Standards for Mandamus
For mandamus to work, the petitioner for the writ must:
- lack other adequate remedies and
- enjoy a specific legal right that creates a
- mandatory duty to
- act ministerially
Other remedies - The South Carolina Supreme Court will not tell folks to do their job if it does not have to.
Ordinarily, the Supreme Court will not step in if a trial court can hear the matter first. Key v. Currie, 305 S.C. 115, 406 S.E.2d 356 (1991). It will likewise not intervene if it can later hear the issue on appeal. City of Rock Hill v. Thompson, 349 S.C. 197, 201, 563 S.E.2d 101, 103 (2002). And it will ordinarily deny mandamus if the public official decides on his or her own to do what the petitioner asks. South Carolina Retirement Sys. Inv. Comm’n v. Loftis, 741 S.E.2d 757 (S.C. 2013).
A pre-existing right must create a mandatory duty – Mandamus exists “to command and execute, not to inquire and adjudicate; therefore, it is not the purpose of the writ to establish a legal right, but to enforce one which has already been established.” Sanford v. South Carolina State Ethics Commission, 385 S.C. 483, 493-494, 685 S.E.2d 600, 605-606 (2009).
In Knight v. Austin, 396 S.C. 518, 722 S.E.2d 802 (2012), a retired firefighter wanted the Supreme Court to order a city to pay health insurance benefits. But he conceded that factual issues existed over the city’s duty to pay. The Court denied mandamus, concluding that the duty was not established well enough for the writ.
The duty is ministerial - The mandatory duty must also be specific enough to preclude discretion.
In City of Rock Hill, the City asked the Supreme Court to order a judge to apply a statute’s amended version and not its original version. When the City sought the writ, which version applied was an open issue.
The Supreme Court denied the writ, and distinguished between asking a judge to rule and asking her to rule a certain way. Directing judges to rule is ministerial. Directing judges to rule a particular way is not because a judge exercises discretion in resolving open issues.
Edwards v. State of South Carolina, 383 S.C. 82, 678 S.E.2d 412 (2009), is in contrast. The Governor declined to apply for federal funds despite the General Assembly’s decision to accept the funds. The Court held that the Governor’s duty to apply for the funds was ministerial because the Governor lacked discretion to deviate from the General Assembly’s properly enacted budget.
Like a common law writ of certiorari, Rule 245, SCACR, applies because mandamus is an extraordinary writ within the Supreme Court’s original jurisdiction. Rule 245 provides that the petition shall comply with Rule 240, SCACR. Rule 240, SCACR, in turn, specifies a petition’s form, content, and filing.
Remember to name and serve the judge if you are trying to mandamus him or her. City of Rock Hill requires it.
Has anyone petitioned for a writ of mandamus? Please let us know how it went. You can leave a reply or reach me at www.attorneyroberthill.com.