What is a State Petition for a Writ of Mandate?

A petition for a writ of mandate, also called a writ of mandamus, is an important tool in preserving one’s rights because it can be used to compel a public official to perform their lawful duties. 

However, its practical use is restricted to a fairly narrow area of use.  Almost all challenges to criminal convictions, civil commitments, or prison and parole policies and actions can be brought through a petition for a writ of habeas corpus.  Consequently, since a petition for a writ of mandate is procedurally more complicated, people who are in prison or on parole should almost always file a petition for a writ of habeas corpus petition rather than a mandate petition. 

However, in some circumstances, a petition for writ of mandate is better, particularly when the petitioner is someone other than a person in prison or on parole, when the issue is applicable to many similarly-situated people, when a statute specifically states that mandate is the proper means of review, or when there is no other adequate legal means for the petitioner to get relief.

Petitions for writ of mandate are also used to challenge courts’ decisions in criminal case proceedings before the trial is held, such as challenging denial of motions to suppress evidence, to dismiss charges, or to disqualify a particular judge. See, e.g., Penal Code § 1538(i) (challenge to unlawful search and seizure); Penal Code § 999a (challenge to preliminary hearing finding of probable cause); Code of Civil Procedure § 170.3(d) (challenge to disqualify judge); Owens v. Superior Court (1980) 28 Cal. 3d 238, 168 Cal. Rptr. 466 (dismissal of charges due to violation of speedy trial right). 

Mandate can also be used to seek various types of relief after a criminal case is closed, such as seeking a court order for the return of property wrongfully seized or kept by the police. Espinosa v. Superior Court (1975) 50 Cal. App. 3d 347, 123 Cal. Rptr. 448; Flack v. Municipal Court (1967) 66 Cal. 2d 981, 983-984, 59 Cal. Rptr. 872.

Anyone who has been denied a clear legal right may file a petition for a writ of mandate.  There is no “in custody” requirement (as there is for habeas petitions), so a person can file a mandate petition challenging a state action even they are not currently in prison or a state hospital, or on parole or other supervision, based on the relevant charge, conviction, or civil commitment. People v. Picklesimer (2010) 48 Cal. 4th 330, 339, 106 Cal. Rptr. 3d 239 (mandate petition to challenge constitutionality of sex offender registration by person no longer in custody); Harris v. Superior Court (2017) 14 Cal. App. 5th 142, 222 Cal. Rptr. 3d 192 (mandate petition seeking to force court to appoint counsel to represent person in appeal of restitution order in a case for which he was not in custody); Netzley v. Superior Court (2008) 160 Cal. App. 4th 348, 72 Cal.Rptr.3d 773 (mandate petition by person in Oregon prison seeking dismissal of California charges due to claim that California failed to comply with interstate detainer laws).

Furthermore, a petitioner need not have any personal interest in the action if the matter concerns a public right and the aim of the petition is to force a public official to perform their official duties.  

Therefore, any citizen can seek to enforce such a right. Board of Social Welfare v. County of Los Angeles (1945) 27 Cal. 2d 98.  This allows individual citizens and advocacy groups to seek to challenge and enforce laws affecting other groups of people. Legal Services for Prisoners with Children v. Bowen (2009) 170 Cal. App. 4th 447, 87 Cal. Rptr. 3d 869 (challenging broad denial of voting to all people convicted of felonies; League of Women Voters v. McPherson (2006) 145 Cal. App. 4th 1469, 52 Cal. Rptr. 3d 585 (seeking to compel director of elections to accept voter registrations for people in jails who were qualified to vote); American Friends Service Committee v. Procunier (1973) 33 Cal. App. 3d 252, 109 Cal. Rptr. 22, disapproved on other grounds in Engelmann v. State Board of Education (1991) 2 Cal. App. 4th 47, 3 Cal. Rptr. 2d 264 (petition to force the CDCR to comply with legal procedures for enacting new regulations).

To obtain a writ of mandate, the petitioner must show (1) there is no other “plain, speedy, and adequate legal remedy, in the ordinary course of law”; (2) the respondent has a “clear, present, and usually ministerial duty” (a duty the law requires the respondent to do); and (3) the petitioner has a “clear, present, and beneficial right” to have the official perform that duty.

A petitioner may file a petition for writ of mandate against any government branch, agency, or official, including courts and prison or parole officials. Code of Civil Procedure §§ 1085-1086; Loder v. Municipal Court (1976) 17 Cal. 3d 859, 863, 132 Cal. Rptr. 464. 

Since habeas corpus is an “extraordinary remedy,” the availability of habeas relief does not necessarily bar a person from bringing a petition for writ of mandate when the issue concerns the failure of a public official to perform a legal duty. Villery v. Department of Corrections and Rehabilitation (2016) 246 Cal. App. 4th 407, 416, 200 Cal.Rptr.3d 896.

However, a petition for writ of mandate will be denied if there is no legal duty that can be enforced. See, e.g., Wasko v. California Department of Corrections (1989) 211 Cal. App. 3d 996, 1005, 259 Cal. Rptr. 764 (writ denied where law did not require that diagnostic study be prepared by psychologist rather than correctional counselor).  

Sometimes a person will file a habeas petition that should have been brought as a mandate petition or vice versa. Courts can exercise discretion to overlook the improper title and deem the wrongly-filed petition to be the correct type of petition. Berman v. Cate (2010) 187 Cal. App. 4th 885, 114 Cal. Rptr. 3d 49; In re Stier (2007) 152 Cal. App. 4th 63, 82-83, 61 Cal. Rptr. 3d 181; Escamilla v. California Department of Corrections & Rehabilitation (2006) 141 Cal. App. 4th 498, 511, 46 Cal. Rptr. 3d 408.

We wish to acknowledge the Prison Law Office in making this article possible, as much of the information in this article is repeated from their treatise, “California Prison and Parole Law Handbook.”  We thank them.