Illinois Association of Defense Trial Counsel

P.O. Box 7288, Springfield, IL 62791

IDC Quarterly Vol. 12, No. 1 (12.1.75)

Appellate Practice Corner

By:Brad A. Elward
Heyl, Royster, Voelker & Allen, Peoria

Rule 381 Actions for Mandamus and Writs of Prohibition

A Practical Primer

In my last IDC Quarterly article, I discussed the use of Supreme Court Rule 383, which governs
requests for exercise of the court’s supervisory authority. For this issue, I thought it would be
appropriate to discuss the other direct means for obtaining Supreme Court review of the actions of a
trial judge, Rule 381, which governs writs of mandamus and prohibition. 188 Ill. 2d R. 381, 383. Both
rules provide for original actions and are considered extraordinary remedies; relief is afforded
infrequently. People ex rel. Modern Woodmen of America v. Circuit Court of Washington County, 347
Ill. 34, 39, 179 N.E. 441 (1931). In 1999, for example, only 93 such pleadings were filed with the
court, down from 109 the year prior.
Generally speaking, direct review to the Supreme Court is to be invoked only when a suitable
remedy cannot be obtained through the normal appellate process. Kellerman v. Crowe, 119 Ill. 2d 111,
518 N.E.2d 116, 115 Ill. Dec. 591 (1987). Rules 381 and 383 have their own unique purposes and
scenarios in which they are applicable; it is not uncommon,
however, for a party to file both, in the alternative, as a precaution. Neither provision contains an
automatic stay provision, which necessitates the filing of a concurrent motion to stay enforcement of
the circuit court’s order both during the pendency of the Rule 381 motion and its disposition.

Rule 381 – Mandamus Generally

Complaints seeking the entry of a mandamus order are considered civil actions and are in effect an
effort to command. See, e.g., Machinis v. Board of Election Commissioners, 164 Ill. App. 3d 763, 518
N.E.2d 270, 115 Ill. Dec. 745 (1st Dist. 1987). Mandamus actions are used to compel the performance
of a judicial act by a lower court in pending litigation in circumstances when the trial judge has clearly
violated a non-discretionary duty imposed by law. People ex rel. Carey v. White, 65 Ill. 2d 193, 195-
96, 357 N.E.2d 512, 2 Ill. Dec. 345 (1976); Daley v. Hett, 113 Ill. 2d 75, 495 N.E.2d 513, 99 Ill. Dec.
132 (1986). This is sometimes referred to as a “ministerial act” provision. Hampson v. Board of
Education, 215 Ill. App. 3d 817, 828, 576 N.E.2d 54, 159 Ill. Dec. 385 (1st Dist. 1991), app. denied,
142 Ill. 2d 654, 584 N.E.2d 129 (1991), cert. denied, 504 U.S. 944, 112 S. Ct. 2284 (1992).
The court has also granted mandamus concerning issues of great importance, even when all of the
normal criteria for its use were not present. People ex rel. Carey v. Strayhorn, 61 Ill. 2d 85, 88-89, 329
N.E.2d 194 (1975); Knuefer v. Fawell, 96 Ill. 2d 284, 291-92, 449 N.E.2d 1312 (1983) (issues were
novel and of crucial importance to the administration of justice). Even so, a Rule 381 motion
considers only issues of law, and it is typically not intended to address discovery disputes. People ex
rel. Baker v. Cowlin, 154 Ill. 2d 193, 195-96, 607 N.E.2d 1251, 180 Ill. Dec. 738 (1992); Owen v.
Mann, 105 Ill. 2d 525, 530-31, 475 N.E.2d 886, 86 Ill. Dec. 507 (1985).
Generally speaking, the court has granted mandamus in situations where it was important to the
administration of justice and the right to its issuance was clear. Where there are factual disputes
surrounding the issues, relief is unlikely to be given. Touhy v. State Board of Elections, 62 Ill. 2d 303,
312, 342 N.E.2d 364 (1976). Moreover, requests for issuance of mandamus may be denied if

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 Illinois Association of Defense Trial Counsel
P.O. Box 7288, Springfield, IL 62791
IDC Quarterly Vol. 12, No. 1 (12.1.75)

disposition of the issues presented would lead to public confusion, inconvenience, or fail to promote
substantial justice. People ex rel. Ryan v. Retirement Board Of Firemen’s Annuity & Beneficiary
Fund, 136 Ill. App. 3d 818, 483 N.E.2d 1037, 91 Ill. Dec. 551 (1st Dist. 1985). In any event, the
movant must show a clear legal right to the relief requested. Kramer v. City of Chicago, 58 Ill. App.
3d 592, 598, 374 N.E.2d 932, 16 Ill. Dec. 157 (1st Dist. 1978).

Rule 381 – Writs of Prohibition Generally

Writs of prohibition are the opposite of mandamus and seek to prevent an inferior court from taking
certain action that it is otherwise not empowered to do. Maloney v. Bower, 113 Ill. 2d 473, 498 N.E.2d
1102, 101 Ill. Dec. 594 (1986). These writs are typically even more difficult to obtain than writs of
mandamus. Hughes v. Kiley, 67 Ill. 2d 261, 367 N.E.2d 700, 10 Ill. Dec. 247 (1977). To obtain such
relief, the movant must show that the individual against whom the writ is sought is about to exercise
his judicial discretion in an manner unauthorized by the law, and further show that this exercise will
result in an injury for which no other adequate means of relief exists. People ex rel. Foreman v. Nash,
118 Ill. 2d 90, 514 N.E.2d 180, 112 Ill. Dec. 714 (1987).
Writs of prohibition may be issued only where four conditions are satisfied: (1) the act sought to be
prohibited is judicial or quasi-judicial in nature; (2) the jurisdiction of the tribunal against whom the
writ is sought must be inferior to that of the issuing court; (3) the act sought to be prohibited must be
either outside the jurisdiction of the tribunal, or, if within its jurisdiction, beyond its legitimate
authority; and (4) the movant must be without any other adequate remedy. People ex rel. No. 3 J. & E.
Discount, Inc. v. Whitler, 81 Ill. 2d 473, 410 N.E.2d 854, 43 Ill. Dec. 721 (1980). Again, this writ is
not intended to be a means to regulate standard discovery. See People ex rel. General Motors Corp. v.
Bua, 37 Ill. 2d 180, 226 N.E.2d 6 (1967).

How a Rule 381 Petition is Filed

From a procedural standpoint, a Rule 381 proceeding is commenced by filing a motion, supported
by explanatory suggestions, for leave to file a complaint seeking mandamus. 188 Ill. 2d R. 381(a). The
explanatory suggestions are essentially a memorandum explaining why the extraordinary relief is
required as well as the merits of the issue to be decided. Also to be included is a discussion of why the
movant cannot follow traditional appellate process.
It is fairly well accepted that direct relief is not available when a party has conventional appellate
options – this would include interlocutory appeals such as those available under Rules 304, 306(a),
and 307, and 308(a). The proposed complaint, which is attached to the motion, shall be sworn to and
shall contain or have attached to it the trial court records and other pertinent materials that will fully
enable the court to determine the issues of law. 188 Ill. 2d R. 381(a). A proposed order must also be
submitted.
For those opposing a Rule 381 motion, counsel should stress reasons why the extraordinary relief
as requested is unwarranted, that no undue harm will result from the status quo, or that the movant is
attempting to circumvent the regular appellate process.
A copy of these materials shall be served on the other parties, including the nominal party (in most
circumstances, the trial judge). 188 Ill. 2d R. 381(b)(c). The trial judge is not required to respond to
the matter unless ordered to by the court, and a failure by him to do so will have no prejudicial effect
on his ruling. His or her position is in effect argued by opposing counsel, although those pleadings are
not in the judge’s name. 188 Ill. 2d R. 381(c).
A response is due within seven (7) days, if service is personal or by facsimile, or fourteen (14) days
if by mail. Oral argument may be permitted “as the court may allow.” 188 Ill. 2d R. 381(d). If the Rule
381 motion is allowed, the party filing may prepare a brief pursuant to Rules 341 through 344 in

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 Illinois Association of Defense Trial Counsel
P.O. Box 7288, Springfield, IL 62791
IDC Quarterly Vol. 12, No. 1 (12.1.75)

support of the pleadings; alternatively, the party filing may elect to stand on his or her original papers
as the brief. 188 Ill. 2d R. 381(e).
The exact number of copies and method of filing depends in part on whether the court is in session.
If in session, papers are due in the Springfield office; if not in session, and the case arises from the
second, third, fourth, or fifth judicial district, the movant must file the original and one copy with the
clerk in Springfield, and send a copy to each justice of the court at the justice’s home district office.
188 Ill. 2d R. 381(a). If the case arises from the first judicial district, the movant must file the original
and five copies with the clerk in the Supreme Court’s Chicago office, and send a copy to each of the
remaining justices in their respective district offices. 188 Ill. 2d R. 381(a).

Practical Comments Concerning the Use of Rule 381

As noted above, while some decisions have held that Rule 381 is not considered a proper vehicle
for the regulation of discovery, it can be used for discovery issues under exceptional circumstances.
Marshall v. Elward, 78 Ill. 2d 366, 375, 399 N.E.2d 1329, 35 Ill. Dec. 801 (1980). With either type of
Rule 381 writ, the burden is on the movant to establish every material fact necessary to show the duty
of the resp. People ex rel. Council 19 of American Federation of State, County & Municipal
Employees v. Egan, 52 Ill. App. 3d 1042, 1045, 368 N.E.2d 481, 10 Ill. Dec. 886 (1st Dist. 1977).
Moreover, the pleadings must show that the right of performance is clear and unequivocal – this
expression, it is said, refers not to the evidence in the case, but rather to the facts as the underlying
court finds them. People ex rel. First National Bank v. Czaszewicz, 295 Ill. 11, 17, 128 N.E. 739
(1920). Therefore, if on the facts determined to exist on the evidence, the movant has a “clear and
unequivocal right” to have a duty performed or not performed, a writ will issue regardless of the
presence of conflicting testimony below. Taylor v. Wentz, 15 Ill. 2d 83, 91, 153 N.E.2d 812 (1958). In
mandamus, the right of the movant or the duty of the officer must be already established and cannot be
at issue in the mandamus proceeding. Bengsen v. City of Kewanee, 380 Ill. 244, 250-51, 43 N.E.2d
951 (1942).
In deciding whether to file a motion for leave to file a writ of mandamus or prohibition, remember
to always evaluate the nature of the proceeding below – is it discretionary or has the officer acted
contrary to an established law or acted in the face of a non-discretionary command? Moreover, if there
is any doubt, consider filing two pleadings – one under Rule 381 and one under Rule 383 – and advise
the court in each pleading that you are seeking alternative relief that might dispense with the particular
motion before it.
And finally, the court has been known to exercise its vast discretionary authority in appropriate
cases, despite the fact that the relief requested was in the form of a writ. See Balciunas v. Duff, 94 Ill.
2d 176, 189, 446 N.E.2d 242, 68 Ill. Dec. 508 (1983). Even in those cases where the act in question is
discretionary, some commentators have advocated filing a Rule 381 motion where a full written
opinion is desired; Rule 383 rulings are merely orders and are not full expositions of the case.

ABOUT THE AUTHOR: Brad A. Elward is a partner in the Peoria office of Heyl, Royster, Voelker &
Allen. He practices in the area of appellate law, with a sub-concentration in workers’ compensation appeals
and asbestos-related appeals. He received his undergraduate degree from the University of Illinois,
Champaign-Urbana, in 1986 and his law degree from Southern Illinois University School of Law in 1989.
Mr. Elward is a member of the Illinois Appellate Lawyers Association, the Illinois State, Peoria County,
and American Bar Associations, and a member of the ISBA Workers’ Compensation Section Counsel.

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