Mandamus

Under the Australian legal system, mandamus is available through section 75(v) of the Constitution of Australia.[9][10]

In England and Wales, mandamus was originally known as a writ of mandamus. Historically, direct orders from the monarch to subjects commanding the performance of particular acts were common, and to this class of orders mandamus originally belonged. It became customary for the Court of King's Bench, in cases where a legal duty was established but no sufficient means existed for enforcing it, to order performance by this writ.[11] Mandamus more recently became known 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.[12]

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 a statutory nature cannot be enforced by mandamus.[13] 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.[14]

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.

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 Procedure Act.

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 United States court of appeals to a 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.[16] 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. In the case In Re Electronic Privacy Information Center (2013), privacy advocates sought a writ of mandamus directly from the Supreme Court to halt the National Security Agency's bulk phone record collection program. The Supreme Court denied the petition.

In some state court systems, mandamus has evolved into a general procedure for discretionary appeals from non-final trial court decisions, or a procedure of obtaining review of decisions by administrative agencies. In many of the states that have adopted the Field Code, the writ is now called mandate instead of mandamus. These states are Idaho,[17] Montana,[18] Nevada,[19] Utah,[20] Washington,[21] and California,[22] as well as the unincorporated U.S. territory of Guam.[23]

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".

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.

In Virginia, the Supreme Court has original jurisdiction under the state constitution for mandamus involving the Virginia courts.[26]

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]