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What is the application of a "writ of mandate" towards
exhausting all available administrative (etc.) remedies?
In particular, can it apply to an administrative outcome
{decline to remove, or agree to remove, but
does in fact not remove} a speech code on
a university campus?
(ditto for {discrimination complaint, grade appeal})
(I am aware of what a writ of mandate is very generally,
but was not aware it could apply to other than,
for example, city officials and so on.)
Thanks...
[Note: plaintiff has withdrawn lawsuit without prejudice
prior to 1st demurrer hearing. Might as well come in with
stronger case.]
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What is the application of a "writ of mandate" towards
exhausting all available administrative (etc.) remedies?
Surely you refer to a "Writ Of *Mandamus*"
In particular, can it apply to an administrative outcome
{decline to remove, or agree to remove, but
does in fact not remove} a speech code on
a university campus?
Not clear on what you're asking here, but *Generally,* a Writ Of Mandamus
commands a Gov't Entity/Agency/Agent to Observe/Perform a Statutory Duty...
Mandatory Due Process... or Other Constitutional Requirement...
(ditto for {discrimination complaint, grade appeal})
(I am aware of what a writ of mandate is very generally,
but was not aware it could apply to other than,
for example, city officials and so on.)
Thanks...
[Note: plaintiff has withdrawn lawsuit without prejudice
prior to 1st demurrer hearing. Might as well come in with
stronger case.]
[SHRUG]
I'm just Not Following...
Naughtius "What Th'Hell IS That Thayng??" Maximus
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In article <Si7Bc.75606$e02.58734@newssvr29.news.prodigy.com>, z says...
What is the application of a "writ of mandate" towards
exhausting all available administrative (etc.) remedies?
In particular, can it apply to an administrative outcome
{decline to remove, or agree to remove, but
does in fact not remove} a speech code on
a university campus?
(ditto for {discrimination complaint, grade appeal})
(I am aware of what a writ of mandate is very generally,
but was not aware it could apply to other than,
for example, city officials and so on.)
Thanks...
[Note: plaintiff has withdrawn lawsuit without prejudice
prior to 1st demurrer hearing. Might as well come in with
stronger case.]
Your question is kind of murky, so here's an example that may answer what you
may be asking:
Suppose you apply to your state's department of education for a teaching
license. You meet all the qualifications but they deny your application because
they say you are a convicted felon. You find that the convicted felon is
someone else with the same name as you.
If the department of education has an appeals process, you must exhaust your
remedies with that body's administrative process before you may proceed to
court. The department is the public body authorized by law to determine whether
to issue a license and that is where you must first proceed if it has some sort
of appeals process.
Suppose you go through the appeals process at the department and the hearing
officer sees that you are definitely not a convicted felon but still refuses to
issue your teaching permit.
You may then appeal to the court. Depending on your state, the court may
proceed with a new hearing (de novo) or may be limited to reviewing the
department of education's ruling. In either case, if the court finds that there
is no reason why your license should be denied, the court would likely find the
denial of your license to be arbitrary and capricious. The court would issue a
writ of mandamus ordering the department to issue the license.
A writ of mandamus is an order from the court requiring a person or agency to
perform some act that they are usually required by law to do but have not done.
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On Sat, 19 Jun 2004 21:57:15 -0600, "Naughtius \"The Twinkies Made Me
Do It\" Maximus" <globbo@BUTTFUCKJesus.org> wrote:
Surely you refer to a "Writ Of *Mandamus*"
That's it: California, which is the OP's state, uses "Writ of Mandate"
for what the Feds would call "Writ of Mandamus" (CCP 1084). A Writ of
Mandate is (among other things) a decree directing the holder of some
office, typically a government officeholder, to do some act which is
required by law (CCP 1085).
An important use of the Writ of Mandate in California is to cause a
court to review an administrative due process hearing (such as, I'm
guessing from the OP's previous postings, a state university grievance
hearing) (CCP 1094.5).
In particular, can it apply to an administrative outcome
{decline to remove, or agree to remove, but
does in fact not remove} a speech code on
a university campus?
It should be, so long as the other conditions obtain: the
administrative decision must be final (and a final decision is one
from which there is no further recourse, and any deadline for
reconsideration has passed), and the various deadlines in CCP 1094.6
are met.
So a writ of mandate would only apply once the OP's recourse within
the university's administrative system had been exhausted: a court
won't review an agency's decision under a writ of mandate until the
decision is final.
--
Not a lawyer,
Chris Green
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On Sun, 20 Jun 2004, "z" <z@y.x.invalid> wrote:
What is the application of a "writ of
mandate" towards exhausting all available
administrative (etc.) remedies?
It's your state's (Calif.'s) codified version of part of the former
common law "writ" of "mandamus" as amplified/modified by some forms of
review which in some ways (depending on the particular nature of the
tribunal and proceeding at issue) expands on the common law principles
governing "mandamus" (in the common law sense) as such.
Your question is thus too broad to answer in general terms.
Suffice here to say that if you're referring to your grievance against
a Calif. state owned/operated post-secondary educational institution,
the procedure to which you refer is that generally the only means to
review student claims subject to the institution's disciplinary and
educational policy grievance resolution procedures.
In particular, can it apply to an administrative
outcome {decline to remove, or agree to remove,
but does in fact not remove} a speech code on
a university campus?
You aren't asking an "In particular" question.
The "particular[s]" that will apply depend on the particular facts at
issue, which, however, you've never clearly stated in your many
postings.
Suffice here to say that, "No" might be an answer, if there were a
facial attack as against a speech code which per se violated the
federal or state constitutional "free speech" protections or, perhaps,
clearly violated some a statutory prohibition, whereas "Yes" might
(and very likely: would) be the answer, depending on what (if any) the
particular institution's said "code" and also its prescribed grievance
resolution machinery may be, and on whether the dispute turns (or,
anyway, can and should clearly and fairly be resolved) on some
question of fact that does not require deciding whether the "code" in
question is facially unconstitutional.
So, in other words: Maybe, depending on ALL the specific operative
facts as each of the parties contends (or, if what they actually
contend is not know, at least on what, fairly stated, the factual
contentions probably would be).
(ditto for {discrimination complaint, grade appeal})
The colleges/universities which comprise the Calif. state
owned/operate system have pretty clearly stated student
griveance/review procedures and, for the most part, like most others
dealing with comparable issues in other parts of the country, the
Calif. (state and federal) courts have a very clearly stated and
almost always implemented policy of "deferral" such that they attempt
wherever possible within otherwise applicable constitutional/statutory
law to avoid interfering with what they typically refer to as
"internal processes" (especially of higher-level) educational
institutions, including (especially) in the assignment of grades and,
relatedly, in faculty tenure grant/denial disputes, as generally (and
for also many usually very good reasons) they should.
A slogan, e.g., "I've been 'discriminated' against!" generally will
not and should not suffice to avoid "exhaustion" procedures specified
in whatever is the institution's catalog or "student handbook" or like
document to which students have agreed (or, as the case may be, will
be deemed to have agreed) and also to "deferral" such policies
(including in the absence of other "exhaustion" procedures if the
dispute is essentially one of "educational policy" that is not
facially unlawful).
(And note, too, that almost all assignments of grades inherently
entail some element of "discrimination" and yet your use of
"discrimination" above does not say [nor even suggest] discrimination
that is _unlawful.)
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