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Mandamus, Prohibition and Certiorari

Mandamus, prohibition and certiorari are extraordinary common law writs that often resemble appeals in that they are based on review of a closed record for error.

Under the common law, an application for a writ of mandamus is an action to require a court, board, corporation or person to perform a non-discretionary duty imposed by law.  It can be used to command a governmental officer to pay a pension or free a prisoner, for example, or to require a corporate officer to allow inspection of books and records by a minority shareholder or to perform other duties required by statute. A writ of prohibition is one that commands a person or tribunal not to do something which he or she is about to do, and has been used to prevent a tribunal from exceeding its jurisdiction.  See Black’s Law Dictionary (8th).

Certiorari is a common-law writ issued by a superior to an inferior court or to some other tribunal or officer exercising a judicial function, requiring the certification and return of the record and proceedings so that the record may be revised and corrected in matters of law. See Black’s Law Dictionary (8th).    The U.S. Supreme Court uses this writ in reviewing most of its cases.

In New York, relief formerly granted under writs of mandamus, prohibition and certiorari is currently available under Article 78 of the Civil Practice Law and Rules.

United States Courts of Appeal are empowered by the All Writs Act, 28 U.S.C. § 1651, to issue writs of mandamus.   In federal district court practice, Rule 81(b), of the Federal Rules of Civil Procedure  provides that relief previously available by mandamus may still be obtained by appropriate action or appropriate motion under the practice prescribed by the Rules.  Orders and relief in the nature of mandamus are also available in federal practice under various statutes and rules pertaining to agencies, including the Administrative Procedure Act, 5 U.S.C.A. § 706.


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