# what is Writ of Mandamus? **URL:** \ **Category:** Factual Questions\ **Created:** [August 25, 2003, 12:17am UTC](https://boards.straightdope.com/t/what-is-writ-of-mandamus/197415 "2003-08-25T00:17:14Z")\ **Posts on this page:** 10\ **Page:** 2
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 28, 2003, 3:52pm UTC](https://boards.straightdope.com/t/what-is-writ-of-mandamus/197415/21 "2003-08-28T15:52:58Z")
The Court: Motion to withdraw coding, Mr. Cliffy? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 28, 2003, 10:36pm UTC](https://boards.straightdope.com/t/what-is-writ-of-mandamus/197415/22 "2003-08-28T22:36:54Z")
Following up on **Cliffy** ’s points, in Canada the Federal Court doesn’t have any role in supervising the provincial courts. It doesn’t have any _habeas_ jurisdiction. _Habeas_ is available in the provincial superior courts, but doesn’t play anything like the role it does in your system; no post-conviction review function. _Certiorari_ is more limited than the way it functions in the U.S. Supreme Court. Our equivalent here is an application for leave to appeal - discretionary in the Court, but if granted allows a complete review of questions of law (and in very rare cases, of facts) in the lower court decisions. As well, the Supreme Court can substitute its own final conclusion for that of the courts below, which I understand is not the case with the USSC, which after a decision on cert. matters remands the case to the state courts for further proceedings not inconsistent with its judgment. The common law writ of _certiorari_ plays a different role in our system, allowing the provincial superior courts to exercise supervisory jurisdiction over administrative tribunals on questions of law and jurisdiction. We seem to draw a sharper distinction between private law and public law remedies. Injunctions and actions for a declaration are private law relief, not normally available against an administrative tribunal or inferior court, which are generally not sueable entities. (I was involved in a case last year that established that point for a particular board.) The prerogative writs like _certiorari_ and _mandamus_ are the public law remedies against boards and inferior courts. ---
**Author:** ![Billdo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/billdo/32/315_2.png) [@Billdo](https://boards.straightdope.com/u/Billdo)\ **Post date:** [August 29, 2003, 1:18am UTC](https://boards.straightdope.com/t/what-is-writ-of-mandamus/197415/23 "2003-08-29T01:18:08Z")
> [@](#): > > \*Originally posted by Cliffy \* > 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). Just a quibble: New York now has notice pleading under standards virtually identical to those under the Federal Rules of Civil Procedure and most state procedural rules. It has been that way since at least the 1962 adoption of the Civil Practice Law & Rules (CPLR). _See_ CPLR 3014 (requiring pleading sufficiently particular to give notice). While we’re at it, in New York “[r]elief previously obtained by writs of certiorari to review, mandamus or prohibition shall be obtained in a proceeding under this article [[Article 78 of the CPLR](http://assembly.state.ny.us/leg/?cl=16&a=59)].” (CPLR 7801) In an Article 78 proceeding, the questions that may be raised are: > [@](#): > > 1. whether the body or officer failed to perform a duty enjoined upon it by law; or > 2. whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; or > 3. whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed; or > 4. whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence. (CPLR 7803) Question 1 is what was traditionally answered under the writ of mandamus; question 2 was answered under the writ of prohibition; and questions 3 and 4 were answered under the writ of certiorari. (Note that when the U.S. Supreme Court grants certorari to review a case of a lower court, it is essentially asking questions 3 and/or 4 about the lower court ruling.) ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [August 29, 2003, 3:30am UTC](https://boards.straightdope.com/t/what-is-writ-of-mandamus/197415/24 "2003-08-29T03:30:28Z")
Texas appellate lawyer checking in. Mandamus is a common and accepted part of Texas appellate law. The Supreme Court here has, over the past five or six decades, developed a small but important number of areas where seeking mandamus from an appellate court is an appropriate remedy for a trial court’s error or abuse of power. Mandamus practice in Texas is usually a substitute for an interlocutory appeal, i.e., an immediate appeal instead of having to wait for a final judgment of the entire case, as you usually have to do. It is appropriate when the trial court enters some kind of order that requires the party to do something that is quite palpably incorrect under the law and that cannot be adequately remedied through an ordinary appeal after final judgment. I can think of a couple good examples off the top of my head. Improper discovery of trade secret–improperly ordering a party to disclose its proprietary information–is a good one, since it’s not like you can make something secret again after a court has ordered it to be made non-secret. The denial of arbitration is another good example, since forcing the parties to judicial trial requires them to undergo the exact same judicial trial that they had bargained to avoid. It’s still officially an “extraordinary writ” in Texas, but it’s far from an uncommon writ. ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [August 29, 2003, 1:12pm UTC](https://boards.straightdope.com/t/what-is-writ-of-mandamus/197415/25 "2003-08-29T13:12:42Z")
Yesterday I was trying to remember which writ is used to get a judge to actually make a decision, and lo and behold that evening when I checked in on the SDMB, Northern Piper had the answer waiting for me. Chalk up another one for mental telepathy. ---
**Author:** ![Billdo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/billdo/32/315_2.png) [@Billdo](https://boards.straightdope.com/u/Billdo)\ **Post date:** [August 29, 2003, 5:16pm UTC](https://boards.straightdope.com/t/what-is-writ-of-mandamus/197415/26 "2003-08-29T17:16:33Z")
I did not know that there was a writ of _procedendo_ to force a lower court or agency to make a decision. I’m curious as to how it works, as litigation in New York can be painfully slow due to the time it takes many judges to make a decision. (_Don’t_ get me started.) To the extent that a writ of _procedendo_ is used, how does it work in practice. I vaguely recall a discussion in the legal press about the subject which concluded that as a practical matter there is virtually nothing to do about a judge that is not proceeding. To the extent that you may seek relief from the judge, court administrators, or otherwise, you stand a very good chance of annoying the judge who may well react peevishly in responding to your motion or in later proceedings. In New York, you can commence an Article 78 proceeding (see above) against an official or agency that did not give you a decision within the time required by law or regulation. However, there is no enforcable time limit under which a judge is required to respond to a motion or other application. A reviewing court would likely find that a judge’s control of his or her calendar is a matter of judicial discretion not subject to appellate review. In New York State courts, interlocutory appeals (at least to the first level of appeals court reviewing the particular trial court) are permitted in a wide variety of situations, so Article 78 proceedings in the nature of certorari to review a lower court are quite rare. They do still happen in unusual situations where appellate review is appropriate but not permitted under normal procedures. Similarly, in the federal courts there are specific procedures permitting an interlocutory appeal where warranted. I do recall some rare cases in which a federal Court of Appeals takes appellate action outside these procedures, I believe under the All Writs Act, 28 USC 1651 (federal courts may “issue all writs necessary or appropriate in aid of their respective jursidictions”). ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 30, 2003, 5:13am UTC](https://boards.straightdope.com/t/what-is-writ-of-mandamus/197415/27 "2003-08-30T05:13:57Z")
> [@](#): > > \*Originally posted by Muffin \* > \*\*Yesterday I was trying to remember which writ is used to get a judge to actually make a decision, and lo and behold that evening when I checked in on the SDMB, Northern Piper had the answer waiting for me. > > Chalk up another one for mental telepathy. \*\* We aim to please. Let me try again - just hold still now - concentrate please - hmm - Friday night - I’m getting an image that involves beer… 😃 ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 30, 2003, 5:38am UTC](https://boards.straightdope.com/t/what-is-writ-of-mandamus/197415/28 "2003-08-30T05:38:41Z")
In answer to your inquiry, **Billdo** , although _procedendo_ still exists in some jurisdictions, I’ve not seen a reported case more recently than about 70 years ago, so if someone needed to bring the application, the Court would have to make up the procedure as it went along (probably by following the procedure for _mandamus_, which is similar in its purpose). I assume that there are a couple of reasons why it’s not used very much anymore. First, there is the irritation factor you mention - why take a chance on irritating the decision-maker, if your client’s willing to put up with the delay? Second, our system seems to place a great deal more emphasis on the status of the superior courts than yours does. The superior courts (both trial and appellate) are not subject to the prerogative writs, only the inferior courts and administrative tribunals. The inferior courts (normally called Provincial Court) here are mainly criminal jurisdiction, with pretty narrow civil jurisdiction (small claims, some family matters). Because of the constitutional guarantee of criminal trials within a reasonable time, the inferior courts are pretty reliable in getting their decisions out quickly, often in oral judgments at the end of trial. That mind-set also applies to their civil jurisdiction, so they normally keep things moving. A third factor is the professionalism of the judiciary. _Procedendo_ evolved in England when a lot of the inferior courts were staffed by lay people (e.g. - Justices of the Peace) who were part-timers. Judges now are professionals and full-time, so the insitutional need for the writ is much less. Which isn’t to say there’s no longer a need for it. We have some ad hoc tribunals in certain matters that are notorious for delay, and on a couple of occasions I’ve considered making an application. But the dynamics of the situation (i.e. the irritation factor) tend to be that unless all counsel agree to support the application, it won’t get made, and so far that’s not happened in my practice. Given how rarely it’s used, it’s somewhat surprising that it’s still survived; probably just inertia. I don’t know if it’s still available in those jurisdictions that have abolished the prerogative writs and replaced them with an application for judicial review. From a quick look at the [Federal Court Act](http://laws.justice.gc.ca/en/F-7/56805.html#rid-56885), there’s no specific reference to _procedendo_, but it looks like it may be covered by s. 18.1(3)(a): > [@](#): > > (3) On an application for judicial review, the Trial Division may > > (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or _has unreasonably delayed in doing_; I don’t know if there’s an equivalent in the Ontario statutory provisions governing judicial review; **Muffin** , do you know? However, Parliament has retained _procedendo_ for criminal matters, in the [Criminal Code](http://laws.justice.gc.ca/en/C-46/43779.html#rid-43818), s. 774. It’s just a bare mention, but that means that the _Code_ has not eliminated the common law dealing with prerogative relief in criminal matters. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 30, 2003, 5:52am UTC](https://boards.straightdope.com/t/what-is-writ-of-mandamus/197415/29 "2003-08-30T05:52:11Z")
**minty green** , does the Texas system make the distinction between superior and inferior trial courts that I’ve referred to above? _Mandamus_ would not lie in our system from the Court of Appeal (highest provincial court) to the Queen’s Bench (trial court), because the QB is a superior court and not subject to prerogative remedies. Even if it did lie to the QB, it wouldn’t be available in the situations you describe, since those sound like discretionary decisions, not mandatory ones. In our system, _mandamus_ is only available in cases where there is no discretion (e.g. - all the necessary steps to obtain a licence have been satisfied, but the issuer refuses to issue for some reason). ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [August 30, 2003, 6:58am UTC](https://boards.straightdope.com/t/what-is-writ-of-mandamus/197415/30 "2003-08-30T06:58:53Z")
> [@](#): > > _Judicial Review Procedure Act, R.S.O. 1990, c. J.1, as amended:_\*\* > > 1. (1) On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following: > > 2. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari. > > 3. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power. R.S.O. 1990, c. J.1, s. 2 (1).\*\* > [@](#): > > _Courts of Justice Act, R.S.O. 1990, c. C.43, as amended_\*\* > > (5) Where a judge has heard a matter and fails to give a decision, > > (a) in the case of a judgment, within six months; or > > (b) in any other case, within three months, > > the chief judge may extend the time in which the decision may be given and, if necessary, relieve the judge of his or her other duties until the decision is given. > > (6) Where time has been extended under subsection (5) but the judge fails to give the decision within that time, unless the chief judge grants a further extension, > > (a) the chief judge shall report the failure and the surrounding circumstances to the appropriate judicial council; and > > (b) a party may make a motion to the chief judge for an order that the matter be reheard.\*\* The case that brought the issue to my mind is now celebrating its tenth anniversary by being sent back to a justice of the peace for a re-trial. At one point, over three years was spent waiting for a decision. [Previous page](https://boards.straightdope.com/t/what-is-writ-of-mandamus/197415.md?page=1)