May 9, 2022

A writ of mandamus seeking to compel a public officer to perform a certain act will not be issued if the act is discretionary in nature

Plaintiffs, who are teachers and professional staff employed by a school district [Respondent], commenced this CPLR Article 78 proceeding seeking a writ of mandamus*to compel Respondent to offer courses and sequences in the arts during the school day and equitably throughout the school district "in accordance with regulations promulgated by the New York State Commissioner of Education.

Supreme Court dismissed Plaintiffs' petition and Plaintiffs appealed.

The Appellate Division, noting that a writ of mandamus "is available to compel a governmental entity or officer to perform a ministerial duty, explained that the writ "does not lie to compel an act which involves an exercise of judgment or discretion" and citing Matter of Brusco v Braun, 84 NY2d 674, explained that such a writ is "an extraordinary remedy that is available only in limited circumstances."

In this instance, opined the court, Supreme Court "properly determined that mandamus to compel does not lie" as the regulations relied on by Plaintiffs provide, in relevant part, that a school district "shall offer students the opportunity to complete a three- or five-unit sequence in ... the arts and must provide that opportunity beginning in ninth grade."

In the words of the Appellate Division: "Although the regulations provide that the District must offer students the opportunity for an arts sequence, [Respondent] may exercise discretion in how to do so." The court then explained that "because the actions that [Petitioners] seek to compel are not ministerial in nature but discretionary, mandamus to compel does not apply."

Accordingly, the Appellate Division sustained Supreme Court's ruling.

* A writ of mandamus is one of a number of the ancient “common law” writs and is granted by a court to compel an official to perform acts that such an official is duty-bound to perform. Other such ancients writs include the writ of prohibition, issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction"; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of  quo warranto,” which requires a person or body to show by what warrant, office or franchise, held, claimed, or exercised, with respect to that individual or entity performing a particular act or omission. New York State's Civil Practice Law and Rules [CPLR] sets out the modern equivalents of the surviving ancient writs.

Click HERE to access the Appellate Division's decision posted on the Internet.


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