Texas FReepers: how YOU can bring those Dem Senators home!

[jmstein7]

Texas FReepers,

You have the legal right (standing) to force your delinquent Senators to return to work. A writ of mandamus is a court order compelling an official to perform his duties. Without getting into the legal mumbo-jumbo (you FReeper lawyers know your local rules of civil procedure), a writ of mandamus can be filed to compel your Senator to perform a ministerial (non-discretionary) duty. “Showing up for work” is, in most jurisdictions, considered ministerial in nature.

So, if you go to your local courthouse seeking mandamus, there is a very decent likelihood that it will be granted, and it is not as difficult (or expensive) to do as it sounds.

While the court may not be able to send out the troops to find your missing Senator and drag him back to Texas, he will be subject to fines and imprisonment for failing to comply with such a court order (being held in contempt) and, at the very least, mass filings would be newsworthy.

So, look into it, and go for it! Bring those ‘Rats to justice!

[Mich0127]

I see someone paid attention in con law on Thursday!!!!
Oh, and most lawyers probably supress their first year civ pro courses, as we plan on doing down the road :-P
On a more serious note, a writ of mandamus would be a perfect solution to the problem that you cite in your posting. This is a surefire way to compel these senators: return to work..or be held in contempt of court!

[truthkeeper]

I love to read stuff like this. The best of luck to y'all in Texas.

[John Jorsett]

To your knowledge, has this ever been done before, in Texas or elsewhere? Sounds like something the Republicans in the Texas legislature could have done, and they must have plenty of lawyers in their number. Why haven't they tried this?

[Mich0127]

oh..and to give a quick layman's definition of mandamus: it is an order compelling a public official to do something that they are required to do as a part of their job. This is a non-discretionary duty, one that comes with the job description. So, a writ of mandamus cannot compel these senators to each give 1 million dollars to charity, but it sure as sh-t can force them to return to work!
See..I paid attention in con law too!

[hoot2]

oh, c'mon...
demonRATS couldn't obey a law, even if they passed it themselves...

[jmstein7]

I see someone sat in the front row for Dick Neumann's class!

[jmstein7]

Because if THEY did it, they would be blasted in the media -- even worse then they are already being blasted. Plus, they need to be constituents.

[4integrity]

Hallelujah (sp?). I, too, wondered why no one demanded that these people do their job. Imagine if an employee didn't show up for work cause they didn't agree with their employer. We know what would happen to that person.
Now why didn't the Texas Gov or Repubs think of this?

[LibKill]

Not a lawyer, but it seems right. FReepers from the districts of the fugitives would have a really good case that their senator should get back to work.

[steplock]

ONLY a LAWYER could turn a simple phrase into a "gobble-dee-goop" "mumbo-Jumbo" mass of jibberish double-talk called a "Writ of Mandamus"

Only a lawyer makes you get ANOTHER lawyer (judge) to tell him (her) to get off their lazy-sleazy butt and

Get to Work!

Mandamus

Mandamus means "we order" in Latin; it is the name of one of the prerogative writs. A writ of mandamus or simply mandamus is a court order directing someone to perform a specified act. The act must be one that is "ministerial" rather than "discretionary," which means it must not involve any qualitative judgment to tell whether it has been done (or done right or completely): Signing a document or handing one over to someone is ministerial; providing some service is discretionary, whether it is painting a portrait or removing a gall bladder or cutting hair or typing a letter. (In that sense, "ministerial" has a "binary" meaning -- the act is either done or not done.)

In the administrative law context in the United States, the requirement that mandamus can be used only to compel a ministerial act has largely been abandoned. By statute or by judicial expansion of the writ of mandamus in most of the U.S. states, acts of administrative agencies are now subject to judicial review for abuse of discretion. Judicial review of agencies of the United States federal government for abuse of discretion is authorized by the Administrative Procedure Act.

In the context of mandamus from a United States Court of Appeals to a United States District Court, the Supreme Court of the United States has ruled that the appellate court has discretion to issue mandamus to control an abuse of discretion by the lower court in unusual circumstances, where there is a compelling reason not to wait for an appeal from a final judgment. This discretion is exercised very sparingly. In some state-court systems, however, mandamus has evolved into a general procedure for discretionary appeals from nonfinal trial-court decisions.

In some U.S. states, including California, the writ is now called mandate instead of mandamus. Others, including New York, have replaced mandamus (as well as the other prerogative writs) with statutory procedures. In New York this is known as an Article 78 review after the civil procedure law provision that created the statutory procedure.

 

[epow]

Sounds like something the Republicans in the Texas legislature could have done, and they must have plenty of lawyers in their number. Why haven't they tried this?

Probably the same reason the Repubs in the U.S. Senate don't use the "nuke option" to get a floor vote for Bush's judicial appointees, total loss of spinal column whenever faced with opposition. It's a peculiar occupational hazard that seems to only affect Republican legislators.

[jocon307]

"Plus, they need to be constituents."

Right, key issue. This is a good idea, someone should try it. I like it, I really like it. There is 15 minutes of fame available here, and as the late, great Andy Warhol pointed out, everyone must try it.

Go Texas freepers, bring 'em back alive!

[mtbopfuyn]

I'd give 'em 20 minutes of fame. Go for it!

[jmstein7]

Absolutely. 15 minutes of fame up for grabs!

[jmstein7]

Unless they are constituents of the particular Senators -- and, granted, some technically are -- they can't. Even if they did, their case would be a clear political question whereas the case of your ordinary, average constituent would not be.

[jmstein7]

Any Texan FReepers out there up for the challenge? If so, go grab your 15 minutes! We're all behind you!

[Mich0127]

With the emphasis on "Dick"...Neumann

[Gorest Gump]

A couple of weeks after the rats left for Albequerque, one of John Whitmire's constituents filed such an action. The judge delayed it or someone delayed action on it and I haven't heard anything more. Lo and behold, Whitmire is back and he now says he will fight redistricting on the floor of the senate.

[jmstein7]

Now if only constituents of the other Texas Dems would file similar actions. . .

The more, the merrier, and they will be acted on.