December 5, 2001

JUSTICE COOK delivered the opinion of the court:

Plaintiff alleges that the Director has imposed anunwritten policy of denying meritorious good time to any inmatewho enters DOC with a prior charge or conviction for domesticbattery or a pending order of protection. Plaintiff supportedthat allegation with the deposition of Judie Egelhoff, DOCTransfer Coordinator, in which she admitted the existence of thepolicy, and an article in the Illinois State Bar Association(ISBA) Criminal Justice newsletter Section Council hears fromGeorge E. DeTella, Associate Director of the Department ofCorrections, Vol. 43, No. 10 Criminal Justice (ISBA Springfield,Illinois) June 2000, at 7-8 by Donald R. Parkinson reporting onan appearance before the Criminal Justice Section Council of theISBA by George DeTella, associate director of DOC, in which he"outlined the repercussions for a defendant who enters DOC witheither a prior charge or conviction for domestic battery or apending order of protection. That inmate will probably notreceive meritorious good time." The Director does not deny theexistence of the policy, although he complains that plaintiff hasfailed to allege facts sufficient to show the existence of such apolicy. The trial court agreed. This appeal followed.

Mandamus is an extraordinary remedy. An order ofmandamus will not lie to direct the manner of performance of anaction which requires the exercise of discretion. Althoughmandamus may not be used to direct or alter the manner in whichdiscretion is to be exercised, it may be used to compel a publicofficial to in fact exercise the discretion that he possesses. Freeman v. Lane, 129 Ill. App. 3d 1061, 1063, 473 N.E.2d 584,585-86 (1985). Freeman was not a case where mandamus was used tocompel the exercise of discretion. In Freeman, it was allegedthat the director had surrendered his discretion and establisheda policy of regularly crediting good time to inmates who presented little or no disciplinary problem. The plaintiff inFreeman alleged that the director had not followed that policy inhis case and had not given him any credit. On those facts,Freeman held a claim for mandamus relief had been stated, becausethere was no discretion, because the facts "indicate that thediscretion vested with the director by law has been transformed,de facto, into a nondiscretionary policy for awarding good[-]timecredit." Freeman, 129 Ill. App. 3d at 1064, 473 N.E.2d at 586.

The Director properly distinguishes Freeman with theargument that, in the present case, there is no policy of awarding meritorious good-time credit; instead, there is a policy ofdenying meritorious good-time credit. "To the extent the Director has given up his discretion in this case, it was only thediscretion to award good[-]conduct credit to those with a pasthistory of domestic violence." Plaintiff cannot logicallycomplain that the Director has not followed a policy of denyingcredit. A policy of denying credit, however, may give rise to aclaim for mandamus where it amounts to a refusal to exercisediscretion. Mandamus may be used to compel the Director toexercise his discretion. Crump v. Illinois Prisoner ReviewBoard, 181 Ill. App. 3d 58, 62, 536 N.E.2d 875, 878 (1989).

A decision to grant or deny mandamus will be reversedon appeal only when it is against the manifest weight of theevidence. People ex rel. Braver v. Washington, 311 Ill. App. 3d179, 186, 724 N.E.2d 68, 73 (1999), appeal denied, 188 Ill. 2d581, 729 N.E.2d 503 (2000); Crump, 181 Ill. App. 3d at 60, 536N.E.2d 877 (abuse of discretion). We review de novo, however,the granting of a motion to dismiss a petition for mandamus. Neade v. Portes, 193 Ill. 2d 433, 439, 739 N.E.2d 496, 500(2000); Freeman, 129 Ill. App. 3d at 1063, 473 N.E.2d at 586. We disagree with plaintiff's argument that the Directormay not establish and follow policies in deciding questions ofgood-time credit, that the Director must "consider the individualrecord of the inmate" (emphasis in original), and that an "automatic disqualification of any individual, without examination ofthe individual record as a whole[,] does not equate to discretion" (emphasis in original). We agree with the trial court thatthe application of a policy "across the board" does not transformit into a nondiscretionary policy. The Director need not startfrom scratch with each request for good-time credit. The Director may attempt to treat similar cases similarly and developpolicies to achieve that end. Particular misconduct may bedeemed so serious as to warrant denial of good-time credit inalmost every case. Examples include convicts who "are smugglingdope into the institution" or who "have attacked a guard with ashiv." Braver, 311 Ill. App. 3d at 193, 724 N.E.2d at 78(Greiman, J., dissenting).

Although the Director may utilize policies, his abilityto do so is not unlimited. A policy of denying good-time creditto convicts who played basketball in high school, for example,would raise serious questions. The application of a particularpolicy must be rationally related to the furtherance of a legitimate governmental interest to comply with the requirements ofequal protection. Braver, 311 Ill. App. 3d at 190, 724 N.E.2d at76-77 (requiring an inmate to spend at least 60 days in DOCcustody before receiving good-time credit is rationally relatedto legitimate government interests). The question in this caseis whether the Director's policy of denying good-time credit tothose who have been charged with domestic battery is authorizedby the governing statutes.

Section 3-6-3 of the Unified Code of Corrections dealswith "early release on account of good conduct of persons committed to" DOC. 730 ILCS 5/3-6-3(a)(1) (West 2000). It seems clearthat the conduct to be considered is conduct during incarceration. The section goes on to bar or limit early release forthose convicted of certain crimes (not including domestic battery), similar to what the legislature does when it prescribespenalties for various offenses. The section provides for anincrease of good-conduct credit for inmates engaged in substance-abuse programs, DOC assignments, or educational programs. Thesection provides for revocation or reduction of good-time credit"for specific rule violations, during imprisonment." 730 ILCS5/3-6-3(c) (West 2000). Finally, the section provides forrevocation or reduction of good-time credit for prisoners filingfrivolous lawsuits against DOC or others. 730 ILCS 5/3-6-3(d)(West 2000). DOC rules and regulations similarly focus onconduct while incarcerated and provide no specific reference toconduct prior to incarceration, other than listing the offensesfor which the legislature provided that no credit, or reducedcredit, may be allowed. 20 Ill. Adm. Code