Parliamentary democracies Australia Under the
Australian legal system, mandamus is available through
section 75(v) of the Constitution of Australia.
England and Wales 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. 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.
India 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. 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. 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 United States, the writ of mandamus holds particular historical significance in constitutional law. In the landmark case
Marbury v. Madison (1803), William Marbury petitioned the Supreme Court for a writ of mandamus to compel Secretary of State James Madison to deliver his judicial commission. Chief Justice
John Marshall, writing for the Court, ruled that while Marbury had a right to the commission and the duty was ministerial (thus potentially subject to mandamus), the Court lacked original jurisdiction to issue the writ because Section 13 of the
Judiciary Act of 1789 unconstitutionally expanded the Court's jurisdiction. This decision struck down a federal statute for the first time and established the principle of
judicial review, affirming that the Supreme Court has the ultimate authority to interpret the Constitution and invalidate laws inconsistent with it. The case exemplified the traditional common-law rule that mandamus was available only for clear, ministerial duties—a limitation that has since evolved in the context of modern administrative law. 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. In most 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 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, 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. 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.
State courts 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,
Montana,
Nevada,
Utah,
Washington, and
California, as well as the
unincorporated U.S. territory of
Guam.
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 . 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. 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., 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
Supreme Court has
original jurisdiction under the state constitution for mandamus involving the Virginia courts. 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. In still other states, such as
Illinois, the state court of last resort has
original jurisdiction in mandamus actions. ==See also==