Opinion
No. 622, 2011 C.A. No. 11M-09-042
02-15-2012
IN THE MATTER OF THE PETITION OF PETER KOSTYSHYN FOR A WRIT OF MANDAMUS
Before BERGER, JACOBS and RIDGELY, Justices.
ORDER
This 15th day of February 2012, upon consideration of the petition for a writ of mandamus and request for the appointment of counsel filed by Peter Kostyshyn and the State's answer and motion to dismiss, it appears to the Court that:
(1) Peter Kostyshyn seeks to invoke this Court's original jurisdiction to issue a writ of mandamus to the Governor, the Chief Justice, a judge of the Superior Court, and the Attorney General. Kostyshyn wants to compel the production of all court records maintained in any Delaware Court concerning himself and his family. Kostyshyn originally requested court records under a Freedom of Information Act request (hereinafter "FOIA request") in the Superior Court. By order dated October 6, 2011, the Superior Court denied Kostyshyn's FOIA request.
Freedom of Information Act, Del. Code Ann. tit. 29, ch. 100 (2003 & Supp. 2010 & Interim Supp. 2011).
In re Kostyshyn, Del. Super., C.A. No. 11M-09-042.
(2) Kostyshyn's mandamus petition must be dismissed. To the extent Kostyshyn seeks to challenge the Superior Court's denial of his FOIA request, it is clear that a writ of mandamus cannot be used as a substitute for an appeal.
Matushefske v. Herlihy, 214 A.2d 883, 885 (Del. 1965). See, e.g., Gannett Co., Inc. v. Bd. of Managers of the Del. Criminal Justice Info. Sys., 840 A.2d 1232 (Del. 2003) (reversing, vacating and affirming Superior Court declaratory judgment appealed under title 11, ch. 85 and title 29, ch. 100 of the Delaware Code).
(3) This Court's jurisdiction to issue extraordinary writs is established and limited by the State Constitution. The Court has no jurisdiction to issue a writ of mandamus to the Governor, the Chief Justice, and/or the Attorney General.
Steigler v. Superior Court, 252 A.2d 300 (Del. 1969).
See Del. Const. art. IV, § 11(5) (providing that the Supreme Court has jurisdiction to issue extraordinary writs to the Superior Court and the Court of Chancery).
(4) A writ of mandamus will issue only if the petitioner can establish that he has a clear legal right to the performance of a non-discretionary duty. Kostyshyn has not established that the Superior Court failed or refused to perform a non-discretionary duty.
In re Bordley, 545 A.2d 619, 620 (Del. 1988).
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NOW, THEREFORE, IT IS ORDERED that the State's motion to dismiss is GRANTED. Kostyshyn's petition for a writ of mandamus is DISMISSED. Kostyshyn's request for the appointment of counsel is moot.
BY THE COURT:
Jack B. Jacobs
Justice