Social:Ministerial act

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A ministerial act is a government action "performed according to legal authority, established procedures or instructions from a superior, without exercising any individual judgment."[1] It can be any act a functionary or bureaucrat performs in a prescribed manner, without exercising any individual judgment or discretion.[2] Under law, this would be classified under the rubric of public policy.

Examples of what is, and is not, ministerial

Examples of ministerial acts include:

  • the entry of an order of the court by a clerk of the court,[3]
  • notarization (acknowledgement) by a notary public,[4]
  • mechanical processing of an income tax return[5]
  • determining the existence of facts and applying them as required by law, without any discretion[6]
  • issuance of a building permit[7]
  • approval of a subdivision real estate[8]
  • approval of a demolition permit[9]
  • a court's remand for "the correction of language in a judgment or the entry of a judgment in accordance with a mandate"[10]

Actions that are not ministerial would include:

  • a decision about application of a tax law, auditing of an income tax return, determining facts and applying law to those facts, and prioritizing such returns[11]

Effects

If a ministerial act is not performed, then a court may issue a writ of mandamus to compel the public official to perform said act.[12]

Absolute or sovereign immunity does apply to the performance or non-performance of ministerial acts.[13]

References

  1. ↑ The Free Dictionary (quotation redacted and ellipses removed).
  2. ↑ Id.; Ballentine's Law Dictionary, p. 341.
  3. ↑ Ballentine's, supra.
  4. ↑ N.Y. Penal L. section 195.00 (requiring a notary to officiate upon request); see also People v. Brooks, 1 Den. 457; which may be found at N.Y. Notary Law .
  5. ↑ See: California Tax regulations.
  6. ↑ See discussion at:Virginia Land Use law, citing Richlands Medical center v. Commonwealth, 230 Va. 384 (1985), Bd. of Co. Supervisors of Prince William Co. v. Hylton Enterprises, Inc., 216 Va. 582(1976).
  7. ↑ :Virginia Land Use law, supra, citing Town of Jonesville v. Powell Valley Village LP, 254 Va. 70 (1997).
  8. ↑ Virginia Land Use law, supra, citing Planning Comm'n of City of Falls Church v. Berman, 211 Va. 774 (1971).
  9. ↑ Ministerial Act news
  10. ↑ Second Circuit Blog, citing Burell V. United States, No. 05-2945-cr (2nd Cir. 2006)(decision by Sotomayor, J.), at [1].
  11. ↑ See, supra, California Tax regulations
  12. ↑ Virginia Land Use law, supra, citing Phillips v. Telum, Inc., 223 Va. 585 (1982).
  13. ↑ Virginia Land Use law, supra, citing Bogan v. Scott-Harris, 523 U.S. 44 (1998); Anderson v. Creighton, 483 U.S. 635 (1987); Harlow v. Fitzgerald, 457 U.S. 800 (1982); and Heider v. Clemons,241 Va. 143 (1991).

See also




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