State Va. Ex Rel. Keith William Deblasio v. Jackson

Decision Date27 January 2011
Docket NumberNo. 35701.,35701.
Citation227 W.Va. 206,707 S.E.2d 33
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia ex rel. Keith William DEBLASIO, Plaintiff Below, Petitionerv.Kimberly J. JACKSON, Circuit Clerk of the Morgan County Circuit Court and Honorable John C. Yoder, Judge of the Circuit Court of Morgan County, Respondents.
OPINION TEXT STARTS HERE
Syllabus by the Court

1. “When a party files an affidavit in accordance with and by reason of Code 1931, 59–2–1, stating that he is pecuniarily unable to pay fees and costs, or counsel fees, the truth of the affidavit is not then to be questioned and the officer whose services may be demanded or required shall perform such services as are required by law, as if such fees for such services had been paid.” Syllabus Point 2, Mars v. Luff, 155 W.Va. 651, 186 S.E.2d 768 (1972).

2. In making the initial determination of eligibility for waiver of fees, costs or security pursuant to the Financial Guidelines for Determining Eligibility for Waiver of Fees, Costs, or Security in Civil Cases,

the clerk of the court is required to treat the financial disclosures in the affidavit, which were made by the applicant under oath and penalty of false swearing, as true. If the clerk determines that the disclosures in the applicant's financial affidavit meet the Guidelines for waiver of fees, costs, or security, then the clerk shall immediately file the civil action. If the clerk determines that the disclosures in the applicant's financial affidavit do not meet the Guidelines for waiver of fees, costs or security, or if the clerk determines that the financial affidavit provides insufficient information for the clerk to make such a determination, then the clerk shall deny the application to proceed in forma pauperis. When a clerk denies an application to proceed in forma pauperis, the clerk shall inform the applicant of the right to request that the clerk forward a copy of the application and financial affidavit to a judge for review of the clerk's denial.

3. The Financial Guidelines for Determining Eligibility for Waiver of Fees, Costs, or Security in Civil Cases, require the clerk of the court to make the initial determination whether the disclosures in an applicant's financial affidavit meet the Guidelines to proceed in forma pauperis. A writ of mandamus will issue to compel the clerk to perform that non-discretionary administrative duty.

4. Where a clerk of a court has denied an application to proceed in forma pauperis, and the applicant has requested a review of that denial by a judge, the sole issue to be determined by the judge reviewing the application and financial affidavit is whether the applicant meets the Guidelines for Determining Eligibility for Waiver of Fees, Costs, or Security in Civil Cases.

5. Except in those cases where a litigant has repeatedly engaged in conduct amounting to an abuse of process by repeatedly filing frivolous or vexatious civil actions, a writ of prohibition will issue to bar a reviewing court from requiring an applicant, whose application to proceed in forma pauperis has been denied by a clerk of a court, to show that the civil complaint is not frivolous or being filed for a vexatious purpose.

Keith W. Deblasio, Great Cacapon, WV, Pro Se.Debra McLaughlin, Esq., Morgan County Prosecuting Attorney, Berkeley Springs, WV, for Respondent, Kimberly Jackson.Hon. John C. Yoder, Judge, Martinsburg, WV, Pro Se.

KETCHUM, Justice:

The Petitioner, Keith William Deblasio, pro se, invokes this Court's original jurisdiction seeking a writ of mandamus. The Petitioner argues that the Respondent Clerk of the Circuit Court of Morgan County (“Clerk”) failed to perform a non-discretionary administrative act when she failed to make the initial determination of the Petitioner's eligibility to proceed in forma pauperis and that the Respondent circuit judge (circuit court) subsequently erred by denying the Petitioner's application to proceed in forma pauperis.

Having fully considered the record, briefs, and arguments of the parties, we find that the Clerk failed to perform a non-discretionary duty by failing to make an initial determination of whether the Petitioner's financial affidavit met the Guidelines for Determining Eligibility for Waiver of Fees, Costs, or Security in Civil Cases. We also find that the circuit court committed error in its review of the Petitioner's application and financial affidavit seeking leave to proceed in forma pauperis. For the reasons set forth herein, we grant a Writ of Mandamus as moulded.

I.Facts and Background

On July 28, 2010, the Petitioner appeared at the office of the Clerk for purposes of filing a civil action naming several defendants. The Petitioner was informed of the filing fees required, at which time he requested to proceed in forma pauperis. The Petitioner was provided, and he completed, a “Financial Affidavit and Application: Eligibility for Waiver of Fees, Costs, or Security in a Civil or Domestic Case.” The Petitioner's application and financial affidavit was notarized by a Deputy Clerk of the Circuit Court of Morgan County. The Deputy Clerk did not determine if the financial affidavit met the eligibility guidelines for proceeding in forma pauperis. Instead, the Petitioner was informed by the Deputy Clerk that the application and affidavit, together with the civil complaint that the defendant wanted to file, would be forwarded to the circuit judge for review, and that the circuit judge would either approve or deny the application to proceed in forma pauperis.

On August 7, 2010, the circuit court denied the Petitioner's application to proceed in forma pauperis. No reason for the denial was given. On August 23, 2010, the Petitioner submitted a second application and financial affidavit seeking to proceed in forma pauperis; however, the record does not indicate that the Clerk has taken any action on this application.

On September 9, 2010, the Petitioner filed with this Court a pro se Petition for Extraordinary Relief in the Nature of a Writ of Prohibition and Mandamus.” In the Petition, the Petitioner argues that he is an indigent person meeting the Guidelines for Determining Eligibility for Waiver of Fees, Costs, or Security in Civil Cases, and that he is entitled, pursuant to statute and Court rules, to have the Clerk file his civil action without prepayment of any fees, costs, or security.

The Clerk argues that she “requires either a waiver from the Court based on the financial affidavit or paid filing fees” before the Petitioner's civil action can be filed. The circuit court filed a response stating that while it “does not dispute that the petitioner seems to meet the financial guidelines based on [the Petitioner's] affidavit,” it nonetheless denied the Petitioner's application because the civil action sought to be filed by the Petitioner was frivolous and vexatious.

II.Standard of Review

We have previously held that [p]etitioners in mandamus must have a clear legal right to the relief sought therein and such right cannot be established in the proceeding itself.” Syllabus Point 1, State ex rel. Kucera v. The City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969). We have also held that [a] writ of mandamus will not issue unless three elements coexist—(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.” Syllabus Point 2, State ex rel. Kucera v. The City of Wheeling, Id.

III.Discussion

In West Virginia, state courts are required by W.Va.Code, 59–2–1 [1999], to permit qualified indigent people to initiate civil actions without the prepayment of fees, costs, or security. This process is referred to as proceeding in forma pauperis. This Court has implemented W.Va.Code, 59–2–1, with the adoption of Rule 77(e) of the West Virginia Rules of Civil Procedure, Rule 22 of the Rules of Civil Procedure for the Magistrate Courts of West Virginia, and the Financial Guidelines for Determining Eligibility for Waiver of Fees, Costs, or Security in Civil Cases (Guidelines), the latter approved by this Court April 29, 2003, with an effective date of May 1, 2003.

The initial step for proceeding in forma pauperis is for a litigant to complete, under oath and penalty of false swearing, an application and financial affidavit listing the litigant's assets and liabilities.1 Once completed, the clerk of the courtnot a circuit judge—is required to review the affidavit and [i]f it appears from the affidavit that the person meets the financial guidelines, the clerk shall perform the service requested in conjunction with the affidavit.” Rule 77(e)(2) [1998], in part, of the West Virginia Rules of Civil Procedure. Cf., Rule 22(b) [1993] of the Rules of Civil Procedure for the Magistrate Courts of West Virginia;

and Section A, Financial Guidelines for Determining Eligibility for Waiver of Fees, Costs, or Security in Civil Cases. The sole inquiry to be determined by the clerk is whether the financial information listed in the financial affidavit meets the Guidelines for an applicant to proceed in forma pauperis. Neither the veracity of the disclosures made in the affidavit, nor the merits of the underlying civil action, are to be considered by the clerk.2

When a party files an affidavit in accordance with and by reason of [ W.Va.Code ], 59–2–1, stating that he is pecuniarily unable to pay fees and costs, or counsel fees, the truth of the affidavit is not then to be questioned and the officer whose services may be demanded or required shall perform such services as are required by law, as if such fees for such services had been paid.Syllabus Point 2, Mars v. Luff, 155 W.Va. 651, 186 S.E.2d 768 (1972). 3

To provide guidance for court clerks as to their duties when reviewing an application and financial affidavit to file a civil action without prepayment...

To continue reading

Request your trial
4 cases
  • State Va. v. Marshall
    • United States
    • West Virginia Supreme Court
    • May 3, 2011
    ...writ of mandamus will issue to compel the clerk to perform that non-discretionary administrative duty.” Syl. Pt. 3, State ex rel. Deblasio v. Jackson, 227 W.Va. 206, 707 S.E.2d 33 (2011). 4. “Where a clerk of a court has denied an application to proceed in forma pauperis, and the applicant ......
  • State v. Silver, 15-0029
    • United States
    • West Virginia Supreme Court
    • June 16, 2015
    ...of parental rights, determination of paternity, or adjudication of insanity), overruled on other grounds by State ex rel. Deblasio v. Jackson, 227 W. Va. 206, 707 S.E.2d 33 (2011). A convict with sufficient resources and motivation to defend the asserted claims is entitled to hire legal rep......
  • Vanessa T. v. Shawn G.
    • United States
    • West Virginia Supreme Court
    • June 17, 2019
    ...compliance bond in cash and imposing the other costs, fees, and monetary sanctions. In syllabus point one of State ex rel. Deblasio v. Jackson, 227 W.Va. 206, 707 S.E.2d 33 (2011), we reiterated:"When a party files an affidavit in accordance with and by reason of [West Virginia Code §] 59-2......
  • Dosso v. Farmers & Mechanics Ins. Cos.
    • United States
    • West Virginia Supreme Court
    • June 17, 2019
    ...discovery commissioner's fees and costs because his indigency status was approved. In syllabus point one of State ex rel. Deblasio v. Jackson, 227 W.Va. 206, 707 S.E.2d 33 (2011), we reiterated:"When a party files an affidavit in accordance with and by reason of [West Virginia Code §] 59-2-......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT