What is a Petition for Writ of Mandamus, or better what is Writ of Mandamus?
I am not a legal expert could someone please explain in lay terms what it is
an extraordinary writ commanding an official to perform a ministerial act that the law recognizes as an absolute duty and not a matter for the official’s discretion; used only when all other judicial remedies fail
Thank you 
G’day
I am not a lawyer, but this happens to be something that I learned about when I was sent of a Public Service legal awareness course. So what you get here is the basic idea. Lawyers will come later with technicalities and details.
A writ of mandamus is an court order instructing a public official to perform his or her duty in a specified respect and manner. i.e. to perform a specified official act in a specified way.
For example, if the local planning authorities refused to issue you a building permit for a proposed building that complied with the building and planning codes, you might go to, for example, the Land and Environment Court (or equivalent in your state) and ask for a writ of mandamus. If it were satisfied that the authorities did not have discretion under the law to refuse your application, or if it found that they were using their discretion capriciously, the court would issue writ of mandamus instructing the local planning authority to issue you the particular permit in question. Except insofar as everyoone might then expect similar writs in similar cases, and change their behaviour accordingly, this writ would have no effect on other planning authorities, nor would it affect other applications being considered by your planning authority.
In Australia, courts have issued writs of mandamus even to the Federal Cabinet. Some lawyers believe that the discretion of the Governor General in Council may be beyond the reach of a writ of mandamus, others that there is no untrammelled discretion any lower than the discretion of the citizen to vote at will.
Regards,
Agback
It this a general term for a court order to the state? I’ve heard the term but never in use. I have been involved, not as a lawyer, in lawsuits on voting rights where courts ordered states to implement certain laws that they were refusing on “states rights” grounds. I don’t recall them being called this. (Maybe I just didn’t see it, or its archaic in the US to call them that.)
Are you sure it’s not a blues term? Or a blues song? Or perhaps a joke about the great delta bluesman Mandamus?
Or perhaps it’s an exclaimation: “Mandamus, that’s some righteous barbecue.”
I reject this pale and bloodless definition.
I’ve heard of the process being used to recover property that was seized as evidence in a criminal proceeding. The charges may have been dropped, but the police don’t wish to return the property to the “almost defendant”.
The instance I’m thinking of pertained to a firearms case where the police were reluctant to return some legal firearms to a person who they felt shouldn’t have such. And it’s been 20 or more years back too.
OK, let’s just try a hypothetical case to see if I have it right:
Let’s say a Supreme Court Justice of some state has erected a monument to his religion – let’s say, a big statue to the Norse god Tyr, the Lawgiver of the gods. The justice in question, you see, is a devout follower of the ancient Norse religion, but claims his statue is not religious because Tyr is the Lawgiver and of course we’re talking about a court of Law. I mean, gee, the connection is obvious and anyone who doesn’t get it is obviously unpatriotic anyway.
So a federal judge could issue a write of Mandamus to tell this hypothetical state justice to knock it off?
Gee, I’m glad nothing like that has ever happened!
I’m not sure mandamus would lie in that situation, Ponder. The writ is used to order a public official to perform an act in his official capacity. If the Chief Justice is the executive in charge of the building, I guess it would, but I rather suspect there is some other person in charge of the facility itself, and it’s to him the the order would be directed.
Well, if CNN is correct (a long shot, I’m sure) then it is customary in most states for the Chief Justice to also be the building administrator of the court building. Including Alabama. Not that I’m mentioning that state for any reason …
I think this is probably the most famous use of a writ of mandamus.
It might be interesting for one of our resident membrs of the Bar to provide a list of writs. I only know of a few: Mandamus, Habeas Corpus, and Writ of Error, and I once was hanging around when a convicted criminal was brought back to court on Coram Nobis, though I never did get why, or what the writ was supposed to be about. Do writs get used for much in today’s court system?
Many writs are no nothing more than interesting historical landmarks, their functions having been replaced with codified procedures and rules for motions.
That’s true, generally, for a coram nobis, a special case of the general writ of error, which asked a superior court to direct the inferior court to correct its record to reflect facts not adduced at trial, or strike facts improperly adduced at trial. You would use a writ of error coram nobis to plead factual innocence - (“The discovery of a suicide note and video showing the decent shooting himself means my client is innocent of the murder”) - or error in the trial which resulted in an unfair trial. The general writ of error identified an error of law; the writ of error coram nobis identified an error of fact.
Today, the appeals process allows for direct review of cases, and most, if not all, jurisdictions have a post-conviction review process which allows for collateral attack on a conviction.
You probably know of at least one other writ that’s in common use today: the writ of certiorari, which calls up the records of an inferior court for review.
The writ was basically the vehicle for getting things done in the Englisg common-law system. Every remedy had an associated writ; when you asked a court for relief, you asked for a writ of something-or-other to issue. Indeed, the basic instrument used to bring a defendant to answer before a court was the writ - now called a summons.
- Rick
I doubt many lawyers practicing today could come up with a comprehensive list of writs from the old common-law system. They were extremely numerous; this was one of the primary reasons for the development of “equity” jurisdiction, which originally didn’t require nearly the procedural sophistication as traditional actions “at law.” This split (which began to develop in, IIRC, the 14th century) is still around to some degree – many states (including the one in which Bricker and I are licensed) still have separate legal and equitable dockets. Most remedies other than a payment of money require equity jurisdiction (such as an order to stop doing something), but equity traditionally is the home of “rough justice”; if you’re a bad actor, even if the law is on your side, a court of equity is much less likely to afford relief than a court at law. The split is still evidenced in federal law as well – the 7th Amendment mandates a jury trial (if requested) for all actions at law over $20, but not in equity, so if you sue the dude who stole your car to make him pay the replacement value in federal court, you have a constitutional right to a jury, but if you sue him to get the car back, you don’t.
As to your question, most courts simply do not require such arcane procedures any longer in most situations and therefore most lawyers don’t know them off the top of their heads.
–Cliffy
As Cliffy notes, there were a lot of writs available in the common law system. Although writs date back at least as far as Alfred the Great, being orders from the King to royal officials to do a certain act, the key point in their development came during the reign of Henry II in the 12th century.
Up to that point, individuals seeking redress would draw up their own writs and then have to have them enforced through the royal courts. This had two drawbacks - the writ might not ask for the right relief, and enforcement was largely up to the litigant. But at some point during Henry II’s reign, the Chancery began to move to a system of standardised writs, drawn up by the Chancery clerks. So instead of the litigant trying to figure out what relief he wanted to ask for, he would go to Chancery, say what type of action he wanted to bring in the royal courts, and they would issue a standardised writ for that type of problem.
The second great innovation was enforcement. Under the ad hoc writs, assuming the litigant got a judgment, he would then have to enforce it himself, a potentially risky proposition. Instead, the new Chancery writs also included a command to the royal officials, telling them to enforce any judgment on the writ. So the litigant focused on proving his case in the royal courts, and if successful, could rely on royal officials to enforce the writ, rather than having to do it himself. That reduced the personal risk and expanded the value of the royal justice system for litigants who lacked the means or physical capacity to enforce the judgment themselves.
The problem with the writs was that although they were originally quite innovative, over time the Chancery clerks and the common law courts became quite hidebound. After a few centuries, it got so a litigant had to squeeze his claim into one of the pre-existing writs, even if his action didn’t really fit. This lead to what was called the “forms of actions”, where the common law courts were very rigid in the types of actions they would hear. That in turn encouraged the growth of the equitable jurisdiction of the Chancellor to deal with difficult cases that didn’t come within the forms of actions.
With some exceptions, almost all of the writs and forms of actions were abolished in England in the latter third of the 19th century, as part of the great court reforms of that period. Similar reforms were instituted in the British colonies whose judicial system was modelled on the English system, such as the Canadian and Australian colonies.
As for specific examples, the three biggies during the early Plantagent period were novel disseisin, mort d’ancestor, and darrein presentment. All three of them dealt with property rights.[ul][li]if a plaintiff was alleging that he has been ejected from his own property, he would apply for a writ of novel disseisin, and would try to show that the defendant had improperly ejected him from his own property. [/li]
[li]if the plaintiff was arguing that he was the heir at law of an individual who had been improperly ejected from his property by the defendant or the defendant’s predeccessors, he applied for a writ of mort d’ancestor.[/li]
[li]if the plaintiff was alleging that he had the right of patronage over a church and had been denied that right, then he applied for darrein presentment.[/ul]All three of these writs are mentioned in Magna Carta. King John in c. 18 of Magna Carta makes a committment that the royal judges would come round regularly on circuit to hear cases based on these three writs, a clear sign that they were a popular and effective means of obtaining royal justice.[/li]
These writs were intended to provide a way for private litigants to proceed against other litigants in the royal courts. They’ve been abolished, being replaced with the general concept of an action. However, other writs, intended to be directed at actors within the judicial system, are still with us, or were only recently abolished.
For example, a writ of error was a form of appeal. If a litigant in a subordinate court was dissatisifed with the outcome, he could apply to the royal courts for a writ of error on a point of law. That writ allowed the royal court to review the legal conclusions of the lower court. This writ was abolished in the 19th century and replaced with statutory rights of appeal.
The surviving writs that I’m familiar with in the Canadian system are habeas corpus, certiorari, prohibition, mandamus, quo warranto and procedendo. They’re referred to as “prerogative writs” because they are based on the Crown’s prerogative duty to supervise the actions of the lower courts, by means of the royal courts.[ul][li]habeas corpus is a command from the royal court to the official having custody of an individual to produce the individual before the Court. That allows the individual to argue to the court why his detention is unlawful. If the Court agrees, the individual is freed forthwith.[/li]
[li]certiorari allows the royal court to review a decision by a lower court or administrative agency to determine if any errors of law or jurisdiction were made, and if so, the royal court can quash the decision. Nowadays, used most frequently to review the actions of administrative tribunals, as there are normally rights of appeal from lower courts instead.[/li]
[li]prohibition is a way for a litigant to ask the royal court to prohibit a lower court or agency from proceeding with a matter, usually on the basis that the lower court or agency doesn’t have jurisdiction.[/li]
[li]mandamus is an order from the royal court to a lower court or agency directing it to do something. Only available where there is a clear staturory duty on the lower court or agency that does not involve any discretion.[/li]
[li]quo warranto (literally, “by what warrant”) is a way to contest the validity of a person’s appointment to office; rarely used nowadays.[/li]
procedendo is also very rarely used. It’s similar to mandamus, but applies where the decision of the lower court or administrative agency in question is judicial or discretionary, rather than a non-discretionary duty. The royal court can tell the lower court or agency to get on with it and make a decision, but does not tell the lower court or agency what decision to make. It’s a remedy for dilatory decision-making. Forturnately, there’s rarely any need to use it.[/ul]I’m not familiar with the writ of coram nobis that Polycarp and Bricker refer to; must have been abolished in Canada as part of the court reforms of the 19th century.
Because of the federal system in the U.S. our own history of procedural reform regarding writs is more staggered, but the basic idea of abolishing writs generally and simply having one basic procedure (the action at law) which could be used to sue about any type of harm took hold here at roughly the same time. The “Field Code” was a reform in New York state in the 19th c. which simplified the writs; this took off and is now the norm in the U.S. (although there are historical differences between Code pleading, which is done in NY and some other states, and “notice” pleading, which is what you find in the federal system and most states). Because, however, the history is one of 50+ disparate systems all heading towards the same goal instead of one system imposing changes throughout the country, some states might still use writs for various purposes (such as the writ of coram nobis).
–Cliffy
just thought of two other writs that were still in use in England until the 19th century reforms: a “Bill of Middlesex” and a writ of quo minus. Both were examples of legal fictions, and are cited in Blackstone.
The Bill of Middlesex was a way for one private party to sue another in the King’s Bench on a civil matter. The King’s Bench in theory was concerned with public law matters, and didn’t have simple jurisdiction over subject v. subjvect civil suits. However, it did have civil jurisdiction in the county where it sat, Middlesex (i.e. - London/Westminster). It also had criminal jurisdiction throughout England. So if someone was brought to London to answer to a criminal charge or someother matter in the King’s Bench, a party who wanted to sue him could then serve him with a bill to start a civil action, because the defedant was now within the territorial civil jurisdiction of the KB. This porcess gradually evolved to the point that if John Doe wanted to sue Richard Roe from, say, Yorkshire in the King’s Bench, Doe would swear out a fictitious information in the King’s Bench alleging that Roe had committed a breach of the King’s peace. The Court would issue arrest process and Roe would have to come to London to defend, Doe would serve him with the civil bill and abandon the criminal claim. Eventually, it was all done with one process, called a bill of Middlesex. Clearly a legal fiction, but accepted by the KB judges.
Quo minus was a writ from the Exchequer Court (not to be confused with the royal treasury). The Exchequer Court was the royal court used to litigate tax claims or other issues where the government alleged that a subject owed the Crown money. Like the KB, it didn’t have jurisdiction over subject v. subject disputes, in theory. However, the Exchequer Court’s process for enforcing a money judgment was much quicker and surer than the remedies in other courts (think IRS ), so litigants wanted to be able to sue in the Exchequer. Quo minus evolved as a way to do so. Suppose Richard Roe owes money to John Doe. John Doe wants to sue in the Exchequer. He files Quo minus, alleging that he personally owes money to the Crown, but was unable to pay because Richard Roe had not paid him. The Court would third party Roe, and Doe could try to prove Roe owed him money. This writ, like the bill of Middlesex, probably started out in the occasional case where it was genuinely the case that Doe owed money to the Crown, but by the time of Blackstone, it was just a legal fiction for an action in debt.
Cliffy, under the ‘Code’ pleadings do you still have equivalents of the prerogative writs, or have they been subsumed into some sort of administrative law process? Here in Canada, some jurisdictions (e.g. federal government, Ontario) have abolished them and replaced them with a single process called “application for judicial review” but several other jurisdictions still use the separate writs (without the formality of actually issuing them; technically it’s an application for a writ of certiorari ‘without issuance of the writ’).
It’s difficult to give a complete answer to the question because of our federal system, as there are about 49 states with which I am unfamiliar. Our federal government is supreme over the states (I understand yours works differently), but the federal government’s scope is theoretically more limited.
For instance, there is a federal writ of habeus corpus. This writ can be used for post-conviction relief for federal prisoners, but can also be used for prisoners convicted of state crimes and incarcerated in state prisons – if and only if there was some failure in due process in the state trial which amounted to a violation of federal law (such as, for instance, the absence of a jury, which is guaranteed by the federal Constitution’s Sixth Amendment). OTOH, most (probably all) states have their own form of post-conviction relief available to state prisoners, which might be called habeus or might not, but which serves the same function.
I know that writs of mandamus are available in the federal courts for direction to federal officers (although they remain an extraordinary remedy); I’m sure they’re available in most states as well. Mandamus has a special place in the heart of U.S. lawyers because Marbury v. Madison, the case which developed the doctrine of judicial review (whereby the courts put themselves at the head of the line in interpretation of the Constitution) was a mandamus case.
Certiorari* is, as Bricker noted, the writ whereby the U.S. Supreme Court takes most of its cases. The Court has a very, very limited appeal jurisdiction (where the litigants below have a right to have the Supreme Court hear the appeal); most of its docket is discretionary on writ of certiorari. I believe most states also have writs of cert. to their own supreme courts, although presumably some call it something more prosaic.
I hadn’t heard of the other prerogative writs you mention (prohibition, quo warranto, procedendo); I’d be surprised to learn they still existed in the federal system. Rather, to the extent that any of these issues would be subject to court review I would expect to just file a motion for an injunction. I would not be surprised to learn that one or more of these writs survived in some state or other.
–Cliffy
Ack!