Ministerial act
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
- ^ The Free Dictionary (quotation redacted and ellipses removed).
- ^ Id.; Ballentine's Law Dictionary, p. 341.
- ^ Ballentine's, supra.
- ^ 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.
- ^ See: California Tax regulations.
- ^ 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).
- ^ :Virginia Land Use law, supra, citing Town of Jonesville v. Powell Valley Village LP, 254 Va. 70 (1997).
- ^ Virginia Land Use law, supra, citing Planning Comm'n of City of Falls Church v. Berman, 211 Va. 774 (1971).
- ^ Ministerial Act news
- ^ Second Circuit Blog, citing Burell V. United States, No. 05-2945-cr (2nd Cir. 2006)(decision by Sotomayor, J.), at [1].
- ^ See, supra, California Tax regulations
- ^ Virginia Land Use law, supra, citing Phillips v. Telum, Inc., 223 Va. 585 (1982).
- ^ 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).