Tuesday, April 14, 2020
Mandamus is, and should be, a rare remedy. Over my years of practice I have filed mandamus less than twenty times in state or federal courts. Yet I have done so three times, and almost a fourth, in just the last six months. As a result, I have had a chance to ponder the unique nature of this remedy and want to offer a few tips if you find yourself having to file this unique "appeal."
In federal court, the All Writs Act (28 U.S.C. § 1651(a)) grants federal appellate courts the power to issue writs of mandamus. Mandamus is intended to be an extraordinary remedy, used only in exceptional circumstances that arise from emergencies or issues of national importance. LaBuy v. Howes Leather Co., 352 U.S. 249 (1957). If there is any other remedy by appeal or award (such as a money judgment for damages) the remedy is not proper.Most state courts have similar jurisdiction and follow the same general rules.
The error challenged must also generally be "clear." This means, in most cases, that only ministerial duties can be challenged. If there is even a hint of discretion in performing the challenged act, mandamus will likely be denied.
In general, the suit is filed against the officer that abused their discretion. You are thus essentially "suing" the judge, clerk, or other official that clearly violated their duty.
Mandamus must also generally be filed quickly. While there is no deadline in most cases, there is a form of laches applied to mandamus by most courts. And mandamus is often used in situations where an injunction or other order has gone into effect or will go into effect in hours or days.
Mandamus thus offers a unique drafting challenge. You must act quickly. In some cases, within hours of the challenged action (or inaction). Yet you must show that the error is clear, and that there is no other remedy than mandamus. And you must provide all of the record information necessary to support the arguments raised, often without benefit of an official record.
This flies in the face of the usual appellate-lawyer temperament. We are, by and large, a careful and deliberate crowd. Mandamus requires us to shoot from the hip, but still hit the target squarely.
To do so, you must be ruthlessly clean and simple in your analysis. String cites, deep-dive analysis, and policy arguments must often be discarded in order to cut to the point. And subsidiary arguments are often discarded in favor of a clean main point.
To make sure that my point is cleanly delivered, I try to focus in on a clean statement of the issue and on headers that deliver the entire argument in themselves. I know that the court is likely to start with the table of contents, so I want that table of contents to deliver the argument well. If there is a subsidiary issue that is not addressed in the headers, it should be cut or relegated to the footnotes.
Every necessary point is also made explicit. I do not leave to chance that any part of my burden for mandamus will be rejected. So the lack of adequate alternative remedies is a header. So is the timeliness of the challenge. And the error is explained with subheaders parsing out each step of the analysis.
If I am seeking emergency relief in addition to the mandamus that requires immediate action by the court, I state this explicitly in the mandamus, near the beginning. I then file the motion for emergency relief with the mandamus, if at all possible, so that the court has full briefing on why the emergency relief is necessary.
Finally, and this is the most challenging part for me, I try to stop editing when the mandamus is "good enough." Because of sharp time constraints, a few maxims should be kept in mind:
- Voltaire: “The best is the enemy of the good.”
- Confucius: "Better a diamond with a flaw than a pebble without."
- Shakespeare: “Striving to better, oft we mar what's well.”
You must edit and clarify with great care. But you also must know when to quit. In a mandamus, this may mean that you only have a few drafts before you must file.
This is the hardest part of a mandamus. You are already somewhat uncomfortable with the idea that you are filing an "extraordinary writ" with so few rules and procedures to guide you. You are probably uncomfortable with the idea of "suing" a judge you may be appearing before again (although you are always carefully challenging the ruling, not the officer). And now, in doing so, you must act quickly and without the comfort of repetitive drafting over time.
But that is the challenge of mandamus. Quick, accurate, and simplified arguments are key. In learning to do so, you may learn to apply those principles to the rest of your work.