes v. District Court, 103 Nev. 679, 748 P.2d 483 (1987); Huebner v. State, 107 Nev. 328, 810 P.2d 1209 (1991). Indeed, in Donoho v. District Court, 108 Nev. 1027, 842 P.2d 731 (1992......