EXTRAORDINARY RELIEF

A defendant has an adequate remedy at law for a lower court's decision when he or she has a right to appeal the lower court's decision. When the defendant cannot appeal the lower court's decision, he or she may be entitled to extraordinary relief. Extraordinary relief is a method by which the defendant seeks to have an appellate court examine the lower court's actions and order the lower court to perform or to refrain from performing a certain act.

A defendant seeks extraordinary relief by filing an application for an extraordinary writ. An extraordinary writ is an order that directs a public official, most often a trial court judge, to perform a duty that is fixed and required by law. The duty must be unequivocal and unconditional. The duty must also be a present duty and not a future duty.

A defendant's application for an extraordinary writ must show that a trial judge has a duty to perform a certain action. The application must also show that the defendant's claim is certain and is susceptible to only one legal interpretation. There can be no disputed factual or legal issues in the defendant's case. If there is any justification for the trial judge's action, the extraordinary writ will not be issued.

Extraordinary writs include writs of mandamus, writs of prohibition, and writs of habeas corpus. A writ of mandamus commands a trial judge to perform a certain act or a certain duty. A writ of prohibition commands the trial judge to cease from performing a certain act or a certain duty. The words "habeas corpus" mean "you have the body." A writ of habeas corpus commands a public official, such as a sheriff or a prison warden, to bring a defendant before a court.

An appellate court is not limited by whether a defendant's application for an extraordinary writ states that it is a writ of mandamus, a writ of prohibition, or a writ of habeas corpus. The appellate court will look to the essence of the writ in order to determine the relief that the defendant is seeking.

An application for a writ of mandamus or a writ of prohibition is required to be pleaded with greater certainty than a normal trial pleading. The application must clearly set forth every fact that is necessary to show why a defendant is entitled to the writ. The application cannot be equivocal. The fact must be presented so positively that the defendant could be charged with perjury if the facts are not true.

When a defendant is in custody or is incarcerated, the defendant may file an application or a petition for a writ of habeas corpus. The petition must state the fact that the defendant is illegally restrained and the name of the person who is illegally restraining the defendant. If the defendant is being restrained under a writ, an order, or any other process, the petition must include a copy of the writ, the order, or the other process. The petition must be sworn. The petition does not need to be signed by the defendant. The defendant's counsel or any other person may sign the petition on behalf of the defendant.

After an appellate court receives a defendant's application for an extraordinary writ, it usually requests a response from the party against whom the defendant is seeking the writ, such as a trial judge, a public official, or a warden. After the appellate court receives the response, it will determine whether to file the application and to conduct a hearing or whether it will deny the application and refuse to conduct a hearing.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.