Getting Writs Right

Writs are formal written commands developed in English common law more than a thousand years ago. Despite the antiquated Latin terminology, when properly understood writs provide a critical avenue for immediate and expeditious review of matters that cannot await plenary appeal. Extraordinary writs are not uncommon in most jurisdictions, though their specific functions are often misunderstood. Among the most commonly misconstrued writs are mandamus and quo warranto.

Quo warranto translates to “by what authority,” and a petition requesting this writ seeks a determination of whether a state officer improperly exercised a power or right derived from the state. Mandamus, on the other hand, translates to “we command” and seeks to compel performance when the petitioner has a clear legal right to the requested action, the state officer has an indisputable legal duty to perform that action, and no other adequate remedies are available.

Although strictly addressing Florida jurisprudence, the Florida Supreme Court, in Richardson v. Secretary, Florida Agency for Health Care Administration, recently provided helpful clarification on the limited scope of mandamus and quo warranto. In Richardson, the petitioner alleged that executive officers were unlawfully interfering with a ballot initiative in violation of a state criminal statute. These officers, however, did not lack the authority to issue public statements about a pending constitutional amendment. As a result, the only issue was whether these actions ran afoul of a statute criminalizing political influence over an election. The court held that quo warranto was inappropriate because the writ does not enable the private enforcement of a criminal statute. The court similarly reasoned that mandamus was inappropriate because the petitioner was challenging a fundamentally discretionary exercise of executive power and, given the existence of statutes authorizing criminal prosecution and civil enforcement, other adequate remedies were available.

Moreover, as discussed by the concurrence in Richardson, there is a trend toward anchoring quo warranto in its common law origins. Practitioners in conservative jurisdictions will have the greatest success when their petitions examine historical sources connecting the requested relief to the traditional scope of the extraordinary writs. Richardson is a stark reminder that appellate courts will strictly construe extraordinary writs and deny remedies when the requested relief goes beyond the current contours of existing precedent.

Tips and Takeaways

• Several jurisdictions have rules providing that, even if a party seeks an improper remedy, the cause must be treated as if the proper remedy had been sought. Nonetheless, an appellate court is much more likely to grant extraordinary relief when you properly invoke the correct remedy.
• Anticipate the trend of recent decisions in your jurisdiction addressing extraordinary writs — be it restrictive or expansive. A successful petition will request relief that aligns with the court’s current and anticipated jurisprudence.