Opinion
No. 72240
06-15-2017
CURTIS LUNDY DOWNING, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; THE HONORABLE MICHAEL VILLANI, DISTRICT JUDGE; AND THE HONORABLE ELISSA F. CADISH, DISTRICT JUDGE, Respondents, and CLARK COUNTY DISTRICT ATTORNEY, Real Party in Interest.
ORDER DENYING IN PART AND GRANTING IN PART PETITION FOR A WRIT OF MANDAMUS
This petition for a writ of mandamus challenges vexatious-litigant determinations and pre-filing injunction orders entered in district court case numbers 93-C-114390 and 94-C-119521.
In 2014, the district court found in case number 93-C-114390 Curtis Lundy Downing's "continued filing of duplicative and baseless pleadings, motions, and other documents with [the] Court can only be construed as a bad-faith litigation strategy designed to vex and harass [the] Court and the Clark County District Attorney's Office." The court further stated Downing had "repeatedly filed pleadings alleging frivolous issues without any support in fact or law since the time of his conviction." The court declared Downing to be a vexatious litigant and entered a pre-filing injunction.
The Honorable Joseph T. Bonaventure conducted the vexatious-litigant proceedings in this case.
Also in 2014, the district court found in case number 94-C-119521 Downing's "filings and actions in [the] case are of a frivolous and harassing nature because they are duplicative and meritless and aim to vex and harass the court system; furthermore, his most recent series of filings including the 'Bear' and 'Light Bulb' Motions are nonsensical and meritless." The court declared Downing to be a vexatious litigant and entered a pre-filing injunction.
The Honorable Michael Villani conducted the vexatious-litigant proceedings in this case. --------
A challenge to a vexatious-litigant determination and the pre-filing injunction may be raised in an original petition for a writ of mandamus. See Jones v. Eighth Judicial Dist. Ct., 130 Nev. ___, ___, 330 P.3d 475, 478 (2014). Because the vexatious-litigant determination is discretionary, this court must determine whether the district court arbitrarily or capriciously exercised its discretion. Id. at 480. In evaluating the district court's exercise of discretion, this court considers: (1) whether the petitioner received reasonable notice of and an opportunity to oppose the vexatious-litigant determination and pre-filing injunction; (2) whether the district court has created an adequate record for review of the vexatious finding and whether there were less onerous sanctions than a pre-filing injunction to curb repetitive and abusive activities; (3) whether the actions identified by the district court at step 2 show the petitioner to be vexatious, which requires a finding the filings were without arguable factual or legal basis or filed with the intent to harass; and (4) whether the restrictive order is narrowly tailored to address the specific problem and sets forth an appropriate standard by which any future filings will be measured. Id. at 479-80.
We conclude the district court's orders largely complied with the requirements of Jones with one exception—the provision that a petition for leave to file is deemed rejected if no action is taken on a proposed filing within 30 days (identified as a "paperless review" provision in the order entered in 93-C-114390). In both orders, the district court's injunction provides "[a]ny 'Petition for Leave of Court to Permit Filing of Court Papers' will be deemed rejected, without the need for judicial action, on the 30th day after the date of each filing, unless the Court otherwise orders." This is problematic in that a litigant, or a reviewing court, would have no means of ascertaining whether the district court received the document, considered it, or exercised its discretion regarding the filing of a proposed document. The court must provide some matter of informing the litigant and creating a record that a document was rejected for filing. Therefore, we
ORDER the petition DENIED IN PART AND GRANTED IN PART AND DIRECT THE CLERK OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the district court to strike those portions of the April 28, 2014, orders in district court case numbers 93-C-114390 and 94-C-119521 that impose a paperless review provision.
/s/_________, C.J.
Silver /s/_________, J.
Tao /s/_________, J.
Gibbons cc: Hon. Michael Villani, District Judge
Hon. Elissa F. Cadish, District Judge
Hon. Joseph T. Bonaventure, Senior Judge
Curtis Lundy Downing
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk