Section 7 Statutory or Constitutional Rights

• Library: Remedies 2006

Even though a statute may not specify that mandamus is an appropriate method of enforcement, it may nevertheless
provide the “clearly established right” that may be enforced with the writ. For example, a party may use mandamus to enforce a statutory right to a trial de novo following a trial in the associate circuit court. State ex rel. JCA Architects, Inc. v. Schmidt, 751 S.W.2d 756, 757 (Mo. banc 1988). Mandamus is available to compel the speaker of the House of Representatives to issue a subpoena when the statute provides that “subpoenas . . . shall be issued.” In re Marshall, 478 S.W.2d 1, 3 (Mo. banc 1972).

A person can obtain a writ of mandamus to enforce the right to have a prior conviction expunged from the records of the Department of Corrections under a statute in effect at the relevant time. Clay v. Dormire, 37 S.W.3d 214, 218 (Mo. banc 2000). An inmate can use a petition for a writ of mandamus to obtain a review hearing under § 217.375.2, RSMo Supp. 2005, every 90 days concerning whether the inmate should be released from protective custody into the prison’s general population, State ex rel. Haley v. Groose, 873 S.W.2d 221, 223 (Mo. banc 1994), or to obtain a determination of whether the inmate is entitled to be released from prison on some future date as a result of clear statutory provisions, State ex rel. Nixon v. Pennoyer, 36 S.W.3d 767, 770 (Mo. App. E.D. 2000). Inmates may bring a mandamus action to correct sentences to run concurrently rather than consecutively, State ex rel. LaChance v. Bowersox, 119 S.W.3d 95 (Mo. banc 2003), or to require the sentencing court to credit the inmate for time served, State ex rel. Gater v. Burgess, 128 S.W.3d 907 (Mo. App. W.D. 2004). The state may obtain mandamus to compel a judge to impose penalties for certain crimes when the penalties are required by statute. State...