Birch (Bruce) v. Dist. Ct. (State)

emphasizes that the court's order of July 24, 2014, "remains in effect and the Clerk is directed to return, unopened, any correspondence to [Birch]." "Mandamus is an extraordinary remedy, and the decision to entertain a petition for a writ of mandamus rests within our discretion." Jones v. Eighth Judicial Dist. Court, 130 Nev., Adv. Op. 53, 330 P.3d 475, 478 (2014). "We have indicated that mandamus is the appropriate vehicle for challenging orders that restrict a litigant's access to the courts." Id.; see also Round Hill Gen. Improvement Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981) ("Mandamus will not lie to control discretionary action, unless discretion is manifestly abused or is exercised arbitrarily or capriciously." (internal citation omitted)). We elect to exercise our discretion and consider the merits of Birch's writ petition. We have recognized the district court's "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," Jones, 130 Nev., Adv. Op. 53, 330 P.3d at 479, and we have outlined a four-step analysis for the district courts to employ, id. at 479-80 (concluding that the litigant must have reasonable notice of and opportunity to oppose a restrictive order; that the district court must create a record explaining the reasons for the restrictive order and consider any less onerous sanctions when the restrictive order precludes a litigant from filing challenges to a judgment of conviction or sentence; that the district court must make findings as to the vexatious nature of the litigant's actions; and that the order must be narrowly drafted to address the specific problem and must set forth an appropriate standard by which to measure any future filings).

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We conclude the district court acted arbitrarily and capriciously by entering the restrictive order on July 24, 2014, and that the subsequent July 20, 2015, order did not remedy the problem.' From the record, it does not appear the district court considered all four steps outlined in Jones before entering the restrictive order, and no other authority allowing the district court to order the return of unopened correspondence that contains documents for filing is cited. See Huebner v. State, 107 Nev. 328, 332, 810 P.2d 1209, 1212 (1991) (holding that court clerk must "stamp clearly the actual date of receipt on each and every document submitted for filing, whether submitted by an attorney or by an individual attempting to proceed in proper person, and whether or not the document is actually filed"); see also Whitman v. Whitman, 108 Nev. 949, 951-52, 840 P.2d 1232, 1233-34 (1992) (holding that the court clerk has no authority to return documents submitted for filing but instead has a duty to maintain such documents and keep an accurate record of the case). Accordingly, we ORDER the petition GRANTED AND DIRECT THE CLERK OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the district court to vacate the portions of its July 24, 2014, and July 20, 2015,

'While the district court attempted to tailor the restrictive order by allowing the filing of Birch's complaint and any legal pleadings related thereto, we are not convinced that this provision could be practically achieved when Birch's letters are being returned without being opened.

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orders that direct the court clerk to return, unopened, correspondence from Birch. 2

, J.

Gibbons

1- A7 Ad&e.0 Pickering

cc: Hon. Patrick Flanagan, District Judge Bruce Harrison Birch Attorney General/Carson City Washoe County District Attorney Washoe District Court Clerk

Footnotes

[2] Wehave received the pro se documents submitted in this matter and conclude that no further relief is warranted. SUPREME COURT OF NEVADA 4 (0) 1947A c(Siro,