269 A.3d 753
R.I.2022Background
- In 2010 Richard and Janice Andersen replaced a wall and planted 32 trees/plants immediately behind the wall on a Smithfield municipal right-of-way without Town approval; their 2010 soil-erosion permit authorized work only on their own property.
- Neighbors, including pro se plaintiff Gloria Nerney, repeatedly complained to Town officials about the plantings; separate litigation by others produced a permanent injunction limiting tree height.
- Nerney sued the Town in Superior Court seeking an order (in substance a writ of mandamus) compelling the Town to remove the trees and enforce applicable laws and permit terms.
- The Town moved to dismiss under Rule 12(b)(6), arguing mandamus was inappropriate because enforcement/removal decisions are discretionary.
- The Superior Court granted the motion, concluding the Town’s decision to enforce or remove was an executive/discretionary function, not ministerial; Nerney appealed and the Supreme Court of Rhode Island affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a writ of mandamus may compel the Town to remove the trees/plants | Nerney argued the Town had a legal duty to enforce laws and remove the illegally planted trees — i.e., a ministerial duty to act | Town argued removal/enforcement is an executive, discretionary function; mandamus inappropriate; alternative remedies exist | Court held mandamus unavailable: removal/enforcement decisions are discretionary, so mandamus does not lie; dismissal affirmed |
| Whether Nerney lacked an adequate remedy at law or other available remedies meant mandamus was improper | Nerney asserted Town enforcement was required and she had no adequate remedy | Town noted alternative remedies (e.g., suing the Andersens); separate injunction existed in related litigation | Court noted other remedies exist and declined to reach standing in detail, affirming dismissal on mandamus ground |
Key Cases Cited
- Muschiano v. Travers, 973 A.2d 515 (R.I. 2009) (establishes three-part mandamus test: clear right, ministerial duty, and no adequate remedy)
- New England Development, LLC v. Berg, 913 A.2d 363 (R.I. 2007) (defines ministerial versus discretionary functions)
- City of Providence v. Estate of Tarro, 973 A.2d 597 (R.I. 2009) (mandamus will not compel discretionary acts)
- Chariho Regional School District v. Gist, 91 A.3d 783 (R.I. 2014) (standard of review for Rule 12(b)(6) motions)
- Ho-Rath v. Rhode Island Hospital, 115 A.3d 938 (R.I. 2015) (review of a 12(b)(6) is confined to the complaint’s four corners)
- Crenshaw v. State, 227 A.3d 67 (R.I. 2020) (on a motion to dismiss, allegations are assumed true and viewed favorably to plaintiff)
- O'Neill v. Carr, 522 A.2d 1213 (R.I. 1987) (municipal discretion in enforcement decisions)
- Diorio v. Hines Road, LLC, 226 A.3d 138 (R.I. 2020) (municipal enforcement discretion confirmed)
- Cheney v. United States District Court for the District of Columbia, 542 U.S. 367 (U.S. 2004) (mandamus is an extraordinary remedy)
- Wilbur v. United States, 281 U.S. 206 (1930) (historical statement that mandamus compels performance of ministerial duties)