State ex rel. Cherry v. Burns

• Decision Date: 19 November 1999
• Docket Number: No. S-99-043.,S-99-043.
• Citation: 258 Neb. 216,602 N.W.2d 477
• Parties: The STATE of Nebraska ex rel. John D. CHERRY, M.D., et al., Relators, v. Judge Steven D. BURNS, Respondent.
• Court: Nebraska Supreme Court

602 N.W.2d 477

258 Neb. 216

The STATE of Nebraska ex rel. John D. CHERRY, M.D., et al., Relators, v. Judge Steven D. BURNS, Respondent.

No. S-99-043.

Supreme Court of Nebraska.

November 19, 1999.

Don Stenberg, Attorney General, and Therese N. James, West Point, for relators.

Gail S. Perry and Jarrod S. Boitnott, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for respondent.

Patrick Ronald Russell, amicus curiae.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.

NATURE OF CASE

John D. Cherry, M.D., and Randy Lienneman, P.A.C., in their individual and official capacities, and Reynold Maixner, M.D., deceased, in his official capacity only (the Relators), seek a writ of mandamus compelling the district judge for Lancaster County, Judge Steven D. Burns (the Respondent), to grant a jury trial in an action brought against them by Patrick Ronald Russell. We granted leave to file this original action and previously issued an alternative writ of mandamus ordering the Respondent to vacate his order overruling the Relators' motion for jury trial or to appear and show cause why a peremptory writ commanding the Respondent to do so should not issue. The Respondent made such appearance and showing, and we deny a peremptory writ of mandamus.

STATEMENT OF FACTS

On October 31, 1997, Russell, an inmate serving a life sentence at the Nebraska State Penitentiary, filed his third amended petition (petition) pro se in the district court for Lancaster County alleging several causes of action against the Relators and several other parties in both their individual and official capacities. Russell's claims generally pertained to an alleged pattern of denial of proper health care.

The Relators and the other defendants filed a demurrer to Russell's petition. On January 13, 1998, the Respondent sustained the demurrer in part by dismissing five of the six causes of action against all defendants and by dismissing the remaining cause of action against all defendants except the Relators. The Respondent held that the remaining cause of action, the first cause of action in the petition, liberally construed, stated an Eighth Amendment claim against the Relators brought pursuant to the federal civil rights statute, 42 U.S.C. § 1983 (1994 & Supp. III 1997). The Eighth Amendment prohibits cruel and unusual punishment.

In his sole remaining cause of action, Russell alleged deliberate indifference to his medical care by the Relators which violated his civil rights as guaranteed by the 8th and 14th Amendments. In his petition, Russell requested relief which he labeled as "Injunctive Relief," "Declaratory Judgement," and "Monetary Damages." For his injunctive relief and declaratory judgment requests, Russell sought, inter alia, rulings that the Relators had deliberately denied him proper medical care, had deliberately caused him permanent pain and injury, and had attempted to cause his death; an order directed to the Nebraska Medical Board to take action with respect to the Relators' medical licenses; an order of the court releasing Russell from prison; a prohibition on placing Russell in the prison hospital without Russell's authorization or a court order; a mandate that further medical treatment of Russell must be pursuant to written directives; an order to the Nebraska State Patrol to initiate criminal investigations for charges against the Relators; and "[a]ny and all costs and relief this court deems just." For his "monetary damages request," Russell sought $50 million in punitive damages.

On July 30, 1998, the district court set the case for a bench trial on its equity docket to commence February 22, 1999. On November 17, 1998, the Relators filed an application for jury trial in the case. The Respondent heard arguments on the application for jury trial on December 4 and overruled the application on December 7.

The Relators filed a petition for mandamus with this court on December 28, 1998. On January 13, 1999, we issued an alternative writ of mandamus ordering the Respondent to "vacate and set aside his order of December 7, 1998, overruling relators' motion for jury trial or appear and show cause in this Court within fourteen (14) days hereof why a peremptory writ commanding respondent to so do should not issue." The Respondent appeared and has made a showing.

ASSIGNMENT OF ERROR

The Relators contend that the district court erred in overruling their motion for jury trial. The Relators assert that they have a clear right to a jury trial and that mandamus is their only adequate remedy to secure that right.

REQUIREMENTS FOR ISSUANCE OF WRIT OF MANDAMUS

Mandamus is an action at law and is an extraordinary remedy issued to compel performance of a purely ministerial act or duty imposed by law upon an inferior tribunal, corporation, board, or person, where (1) the relator has a clear legal right to the relief sought, (2) there is a corresponding clear duty existing on the part of the respondent to perform the act in question, and (3) there is no other plain and adequate remedy available in the ordinary course of the law. State ex rel. City of Alma v. Furnas Cty. Farms, 257 Neb. 189, 595 N.W.2d 551 (1999); State ex rel. Acme Rug Cleaner v. Likes, 256 Neb. 34, 588 N.W.2d 783 (1999).

To warrant the issuance of a peremptory writ of mandamus to compel the performance of a legal duty to act, (1) the duty must be imposed by law, (2) the duty must still exist at the time the writ is applied for, and (3) the duty must be clear. State ex rel. Tyler v. Douglas Cty. Dist. Ct., 254 Neb. 852, 580 N.W.2d 95 (1998). Mandamus is not available to control judicial discretion and will be issued only if there is an absolute duty to perform in a specified manner upon the existence of certain facts. Id.

In a mandamus action, the relator has the burden of proof and must show clearly and conclusively that it is entitled to the particular thing the relator asks and that the respondent is legally obligated to act. State ex rel. Acme Rug Cleaner, supra.

ANALYSIS

Prior Case Law.

In their petition for mandamus, the Relators ask that we issue a writ of mandamus compelling the Respondent to grant a jury trial in the underlying action. In two previous cases, this court has been asked to issue a writ of mandamus compelling a lower court to vacate an order denying a defendant a jury trial. State ex rel. Simpson v. Vondrasek, 203 Neb. 693, 279 N.W.2d 860 (1979); State, ex rel. Garton v. Fulton, 118 Neb. 400, 225 N.W. 28 (1929).

In State, ex rel. Garton, as described in State ex rel. Simpson, the relator, as defendant in the county court, demanded a trial by jury. The State resisted relator-defendant's demand, claiming that the controlling statute afforded the county court discretion to proceed without a jury in the case. Relator-defendant contended that the statute was unconstitutional in that it denied her of her right to a jury trial. We concluded that the action of the county court in refusing to designate a jury trial, if error, should not be remedied in a mandamus proceeding. Instead, we determined that the county court had jurisdiction to hear and decide the question of whether to grant a jury trial; that such decision involved "`judicial discretion,'" id. at 701, 279 N.W.2d at 865; and that if the county court erred in its decision, the relator-defendant had an adequate remedy after judgment was entered to proceed to review the county court's decision with respect to the jury issue by either appeal or proceedings in error.

In contrast to State, ex rel. Garton, State ex rel. Simpson involved a statute that granted either party the right to demand a trial by jury if such demand was made in writing on or before answer day. The issue between relator-defendant and respondent judge pertained to the determination of the correct and applicable date on or before which such demand must have been made after the case was transferred from small claims court to municipal court. We found the facts in State ex rel. Simpson distinguishable from State, ex rel. Garton in that the statute in State, ex rel. Garton gave the inferior court judicial discretion, whereas the statute in State ex rel. Simpson permitted no discretion and mandated a jury trial when demand was timely filed.

In State ex rel. Simpson, we recognized the general rule that a writ of mandamus will not issue to review the action of an inferior court where there is an adequate remedy at law and that the writ may not be used to usurp or take the place of a writ of error or an appeal. However, we found that where a specific duty is provided by statute, mandamus may be invoked to enforce it, and the party entitled to such relief will not be forced to pursue his or her remedy by circuitous and dilatory means. We therefore concluded that, under the facts in State ex rel. Simpson and in the interest of conserving further expenditure of time, expense, and effort, justice required the issuance of a writ of mandamus granting relator-defendant a jury trial.

Taking State, ex rel. Garton and State ex rel. Simpson together, we determine that a writ of mandamus ordering a lower court to grant a jury trial is appropriate when, in addition to the customary mandamus criteria noted above, under the facts of the case, (1) a jury trial is mandated and the inferior court has no discretion in the matter and (2) other remedies available at law, such as appeal of the trial court's ruling, are inadequate to serve justice.

Instant Case: Claimed Right to Jury Trial.

In order to issue a peremptory writ of mandamus in the instant case, we would need to conclude that the Relators have a clear legal right to trial by jury, that the Respondent has a clear legal duty to grant trial by jury in the underlying action, and that Relators have no other plain and adequate remedy. These requirements are conjunctive, and the absence of any one precludes issuance of the peremptory writ.

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