CUSTOM WRITTEN APPEALS



           WHEN TO FILE A PETITION FOR MANDAMUS

 

MANDAMUS GROUNDS 

 

A.           Abuse of Discretion

1. The standard

A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. The court determines whether the trial court’s error is so arbitrary, unreasonable, or based on so gross and prejudicial an error of law as to establish abuse of discretion. A mere error in judgment is not an abuse of discretion.

2. No disputed facts

When the trial court’s decision rests on the resolution of factual issues or matters committed to the court’s discretion, the relator must establish that the trial court could reasonably have reached only one decision. If a trial court has held an evidentiary hearing and has resolved disputed issues of fact, an appellate court may not substitute its judgment on the facts for the judgment of the trial court.

3. Error of law

As to questions of law, however, the trial court is given little deference in matters involving the determination of legal principles. If a trial court does not analyze or apply the law correctly, it commits an abuse of discretion.

 B.           No Adequate Remedy at Law

A writ of mandamus will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law. Appellate courts may not issue mandamus relief when the law provides another plain, adequate, and complete remedy. The requirement that a person seeking mandamus relief establish the lack of an adequate appellate remedy is a fundamental tenet of mandamus relief. An appellate remedy is not inadequate merely because it may involve more expense or delay than obtaining mandamus relief. Because mandamus is an extraordinary remedy, appellate courts may not issue mandamus to supervise or correct a trial court's incidental rulings when there is an adequate remedy at law, such as a normal appeal.

 C.           Mandamus Jurisdiction

All state appellate courts derive their jurisdiction from their state constitution and statutes. Each state's highest court may issue all writs of mandamus against a judge of a lower trial or appellate court.  It will not issue mandamus relief against another person. Each state's lower appellate courts may issue writs of mandamus against an appellate court or trial court judge. Other than the persons named, the highest court may not mandamus other persons except to enforce its jurisdiction.

 D.           Venue

Generally, a person seeking a writ of mandamus must first file in the appellate court rather than the trial court.  Some mandamus proceedings, of course, can only be filed in the highest court, e.g., a petition against a state executive officer. When the several courts have concurrent jurisdiction, there must generally be a compelling reason for first filing in the state's highest court.

 E.            When to File

An aggrieved party should file a writ of mandamus as soon as possible after an adverse ruling.  Because Mandamus is based on equitable principles, lack of diligence can be fatal.

 F.            The Mandamus Petition

1. The Style and Parties

The petition must be captioned In re [name of relator] the party seeking the relief is the relator. The person against whom relief is sought is the respondent. A person whose interest would be directly affected by the relief sought is a real party in interest.

2. Form and Contents of Petition

All factual statements in the petition must be verified by affidavit made on personal knowledge by an affiant competent to testify to the matters stated. The petition must, under appropriate headings and in the following order, contain:

 a. Identity of Parties and Counsel

List all pro se parties and the names and addresses of all counsel. Listing phone numbers, fax numbers, and e-mail addresses of counsel is a great help to the court, especially if the proceeding is an emergency. Counsel for the real party in interest customarily represents the respondent judge.

b. Table of Contents

The petition must contain a table of contents with references to the pages of the petition. The table of contents must indicate the subject matter of each issue or point, or group of issues or points.

c. Index of Authorities

The petition must include an index of authorities arranged alphabetically and indicating the pages of the petition where the authorities are cited.

d. Statement of the Case

The statement of the case should not exceed one page and should not discuss the facts.  The statement must contain the following information: (1) a concise description of the nature of the underlying proceeding; (2) information about the respondent, the name of the judge, the court in which the judge is sitting, and the county in which the court is located; and (3) a concise description of the respondent’s action from which the relator seeks relief.

Example:  The following format is an especially succinct method for statement of the case:   Underlying Proceeding Discovery dispute in a personal injury and wrongful death case filed by relator, Polly Plaintiff, against the real party in interest, Mean Old Corporation. Respondent The Honorable Jane Jones, Judge.

e. Statement of Jurisdiction

State, without argument, the basis of the court’s jurisdiction.

f. Issues Presented

The petition must state concisely all issues or points presented for relief. The statement of an issue or point will be treated as covering every subsidiary question that is fairly included.

EXAMPLE:  Did respondent abuse his discretion by reinstating a case more than 30 days after a judgment of  dismissal based on an unverified motion to reinstate?

g. Statement of Facts

The petition must state concisely and without argument the facts pertinent to the issues or points presented. The statement must be supported by references to the appendix or the record. Remember, the facts should not be disputed.

h. Argument

The petition must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the appendix or record. Demonstrate why mandamus relief is proper. Show that respondent abused its discretion and there is no adequate remedy at law. If the complaint is about the failure to act, show that there is a legal duty to perform a non-discretionary act, there was a demand for performance, and a refusal to act.

i. Prayer

The petition must contain a short conclusion that clearly states the nature of the relief sought.

j. Appendix

The appendix must contain a certified or sworn copy of any order upon which relief is requested, or any other document showing the matter under complaint. The appendix must also contain, unless voluminous or impracticable, the text of any rule, regulation, ordinance, statute, constitutional provision or other law (excluding case law) on which the argument is based. The appendix may also contain copies or excerpts of relevant court opinion, documents on which the suit was based, pleadings and similar materials.  The appendix should not contain any evidence that is not necessary for a decision. The judges may carry the petition with them. Try not to make the appendix too large. In most cases, the petition and appendix can be bound together with appropriate tabs for the documents in the appendix.

K.The Record

Relator must file with the petition a certified or sworn copy of every document that is material to the relator’s claim for relief and that was filed in any underlying proceeding and a properly authenticated transcript of any relevant testimony from any underlying proceeding, including exhibits offered in evidence or a statement that no testimony was adduced in connection with the matter.  In the absence of the transcript of an evidentiary hearing, the appellate court will assume that the evidence supported the ruling of the trial court.

l. Response

A response is not mandatory. The court may not grant relief, other than temporary relief, unless a response has been requested or received by the court. The response need not contain the statement of the case, the statement of the issues presented, or a statement of the facts, unless the responding party is dissatisfied with that portion of the petition. If the petition does not properly state a basis for jurisdiction, concisely note the lack of jurisdiction. The argument is limited to the issues or points presented in the petition, although the responding party may rephrase the issues or points and the appendix need not contain any item included in the relator’s appendix.

m. Relator’s Reply to Response

The relator may file a reply to a matter in the response. The court, however, may consider and decide the case before a reply brief is filed.

G.           ACTION ON PETITION

The court may deny the petition with or without a response. The court, however, will not grant mandamus relief unless a response has been filed or request.  The court may request full briefing. The court may grant relief without oral argument. When denying relief, the court is not required to issue an opinion. When granting relief, however, the court must issue an opinion.

H.           MOTION FOR REHEARING

Any party may file a motion for rehearing within a short period of time after the final order of the appellate court. No response need be filed unless the court requests one.  The court will not grant a motion for rehearing unless a response has been requested or filed.

I.             TEMPORARY RELIEF

The relator may file a motion to stay any underlying proceedings or for any other temporary relief pending the court’s action on the petition. The relator must certify to the court that if has notified or made a diligent effort to notify all parties by expedited means (such as phone or fax) that a motion for temporary relief has been or will be filed.  A bond may be required to protect the parties affected by the temporary relief. The court may grant temporary relief on its own motion.  Unless vacated or modified, an order granting temporary relief is effective until the case is finally decided.  Any party may move to reconsider the grant of temporary relief.

 J.            SANCTIONS

On motion of any party or on its own initiative, the court may – after notice and a reasonable opportunity to respond – impose sanctions on a party or attorney who is not acting in good faith as indicated by any of the following: (a) filing a petition that is clearly groundless; (b) bringing the petition only for delay of an underlying proceeding; (c) grossly misstating or omitting an obviously important and material fact in the petition or response; or (d) filing an appendix or record that is clearly misleading because of the omission of obviously important and material evidence or documents.

 K.           OPTIONS FOR THE LOSER

Although there is no right to appeal a mandamus ruling by an appellate court, most state laws allow further review. An appellate court abuses its discretion when it acts in excess of its writ power by granting mandamus relief when the trial court has not committed an abuse of discretion. If the appellate court grants mandamus, the respondent may then challenge its ruling by filing a petition for writ of mandamus against the appellate court of appeals in the state's highest court. If the appellate court declines to issue a mandamus, the court has not abused its discretion. The relator may then file a petition for writ of mandamus against the original respondent in the state's highest court.

 L.            CONCLUSION

Before thinking mandamus, consider the expenses and the impact of the filing on future proceedings before the respondent. If you then decide to take the risk against the difficult odds, remember that success with a petition for mandamus requires strict adherence to the facts and to the procedural requirements.

 WE PREPARE WINNING MANDAMUS PETITIONS!. CALL US NOW AT 516-567-9013 OR EMAIL US AT appealsparalegal@gmail.com