mandamus n : 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 [syn: writ of mandamus]

English

Etymology

From mandāmus "we command"

Noun

mandamus

1. a prerogative writ in the common law that compels a court or government officer to perform mandatory or purely ministerial duties correctly.

Latin

Verb

mandāmus

1. we command; first person plural present active indicative of mandō.

A writ of mandamus or simply mandamus, which means "we command" in Latin, is the name of one of the prerogative writs in the common law, and is issued by a superior court (appellate 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 can be supplemented by the statement that it is not only the command to do but also a command not to do a particular thing against the rights of the petitioner. Mandamus is supplemented by legal rights. It must be a judicially enforceable and legally protected right before one suffering a legal 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.

Legal requirements

The applicant 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:

1. It must be a duty of public nature
2. The duty must be imperative and should not be discretionary.

Normally, a writ of mandamus does not issue to, or an order in the nature of mandamus is not made against, the private individual. It is not necessary that the person or the authority on whom the statutory duty is imposed be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorizing their undertakings. A mandamus would be equally applicable for a company constituted by a statute for the purposes of fulfilling public responsibilities. The court to which the application for the issue of mandamus is made will not constitute itself a court of appeal from the decision of the administrative authority and will not examine the correctness or otherwise of a decision on merits. The exercise of administrative discretion is not interfered upon by the court, but it will do so if there has been an illegal exercise of the discretion. There is an illegal exercise of discretion where:

1. The order is made without, or in excess of jurisdiction
2. The order made is mala fides, or
3. The authority is influenced by extraneous consideration.

History of Mandamus

The writ of mandamus is of a very ancient origin, dating back at the latest to the times of Edward II. It seems originally to have been one of that large classes of writs by which the Sovereign of England directed the performance of any desired act by his subjects, the word "missive" in such writs and letters, having given rise to the present name of the writ. These letters, missives or mandates, to which the generic term mandamus was applied, were in no sense judicial writs but were merely commands issuing directly from the sovereign to the subject without the intervention of the court. The writ in the shape of these commands, however, became obsolete at a very early stage and gradually it came to be confined to the judicial writ issued by the King's Bench which has by steady growth developed into the writ of mandamus, which is, in general, a command issuing in the King's name from the Court of King's bench and directed to any person, corporation or inferior court of jurisdiction within the King's Dominions requiring them to do some particular thing therein specified which appertains to their office and duty, and which the Court of King's bench has previously determined, or at least supposes to be a consonant to right and justice. It is high prerogative writ of a most extensive remedial nature... And issues in all cases where a party has a right to have anything done, and hath no other specific means of compelling its performance. It was stated in the Judiciary Act of ...?

Purpose of Mandamus

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. It also lies in cases where there is an alternative remedy but the mode of redress is less convenient, less beneficial or less effectual. 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 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.

Kinds of Mandamus

There are essentially three kinds of Mandamus:

1. 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.
2. 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.
3. 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.

Mandamus in the United States

In general

In the administrative law 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. states, 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 Administrative Procedure Act.

Federal courts

The power of the Supreme Court of the United States to issue a writ of mandamus outside its appellate jurisdiction was the controversy that led the Court to delve into the much more significant issue of judicial review in the famed case of Marbury v. Madison. In modern practice, the Court has effectively abolished the issuance of mandamus and other prerogative writs although it theoretically retains the power to do so.

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.

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.

State courts

In some state-court systems, however, mandamus has evolved into a general procedure for discretionary appeals from nonfinal trial-court decisions.

In some U.S. states, including 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. In Virginia, the Supreme Court has "original jurisdiction" under the state constitution for mandamus involving the Virginia courts. http://www.arielconsult.com/childcustodyVA

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 statutory.

Mandamus in England and Wales

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' .

Mandamus in India

The sine qua non 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 enfoced 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.

Suprem 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.

Mandamus in Australia

Mandamus is available through section 75(v) of the Australian Constitution.

References