Peremptory Mandamus
Encyclopedia
A peremptory writ of mandamus (also peremptory writ of mandate or simply peremptory mandamus) is an absolute and unqualified writ
(a formal written command) to the defendant
to do the act in question. It is issued when the defendant default
s on, or fails to show sufficient cause in answer to, an alternative mandamus
. It is one of the three types of a mandamus
.
A more exact definition of a peremptory writ of mandate is "a final order of a court to any governmental body, government official or a lower court to perform an act the court finds is an official duty required by law."
This may also be distinguished from a Continuing Mandamus
, which asks for an officer or other authority to perform its tasks expeditiously for an unstipulated period of time for preventing miscarriage of justice.
There seems to be many California
cases online concerning preremptory writs. The Court of Appeal provides an explanation of the various types of writs available. http://www.courtinfo.ca.gov/courts/courtsofappeal/4thDistrictDiv3/faq/answer4-2.htm
In some jurisdiction
s or court systems, all types or kinds of writs are bunched together under a single procedural framework. In New York
civil practice
, any writ is titled a proceeding against (a) body or officer.
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
(a formal written command) to the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
to do the act in question. It is issued when the defendant default
Default
Default may refer to:*Default , the failure to do something required by law**Default judgment*Default , failure to satisfy the terms of a loan obligation or to pay back a loan*Default , a preset setting or value...
s on, or fails to show sufficient cause in answer to, an alternative mandamus
Mandamus
A writ of mandamus or mandamus , or sometimes mandate, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".Mandamus is a judicial remedy which...
. It is one of the three types of a mandamus
Mandamus
A writ of mandamus or mandamus , or sometimes mandate, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".Mandamus is a judicial remedy which...
.
A more exact definition of a peremptory writ of mandate is "a final order of a court to any governmental body, government official or a lower court to perform an act the court finds is an official duty required by law."
Distinguishing from other kinds of mandamus
A peremptory writ of mandate "is distinguished from an alternative writ of mandate (mandamus), which orders the governmental agency, court or officials to obey the order or show cause at a hearing why it should not."This may also be distinguished from a Continuing Mandamus
Continuing Mandamus
Continuing Mandamus is a writ of Mandamus issued to a lower authority by the higher authority in general public interest asking the officer or the authority to perform its task expeditiously for an unstipulated period of time for preventing miscarriage of justice.The concept of Continuing Mandamus...
, which asks for an officer or other authority to perform its tasks expeditiously for an unstipulated period of time for preventing miscarriage of justice.
Practice tips
"The usual practice is for anyone desiring such an order is to file a petition for the alternative writ. If the officials do not comply with the order and fail to convince the court that the writ of mandate should not be issued, then the court will issue the peremptory writ. In some emergency situations or when there is no conceivable reason for the government not to follow the law, then the peremptory writ will be issued after a notice of hearing without the alternative writ."There seems to be many California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
cases online concerning preremptory writs. The Court of Appeal provides an explanation of the various types of writs available. http://www.courtinfo.ca.gov/courts/courtsofappeal/4thDistrictDiv3/faq/answer4-2.htm
In some jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
s or court systems, all types or kinds of writs are bunched together under a single procedural framework. In New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
civil practice
Civil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits...
, any writ is titled a proceeding against (a) body or officer.