Practitioners are sometimes confused about the proper use of two common types of writ procedures: administrative mandamus and traditional (or ordinary) mandamus. Confusion can arise because a state or local governmental agency may sometimes be sued in either traditional or administrative mandamus. The following is a guide to choosing the appropriate writ for your client’s situation.
Administrative mandamus, governed by CCP §1094.5, is a specialized type of mandamus used to review certain administrative and quasi-judicial decisions of the state or a local government. Traditional mandamus, governed by CCP §1085, is used to challenge any governmental abuse of discretion, or failure or refusal to perform a mandatory duty or follow the law.
When considering which writ to use, consider the following:
- Does the law dictate a type of writ review? Check if there is a statute or regulation that governs the substantive area and requires that a specific type of writ be used in challenging the governmental action.
- Analyze the administrative decision. If the decision was legislative in nature (i.e., a formulation of a rule to be applied in future cases), a policy decision, or ministerial in nature, then it is probably reviewable (if at all) by traditional mandamus. By contrast, adjudicatory decisions in which the agency applies existing laws, policies, or regulations in a specific factual context are reviewed by administrative mandamus if the requirements of CCP §1094.5 have been met.
- Have the requirements of traditional mandamus been met? If administrative mandamus is not available, relief by traditional mandamus may be available if all applicable requirements under CCP §1085 are met.
If you still can’t figure out which writ to seek, go for both! If an administrative agency’s action could potentially be challenged by either administrative or traditional mandamus, or if it is unclear which writ is applicable, you should request both writs as alternative remedies in the same petition. Pleading for relief in the alternative is not uncommon and ensures that the court has jurisdiction over the controversy and can issue the appropriate form of relief.
Mandamus is not intellectually complex, but it is often procedurally intricate. Make sure to understand the type of relief you are seeking and ensure that the pleadings and procedures are crafted to accomplish your client’s goal.
For further discussion of the differences between traditional and administrative mandamus, see California Civil Writ Practice, chap 3 (4th ed Cal CEB 2008). For everything you need to know about administrative mandamus, go to California Administrative Mandamus (3d ed Cal CEB 2003) and Handling Administrative Mandamus (Cal CEB Action Guide June 2007).
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