Section 17 Corresponding, Present, Imperative, Unconditional Duty of Respondent to Perform Requested Act

• Library: Administrative Law 2011

The second requirement for issuance of a writ of mandamus is
a present, imperative, unconditional duty on the part of the respondent to perform the act requested by the relator. State
ex rel. Power Process Piping, Inc. v. Dalton, 681 S.W.2d 514,
516 (Mo. App. E.D. 1984). Mandamus will issue only to enforce performance of acts that the party commanded has a clear, unconditional, legal duty to perform. See State ex rel. McDonald’s Corp. v. Daly, 748 S.W.2d 51, 54 (Mo. App. E.D. 1988) (mandamus denied because the relator had not performed the conditions precedent to the respondent’s duty to issue a building permit).

Mandamus is only appropriate to require the performance of a ministerial act, and it cannot be used to control the judgment or discretion of a public official. See:

Pub. Sch. Ret. Sys. of Sch. Dist. of Kansas City v. Mo. Comm’n on Human Rights, 188 S.W.3d 35, 42 (Mo. App. W.D. 2006)

State ex rel. Bunker Res., Recycling & Reclamation, Inc. v. Dierker, 955 S.W.2d 931, 933 (Mo. banc 1997)

State ex rel. Bd. of Health Ctr. Trs. of Clay County v. County Comm’n of Clay County, 896 S.W.2d 627, 631 (Mo. banc 1995)

Whether an act can be characterized as discretionary depends on the degree of reason and judgment required. Kanagawa, 685 S.W.2d at 836. A discretionary act requires the exercise of reason in the adaptation of means to an end and discretion in determining how or whether an act should be done or course pursued. Id. A ministerial function, in contrast, is one “of a clerical nature which a public officer is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to his own judgment or opinion concerning the propriety of the act to be performed.” Id. (internal citations omitted). The determination of whether an act is discretionary or ministerial is made on a case-by-case basis, considering:

(1) the nature of the public employee’s duties;

(2) the extent to which the act involves policymaking or exercise of professional judgment; and

(3) the consequences of not applying official immunity.

Southers v. City of Farmington, 263 S.W.3d 603, 610 (Mo. banc 2008. “As applied to a public official, a ministerial act is defined as an act that the law directs the official to perform upon a given set of facts, independent of what the officer may think of the propriety or impropriety of the act in a particular case.” State
ex rel. Kessler v. Shay, 820 S.W.2d 311, 314 (Mo. App. W.D. 1991)...