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The Writ of Mandamus in State Courts

The centuries-old remedy is increasingly used to force hotly contested political issues before state courts.

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Mandamus is an old common law remedy that allows a court to order government officials to perform their public duties. When a public official fails to follow the law, it is important that those impacted have efficient recourse. Similarly, in appellate practice, mandamus is an important caveat to the final judgment rule because it allows appellate courts to correct clear errors by lower courts before they compound. In many scenarios, mandamus can reinforce the rule of law by ensuring that responsible officials follow the law. 

While litigants have long used the writ of mandamus in these ways, heightened polarization and intense partisan battles for control of key state institutions has accelerated its use in high profile political cases. Indeed, today’s political environment is combining with mandamus to bring state courts (especially state high courts) to the fore of many hotly contested issues.

For example, litigants seeking to have former President Trump banned from the 2024 ballot have used the writ of mandamus to obtain state high court review. In July 2023, former President Trump petitioned the Georgia Supreme Court for a writ of mandamus halting and limiting the work of the special grand jury investigation regarding possible 2020 election interference. In August 2022, the North Carolina Supreme Court upheld a writ of mandamus requiring state officials to finance public education notwithstanding legislation to the contrary. In Wisconsin, a voter advocacy group sued the state electoral commission before the 2020 election seeking a writ of mandamus requiring the commission to purge voter rolls. Recently in Florida, prosecutor Monique Worrell petitioned the Florida Supreme Court for a writ of mandamus vacating her suspension by Gov. Ron DeSantis on the grounds that he violated the state constitution. And, in Ohio, voters petitioned the state supreme court for a writ of mandamus requiring Ohio’s secretary of state and the Ohio Ballot Board to remove a reproductive rights amendment from the ballot on the theory that it violated the state constitution’s single-subject requirement.

The writ of mandamus developed in England during the 13th century. The Court of King’s Bench, which had extraordinary jurisdiction and authority because of its close ties to the crown, devised it as an instrument to enforce clearly established rights when there was no other adequate remedy. The writ also had jurisdictional significance because it allowed plaintiffs to file directly with the Court of King’s Bench rather than appear before local authorities. At first, the writ was used broadly to enforce even private rights. However, by the time of the American founding, U.S. courts understood the writ primarily as a means to require recalcitrant public officials to perform non-discretionary duties.

Today, the writ retains this core function, but it is regulated by statute and constitutional law. It is available to litigants in both federal and state court, but there are significant differences. Under Article III as construed by the Supreme Court in Marbury v. Madison, Congress may not grant the Supreme Court unlimited original jurisdiction over mandamus petitions. The All Writs Act of 1948 (which was preceded by the Judiciary Act of 1789), effectively lodges original jurisdiction for mandamus petitions with federal district courts subject to ordinary appellate review. The Supreme Court retains the power to issue writs in the course of its appellate jurisdiction.

The situation is very different in the states. Many state constitutions give their state high courts unrestricted original jurisdiction over mandamus petitions directed to statewide officials. Arizona’s constitution is illustrative. It provides that the state “supreme court shall have original jurisdiction of . . . mandamus . . . and other extraordinary writs to state officers.” Other state constitutions give the state high court original jurisdiction only over specific mandamus petitions. In Arkansas, for example, the constitution only permits state high court jurisdiction over mandamus petitions directed to the Board of Apportionment, petitions regarding citizen ballot measures, and petitions ancillary to its appellate jurisdiction. Still other state constitutions, such as Delaware, leave original supreme court mandamus jurisdiction to the legislature.

The states also vary in the standards for granting mandamus. The general rule is that mandamus is appropriate only to compel a public official to perform a non-discretionary function when necessary to protect the plaintiff’s clear legal rights. However, state courts have diverged in their application of this rule. Some states allow the writ only when a public official has a formal, affirmative legal obligation to perform a ministerial function. In other words, all discretionary actions are exempt from mandamus relief. Other states recognize the doctrine of “practical compulsion,” which considers whether indirect incentives and consequences limit official discretion. Still other states apply heightened standards for mandamus in particular substantive areas, such as public finance. These doctrinal variations leave much room for litigants and courts to push the boundaries of mandamus relief.

Most mandamus petitions in state court are filed by parties seeking to appeal a lower court decision before final judgment, but the writ is prevalent and meaningful in other areas like state administration. Benefit recipients, for example, frequently use the writ to seek judicial review of administrative determinations regarding eligibility. Citizens also use the writ to enforce government compliance with state sunshine laws, and prisoners use it to obtain review of parole decisions and conditions of confinement. The writ is also used to force local governments to comply with any number of state law obligations. 

The writ is also an important tool for enforcing state constitutions. State courts use it to enforce constitutional rules on executive officials (including governors), and, in rare cases, against state legislatures. In Guinn v. Legislature of the State, for example, the Nevada Supreme Court issued a writ of mandamus that required the state legislature to pass laws that properly financed public education because the state constitution explicitly required education funding. Similarly, in Brotherton v. Moore, the West Virginia Supreme Court issued a writ requiring the governor to formally appoint a superintendent for a juvenile detention center because the constitution required the governor to fill vacancies through the formal appointment process rather than through indefinite interim appointments.

As compared to the structure of the federal government, state government power is wildly diffused across myriad different officials, boards, agencies, locales, and committees. Many of these offices are separately elected based on unique districts or are appointed through processes that can create conflicting lines of accountability and influence. As a result, it is increasingly common in today’s polarized and partisan politics for different parts of state and local government to be at odds with each other. Indeed, intra-government conflict seems to be the new normal in many states. Governors find themselves at loggerheads with election commissions and education boards. Secretaries of state spar over ballot questions with legislators, governors, and citizen groups. And mayors run headlong into opposition from state legislatures. 

Because many state laws provide for original jurisdiction over mandamus in the state high court, mandamus provides an unusually expedient process for parties to pull appellate courts into deeply political issues. In just a matter of days, litigants can bring an issue before a state high court where a few judges can decide the fate of an election, the candidates on a ballot, or the allocation of state funds. Where government misconduct is clear and egregious, the writ provides an important pathway for courts to check the other branches. But, to the extent state high courts are becoming more overtly partisan, the writ of mandamus provides an expedited pathway for state high courts to realize their partisanship.

In other words, mandamus is yet another reason why state courts and constitutions matter now more than ever for the future of American democracy and the rule of law.

Jonathan L. Marshfield is an associate professor at the University of Florida Levin College of Law, where he teaches and writes in the areas of local government law, state constitutional law, and constitutional change.

 

 

 

 

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