HomeMy WebLinkAboutA016 - Defendants' Brief on Resistance to Writ of Mandamus, Case No. 30323 f • • /o- t3
IN THE IOWA DISTRICT COURT
IN AND FOR STORY COUNTY
THOMAS H. HINDERS,
EQUITY NO. 30323
Plaintiff -
VS.
CITY OF AMES, et.al. DEFENDANTS' BRIEF ON
RESISTANCE TO WRIT OF
MANDAMUS
Defendants.
It is well established in Iowa that a writ of mandamus is a discre-
tionary remedy. A writ may be withheld, properly, even after concluding that
there is a legal duty for which mandamus could, appropriately, be issued.
Under some circumstances refusal of the writ is justified solely on equitable
principles and considerations of sound public policy. Iowa Power and Light
v Hicks, 228 Iowa 1085, 292 N.W. 826, 830 (1940) ; Baird v Webster City, 256
Iowa 1087, 130 N.W.2d 432 (1964) ; 52 Am Jur.2d Mandamus, Sections 32, 33, 34.
The writ should not be issued if there is a high risk that doing so will
be a useless and idle act because the passage of time or other occurrences
make effective compliance impossible. Cristopher v The District Court of
Iowa in and for Black Hawk County, 123 N.W.2d 892 (Iowa 1963) 52 Am Jur 2d,
Mandamus, Sec. 36. The county commissioner of elections has indicated that
such difficulty is a-matter of real concern in this case.
Additionally, it has been held that mandamus should not issue in cases
turning on a disputed construction of .a statute wherein an appeal would not
be frivolous. 52 Am Jur 2d, Mandamus, Sec 138. The public body should not
be denied that option. The questions involved in this case are too important
to be determined without a full litigation and in the short time before the
election a complete litigation could not be made. The matters in question
are of too vast an importance, the legality of the action too dubious, and
the consequences possibly too serious, to go further until the Supreme Court
has ruled on the legal duties, rights and powers at issue.
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Therefore, the court should deny the writ, or in the alternative,
fashion its remedy to reflect the relevant public policy considerations and
the equitable principles that come to bear. The plaintiff has not shown that
he has anything to lose, the public has a lot at stake. No transaction is
pending, proposed or foreseen in the next two years. The 1983 election
ought, therefore, to be soon enough to justly afford the plaintiff the
election he prays for.
Respectfully submitted,
John R. Klaus
City Attorney
5th & Kellogg
Ames, Iowa 50010
Phone: 232-6210, ext. 244
ATTORNEY FOR DEFENDANTS