Last month, Edelstein Payne & Lucas partner Travis Payne and I traveled to Statesville, NC to appear in Iredell County Superior Court to petition the court for a writ of mandamus. A mandamus action in North Carolina is a petition for a court order requiring a governmental official to perform his or her non-discretionary official duties. Our client, a longtime member of the city's fire department, had applied for a promotion and underwent promotional processes. When he was not chosen for the promotion, he sought review of the decision to not promote him, as provided in the City's Charter. He was denied a Civil Service Board review, despite several explicit requests, and was left with no choice but to petition the court for a writ of mandamus.
There are five "elements" which must be established by a party petitioning the courts for a writ of mandamus:
- The party seeking relief must demonstrate a clear legal right to the act requested;
- The defendant must have a legal duty to perform the act requested, and the duty must be clear and not reasonably debatable;
- Performance of the duty-bound act must be ministerial in nature and not involve the exercise of discretion;
- The defendant must have neglected or refused to perform the act requested, and the time for performance must have expired; and
- There must be no alternative, legally adequate remedy available (the court may only issue a writ of mandamus in the absence of such a remedy).
In our case, section 5.5 of the Statesville City Charter specifically requires that the Civil Service Board "shall hear grievances as to promotions, demotions, suspensions, and terminations of members of the fire and police departments." Pretty clear. However, the City defended the petition and asserted, among other things, that there was no reviewable issue because the position our client sought was filled from outside the Department, so nobody was promoted therefore our client could not have a Civil Service Board Review. The Court did not accept that argument, and granted our petition.
One of the tragic aspects of NC mandamus law is that there is no ability that a plaintiff who successfully obtains a court-order for a government official to perform their official duties to be compensated for the attorney fees incurred. This is tragic because attorney fees add up quickly and it seems obvious that we shouldn't have to file a costly lawsuit to compel public employees to fulfill their jobs- the status quo effectively penalizes people who use the courts to enforce the law! Also, faced with the prospect of paying opposing counsel's attorney fees, government officials might be more reluctant to force these issues.
Mandamus is an interesting issue, one that we are familiar with. We frequently represent firefighters and law enforcement officers in employment and workers' compensation litigation, and are willing to drive most of the way across the state to help individuals enforce rights such as the right to Civil Service Board review.