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Florida's Prisoner Indigency Statute Unconstitutional

The Florida Supreme Court, in two separate cases, has held that Florida's Prisoner Indigence Statute (PIS) is unconstitutional, and ordered reinstatement of cases dismissed for failing to comply with PIS. Prisoner Douglas M. Jackson, Sr., filed a writ of mandamus seeking to compel the Florida Department of Corrections (FDOC) to give him payment for duties and tasks he performed as a prisoner. In denying relief upon the issue of the writ, the Court quoted the Thirteenth Amendment to the U.S. Constitution which states: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted shall exist within the United States, or any place subject to their jurisdiction."

Prior to ruling Jackson's writ is frivolous, the Court ordered him to comply with PIS. The PIS requires that prisoners file copies of their prior civil actions before the court can even consider making an indigency determination. Jackson asserted FDOC made him do away with his previous pleadings. The Court assumed the legislature's intent was to reduce the court's workload by having it determine if the prisoner filed a previous frivolous successive petition. The Court stated the copy requirement has had the opposite effect and is extremely cumbersome. It is of little, if any, use at all.

The Court stated its workload has increased by requiring review of what are usually handwritten pleadings, which are harder to read when copied several times. Difficulty also arises in having to store these voluminous files when the case is completed, not to mention the cost to FDOC in having to make the required copies for an indigent prisoner. The Court held the copy requirement is unconstitutional as a violation of the separation of powers and instructed the state's courts to disregard it.

Prisoner Marshall Mitchell, based on the holding in Jackson , petitioned for mandamus relief seeking reinstatement of an action dismissed in 1997 for failing to comply with the copy requirement of PIS. Mitchell alleged PIS violated his right to access to the courts contained in Article I, Section 21, of the Florid Constitution. The Court held one of the problems with PIS is that only some prisoners must comply with PIS. The Court is not required to make a determination of if a prisoner has ever filed a frivolous or improper action, it is only required to do so upon those prisoners who have twice in the preceding three years been permitted to file without the prepayment of fees.

The State asserted there is no access to courts violation because PIS is fashioned upon the constitutional federal prisoner indigency statute in 28 U.S.C. § 1915. The Court, however, found the federal version has no copy requirement, and PIS denied Marshall access to the court. The court held its holding is a "New Rule" entitled to retroactive application. Therefore, any Florida prisoner who had an action dismissed for failing to comply with the copy requirement of PIS has two years from April 12, 2001 to seek reinstatement of that action. See: Jackson v. Florida Dep't of Corrections, 790 So. 2d 381 (Fla. 2001); and Mitchell v. Moore, 786 So. 2d 521 (Fla. 2001).

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Related legal cases

Jackson v. Florida Department of Corrections

Jackson v. Florida Dept. of Corrections, 790 So.2d 381 (Fla. 05/04/2000)

[1] Florida Supreme Court

[2] No. SC92827

[3] 790 So.2d 381, 2000.FL

[4] May 04, 2000

[5] Petition for rehearing filed July 20, 2000. Rehearing denied January 18, 2001, in light of revised opinion.


[7] Douglas M. Jackson, Sr., pro se, Starke, Florida, for Petitioner Louis A. Vargas, Florida Department of Corrections, Tallahassee, Florida, and Donna M. La Plante, Assistant Attorney General, Tallahassee, Florida. for Respondent


[9] Petitioner's motion for rehearing is granted in part. The opinion issued in this case on November 18, 1999, is withdrawn, and the following opinion is substituted.

[10] Douglas M. Jackson, Sr., petitions this Court for a writ of mandamus. We have jurisdiction. See art. V, § 3(b)(8), Fla. Const.

[11] FACTS

[12] Jackson is a prisoner currently serving a life sentence for multiple murders committed in 1981. On April 20, 1998, Jackson filed a petition for writ of mandamus against the Florida Department of Corrections ("the Department"). On April 23, 1998, this Court granted Jackson's motion for leave to proceed in forma pauperis. However, upon further review, it came to this Court's attention that Jackson had not complied with the requirements of section 57.085(7), Florida Statutes (1997) *fn1 (Prisoner Indigency Statute), which provides in full:

[13] A prisoner who has twice in the preceding 3 years been adjudicated indigent under this section, certified indigent under s. 57.081, or authorized to proceed as an indigent under 28 U.S.C. s. 1915 by a federal court may not be adjudicated indigent to pursue a new suit, action, claim, proceeding, or appeal without first obtaining leave of court. In a request for leave of court, the prisoner must provide a complete listing of each suit, action, claim, proceeding, or appeal brought by the prisoner or intervened in by the prisoner in any court or other adjudicatory forum in the preceding 5 years. The prisoner must attach to a request for leave of court a copy of each complaint, petition, or other document purporting to commence a lawsuit and a record of disposition of the proceeding.

[14] Accordingly, on September 18, 1998, this Court vacated its earlier order granting Jackson's motion to proceed in forma pauperis and denied the motion. This Court instructed Jackson that the denial was without prejudice to his filing another motion for leave to proceed in forma pauperis which complied with the requirements of section 57.085(7).

[15] In our opinion filed November 18, 1999, we found Jackson's subsequently filed motion insufficient as well, since it still did not comply with the requirements of the statute. In that opinion, while we applauded the Legislature's attempt to curtail the filing of frivolous inmate petitions, we also expressed our concern that strict enforcement of the copy requirement part of the statute might result in a long, drawn-out factual inquiry. Such an inquiry might be necessary, we noted, if an inmate were to allege inability to comply with the requirement because the inmate had been forced by prison officials to dispose of his or her copies of prior proceedings, especially if prison officials asserted that the inmate had not been forced to dispose of the documents. In our prior opinion we also went to great lengths to stress that enforcement of the copy requirement portion of the statute had imposed an "administrative nightmare" on this Court and the judicial system as a whole. We asked the Legislature to attempt to remedy this situation. No action has been forthcoming.

[16] Jackson now asserts in his motion for rehearing that the prison forced him to do away with his copies of pleadings in all his prior proceedings, so he cannot comply with the copy requirement of the statute. The Department responds that it never forced Jackson to do away with his legal papers. In Jackson's reply he again asserts that his documents were destroyed and requests an evidentiary hearing. In other words, our original concern has come into fruition - we are now faced with the unhappy possibility that we must now conduct some sort of fact-finding inquiry (or appoint a referee) to determine what documents have been destroyed and what documents have not been destroyed. Again, under the statute, all this must be done before this Court can even begin to examine the merits of the petition itself. This outcome clearly results in another administrative burden placed on this Court by the copy requirement part of the statute. Thus, we are now forced to withdraw our original opinion in this case.


[18] In our original opinion in this case we reaffirmed the long-standing proposition that the existence of a right for indigents to proceed without payment of costs is a substantive one and is properly provided for by the Legislature. See Amos v. Department of Health & Rehabilitative Serv., 416 So. 2d 841 (Fla. 1st DCA 1982). We also noted that the right could be properly limited by the Legislature, including a requirement that inmates contribute toward the costs of their lawsuits and ultimately pay for the lawsuits in full if they subsequently become able to do so. See § 57.085(5), Fla. Stat. (1999). *fn2 We reaffirm that proposition today. See generally Kleinschmidt v. Estate of Kleinschmidt, 392 So. 2d 66 (Fla. 3d DCA 1981); Lee v. City of Winter Haven, 386 So. 2d 268 (Fla. 2d DCA 1980); Hillman v. Federal Nat'l Mortgage Ass'n, 375 So. 2d 336, 337 (Fla. 4th DCA 1979). We again applaud the efforts of the Legislature in this regard and intend to fully enforce the substantive payment-related provisions of the Prisoner Indigency Statute. *fn3

[19] A statute can, however, have both substantive provisions and procedural requirements. If the procedural requirements conflict with or interfere with the procedural mechanisms of the court system, they are unconstitutional under both a separation of powers analysis, and because formulating procedures for granting in forma pauperis status is the exclusive province of the Supreme Court pursuant to the rulemaking authority vested in it by the Florida Constitution. See art II, § 2; art. V, § 2, Fla. Const.; see also State v. Garcia, 229 So. 2d 236, 238 (Fla. 1969)(noting that procedural law has been described as the legal machinery by which substantive law is made effective); Z & O Realty Assocs., Inc. v. Lakow, 519 So. 2d 3, 5 (Fla. 3d DCA 1987); State v. J.A., Jr., 367 So. 2d 702, 703 (Fla. 2d DCA 1979)(stating that substantive law, the responsibility of the Legislature, prescribes duties and rights while procedural law, determined by the Supreme Court, concerns the means and methods to apply and enforce those duties and rights).

[20] This Court has already promulgated a rule which regulates the procedure for seeking indigency status. The prerequisite imposed by the Prisoner Indigency Statute that inmates file copies of their prior actions in the court before the court may even consider making an indigency determination is an additional procedure imposed by the statute which does not appear in this Court's rule and conflicts with that rule.

[21] Further, since prisoners attempting to comply with the copy requirement are not required to send copies to the State, we are assuming that the copy requirement subsection was included in the statute so that the courts could determine whether an inmate had previously filed a frivolous or successive petition. While we appreciate the effort the Legislature appears to have made in an attempt to lessen the judicial workload, the effort has had the opposite effect. The copy requirement has greatly increased the courts' workload because it sets forth new procedures for the granting of indigency status.

[22] This Court's clerk's office has spent countless hours explaining the copy requirement to inmates, receiving partial submissions and sending out additional letters informing inmates that they still have not submitted all of the required copies. The copy requirement has greatly increased this Court's workload as a whole as well. We have, on a number of occasions, been forced to request preliminary responses when inmates asserted that the Department of Corrections would not make the copies necessary for compliance with the statute. This is only one example of the many occasions in which this Court was called upon to spend its valuable time dealing with matters completely unrelated to the merits of the litigant's case.

[23] The copy requirement must surely be a burden on the Department of Corrections as well since even assuming an inmate has not lost possession of one set of the copies of his or her prior legal actions, if the inmate has insufficient funds to pay to have the prison make additional copies for the court, the Department is still required to make the photocopies. See Fla. Admin. Code R. 33-602.405(4). Further, it is not uncommon for an inmate's prior pleadings to consist of several hundred or even thousands of pages. Clearly, this requirement must be a tremendous burden on the Department and, ultimately, on the taxpayer.

[24] Moreover, while inmate pleadings are often difficult to read as they are usually handwritten, these pleadings are many times more difficult to read when they have been photocopied numerous times. A large number of the photocopies we routinely receive from inmates are absolutely useless because they are completely illegible. Even if we could read them, that would increase exponentially the amount of time it takes us to examine and rule upon each case. The longer the petition, the more time it takes to review and the more time it takes for this Court to render a decision. In other words, the copy requirement delays the administration of justice.

[25] Finally, once a litigious inmate has actually complied with the statute by sending in his or her thousands of pages of prior pleadings, this Court's clerk must place it with the court file and, due to its tremendous size and weight, literally wheel the file up to each justice's office, where the stacks of pleadings must be reviewed. Ultimately, once the case is completed, the storage of these large files also poses problems.

[26] If the copy requirement procedure were not so cumbersome and provided some benefit to this Court, we might merely accept the "suggested" procedure and amend our indigency rule to implement the copy requirement. See e.g. Kalway v. Singletary, 708 So. 2d 267, 269 (Fla. 1998)(noting that the Court on occasion has deferred to the expertise of the Legislature in implementing the Court's rules of procedure); see also Amendments to Fla. Rules of App. Pro., 685 So. 2d 773 (Fla. 1996). Contrary to those cases, however, compliance with the copy requirement "procedure" by this Court has been extremely cumbersome and of little, if any, use at all.

[27] This Court has already promulgated a rule which regulates the procedure and practice utilized by the courts in considering whether to grant an inmate's request to proceed in forma pauperis. See, e.g., Fla. R. App. P. 9.430. The statute adds new procedures to the ones already in the rule and they conflict with it. Thus, we conclude that this legislatively imposed "procedure" is interfering with and intruding upon the procedures and processes of this Court and conflicts with this Court's own rule regulating the procedure for indigency determinations (rule 9.430). Under such circumstances, this Court has the authority, perhaps even the duty, to declare the copy requirement portion of the Prisoner Indigency Statute void and state that the judiciary will not comply with it or require that inmates comply with it. Accordingly, we find subsection (7) of section 57.085 to be unconstitutional as a violation of separation of powers and as a usurpation of our exclusive rulemaking authority. We will no longer require inmates to comply with this procedure and instruct the courts of this State to disregard that subsection. We suggest to the Legislature that it may wish to consider creating and funding a mechanism to provide the courts and the parties, perhaps via the Internet, with access to or information about the legal actions an inmate petitioner has filed in any of Florida's courts. This mechanism might provide the information the Legislature apparently intended the copy requirement to fulfill, that is, it might provide the courts (and the State) with a quick and easily accessible information source to see if certain litigants have filed similar or abusive actions before.

[28] Having determined that Jackson need not provide copies of his prior actions, we have now decided that under rule 9.430, Jackson has satisfied his burden that he has no funds with which to pay the filing fee in this case. Accordingly, we grant Jackson's motion to proceed in forma pauperis and proceed to examine the merits of this case.

[29] Upon consideration of the merits of Jackson's case, however, we must conclude that Jackson's arguments have no merit. In order to be entitled to a writ of mandamus the petitioner must have a clear legal right to the requested relief and the respondent must have an indisputable legal duty to perform the requested action. See Turner v. Singletary, 623 So. 2d 537, 538 (Fla. 1st DCA 1993). Jackson asserts that he has a right to payment for the duties and tasks he performs in the prison and that the Department of Corrections has a duty to pay him and to promulgate rules to that effect pursuant to section 944.09(m), Florida Statutes (1997). Nevertheless, the Department has already adopted a number of rules relating to inmate compensation under circumstances not applicable to Jackson's situation. See, e.g., Fla. Admin. Code R. 33-203.101(11); 33-203.210(2). Since the Department has promulgated rules in reference to this statute and Jackson has no right to require the promulgation of any particular rules, Jackson's assertions concerning the rule promulgation are without merit.

[30] Jackson also argues that being forced to work without compensation violates the Thirteenth Amendment of the United States Constitution and that section 946.002(3), Florida Statutes (1997), mandates that he be compensated for his work.

[31] Nonetheless, numerous cases, including cases cited by Jackson, hold that requiring incarcerated prisoners to work without pay does not violate the Thirteenth Amendment outlawing slavery, *fn4 the Eighth Amendment prohibiting cruel or unusual punishment, or the Equal Protection Clause. See, e.g., Wendt v. Lynaugh, 841 F.2d 619 (5th Cir. 1988); Borrer v. White, 377 F. Supp. 181 (W.D. Va. 1974); Rochon v. Blackburn, 727 So. 2d 602 (La. Ct. App.1998). The only situation in which an entitlement to compensation might arise is where a state statute mandates payment to prisoners. See, e.g., Piatt v. MacDougall, 773 F.2d 1032 (9th Cir. 1985)(plaintiff stated claim where Arizona statute created a right to compensation where inmate performed certain labor); Borrer v. White, 377 F. Supp. 181 (W.D. Va. 1974)(holding that there was no federal constitutional right to payment but if there were a state statute providing for compensation, inmate might be entitled to such compensation under the statute).

[32] Section 946.002, Florida Statutes (1997), *fn5 does not mandate that prisoners be compensated. It provides that all able-bodied prisoners shall engage in daily labor. See § 946.002(1)(a), Fla. Stat. (1997). As pertinent to Jackson's assertion concerning compensation, subsection (2)(a) provides:

[33] Each prisoner who is engaged in productive work in any state correctional institution, program, or facility . . . may receive for work performed such compensation as the department shall determine. Such compensation shall be in accordance with a schedule based on quality and quantity of work performed and skill required for performance, and said compensation shall be credited to the account of the prisoner or the prisoner's family. § 946.002(2)(a), Fla. Stat. (1997)(emphasis added).

[34] Subsection (3) provides, in pertinent part, that: "Said compensation shall be paid from the Department of Corrections Correctional Work Program Trust Fund." None of these statutes mandate payment for inmate work.

[35] Therefore, since neither the cases nor the statutes Jackson cites support his proposition that prisons must pay inmates for their work, Jackson's petition is so clearly without merit that we deem the petition to be frivolous and deny it.

[36] This Court has recognized that "[t]he resources of our court system are finite and must be reserved for the resolution of genuine disputes." Rivera v. State, 728 So. 2d 1165, 1166 (Fla. 1998). The United States Supreme Court itself has restrained indigent petitioners who have abused the system in order to allocate the resources of the Court "in a way that promotes the interests of justice." In re McDonald, 489 U.S. 180, 184 (1989). In a decision addressing adequate prison law libraries, the Court held that the constitutional right of access to courts does not "guarantee inmates the wherewithal to transform themselves into litigating engines." Lewis v. Casey, 518 U.S. 343, 355 (1996)(emphasis added). Jackson's lawsuits against the Department of Corrections have become so numerous that one could describe him similarly. *fn6 We agree with the Supreme Court's assertion that "paupers filing pro se petitions are not subject to the financial considerations . . . that deter other litigants from filing frivolous petitions" and that "[e]very paper filed with the Clerk of this Court, no matter how repetitious or frivolous, requires some portion of the institution's limited resources." In re McDonald, 489 U.S. at 184. Therefore, we find that we must restrain Jackson's ability to monopolize this Court's resources.

[37] Accordingly, we hereby order Jackson to show cause why he should not be barred from filing pro se pleadings in this Court and why this Court should not refuse to accept for filing any actions he files without representation by counsel. Jackson shall serve his response to the order to show cause on or before May 19, 2000. The Respondent may file a reply to Jackson's response on or before May 29, 2000.

[38] A motion for rehearing concerning this substituted opinion may be filed on or before May 19, 2000. A reply to any motion for rehearing filed by either party may be filed within ten days of service of the motion. The filing of a motion for rehearing shall not affect the due date for the response to the order to show cause or any reply thereto.

[39] It is so ordered.

[40] HARDING, C.J., and WELLS, ANSTEAD, PARIENTE, and LEWIS, JJ., concur. SHAW, J., concurs in result only.


[42] Original Proceeding - Mandamus


Opinion Footnotes


[43] *fn1 There has been no change made to the 1999 version of this statute.

[44] *fn2 The statute also provides for circumstances under which a court may determine that an inmate is only partially indigent. In such circumstances, the court may require the inmate to pay a reduced payment at the time of filing and then make periodic payments toward the full payment of the filing fee. See § 57.085(4), Fla. Stat. (1999).

[45] *fn3 We hereby ask The Florida Bar Appellate Court Rules Committee to propose amendments to rule 9.430 to comply with the substantive payment portions of the statute and that it suggest procedures (to be placed in the rule) for implementation of the statute.

[46] *fn4 Incidentally, while Florida's constitution does not specifically outlaw slavery, the Thirteenth Amendment to the Constitution of the United Statues contains a specific prohibition against slavery. Interestingly enough, however, convicted felons are exempted from the general prohibition contained in the Constitution. The Thirteenth Amendment provides, in pertinent part: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. U.S. Const. amend. XIII, § 1 (emphasis added).

[47] *fn5 The 1999 version of this section has not been changed.

[48] *fn6 This Court has not been specifically advised of Jackson's pleadings in other courts. However, based on an examination of this Court's records, from 1992 when this Court reversed Jackson's death sentence, see Jackson v. State, 599 So. 2d 103 (Fla. 1992)(No. 79,970), to just prior to filing the instant petition, he has filed or taken part in thirteen petitions in this Court. See Coleman [and Jackson] v. Florida Dep't of Corrections, 717 So. 2d 529 (Fla. 1998)(No. 92,828); Jackson v. Florida Dep't of Corrections, 718 So. 2d 168 (Fla. 1998)(No. 92,793); Jackson v. Singletary, 717 So. 2d 533 (Fla. 1998)(No. 92,121); Coleman v. Florida Dep't of Corrections, 717 So. 2d 529 (Fla. 1998)(No. 92,116); Jackson v. Department of Corrections, 717 So. 2d 533 (Fla. 1998)(No. 92,114); Jackson v. Davis, 705 So. 2d 9 (Fla. 1997)(No. 91,796); Jackson v. Department of Corrections, 707 So. 2d 1125 (Fla. 1997)(No. 91,381); Vega [and Jackson] v. Singletary, 704 So. 2d 521 (Fla. 1997)(No. 90,021); Jackson v. McAndrew, 687 So. 2d 1303 (Fla. 1997)(No. 89,675); Jackson v. Schapiro, 680 So. 2d 422 (Fla. 1996)(No. 88,860); Jackson v. Singletary, 675 So. 2d 927 (Fla. 1996)(No. 87,961); Jackson v. Singletary, 670 So. 2d 938 (Fla. 1996)(No. 87,372); Jackson v. Department of Corrections, 617 So. 2d 319 (Fla. 1993)(No. 81,061). Seven of those petitions were for writ of mandamus filed against the Department of Corrections or employees of the prison. As a general rule, Jackson's petitions against the Department concern the manner in which it conducts prison affairs and how it disciplines its inmates. In each of the petitions listed above, Jackson was granted in forma pauperis status and thus was not required to pay the filing fee. Jackson paid no filing fee in his two petitions for review filed in this Court, and he paid no filing fee for the four habeas petitions filed here since there is no filing fee for such petitions. Since the filing of the instant petition against the Department on April 20, 1998, Jackson has filed eleven additional petitions against the Department which are either still pending, were transferred, or were dismissed. See Jackson v. Department of Corrections, No. 93,227 (Fla. petition filed May 6, 1998)(pending); Jackson v. Singletary, No. 94,196 (Fla. petition filed Oct. 26, 1998)(pending); Jackson v. Department of Corrections, No. 94,195 (Fla. petition filed Oct. 26, 1998)(pending); Jackson v. Department of Corrections, No. 94,234 (Fla. petition filed Nov. 3, 1998)(pending); Jackson v. Department of Corrections, No. 94,271 (Fla. petition filed Nov. 9, 1998)(pending); Jackson v. Moore, No. 95,700 (Fla. petition filed June 1, 1999)(pending); Jackson v. Moore, No. 95,891 (Fla. Jul. 19, 1999)(transferred); Jackson v. Moore, No. 95,931 (Fla. Jul. 19, 1999)(transferred);Stridison [and Jackson] v. Moore, No. 95,992 (Fla. Jul. 23, 1999)(transferred); Jackson v. Moore, No. 96,321 (Fla. petition filed Aug. 19, 1999)(pending); Stridison [and Jackson] v. Moore, No. 96,382 (Fla. Aug. 31, 1999)(dismissed). In all likelihood, Jackson will have filed more petitions in this Court before this decision is published.

Mitchell v. Moore

Mitchell v. Moore, 786 So.2d 521 (Fla. 04/12/2001)

[1] Florida Supreme Court

[2] No. SC95299

[3] 786 So.2d 521, 2001.FL

[4] April 12, 2001


[6] Susan L. Kelsey of Holland & Knight Llp, Tallahassee, Florida, for Petitioner Robert A. Butterworth, Attorney General, and Douglas T. Squire and Charlie McCoy, Assistant Attorneys General, Tallahassee, Florida, for Respondent

[7] The opinion of the court was delivered by: Per Curiam

[8] Marshall Mitchell petitions this Court for writ of mandamus. We have jurisdiction. Art. V, § 3(b)(8), Fla. Const.

[9] While we recently struck down the copy requirement portion of section 57.085, Florida Statutes (1999) (hereinafter the Prisoner Indigency Statute), in Jackson v. Florida Dep't of Corrections, 26 Fla. L. Weekly S51 (Fla. May 4, 2000), we find it necessary to further address the copy requirement due to the importance of the constitutional issue raised in this case.

[10] FACTS

[11] On July 24, 1996, petitioner, an inmate in Florida's prison system, filed a petition for writ of habeas corpus in the Leon County Circuit Court. The circuit court treated the petition as one for a writ of mandamus and denied the petition. *fn1 On September 2, 1997, petitioner filed his notice of appeal in the circuit court and it was forwarded to the First District Court of Appeal on September 4, 1997.

[12] On September 10, 1997, the First District issued an order instructing petitioner to pay the filing fee of $250 or obtain an order determining him indigent (for appellate purposes) from the lower court within thirty days. On September 22, 1997, petitioner filed an affidavit of insolvency in the trial court. However, before the circuit court had ruled upon petitioner's request for indigency, on November 4, 1997, the First District dismissed petitioner's appeal. On November 12, 1997, the circuit court denied petitioner's request for indigency because he had failed to submit copies of the complaints or other initial pleadings he had filed in the preceding five years as required by subsection (7) of the Prisoner Indigency Statute. It seems clear from petitioner's numerous motions that petitioner thought that all the courts wanted was information concerning his lack of funds. Therefore, on November 12, 1997, (the same day the circuit court denied his request to proceed in forma pauperis) petitioner filed a response to the First District's dismissal order detailing the cases in which he had been adjudicated indigent, attaching a number of orders from various courts finding him indigent and asserting that his financial circumstances had not changed.

[13] He also filed a motion for rehearing in the circuit court. The First District denied petitioner's motion for rehearing/reinstatement in December 1997 and the trial court denied his motion for rehearing in February 1998.

[14] At about that time, it seems clear that petitioner began to understand what the courts had wanted (copies of the initial pleadings and final orders, not the orders on indigency). Nevertheless, he also realized that he no longer had copies of the pleadings from the vast majority of the forty or so lawsuits he had filed in the last five years. Petitioner was eventually able to reassemble his old cases and on February 15, 1999, he filed a second motion for reinstatement in the First District explaining that he did not have the copies before that time and that he had mistakenly thought that the courts only wanted prior orders from other courts finding him indigent. On March 19, 1999, the First District denied petitioner's second motion for reinstatement. On April 8, 1999, petitioner filed his petition for writ of mandamus in this Court and was granted indigency status. *fn2

[15] Petitioner alleged that the copy requirement of the Prisoner Indigency Statute violated the constitution under various theories. We decline to discuss any but the access to courts theory.


[17] Petitioner argues that the copy requirement of the Prisoner Indigency Statute is unconstitutional because it results in an insurmountable obstacle to a prisoner's right to access the courts.

[18] Having had several years of experience with the Prisoner Indigency Statute, we must now agree. Petitioner's appeal was dismissed for his failure to provide copies of voluminous pleadings which were only obtainable through great difficulty, delay, and public expense. While the copy requirement does not always result in a complete inability to gain access to the courts, it produces procedural pitfalls so difficult and time-consuming that litigation of the merits of a case becomes less time-consuming and frustrating than being permitted to proceed as an indigent. We must conclude that these requirements have become a door to the Court that some inmates simply cannot open.

[19] There are two sources of the right to access the courts. Florida's constitution specifically guarantees a citizen's access to courts. See art. I, § 21, Fla. Const. The Constitution of the United States does not, however, contain a specific clause providing for this right. The United States Supreme Court, nevertheless, has held that there is such a right arising from several constitutional provisions including the First Amendment, the Due Process Clause, and the Equal Protection Clause. See generally Bounds v. Smith, 430 U.S. 817, 825 (1977) (holding that prisoners have a fundamental constitutional right to "a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts"), modified, Lewis v. Casey, 518 U. S. 343 (1996). The Supreme Court described the right of "access to courts" as including, among other things, the provision of an acceptable law library. Id. at 828. In Lewis v. Casey, 518 U. S. at 355, however, the Court made clear that "access to courts" does not guarantee inmates the right to "transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims." States must only provide a reasonably adequate opportunity to file non-frivolous legal claims challenging their convictions or conditions of confinement. Id.

[20] As pointed out by petitioner's counsel, one problem with Florida's Prisoner Indigency Statute is that the requirement that some inmates comply with the more rigorous copy requirement does not stem from a determination by any court that the inmate has ever filed a frivolous or other improper action. Only inmates who have twice in the preceding three years been permitted to file actions without prepayment of filing fees must comply with these more rigorous requirements. Having filed only two prior actions in forma pauperis is clearly not, in itself, inherently improper. Furthermore, the federal statute upon which the Prisoner Indigency Statute is purportedly fashioned and upon which the State relies to assert that the Florida statute does not amount to an access to courts violation does not contain a copy requirement at all. See 28 U.S.C. § 1915 (Supp. IV 1999).

[21] Further, the federal "three strikes" provision to which the State compares Florida's copy requirement only applies when an inmate has been found by a court to have filed three prior in forma pauperis proceedings which were improper. *fn3 Therefore, if application of these requirements either intentionally or incidentally results in a sanction being imposed on the inmate, there are several constitutional problems. First, no "bad act" has been identified as the basis for the "punishment." Second, if the requirements act to prevent the filing of actions which have not yet even been reviewed to determine whether they are frivolous or otherwise improper, that effect would result in an access to courts violation under the federal constitution.

[22] The copy requirement of Florida's Prisoner Indigency Statute is problematic under an analysis based on Florida's constitution as well. Contrary to the federal constitution, Florida's constitution contains a specific "Access to Courts" provision, found in article I, section 21, that provides:

[23] Access to Courts. -- The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.

[24] In Kluger v. White, 281 So. 2d 1 (Fla. 1973), this Court set forth a test for determining compliance with the access to courts clause when the Legislature enacts provisions which appear to restrict the right. In that case, the Legislature purported to do away with a person's ability to sue for an automobile accident unless the property damages exceeded a certain amount. This Court found the statute unconstitutional and established the following test:

[25] [W]here a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla. Stat. § 2.01, F. S. A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown. Id. at 4.

[26] In Kluger, the Court found that the test was not met and declared the statute unconstitutional. On other occasions, however, this Court has concluded that statutes had passed the test because the right of action at issue had been only marginally limited. See, e.g., Chapman v. Dillon, 415 So. 2d 12 (Fla. 1982) (threshold limits of no-fault statute provide a reasonable alternative to tort action and do not deny access to courts); Purdy v. Gulf Breeze Enterprises, Inc., 403 So. 2d 1325 (Fla. 1981) (statute requiring reimbursement of insurer for PIP benefits where insured recovers from negligent third party does not deny access to courts); Pinillos v. Cedars of Lebanon Hospital Corp., 403 So. 2d 365 (Fla. 1981) (admissibility of collateral source evidence in medical malpractice actions upheld); McMillan v. Nelson, 5 So. 2d 867 (Fla. 1942).

[27] In this case, however, it is not any asserted right to seek redress from the court for any particular injury which has been abolished. Nor is it any asserted right to indigency itself which is at issue. See G.B.B. Investments, Inc. v. Hinterkopf, 343 So. 2d 899 (Fla. 3d DCA 1977). *fn4 On the contrary, the right which has been infringed is the right to seek redress for any type of injury or complaint of any kind in any civil case that requires a filing fee. This type of abolition is far greater than the right taken in Kluger, or any of this Court's previous access to courts cases. Further, in order to find that a right has been violated it is not necessary for the statute to produce a procedural hurdle which is absolutely impossible to surmount, only one which is significantly difficult. This is so because the Florida Constitution provides that "[t]he courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay." Art. I, § 21, Fla. Const. This "openness" and necessity that access be provided "without delay" clearly indicate that a violation occurs if the statute obstructs or infringes that right to any significant degree. We conclude that in petitioner's case, the right was significantly obstructed.

[28] In Kluger, only one type of possible legal action was curtailed. In this case, the right to gain access to the courts itself has been infringed. Under Kluger, the Legislature may only abolish a right if it has provided a reasonable alternative, it has shown an overpowering public necessity for the abolishment of the right, and there is no alternative method of remedying the problem. Kluger, 281 So. 2d at 4. We find nothing in the act indicating that the Legislature was faced with such an problem and that there was no alternative method of remedying it.

[29] The right to access is specifically mentioned in Florida's constitution. See art. I, § 21, Fla. Const. Therefore, it deserves more protection than those rights found only by implication. See Lloyd v. Farkash, 476 So. 2d 305, 307 (Fla. 1st DCA 1985) (finding duty to protect access to courts guarantee even greater than when the right is one found by implication from other clauses). The "no alternative method of correcting the problem" method of analysis, discussed above, is reminiscent of the goal-method test used in both substantive due process and equal protection analysis for cases in which a fundamental right is taken. See, e.g., Romer v. Evans, 517 U.S. 620, 631-34 (1996) (equal protection); Hodgson v. Minnesota, 497 U.S. 417 (1990) (substantive due process). In the goal-method analysis, if the interest which is being taken is a fundamental interest, or if the classification being challenged is based on a suspect classification (such as race), then the means or method employed by the statute to remedy the asserted problem must meet not only the rational basis test, but also the strict scrutiny test. In the strict scrutiny test, the method for remedying the asserted malady must be strictly tailored to remedy the problem in the most effective way and must not restrict a person's rights any more than absolutely necessary. See Washington v. Glucksberg, 521 U.S. 702, 766 (1997). Further, in strict scrutiny cases, there must be a compelling governmental interest which the statute purports to accomplish. We believe that this "compelling governmental interest" essentially corresponds to the "overpowering public necessity" language used in Kluger and conclude that there is no relevant difference between the "compelling governmental interest/strict scrutiny" test and the "no alternative method of correcting the problem/overpowering public necessity" test set forth in Kluger. Therefore, utilizing the analysis traditionally used in strict scrutiny review, we conclude that the copy requirement restricts and impedes the filing of many more types of inmate petitions than the types of inmate petitions which were identified by the Legislature to be the malady being targeted. The Legislature specifically identified as the targeted evil only frivolous or malicious civil actions. See ch. 96-106, preamble, at 92-93, § 2, Laws of Fla. The copy requirement has the potential to restrict the filing of any type of inmate petition requiring a filing fee. In other words, even assuming the statute satisfies the "compelling interest/overpowering public necessity" prong, the legislation is not strictly tailored (i.e., it is overbroad). Therefore, it does not meet the strict scrutiny or "no alternative method of correcting the problem" test set forth in Kluger.

[30] In a number of cases in which legislative acts were challenged on the ground that a right of recovery had been taken or restricted, this Court held that since a commensurate benefit had been provided as an alternative to the pre-existing right, there was no access to courts violation. For example, in Eller v. Shova, 630 So. 2d 537 (Fla. 1993), this Court found that the system of workers' compensation that provided no-fault recovery was a reasonable alternative to the right to sue one's employer for a work-related injury. Id. at 542-43. In Lasky v. State Farm Insurance Co., 296 So. 2d 9 (Fla. 1974), the provision of Florida's No-Fault Law that denied a plaintiff the right to sue unless certain threshold damages existed was not a violation of access to courts because the right was replaced with the ability to recover uncontested benefits and an exemption from tort liability. Id.; see also Smith v. Department of Insurance, 507 So. 2d 1080, 1088 (Fla. 1987) (further clarifying the reasoning behind Lasky). In this case, however, there is no commensurate benefit or alternative means for judicial access provided in the statute. Therefore, we conclude that it does not meet this test either. *fn5

[31] Statutes which precluded prisoners from filing legal actions like the present statute have been found unconstitutional before. See, e.g., Holman v. Hilton, 712 F.2d 854 (3rd Cir. 1983) (finding New Jersey's civil death statute unconstitutional as due process violation); Thompson v. Bond, 421 F. Supp. 878 (W.D. Mo. 1976); Delorme v. Pierce Freightlines Co., 353 F. Supp. 258 (D. Ore. 1973); McCuiston v. Wanicka, 483 So. 2d 489 (Fla. 2d DCA 1986); Collins v. Cote, 490 So. 2d 164 (Fla. 4th DCA 1986); Lloyd v. Farkash, 476 So. 2d 305 (Fla. 1st DCA 1985). Since the procedural hurdles caused by the copy requirement can and in some cases do rise to the level of a denial of access to courts, we have come to the conclusion that it is unconstitutional under Florida's access to courts provision.

[32] Accordingly, we grant the instant petition for writ of mandamus and instruct the First District Court of Appeal to reinstate petitioner's appeal.


[34] Whenever a court announces a new rule of law the question arises as to who is subject to or who may take advantage of the new rule. A new rule is applied either prospectively only, prospectively and retrospectively to certain non-final cases, or prospectively and retrospectively to all cases, even final cases on collateral review.

[35] Normally, a new rule which is not a fundamental change in the law, but merely an evolutionary refinement is generally applied prospectively to most cases, retrospectively to certain non-final cases ("pipeline" cases), but never to final cases. *fn6 In order for an advantageous decisional change to be fully retroactive to final cases on collateral review, it must be of constitutional nature, a "sweeping change of law" of "fundamental significance" constituting a "jurisprudential upheaval[]." Witt v. State, 387 So. 2d 922, 925, 929, 931 (Fla. 1980); see State v. Callaway, 658 So. 2d 983 (Fla. 1995). A mere "evolutionary refinement" will not abridge the finality of judgments because to do so would "destroy the stability of the law, render punishments uncertain and therefore ineffectual, and burden the judicial machinery of our state, fiscally and intellectually, beyond any tolerable limit." Witt, 387 So. 2d at 929-30.

[36] This Court has examined at least sixty cases since the Witt decision for purposes of deciding whether the "new rule" was a fundamental constitutional change warranting full retrospective application. In practice, because of the strong concern for decisional finality, this Court rarely finds a change in decisional law to require retroactive application. *fn7 At least two decisions of this Court found that "new rules" concerning habitual offender sentencing were not fundamental changes. In McCuiston v. State, 534 So. 2d 1144 (Fla. 1988), for example, this Court declined to retroactively apply Whitehead v. State, 498 So. 2d 863 (Fla. 1986), which held that finding a defendant to be an habitual offender is not a legally sufficient reason for departure from the guidelines. In Glenn v. State, 558 So. 2d 4, 7 (Fla. 1990), this Court further clarified that Winters v. State, 522 So. 2d 816 (Fla. 1988), was merely a refinement of habitual offender caselaw. In Winters, this Court had approved the use of the habitual offender statute to exceed the statutory maximum in accordance with the sentencing guidelines.

[37] On the other hand, in State v. Callaway, 658 So. 2d 983 (Fla. 1995), this Court provided for certain limited retroactive application in a case addressing an habitual offender issue. In that case, this Court reexamined its decision in Hale v. State, 630 So. 2d 521 (Fla. 1993), which held that the imposition of consecutive habitual offender sentences was improper. In Callaway, this Court concluded that its decision in Hale was a "fundamental change" in the law. It then balanced the need for decisional finality with the need for fairness and uniformity under the three-step approach of Stovall v. Denno, 388 U.S. 293 (1967), in which a court must consider (i) the purpose to be served by the new rule; (ii) the extent of reliance on the old rule, and (iii) the effect that retroactive application of the rule would have on the administration of justice. In Callaway, this Court focused particular attention on the fact that the habitual offender statute had been amended in 1988 to permit habitual offender sentences to exceed the guidelines. This Court therefore concluded that courts and law enforcement could not have assumed and relied on the belief that defendants could be sentenced consecutively to habitual offender sentences for very many years. Accordingly, requiring that the "new rule" be applied retroactively to provide for a limited two-year window would not unduly prejudice the administration of justice.

[38] Analyzing the instant case, we must first determine whether our decision today was based on analysis of provisions of the constitution. Clearly, our decision in this case is based on both the Florida Constitution and the Constitution of the United States of America. As mentioned above, to determine whether it is of such a fundamental nature as to warrant full retrospective application, we use the three-prong test explained in Stovall. Under Stovall we must consider and balance the purpose to be served by the new rule in our decision, the extent of reliance on the old rule, and the effect that retroactive application of the rule would have on the administration of justice.

[39] The purpose of our decision today in this case is to ensure that the right of access to courts is available to all, a right specifically set forth in our constitution. See art. I, § 21, Fla. Const. Clearly, in order for all to receive this fundamental right, we must apply it to all. Further, due to the administrative problems with the copy requirement, including the lack of the necessary clerical staff to undertake the additional procedures involved in strictly enforcing the requirement, our experience leads us to believe that few courts, including this Court, were able to strictly and consistently enforce it.

[40] Therefore, we cannot say that the extent of reliance factor in this case can be very large. Moreover, even assuming strict enforcement of the requirements since its inception, the statute has only been in effect since 1996 and, although we expect some disruption to the administration of justice, we believe the importance of the right being advanced, that of seeking the aid of the justice system itself, must outweigh these concerns.

[41] We have also considered whether we should apply our ruling to "pipeline" cases only. Under that theory, however, the person seeking application of the new rule must have objected at trial. *fn8 Clearly, applying that strict test of "pipeline" applicability would not work in this mandamus case because the underlying action here was a writ petition filed by petitioner, not his underlying criminal case. Petitioner was not asked to comply with the indigency statute in the underlying action and it was only when he attempted to appeal his case to the district court that he encountered the copy requirement.

[42] Therefore, he could not have "objected" below. While this Court could attempt to fashion a type of "pipeline" theory where the person would be able to have his or her case reopened (whether it be an original action in the circuit court, district court, this Court, or an appeal) if he or she had objected to the requirements at some point in the case, we think it would be quite difficult to set a precise definition of "objecting" because there are so many scenarios possible. Further, even if we were to attempt to set forth a definition, it seems to us that the courts would probably spend as much time trying to determine whether each particular inmate met the definition as it would be for them to just allow the inmate to refile his or her case and then decide the case on the merits. With this consideration in mind, we believe that there will be less "upheaval" to the court system in the long run to permit all inmates whose cases were dismissed for failure to comply with the copy requirement to file a motion seeking reinstatement. Further, since this Court has not struck down the payment part of the Prisoner Indigency Statute, meaning that inmates still will need to pay for their lawsuits, *fn9 we think some inmates will decide that their lawsuits were not sufficiently important for them to seek reinstatement. Therefore, the number of inmates seeking reinstatement should not be overwhelming. Accordingly, balancing the important right of access to courts which underlies our decision in this case with the relative disruption full retrospective application will cause to the judicial system, we conclude that the interests of justice require that the courts apply this new rule to all inmates who file motions seeking to reinstate their cases if they were dismissed for failure to comply with the copy requirement of the Prisoner Indigency Statute.

[43] However, in order to minimize judicial upheaval, we find it necessary to set forth a time frame for the filing of such motions. As is the case with the analogous situation presented when claims are filed under rule 3.850(b)(2) (concerning new rights held to apply retroactively), *fn10 we hold that any motions seeking to reinstate a closed case under this decision must be filed within two years of the date this decision becomes final.

[44] It is so ordered.


[46] WELLS, C.J., concurs in result only.

[47] Original Proceeding - Writ of Mandamus


Opinion Footnotes


[48] *fn1 Even though the Second Judicial Circuit Court in Leon County treated petitioner's petition as one seeking mandamus relief, no compliance with the Prisoner Indigency Statute was required. Based on the date of the petition, we would assume that the reason was that while the statute had gone into effect, the procedures for implementing the statute had probably not yet been put in place. Even though the court treated the petition as one seeking mandamus relief, it would appear that, for filing fee purposes, petitioner's petition was still treated by the trial court as one for habeas corpus (which has no filing fee). Since the circuit court never asked peititioner for a filing fee or an affidavit of indigency, no order on indigency was ever issued for purposes of the original petition.

[49] *fn2 It took petitioner some six months and a number of orders from this Court directed to the Department of Corrections before petitioner was able to assemble his 3000 or so pages of prior pleadings so he could comply with this Court's then-policy of requiring strict compliance with the copy requirement part of the Prisoner Indigency Statute. At that time, in order to receive a thorough briefing, we appointed counsel for petitioner.

[50] *fn3 That federal statute provides, in pertinent part: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g) (Supp. IV 1999) (emphasis added).

[51] *fn4 In Hinterkopf, the Third District Court of Appeal stated that The courts have generally disapproved financial pre-conditions to bringing claims or asserting defenses in court aside from court related filing fees. A payment to the court clerk to be used in constructing a county law library as a condition for bringing a lawsuit has been declared an undue burden on the right of free access to the courts. Flood v. State ex rel. Homeland Co., 95 Fla. 1003, 117 So. 385 (1928). Requiring a defendant in a criminal case to pay court-appointed counsel fees and certain appellate costs as a condition for being heard on a motion for supersedeas bail following conviction has been struck down on the same ground. Bell v. State, 281 So. 2d 361 (Fla. 2d DCA 1973). And requiring payment of a sum of money into the registry of the court unrelated to filing fees as a condition for defending a lawsuit has long been declared constitutionally impermissible. Hovey v. Elliott, 167 U.S. 409, 17 S. Ct. 841, 42 L. Ed. 215 (1897). Hinterkopf, 343 So. 2d at 901.

[52] *fn5 See also Bass v. Department of Corrections, 684 So. 2d 834, 835-36 (Fla. 1st DCA 1996) (striking on an access to courts analysis prison rules which impermissibly restricted inmates' ability to file legal actions while in disciplinary confinement).

[53] *fn6 See Wuornos v. State, 644 So. 2d 1000 (Fla. 1994); Wyatt v. State, 641 So. 2d 355 (Fla. 1994); Peterka v. State, 640 So. 2d 59 (Fla. 1994); Elam v. State, 636 So. 2d 1312 (Fla. 1994); Taylor v. State, 630 So. 2d 1038 (Fla. 1993); Jackson v. Dugger, 633 So. 2d 1051 (Fla. 1993); Valentine v. State, 616 So. 2d 971 (Fla.1993); Koon v. Dugger, 619 So. 2d 246 (Fla. 1993); State v. Johans, 613 So. 2d 1319 (Fla. 1993); Smith v. State, 598 So. 2d 1063, 1066 (Fla. 1992).

[54] *fn7 See, e.g., Jones v. State, 528 So. 2d 1171 (Fla. 1988) (declined to retroactively apply Haliburton v. State, 514 So. 2d 1088 (Fla. 1987), which held that police failure to comply with attorney's telephonic request not to question a defendant further until that attorney could arrive was a violation of due process); State v. Safford, 484 So. 2d 1244 (Fla. 1986) (declined to retroactively apply State v. Neil, 457 So. 2d 481 (Fla. 1984), which changed the long-standing rule in Florida that a party could never be required to explain the reasons for exercising preemptory challenges); State v. Statewright, 300 So. 2d 674 (Fla. 1974) (declined to retroactively apply Miranda v. Arizona, 384 U.S. 436 (1966), which established that police must warn arrested persons of their right to remain silent before questioning).

[55] *fn8 The "pipeline" theory is explained in this Court's decision in Smith v. State, 598 So. 2d 1063, 1066 (Fla. 1992) (citations omitted), wherein this Court stated: We are persuaded that the principles of fairness and equal treatment . . . compel us to adopt a[n] . . . evenhanded approach to the retrospective application of the decisions of this Court with respect to all non-final cases. Any rule of law that substantially affects the life, liberty, or property of criminal defendants must be applied in a fair and evenhanded manner. "[T]he integrity of judicial review requires that we apply [rule changes] to all similar cases pending on direct review." Griffith[ v. Kentucky, 479 U.S. 314, 323 (1987)]. . . . Thus, we hold that any decision of this Court announcing a new rule of law, or merely applying an established rule of law to a new or different factual situation, must be given retrospective application by the courts of this state in every case pending on direct review or not yet final. To benefit from the change in law, the defendant must have timely objected at trial if an objection was required to preserve the issue for appellate review.

[56] *fn9 Inmates will have to pay a portion of the filing fee in advance if able and make installment payments toward the full filing fee if and when any funds are deposited into their accounts. See § 57.085(4) - - (5), Fla. Stat. (1999).

[57] *fn10 See, e.g., Dixon v. State, 730 So. 2d 265 (Fla. 1999) (3.850 claim permitted if filed within two years of the decision holding the right to be retroactive).