Requesting a Writ of Mandamus

I. Why do we want a Writ of Mandamus?
In general, a writ of mandamus can be described as an order, “commanding the performance of an act that the law requires as a clearly defined duty, arising from an office, trust, or station.” 55 C.J.S. Mandamus § 1. Moreover, a writ of mandamus may be issued to command a nongovernmental body, such as a medical licensing board, to perform a specified duty imposed by law, and can also be invoked to control flagrant abuses of discretion. Id. For example, in some instances, upon judicial review, if a court is satisfied that the applicant is entitled to a license, it may order the license issued notwithstanding the boards denial of the license. 70 C.J.S. Physicians and Surgeons § 38. In New Jersey, “Prior to the adoption of the 1947 Constitution, ‘persons aggrieved by action or inaction of … administrative agencies could seek judicial relief by applying for one of the prerogative writs – certiorari, mandamus, quo warranto and prohibition.” Jeffery S. Mandel, New Jersey Appellate Practice 141 (GANN, 2008).

However, such writs were abolished by the 1947 Constitution in an attempt to simplify the procedure with regard to prerogative writs. Id. at 142. At that time, prerogative writs were superseded and consolidated into one action, now called actions “in lieu of prerogative writs.” Id.; 19 N.J. Prac., Skills And Methods § 4:1, § 4:2 (Rev. 3d ed.). State boards of medical examiners, also known as medical licensing boards, are state agencies subject to state administrative procedures. 61 Am. Jur. 2d License to Practice § 17. Therefore, the acts and decisions of these boards are governed by state administrative procedure acts, which usually provide for judicial review. Id. § 62, § 103. Mandamus, in general, is a proper remedy to review acts and decisions of an administrative agency, and more specifically, to compel action by a licensing board with respect to the issuance of professional licenses. 52 Am. Jur. 2d Mandamus § 203; see also 55 C.J.S. Mandamus § 144, § 156, § 239. II. What does one need to show in order to get it?

In New Jersey, when a party seeks judicial review of an action or in action of a state agency, the court considers multiple additional factors in determining whether or not to permit review. 37 N.J. Prac., Administrative Law And Practice § 7.2 (2d ed.). These factors include: “[1] whether the agency’s action is reviewable under the applicable law; [2] whether the petitioners or appellants have sufficient standing to raise their challenges; [3] whether they have selected the proper respondents; [4] whether primary jurisdiction precludes review; [5] whether the exhaustion of administrative remedies doctrine has been faithfully observed; [6] whether the challenged action is ripe for review; and finally [7] whether the proper forum or review form has been selected.” Id. New Jersey’s Administrative Procedure Act does not provide for judicial review, but instead New Jersey’s constitution allocates relief from agency actions to the Superior Court under the rules of the Supreme Court, which provides for judicial review of all final decisions of state and local administrative agencies.

Id. § 7.3. However, there is a general rule that a mandamus action is the proper remedy only where the act or duty of the state agency is purely ministerial, and is improper where the action of a state board is discretionary. 55 C.J.S. Mandamus § 72. As will be discussed in more detail below, the granting or denial of a medical license is not a ministerial function, but rather a highly discretionary task. 70 C.J.S. Physicians and Surgeons § 14. Nevertheless, there is an exception to this rule when there is an abuse of discretion by the board in question. 55 C.J.S. Mandamus § 73. Even though, the issuance of a medical license is a matter of discretion, “mandamus may issue where the act of the officer or board vested with discretion is capricious, arbitrary, or unreasonable or an abuse of discretion. Id. “Abuse of discretion occurs where a public officer exercises discretion based on personal, selfish, or fraudulent motives.”

Id. The board or other body must treat all applicants for licenses fairly, and, after an applicant has qualified and has passed the prescribed examination, he or she cannot, in the absence of an adverse showing, be deprived of a license or certificate. 70 C.J.S. Physicians and Surgeons § 32. It is probable that the claim of the new M.D. in question, that she is clearly qualified, but wasn’t granted her medical license due to several members of the Board being personal enemies with her father, is the type of “personal, selfish, or fraudulent” behavior that qualifies as an abuse of discretion under the exception. Thus, this first element is likely satisfied. III. Which division of the New Jersey Superior Court is the most appropriate forum?

As mentioned above, the last element a court considers when determining whether to permit review is whether the proper forum has been selected. Rule 2:2-3(a) was promulgated by the Supreme Court pursuant to its constitutional grant of authority to allocate the “in lieu” jurisdiction among and between the divisions of the Superior Court by rule: ‘every proceeding to review the action or inaction of a local administrative agency would be by complaint in the Law Division … and that every proceeding to review the action or inaction of a state administrative agency would be by appeal to the Appellate Division.” 19 NJPRAC § 4:15; Jeffery S. Mandel, New Jersey Appellate Practice 66, 142 (GANN, 2008). “Thus, it has been held that when a state administrative agency has allegedly failed to perform functions that it is required by statute to perform, the proper method of challenge is by resort to the Appellate Division, not for any decision on the merits, but by way of proceeding in nature of mandamus to compel action by the agency.” 40 N.J. Prac., Appellate Practice and Procedure § 3.21 (2d ed.) Therefore, the most appropriate forum to file this suit is the Appellate Division of the Superior Court.

IV. Why is this selection of court the most appropriate?
The aforementioned rules clearly state that judicial review of a state agency should be taken to the Appellate Division of the Superior Court. Under the definitional section of the Administrative Procedures Act, N.J.S. 52:14B-2, the New Jersey State Board of Medical Examiners qualifies as a state board for the purposes of this action. The Act provides: “(a) ‘State agency’ or ‘agency’ shall include each of the principal departments in the executive branch of the State Government, and all boards, divisions, commissions, agencies, departments, councils, authorities, offices or officers within any such departments now existing or hereafter established and authorized by statue to make, adopt or promulgate rules or adjudicate contested cases.” Jeffery S. Mandel, New Jersey Appellate Practice 146 (GANN, 2008).

Moreover, judicial review pursuant to Rule 2:2-3(a) is the exclusive method of challenging action or non-ministerial inaction by a state agency. 19 NJPRAC § 4:15. Like previously mentioned, the granting or denial of a medical license is not a ministerial function, but rather a highly discretionary task. 70 C.J.S. Physicians and Surgeons § 14. A state board may be granted broad powers with respect to licenses to practice medicine and may exercise a certain measure of judgment and discretion in granting or refusing these licenses. Id. §30, § 32. “Because of the exclusivity of the remedy pursuant to Rule 2:2-3(a), the declaratory judgment action technique is neither available nor appropriate.” 19 NJPRAC § 4:15.