Ministerial act

In United States law, 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. Hill, Gerald N. (2002). The people's law dictionary: taking the mystery out of legal language. New York, NY: MJF Books. ISBN 9781567315530. (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 Archived 2006-10-11 at the Wayback Machine.
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