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Reply #3: Remedy: Writ of Mandamus, that is, MAKE THEM respect the [View All]

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no_hypocrisy Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Jan-30-07 12:01 PM
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3. Remedy: Writ of Mandamus, that is, MAKE THEM respect the
Edited on Tue Jan-30-07 12:07 PM by no_hypocrisy
Constitution, Congress, and the law.

http://en.wikipedia.org/wiki/Mandamus

The purpose of mandamus is to remedy defects of justice. It lies in the cases where there is a specific right but no specific legal remedy for enforcing that right. It also lies in cases where there is an alternative remedy but the mode of redress is less convenient, less beneficial or less effectual. Generally, it is not available in anticipation of any injury except when the petitioner is likely to be affected by an official act in contravention of a statutory duty or where an illegal or unconstitutional order is made. The grant of mandamus is a matter for the discretion of the court, the exercise of which is governed by well-settled principles.<7>

Mandamus, being a discretionary remedy, the application for that must be made in good faith and not for indirect purposes. Acquiescence cannot, however, bar the issue of mandamus. The petitioner must, of course, satisfy the Court that he has the legal right to the performance of the legal duty as distinct from mere discretion of authority.<8>

A mandamus is normally issued when an officer or an authority by compulsion of statute is required to perform a duty and which despite demand in writing has not been performed. In no other case will a writ of mandamus issue unless it be to quash an illegal order.

There are essentially three kinds of Mandamus:

Alternative Mandamus: A mandamus issued upon the first application for relief, commanding the defendant either to perform the act demanded or to appear before the court at a specified time to show cause for not performing it.
Peremptory Mandamus: An absolute and unqualified command to the defendant to do the act in question. It is issued when the defendant defaults on, or fails to show sufficient cause in answer to, an alternative mandamus.
Continuing Mandamus: A Mandamus issued to a lower authority in general public interest asking the officer or the authority to perform its tasks expeditiously for an unstipulated period of time for preventing miscarriage of justice.<9>

http://www.lectlaw.com/def2/m079.htm
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