An act performed by a government employee over which they have no discretion because of a rule, statutory, or constitutional demand. Ministerial acts are sources of judicial error upon which you can appeal and many of these are overlooked or ignored in family law.
Where the right not to associate is a core element of the First Amendment right of association, the “granting” of a divorce by a judge becomes a ministerial act. The judge cannot deprive you of your fundamental right to dissolve the intimate association of marriage. In applying constitutional law in family law, we look to the core nature of decisions that judges make and evaluate the degree of discretion the constitution permits to any given decision. Where the constitution provides limited discretion and the judge exceeds that limitation, the judge commits an error that can be appealed. You can even compel your judge to exercise the ministerial act by the special writ of mandamus or habeas corpus.
Ultimately, it is a rule of decision that establishes a ministerial act. The Supreme Court recognizes a differentiation between the role of an attorney and the role of a defendant regarding what choices an attorney may make for a defendant. Attorney’s generally are free to make choices regarding the legal strategies to pursue in support of a client’s choices of what rights to protect. The choice of whether or not to file an appeal is the defendant’s to make, not the attorney’s. Therefore, the filing of a notice of appeal is a ministerial act for the attorney where a defendant asks the attorney to file. The Court said, “The filing of a notice of appeal is a purely ministerial task that imposes no great burden on counsel. Within the division of labor between defendants and their attorneys, the ultimate authority to decide whether to take an appeal belongs to the accused. Garza’s attorney rendered deficient performance by not filing a notice of appeal in light of Garza’s clear requests. Simply filing a notice of appeal does not necessarily breach a plea agreement. Thus, counsel’s choice to override Garza’s instructions was not a strategic one. In any event, the bare decision whether to appeal is ultimately the defendant’s to make.”.« Back to Glossary Index