CALIFORNIA LAW: WRIT OF MANDATE (Solicitud de Resolución Judicial)
“A writ of mandamus or mandamus (which means “we command” in Latin), or sometimes mandate, is the name of one of the prerogative writs in the common law, and is “issued by a superior 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 may be a command to do an administrative action or not to take a particular action, and it is supplemented by legal rights. In the American legal system it must be a judicially enforceable and legally protected right before one suffering a 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.
Contents: 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: It must be a duty of public nature and the duty must be imperative and should not be discretionary.
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; 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.”
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.
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.
Under the Australian legal system, mandamus is available through section 75(v) of the Australian Constitution. In England and Wales, mandamus was 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’ 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 enforced 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. Supreme 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.
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 U.S. Administrative Procedures Act.
In modern practice, the Court has effectively abolished the issuance of writs of mandamus, although it theoretically retains the power to issue them. 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. It is exercised with somewhat greater frequency, although still sparingly, in the context of discovery disputes involving privileged materials, since a district court order erroneously forcing the disclosure of privileged material may never be remediable through a later appeal. 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.
In some state court systems, mandamus has evolved into a general procedure for discretionary appeals from non-final trial court decisions. In some U.S. states, such as 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.
The writ of mandate is also 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.” In Virginia, the Supreme Court has “original jurisdiction” under the state constitution for mandamus involving the Virginia courts.”