2.16 MANDAMUS AND PROHIBITION
2.1601 In General. The common law writs of mandamus and prohibition are governed procedurally by Va. Code § 8.01-644 et seq. An application for a writ of mandamus or prohibition must be made by petition verified by oath. 508 The defendant may file a demurrer, an answer on oath, or both; 509 and the court may award a writ without further proceedings if "the petition states a proper case for the writ" and the defendant fails to appear or to make a defense. 510 If the application is to the Court of Appeals or the Supreme Court, however, "the procedure shall be in accordance with the provisions of Rules of Court." 511
"Mandamus is an extraordinary remedy employed to compel a public official to perform a purely ministerial duty imposed upon him by law" 512 or to compel an inferior court or a judicial officer to act or refrain from acting where his or her refusal to do so has left a litigant without recourse to ordinary relief. "In doubtful cases the writ will be denied, but where the right involved and the duty sought to be enforced are clear and certain and where there is no other available specific and adequate remedy the writ will issue." 513 "[T]o be 'adequate,' the legal remedy 'must be equally as convenient, beneficial, and effective as the proceeding by mandamus.'" 514
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Before the writ may properly issue, at least three elements must coexist: (1) The existence of a clear right in plaintiff or the relator to the relief sought, * * *. (2) The existence of a legal duty on the part of respondent or defendant to do the thing which the relator seeks to compel, * * *. (3) The absence of another adequate remedy at law, * * *, and, although the co-existence of these elements, standing alone, will not always suffice to justify the issuance of the writ, in the discretion of the court, * * *, the absence of either of these elements will make the issuance of the writ invalid. 515
Prohibition, on the other hand, is the process by which a superior court prevents an inferior court or tribunal having judicial or quasi-judicial powers from exceeding its jurisdiction in matters over which it has cognizance or usurping matters not within its jurisdiction to hear. 516
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The writ of prohibition, as its name imports, is one which commands the person to whom it is directed not to do something which . . . the court is informed he is about to do. If the thing be already done, it is manifest the writ of prohibition cannot undo it, for that would require an affirmative act; and the only effect of a writ of prohibition is to suspend all action, and to prevent any further proceeding in the prohibited direction. 517
Stated simply, a writ of mandamus compels action unlawfully withheld, and a writ of prohibition forbids prospective action that would be unlawful if it occurred; but "neither prohibition nor mandamus will lie to undo acts already done." 518
Mandamus and prohibition are extraordinary remedies. Neither is awarded as a matter of right, 519 and they "may not be used as a substitute for appeal." 520
A writ of mandamus is an extraordinary remedial process, which is not awarded as a matter of right but in the exercise of a sound judicial discretion. Due to the drastic character of the writ, the law has placed safeguards around it.
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Consideration should be had for the urgency which prompts an exercise of the discretion, the interests of the public and third persons, the results which would follow upon a refusal of the writ, as well as the promotion of substantial justice. In doubtful cases the writ will be denied, but [when] the right involved and the duty sought to be enforced are clear and certain and [when] there is no other available specific and adequate remedy the writ will issue. 521
Further, "mandamus never lies where the party aggrieved has another adequate remedy at law, by action or otherwise," only "where there is a clear and specific legal right to be enforced, or a duty which ought to be and can be performed, and where there is no other specific and adequate legal remedy." 522
The Opinions of the Court and of the dissenting justices in In re Commonwealth 523 provide a detailed and scholarly evaluation of the law governing the writs of mandamus and prohibition and the circumstances in which they will or will not be granted. 524 Those opinions also demonstrate that the court has not always followed a consistent path in these areas. As Justice Kinser stated in her dissent, "our jurisprudence is less than consistent in terms of when we use the principle that mandamus does not lie to undo an act already done as the basis for refusing to issue a writ of mandamus"; 525 and "[a]s with writs of mandamus, it appears that our cases are at
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odds regarding when a writ of prohibition should not issue because it would undo an act already done." 526
The Supreme Court has frequently repeated all or parts of the following formulation, 527 taken from its 1878 decision in Page v. Clopton: 528
In relation to courts and judicial officers, [mandamus] cannot be made to perform the functions of a writ of error or appeal, or other legal proceeding to review or correct errors, or to anticipate and forestall judicial action. It may be appropriately used and is often used to compel courts to act where they refuse to act and ought to act, but not to direct and control the judicial discretion to be exercised in the performance of the act to be done; to compel courts to hear and decide where they have jurisdiction, but not to pre-determine the decision to be made; to require them to proceed to judgment, but not to fix and prescribe the judgment to be rendered.
The Court also has stated, at least occasionally, that "the promotion of substantial justice" is "a prerequisite to the issuance of a writ of mandamus." 529 Cases in which mandamus was either granted or denied on the ground that substantial justice would or would not be served, however, are at best few and far between.
[F]or over 200 years," Virginia courts
have held that the writ of mandamus is a proper remedy to restore a public officer who has been unlawfully removed or deprived of that office. . . . Mandamus is a proper remedy because this procedure accords prompt resolution of issues
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relating to the operation of a public office, and mandamus provides the most convenient and complete relief. 530
Mandamus also has been employed frequently to litigate the constitutionality of state legislation, under Va. Code § 8.01-653 or its predecessors. 531
The Supreme Court's four-to-three decision in Howell v. McAuliffe 532 documents an extraordinary exercise of the court's original jurisdiction to issue writs of mandamus in the extraordinary circumstance of a Governor's issuance of a series of executive orders granting blanket restorations of voting rights to convicted felons who had completed their sentences of incarceration and supervised release. The court held that the executive orders were unconstitutional and issued a writ of mandamus to the Department of Elections and its Commissioner, the State Board of Elections and its officers, and the Secretary of the Commonwealth, compelling them to "cancel the registration of all felons who have been invalidly registered" under the executive orders; to "'[r]equire the general registrars to enter the names of all registered voters into the [voter registration] system and to change or correct registration records as necessary,' Code § 24.2-404(A)(2), by refusing to register anyone whose political rights have purportedly been restored" by the executive orders "and by canceling the registration of anyone who has registered pursuant to such orders"; and granting other related mandatory relief. 533 (The dissenting Justices did not challenge the propriety of the remedy. Justices Powell and Goodwyn argued only that the petitioners lacked standing and that the majority's constitutional analysis was erroneous, and Justice Mims argued only the issue of standing.)
Mandamus is not employed only in public litigation, however. In Cattano v. Bragg, 534 a dissenting minority shareholder of a small, closely held corporation sought a writ of mandamus to vindicate her statutory right to inspect and copy corporate records. The trial court ultimately did not submit that count to the jury, finding that the same effect had been accomplished through production of documents to a receiver; 535 but it awarded attorney fees
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for that count, and the Supreme Court affirmed, citing Va. Code § 13.1-773.1(C). 536
Ordinary standing rules and statutes of limitations apply in mandamus cases. 537 But again, the Howell v. McAuliffe 538 decision illustrates that what otherwise might appear to be ordinary, settled rules can become controversial in a hotly contested case. The plaintiffs were the Speaker of the House of Delegates, the Majority Leader of the Virginia Senate, and four other registered voters. The court's majority emphasized that "Virginia law, not federal law, governs every aspect of our decision" 539 and "conclude[d] that each petitioner, as a Virginia registered voter planning to vote in the 2016 General Election, is directly affected by the allegedly unconstitutional expansion of the statewide electorate and has standing to challenge the Executive Order and respondents' registration of allegedly unqualified voters." 540 The majority distinguished cases holding that a citizen or taxpayer does not have standing to seek mandamus relief unless he or she "can demonstrate a direct interest, pecuniary or otherwise, in the outcome of the controversy that is separate and distinct from the interest of the public at large" 541 (a "particularized injury") 542 on the ground that "[e]very qualified voter (though not every member of the general public) suffers the same vote-dilution injury." 543
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Justice Powell (joined by Justice Goodwyn) and Justice Mims dissented on the issue...
