NH Law About... Writs of Mandamus

Introduction to... Writs of Mandamus

Posted February 15, 2017.

How would you …  

   require a town to schedule a special election?

   compel a county attorney to turn over records?

   direct an administrative agency to enforce statutes?

   order the Governor and Council to immediately appoint a Commissioner?

   require a planning board to vote on a warrant article?

   compel the commissioners of a village district to adjust owners' water rates?

   order a District Court to provide court-appointed counsel to a defendant?

   require a Superior Court to turn over information and evidence?

   require the Secretary of State to place a question on a state election ballot?

   require the President of the NH Senate to act as Governor during the Governor's illness?

The defendants are from different levels and branches of government. The plaintiffs are private citizens or government entities or corporations. The actions being requested are different. But all these cases have at least one thing in common:  somewhere along the line a plaintiff filed a petition for a writ of mandamus and asked a New Hampshire court to require/compel/direct/order the defendants to do something. Very few of those petitions succeeded, but this ancient common law writ that came to us from England, now written into statutes, is still alive and well in New Hampshire. 

“Mandamus” is a Latin word which means “we command.”  The writ of mandamus is one of four "extraordinary" writs used in New Hampshire. The writs are called "extraordinary" because the courts only issue them when exercising "unusual or discretionary" power to grant special, or extraordinary, remedies or relief. A writ of mandamus is filed in court to compel action which is required by law and there are no other adequate alternatives for relief.  (It's more complicated than that, of course, so we suggest that you read Chapter 38, Part C of Wiebusch on Civil Practice and Procedure which gives excellent, detailed information about the writ of mandamus in New Hampshire and includes references to many New Hampshire cases.)  The N.H Supreme Court and the N.H. Superior Courts have statutory authority (RSA 490:4 and RSA 491:7) to issue writs of mandamus when appropriate and there are court rules that prescribe how the writs are brought.  Follow the links below to find these sources. 

At the law library, we are occasionally asked how to find a sample writ of mandamus. Although there are many forms on the New Hampshire Judicial Branch website, there is no fill-in-the-blank form for this. Wiebusch describes the requirements for the petition and we've linked to one example below, but to find more you will need to look at supreme or superior court case files - most of which are not freely available online. Weibusch lists many New Hampshire cases involving writs of mandamus. Choose some of the most recent and contact the appropriate courts to find out how to look at copies of the files.

Please remember that this guide is for information purposes only and is not comprehensive. It is intended as a starting point for research, to illustrate the various sources of the law, and to provide guidance in their use. NH Law About ...  is not a substitute for the services of an attorney.   


Read about... Writs of Mandamus

WEBSITES

2010-0349 Petition for Writ of Mandamus (example)  GO>

Link verified on: February 15, 2017

Legal Dictionary. Writ of Mandamus

Link verified on: February 15, 2017

This website is not specifically about NH law, but provides a general introduction to writs of mandamus.   GO>

Superior Court Locations  GO>

Link verified on: February 15, 2017

NH Supreme Court. Request to Review File  GO>

Link verified on: February 15, 2017


PRINT

Wiebusch on New Hampshire Civil Practice and Procedure / by Gordon J. MacDonald. Newark, N.J.: Matthew Bender, LexisNexis, 2014. 4th ed.  GO>

Link verified on: February 15, 2017

Supreme Court practice : for practice in the Supreme Court of the United States. Bloomberg BNA, [2013]. 10th ed.

Introduction to the Supreme Court -- Jurisdiction to review decisions of federal courts -- Jurisdiction to review decisions of state courts -- Factors motivating the exercise of the Court's certiorari appellate jurisdiction -- The manner in which the Court determines to take jurisdiction -- Procedure in connection with petitions for certiorari -- Procedure on appeals -- In forma pauperis proceedings -- Certified questions -- Original cases -- Extraordinary writs -- Preparing and printing the joint appendix -- The briefs on the merits -- Oral argument -- Petitions for rehearing and final disposition of cases -- Motions and applications -- Stays, injunctions, and bail -- Capital cases -- Justiciability : standing, mootness, and abatement -- Admissions to the bar and disbarment.   GO>

Link verified on: February 15, 2017

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Read the law about... Writs of Mandamus

NEW HAMPSHIRE STATUTES

RSA 490:4. Supreme Court. Jurisdiction.  GO>

Link verified on: February 15, 2017

RSA 491:7. Superior Court. Jurisdiction   GO>

Link verified on: February 15, 2017

Find it in a Library ... New Hampshire Revised Statutes Annotated

Link verified on: February 22, 2017

Find the New Hampshire statutes in print at libraries throughout the state.   GO>

Learn About New Hampshire Statutes: New Hampshire statutes are the laws of the State of New Hampshire as enacted by the New Hampshire General Court. GO>
 

NEW HAMPSHIRE CASES

111 N.H. 291 (1971). Godfrey v. Godfrey

Link verified on: February 15, 2017

Mandamus is an extraordinary remedy which is granted only when there is clear and apparent right to the relief requested and when no other adequate relief is available. This court will not interfere with the ordinary process of appeal unless there is a clear case of necessity   GO>

118 N.H. 435 (1978). Guarracino v. Beaudry

Link verified on: February 15, 2017

This court clearly has the power to issue writs of mandamus in proper cases. To enforce the performance of a ministerial duty, a mandamus will lie against any officer of the government, even the chief executive officer. Our cases also allow the writ to issue to overturn the result of the discretionary performance of an official function when an official exercises his discretion arbitrarily or in bad faith.   GO>

127 N.H. 593 (1986). Rockhouse Mt. Property Owners Assoc. v. Town of Conway

Link verified on: February 15, 2017

Mandamus is an extraordinary writ that may be addressed to a public official, ordering him to take action, and it may be issued only when no other remedy is available and adequate. When an official is given discretion to decide how to resolve an issue before him, a mandamus order may require him to address the issue, but it cannot require a particular result   GO>

Find it in a Library ... New Hampshire Reports

Link verified on: February 22, 2017

Find the New Hampshire Reports in libraries throughout the state.   GO>

Learn About New Hampshire Cases: New Hampshire case law consists of the published opinions of the New Hampshire Supreme Court. GO>
 

NEW HAMPSHIRE COURT RULES

N.H. Superior Court Rule 4. Commencement of Action. Preliminary Process  GO>

Link verified on: February 15, 2017

N.H. Supreme Court Rule 10. Appeal from Administrative Agencies  GO>

Link verified on: February 15, 2017

N.H. Supreme Court Rule 11. Petition for Original Jurisdiction  GO>

Link verified on: February 15, 2017

Learn About New Hampshire Court Rules: Follow this link to learn how to search court rules online as well as what court rules are and how they're published. GO>
 

FOR MORE HELP ...

New Hampshire Law Library

Link verified on: February 22, 2017

The state's only public law library. Call, email, or visit, we'll be happy to help.   GO>


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