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MANDAMUS PAGE   Six Point Test For Mandamus   Write of Mandamus in Florida

Writs of Mandamus  

Mandamus in US Rules of Civil Procedure

Nolopress Notes     

This page is a work in progress. I am currently studying Extraordinary Remedies and I welcome any suggestions and comments. Please email  to  RogerTownsend@innocent.com

Under the Canadian  Rules of Criminal Procedure (1996)

APPLICATION OF RULE 43.01  Applies to applications in criminal matters by way of mandamus.

Applications shall be made to a judge of the Court in the REGION, County or district in which the proceedings to which the application relates have been, are being or are to be taken.

Note: It appears for example if you don't expect justice in your area the above last 5 words may mean the Application could be heard in the region you intend your application to be taken?

NOTICE

A notice of Application under Rune 43.03 shall be in FORM 1 and comply with rule 6.03 and shall also state the subpoena, warrant or other order or determination to which the application relates.

Note: Select from the above list and place in the shopping trolley.

MATERIALS FOR USE ON APPLICATION

Materials to be filed.

    1. The notice of application in Form 1 shall be accompanied by

a) a copy of the supoena, warrant, conviction or other order or determination which is the subject of the application.

b) a copy of the indictment (information) containing the charge to which the application relates.

c) where there is no or an incomplete record of the proceedings giving rise to the issuance of the subpoena, warrant or other order or determination which is the subject of the application, AN AFFIDAVIT of on ON BEHALF OF THE   APPLICANT deposing to the matters described in subrule (2);
    1. a transcript of the proceedings giving rise to the issuance of the subpoena,

      2. warrant, or other order or determination which is subject to the application; and,

    2. a copy of ANY OTHER MATERIAL IN THE COURT FILE THAT IS NECESSARY fof the hearing and determination of the application.

AFFIDAVIT of or on BEHALF of the APPLICANT

  1. The affidavit of or on behalf of the Applicant described in clause (1) (c) shall include
    1. a description of the affidavit's status and the basis of his or her knowledge of the matters deposed;
    2. a statement of the particulars of the charge to which the applicantioin relates, together with a date or dates scheduled for trial or preliminary inquiry in respect of such charge;
    3. a statement of all facts material to a just determination of the application which are not disclosed in any other materials filed in support of the application;

Cross-Examination on Affidavits

  1. Where an affidavit has been filed under this rule, the party opposite may cross-examine on such affidavit in accordance with rule 6.11. see ( page 357)    

    2. Use of Agreed Statement of Facts

  2. A judge, before or upon the hearing of the application, may act upon a statement of facts in accordance with rule 6.13

    3. APPLICANT'S APPLICATION and FACTUM

  3. The applicant SHALL PREPARE, SERVE and FILE an APPLICATION RECORD and FACTUM in accordance with subrules 6.05 (1) and rules 6.06 and 6.08.

    4. Respondent's Application Record and Factum

  4. The respondent shall prepare, serve and file an Application Record and Factum in accordance with subrule 6.05 (3) and rules 6.06 and 6.08

CONSENT IN WRITING

    1. The respondent may consent in writing to the order sought upon terms included in a draft order filed and a judge, satisfied that the relief sought by the applicant should be granted in the circumstances, may grant the order on such terms as are contained in the draft order filed without the attendance of solicitors.

Related Criminal Code Provisions

PART 36

EXTRAORDINARY REMEDIES

Application of Part

  1. This Part applies to proceedings in criminal matters by way of MANDAMUS.

General order for security by recognizance - Provisions of Part 25

779. (1) A court that has authority to quash a conviction, ORDER or other proceeding on certiorari may prescribe by general order THAT NO MOTION to quash any conviction , ORDER or other proceeding removed to the court by CERTIORARI, shall be heard

unless the defendant has entered into a recognizance with one or more sufficient sureties, before one or more justices of the territorial division in which the conviction or order was made or before a judge or other officer, OR HAS MADE a deposit to be prescribed with a CONDITION that the defendant will prosecute the writ of certiorari at his OWN EXSPENCE, without wilful delay

                                                                        - - -  - to be continued - - - ( help! )

North Dakota Supreme Court Opinions Exit any frames & take this document to the top
Robot Aided Mfg., Inc. v. North Dakota Dep't of Transp., 1999 ND 14, 589 N.W.2d 187 LINK

 

The writ of mandamus may be issued by the supreme and district courts to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled and from which the party is precluded unlawfully by such inferior tribunal, corporation, board, or person.

"A party seeking a writ of mandamus bears the burden of demonstrating a clear legal right to the performance of the particular acts sought to be compelled by the writ." Krabseth v. Moore, Director, North Dakota Dep't of Transp., 1997 ND 224, ¶ 6, 571 N.W.2d 146. The petitioner must demonstrate a clear and complete legal right to the performance of particular acts sought to be compelled. Id. Issuance of the writ is left to the sound discretion of the trial court; this court will not reverse the trial court's issuance of a writ unless it should not have been issued as a matter of law, or the trial court abused its discretion. Id. "The trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner." Id.

 

Search Ohio Revised Code Chapter 2731: Mandamus Mandamus is a writ, issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.

The writ of mandamus may be allowed by the supreme court, the court of appeals, or the court of common pleas and shall be issued by the clerk of the court in which the application is made. Such writ may issue on the information of the party beneficially interested.

Such writ shall contain a copy of the petition, verification, and order of allowance.

The writ of mandamus may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, but it cannot control judicial discretion.

The writ of mandamus must not be issued when there is a plain and adequate remedy in the ordinary course of the law.

When a peremptory mandamus has been directed to a public officer, body, or board commanding the performance of a public duty specially enjoined by law, and the court finds that such officer, or a member of such body or board, without just excuse, refused or neglected to perform the duty so enjoined, such court may impose a fine not exceeding five hundred dollars upon such officer or member.

Such fine shall be paid into the county treasury of the county in which the duty should have been performed, and its payment is a bar to an action for any forfeiture or fine incurred by such officer or member by reason of such refusal or neglect.

Application for the writ of mandamus must be by petition, in the name of the state on the relation of the person applying, and verified by affidavit. The court may require notice of it to be given to the defendant, or grant an order to show cause why it should not be allowed, or allow the writ without notice.

The allowance of the writ of mandamus, and an order that the defendant, immediately upon service, do the act required to be performed, or, when an alternative writ is allowed, that he do the act or show cause before the court, at a specified time and place, why he does not do the act, shall be entered on the journal.

If judgment in a proceeding for a writ of mandamus is rendered for the defendant, all costs shall be adjudged against the relator.

 

If judgment in a proceeding for a writ of mandamus is rendered for the plaintiff, the relator may recover the damages which he has sustained, to be ascertained by the court or a jury, or by a referee or master, as in a civil action, and costs. A peremptory mandamus shall also be granted to him without delay.

Such recovery of damages against a defendant is a bar to any other action upon such cause of action.

 

If judgment in a proceeding for a writ of mandamus is rendered for the plaintiff, the relator may recover the damages which he has sustained, to be ascertained by the court or a jury, or by a referee or master, as in a civil action, and costs. A peremptory mandamus shall also be granted to him without delay.

Such recovery of damages against a defendant is a bar to any other action upon such cause of action.

 

On the return day of an alternative writ of mandamus, or such further day as the court allows, the defendant may answer as in a civil action. If the writ is allowed by a single judge, said defendant may demur.

The plaintiff may demur to the answer or reply to new matter therein, and the defendant may demur to the reply, as in a civil action.

The pleadings have the same effect, must be construed, may be amended, and issues of fact made by them must be tried, and further proceedings thereon had, in the same manner as in civil actions.

If no answer is made to an alternative writ of mandamus, a peremptory mandamus must be allowed against the defendant.

When the right to require the performance of an act is clear and it is apparent that no valid excuse can be given for not doing it, a court, in the first instance, may allow a peremptory mandamus. In all other cases an alternative writ must first be issued on the allowance of the court, or a judge thereof.

Mandamus may lie in U. S. District Courts and Court of Appeals for Federal Circuit to order action in Office. 

 

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