*1 2, 1998. Decided December Cox, Classens, Classens, & J. Edenfield, Bruce Michael appel- lant. III,
R. Attorney, McIntyre, Martin District Keith A. Assis- Joseph tant District Attorney, appellee.
A98A1631, A98A1689. IN OF J. LAWSUITS ANTHONY CARTER RE (two cases). Judge. Beasley, J.
Anthony appealed Carter from an unnumbered order of the court superior entered March 10 that directing clerk “shall not by, law suit or behalf brought Anthony on J. Carter same signed by unless in good standing member State Bar of Georgia certify who shall sets our [sic] facie case prima upоn which some could granted.” relief
Carter filed a notice of appeal April 3, on appeal which was dock- eted as Case No. A98A1631. He an application filed for permission to appeal on April granted April pursuant (j) OCGA 5-6-35 because Carter had the right from appeal adversely affecting his attempts to file civil complaints. He filed no notice of аppeal after our order but instead amended his orig- appeal inal notice of on April designate 16 to additional parts record to be transmitted to this Court. The amendment erroneously (A98A1689) generated a new case number in this Court. Since Carter a right had to appeal, dismissed, Case No. A98A1689 is itas purports to be the granted appeal pursuant the unnecessary aрplication. The records in both are files consolidated for consideration Case No. A98A1631.
Two undated contained in the record.1 We do know whether attempted to file them order, the court’s March 10 although one has an signed affidavit They March 9. are unnumbered and bear file stamp, no indicating the clerk of court refused to file them.2 The order, court’s addressed the clеrk, states “solely that Carter files cases 1 “Complaint Levy, Levy Specified, Negligence, on Excessive Failure to on Items False Affidavit, Malice, Conspiracy against deputy individually; for Promotion” sheriffs “Com plaint Rights on Violation of Constitutional to Pro Se and File Civil Motions and Cases” superior county. the clerk court and the court and the 2 Representations made Carter in his with brief matters outside the record (1) (a) (441 State, accepted. cannot be Leatherwood litigation history of fact is based on This statement of
harassment.” suggest any review notice and does not the court took finding, support attempted complaints. In its of the two separate pro defendants described 17 having being frivolous and warranted as voluminous and since 1989 signed recovery. also no The order relief *2 chief of the circuit. deprived first trial court error,
As enumerates that the right I, constitution, Const., him Ga. Art. contained in the state of his prosecute in of the state’s I, XII, to his cause Sec. Par. courts. He entry secondly the in as error the of vio- enumerates namely, right process law,3 of lation the due to be of his state entry right opportunity and heard before of to notice an right Implicated is the of access to the courts. such an in both order. only Fay- responded on are a brief behalf of Carter’s claims County, suits, named in one of the which brief ette a defendant they part record, are not of the as exhibits two orders. Since attaches by designation they might § under OCGA 5-6-42 have been making part record, trial them court order conсerning them.4 consider them or the recitation of facts we cannot Rights, per- paragraph 12 of the Bill of a 1. As stated right represent provi- himself or herself in court. “This son has a sion right guarantee ‘primarily of self- intended to purpose [Cit.]”5 representation Its is in the courts of this State. . . .’ provide right self-representation represen- and of choice between Secondly, very provision Bill of tation Rights counsel.6 “ guarantees persons ‘[t]he of this all constitution state and the courts of this state. due of law unfettered (Cit.) require every rights fundamental constitutional These party present to be heard and to to a lawsuit... be afforded ”7 (Cits.)’ day defense, i.e., to have his claim or court. rights, responsibilities limits But are and are like all attached by inundating imposed. person is frеe to abuse the them No courts with frivolous suits which burden administration courts purpose.8 no useful 3 I, I, Const., Sec. Ga. Art. Par. I. State, (f); supra. 5-6-41 Leatherwood v. See OCGA (1) (216 Dobbins, 234 SE2d Dobbins v. Ga. (3) (436 632) (1993); Georgian Moseley, Nelms v. State v. 263 Ga. SE2d of Ga. (3) (321 Assn., SE2d
Manor
253 Ga.
Condo.
Church,
App.
SE2d
Vineville
Methodist
Morrow v.
United
Owens-Illinois,
Inc.,
(1997),
quoting Hart v.
24) (1997)
statutory-
Townsend,
(approving
See, e.g.,
Likewise, fees and be recovered position claim, those assert a defense who or other com justiciable pletely lacking guard against pro in a To frivolous issue.10 malpractice they statutory filed, fessional suits even before law requires plaintiff provide expert that a obtain and affidavit with speech complaint. to redress of Claims which grievances entail must include defendant’s sworn verifi to free by plaintiff plaintiff’s attorney, cation one, if there that the interposed impropеr Except claim is not for an in habeas purpose.12 corpus indigent person when an seeks to a claim without cases,13 *3 (and payment attorney of court costs and without an thus without an attorney’s verification), subject prefiling judicial is scrutiny justiciable lacking to ascertain so whether it is in a issue filing that its should be denied.14 corpus subject prefiling judicial
Even some habeas casеs are scrutiny, pattern filing where a of frivolous lawsuits is found.15 And (II) (Colo. 1993) (court Winslow, duty 862 P2d power protect courts, 923-924 has and opposing parties repetitive, pro litigation); citizens and from unfounded se Urban v. United Nations, (III) (D.C. 1985) (court obligation 768 F2d protect and orderly preserve justice). sound and administration of §§ OCGA 51-7-80 51-7-85. (actions officers). against OCGA See judicial Litiga § 9-15-14. also OCGA § 9-15-15 expenses faith, tion are awardable for bad stubborn or caus defendants ing unnecessary expense. trouble and OCGA 13-6-11. § requirement § OCGA 9-11-9.1. This differs from the instant in that a court would not qualified judgment depend expert’s affidavit, be to make medical a and thus must an well-equipped legal judgment delegate whereas a court is to make a and need not that deci lawyer. although applicable complaints, prо party sion We do note that not when a represented by attorney, attorney sign is pleading thereby certify must that pleading interposed delay. § 9-11-11. OCGA 12 OCGA § 9-11-11.1. Ford, Giles v. (d). OCGA 9-15-2 678) (1996) (order Sharpe, requiring Ga. 771 of judge any habeas and certification that claims were novel before inmate could file future pauperis light pattern past filing lawsuits forma was reasonable restriction in of of frivo lawsuits). lous rеquiring future held that an order Adamson,16the Court in Smith v. by approved litigant by litigious pro by accompanied her own sworn affidavits, one of which was meaningful deprive . access to propriety, of her did not assurance incorpo- restrictions, These narrow court-fashioned courts. decision-making judicial access which and thus rated passed “adequate, toler- constitutional еffective and meaningful,”17 power impose contempt is also sanctions course, Of use of ance. available.18 permissible curbs on recitation illustrates This non-exhaustive by Georgia’s guaranteed Bill is the courts which of access to regarded Rights. Constitution, is access United States Under the corollary process of the first less be said of law.19 No of due as is paragraрh If the entrance to the court of the blocked Constitution. very purposes arbitrarily by of the itself, one of the the court justice all,” fails of constitution, to “insure accomplishment.20 scrupu- meaningful must access to the courts it So universally respected lously guarded, it is a constitutional as regulations governs. and restrictions of law “Those where the rule which bar unconstitutional. meаningful adequate, to the courts are access effective by below, The measure taken [Cits.]”21 precluded although clerk, in effect Carter directed to the foregoing statutorily authorized, are the It as himself. protection access, nor does abuse instances judicial scrutiny, interpose which do not as do those illustrations attorney signature payment costs, both of which involve requirements act as brakes. gain requires in order to
Instead, it to hire an Carter legitimate not, claim, and in effect dele- to the court for attorney, preliminarily, gates should otherwise at least what to that determining or maliciousness. It frivolousness be the task regardless presumption content, that, of its creates suit filed conclusive the order harassment. So se constitutеs pro- altogether, prejudges much less due the case and denies relinquishes plaintiff cess, Carter as unless *4 indiscriminately self-representation. words, interdicts In other it right by of self- he seeks to invoke his all Carter when suits (3) (487 386) (1997). App. (1). Howard, supra at 772 Nations, supra United at 1500. See Urban v. Martinez, LE2d S. SC Procunier v. 416 U. 20 Preamble, Georgia. Constitution of the State of (1), citing States Sharpe, supra three decisiоns of the United at 772 law, Although applied so fundamental a con Supreme Court. Howard federal process. guarantee of due cept inherent in the state constitution’s would likewise be representation. price by justified,
Such for as seen the illustrations adequate remedy above, recited for whoever is harassed by way application aof lawsuit. The device fаshioned the court for exclusively to bounds, Carter contravened constitutional because unjus- on the restriction tifiably obstructing by of access “must be drawn so as to avoid [to clearly be] to the courts and warranted particular of each circumstances case.”22 superior required any court in this case future suits pass required attorney’s legal judgment23 of an crucible аttorney,
that the an officer of the court bound Code certify Responsibility, complaint Professional out a set prima compels expense facie case. This condition Carter to incur the hiring attorney despite represent the constitutional Although relatively expense himself. tates it eliminates the it is a minor because it necessi- only frivolous, review the to assure that it is not complaint independently.
freedom submit his may attorney, requirement True, he choose the but the bars access strength although may alone, based on of Carter’s voice he still represent may complaints himself to the fullest and still his though his own name. But even is to end the abuse experienced hand, was at Carter’s the restriction is overbroad. injunction Procup It, like the unlawful Strickland,24 absolves responsibility frivolity court itself of ciousness to examine the mali- case-by-case on a basis. reasons,
For these the order must be vacated. faulty given Further, 2. order because Carter was not dispute upon notice anor to be heard or to the facts grounded, which was affirmative action was taken to prohibit pro se without an certification. For thing, any pending one it was in the court suit, not entered as was done in Although Smith v. Adamson.25 in some circumstances sponte pursuant authority recog- issue sua dismissals to its inherent (8),26 nized in OCGA 15-6-9 we have not found case where a blan- pre-filing pending imposing ket restrictions on the suit, was entered outside of a
pro access. Secondly, undisputed the facts record, were and were not Howard, Howard, suрra judicial preclearance approved; at 773 in Carter’s cases, assigned non-judicial that task is officer of the court. (11th Strickland, Procup 1986), Compare 792 F2d 1069 which involves restric prisoner suits, tions on burden as undue on constitutional fed access under especially Judge eral constitution. See of Circuit dissent Johnson. 24 Id. 25 Supra at 699. Williams, Ga. Receivables v. *5 556 took instances facts of which in some they were
although he has brief, opportunity is the In Carter’s which notice. judicial order, challenges he basis for the factual dispute had to litiga- the outcome of findings about characterizations court’s resolution of The proper place involved. in which he has been tion trial court. is in the factual differences Constitutions prohibit United States
“Both without life, liberty, property, ‘any person state from depriving Const., XIV, 1; sec. see also amend. law.’ United States due idea due I, pro- ‘The fundamental Const., I, I]. Sec. Par. [Art. Ga. ”27 in Citizens heard.’ As stated opportunity cess is notice and hearing of notice and a Maddox,28 benefit “[t]he &c. Bank v. “A right.” party’s one of grace, a matter of but judgment denied without interest that cannot be action is a property cause of [Cit.]”29 process. due entered, Carter was entitled order was
Before a blanket the least action to achieve contemplated on the court’s hearing the sensitive bal- honoring means while restrictive but efficacious to the courts of access ance must be struck between public general and of the litigants se and the interests of pro “ impact repe- from the deleterious ‘in resources рrotecting ”30 titious, litigation.’ baseless dismissed in Appeal in Case No. A98A1631. Judgment vacated J., J., specially. concurs. P. concurs Ruffin, Pope, Case No. A98A1689. concurring Presiding Judge, specially. Pope, agree of Case No. A98A1689 and with I concur in the dismissal the superior in Case No. A98A1631 that and conclusion opinion Nevertheless, I separately write court’s order must be vacated. 1 to outline an sаnction to Division Carter. demonstrably litigant, Anthony vexatious filed, that since 1989 Carter had The court’s order recites defend- file, separate 29 separate attempted Carter’s The court further outlines the burden ants. origi- at the it, Court has looked stating: physically “[t]his
placed “ 525) (1997). (481 579, Carsten, due-process ‘The clause Hood v. 267 Ga. proce any particular guarantee form or mеthod of State to the citizen of a State does not requirements notice and to be heard are satisfied if he has reasonable dure. Its defense, regard being proceeding present had to the nature of the his claim or due may and to 505, Michigan, rights it.’ Reetz v. 188 U. S. character of the be affected and the (4) (a) 390).” Benson, 502, City Sup. Macon v. L. Ed. Ct. 26) (1932). (166 SE SE 175 Ga. Resources, Long Nix v. Mountain (II). Morgan County, suрra at 924 suits, if nal files of all of these law each were stacked on top stand more than three feet the other would above the floor.” contained the record also demonstrate first, Carter’s nature. The litigious Fayette County Sheriffs, is entitled on Excessive Failure to Deputy “Complaint Levy on Items False Malice Levy Specified Negligence, Conspir- Affidavit Promotion.” aсy According to Carter’s the incidents complaint, *6 leading levy to that suit arose out of officers’ effort to to sat- property isfy Fayette Magistrates a writ “that had for Fayette County that Superior Judge frivolous, Court said were and granted words, In attorney fees.” other Carter filed a suit for attempt to levy satisfy to property court-imposed penalties prior for frivolous lawsuit. thе order
Although broad, court entered here is overly to important acknowledge tremendously difficult quandary courts face to stubborn of this nature. Indisputably, But, Carter’s actions here some curtailment. require frequently litigants judgment-proof imposition financial penalties for the frivolous pursuing litigation becomes meaningless. notes, opinion
As the narrow court-fashioned restrictions which incorporate decision-making generally have constitu passed tional muster. For in example, Sharpe, Ga. 771 678) (1996), SE2d the trial court entered an order enjoined Howard from filing any lawsuits forma pauperis unless he first approval obtained of the habeas certified that the claims raised were novel. The Court Supreme held that this “narrowly drawn” order was a reasonablе restriction of Howard’s of access in light of his past pattern filing frivolous In lawsuits. Smith v. Adamson, 699-700 (1997), court held that an order future requiring suits filed a litigious pro litigant approved by judge and accompanied by two affi davits, one of which was her own sworn assurance of did propriety, not deprive meaningful her of access to the courts. See also v. Procup (11th Strickland, 792 F2d 1069 1986); Cir. Bd. compare of Cоmmrs. of (Colo. 1993). Morgan Winslow, County P2d When confronted Carter, with vexatious like litigants courts have considerable discretion fashioning injunctions. The court could direct the litigant accompany all future pleadings with affidavits certifying being novel, the claims raised are sub- for ject contempt swearing. Nations, false See Urban v. United (D.C. 1985). F2d The court could direct the litigant seek leave of court before filing pleadings any new or law- pending suit; thus, could screen the if it complaint determine had id.; Howard, merit. See Strickland, Ga. 771. 792 F2d Procup restrictions for a court suggested possible the court overly litigious litigant, including: limit- attempting to deal with and other and lim- pages complaint pleadings; the number of ing — order of the court after allowing further without an iting pleadings Although options to be filеd. these continue to require litigation, with this until the Gen- type be burdened service, more it is not Assembly attorneys public eral funds feasi- that a obtain from an require litigant ble filing his complaint. 2, 1998.
Decided December Anthony Carter, J. se. Cameron, & William
McNally, McNally, Fox R. Dennis A. Daven- port, appellee.
A98A1116. et al. WINTERS v. GOINS.
Smith, Judge. *7 Merle and Ressie Winters the trial court’s appeal order granting Harold Lee motion to Goins’s dismiss for failure to timely perfect service. Because we conclude that the trial court failed to determine properly whether used due appellants diligence serving their com- we vacate the trial court’s order plaint, dismissing the action and remand this case for further proceedings consistent with opin- this ion. 7, August
On filed a appellants complaint against Goins personal injuries sustained Ressie Winters an automobile August 10, accident that occurred on 1993. The statute of limitation such filing years an action expired the accident occurred. August OCGA 9-3-33. On appellants filed a motion requesting direct service publication. sup- motion, filed the affidavit their port they attorney reciting that Goins had Carolina and moved North to serve attempts him there had been unsuccessful. The trial court granted this motion 5, 1996, September and a notice of by publication service was filed later, one week September 1996. Personal service on Goins was finally nearly later, 3, 1997, six months accomplished March Kanawha County, Virginia. West Before service was perfected, Goins insufficiency moved dismiss on the basis of of service of process running and the of the statute of limitation. In response, appellants contended that raising Goins was barred from defenses concerning