Extraordinary Remedies

  

Prohibition  

Mandamus  

Quo Warranto  

Habeas Corpus  

Certiorari  

Injunction  

Increasingly in recent years, lawyers and parties have sought legal action or relief through use of the so-called "extraordinary remedies" – prohibition, mandamus, quo warranto, habeas corpus and, to a lesser extent, certiorari. The "extraordinary remedies" are so called because they involve unusual procedures (not followed in the normal lawsuit) and because they sometimes involve unusual or urgent issues that cannot be resolved through normal legal procedures. For these reasons, and the fact that the Constitution permits them to be initiated in appellate as well as trial courts, they are referred to in the Constitution as "original remedial writs." The power of courts to issue original remedial writs is contained in Missouri Constitution, Art. V, section 4, which states that the Supreme Court, Court of Appeals and circuit courts are to have a general superintending control over all inferior courts and tribunals in their jurisdiction, and provides that they may issue and determine original remedial writs.

Injunction, while not one of the constitutional "original remedial writs," is covered in this chapter because it is a special type remedy which is similar in some respects to the "extraordinary remedies."

 

Prohibition.

A. A writ of prohibition is an order issued by a higher court to a lower court, administrative agency or public officer to prevent the lower court, administrative agency or public officer from either exercising jurisdiction when the defendant has no jurisdiction or from exceeding the defendant's jurisdiction.

1. The writ is directed to the judge or the officer of the lower court or agency.

2. It is a preventive remedy, designed to prevent a court or other judicial or quasi-judicial body or officer from exceeding lawful authority.

3. Prohibition is not a substitute for appeal or for correcting errors which can be remedied by appeal.

4. Issuing a writ of prohibition is discretionary with the court.

B. Some examples of the use of prohibition are:

1. To prevent a court from proceeding in a case filed in the wrong county (improper venue).

2. To prohibit a circuit judge from issuing an injunction where he has no jurisdiction to act.

3. To prohibit a judge from compelling a party to perform some action, such as answering interrogatories or producing certain records or property for inspection by the opposing party.

4. To prohibit a judge from dismissing a criminal case in which the state has no right of appeal.

C. The procedure in cases of prohibition is prescribed by Rule 97 and in Chapter 530, RSMo.

1. The person seeking relief (usually the party against whom an allegedly improper action is being taken) is the relator. The person against whom relief is being sought (the judge or other quasi-judicial officer who proposes to take the action) is the respondent. This version to the old nomenclature of parties is to avoid confusion as to the identity of the parties. No longer will a party be a plaintiff in the trial court and a defendant in the appellate court.

2. Advance notice of the intention to file a petition for writ of prohibition must be given to the defendant, and the opposing party in the underlying lawsuit as well. The petition for writ of prohibition must unequivocally and explicitly set forth every fact requisite to the issuance of the writ.

3. The attorney for the opposing party in the underlying lawsuit acts as the attorney for the respondent in a prohibition case.

4. A legal memorandum, called "suggestions," is filed in a higher court with the original petition, offering suggestions of law and arguments in support of the issuance of the writ of prohibition.

5. The opposing party may file opposing suggestions.

6. If the higher court finds that grounds exist for possible issuance of an absolute (final) writ after a full hearing, it will issue a preliminary writ of prohibition to which the respondent files an answer. The preliminary writ serves to maintain the status quo until the case can be fully briefed and argued.

7. Briefs are filed then, as in a case on appeal, and oral arguments are heard.

8. If the case is decided in the relator's favor, the preliminary writ is made absolute. If not, the preliminary writ is dissolved, the case is dismissed, and the judge or other officer can proceed with the underlying lawsuit or the action which gave rise to the prohibition action.

D. Rule 84.22 provides that a petition for writ of prohibition will not be issued by an appellate court in any case where adequate relief can be obtained by appeal or by application for such writ in a lower court.

1. If the relief sought is denied at the first court, the same petition may then be filed in the next highest court.

2. Except in unusual or urgent cases, the Supreme Court generally will not consider a petition for writ of prohibition unless it has been denied first by a circuit judge of a circuit court and the Court of Appeals.

Mandamus.

A. Mandamus is a method to compel a public official, a corporate officer, or judge to perform a ministerial duty which he has a duty to perform.

1. Mandamus is available only when there is an already existing legal right. It is a remedy designed to enforce, not establish a claim or right. Writs of mandamus are issued only where ministerial acts or duties imposed by law are sought to be compelled.

2. Mandamus cannot be used to compel performance of an unlawful act.

3. Mandamus cannot be used to compel an official to perform a discretionary act or tell him how to decide an issue, but it may be used to compel him to exercise his discretion and make a decision.

4. Issuing a writ of mandamus is discretionary with the court.

B. Some examples of the use of mandamus are:

1. To require the Secretary of State to accept initiative or referendum petitions.

2. To compel a professional regulatory board to issue a license to a qualified applicant.

3. To compel city officials to levy certain taxes required by law.

4. To compel a city to contribute to a city employee pension fund.

5. To require the State Auditor to register and certify bonds.

6. To compel corporate officers to declare that a person has been elected a corporate director.

C. The procedure for petitions for writ of mandamus is set out in Rule 94 and Chapter 529, RSMo.

1. As in prohibition cases, the party seeking relief is the relator, and the party against whom relief is sought is the respondent. The action may be brought by a private citizen, a prosecuting attorney or the Attorney General.

2. The relator's petition normally seeks issuance of a preliminary writ of mandamus, which is a temporary order (usually issued without a hearing) to compel the respondent to perform the requested act or show cause, on a certain date, why he should not be ordered to perform it.

3. The opposing party may file an answer and opposing suggestions.

4. After all pleadings are filed, similar to the procedure in prohibition, a trial or hearing is held in the normal manner. The usual rules of evidence apply.

5. If the judgment is in favor of the relator, a peremptory writ of mandamus is issued, granting the relief requested. The respondent may, of course, appeal from that peremptory writ.

D. The circuit courts, Court of Appeals and Supreme Court all have the power to hear petitions for writ of mandamus. Normally, mandamus is filed first in the circuit court before a circuit judge, although it may originally be filed in an appellate court if the actions of a circuit judge or a state officer are involved.

Quo Warranto.

A. Quo warranto is an extraordinary procedure used to prevent an official or legal entity from exercising its authority in an unlawful manner and to try title to a public office, corporate office or franchise.

1. The primary question in quo warranto cases is whether some person or corporation has usurped or intruded into another's lawful office or authority, or whether that person is unlawfully holding or executing an office or franchise.

2. If the person against whom a quo warranto action is brought is found to not have a valid claim to the office or authority he is holding or exercising, he can be ousted from office or prevented from continuing to exercise that authority.

3. The theory is that the office or franchise has been forfeited by an act of misconduct by the official or corporation and thus is usurping power illegally.

B. Some examples of the use of quo warranto are:

1. To determine whether a public official is qualified to hold his office and exercise the functions of the office. Grounds for quo warranto might be corruption in office, willful failure to perform statutory duties, or not having the qualifications prescribed by statute for an office.

2. To test the legality of an annexation by a municipality. The party challenging the annexation has the burden of proving it is illegal.

3. To forfeit the charter of a business corporation for such things as criminal violations, conducting business in an unlawful manner, fraudulently issuing stock, etc.

4. To terminate the franchise of a utility company.

C. The procedure in quo warranto proceedings is set out in Rule 98 and Chapter 531, RSMo.

1. The Supreme Court, Court of Appeals and circuit courts have concurrent jurisdiction of quo warranto proceedings. Accordingly, quo warranto may be initiated in either a circuit or appellate court, depending on the nature of the case and the respondent.

2. Generally, venue in quo warranto is governed by the same rules and statutes governing civil legal cases.

3. A private citizen cannot initiate a quo warranto proceeding. It is brought by the prosecuting attorney or circuit attorney for matters arising within the county or circuit and by the Attorney General for matters of statewide scope.

a. The party seeking relief is called the relator and the person against whom relief is sought is the respondent. The action is brought in the name of the State of Missouri.

b. The Attorney General may bring an action on his own information, in which case the suit would be: "State of Missouri ex inf. John Doe, Attorney General v. John Smith."

c. The Attorney General may bring the action at the relation of a person who has a special interest in the subject matter of the action, in which case the suit would be: "State of Missouri ex inf. John Doe, Attorney General, ex rel. Richard Roe v. John Smith."

d. Similar rules are followed for actions brought by the prosecuting or circuit attorney.

e. The private citizen seeking to have a quo warranto action filed must have a special interest in the matter, an interest greater than that of the general public.

4. Notice of the filing of a quo warranto information must be given to the respondent similar to cases for writ of prohibition. The respondent then files his answer.

5. An actual trial in quo warranto is rare. Normally, the parties will stipulate to the facts and argue the law before the court or in briefs. The Supreme Court may appoint a master or commissioner to hear evidence, if required.

6. The court may oust a corporation from its franchise (in effect, terminate the corporate charter) or remove an official from office, or order less drastic action, such as a fine, or leave an official in office but direct him to cease the unlawful usurpation of power. A fine may, however, be imposed in addition to ouster. Persons disobeying an order in quo warranto may be found in contempt of court.

7. If quo warranto is sought by the Attorney General or a prosecuting attorney, a preliminary rule (as in prohibition) will be issued as a matter of course. The issuance of a preliminary rule is not "automatic," however, if quo warranto is requested by a private citizen through the Attorney General or prosecuting or circuit attorney.

Habeas Corpus.

A. Habeas corpus has been called "The Great Writ." It is an extraordinary proceeding used to test the legality of one's confinement or, conversely, to obtain one's freedom from allegedly illegal confinement or custody.

1. Habeas corpus is a collateral attack on the court's jurisdiction, and only jurisdictional issues are involved. It cannot be substituted for a direct appeal.

2. Although habeas corpus proceedings often are brought by prison or jail inmates, it is a civil proceeding, not criminal.

B. Some examples of the use of habeas corpus are:

1. To determine whether a prisoner is being legally held by the warden or sheriff, such as when the prisoner contends his sentence has expired and he is entitled to release.

2. To secure relief from prison conditions constituting cruel and unusual punishment even though detention of the prisoner itself is legal.

3. To obtain the custody and possession of a minor child, in certain instances. For example, where there is no other forum for determining the issue.

4. To challenge the legality of an extradition proceeding.

5. To obtain the release from custody of one who is "criminally insane."

C. The procedure for habeas corpus is contained in Rule 91 and Chapter 532, RSMo.

1. The person filing the suit is called the petitioner; this is the person in custody or the person seeking to obtain custody of the child. The respondent is the officer or other person holding the petitioner or other person in custody.

2. The original petition is accompanied by a writ of habeas corpus, which is an order to be signed by the judge directing the respondent to appear in court with the body of the petitioner or child on a certain date. Ordinarily a petition for a writ of habeas corpus is merely a preliminary pleading. When the writ is issued, the petition has accomplished its purpose, and thereafter the issues are based on the answer to the writ and the reply thereof. As an alternative to granting the writ, the court may issue an order to show cause directed to the respondent to appear and explain why the writ should not be granted.

3. The writ of habeas corpus is served on the respondent, and he appears before the court on the date specified. An answer is usually filed by the respondent's attorney before the return date. The petitioner then files a reply, to the answer, and the case then is heard on the issues presented by the respondent's answer and the petitioner's reply.

4. The judge may hear the issues (if they are sufficiently clear) on the return date, or set a hearing for a later date. At the hearing, the petitioner has the rather considerable burden of proving that the court that sentenced him acted without jurisdiction or that he is held in violation of his constitutional rights, for example.

5. If it appears that the petitioner is being held illegally, the court will order him discharged. If the prisoner is not entitled to release, he is remanded to the custody of the respondent or other lawful custodian. In a child-custody case the court may order the minor child returned to the lawful custodian.

6. A prisoner filing a petition for writ of habeas corpus may be released on bail, although that is somewhat unusual. It is customary, however, to release on bail a person challenging his extradition.

7. There is no appeal to a higher court in habeas corpus, but the petitioner can re-file the petition in the Court of Appeals and, if denied there, can then re-file it in the Supreme Court, presenting the same grounds and arguments for relief each time.

D. In Missouri, in the case of a criminal conviction, a proceeding under Rule 24.035 (where there is a guilty plea) or 29.15 (where there is a conviction after trial) must be used instead of habeas corpus if the issues involved are covered by the Rule. In those cases, the Rule 24.035 or 29.15 proceeding is a substitute for habeas corpus. If a case is not covered by Rule 24.035 or 29.15, habeas corpus may be used.

1. These proceedings are referred to as post-conviction motions and, although they are a collateral attack upon a criminal conviction and sentence, they are a civil proceeding, not criminal.

2. Like habeas corpus, a Rule 24.035 or 29.15 proceeding is a collateral attack on a prisoner's conviction and/or sentence, not a direct appeal. Issues that could have been raised on appeal cannot be asserted in a 24.035 or 29.15 proceeding.

3. Basic procedures are set out in the respective rules.

4. Unlike habeas corpus, both the State and the petitioner (whichever loses the case) may appeal a circuit court's ruling in a 24.035 or 29.15 case.

Certiorari.

A. Certiorari is ordinarily used to bring the record of a judicial or quasi-judicial body before a superior court in order to determine whether the inferior body acted within its jurisdiction and should be utilized where there is no other adequate remedy such as appeal.

1. In Missouri, the writ of certiorari is the same as at common law, and courts may properly adopt usages and principles applicable to the issuance of the writ as developed under the common law system, consistent with the letter and spirit of existing statutes and the constitution.

2. Ordinarily on a writ of certiorari, review is only of the validity of the lower court record, infirmities in jurisdiction and questions of the law; questions of fact or merits of the case are not reviewable.

B. The procedure in certiorari is basically similar to that followed for other extraordinary remedies.

C. In Missouri, by rule, statute or constitutional provision, certiorari may be used for various other purposes. Some of these are:

1. To obtain court review of a decision of an administrative officer or body (state or local), where administrative review is not provided for and where the decision determines the legal rights, duties and privileges of a person. (Section 536.150, RSMo 2004.)

a. The court determines whether the administrative decision, in view of the facts, is unconstitutional, unlawful, unreasonable, arbitrary, capricious, or involves an abuse of discretion.

b. The court may not substitute its discretion for that of the administrative agency or body.

2. To correct a lower court record when a case is on appeal to the appellate court. This procedure is used to correct a defect in the record on appeal (Rule 84.03).

Injunction.

A. An injunction is the order of a court commanding or forbidding the doing of certain acts. It is a mechanism designed to protect a person's substantial rights from irreparable injury. To be entitled to an injunction, the plaintiff must show:

1. That the right he seeks to protect is a substantial one.

2. That irreparable harm or damage will occur if the defendant is not stopped from performing a threatened act or is not ordered to do a certain thing.

3. That he cannot be adequately compensated through the payment of money damages if the relief sought is not granted.

B. Some examples of the use of an injunction are:

1. To prevent a person from violating the anti-competition clause of a contract.

2. To prevent an employer from laying off or discharging employees in violation of a labor disagreement.

3. To prohibit the defendant from coming onto the plaintiff's property to remove trees, dig ditches, build roads, etc.

4. To compel a factory to stop polluting the air or water.

5. To require the removal of a barricade across a roadway.

C. The proceeding for injunctions is spelled out in Rule 92 and in Chapter 526, RSMo. It is usually a three-stage proceeding:

1. A temporary restraining order may be issued by the court at the request of the plaintiff without notice to the other party only if the plaintiff can show that immediate and irreparable injury or loss will result before the opposing party can be heard and only if it is shown that efforts have been made to notify the other party. A temporary restraining order issued without notice is good for only ten days, unless extended by the court.

2. A preliminary injunction then may be issued after appropriate notice to the defendant and after a hearing. Both the temporary restraining order and the preliminary injunction are intended to preserve the status quo until a full hearing can be had on the merits of the case.

a. Neither a temporary restraining order nor a preliminary injunction can be issued until the plaintiff posts a bond approved by the court for the payment of damages and costs if the temporary restraining order or preliminary injunction is later dissolved.

3. After a final hearing, a permanent injunction may be issued. An injunction must be specific in its terms, and is binding only on the parties, their officers, agents and employees and persons in active concert or participation with the parties who have actual notice of the injunction.

D. Injunctions may be granted by:

1. A circuit judge, or

2. An associate circuit judge who is specially assigned or transferred to hear the case, or

3. An associate circuit judge if there is no circuit judge present in the county at the time.

E. An appeal may be taken to the Court of Appeals from a circuit court's order granting, dissolving or denying an injunction. The circuit court and the appellate court both have certain powers to suspend, modify, restore or grant an injunction during the time the appeal is pending. (Note: a temporary restraining order and a preliminary injunction are not final judgments and therefore are not appealable.)