IN THE SUPREME COURT OF THE STATE OF DELAWARE
CHARLES R. GETZ, JR., §
§ No. 527, 2017
Plaintiff Below- §
Appellant, §
§
v. § Court Below: Superior Court
§ of the State of Delaware
BOARD OF PAROLE, §
§ C.A. No. N17C-11-054
Defendant Below- §
Appellee. §
Submitted: January 30, 2018
Decided: March 28, 2018
Before STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.
ORDER
This 28th day of March 2018, upon consideration of the rule to show
cause, the appellant’s response, and the record on appeal, it appears to the
Court that:
(1) The appellant, Charles R. Getz, Jr., filed this appeal from an
order of the Superior Court dated November 20, 2017, dismissing his
complaint seeking declaratory and injunctive relief against the Board of
Parole. The Superior Court dismissed the complaint as legally frivolous
because the Board of Parole had denied Getz’s application for parole in
August 2016, and thus there was no longer an “actual controversy”1 to support
a claim for declaratory or injunctive relief.
(2) Along with his notice of appeal, Getz also filed a motion to
proceed in forma pauperis in this Court. The motion did not comply with
Supreme Court Rule 20(h) and was stricken. The Court Clerk wrote to Getz
on January 2, 2018 and directed him to file a motion in compliance with the
Court’s rule by January 16, 2018. The letter informed Getz that no further
action would be taken in his appeal until he did so. Getz did not refile his
motion as instructed in the Clerk’s letter. Accordingly, on January 18, 2018,
the Court issued a notice to Getz to show cause why his appeal should not be
dismissed for his failure to prosecute.
(3) Getz filed a response to the notice to show cause on January 30,
2018. The response reflects Getz’s objection to Section 14 of the Court’s
Official Form Q, which requires an appellant who is moving to proceed in
forma pauperis to swear or affirm that, “I understand that, if I am permitted
to proceed in forma pauperis in this matter and the Court later dismisses this
action or otherwise enters a judgment against me, then the Court may require
me to pay all costs and fees associated with this action and, if so ordered, shall
1
XL Specialty Ins. Co. v. WMI Liquidating Trust, 93 A.3d 1208, 1216 (Del. 2014)
(declaratory judgment action in Delaware must present an actual controversy that is ripe
for adjudication).
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retain jurisdiction over me until the costs and fees are paid.”2 Getz asserts that
Article I, § 9 of the Delaware Constitution requires the Courts to be open and
that he is entitled to a remedy “without sale, denial, or unreasonable delay or
expense.”3 He argues that the Court’s Rule 20, Official Form Q, and 10 Del.
C. ch. 88 are unconstitutional to the extent that they authorize the Court to
charge him a filing fee or to inquire into his financial status.
(4) We reject Getz’s argument. Permission to proceed as a pauper
without prepayment of the filing in a civil matter is a matter of privilege, not
a right.4 Neither Rule 20, Official Form Q nor 10 Del. C. ch. 88 bars an
indigent person access to courts in Delaware or otherwise violates an indigent
prisoner’s constitutional rights.5 Despite Getz’s argument to the contrary, the
United States Supreme Court has never held that courts cannot collect a fee
from prisoners filing civil lawsuits.6 We find no merit to Getz’s argument that
2
Supr. Ct. Official Form Q. Section 14 of Official Form Q derives from 10 Del. C. §
8803(d), which provides, “If, at any time, the court dismisses an action or otherwise enters
judgment against a litigant proceeding in forma pauperis, the jurisdiction of the court over
the litigant continues until all costs and fees associated with the action are paid.”
3
Del. Const. art. IV, § 9.
4
See Walls v. Phelps, 2014 WL 279472, *2 (Del. Jan. 23, 2014) (citing Abdul-Akbar v.
McKelvie, 239 F.3d 307, 314 (3d Cir. 2001)).
5
Id.
6
See, e.g., Bruce v. Samuels, 136 S.Ct. 627, 632-33 (2016) (upholding Court of Appeals’
ruling that prisoner’s filing fees in current case were due simultaneously with fees owed in
prior cases because such an approach “more vigorously serves the statutory objective of
containing prisoner litigation….”).
3
it is unconstitutional for the Court to charge him a fee or to inquire into his
financial status in order to determine his ability to pay a fee.
(5) Under the circumstances, we dismiss this appeal for Getz’s
failure to prosecute it diligently by refusing to comply with the Court’s
January 2, 2018 directive to file an in forma pauperis motion in compliance
with the Court’s rules.
NOW, THEREFORE, IT IS HEREBY ORDERED that the appeal is
DISMISSED.
BY THE COURT:
/s/ Gary F. Traynor
Justice
4