28 Mandamus, Writ of

• Library: Elements of Civil Causes of Action (SCBar) (2015 Ed.)

28 Mandamus, Writ of

A. Definition

A writ of mandamus— once known as a "prerogative" writ¹ — has been called "... the highest judicial writ known to the law and according to long approved and well-established authorities only issues in cases where there is a specific legal right to be enforced or where there is a positive duty to be performed, and there is no other specific remedy."² It has also been said that the writ "... is the proper remedy to enforce the performance of such official acts as are of absolute obligation upon the officers called upon to perform them, and are essential to a due administration of the government, when performance has been improperly refused."³ The writ has been described as a "refuge of last resort" within the legal system that is called on infrequently and lies "beyond the normal procedures."⁴The primary purpose or function of the writ is to enforce an established right and a corresponding imperative duty created or imposed by law — to promote justice, subject to certain well-defined qualifications.⁵ It is a "coercive writ" that orders the performance of a ministerial duty.⁶ It does not "inquire and adjudicate,"⁷ but "commands and executes," and, therefore, its purpose is not to establish a legal right, but to enforce one that has already been established.⁸ Mandamus will issue only to enforce clearly existing duties. It is not an instrument for increasing powers of a governmental body,⁹ or a substitute for an equitable remedy.¹⁰

While it is generally said that the writ is to be directed to an inferior court, tribunal, board, corporation, or person, requiring performance of a particular duty that results from the official station of the respondent or from operation of law,¹¹ the South Carolina Supreme Court has repeatedly said the object of the writ must be a public official.¹²Nonetheless, respondents in petitions for writs of mandamus have included courts,¹³ state agencies,¹⁴ local governments,¹⁵ public utilities,¹⁶private corporations,¹⁷ and, individuals,¹⁸ as well as public officials,¹⁹ including even the Governor of the state.²⁰ Mandamus, however, "by its very nature, cannot be issued against a person in his or her individual," as opposed to official, capacity.²¹

Strictly speaking, a writ of mandamus is not a "cause of action." It was an "extraordinary remedy"²² or "special proceeding,"²³ not a civil action. Indeed, up until ratification of the state Constitution of 1868, the writ of mandamus was regarded in South Carolina as a criminal proceeding.²⁴ In one case from the 1930s the South Carolina Supreme Court described mandamus as a "hybrid proceeding" that is neither a suit in tort, nor in contract and not strictly a law case nor one in equity.²⁵ However, as it has evolved in this country, it is functionally a cause of action.²⁶ Nonetheless, the South Carolina Supreme Court said fairly recently that a petition for a writ, including mandamus, is "not a cause of action but a form of remedy or relief."²⁷ Nonetheless, under the Rules of Civil Procedure, there is only one form of action known as a "civil action."²⁸

Mandamus should be distinguished from two other writs: prohibition and certiorari. Prohibition forbids an "inferior tribunal"from taking action and might be considered the "flip side" of mandamus.²⁹ Certiorari reviews a performed judicial duty and only applies to review and control judicial judgment, whereas mandamus compels an unperformed ministerial duty and is never issued to control judgment.³⁰

Mandamus is of ancient origin, but it is mentioned in a great number of current South Carolina statutes. Many of these authorize bondholders to protect their rights through a writ of mandamus.³¹ Telephone utilities,³² radio common carriers,³³ railroads,³⁴ and electric utilities or cooperatives,³⁵ are all specifically made subject to a writ of mandamus in certain circumstances. There are a number of other statutes that refer to mandamus in specific circumstances,³⁶ the most significant of which: authorize the Governor to order or direct any state, county or city official to enforce in court the provisions of certain proclamations through mandamus;³⁷ allow local building officials, municipal or county attorneys, or other appropriate authorities of a political subdivision, or an adjacent or neighboring property owner who would be damaged to apply for mandamus to address a violation of building codes or regulations;³⁸ permit the Attorney General, or any individual, to seek a writ of mandamus to address discrimination in public accommodations;³⁹ enable violations of ordinances adopted pursuant to the South Carolina Local Government Comprehensive Planning Enabling Act to be prevented by mandamus.⁴⁰ Additionally, under the South Carolina Constitution, victims of crime⁴¹ are granted certain rights that may be subject to a writ of mandamus under the "Victims' Bill of Rights."⁴²

There are also two statutes that specifically forbid mandamus to issue.⁴³ The first concerns assessment of property taxes and prohibits courts from interfering "by mandamus" with an auditor's action under four specific statutes.⁴⁴ The second statute says a "... writ of mandamus must not be granted or issued from a court or an administrative law judge directing or compelling the reception of funds not authorized to be received by law."⁴⁵

There are some procedural matters of which an applicant for a writ of mandamus needs to be aware.⁴⁶ The parties are generally known as the petitioner and respondent.⁴⁷The procedure governing extraordinary writs, including mandamus, is treated specially under the South Carolina Constitution and specific statutes. They give the South Carolina Supreme Court the power, under original jurisdiction, to issue writs of mandamus.⁴⁸ The individual justices and all judges of "courts of record" have that power as well.⁴⁹ The decision of a justice of the Supreme Court⁵⁰ or of the Court of Appeals⁵¹ is, however, subject to appeal to the respective full court. The Supreme Court has limited its original jurisdiction by rule stating:

The Supreme Court will not entertain matters in its original jurisdiction when the matter can be determined in a lower court in the first instance, without material prejudice to the rights of the parties. If the public interest is involved, or if special grounds of emergency or other good reasons exist why the original jurisdiction of the Supreme Court should be exercised, the facts showing the reasons must be stated in the petition with supporting affidavits.⁵²

The petitioner must serve the party against whom relief is sought,⁵³ including a judge, even though a judge may be a nominal party who need not file an answer or submit a brief.⁵⁴ While generally, all civil actions filed in the circuit court are subject to court-ordered mediation⁵⁵ — unless the parties agree to conduct an arbitration — alternative dispute resolution is not required for actions seeking extraordinary relief such as mandamus.⁵⁶

A demurrer to a petition for a writ of mandamus admits the facts well pleaded in the complaint but does not admit inferences drawn by the plaintiff from those facts nor conclusions of law.⁵⁷ By rule, when a petition for mandamus is before either the South Carolina Supreme Court or Court of Appeals and an issue of fact arises, those courts are authorized to frame an issue and certify it to the appropriate circuit court.⁵⁸

It appears that a petition for mandamus may not be heard, and an order issued, ex parte .⁵⁹A judgment granting a writ of mandamus precludes, under principles of res judicata, a subsequent action for damages.⁶⁰ An order issuing a writ of mandamus may be appealed;⁶¹however, filing a notice of appeal from a mandamus order does not automatically stay the writ.⁶² Appellate review is limited to determining whether the lower court has abused its discretion, since the decision of whether or not to issue a writ of mandamus lies within the sound discretion of the lower court.⁶³ If a respondent fails to comply with a mandamus order, the remedy is to petition the court for "compensatory contempt."⁶⁴

The petitioner may apparently simultaneously attack the constitutionality of a statute and seek a writ of mandamus.⁶⁵ However, when mandamus is sought to compel an officer to perform a duty "enjoined"⁶⁶ by statute, the courts will generally not allow that officer to contend the statute is unconstitutional.⁶⁷

B. Elements

To obtain a writ of mandamus requiring the performance of an act, the applicant must show: (1) a duty to perform the act, (2) the ministerial nature of the act, (3) the applicant's specific legal right for which discharge of the duty is necessary, and (4) a lack of any other legal remedy.⁶⁸ The burden is on an applicant to show he or she has performed every prerequisite condition necessary to compel action by the respondent through a writ of mandamus.⁶⁹

C. Elements Defined

1. A Duty

The applicant for the writ must show that the respondent has a duty to perform the act.⁷⁰ That duty must be indisputable and plainly defined,⁷¹ and the respondent must have the ability to perform it.⁷² It appears that if there is some unmet precondition to the duty to act, mandamus will not lie.⁷³ Where the only doubt that clouds the issue is the construction of a statue that imposes the duty, the writ will issue if the court decides it imposes the duty asserted,⁷⁴ otherwise, it will be denied.⁷⁵ Mandamus should not lie to compel a respondent to "correctly" perform a duty that has been performed, but that the petitioner claims had been improperly executed.⁷⁶ Indeed, as a general rule, performance of the act in question moots the case.⁷⁷

While not explicitly stated in the element, it is implied that the respondent must have failed to perform the duty at issue and that the petitioner must allege that failure.⁷⁸ Indeed, in one case the South Carolina Supreme Court said that mandamus is based on the theory that an officer charged with a purely ministerial duty can be...