How Do I File for a Writ of Mandamus?

A petition for writ of mandamus, also known as a writ of mandate, is legal document that is filed with a court requesting that the court order a lower court or government agency to perform a function or refrain from doing something that it is legally obligated to do or refrain from doing. It is not appropriate in situations where the court or agency has discretion to perform, or not perform, the function. Initiated by filing a petition for alternative mandamus, the petition orders the defendant to appear before the court to answer to the allegations of the plaintiff.

The concept of a writ of mandamus, which translated from Latin means "we command," has a long history in the law. Although still used more frequently in other countries such as India and England and Wales, the United States uses mandamus relief only sparingly at the federal level. State courts within the United States vary in their usage of the writ.

In order to file for mandamus relief, a plaintiff should first determine that the relief sought is available through a petition for writ of mandamus. If the function that the applicant wishes to compel compliance with is in any way discretionary, then mandamus relief is inappropriate. In addition, the applicant should be certain that another form of relief, such as an appeal, is not required to be exhausted prior to the court considering a writ of mandate.

Filing for mandate begins with filing a petition for alternative mandamus. The petition for alternative mandamus requests the court to either order the court, or government agency, to perform the function, or refrain from performing the function, or to appear before the court at a specified date and time to answer to the court regarding the issue at hand. The applicant must also prepare an order telling the defendant when and where to appear for the hearing.

If the defendant fails to appear for the hearing, then the court will issue a peremptory mandate. A peremptory mandate will also be issued if the defendant is unable to answer to the allegations in the plaintiff's petition for writ of mandamus. The peremptory mandate is a court order that orders the lower court, or government agency, to perform the function, or refrain from performing the function, as requested in the original petition.