Miss. R. App. P. 21

As amended through March 21, 2024

Rule 21 - Writs of Mandamus and Prohibition Directed to a Judge or Judges and Other Extraordinary Writs

(a) Writs and Process, Supreme Court. The Supreme Court shall issue all writs and process necessary for the exercise and enforcement of its appellate jurisdiction and may enforce its mandates by fine and other appropriate sanctions.

(b) Writs and Process, Court of Appeals. The Court of Appeals shall issue writs and other process necessary for the exercise and enforcement of its jurisdiction, but a writ, order, or other process in any appeal not transferred to the Court of Appeals by the Supreme Court shall be of no effect.

(c) Mandamus or Prohibition To a Judge or Judges; Petition for Writ; Service and Filing. Application for a writ of mandamus or of prohibition directed to a judge or judges shall be made by filing a petition with the clerk of the Supreme Court with proof of service on the judge or judges and on all parties to the action in the trial court.

A petition for writ of mandamus, writ of prohibition, or other extraordinary writ shall not bear the name of the judge or judges, but shall be entitled, In re:____________, Petitioner. To the extent that relief is requested of a particular judge, unless otherwise ordered, the judge shall be represented pro forma by counsel for the party opposing the relief, who shall appear in the name of the party and not that of the judge, except that where the petition relates to a criminal case, the judge shall not be represented by the District Attorney's office but shall either represent himself/herself or be represented by the office of the Attorney General and/or private counsel retained by the judge. The petition shall contain a statement of the facts necessary to an understanding of the issues presented by the application and why it was denied by the trial court; a statement of the issues presented and of the relief sought; a statement of the reasons why the writ should issue; and certified copies of any order or opinion or parts of the record which may be essential to an understanding of the matters set forth in the petition. Upon receipt of the prescribed docket fee, the clerk of the Supreme Court shall docket the petition and submit it to the appellate court to which the case has been assigned.

(d) Denial; Notice Directing Answer. If the appellate court is of the opinion that the writ should not be granted, it will deny the petition without requesting an answer. Otherwise, the clerk of the Supreme Court will issue notice that an answer to the petition be filed by the Page 21.2 - MRAP 21 respondents within the time fixed by the notice. The notice shall be served by the clerk on the judge or judges and on all other parties to the action in the trial court. All parties below, other than the petitioner, shall also be deemed respondents for all purposes. Two or more respondents may answer jointly. The clerk shall advise the parties of the dates on which briefs are to be filed, if briefs are required, and of the date of oral argument. The proceeding shall be given preference over ordinary civil cases. The Supreme Court also may, in its discretion, treat the petition as a petition for permission to appeal under Rule 5 and order such further proceedings as the Court deems appropriate.

(e) Other Extraordinary Writs. Application for extraordinary writs other than those provided for in subdivisions (c) and (d) of this rule shall be made by petition filed with the clerk of the Supreme Court with proof of service on the parties named as respondents. Proceedings on such application shall conform, so far as is practicable, to the procedure prescribed in subdivisions (c) and (d) of this rule.

(f) Form of Papers; Number of Copies. All papers shall be typewritten or printed. Four (4) copies shall be filed with the original, but the court may direct that additional copies be furnished.

Miss. R. App. P. 21

Amended effective 1/1/1999.

Advisory Committee Historical Note

Effective January 1, 1999, Rule 21(d) was amended to effect technical changes. 717- 722 So.2d XXVII (West Miss.Cases 1998).

Effective January 1, 1995, Miss.R.App.P. 21 replaced Miss.Sup.Ct.R. 21 and added new subsections (a) and (b), embracing proceedings in the Court of Appeals. 644-647 So.2d LVLVII (West Miss.Cases 1994).

Comment

Rule 21 applies to all requests for remedial writs under Miss. Code Ann. 9-1-19 (Supp. 1994). Except for minor changes, it is identical to Fed. R. App. P. 21 as modified by 5th Cir. R. 21. With the exception of the writ of mandamus required by Rule 15, a party must seek relief in the trial court before obtaining the extraordinary relief of a remedial writ from the Supreme Court. The rule preserves the Mississippi requirement that papers attached to a petition must be certified. It does not require, however, that the petition be under oath. Petitions will be considered by a panel of the appropriate court rather than by a single justice or judge. In emergency circumstances in which panel consideration would be impractical due to requirements of time, however, a single justice or judge may hear the petition and issue a temporary stay pursuant to Rule 8. A single justice's or judge's decision not to grant a stay may be reviewed by the appropriate court.

The Supreme Court, under Rule 21(b), retains the discretion to treat the petition as a petition for permission to appeal under Rule 5 and to instruct the parties to proceed under that rule. See In re Brown, 478 So. 2d 1033 (Miss. 1985) (application for writ treated as emergency appeal).

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