research_guide_writ_of_mandate.doc - Research Guide Writs of Mandate Law Library for San Bernardino County Research Guide www.sblawlibrary.org(909

research_guide_writ_of_mandate.doc - Research Guide Writs...

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Research Guide: Writs of Mandate Law Library for San Bernardino County Research Guide, (909) 885-3020 Disclaimer The information in this research guide is intended to assist patrons with their legal research and is in no way intended to replace the counsel of an attorney. Any decisions about how to proceed must be determined by the patron. The library staff can recommend and refer you to online and print resources that will help you find answers to your law- related questions. The staff at the Law Library for San Bernardino County cannot explain or interpret the law itself and we are not permitted to give legal advice. What is a writ of mandate? A writ of mandate is a document filed with a court to compel a government body, official, corporation, or individual to perform a duty it is required to perform, or allow a lawful right to be exercised. See California Code of Civil Procedure § 1085 , . In what types of situations is a writ of mandate filed? Writs of mandate are usually filed in one of two types of situations. First, a writ of mandate can be filed with an appropriate superior court to challenge an administrative action or decision by a government agency. Second, a writ of mandate can be filed in an appellate court to challenge an interim (i.e., non-final) order by the superior court. 1 What type of writ of mandate is appropriate for my situation? Writs of mandate come in different types depending upon the situation. Different rules govern the different types of mandate. They include the following: Administrative Mandamus 2 . When a writ challenges a decision made by a government agency at a court-like administrative hearing, the proper writ of mandate is the administrative mandamus. See California Code of Civil Procedure § 1094.5 . For administrative mandamus to apply, the hearing must have been required by law, evidence had to have been taken, the taking of evidence had to be mandatory, and the hearing decisionmaker must have had discretion in interpreting the evidence. Traditional or Ordinary Mandate. When a writ challenges a ministerial or rule- making action by a government agency, traditional (also called ordinary) mandate applies. 3 See California Code of Civil Procedure § 1085 . However, depending on 1 Banke, California Civil Writ Practice (4th, 2008). 2 The terms “mandate” and “mandamus” may be used interchangeably and mean the same thing. See California Code of Civil Procedure § 1084. 3 Katosh v. Sonoma County Employees/ Retirement Ass’n (2008) 163 Cal.App.4th 56, 62 n. 4 . 1 of 5
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the situation, a party may be entitled to both administrative and ordinary mandate. 4 Writ of Mandate to an Appellate Court. This type of mandate generally applies when a party seeks to have an appellate court overturn an interim order by a superior court. An “interim order” is an order entered by a court prior to the final order or judgment in the case.
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