Graham v. Crow Wing County Bd. of Com'rs, C1-93-1920

• Decision Date: 19 April 1994
• Docket Number: No. C1-93-1920,C1-93-1920
• Citation: 515 N.W.2d 81
• Parties: 147 L.R.R.M. (BNA) 2437 John Remington GRAHAM, Crow Wing County Attorney, Appellant, v. CROW WING COUNTY BOARD OF COMMISSIONERS, et al., Respondents.
• Court: Minnesota Court of Appeals

Page 81

515 N.W.2d 81

147 L.R.R.M. (BNA) 2437

John Remington GRAHAM, Crow Wing County Attorney, Appellant, v. CROW WING COUNTY BOARD OF COMMISSIONERS, et al., Respondents.

No. C1-93-1920.

Court of Appeals of Minnesota.

April 19, 1994.

Review Denied June 2, 1994.

Syllabus by the Court

A county board of commissioners cannot substitute its judgment for the judgment of the voters. But the board acts within its statutory authority when it employs outside counsel to perform limited functions.

John R. Graham, Crow Wing County Atty., Brainerd, for appellant.

Richard L. Pemberton, Corenia A. Kollasch, Pemberton, Sorlie, Sefkow, Rufer & Kershner, Fergus Falls, for respondents.

Considered and decided by ANDERSON, P.J., and SHORT and KLAPHAKE, JJ.

OPINION

SHORT, Judge.

This declaratory judgment action involves a county attorney's right to provide legal services to a county board of commissioners. Crow Wing County Attorney John Remington Graham challenges the Crow Wing County Board's practice of employing Thomas Fitzpatrick to negotiate union contracts and provide advice on labor relations matters. Graham sought an injunction to prevent (a) the board from employing outside counsel without his consent, and (b) Fitzpatrick from providing legal services to the board.

All parties moved for summary judgment claiming the sole issue before the trial court was the construction of two statutes. The trial court issued findings of fact, conclusions of law, and an order for judgment in favor of the board and Fitzpatrick. Graham moved to vacate the judgment, and, in the alternative, for an amended judgment to protect the county attorney's rights against future intrusions by the board. See Minn.R.Civ.P. 60.02 (providing the conditions under which a court may relieve a party from a final judgment); Minn.R.Civ.P. 52.02 (providing that a court may amend its findings or make additional findings upon motion of a party). The trial court denied both motions. On appeal, Graham argues the trial court erred by (1) not granting him a declaration of the circumstances under which a board can hire outside counsel, and (2) finding the board acted within its authority in hiring Fitzpatrick. We affirm.

FACTS

Since 1985, the board has employed Fitzpatrick to negotiate union contracts and provide legal advice on labor relations issues. Professional union representatives represent most county employees in contract negotiations. The vast majority of boards from other counties also employ outside attorneys to negotiate union contracts and provide advice on issues under the Public Employment Labor Relations Act (PELRA), Minn.Stat. Secs. 179A.01-179A.30. (1992 & Supp.1993).

Fitzpatrick has practiced in the area of labor relations since 1972. He has negotiated approximately thirty-six union contracts on behalf of the county. Through his efforts, he obtained a standardized cap on the county's contribution toward employee health insurance, eliminated severance pay for employees hired after 1986, and helped bring union contracts into compliance with comparable worth requirements. In addition, Fitzpatrick represented the county in a lawsuit brought by Graham. Fitzpatrick does not consult with the county attorney's office about the legal work he performs for the board.

For years, Fitzpatrick's law firm represented the Brainerd School District and performed the civil work of the Brainerd City Attorney. Since 1991, the firm has also prosecuted misdemeanors for the city. Fitzpatrick was appointed the Brainerd City Attorney in early 1993. But the city's personnel and labor relations matters are not handled by Fitzpatrick; the city employs a labor relations specialist from Coon Rapids. The board and the city council know Fitzpatrick does legal work for both entities.

Graham was elected Crow Wing County Attorney in November of 1990. After his election, Graham represented the interests of his office staff against the board's interest in several budget appeals and in a discrimination lawsuit. In 1992, Graham objected to Fitzpatrick negotiating employee contracts and giving any legal advice to the board. The board rejected Graham's request that it use him rather than Fitzpatrick for these services.

ISSUES

I. Did the trial court err by refusing to grant a declaratory judgment describing in general terms a board's authority to hire outside counsel?

II. Did the board act within its statutory authority when hiring Fitzpatrick?

ANALYSIS

On appeal from summary judgment, we determine whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn.1988); see Minn.Stat. Sec. 555.07 (1992) (an order in a declaratory judgment action is reviewed as any other order). While it is unusual for a trial court to issue findings of fact in response to cross-motions for summary judgment, the parties agree that there are no material facts in dispute. The issue on appeal involves the construction of a statute which is a legal question and subject to de novo review. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985).

I.

A court has no jurisdiction to render a declaratory judgment in the absence of a justiciable controversy. St. Paul Area Chamber of Commerce v. Marzitelli, 258 N.W.2d 585, 587 (Minn.1977). To be justiciable, a controversy must (a) involve definite and concrete assertions of right by parties with adverse interests, (b) involve a genuine conflict in tangible interests of opposing litigants, and (c) be capable of relief by a decree or judgment. Id. at 587-88 (citing State ex rel. Smith v. Haveland, 223 Minn. 89, 92, 25 N.W.2d 474, 477 (1946); Seiz v. Citizens Pure Ice Co., 207 Minn. 277, 281, 290 N.W. 802, 804 (1940)); see also Minn.Stat. Sec. 555.06 (court may refuse to enter a declaratory judgment where judgment would not terminate the uncertainty or controversy giving rise to the proceeding). The existence of jurisdiction is a question of law subject to de novo review. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn.1984).

Graham seeks a declaratory judgment describing the conditions under which a board can hire outside counsel. That requested relief lacks the essential elements of a justiciable controversy. The judgment Graham seeks consists essentially of statutory language embellished with additional language generally describing the board's authority; it does not refer to the situation underlying the case at hand. The requested relief is not a definite assertion of Graham's rights; it does not involve a genuine conflict of tangible interests and would not end the live controversy. The uncertainty underlying this lawsuit would remain because the general language of the judgment would still have to be applied to specific facts. Under these circumstances, the trial court properly limited its decision to whether the board could hire Fitzpatrick for advice on labor relations matters without Graham's consent.

II.

Minn.Stat. Sec. 388.09 sets forth the circumstances under which a board may hire an attorney in place of the county attorney.

When there is no county attorney, the county board may employ any competent attorney to perform legal services for the county. The board may employ an attorney to assist the county attorney, to appear for the county or any county officer in any action in which the county or officer in an official capacity is a party, to advise the board or its members in relation to the action, or in relation to any other matter affecting the interests of the county. The county may pay the attorney out of the funds of the county.

Id. Sec. 388.09, subd. 1 (1992). The statute unambiguously permits the board to employ outside counsel to (a) assist the county attorney, (b) appear of record for the county or any county officer, and (c) advise the board. Peterson v. Koochiching County, 133 Minn. 343, 344, 158 N.W. 605, 605 (1916); see Minn.Stat. Sec. 645.44, subd. 15 (1992) ("may" is permissive when used in statutes). The statute does not authorize the board to eliminate the county attorney by employing counsel to do work specifically assigned by statute to the county attorney. Keiver v. Koochiching County, 141 Minn. 64, 67, 169 N.W. 254, 255 (1918); Op. Att'y Gen. 121-A (June 2, 1970). If the work involved has been assigned by statute to the county attorney, the board may hire another attorney only (a) in extraordinary occurrences, (b) for a limited purpose, and (c) when the county attorney is unable to render effective legal service. Keiver, 141 Minn. at 67, 169 N.W. at 255-56. The board has discretion to determine when such an occasion arises, and we will not reverse a board's decision to hire outside counsel absent an abuse of that discretion. Id. at 67, 169 N.W. at 255. The party challenging a board's decision has the burden of showing that no proper occasion existed for the employment. Id. at 69, 169 N.W. at 256.

Fitzpatrick was hired by the board to give legal advice regarding labor relations matters. That responsibility is not a statutory duty belonging directly to the county attorney.

The county attorney shall:

(a) Appear in all cases in which the county is a party;

(b) Give opinions and advice, upon the request of the county board or any county officer, upon all matters in which the county is or may be interested, or in relation to the official duties of the board or officer;

(c) Prosecute felonies, including the drawing of indictments found by the grand jury, and, to the extent prescribed by law, gross misdemeanors, misdemeanors, petty misdemeanors, and violations of municipal ordinances, charter provisions and rules or regulations;

(d) Attend before the grand jury, give them legal advice and examine witnesses in their presence;

(e) Request the court administrator to issue subpoenas to bring witnesses before the grand jury or any...