Shareware Overload Trio 2/Shareware Overload Trio Volume 2 (Chestnut CD-ROM).ISO/dir33/1798_r.zip/WRIT.LAW

Text File | 1993-12-26 | 7KB | 131 lines

     WRIT

     A writ is a court-issued, written order requiring a sheriff,
     officer of the law, or other designated person empowered by a
     sovereign authority to direct someone to do or to stop doing a
     specific act. A writ may be a summons issued in order to begin
     legal action or in order to get someone to appear before a
     magistrate or in court (see SUBPOENA). Through a writ a court
     may demand that property be returned, that sentence passed be
     delivered or enforced, that records be turned over to the
     proper authorities for correction or examination, or even that
     rights hitherto denied be restored. Writs, used as early as the
     13th century in Britain by the Norman kings, are, within
     limits, still part of the Anglo-American judicial process.
     Three of the most important writs are writs of HABEAS CORPUS,
     INJUNCTION, and MANDAMUS.

     MANDAMUS {man-day'-mus}

     Mandamus (Latin, "we command") is a WRIT issued by a court of
     superior jurisdiction commanding a lower court, a public
     official, a corporation, or a private person to perform a
     certain act. The writ is used when the right to be protected
     and the duty to be compelled are unambiguous. It can be used
     only to compel a ministerial duty, that is, when the person to
     whom it is directed has no discretion in the matter. For
     example, a public official who is required under law to sign or
     grant a particular document after payment of a fee may be
     ordered by a writ of mandamus to sign or issue that paper if no
     other remedy exists for the person who obtained the writ. The
     writ of mandamus can be either peremptory or alternative. If it
     is peremptory, the defendant is compelled to perform the
     specific act; if it is alternative, the defendant can choose
     either to appear in court to contest the issuance of the writ
     or to comply with it immediately. Usually a court will issue an
     alternative writ first.

     INJUNCTION

     An injunction is a court decree granted by a judge requiring a
     person to act or cease to act in a specific way. Injunctions
     are of two kinds: prohibitory and mandatory. Prohibitory
     injunctions forbid certain acts or activities; mandatory
     injunctions require that certain acts or activities be
     undertaken. If an injunction is defied, a judge may cite the
     offender for CONTEMPT.

     Injunctions may be preliminary or permanent. A preliminary
     (also temporary or interlocutory) injunction is awarded when a
     court is convinced that such an injunction is necessary to
     prevent irreparable damage to the party seeking it. This
     injunction remains in force until the issue has been settled by
     a court decision or until a specified, limited period of time
     has elapsed. A temporary restraining order is a type of
     preliminary injunction in which only the party seeking the
     order is heard by a court. Such an injunction is limited in its
     duration and is often replaced by a regular temporary
     injunction as soon as both parties are present in court. A
     permanent, or final, injunction is granted at the conclusion of
     the lawsuit.

     Injunctions are governed by the common-law principles of
     EQUITY. These principles apply to situations in which legal
     remedies are considered inadequate, as in labor-management
     disputes and issues involving governmental regulation. Because
     an injunction can be obtained quickly--as opposed to
     litigation, which is time-consuming--it is an effective way to
     enforce regulatory statutes. Injunctions were frequently used
     against labor unions until the Federal Anti-Injunction Act
     (Norris-LaGuardia Act) of 1932. The LABOR-MANAGEMENT RELATIONS
     ACT (Taft-Hartley Act) of 1947 and the LABOR-MANAGEMENT
     REPORTING AND DISCLOSURE ACT (Lendrum-Griffin Act) of 1959
     provided for the use of injunctions under certain conditions.

     HABEAS CORPUS {hayb'-ee-uhs kor'-puhs}

     Habeas corpus (Latin, "you are to bring the body") is a WRIT
     issued by a court, requiring a person in custody to be brought
     before it. Although the writ is issued for various purposes, it
     is usually issued in criminal cases in order to determine
     whether a prisoner is lawfully being held by the police, and if
     so, what the charges are.

     Habeas corpus is also used in civil cases, such as those which
     require the presence of a minor in court to determine rightful
     custody. Habeas corpus has been traced to early medieval times.
     The Magna Carta (1215) set forth vague notions of due process
     of law, which were later interpreted, inaccurately, as
     including habeas corpus. Habeas corpus developed from
     principles of due process in English common law.

     It first took on historical significance with the attempts to
     use the writ to protect individuals imprisoned by the Privy
     Council of King Henry VII (r. 1485-1509). In 1628 the Petition
     of Right, an assertion of civil liberties sent by Parliament to
     King Charles I (r. 1625-49), included habeas corpus as one of
     its principles. The act that abolished (1641) the tyrannical
     Star Chamber court also provided for the right of habeas
     corpus. It was the Habeas Corpus Act of 1679, however, that
     firmly established the legal power of the writ and the
     procedures to enforce it. The American colonists viewed habeas
     corpus as one of the most important protections of personal
     freedom. It was specifically guaranteed in the U.S.
     Constitution, Article I, Section 9: "The Privilege of the Writ
     of Habeas Corpus shall not be suspended unless when in Cases of
     Rebellion or Invasion the public Safety may require it."

     In England, Parliament has the power to suspend the writ of
     habeas corpus, an act that occurred in 1794 in reaction to the
     Reign of Terror in France. The U.S. Constitution failed to
     specify who may suspend habeas corpus, a cause of much
     controversy during the Civil War when President Abraham Lincoln
     suspended it. Chief Justice Roger B. TANEY challenged Lincoln
     by ruling in Ex parte Merryman (1861) that Congress alone could
     suspend habeas corpus and try disloyal persons in military
     courts. In EX PARTE MILLIGAN (1866), the Supreme Court held
     that neither Congress nor the president could order military
     trials in an area not in rebellion and where the federal courts
     were open.

     In some situations individuals may appeal to federal courts for
     a writ of habeas corpus on the ground that they have been
     deprived of DUE PROCESS of law or some other constitutional
     right. To reduce the number of repeated appeals of death
     penalty cases (see CAPITAL PUNISHMENT), the Supreme Court has
     reinterpreted earlier rules so that a second or subsequent
     petition for such a writ must be denied unless the petitioner
     can demonstrate "cause" for not having raised the issue before
     and can show that actual prejudice has been suffered as a
     result of the error (McClesky v. Zant, 1991).