Mandamus
Encyclopedia
A writ of mandamus or mandamus (which means "we command" in Latin
), or sometimes mandate, is the name of one of the prerogative writ
s in the common law
, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".
Mandamus is a judicial remedy which is in the form of an order from a superior court to any government subordinate court, corporation
or public authority to do or forbear from doing some specific act which that body is obliged under law to do or refrain from doing, as the case may be, and which is in the nature of public duty and in certain cases of a statutory duty. It cannot be issued to compel an authority to do something against statutory provision.
Mandamus may be a command to do an administrative action or not to take a particular action, and it is supplemented by legal rights. In the American
legal system it must be a judicially enforceable and legally protected right before one suffering a grievance can ask for a mandamus. A person can be said to be aggrieved only when he is denied a legal right by someone who has a legal duty
to do something and abstains from doing it.
pleading for the writ of mandamus to be enforced should be able to show that he has a legal right to compel the respondent
to do or refrain from doing the specific act. The duty sought to be enforced must have two qualities: It must be a duty of public nature and the duty must be imperative and should not be discretionary.
; a matter for the discretion of the court, the exercise of which is governed by well-settled principles.
Mandamus, being a discretionary remedy, the application for that must be made in good faith and not for indirect purposes. Acquiescence cannot, however, bar the issue of mandamus. The petitioner must, of course, satisfy the Court that he has the legal right to the performance of the legal duty as distinct from mere discretion of authority. A mandamus is normally issued when an officer or an authority by compulsion of statute is required to perform a duty and which despite demand in writing has not been performed. In no other case will a writ of mandamus issue unless it be to quash an illegal order.
for mandamus is the existence of a statutory public duty incumbent upon the person or body against whom the mandamus is sought. There must equally co-exist a corresponding right in the petitioner entitling him to claim the enforcement of such public duty. These two preconditions form the foundation for the issue of mandamus. The primary scope and function of mandamus is to "command" and "execute" rather than to "enquire" and "adjudicate". It cannot be issued to change the decision of a body so as to suit the petitioner. Obligations which are not of statutory nature cannot be enforced by mandamus. The writ petition is not maintainable when a remedy provided for under the Code of Civil Procedure is available. For example, the High Court cannot entertain writ petitions for mandamus to the Government who fails to deposit and pay in the requisite time an enhanced compensation account as ordered by a lower Court. The petitioners in this case would be directed to approach the executing Court for appropriate relief.
Supreme Court and High Courts are only empowered to exercise Writ Jurisdiction, under Art. 32 and 226 of Constitution. No other courts are empowered to issue writ.
context in the United States, the requirement that mandamus can be used only to compel a ministerial act
has largely been abandoned. By statute or by judicial expansion of the writ of mandamus in most of the U.S. state
s, acts of administrative agencies are now subject to judicial review
for abuse of discretion. Judicial review of agencies of the United States federal government, for abuse of discretion, is authorized by the U.S. Administrative Procedures Act.
In the context of mandamus from a United States Court of Appeals
to a United States District Court, the Supreme Court has ruled that the appellate courts have discretion to issue mandamus to control an abuse of discretion by the lower court in unusual circumstances, where there is a compelling reason not to wait for an appeal
from a final judgment. This discretion is exercised very sparingly. It is exercised with somewhat greater frequency, although still sparingly, in the context of discovery
disputes involving privileged materials
, since a district court order erroneously forcing the disclosure of privileged material may never be remediable through a later appeal.
The authority of the United States district courts to issue mandamus has been expressly abrogated by Rule 81(b) of the Federal Rules of Civil Procedure
, but relief in the nature of mandamus can be had by other remedies provided for in the Rules, where provided by statute, or by use of the District Court's equitable powers.
s, such as California
, the writ is now called mandate instead of mandamus, and may be issued by any level of the state court system to any lower court or to any government official. It is still common for Californians to bring "taxpayer actions" against public officials for wasting public funds through mismanagement of a government agency, where the relief sought is a writ of mandate compelling the official to stop wasting money and fulfill his duty to protect the public fisc. The writ of mandate is also used in California for interlocutory appeal
s. In this context, the party seeking the writ is treated on appeal like a plaintiff, the trial court becomes the defendant, and the opponent is designated as the "real party in interest."
In Virginia, the Supreme Court has "original jurisdiction
" under the state constitution for mandamus involving the Virginia courts.
Other states, including New York
, have replaced mandamus (as well as the other prerogative writs) with statutory procedures. In New York, this is known as an Article 78 review after the civil procedure
law provision that created the relevant procedure. In still other states, such as Illinois
, the state court of last resort has original jurisdiction
in mandamus actions.
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
), or sometimes mandate, is the name of one of the prerogative writ
Prerogative writ
Prerogative writs are a class of writs which originate from English law. Originally they were available only to the Crown, but later they were made available to the monarch's subjects through the courts.The prerogative writs are:*certiorari...
s in the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".
Mandamus is a judicial remedy which is in the form of an order from a superior court to any government subordinate court, corporation
Corporation
A corporation is created under the laws of a state as a separate legal entity that has privileges and liabilities that are distinct from those of its members. There are many different forms of corporations, most of which are used to conduct business. Early corporations were established by charter...
or public authority to do or forbear from doing some specific act which that body is obliged under law to do or refrain from doing, as the case may be, and which is in the nature of public duty and in certain cases of a statutory duty. It cannot be issued to compel an authority to do something against statutory provision.
Mandamus may be a command to do an administrative action or not to take a particular action, and it is supplemented by legal rights. In the American
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
legal system it must be a judicially enforceable and legally protected right before one suffering a grievance can ask for a mandamus. A person can be said to be aggrieved only when he is denied a legal right by someone who has a legal duty
Duty of care
In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant...
to do something and abstains from doing it.
Legal requirements
The applicantProsecutor
The prosecutor is the chief legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system...
pleading for the writ of mandamus to be enforced should be able to show that he has a legal right to compel the respondent
Respondent
A respondent is a person who is called upon to issue a response to a communication made by another. In legal usage, this specifically refers to the defendant in a legal proceeding commenced by a petition, or to an appellee, or the opposing party, in an appeal of a decision by an initial fact-finder...
to do or refrain from doing the specific act. The duty sought to be enforced must have two qualities: It must be a duty of public nature and the duty must be imperative and should not be discretionary.
Purpose
The purpose of mandamus is to remedy defects of justice. It lies in the cases where there is a specific right but no specific legal remedy for enforcing that right. Generally, it is not available in anticipation of any injury except when the petitioner is likely to be affected by an official act in contravention of a statutory duty or where an illegal or unconstitutional order is made. The grant of mandamus is therefore an equitable remedyEquitable remedy
Equitable remedies are judicial remedies developed and granted by courts of equity, as opposed to courts of common law. Equitable remedies were granted by the Court of Chancery in England, and remain available today in most common law jurisdictions. In many jurisdictions, legal and equitable...
; a matter for the discretion of the court, the exercise of which is governed by well-settled principles.
Mandamus, being a discretionary remedy, the application for that must be made in good faith and not for indirect purposes. Acquiescence cannot, however, bar the issue of mandamus. The petitioner must, of course, satisfy the Court that he has the legal right to the performance of the legal duty as distinct from mere discretion of authority. A mandamus is normally issued when an officer or an authority by compulsion of statute is required to perform a duty and which despite demand in writing has not been performed. In no other case will a writ of mandamus issue unless it be to quash an illegal order.
Types
There are three kinds of mandamus:- Alternative Mandamus: A mandamus issued upon the first application for relief, commanding the defendant either to perform the act demanded or to appear before the court at a specified time to show cause for not performing it.
- Peremptory MandamusPeremptory MandamusA peremptory writ of mandamus is an absolute and unqualified writ to the defendant to do the act in question. It is issued when the defendant defaults on, or fails to show sufficient cause in answer to, an alternative mandamus...
: An absolute and unqualified command to the defendant to do the act in question. It is issued when the defendant defaults on, or fails to show sufficient cause in answer to, an alternative mandamus. - Continuing MandamusContinuing MandamusContinuing Mandamus is a writ of Mandamus issued to a lower authority by the higher authority in general public interest asking the officer or the authority to perform its task expeditiously for an unstipulated period of time for preventing miscarriage of justice.The concept of Continuing Mandamus...
: A Mandamus issued to a lower authority in general public interest asking the officer or the authority to perform its tasks expeditiously for an unstipulated period of time for preventing miscarriage of justice.
Parliamentary democracies
Under the Australian legal system, mandamus is available through section 75(v) of the Australian Constitution. In England and Wales, mandamus was originally known as a 'writ of mandamus' and more recently as an 'order of mandamus' . This procedure was renamed by The Civil Procedure (Modification of Supreme Court Act 1981) Order 2004 to become a 'mandatory order' in India, the sine qua nonSine qua non
Sine qua non or condicio sine qua non refers to an indispensable and essential action, condition, or ingredient...
for mandamus is the existence of a statutory public duty incumbent upon the person or body against whom the mandamus is sought. There must equally co-exist a corresponding right in the petitioner entitling him to claim the enforcement of such public duty. These two preconditions form the foundation for the issue of mandamus. The primary scope and function of mandamus is to "command" and "execute" rather than to "enquire" and "adjudicate". It cannot be issued to change the decision of a body so as to suit the petitioner. Obligations which are not of statutory nature cannot be enforced by mandamus. The writ petition is not maintainable when a remedy provided for under the Code of Civil Procedure is available. For example, the High Court cannot entertain writ petitions for mandamus to the Government who fails to deposit and pay in the requisite time an enhanced compensation account as ordered by a lower Court. The petitioners in this case would be directed to approach the executing Court for appropriate relief.
Supreme Court and High Courts are only empowered to exercise Writ Jurisdiction, under Art. 32 and 226 of Constitution. No other courts are empowered to issue writ.
United States
In the administrative lawAdministrative law
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...
context in the United States, the requirement that mandamus can be used only to compel a ministerial act
Ministerial act
A ministerial act is a government action "performed according to legal authority, established procedures or instructions from a superior, without exercising any individual judgment." It can be any act a functionary or bureaucrat performs in a prescribed manner, without exercising any individual...
has largely been abandoned. By statute or by judicial expansion of the writ of mandamus in most of the U.S. state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
s, acts of administrative agencies are now subject to judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
for abuse of discretion. Judicial review of agencies of the United States federal government, for abuse of discretion, is authorized by the U.S. Administrative Procedures Act.
Federal courts
In modern practice, the Court has effectively abolished the issuance of writs of mandamus, although it theoretically retains the power to issue them.In the context of mandamus from a United States Court of Appeals
United States court of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal court system...
to a United States District Court, the Supreme Court has ruled that the appellate courts have discretion to issue mandamus to control an abuse of discretion by the lower court in unusual circumstances, where there is a compelling reason not to wait for an appeal
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
from a final judgment. This discretion is exercised very sparingly. It is exercised with somewhat greater frequency, although still sparingly, in the context of discovery
Discovery (law)
In U.S.law, discovery is the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for...
disputes involving privileged materials
Privilege (evidence)
An evidentiary privilege is a rule of evidence that allows the holder of the privilege to refuse to provide evidence about a certain subject or to bar such evidence from being disclosed or used in a judicial or other proceeding....
, since a district court order erroneously forcing the disclosure of privileged material may never be remediable through a later appeal.
The authority of the United States district courts to issue mandamus has been expressly abrogated by Rule 81(b) of the Federal Rules of Civil Procedure
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of the...
, but relief in the nature of mandamus can be had by other remedies provided for in the Rules, where provided by statute, or by use of the District Court's equitable powers.
State courts
In some state court systems, mandamus has evolved into a general procedure for discretionary appeals from non-final trial court decisions. In some U.S. stateU.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
s, such as California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
, the writ is now called mandate instead of mandamus, and may be issued by any level of the state court system to any lower court or to any government official. It is still common for Californians to bring "taxpayer actions" against public officials for wasting public funds through mismanagement of a government agency, where the relief sought is a writ of mandate compelling the official to stop wasting money and fulfill his duty to protect the public fisc. The writ of mandate is also used in California for interlocutory appeal
Interlocutory appeal
An interlocutory appeal , in the law of civil procedure, is an appeal of a ruling by a trial court that is made before the trial itself has concluded. Most jurisdictions generally prohibit such appeals, requiring parties to wait until the trial has concluded before they challenge any of the...
s. In this context, the party seeking the writ is treated on appeal like a plaintiff, the trial court becomes the defendant, and the opponent is designated as the "real party in interest."
In Virginia, the Supreme Court has "original jurisdiction
Original jurisdiction
The original jurisdiction of a court is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a court has the power to review a lower court's decision.-France:...
" under the state constitution for mandamus involving the Virginia courts.
Other states, including New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
, have replaced mandamus (as well as the other prerogative writs) with statutory procedures. In New York, this is known as an Article 78 review after the civil procedure
Civil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits...
law provision that created the relevant procedure. In still other states, such as Illinois
Illinois
Illinois is the fifth-most populous state of the United States of America, and is often noted for being a microcosm of the entire country. With Chicago in the northeast, small industrial cities and great agricultural productivity in central and northern Illinois, and natural resources like coal,...
, the state court of last resort has original jurisdiction
Original jurisdiction
The original jurisdiction of a court is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a court has the power to review a lower court's decision.-France:...
in mandamus actions.