Legal Memorandum: Writ of Mandamus as a Permissible Remedy

Issue: Is a writ of mandamus over the appointment of a receiver a permissible remedy for a party seeking to have a government official allocate funds for a specific purpose?

Area of Law: Administrative Law, Administrative Law & Regulation (Federal and State)
Keywords: Writ of mandamus; Appointment of receiver; Allocation of government funds
Jurisdiction: Marshall Islands
Cited Cases: None
Cited Statutes: None
Date: 11/01/2007

Those cases which state that mandamus is an alternative remedy when appointment of a receiver for a governmental entity is not permitted on separation of powers grounds all involved a situation where a judgment had not been obtained and there was, (presumably, although it was unspecified in the opinions) a public official available against whom a writ of mandamus could issue mandating the allocation of funds for a specified purpose.  Typically the cases involved a city or town which had issued bonds to finance a public improvement district, which district had then failed to pay the bondholders.

While the cases are not particularly helpful to the case where a party is seeking a receiver in aid of execution, the circumstances may be such as to make mandamus a possible remedy.  The following requirements must be met:

(1) the official must be required by law to perform the duty sought and duty must be non-discretionary; (2) the official must have neglected or refused to perform the duty; (3) the party applying for the writ must have a clear legal right to have the duty performed and there must be no other sufficient remedy.

Kabua v. Kabua, 1 MILR (Rev.) 247 (Dec. 20, 1991) (emphasis added).  Of course, this assumes that the official would comply with the writ of mandamus, which given the instant background and circumstances seems to be questionable at best.


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