Search
  • Justin Hein

Ministerial Acts

Learn about the term ministerial acts, a definition that determines whether a traditional writ of mandate may be an avenue for relief.


A ministerial act has been defined as one that a public officer is required to perform under a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority. Basically, if all discretionary precursors to an official act have been completed, and all that remains to be done is the act itself, courts may compel a municipal official to perform such action.



How can one compel?

A writ of mandamus (also known as traditional mandate, by way of California Code of Civil Procedure, sections 1084-1086) is used to compel a public official to perform a ministerial act that the official has refused to perform, or to vacate the result of a public official's act that was performed arbitrarily or in bad faith. The court issues a writ of mandamus only where the petitioner has an apparent right to the requested relief and no other remedy will fully and adequately afford relief. The purpose of mandamus is to compel the performance of a single ministerial act; it is not usually the appropriate remedy where the relief sought is a general course of official conduct or a series of actions


Thus, one seeking a writ of mandamus against a municipality or municipal official has a heavy burden. The petitioner must establish:


  1. a clear right to relief (e.g. the existence of a ministerial function under the law);

  2. that a corresponding duty exists in respondents (e.g. the respondent is the party required to perform the ministerial function);

  3. the lack of any other adequate remedy at law;

  4. the petitioner has demanded performance of the duty by the respondent; and

  5. the respondent has refused to so perform.

An example of a party attempting this, albeit unsuccessfully, is the at-issue dispute in the famous U.S. Supreme Court case, Marbury v. Madison , 5 U.S. 137 when William Marbury attempted to have the U.S. Supreme Court issue a writ of mandamus to force President Thomas Jefferson to install Mr. Marbury as a justice of the peace. Oh, and happy birthday to it as it was decided 217 years ago today!


Discretionary?

Functions held to be non-ministerial include taxing, issuing bonds, appointing municipal employees, inspecting properties for land use violations, passing or repealing ordinances, enforcing ordinances, erecting public improvements, and issuing licenses.


So, a writ of mandamus would not be the appropriate channel for seeking relief from or an order compelling compliance with these functions.

0 views

© 2019 Hein, Esq.       418 B Street, 4th Floor, Santa Rosa, CA 95401        707-921-3913        justin@heinesq.com

  • Twitter Clean
  • LinkedIn Clean