Two different forms the mandamus order itself can take, reflecting different procedural stages of the case.
In jurisdictions that preserve the traditional common-law structure of mandamus procedure, courts can issue two different types of writs depending on how far the case has progressed: the alternative writ and the peremptory writ.
The alternative writ
An alternative writ gives the respondent a choice: either perform the requested act immediately, or appear before the court and show cause why the act should not be required. This form functions as an intermediate procedural step, giving the respondent an opportunity to contest the petition before a final order issues.
The peremptory writ
A peremptory writ is the final, unconditional command — an order that the respondent must perform the act, issued after the court has considered the respondent's response (or the respondent's failure to respond at all).
Why this two-step structure exists
This structure reflects mandamus's historical origins as a writ that commanded immediate compliance while still preserving basic due process for the respondent, who is entitled to be heard before a court issues a final, unconditional order.
Modern procedural variation
Many jurisdictions, including the federal system, have streamlined this traditional two-step process into a more conventional civil litigation framework — a complaint, an answer or motion to dismiss, and a final judgment — without formally using the "alternative" and "peremptory" terminology, even though the underlying logic (a chance to respond before a final order issues) remains similar.
Where the traditional terminology still appears
Some state courts, particularly in appellate mandamus practice, continue to use "alternative writ" and "peremptory writ" terminology explicitly in their procedural rules and opinions, so petitioners in those jurisdictions should become familiar with the specific local practice.
The statutory sequence, order by order
California states the two-step structure in terms clear enough to serve as a model for the states that still use it. Cal. Civ. Proc. Code § 1086 conditions the writ on the absence of a plain, speedy, and adequate remedy in the ordinary course of law and on a verified petition by a beneficially interested party. Section 1087 then supplies the two forms, and § 1088 controls which one may issue first.
| Stage | What the order commands | What the respondent must do | What happens next |
|---|---|---|---|
| Verified petition, Cal. Civ. Proc. Code § 1086 | Nothing yet; it asks for the writ | Nothing until the court acts | The court issues an alternative writ, sets an order to show cause, denies summarily, or grants a peremptory writ if notice was given |
| Alternative writ, § 1087 | Perform the act immediately or at a specified time, or show cause why it has not been performed | Comply, or appear on the return day and file a return | If the act is performed the proceeding ends; if not, the court hears the matter |
| Order to show cause | The modern substitute in most courts: appear and explain, without the conditional command | File a written return, by demurrer or answer | Hearing on the return |
| Peremptory writ, § 1087 | The same command with the show-cause language omitted: perform the act | Comply | Enforcement by contempt if the respondent does not |
| Peremptory writ in the first instance, § 1088 | Immediate, unconditional command | Comply | Available only where the application was made on due notice; without notice the alternative writ must issue first |
Ohio codifies the same limit from the other direction: Ohio Rev. Code § 2731.06 allows a peremptory writ in the first instance only where the right is clear and no valid excuse for nonperformance can be given, and requires the alternative writ in every other case.
The federal equivalent of the alternative writ
Federal courts abolished the forms and kept the sequence. Fed. R. Civ. P. 81(b) abolished the writ of mandamus in the district courts, so relief that would once have been sought by writ is obtained through an ordinary civil action or a motion — which is why a federal delay case is filed as a complaint under 28 U.S.C. § 1361 rather than as a petition for an alternative writ.
In the courts of appeals the two-step structure survives in Fed. R. App. P. 21. Under Rule 21(b)(1) the court may deny the petition without an answer; otherwise it orders the respondent to answer within a fixed time, and relief cannot be granted until that order has issued. That order does the work the alternative writ once did: it converts a one-sided filing into a proceeding the respondent must address. Rule 21(b)(4) adds a feature with no state analogue — the trial-court judge may address the petition only if invited or ordered to do so.
What neither form of the writ settles
The distinction between the two writs is procedural, and it is worth being clear about what does not change when the peremptory writ finally issues.
- The command is the act, not the outcome. A peremptory writ ordering an official to decide leaves the official free to decide against the petitioner.
- Summary denial decides little. Refusing an alternative writ is often a one-line disposition, and it is not a ruling that the petitioner was wrong on the merits.
- Compliance moots the case. A respondent who performs before the return day usually ends the proceeding, which can leave the petitioner without a judgment even after obtaining the substance of the relief.
- Discretion survives to the end. The court may decline the peremptory writ after issuing the alternative one, since neither form is available as of right.
- Enforcement is contempt, not substitution. The court compels the respondent to act; it does not perform the act itself.
Key points
- Cal. Civ. Proc. Code § 1087 defines both forms: the alternative writ carries a show-cause option, the peremptory writ is the same command with that option removed.
- Under Cal. Civ. Proc. Code § 1088, a peremptory writ may issue in the first instance only if the application was made on due notice.
- Ohio Rev. Code § 2731.06 permits a peremptory writ first only where the right is clear and no valid excuse can be given.
- Fed. R. Civ. P. 81(b) abolished the writ in district courts, so the federal claim is filed as a civil action under 28 U.S.C. § 1361.
- The order to answer under Fed. R. App. P. 21(b)(1) is the federal analogue of the alternative writ, and relief cannot be granted before it issues.