Lewis v. Superior Court , 82 Cal. Rptr. 2d 85 ( 1999 )

BAXTER, J.

I concur. I write separately only to emphasize that section 1088 of the Code of Civil Procedure¹ has authorized the issuance of peremptory writs in the first instance since 1872, prior to the adoption of the present California Constitution. Such writs issue not only to lower courts, but also to a “corporation, board, or person, to compel the performance of an act which the law specifically enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled . . . .” (§ 1085.) The writ may be issued by a superior court as well as an appellate court (ibid.) each of which has original jurisdiction over petitions for extraordinary writs of mandamus. (Cal. Const., art. VI, § 10.)

No distinction is made between issuance of a peremptory writ in the first instance by a superior court, or issuance of the writ to a nonjudicial respondent. The legislative authorization for issuance of a peremptory writ in the first instance reflects recognition that, on occasion, immediate judicial action is necessary to prevent or correct unauthorized or erroneous action by the respondent or to compel the respondent to act when required to do so. That respondent may be an elections official, a corporate officer, or a local sheriff who is refusing to perform a legally required act as to which there is great urgency.

Nothing in the debates in the constitutional convention preceding the adoption of the 1879 Constitution suggests that the drafters intended that any provision of article VI have any impact on the statutory authorization for, and practice of, appellate issuance of peremptory writs in the first instance without the delay necessitated by oral argument.

1 All statutory references herein are to the Code of Civil Procedure.