My question is about how much discretion government officials have in performing their duties or not. Meaning, suppose you show up at the DMV and the clerk you’re dealing with decides that he doesn’t like your nose and refuses to process your paperwork. Leaving aside whether he might get in trouble with his boss, do you have any legal recourse? Does the government have a legal obligation to issue your license/paperwork as long as you comply with the official requirements, or is it just assumed that they will do this but you have no legal recourse if they don’t (assuming the refusal is not based on some sort of illegal discrimination which is covered under other laws).
Or you go down to get a building permit and the guy at the municipal office decides that he’s going to undertake a personal crusade against overbuilding, and refuses to issue the permit even though you’ve complied with all applicable rules. Do you have legal recourse?
And so on.
My interest in this question was triggered by ongoing developments in the Dakota Access Pipeline saga. Latest is that the pipeline company is suing in court and arguing that since they’ve complied with all regs, the Army can’t deny them a permit based on political considerations unrelated to pipeline rules and regulations. The counterargument seems to be that yes the Army can do just that. So I’m curious as to who is right in this case, but also about the broader implications as well, as above.
In general, yes. The writ of mandamus lies to compel a government official to perform an act that is a public duty which is imperative. So if the building code does not include a provision like, “…and which in the judgement of the Bureau does not contribute to overbuilding…” then your permit-seeker is probably out of luck. But if the requirements for the permit have been met and the official simply refuses to comply anyway, then the judicial remedy is a writ of mandamus.
In that specific case, I don’t know whether the body of law vests the Army with discretion to consider factors like political impact. In general, mandamus remedies cannot order an official to exercise his discretion in a particular way.
Undoubtedly there are other paths of administrative and judicial review for these specific decisions, though.
Government officials are required to follow the law. Take a look at that county clerk in Kentucky who wouldn’t issue marriage licenses to gay couples.
Punishment would depend on the factors of the case – what was denied, what were the reasons, did the person get what he needed from another official, etc.
I have been thinking that this has turned into a political thing. That Obama is setting up Trump for a fall…
For now Obama will not allow the pipeline to go through.
Trump becomes President, then reverses anything Obama did, allowing the building of the pipeline. Instantly everyone opposed to the pipeline is ticked off at Trump.
Trump could care less.
3a. Trump will further piss off these people when his Attorney General starts enforcing federal anti-marijuana laws!
Generally and specifically I wouldn’t have to try to “force them to do something” around here, because I could take stuff like that to “the administrative review tribunal”.
Building permits specifically because around here (1) They are held up or rejected for political reasons, and (2) They are held up or rejected by disorganisation and incompetance and red tape.
Our administrative review tribunal isn’t universal, so some stuff can’t go there. But our courts have held that there is a universal right to review, so if there is no review mechanism provided, I can (at much greater expense) take it to the courts.
When I take an administrative decision (or lack of action) to the courts here, they aren’t required to send me back with the court order. I can ask for a court order that has the same effect as [a building permit]
There can of course be different interpretations of the law. I’ve seen the FAR interpreted very differently by the folks who can enter the government into contracts and obligate federal funds.
There are two types of duties that government officials have - ministerial duties are those which do not allow for the exercise of discretion. That’s where things like driver’s licenses generally fall- there’s a list of requirements ( two forms of acceptable ID, acceptable proof of address, pass a written test ,pass a road test, have no active suspensions or revocations etc) and if you meet the requirements, they must issue the license. There’s no discretion regarding the release of an inmate who has served his full sentence. As Bricker said, you can go to court to compel the official (or agency) to perform a ministerial duty (although the court proceeding may be called something else- in New York, it’s called an Article 78 proceeding).
Other duties require the exercise of discretion - while the release of an inmate who has served his full sentence is a ministerial act, a early release may be a discretionary act by a parole board. Discretionary acts may have certain guidelines to be followed or factors to be considered, but in my experience, courts reviewing those decisions only intervene when those guidelines aren’t followed or the factors aren’t considered, or when the the decision is either “arbitrary or capricious” or shows “irrationality bordering on impropriety”. They don’t intervene simply because the judge would have made a different decision. And even then (again, IME) the court doesn’t reverse the decision, they send the issue back to the agency with instructions to consider it properly.
The appeals process to change the result is going to vary with the situation and agency. For lots of decisions you go talk to his boss. There might be a hearing board. You might go to the courts. You might go to the city council or other relevant legislative body.
I worked with a guy from Alabama we called “Zak”, but that was his middle name. It is apparently a family name. When his parents went to fill in his name for the birth certificate, the county clerk refused to write “Zak” because she said it was not a Christian name. His parents finally named him Alton Zak and just called him Zak.
I never heard of Alton being in the bible, but I guess it is.
Depends on the agency. Rub an ICE functionary the wrong way at the Mexican border, and see how long it takes to put your car back together again. If he finds a five year old orange peel under your floormat, he’ll fine you $500 for illegally bringing in undeclared citrus fruit.