A petition for writ of mandate, also commonly known as a petition for a writ of mandamus, is a document filed with a court that requests an order directing a governmental agency or representative to perform a required function. In the alternative, a petition for writ of mandate can be filed seeking a court to order a governmental agency or representative to stop doing something that it has no legal authority to do in the first instance.
Identify what legal right you personally have to seek a writ of mandate. You need to demonstrate that a governmental entity or representative is legally bound to perform a certain act or function and the failure to do so has impacted your rights.
Make certain that the issue at hand does not involve a discretionary function of the governmental entity or representative. You cannot bring a writ of mandate if the act not being taken is one that can be pursued on a discretionary basis.
Prepare an initial petition for mandate, which technically is known as an "alternative mandate" or "alternative mandamus." This initial filing requests that the court order the governmental entity or representative to perform or, in the alternative, appear in court at a designated time to explain why the performance of the act legally should not be done. You will also need to prepare a notice of hearing to advise the defendant of the time and place of the proceedings.
Take care to outline specifically the facts that support the basis for your request and the reasons that the governmental agency (or agent) is required by law to act on your behalf.
Upon a failure of the governmental agency or representative to appear in court at the initial hearing, or if the entity or agent fails to demonstrate a justification for not acting, you will then request the court to issue a "peremptory mandate" or peremptory mandamus. This is an unqualified and direct order of the court commanding the governmental agency or agent to undertake the desired, legally mandated act.
- Filing a petition for a writ of mandate or writ of mandamus is a complicated task in some instances. You need to familiarize yourself with the judicial system and the rules of civil procedure. You may want to consider obtaining legal assistance. If your case truly involves an issue of public significance, you likely will be able to find a lawyer in private practice who would consider volunteering to assist you with the case. In the alternative, you might be able to obtain legal assistance from a public interest organization as well.
- Cornell University - Federal Rules of Civil Procedure
- Practice of Extraordinary Writs, Chester James Antieau, 1987