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Writ of Mandamus

posted Jan 15, 2012, 4:56 PM by Dawn Olsen   [ updated Jan 15, 2012, 5:00 PM by Neslo Ventures ]

How to File for a Petition for Writ of Mandate

By Mike Broemmel, eHow Contributor

A petition for writ of mandate, also commonly known as a petition for a writ of mandamus, is a document filed with a court that requests an order directing a governmental agency or representative to perform a required function. In the alternative, a petition for writ of mandate can be filed seeking a court to order a governmental agency or representative to stop doing something that it has no legal authority to do in the first instance.

Difficulty:  Challenging

Instructions

Things You'll Need

  • Petition for a Writ of Mandate (or Mandamus) Hearing Notice
  1. Identify what legal right you personally have to seek a writ of mandate. You need to demonstrate that a governmental entity or representative is legally bound to perform a certain act or function and the failure to do so has impacted your rights.

  2. Make certain that the issue at hand does not involve a discretionary function of the governmental entity or representative. You cannot bring a writ of mandate if the act not being taken is one that can be pursued on a discretionary basis.

  3. Prepare an initial petition for mandate, which technically is known as an "alternative mandate" or "alternative mandamus." This initial filing requests that the court order the governmental entity or representative to perform or, in the alternative, appear in court at a designated time to explain why the performance of the act legally should not be done. You will also need to prepare a notice of hearing to advise the defendant of the time and place of the proceedings.

  4. Take care to outline specifically the facts that support the basis for your request and the reasons that the governmental agency (or agent) is required by law to act on your behalf.

  5. Upon a failure of the governmental agency or representative to appear in court at the initial hearing, or if the entity or agent fails to demonstrate a justification for not acting, you will then request the court to issue a "peremptory mandate" or peremptory mandamus. This is an unqualified and direct order of the court commanding the governmental agency or agent to undertake the desired, legally mandated act.

Tips & Warnings

  • Filing a petition for a writ of mandate or writ of mandamus is a complicated task in some instances. You need to familiarize yourself with the judicial system and the rules of civil procedure. You may want to consider obtaining legal assistance. If your case truly involves an issue of public significance, you likely will be able to find a lawyer in private practice who would consider volunteering to assist you with the case. In the alternative, you might be able to obtain legal assistance from a public interest organization as well.

References

Resources


The Free Dictionary - Legal

[Latin, We command.] A writ or order that is issued from a court of superior jurisdiction that commands an inferior tribunal, corporation, Municipal Corporation, or individual to perform, or refrain from performing, a particular act, the performance or omission of which is required by law as an obligation.

A writ or order of mandamus is an extraordinary court order because it is made without the benefit of full judicial process, or before a case has concluded. It may be issued by a court at any time that it is appropriate, but it is usually issued in a case that has already begun.

Generally, the decisions of a lower-court made in the course of a continuing case will not be reviewed by higher courts until there is a final judgment in the case. On the federal level, for example, 28 U.S.C.A. § 1291 provides that appellate review of lower-court decisions should be postponed until after a final judgment has been made in the lower court. A writ of mandamus offers one exception to this rule. If a party to a case is dissatisfied with some decision of the trial court, the party may appeal the decision to a higher court with a petition for a writ of mandamus before the trial proceeds. The order will be issued only in exceptional circumstances.

The writ of mandamus was first used by English courts in the early seventeenth century. It migrated to the courts in the American colonies, and the law on it has remained largely the same ever since. The remedy of mandamus is made available through court opinions, statutes, and court rules on both the federal and state levels. On the federal level, for example, 28 U.S.C.A. § 1651(a) provides that courts "may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."

The Supreme Court set forth some guidelines on writs of mandamus in Kerr v. United States District Court, 426 U.S. 394, 96 S. Ct. 2119, 48 L. Ed. 2d 725 (1976). In Kerr, the Court upheld the denial of a writ of mandamus sought by prison officials to prevent the district court from compelling them to turn over personnel and inmate files to seven prisoners who had sued the prison over alleged constitutional violations. The officials argued that turning over the records would compromise prison communications and confidentiality.

The Supreme Court observed in Kerr that the writ of mandamus was traditionally used by federal courts only to confine an inferior court to a lawful exercise of its jurisdiction, or to compel an inferior court to exercise its authority when it had a duty to do so. The Court also noted that mandamus is available only in exceptional cases because it is so disruptive of the judicial process, creating disorder and delay in the trial. The writ would have been appropriate, opined the Court, if the trial court had wrongly decided an issue, if failure to reverse that decision would irreparably injure a party, and if there was no other method for relief. Because the prison officials could claim a privilege to withhold certain documents, and had the right to have the documents reviewed by a judge prior to release to the opposing party, other remedies existed and the writ was inappropriate.

Although traditionally writs of mandamus are rare, they have been issued in a growing number of situations. They have been issued by federal courts when a trial judge refused to dismiss a case even though it lacked jurisdiction; refused to reassign a case despite a conflict of interest; stopped a trial for Arbitration or an administrative remedy; denied a party the opportunity to intervene, to file a cross-claim, or to amend a Pleading; denied a Class Action; denied or allowed the consolidation or severance of two trials; refused to permit depositions; or entered an order limiting or denying discovery of evidence.

The writ of mandamus can also be issued in a mandamus proceeding, independent of any judicial proceeding. Generally, such a petition for a mandamus order is made to compel a judicial or government officer to perform a duty owed to the petitioner. For example, in Massachusetts, each year the commonwealth's attorney general and each district attorney must make available to the public a report on wiretaps and other interceptions of oral communications conducted by law enforcement officers. If the report is not made available, any person may compel its production by filing an action for mandamus (Mass. Gen. Laws Ann. ch. 272, § 99 [West 1996]). If successful, a court would issue an order directing the attorney general and district attorneys to produce the information. The attorney general and district attorneys have a chance to defend their actions at a hearing on the action. If the parties fail to comply with a mandamus order, they may be held in Contempt of court and fined or jailed.

Further readings

Hazard, Geoffrey C., Jr., et al. 1999. Pleading and Procedure, State and Federal: Cases and Materials. 8th ed. New York: Foundation Press.

Wyler, Robert A. 1990. Legalines: Civil Procedures. 3d ed. Chicago: Harcourt Brace Jovanovich Legal & Professional.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
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