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 not 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

• Government Law Center of Albany Law School
• Bureaucracy
• Common law
• Equity (law)
• Writs