Section 13.4 Presently Existing, Clearly Established Right

• Library: App Ct Prac 2015 Supp

2. (§13.4) Presently Existing, Clearly Established Right

The existence of a presently existing, clearly established right is the most important condition for the issuance of the writ of mandamus and what distinguishes it from other remedies that might be available. The purpose of the writ is “to execute, not adjudicate.” Clay v. Dormire, 37 S.W.3d 214, 218 (Mo. banc 2000) (quoting State ex rel. Mo. Growth Ass’n v. State Tax Comm’n, 998 S.W.2d 786, 790 (Mo. banc 1999)). See also State ex rel. Johnson v. Griffin, 945 S.W.2d 445, 446 (Mo. banc 1997) (citing cases).

The right to relief must already exist. The relator cannot use the proceeding to establish new rights or even to have the court decide whether a right exists. State ex rel. Mason v. County Legislature, 75 S.W.3d 884, 888 (Mo. App. W.D. 2002) (mandamus not available to directly challenge validity or constitutionality of statute; declaratory judgment proper remedy); St. Louis Police Officers’ Ass’n v. Sayad, 685 S.W.2d 913, 916–17 (Mo. App. E.D. 1984) (mandamus inappropriate to establish that police regulations violate constitutional rights). On the other hand, the relator may offer evidence of underlying facts that, if the court finds them to be true, would show the existence of a clearly established right. In State ex rel. Missey v. City of Cabool, 441 S.W.2d 35 (Mo. 1969), City employees alleged that they were fired for discriminatory reasons in violation of the state collective bargaining statute. The Court held that the...