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Opinion: Mandamus and certiorari: We need new rules

Every solution breeds new problems. To its credit, the Court of Appeals has been reviving old solutions, mandamus and common law certiorari, for clients and lawyers who litigate against Maryland state and local administrative agencies. These ancient writs answer an old problem: how to invoke judicial review when the county council and/or the legislature have failed to provide for review or have even tried to forbid it. In Bucktail v. Talbot County, 352 Md. 530, 723 A.2d 440 (1999), probably the most important recent administrative law case for various reasons, and in Board of License Comm’rs v. Corridor Wine, 361 Md. 403, 761 A.2d 916 (2000), the court has not only reiterated the availability of these remedies, but has declined an invitation clearly to favor one over the other. Mandamus and certioriari, then, are the renewed solutions (if you don’t like what the government has done). The new problem, though, is that neither you nor your adversary nor the court may have much of an idea what happens next procedurally once you invoke these solutions.Before Bucktail and Corridor Wine, for most of us, certiorari was something associated exclusively with appellate courts, and mandamus was a quaint writ whose exact purpose we forgot after taking the bar exam. Some of us vaguely knew that in federal practice mandamus had been rolled into the category of mandatory injunctions back in 1937, when Rule of Civil Procedure 81(b) was passed. Indeed, a few years ago, the Rules Committee contemplated following suit, and eliminating mandamus in Maryland. Not surprisingly, the court rules associated with these remedies had been allowed to wither on the vine. But now that mandamus and original jurisdiction certiorari — that is, certiorari in the Circuit Court — are clearly off the endangered species list, we have the writs but not the rules.Out of synchOf course we do have some Rules: 7-301 for certiorari and 15-701 for mandamus. But they are definitely not how-to kits. Worse, they are procedurally out of snych with each other.A bit of background. Mandamus is traditionally described as a way to force government officials to take non-discretionary actions they have failed to take, or to refrain from actions they have no discretion to take. Original or common law certiorari has been a way for Circuit Courts to conduct review of the actions of “inferior” tribunals (both lower courts like District or Orphans’ Courts, and administrative agencies which have taken final action) where it is alleged that the tribunals have acted in excess of jurisdiction, or unconstitutionally.

We need to rewrite the rules so that they become predictable and comprehensible enough to be relied upon as the Court of Appeals contemplates.

Effectively, as the Corridor Wine court observed, as applied to agencies, these two tests are about the same, and the essence of the cases is identical. (Corridor Wine did limit certiorari to review of final agency action, and may have cut off consideration of subject matter jurisdiction even upon such review.)Certiorari procedure is bedeviled with unanswered questions. A “petition” for certiorari gives a court three choices: issuing a show-cause order, issuing the writ itself, or dismissing the petition “if the court determines from the petition that it lacks jurisdiction.” Rule 7-301 is silent on whether the agency may respond absent a show-cause order. The Rule does not say whether, should a response be filed, the petitioner has the right to reply. The Rule does not even begin to attempt to harmonize itself with Rule 2-311(f), which (assuming it applies to extraordinary writ proceedings) seems to guarantee that a Petitioner requesting a hearing cannot be thrown out of court even if the court determines from the petition without a hearing that it lacks jurisdiction. If the writ is granted, then the administrative records pertaining to the petition are delivered (apparently) to the court. There is no other discovery contemplated. In short, certiorari looks a bit like conventional record review minus the reciprocal briefing, and minus the safeguards to assure that the complaining party receives the record before he or she has to argue it.There are as many question marks with mandamus. After a mandamus complaint is filed, the agency has a clear right to file an answer. There seems to be no clear indication whether the court has the power to dismiss or rule against the complaint by summary means, although the court may grant the writ in summary fashion. And unlike the record review contemplated under the certiorari procedure, under mandamus the plaintiff (but perhaps not the agency) enjoys the right to introduce evidence de novo. This gives rise to the unanswered question whether discovery is also permitted after the filing of a mandamus petition. And of course, if discovery is permitted, it remains to be seen whether discovery is permitted in that area which traditionally the Court of Appeals has most protected, probing the private deliberations of the decision-maker.Not surprisingly, when a careful lawyer, eager to cover all bases, files both a petition for certiorari and a complaint for mandamus, the procedural confusion gets worse. Can the court use the answer filed in the mandamus procedure to determine whether a certiorari petition lacks all merit on its face? What is the implication of a request for a show-cause hearing for the power of the court to dismiss a mandamus complaint? If there is discovery under mandamus, can the products of discovery be used to make a case for certiorari? The problems go on and on.Mapping a courseBucktail and Corridor Wines have set litigants, agencies, and courts on a path that tends in the right general direction. Courts should always be there to shield the citizenry from administrative abuses, no matter what. But at present the path is so confusing to follow that it is a safe bet no two judges will follow it the same way. We need to rewrite the mandamus and certiorari rules so that they become predictable and comprehensible enough to be relied upon as the Court of Appeals contemplates, and we would ask that the Rules Committee address this need.The Committee should start by asking itself if there is any need to have one procedure for certiorari and another for mandamus. After all, we get along fine applying the same procedure for tort and for contract claims. It may be that we need only one mandamus/certiorari procedure — or even that this procedure can follow essentially the same ground rules already applied to tort and contract. Regardless, parties filing either mandamus or certiorari claims need to know what pleading, motions practice, discovery, and trial procedures they will face.

At present the path is so confusing to follow that it is a safe bet no two judges will follow it the same way.

In addressing the need to modernize the procedure on these writs, the Committee should bear in mind the ancient wellsprings from which they issue: the need to protect citizens from arbitrary abuses by the government. This means that the emphasis should probably be on making these procedures look more like regular civil procedure and less like record review. The typical posture in which the writs are sought involves administrative actions without a record, where the real issue is the good faith of the government official. If the procedures do not afford adequate opportunity for the offi
cial to state his or her reasons, and for the citizen to use discovery to probe the bona fides of those stated reasons before he or she is thrown out of court, the procedure will be a mockery. And to any objection by the defenders of government prerogative that extended pleading and discovery would likely be far more intrusive than a record review, the response is simple: authorize the courts to conduct a more conventional, record-based review under the 7-200 Rules. Then neither mandamus nor certiorari will generally lie, since they are usually unavailable when 7-200 review is available. This will imply the creation of a proper record and a properly articulated explanation of administrative actions, of course. But that kind of record may be created already, and if it is not, then that change will be all to the good.In any case, the time is now for better and clearer rules. We will obviously be seeing much more of these writs. We need not to see more confusion at the same time.<table width=”100%” border=”0″ cellspacing=”0″ cellpadding=”0″

BOARD MEMBERS

Alison L. Asti, Chair Michael D. Oliver
Jose Anderson Joanne E. Pollak
Harriet E. Cooperman Bill Reynolds
Jack L.B. Gohn Del. Samuel I. Rosenberg
Mabel Hubbard Karen Rothenberg
Neal M. Janey Craig Thompson
Robert D. Kalinoski Paul A. Tiburzi
Andrew D. Levy Rachel Wohl
Cleaveland D. Miller Robert A. Zarnoch
The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the Board attempt to develop consensus on issues of importance to the Bench, Bar and public. When their minds meet, unsigned opinions will result. When they differ, majority views and signed rebuttals will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.

Editorial Advisory Board Member Robert Zarnoch did not participate in the adoption of this opinion.