4.4 MANDAMUS AND PROHIBITION
4.401 In General. The common law writs of mandamus and prohibition are governed procedurally by Virginia Code sections 8.01-644 et seq. An application for a writ of mandamus or prohibition must be made by petition verified by oath. 28 The defendant may file a demurrer, an answer on oath, or both; 29 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. 30 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." 31
"Mandamus is an extraordinary remedy employed to compel a public official to perform a purely ministerial duty imposed upon him by law" 32 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." 33 "[T]o be 'adequate,' the legal remedy 'must be equally as convenient, beneficial, and effective as the proceeding by mandamus.'" 34
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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. 35
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. 36
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. 37
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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." 38
Mandamus and prohibition are extraordinary remedies. Neither is awarded as a matter of right, 39 and they "may not be used as a substitute for appeal." 40
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. 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. 41
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
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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." 42
The Opinions of the Court and of the dissenting justices in In re Commonwealth 43 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. 44 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"; 45 and "[a]s with writs of mandamus, it appears that our cases are at odds regarding when a writ of prohibition should not issue because it would undo an act already done." 46
The Supreme Court has frequently repeated all or parts of the following formulation, 47 taken from its 1878 decision in Page v. Clopton: 48
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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-de-termine 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 manda-mus." 49 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 relating to the operation of a public office, and mandamus provides the most convenient and complete relief. 50
Mandamus also has been employed frequently to litigate the constitutionality of state legislation, under Virginia Code section 8.01-653 orits predecessors. 51 ,
Mandamus is not employed only in public litigation, however. In Cattano v. Bragg, 52 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
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through production of documents to a receiver; 53 but it awarded attorney fees for that count, and the Supreme Court affirmed, citing Virginia Code section 13.1-773.1(C). 54
Ordinary standing rules and statutes of limitations apply in mandamus cases. 55
Mandamus is subject to numerous limitations, but it is more likely than prohibition to be useful in a given case. The Supreme Court has held that "[p]rohibition will not lie 'if the court or judge has jurisdiction to enter any order in the proceeding sought to be prohibited.'" 56 In other words, prohibition is available only to challenge the jurisdiction of a court or other official to take any action at all, ministerial or otherwise. 57
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4.402 Discretionary Versus Ministerial Acts.
A. In General. A threshold question in determining whether mandamus is an appropriate remedy is whether the act sought to be compelled is discretionary or ministerial. 58 Simply stated, mandamus may be employed to compel a ministerial but not a discretionary act. "A ministerial act is an act that one performs in obedience to a legal mandate and in a prescribed manner, without regard to his own judgment as to the propriety of the act to be done." 59
B. Virginia Cases. As discussed above in Page v. Clopton, the cases draw a distinction between the ministerial duty of a judge or other official to decide a matter within his or her jurisdiction and the discretionary authority to determine the proper decision. 60 Mandamus will not lie, for example, where the respondent officer or judge is required to "discharg[e] a quasi-judicial duty, weighing conflicting evidence, interpreting law, and applying law to facts." 61
If a lower court fails to act when it is required by statute to do so, the act is ministerial and mandamus will lie. In Carolina, Clinchfield & Ohio Railway v. Board of Supervisors, 62 for example, the Supreme Court awarded
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mandamus to compel a circuit court to review the action of a county board of supervisors as required by statute. In In re Commonwealth's Attorney for Chesterfield County, 63 the court granted mandamus to compel a trial court to impose a mandatory sentence upon a defendant's conviction for use of a firearm in the commission of a felony, construing statutory language stating that the sentence "shall not be suspended" to mean that the trial judge could neither delay imposition of the mandatory sentence nor stay its execution. 64
4.403 The Virginia Freedom of Information Act (FOIA). The Act provides that "[a]ny person . . . denied the rights and privileges conferred by this chapter may proceed to enforce such rights and privileges by filing a petition for mandamus or injunction, supported by an affidavit showing good cause." 65 In Cartwright v. Commonwealth Transportation Commissioner, 66 the court held "that the lack of any reference in this statute to the common law requirement that the petition prove a lack of adequate remedy at law evinces the intent of the General Assembly to eliminate that common law prerequisite...
