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Roger
Roger, Lawyer
Category: Criminal Law
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is there a form for a writ of mandamus

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Submitted: 6 years ago.
Category: Criminal Law
Expert:  Roger replied 6 years ago.

A writ of mandamus is the name of one of the prerogative writs in the common law, and is issued by a superior court (apellate 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.

An individual cannot file a writ of mandamus. Instead, you must file a petition for a writ of mandamus.

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.

You can file a petition by using the following as a go-by:

IN THE _________________COURT OF THE STATE OF _________________

IN RE: ______________________

PETITION FOR A WRIT OF MANDAMUS

 

To the Honorable Judges of the _________________ Court:

Your Petitioners,__________________________, state as follows:

1. Tell why the appellate court should order the lower court to act.

WHEREFORE, Petitioner requests that a Writ of Mandamus issue out of this Court directed to the trial judge of the __________ Court of ___________________ County, ___________________, commanding him, as such Judge, to ____________.

 

Respectfully submitted,

____________________________

Customer: replied 6 years ago.
Reply to Adam Kirk's Post: I have a school project due and I'm trying to construct a writ of mandamus and the necessary petition to the 9th circuit court. I've tried so many sites already with no luck as to the form and content of both. I am looking for a samle or for information on how to write both.
Expert:  Roger replied 6 years ago.

This link has example writs of mandamus. Just insert the 9th circuit information in place of the stated court.

http://www.hadit.com/vaclaimslibrary/mandamus/mandamusexample001.htm

 

Customer: replied 6 years ago.
Reply to Adam Kirk's Post: Thank you for that quick answer. I was wondering if there exists a cite that may have an example more geared to criminal law rather than veteran's affairs? Also is there a form/format for the petition?
Expert:  Roger replied 6 years ago.

Here is a link for a writ of mandaums from the 9th circuitLaughing

http://www.fenwick.com/docstore/Publications/Litigation/06-75424.pdf

Here is a petition for writ of mandamus from the 10th circuit:

http://www.fas.org/irp/threat/mcveigh/front.htm

Neither of these deal with criminal issues, but the form is going to be the same. The substance should just be changed to concern a criminal petition.

 

Roger, Lawyer
Category: Criminal Law
Satisfied Customers: 26881
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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