THE TREES CAN STAY (FOR NOW) – A LESSON ON WRIT OF MANDAMUS

By Patrick J. McBurney

April 12, 2022

In a recently published opinion, the Rhode Island Supreme Court addressed when it is and is not appropriate for the court to grant the issuance of a writ of mandamus. A writ of mandamus is used to compel the performance of an act by a public officer. In the case before the Rhode Island Supreme Court, Gloria Nerney v. Town of Smithfield, Ms. Nerney sued the Town of Smithfield seeking to compel the Town to order the removal of certain trees that were planted on Town property by another party, the Andersens. Ms. Nerney and others continually contacted the Town about the trees but never received a meaningful resolution as to why the trees (which were planted upon Town property) were allowed to stay.

Ultimately, Ms. Nerney turned to the judicial system for relief, seeking the entry of an order of mandamus compelling Town officials to order the removal of the trees. Unfortunately for Ms. Nerney, she fared no better before the court.

A writ of mandamus may issue when the function to be performed is a ministerial duty as opposed to discretionary duty. That is, when the action to be performed has no room for discretion, such as acceptance of a filing by the town clerk, then a writ of mandamus can issue. However, in this case, when the action involves a degree of discretion, such as how to deal with the location of the trees and whether to enforce various Town by-laws, then mandamus does not apply. Ultimately, the Court denied Ms. Nerney’s request for mandamus, but did suggest that she may have other remedies available to her, such as an action against the Andersens. For now, the trees can stay.

If you have questions on writ of mandamus or other legal issues, please contact PLDO Partner Patrick J. McBurney at 401-824-5100 or email pmcburney@pldolaw.com.

Disclaimer: This blog post is for informational purposes only. This blog is not legal advice and you should not use or rely on it as such. By reading this blog or our website, no attorney-client relationship is created. We do not provide legal advice to anyone except clients of the firm who have formally engaged us in writing to do so. This blog post may be considered attorney advertising in certain jurisdictions. The jurisdictions in which we practice license lawyers in the general practice of law, but do not license or certify any lawyer as an expert or specialist in any field of practice.

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