In re Certain Seized Property of Mark Beezup, No. S0372-11 CnC (Toor, J., Apr. 21, 2011)

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                                               VERMONT SUPERIOR COURT
                                                  CHITTENDEN UNIT
                                                   CIVIL DIVISION

                                                                         │
                                                                         │
In re CERTAIN SEIZED PROPERTY of                                         │      Docket No. S0372-11 CnC
Mark Beezup                                                              │
                                                                         │

                                 RULING ON PETITION FOR MANDAMUS

           Petitioner Mark Beezup seeks an order of mandamus directing the Criminal

Division of this court to issue an order returning certain seized property to him. The court

concludes that it cannot do so for two reasons.

           First, this court -- the Civil Division of the Superior Court -- is of equal stature to

the Criminal Division of the Superior Court. The very definition of mandamus is an order

from a higher court to a lower court. Black’s law Dictionary (8th ed. 2004)(“a writ issued

by a superior court to compel a lower court” to act); Hong Mai Sa v. Doe, 

,

158 (2d Cir. 2005)(mandamus is issued by appellate court to order an “inferior court” to

act); see also 52 Am. Jur. 2d Mandamus § 303 (WL updated Nov. 2010) (“Mandamus

will not issue from one court to another of equal dignity or jurisdiction.”).

           Second, the cases appear to hold quite uniformly that mandamus cannot be used

to compel a court to decide a matter before it in a particular way. E.g., In re Parsons, 

, 156 (1893) (“We cannot by writ of mandamus compel the court below to

decide a matter before it in a particular way . . . .”); Humana of Ky., Inc. v. NKC Hosps.,

Inc., 

, 374 (Ky. 1988) (mandamus is “not an appropriate remedy to tell

the court or administrative body how to decide or to interfere with its exercise of

discretion”); State ex rel. Tillimon v. Weiher, 

, 36 (Ohio 1992)
(“[M]andamus . . . cannot control judicial discretion.” (citation omitted)); Moreau v.

Fuller, 

, 845–46 (Va. 2008) (mandamus may be used to compel

ministerial but not discretionary duties; if the act to be performed requires the exercise of

judgment or discretion, then it is a judicial act and mandamus will not lie); State ex rel.

Beffa v. Superior Court for Whatcom Cnty., 

, 7 (Wash. 1940) (“[J]udicial

discretion cannot be controlled by a writ of mandamus, and that such writ will not issue

to compel the superior court to decide a matter in any particular way.”).

       Even if this court did have authority, and the petition sought only an order to the

other court to issue a prompt ruling, as opposed to a favorable ruling, it would not be

appropriate because mandamus applies only when there is a duty to perform a “simple

ministerial duty” or there is an “arbitrary abuse of power.” Ahern v. Mackey, 

, ¶ 8, 

. Neither exists here.

                                             Order

       The petition for mandamus is denied.


Dated at Burlington this 21st day of April, 2011.



                                               _____________________________
                                               Helen M. Toor
                                               Superior Court Judge




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