      IN THE SUPREME COURT OF THE STATE OF DELAWARE

 TODD BOONE and TREVOR                    §
 WIBERG,                                  §
                                          §   No. 112, 2016
       Petitioners Below-                 §
       Appellants,                        §
                                          §   Court Below—Superior Court
       v.                                 §   of the State of Delaware
                                          §
 STATE OF DELAWARE                        §   C.A. No. S15M-09-039
 DEPARTMENT OF HEALTH AND                 §
 SOCIAL SERVICES,                         §
                                          §
       Respondent Below-                  §
       Appellee.                          §

                          Submitted: May 27, 2016
                          Decided:   July 22, 2016

Before STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.

                                   ORDER

      This 22nd day of July 2016, upon consideration of the opening brief

and the motion to affirm, it appears to the Court that:

      (1)    The appellants, Todd Boone and Trevor Wiberg (“the

Appellants”), filed this appeal from the Superior Court’s dismissal of their

petition for a writ of mandamus. The State Department of Health and Social

Services (“DHSS”) has filed a motion to affirm the Superior Court’s

judgment on the ground that it is manifest on the face of the Appellants’

opening brief that their appeal is without merit. We agree and affirm.
       (2)    The Appellants each have a debilitating medical condition and

are registered medical marijuana cardholders.1 In September 2015, they

filed a petition in the Superior Court2 requesting that a writ of mandamus be

issued directing DHSS to issue compassion center registration certificates to

the highest scoring applicants in Kent County and Sussex County as required

by Sections 4914A(c) and (d) of the Medical Marijuana Act.3                     The

Appellants asserted that DHSS had a duty to issue certificates to the highest

scoring applicant in each county by January 1, 2013 and to issue three

additional certificates to the highest scoring candidates in each county by

January 1, 2014. Although DHSS issued a compassion center registration

certificate to an applicant in New Castle County, it failed to do so in either

Kent County or Sussex County. The Appellants are residents of Sussex

County.

       (3)    DHSS filed a motion for summary judgment in the Superior

Court. At a hearing, the Superior Court denied summary judgment but

dismissed the Appellants’ complaint without prejudice because the duty that

the Appellants sought to have DHSS perform was discretionary in nature,


1
   16 Del. C. § 4902A(1), (3) (Supp. 2014) (defining “cardholder” and “debilitating
medical condition”).
2
  See 16 Del. C. § 4924A (Supp. 2014) (providing that “any citizen may commence an
action in Superior Court to compel [DHSS] to perform the actions mandated pursuant to
the provisions of this chapter.”).
3
  16 Del. C. § 4914(c)-(d) (Supp. 2014).


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and a writ of mandamus will be issued only to perform a nondiscretionary

duty.

        (4)   We agree with that conclusion.             The Superior Court has

jurisdiction to issue a writ of mandamus to a State officer, tribunal, board or

agency to compel the performance of an official duty.4 A writ of mandamus,

however, is not issued as a matter of right but only in the exercise of sound

judicial discretion.5 Moreover, a writ of mandamus is appropriate only if the

petitioner can establish a clear legal right to the performance of a

nondiscretionary duty.6

        (5)   In this case, the Superior Court did not abuse its discretion in

dismissing the Appellants’ petition for a writ of mandamus.            Although

Section 4914A(c) and (d) establish DHSS’ duty to seek applicants for

compassion center registration certificates and to issue those certificates to

qualified applicants, 11 Del. C. § 4914A(e)(2) makes it clear that,

notwithstanding the other provisions of the statute, DHSS must exercise

discretion in evaluating applications and must deny applications that fail to

satisfy the statutory requirements and regulatory requirements established by

DHSS. Thus, the Appellants could not establish that DHSS had arbitrarily


4
  10 Del. C. § 564 (2013).
5
  Schagrin Gas Co. v. Evans, 418 A.2d 997, 998 (Del. 1980).
6
  Semick v. Dep’t of Corr., 477 A.2d 707, 708 (Del. 1984).


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refused to perform a nondiscretionary duty owed to them. Finally, we note

that the Superior Court dismissed the mandamus petition without prejudice,

which left the door open for the Appellants to bring a direct action under 16

Del. C. § 4924A as contemplated by the statute. Appellants are thus not

without a remedy, if warranted, for violations of the statute.

      NOW, THEREFORE, IT IS ORDERED that the judgment of the

Superior Court is AFFIRMED.

                                        BY THE COURT:

                                        /s/ Collins J. Seitz, Jr.
                                                Justice




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