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)...
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- Section 1 Introduction
- Section 2 Purpose of Writ of Prohibition
- Section 3 Criteria for Application of Writ of Prohibition
- Section 4 Agency Actions in Excess of or Without Jurisdiction
- Section 5 Lack of Adequate Remedy at Law by Way of Appeal
- Section 6 Limitations on Judicial Review of Administrative Action by Prohibition
- Section 7 Exhaustion of Administrative Remedies
- Section 8 Standing
- Section 9 Justiciable Controversy
- Section 10 Jurisdiction and Venue
- Section 11 Pleadings, Record, and Briefs
- Section 12 Judgment
- Section 13 Review of Judgment and Standard of Review
- Section 14 Purpose of Writ of Mandamus
- Section 15 Criteria for Application of Writ of Mandamus
- Section 16 Clear, Existing, Unconditional Legal Right in Relator
- Section 17 Corresponding, Present, Imperative, Unconditional Duty of Respondent to Perform Requested Act
- Section 18 No Adequate Alternative Remedy
- Section 19 Enforcement and Control of Administrative Action by Mandamus
- Section 20 Mandamus Unavailable to Control Exercise of Lawful Agency Discretion
- Section 21 Exhaustion of Administrative Remedies
- Section 22 Standing
- Section 23 Jurisdiction
- Section 24 Pleadings, Record, and Briefs
- Section 25 Review of Judgment and Standard of Review
- Section 26 Statutory Mandamus and Prohibition
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