PART VI EQUITY ACTIONS
31 Mandamus
KIMBERLY E. BLAIR
TYLER S. MERTES
Gordon & Rees LLP
Chicago
The contribution of Julia K. Oltmanns to the prior edition of this chapter
is gratefully acknowledged.
A. [31.1] Cause of Action
Extraordinary action used to compel performance of a ministerial act or mandatory duty when
there is a clear legal right in the plaintiff and a corresponding duty in the defendant. The only
purpose of a mandamus proceeding is to enforce rights already vested. Doe v. Carlson, 250
Ill.App.3d 570, 619 N.E.2d 906, 189 Ill.Dec. 205 (2d Dist. 1993).
B. [31.2] What Law Controls
Extensive common law exists. E.g., Hampson v. Board of Education, 215 Ill.App.3d 817, 576
N.E.2d 54, 159 Ill.Dec. 385 (1st Dist. 1991); Crump v. Illinois Prisoner Review Board, 181
Ill.App.3d 58, 536 N.E.2d 875, 129 Ill.Dec. 825 (1st Dist. 1989).
Statutory law is also controlling. Article 14 of the Code of Civil Procedure, 735 ILCS 5/14-
101, et seq., governs the procedure in mandamus actions.
C. [31.3] Elements
1. The defendant has a clear preexisting duty to act. Thomas v. Village of Westchester, 132
Ill.App.3d 190, 477 N.E.2d 49, 53, 87 Ill.Dec. 448 (1st Dist. 1985).
2. The plaintiff has a clear right to the performance of that duty. Id.
3. If a plaintiff is bringing the claim to enforce a public right, the plaintiff must show that he
or she is a member of the public and that the public is entitled to enforcement of the right.
Retail Liquor Dealers Protective Association of Illinois v. Schreiber, 382 Ill. 454, 47
N.E.2d 462, 464 (1943).
4. If a plaintiff is bringing the claim to enforce a private right, the plaintiff must show his or
her personal interest in and right to the relief requested. Solomon v. City of Evanston, 29
Ill.App.3d 782, 331 N.E.2d 380, 386 (1st Dist. 1975).
©COPYRIGHT 2008 BY KIMBERLY E. BLAIR AND TYLER S. MERTES.
5. The defendants duty is ministerial and does not involve the exercise of discretion.
Noyola v. Board of Education of City of Chicago, 179 Ill.2d 121, 688 N.E.2d 81, 86, 227
Ill.Dec. 744 (1997).
6. A demand on the defendant to perform the duty and his or her refusal or failure to act are
necessary to enforce a private right. People ex rel. Daley v. Schreier, 92 Ill.2d 271, 442
N.E.2d 185, 187, 65 Ill.Dec. 874 (1982); Thornton v. Ramsey, 24 Ill.App.2d 452, 165
N.E.2d 65, 67 (1st Dist. 1959). A demand and refusal are not required to enforce a public
right. Murphy v. City of Park Ridge, 298 Ill. 66, 131 N.E. 256 (1921).
D. [31.4] Jury Instructions
None. The decision to issue or refuse to issue a writ of mandamus is within the courts
discretion. In making its determination, the court will examine all the facts and circumstances,
including the consequences of granting relief. People ex rel. Harrison v. Kelly, 391 Ill. 136, 62
N.E.2d 705, 706 (1945).
E. [31.5] Statute of Limitations
It is unclear from the caselaw what, if any, statute of limitations period applies to mandamus
actions.
Five years. Some cases have applied the standard five-year limitations period provided in
735 ILCS 5/13-205. People ex rel. Roach v. Dunham, 328 Ill.App. 584, 66 N.E.2d 446 (1st Dist.
1946) (abst.) (five-year period of limitations applicable to mandamus action brought by
temporary employees of park districts to establish status as civil service employees); First Trust
& Savings Bank v. City of Park Ridge, 242 Ill.App. 574 (1st Dist. 1926) (five-year limitations
period applied to bondholders mandamus action to compel city to collect unpaid assessment
installments).
No limitation. Some cases have held that there is no limitations period in suits for
mandamus. People ex rel. Stubblefield v. City of West Frankfort, 340 Ill.App. 443, 92 N.E.2d
531, 533 (4th Dist. 1950) (statute of limitations is not applicable to an action for mandamus).
F. [31.6] Parties
Proper plaintiff. Any person or persons seeking performance of an official act. When
seeking a mandamus action, the plaintiff must accomplish the following:
1. A person enforcing a private right must demonstrate his or her personal interest in the
matter.
2. A person enforcing a public right must show that he or she is an interested citizen.
Proper defendants. All persons or corporations whose rights will be directly affected by the
grant of mandamus or whose cooperation or action is essential to execute the duty involved.
People ex rel. School District 118 v. Reinhardt, 21 Ill.2d 153, 171 N.E.2d 660 (1961). In
mandamus actions, the following considerations should be taken with respect to defendant
parties:
1. Proceedings against public officials should be made against them in their official
capacities if the duty to be discharged involves the exercise of powers attendant to that official
position. Trost v. Tynatishon, 12 Ill.App.3d 406, 299 N.E.2d 14 (3d Dist. 1973).
2. A successor officer may be named as defendant when the original defendant has died, has
resigned, or has been removed from office. 735 ILCS 5/14-107.
3. An order of mandamus may not be issued against an individual unless he or she occupies
an official or quasi-official position. People ex rel. Wilson v. Mottinger, 212 Ill. 530, 72 N.E. 906
(1904).
G. [31.7] Special Considerations
Even if the plaintiff establishes a prima facie right to a writ of mandamus, the court may still
exercise its discretion and deny relief. Swift v. People ex rel. Powers, 63 Ill.App. 453 (1st Dist.
1896).
Mandamus actions are generally brought in one of the following fact situations: (1) against
judicial officers and tribunals; (2) against public officers, boards, and municipalities; and (3)
against private corporations and officers.
An order of mandamus is normally used in the judicial system only to confine an inferior
court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority
when it has a duty to do so.
Traditionally, mandamus was available only to compel what should be done, not to undo an
act already completed. Nevertheless, recent cases indicate that mandamus may be available to
compel the undoing of an act. See, e.g., People ex rel. Bier v. Scholz, 77 Ill.2d 12, 394 N.E.2d
1157, 1158, 31 Ill.Dec. 780 (1979).
Mandamus cannot be used to prevent the performance of an illegal act (School Directors v.
Wright, 43 Ill.App. 270 (4th Dist. 1892)) or to prevent a seizure or confiscation of property in the
plaintiffs possession (Grand Lodge Knights of Pythias v. People ex rel. Waldeck Lodge No. 136,
60 Ill.App. 550 (1st Dist. 1895)).
H. [31.8] Remedies Special Issues
Section 14-105 of the Code of Civil Procedure states:
If judgment is entered in favor of the plaintiff, the plaintiff shall recover
damages and costs. If judgment is entered in favor of the defendant, the defendant
shall recover costs. 735 ILCS 5/14-105.
The statute does not authorize the awarding of attorneys fees. Wayne Township Board of
Auditors v. Vogel, 68 Ill.App.3d 714, 386 N.E.2d 91, 24 Ill.Dec. 887 (2d Dist. 1979).
If the court feels relief is appropriate, it can issue an order of mandamus compelling an
official or body to act. The order should be definite, certain, and contain clear direction as to the
specific acts to be performed. Bengson v. City of Kewanee, 380 Ill. 244, 43 N.E.2d 951, 955 956
(1942).
I. [31.9] Checklist for Complaint
1. Jurisdictional facts.
2. Venue.
3. Capacity of defendant public or private official, body, or corporation.
4. Nature of defendants clear, ministerial duty to act.
5. Allegation that defendants duty has not been performed.
6. Plaintiffs interest in and clear right to the performance of the duty (as a member of the
public or as a private individual with a personal interest).
7. Demand was made on defendant to perform the duty, and defendant refused or failed to
act (if plaintiff is enforcing a private right).
8. Prayer for relief identifying the specific act sought to be performed.
J. [31.10] Affirmative Defenses Specific to Cause of Action
1. Mandamus would create disorder and confusion and would not promote substantial
justice. Freeman v. Lane, 129 Ill.App.3d 1061, 473 N.E.2d 584, 586, 85 Ill.Dec. 216 (3d
Dist. 1985).
2. A judgment of mandamus would injure the rights of third persons or relieve plaintiff of
the consequences of his or her own mistakes. Leisuretime Recreation Center VI, Inc. v.
Byrne, 93 Ill.App.3d 489, 417 N.E.2d 658, 662, 48 Ill.Dec. 926 (1st Dist. 1981).
3. Mandamus would give no practical benefit to plaintiff. Flynn v. Kucharski, 53 Ill.2d 88,
290 N.E.2d 1, 3 (1972).
4. Administrative review of defendants failure to act is available. Kren v. Civil Service
Commission of City of Springfield, 215 Ill.App.3d 642, 574 N.E.2d 1289, 158 Ill.Dec.
896 (4th Dist. 1991).
5. The act requested is unlawful or defendant no longer has the power to perform the act.
People ex rel. Cannella v. City of Chicago, 7 Ill.2d 416, 131 N.E.2d 98, 99 (1955).
6. The doctrine of laches may apply to petitions for mandamus. Negron v. City of Chicago,
376 Ill.App.3d 242, 876 N.E.2d 148, 315 Ill.Dec. 148 (1st Dist. 2007).
K. [31.11] Related Actions
A mandamus action is used to compel the performance of an act, whereas an injunction is
used to prevent the performance of an illegal or wrongful act.
L. [31.12] Sample Form
[Caption]
COMPLAINT FOR MANDAMUS
Plaintiff, ____________, states as follows:
1. Plaintiff resides in ________________ County, Illinois.
2. Defendant resided at all relevant times in ______________ County, Illinois, and was
the duly elected or appointed [identify office held by Defendant].
3. According to the provisions of [statute] [ordinance], it was the duty of Defendant as
[name of office] to [describe officers duty].
4. Defendant did not perform this duty even though [he] [she] was required and
capable of doing so.
5. Plaintiff has an interest in and a clear right to the performance of this duty because
[describe Plaintiffs personal interest in the matter, if Plaintiff is enforcing a private right, or
Plaintiffs interest as a citizen if he or she is enforcing a public right].
6. [If Plaintiff is enforcing a private right, state] On approximately [date], Plaintiff
requested that Defendant [describe action requested], and Defendant refused and still refuses
to perform [his] [her] duty.
7. As a result of Defendants failure to act, Plaintiff has been injured in that [describe
injury].
WHEREFORE, Plaintiff requests the following of the Court:
A. That a judgment of mandamus be entered against Defendant;
B. That Defendant be required to [describe duty to be performed]; and
C. For such other relief as the Court may deem appropriate.
[Firm Name]
By: _____________________________
Attorney for Plaintiff
[Date]
