783.01 Mandamus, return to first writ. Mandamus is a civil action. The writ of mandamus shall specify the time within which the defendant shall make return thereto. Before such time expires the defendant may move to quash the writ and such motion shall be deemed a motion to dismiss the complaint under s. 802.06 (2).
History: Sup. Ct. Order, 67 Wis. 2d 585, 762 (1975); 1979 c. 32 s. 60; Stats. 1979 s. 783.01.
The necessity of resolving by construction an apparent ambiguity in statutes to arrive at the nature of the duty sought to be compelled does not preclude resort to mandamus as a remedy. Morrissette v. DeZonia, 63 Wis. 2d 429, 217 N.W.2d 377 (1974).
Mandamus lies to compel an official to perform prescribed duties that are clear and unequivocal when the responsibility to act is imperative and the petitioner shows substantial damage will result from failure to perform the act. Burns v. City of Madison, 92 Wis. 2d 232, 284 N.W.2d 631 (1979).
It is an abuse of discretion to compel an action through mandamus when the duty to act is not clear and unequivocal and requires the exercise of discretion. A writ of mandamus to compel town officials to enforce ordinances was properly denied. Vretenar v. Hebron, 144 Wis. 2d 655, 424 N.W.2d 714 (1988).
The elements of a writ of mandamus are: 1) a clear legal right; 2) a plain and positive duty; 3) substantial damages or injury should the relief not be granted; and 4) no other adequate remedy at law. Voces de la Frontera, Inc. v. Clarke, 2017 WI 16, 373 Wis. 2d 348, 891 N.W.2d 803, 15-1152.
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