Mandamus
Prerogative writs |
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Administrative law |
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General principles |
Grounds for judicial review |
Administrative law in common law jurisdictions |
Administrative law in civil law jurisdictions |
Related topics |
A writ of mandamus (
Mandamus may be a command to do an administrative action or not to take a particular action, and it is supplemented by
Legal requirements
The party requesting a writ of mandamus to be enforced should be able to show that they have 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:[2][full citation needed] It must be a duty of public nature and the duty must be imperative and should not be discretionary. Furthermore, mandamus will typically not be granted if adequate relief can be obtained by some other means, such as appeal.[1][failed verification]
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 remedy, and a matter for the discretion of the court, the exercise of which is governed by well-settled principles.[3]
Mandamus being a discretionary remedy, the application for it must be made in good faith and not for indirect purposes. Acquiescence cannot, however, bar the issue of mandamus. The petitioner must satisfy the Court that they have the legal right to the performance of the legal duty as distinct from mere discretion of authority.
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 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.[5][6]
- 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.[7]
In various countries
Parliamentary democracies
Australia
Under the
England and Wales
In England and Wales, mandamus was originally known as a writ of mandamus. Historically, direct orders from the
India
In India, the
Only the Supreme Court and High Courts are empowered to exercise writ jurisdiction, under Articles 32 and 226 of the Constitution. No other courts are empowered to issue the writ.
United States
In the
Federal courts
The authority of the United States district courts (trial courts) to issue mandamus has been expressly abrogated by Rule 81(b) of the Federal Rules of Civil Procedure,[15] 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 courts' equitable powers.
In the context of mandamus from a
State courts
In some
California
In the state of California, the writ may be issued by any level of the state court system to any lower court or to any government official. The writ of mandate is used in California for interlocutory appeals. 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".
North Carolina
In North Carolina state courts, mandamus is authorized as one of the Extraordinary Writs, under Rule 22 of the North Carolina Rules of Appellate Procedure Archived 2013-10-19 at the Wayback Machine. The writ of mandamus may be issued in instances where, for instance, the lower court fails to timely issue a written order after rendition (thus precluding both the possibility of an appeal or enforcement of the rendition and leaving the litigants in limbo). The North Carolina Court of Appeals has spoken on the possible course of action in such situations, and confirmed that petitioning for a writ of mandamus is the only available route.[24] In McKyer, the lawyer who was unable to persuade the trial court judge to enter an order for about a year, tried to remedy the problem by asking the trial court judge to hold another hearing. Disapproving of the attempted resolution via a new hearing, the Court of Appeals, citing the Supreme Court case In re T.H.T.,[25] explained that a party seeking recourse where the trial court has not entered its orders timely should petition for writ of mandamus.
Similarly, the writ may issue where the trial court fails or refuses to timely dispose with the litigants' business (for instance, if the judge refuses to hear a case). In North Carolina, as elsewhere, the writ is an action against the official, meaning that the petition must be styled "In re Public Figure X" or "In re Judge Y". Thus, a mandamus petition not only brings the strife of optically making the officer or judge the defendant, but also in theory requires the official / judge to respond "within ten days" "with supporting affidavits". Rule 22(c) provides that "any party" may respond to the petition for writ. The North Carolina Court of Appeals has interpreted this to mean that where, for instance, one litigant demands that the judge enter a previously rendered order, the other litigant in the same case is free to respond instead of (or in addition to) the judge that presides over both of the litigants.
Other states
In Virginia, the
Elsewhere, including the Courts of 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.[27] In still other states, such as Illinois, the state court of last resort has original jurisdiction in mandamus actions.[28]
See also
References
- ^ a b "Supreme Court Rule 20". 2011-12-15. Retrieved May 29, 2012.
- ^ RK Choudhary's Law of Writs; Mandamus.
- ^ Gangadhar Narsingdas Agrawal v. Union of India, AIR 1967 Goa 142 (147); Regional Director v. AS Bhangoo, (1969) 73 Cal. WN 267; Megh Nath v. Director, Technical Education, UT Chandigarh, 1990 (1) RSJ 126.
- ^ Basantilal v. Laxminarayan, 1970 MPLJ (Note) 6.
- ^ Goodrich, Warren M.; Cone, Al J. (1951). "Mandamus in Florida". University of Florida Law Review. 4.
- ^ Hurley, James V. (1961). "The Writ of Mandamus in Wisconsin". Wisconsin Law Review. 1961 (4): 636.
- ^ Vineet Narain v. Union of India, AIR 1996 SC 3386.
- ^ Constitution of Australia (Cth) s 75 Original jurisdiction of High Court.
- ^ Re Refugee Tribunal; Ex parte Aala [2000] HCA 57, (2000) 204 CLR 82, High Court (Australia).
- ^ public domain: Chisholm, Hugh, ed. (1911). "Mandamus, Writ of". Encyclopædia Britannica. Vol. 17 (11th ed.). Cambridge University Press. p. 558. This source reports further details of the mandamus procedure as it stood at the time. One or more of the preceding sentences incorporates text from a publication now in the
- ^ The Civil Procedure (Modification of Supreme Court Act 1981) Order 2004 (SI 2004/1033), article 3.
- ^ R. P. Kapoor v. Delhi Development Authority.[full citation needed]
- ^ Government of AP v. Puniparthi Narayana Rajiu, 2002 Andhr. LT. 113 at pp. 113–114.
- ^ Davis, Audrey (2020). "A Return to the Traditional Use of the Write of Mandamus". Lewis & Clark Law Review. 24 (4): 1527.
- ^ Fed.R.Civ.P. 81 as amended, December 1, 2014. (b) "The writs of scire facias and mandamus are abolished. Relief previously available through them may be obtained by appropriate action or motion under these rules."
- ^ Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 390 (2004).
- ^ Idaho Statutes § 7-301
- ^ Montana Code Annotated § 27-26-101
- ^ Nev. Revised Statutes § 34.150
- ^ Utah Code § 78B-6-609
- ^ Wash. Revised Code § 7.16.160
- ^ Cal. Code of Civil Procedure § 1084
- ^ 7 Guam Code § 31201
- ^ McKyer v. McKyer, 202 N.C. App. 771 (2010).
- ^ In re T.H.T. 362 N.C. 446, 665 S.E.2d 54 (2008).
- ^ Child Custody Resources Archived 2008-11-19 at the Wayback Machine
- ^ New York Civil Practice Law and Rules article 78 at the New York State Assembly website. Accessed June 28, 2011.
- ^ Illinois Constitution, Article VI.