Requesting a Writ of Mandamus Essay Sample

9 September 2017

I. Why do we desire a Writ of Mandamus?
In general. a writ of mandamus can be described as an order. “commanding the public presentation of an act that the jurisprudence requires as a clearly defined responsibility. originating from an office. trust. or station. ” 55 C. J. S. Mandamus § 1. Furthermore. a writ of mandamus may be issued to command a nongovernmental organic structure. such as a medical licensing board. to execute a specified responsibility imposed by jurisprudence. and can besides be invoked to command crying maltreatments of discretion. Id. For illustration. in some cases. upon judicial reappraisal. if a tribunal is satisfied that the applier is entitled to a licence. it may order the licence issued notwithstanding the boards denial of the licence. 70 C. J. S. Physicians and Surgeons § 38. In New Jersey. “Prior to the acceptance of the 1947 Constitution. ‘persons aggrieved by action or inactivity of … administrative bureaus could seek judicial alleviation by using for one of the prerogative writs – certiorari. mandamus. quo warranto and prohibition. ” Jeffery S. Mandel. New Jersey Appellate Practice 141 ( GANN. 2008 ) .

However. such writs were abolished by the 1947 Constitution in an effort to simplify the process with respect to prerogative writs. Id. at 142. At that clip. prerogative writs were superseded and consolidated into one action. now called actions “in stead of prerogative writs. ” Id. ; 19 N. J. Prac. . Skills And Methods § 4:1. § 4:2 ( Rev. 3d erectile dysfunction. ) . State boards of medical testers. besides known as medical licensing boards. are province bureaus subject to province administrative processs. 61 Am. Jur. 2d License to Practice § 17. Therefore. the Acts of the Apostless and determinations of these boards are governed by province administrative process Acts of the Apostless. which normally provide for judicial reappraisal. Id. § 62. § 103. Mandamus. in general. is a proper redress to reexamine Acts of the Apostless and determinations of an administrative bureau. and more specifically. to oblige action by a licensing board with regard to the issue of professional licences. 52 Am. Jur. 2d Mandamus § 203 ; see besides 55 C. J. S. Mandamus § 144. § 156. § 239. II. What does one demand to demo in order to acquire it?

In New Jersey. when a party seeks judicial reappraisal of an action or in action of a province bureau. the tribunal considers multiple extra factors in finding whether or non to allow reappraisal. 37 N. J. Prac. . Administrative Law And Practice § 7. 2 ( 2d ed. ) . These factors include: “ [ 1 ] whether the agency’s action is reviewable under the applicable jurisprudence ; [ 2 ] whether the suppliants or plaintiff in errors have sufficient standing to raise their challenges ; [ 3 ] whether they have selected the proper respondents ; [ 4 ] whether primary legal power precludes review ; [ 5 ] whether the exhaustion of administrative redresss philosophy has been dependably observed ; [ 6 ] whether the challenged action is mature for reappraisal ; and eventually [ 7 ] whether the proper forum or reappraisal signifier has been selected. ” Id. New Jersey’s Administrative Procedure Act does non supply for judicial reappraisal. but alternatively New Jersey’s fundamental law allocates relief from bureau actions to the Superior Court under the regulations of the Supreme Court. which provides for judicial reappraisal of all concluding determinations of province and local administrative bureaus.

Id. § 7. 3. However. there is a general regulation that a mandamus action is the proper redress merely where the act or responsibility of the province bureau is strictly ministerial. and is improper where the action of a province board is discretional. 55 C. J. S. Mandamus § 72. As will be discussed in more item below. the granting or denial of a medical licence is non a ministerial map. but instead a extremely discretional undertaking. 70 C. J. S. Physicians and Surgeons § 14. However. there is an exclusion to this regulation when there is an maltreatment of discretion by the board in inquiry. 55 C. J. S. Mandamus § 73. Even though. the issue of a medical licence is a affair of discretion. “mandamus may publish where the act of the officer or board vested with discretion is freakish. arbitrary. or unreasonable or an maltreatment of discretion. Id. “Abuse of discretion occurs where a public officer exercises discretion based on personal. selfish. or deceitful motivations. ”

Id. The board or other organic structure must handle all appliers for licences reasonably. and. after an applier has qualified and has passed the prescribed scrutiny. he or she can non. in the absence of an inauspicious screening. be deprived of a licence or certification. 70 C. J. S. Physicians and Surgeons § 32. It is likely that the claim of the new M. D. in inquiry. that she is clearly qualified. but wasn’t granted her medical licence due to several members of the Board being personal enemies with her male parent. is the type of “personal. selfish. or fraudulent” behaviour that qualifies as an maltreatment of discretion under the exclusion. Therefore. this first component is likely satisfied. III. Which division of the New Jersey Superior Court is the most appropriate forum?

As mentioned above. the last component a tribunal considers when finding whether to allow reappraisal is whether the proper forum has been selected. Rule 2:2-3 ( a ) was promulgated by the Supreme Court pursuant to its constitutional grant of authorization to apportion the “in lieu” legal power among and between the divisions of the Superior Court by regulation: ‘every proceeding to reexamine the action or inactivity of a local administrative bureau would be by ailment in the Law Division … and that every proceeding to reexamine the action or inactivity of a province administrative bureau would be by entreaty to the Appellate Division. ” 19 NJPRAC § 4:15 ; Jeffery S. Mandel. New Jersey Appellate Practice 66. 142 ( GANN. 2008 ) . “Thus. it has been held that when a province administrative bureau has allegedly failed to execute maps that it is required by legislative act to execute. the proper method of challenge is by resort to the Appellate Division. non for any determination on the virtues. but by manner of continuing in nature of mandamus to oblige action by the bureau. ” 40 N. J. Prac. . Appellate Practice and Procedure § 3. 21 ( 2d ed. ) Therefore. the most appropriate forum to register this suit is the Appellate Division of the Superior Court.

IV. Why is this choice of tribunal the most appropriate?
The aforesaid regulations clearly province that judicial reappraisal of a province bureau should be taken to the Appellate Division of the Superior Court. Under the definitional subdivision of the Administrative Procedures Act. N. J. S. 52:14B-2. the New Jersey State Board of Medical Examiners qualifies as a province board for the intents of this action. The Act provides: “ ( a ) ‘State agency’ or ‘agency’ shall include each of the chief sections in the executive subdivision of the State Government. and all boards. divisions. committees. bureaus. sections. councils. governments. offices or officers within any such sections now bing or afterlife established and authorized by statue to do. follow or proclaim regulations or adjudicate contested instances. ” Jeffery S. Mandel. New Jersey Appellate Practice 146 ( GANN. 2008 ) .

Furthermore. judicial reappraisal pursuant to Govern 2:2-3 ( a ) is the sole method of disputing action or non-ministerial inactivity by a province bureau. 19 NJPRAC § 4:15. Like antecedently mentioned. the granting or denial of a medical licence is non a ministerial map. but instead a extremely discretional undertaking. 70 C. J. S. Physicians and Surgeons § 14. A province board may be granted wide powers with regard to licences to pattern medical specialty and may exert a certain step of judgement and discretion in allowing or declining these licences. Id. §30. § 32. “Because of the exclusivity of the redress pursuant to Govern 2:2-3 ( a ) . the declarative judgement action technique is neither available nor appropriate. ” 19 NJPRAC § 4:15.

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