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Writ of prohibition not available to bar an executive action such as conducting an investigation

Writ of prohibition not available to bar an executive action such as conducting an investigation
Matter of Doe v Cuomo, 2010 NY Slip Op 02143, Decided on March 16, 2010, Appellate Division, Second Department

?John Doe? initiated a CPLR Article 78 action seeking a writ of prohibition* to bar NYS Attorney General Andrew M. Cuomo from proceeding with an investigation. Doe claimed that Cuomo?s investigation violated ?an immunity agreement.?

Supreme Court dismissed Doe?s petition and the Appellate Division affirmed the lower court?s action.

The Appellate Division explained that the ?extraordinary remedy of prohibition? may only be granted if the petitioner establishes a clear legal right to such relief. In this instance, said the court, the Attorney General is performing an executive act ? an investigation ? rather than acting in a quasi-judicial capacity.

A writ of prohibition is only available where a judicial or quasi-judicial action is involved. It is not available, said the court, to a petitioner seeking to ?prohibit? legislative, executive, administrative, or ministerial actions.**

Further, prohibition is not available even with respect to judicial or quasi-judicial actions ?if an adequate alternative remedy exists.?

* In addition to the writ of prohibition, Article 78 of the Civil Practice Law and Rules sets out the modern versions of three other "ancient writs" sometimes encountered in litigation involving a public entity: the writ of quo warranto [by what authority]; the writ of "mandamus" [seeking a court order directing an official to perform a ministerial act in contrast to a discretionary act] and the writ of "certiorari" [seeking an order by a superior court to a lower tribunal demanding the record of a particular case].

** In Town of Huntington v NYS Division of Human Rights, 82 N.Y.2d 783, the Court of Appeals said that the extraordinary writ of prohibition is available to address "whether [a] body or officer proceeded, is proceeding or is about to proceed without or in excess of [its] jurisdiction.? According to the ruling, "prohibition may be maintained solely to prevent or control a body or officer acting in a judicial or quasi-judicial capacity from proceeding or threatening to proceed without or in excess of its jurisdiction.?

Full post as published by New York Public Personnel Law on March 25, 2010 (boomark / email).