In re Lawsuits of Carter

• Decision Date: 02 December 1998
• Docket Number: No. A98A1631, No. A98A1689.
• Citation: 235 Ga. App. 551,510 S.E.2d 91
• Parties: In re LAWSUITS OF Anthony J. CARTER (Two Cases).
• Court: Georgia Court of Appeals

510 S.E.2d 91

235 Ga. App. 551

In re LAWSUITS OF Anthony J. CARTER (Two Cases).

Nos. A98A1631, A98A1689.

Court of Appeals of Georgia.

December 2, 1998.

Anthony J. Carter, pro se.

McNally, Fox & Cameron, William R. McNally, Dennis A. Davenport, Fayetteville, for appellee. BEASLEY, Judge.

Anthony J. Carter appealed from an unnumbered order of the superior court entered March 10 directing that the clerk of court "shall not file any law suit brought by, or on behalf of Anthony J. Carter unless same is signed by a member in good standing of the State Bar of Georgia who shall certify that the complaint sets our [sic] a prima facie case upon which some relief could be granted."

Carter filed a notice of appeal on April 3, which appeal was docketed as Case No. A98A1631. He filed an application for permission to appeal on April 6, 1998, which was granted on April 14 pursuant to OCGA § 5-6-35(j) because Carter had the right to appeal from the order adversely affecting his attempts to file civil complaints. He filed no notice of appeal after our order but instead amended his original notice of appeal on April 16 to designate additional parts of the record to be transmitted to this Court. The amendment erroneously generated a new case number (A98A1689) in this Court. Since Carter had a right to appeal, Case No. A98A1689 is dismissed, as it purports to be the appeal granted pursuant to the unnecessary application. The records in both files are consolidated for consideration in Case No. A98A1631.

Two undated pro se complaints are contained in the record.¹ We do not know whether Carter attempted to file them before or after the court's March 10 order, although one has an affidavit signed March 9. They are unnumbered and bear no file stamp, indicating the clerk of court refused to file them.² The court's order, addressed to the clerk, states that Carter files cases "solely for the purpose of harassment." This statement of fact is based on litigation history of which the court took judicial notice and does not suggest any review of the two attempted complaints. In support of its finding, the court described 17 pro se lawsuits filed against 29 separate defendants since 1989 as being voluminous and frivolous and having warranted no relief or recovery. The order is signed with approval also by the chief judge of the circuit.

As error, Carter enumerates first that the trial court deprived him of his right contained in the state constitution, Ga. Const., Art. I, Sec. I, Par. XII, to prosecute his cause pro se in any of the state's courts. He secondly enumerates as error the entry of the order in violation of his state constitutional right to due process of law,³ namely, the right to notice and an opportunity to be heard before entry of such an order. Implicated in both is the right of access to the courts.

Carter's claims are responded to only by a brief on behalf of Fayette County, a named defendant in one of the suits, which brief attaches as exhibits two orders. Since they are not part of the record, which they might have been by designation under OCGA § 5-6-42 after appropriate trial court order making them part of the record, we cannot consider them or the recitation of facts concerning them.⁴

1. As stated in paragraph 12 of the Georgia Bill of Rights, a person has a right to represent himself or herself in court. "This provision was `primarily intended to guarantee the right of self-representation in the courts of this State....' [Cit.]"<sup>5</sup> Its purpose is to provide a right of choice between self-representation and representation by counsel.<sup>6</sup> Secondly, the very first provision of the Bill of Rights in "`[t]he constitution of this state guarantees to all persons due process of law and unfettered access to the courts of this state. (Cit.) These fundamental constitutional rights require that every party to a lawsuit ... be afforded the opportunity to be heard and to present his claim or defense, i.e., to have his day in court. (Cits.)'"⁷ But like all rights, responsibilities are attached and limits are imposed. No person is free to abuse the courts by inundating them with frivolous suits which burden the administration of the courts for no useful purpose. ⁸

On point also, since the trial court sought both to "preserve the orderly administration" of the court and to "protect the citizens from unfounded and harassing claims," no person is free to abuse the right by hauling other persons into court for the purpose of harassment. The legislature has provided a number of remedies for hapless defendants in such civil proceedings. Creation of the tort of abusive litigation is both a sword which may be called into use when such actions are initiated, continued or procured and a shield which stands as a threat to those who would offend the right of access maliciously and without substantial justification.⁹

Likewise, attorney fees and litigation expenses may be recovered against those who assert a claim, defense or other position completely lacking in a justiciable issue.¹⁰ To guard against frivolous professional malpractice suits even before they are filed, statutory law requires that a plaintiff obtain and provide an expert affidavit with the complaint.¹¹ Claims which entail a defendant's right to free speech or right to redress of grievances must include a sworn verification by plaintiff and plaintiff's attorney, if there is one, that the claim is not interposed for an improper purpose.¹² Except in habeas corpus cases,¹³ when an indigent person seeks to file a claim without payment of court costs and without an attorney (and thus without an attorney's verification), the complaint is subject to prefiling judicial scrutiny to ascertain whether it is so lacking in a justiciable issue that its filing should be denied.¹⁴

Even some habeas corpus cases are subject to prefiling judicial scrutiny, where a pattern of filing frivolous lawsuits is found.¹⁵ And in Smith v. Adamson,¹⁶ the Court held that an order requiring future suits filed by a litigious pro se litigant to be approved by the judge and accompanied by two affidavits, one of which was her own sworn assurance of propriety, did not deprive her of meaningful access to the courts. These narrow court-fashioned restrictions, which incorporated judicial decision-making and thus provided access which was "adequate, effective and meaningful,"¹⁷ passed constitutional tolerance. Of course, use of the contempt power to impose sanctions is also available.¹⁸

This non-exhaustive recitation illustrates permissible curbs on the right of access to the courts which is guaranteed by Georgia's Bill of Rights. Under the United States Constitution, access is regarded as a corollary of due process of law.¹⁹ No less may be said of the first paragraph of the Georgia Constitution. If the entrance to the court is arbitrarily blocked by the court itself, one of the very purposes of the constitution, to "insure justice to all," fails of accomplishment.²⁰

So it is that meaningful access to the courts must be scrupulously guarded, as it is a constitutional right universally respected where the rule of law governs. "Those regulations and restrictions which bar adequate, effective and meaningful access to the courts are unconstitutional. [Cits.]"²¹ The measure taken by the court below, although directed to the clerk, in effect precluded lawsuits by Carter himself. It is not statutorily authorized, as are the foregoing instances of protection against abuse of the right of access, nor does it interpose judicial scrutiny, as do those illustrations which do not involve attorney signature or payment of costs, both of which requirements act as brakes.

Instead, it requires Carter to hire an attorney in order to gain access to the court for any claim, legitimate or not, and in effect delegates to that attorney, at least preliminarily, what should otherwise be the judicial task of determining frivolousness or maliciousness. It creates a conclusive presumption that, regardless of its content, a suit filed by Carter pro se constitutes harassment. So the order prejudges the case and denies process altogether, much less due process, unless Carter as plaintiff relinquishes his constitutional right to self-representation. In other words, it indiscriminately interdicts all suits by Carter when he seeks to invoke his right of self- representation.

Such a price is not justified, for as seen by the illustrations recited above, adequate remedy is provided for whoever is harassed by way of a lawsuit. The device fashioned by the court for application exclusively to Carter contravened constitutional bounds, because a restriction on the right of access "must be drawn so as to avoid unjustifiably obstructing access to the courts and [to be] clearly warranted by the particular circumstances of each case."²²

The superior court in this case required any future suits to first pass through the crucible of an attorney's legal judgment²³ and required that the attorney, an officer of the court bound by the Code of Professional Responsibility, certify that the complaint set out a prima facie case. This condition compels Carter to incur the expense of hiring an attorney despite the constitutional right to represent himself. Although it is a relatively minor expense because it necessitates only a review of the complaint to assure that it is not frivolous, it eliminates the freedom to submit his complaint independently. True, he may choose the attorney, but the requirement bars access based on the strength of Carter's voice alone, although he may still represent himself to the fullest and may still file his complaints in his own name. But even though the purpose is to end the abuse which was experienced at Carter's hand, the restriction is overbroad. It, like the unlawful injunction in Procup v. Strickland,²⁴ absolves the court itself of responsibility to examine the suits for frivolity or maliciousness...