A writ of prohibition is a judicial order that may be used, at a higher court's discretion, to prevent a lower court from interfering with the higher court's determination of a case pending an appeal. Writs of prohibition are sometimes issued to prohibit a lower court from issuing orders over matters over which it has no jurisdiction. Alternatively, the writ may also be used to prevent re-litigating issues that have already been decided by a higher court.
A writ of prohibition has been described as a "drastic remedy," and the legal equivalent of the equitable remedy of injunction (see In re Vargas). As a result, any petition for the writ should only be granted where the petitioner has no other adequate means of relief. New York courts have further explained that even where the requirements for a writ of prohibition are met, the remedy is not mandatory, and courts hold the ultimate discretion on whether to exercise this authority. In making this decision, courts consider a variety of factors, for example:
- The gravity of the harm caused by excess power
- The availability (or the lack of) an adequate remedy on appeal, and
- The remedial effectiveness of prohibition if such an adequate remedy does not exist.
One example of an appropriately granted writ of prohibition can be seen from the New York Court of Appeals case Soares v. Herrick, 981 N.E. 2d 260 (N.Y. 2012), in which the judge of a county court, in excess of his discretion, disqualified the district attorney from prosecuting a criminal case. The appellate division granted a writ of prohibition to null the county court judge's order, which the Court of Appeals upheld on the grounds that the county court could not demonstrate any “actual prejudice” that would arise from keeping the district attorney on the case.
In United States v. Hoffman, 71 U.S. 158 (1866), the Supreme Court ruled that the writ of prohibition can only be used to prevent what is about to or could be done, not as a remedy for acts that are already completed. If a court to which a writ of prohibition is intended to be directed has already disposed of a case, the case cannot be undone, and the writ should not be granted.
In essence, the difference between the writ of mandamus and the writ of prohibition is that the former is an affirmative act, whereas the latter is only intended to suspend an action.
[Last updated in July of 2024 by the Wex Definitions Team]