Appellate Practice Tip: What is the Mandate?

In ordinary parlance, a mandate is an official order to do something, or alternatively, the authority to carry out a policy or course of action. Under T.R.A.P. 42, however, the mandate of the appellate court is defined as, “Copies, certified by the clerk of the appellate court, of the judgment, any order as to costs or instructions as to interest, and a copy of the opinion of the appellate court ....”
 
In the case of an appeal taken to the Supreme Court, the clerk of the Supreme Court shall transmit to the clerk of the trial court the mandate of the Supreme Court with notice to the parties. Rule 42(a) requires that this be done “Eleven days after entry of the judgment unless the court orders otherwise.” Since a petition for rehearing may be filed within 10 days after the date the decision is filed, the rule further provides that the timely filing of the petition for rehearing will stay the mandate until disposition of the petition for rehearing. If the petition is denied, as it almost always is, the mandate shall issue immediately upon the filing of an order denying the motion for rehearing. When the case is remanded to the Court of Appeals or Court of Criminal Appeals, a formal mandate shall not issue unless the Supreme Court orders otherwise.
 
The clerk of the Court of Appeals and the clerk of the Court of Criminal Appeals have the duty to transmit to the clerk of the trial court the mandate of the Court of Appeals or Court of Criminal Appeals. That mandate must be sent no later than 64 days after the entry of judgment unless the court orders otherwise. The timely filing of a petition for rehearing will stay the mandate temporarily. Rule 42 provides that the clerk of the appellate court is responsible for collecting the clerk’s fees and that the mandate should not be delayed for the taxing of costs.
 
In cases in which review by the Supreme Court of the United States is sought, the appellate court whose decision is sought to be reviewed may stay the mandate. (Emphasis added) The clear implication of Rule 42(c) is that the decision of whether to stay the mandate when an appeal is sought to the Supreme Court of the United States is within the sound discretion of the Tennessee appellate court. (Also, under Rule 42(d), the court possessing the power to stay a mandate also includes the power to recall a mandate.)
 
Once the mandate is issued by the appellate court, the clerk of the trial court has the responsibility to promptly file it. See T.R.A.P. 43(a). If the appellate court has dismissed the appeal or affirmed the judgment of the trial court, once the mandate is filed in the trial court, the prevailing party may issue execution to enforce the judgment. T.R.A.P. 43(b).
 
The mandate is simply the order of the appellate court that disposes of the case in the appellate court and sends the case back to the trial court to handle the case. If the trial court is affirmed, the mandate allows the prevailing party to proceed. If the appeal is dismissed, the mandate gives the trial court the authority to conduct post-judgment proceedings, if any. It is important for appellate practitioners to understand the significance of the appellate court mandate and not to confuse it with the appellate court’s opinion, which is only a part of the mandate.

George "Buck" Lewis is a shareholder at Baker Donelson, former TBA president and chairs the Appellate Practice Law Section. 
 
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