On Friday, December 2, the Supreme Court of Virginia issued an unpublished order dismissing an appeal in a mandamus case. The ruling, in Witt v. Sinnen, Clerk, is based on a procedural flaw that should draw the attention of lawyers who may consider filing mandamus petitions in other cases.

The specific holding of the order is that the appellant, in seeking the writ in the trial court against the Clerk of the Virginia Beach Circuit Court, did not specifically allege that she had no other legal remedy. That’s a necessary, one may almost say jurisdictional, requirement before a common law writ of mandamus will issue. During oral argument in November, the appellant’s counsel conceded that no such allegation had been made in the trial court; that (necessary) concession resulted in the dismissal of the appeal.

Note that this requirement does not apply to situations in which mandamus is specifically authorized by statute. The Supreme Court decided an appeal earlier this year involving the Freedom of Information Act, in which a petition for a writ of mandamus had been denied in the trial court for exactly this reason; the petitioner clearly had a legal remedy. But there, the court found that FOIA, as a highly remedial act, excused the petitioner from alleging and proving the absence of a legal remedy. That case is Cartwright v. CTC; my earlier discussion of the ruling may be accessed here.

I always try to include a practice tip based on the lesson of each decision I report, but the lesson here is perfectly obvious – if you’re filing a common law mandamus petition, allege that you don’t have another legal remedy. It is my sense that this requirement will probably survive the impending consolidation of Law and Chancery, so you should continue to include this allegation in petitions filed after January 1, 2006.

As the Witt decision is unpublished, it will not appear in Virginia Reports, and does not appear on the court’s web site. Readers of this site who desire a copy of the order may contact me by e-mail.