In most of the United States, the process for an individual to take action against a government agency involves filing a lawsuit, then convincing a judge that the plaintiff has grounds for a lawsuit. Petitions for writs of Mandamus are an alternate process that allows courts to compel agencies to do things they would otherwise be legally required to do.
Individuals who petition the court for a writ of Mandamus are not suing the government entity. The applicant would have to show that someone has infringed their rights, that they have little chance of challenging the lawfulness of the matter in question, and that they have a clear and indisputable right to relief from the mandamus order.
Three Kinds of Mandamus
Mandamus in Latin means “we command”, which is the case in mandamus relief. It is a legal remedy in which there is an order by a court of law in favor of one party, requiring another to perform an act, usually a public officer or corporation. Three types of Mandamus are “discretionary or mandatory. The three types are:
- Alternative Mandamus.When a mandamus is issued, the court must either demand the defendant do the requested act or order him to appear before a judge at a specified time to show cause why he failed to do it.
- Peremptory Mandamus. Peremptory Mandamus is a judicial order invoking the law, duty, or judgment that orders a government agency or official to do something or cease doing something. Defendants who fail to show sufficient cause in response to an alternative mandamus can be issued a peremptory mandamus.
- Continuing Mandamus.Mandamus is issued to a lower authority to prevent a miscarriage of justice by directing the officer or authority to carry out its tasks expeditiously for an arbitrary period of time.
How to File an Alternative Writ of Mandate
A plaintiff who wishes to invoke mandamus relief must first determine that a writ of Mandamus is appropriate for the relief sought. Mandamus relief would be inappropriate if the function the applicant seeks to enforce is discretionary in any manner. In addition, a person seeking a writ of mandate should make sure that other avenues of relief, such as an appeal, have been exhausted before filing one.
A petition for alternative Mandamus is the first step in the mandate process. By petition, the court, or a government entity, is asked to take action, refrain from taking action, or show up before the court at the specified date and time to address the questions raised by the petition. Also, the applicant must prepare an order stating when and where the defendant needs to appear.
A peremptory mandate will be issued if the defendant fails to appear. Also, when the defendant cannot answer the plaintiff’s allegation in a writ of Mandamus, a peremptory mandate will be issued.
Because we have an extensive background in the writs of Mandamus, we can protect and preserve your right throughout the dispute. If you live in Fort Lauderdale, Boca Raton, Weston, Miami, West Palm Beach, or one of the other surrounding Florida communities and need an appeals attorney, Hunker Appeals is here to provide a smooth path for your legal needs.
Call or email Hunker Appeals now to set up a consultation.
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