Section 4 Presently Existing, Clearly Established Right

• Library: Remedies 2006

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 for direct challenge to validity or constitutionality of statute; declaratory judgment is proper relief); St. Louis Police Officers’ Ass’n v. Sayad, 685 S.W.2d 913, 916–17 (Mo. App. E.D. 1984) (mandamus is 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 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 employees should be allowed to offer evidence of the reasons for the firing because, if the city did have an improper motive, the employees would have shown a clearly established right to relief.

In State ex rel. Meyer v. Ravenhill, 20 S.W.3d 543 (Mo. App. W.D. 2000), the relator’s child support obligation was raised by the Division of Child Support Enforcement from $100 to $843 per month. The relator sought disclosure of information concerning the Division’s method for determining how much income was imputed to him in calculating the amount of child support due. The Division resisted on the basis of an asserted statutory privilege. The relator sought and received a preliminary writ of mandamus. The court of appeals, however, quashed the writ because it appeared that the relator’s lawsuit may have been untimely, thus undermining any clearly established right that he might have had to disclosure of the information.

A second, related issue is the dichotomy between a ministerial duty and a discretionary act. Mandamus will lie to compel the...