Linda Thomson Deseret News
Deseret Morning News
SALT LAKE CITY — A prisoner in the Duchesne County Jail says a Utah law that does not permit state judges to waive filing fees for indigent prisoners seeking divorce is a violation of the man’s constitutional rights.
Jacob Kelsey filed suit in federal court Tuesday asking that a federal judge declare the Utah law unconstitutional because Kelsey alleges that it violates several of his rights under both the U.S. and Utah constitutions.
Utah law requires that state courts examine the finances of a prisoner seeking a divorce who says he cannot pay the full costs. If the person cannot pay the full fee and costs immediately, then the court must assess an initial partial filing fee equal to 50 percent of the prisoner’s current trust account balance or 10 percent of the prisoner’s six-month disposable income, whichever is greater.
After that, the court must make the prisoner make monthly payments of 20 percent of the previous month’s disposable income until the regular filing fee costs are satisfied.
Kelsey currently makes about 30 cents an hour doing menial jobs in the jail, according to his attorney, Brian Barnard.
It costs $155 to file for divorce in Utah.
Kelsey has named in his civil lawsuit Gov. Jon Huntsman, Utah Attorney General Mark Shurtleff and two state judges: 8th District Judge John Anderson and 8th District Judge A. Lynn Payne.
Barnard acknowledges that the judges -- under the law -- cannot waive divorce filing fees for prisoners, and the governor and attorney general are not directly involved in divorce actions.
“You’ve got to aim your lawsuit at somebody,” Barnard said. “To make sure we have the proper parties before the court, we named the governor, attorney general and the two judges.”
Barnard said case law from the U.S. Supreme Court has held that getting a divorce is a fundamental right and the filing fee has to be waived, which is not uncommon in other states.
“If an inmate is filing a lawsuit because he was beaten up by a jail guard, there’s no requirement that a filing fee be waived, but because he’s asking for termination of a marriage, that’s a fundamental right.”
Barnard said Kelsey is not asking for any financial damages and simply wants the law declared unconstitutional so he can get divorced and move forward with his life.
The suit claims the law violates Kelsey’s constitutional rights to due process, equal protection, and the right to petition the government for redress of grievances.
Paul Murphy, spokesman for the Utah Attorney General’s Office, said lawyers there will review the case once they get it, but they have not received it yet.
Copyright 2008 The Deseret News Publishing Co.