State ex rel. Garvey v. County Bd. of Com'rs of Sarpy County
| Decision Date | 02 January 1998 |
| Docket Number | No. S-97-148,S-97-148 |
| Citation | 253 Neb. 694,573 N.W.2d 747 |
| Parties | STATE of Nebraska ex rel. Thomas J. GARVEY, Public Defender of Sarpy County, Nebraska, Appellee, v. COUNTY BOARD OF COMMISSIONERS OF SARPY COUNTY, Nebraska, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Statutes. Interpretation of a statute presents a question of law.
2. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of a lower court's ruling.
3. Statutes. If there is a conflict between two states on the same subject matter, the special provisions of a statute prevail over the general provisions in the same or other statutes.
4. Counties: Public Officers and Employees. The county has the authority to set salaries for assistants of a public defender under Neb.Rev.Stat. § 23-3403 (Reissue 1991).
5. Mandamus: Words and Phrases. Mandamus is a law action. It is defined as an extraordinary remedy, not a writ of right, issued to compel the performance of a purely ministerial act or duty, imposed by law upon an inferior tribunal, corporation, board, or person, where (1) the relator has the 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 law.
Michael L. Munch, Sarpy County Attorney, and Michael A. Smith for appellant.
Eugene L. Hillman and Patricia McCormack, of McCormack, Cooney, Hillman & Elder, Omaha, for appellee.
Dennis R. Keefe for amici curiae Nebraska Criminal Defense Attorneys Association, National Association of Criminal Defense Lawyers, National Legal Aid & Defender Association, Lancaster County Public Defender, and Douglas County Public Defender.
This appeal presents the question, How much discretion does a county board have in reducing or disapproving a public defender's budget request? The elected public defender of Sarpy County brought an action seeking a writ of mandamus after his budget request seeking appropriations for additional staff was reduced by the Sarpy County Board of Commissioners. The district court for Sarpy County granted the writ of mandamus, and the county board appeals. We conclude that the instant case is controlled by our decision in Sarpy Co. Pub. Emp. Assn. v. County of Sarpy, 220 Neb. 431, 370 N.W.2d 495 (1985), in which we determined that a specific statute similar to Neb.Rev.Stat. § 23-3403 (Reissue 1991), the statute applicable to the public defender, acted to transfer the authority to set salaries to the county board. Accordingly, because we conclude that § 23-3403 transfers the authority to set the salaries of assistants of the public defender to the county board, a writ of mandamus is inappropriate in the instant case, and we reverse.
Thomas J. Garvey, the appellee in this case, is the elected public defender of Sarpy County. The appellant is the Sarpy County Board of Commissioners. As part of the annual budget process, Garvey submitted budget request forms that were ultimately forwarded to the county board. In his request, Garvey asked for an increase from $173,862 for fiscal year 1996 to $251,087.20 for fiscal year 1997, an increase of approximately 44 percent. Garvey justified the increase because of the need to hire both an additional full-time and an additional part-time deputy public defender, to hire an additional secretary, and to provide for a 4-percent salary increase for the remaining deputy public defenders.
As a continuing part of the budget process, Garvey next appeared at a hearing before the county board's budget committee where he provided information regarding caseloads and his need for additional personnel. Garvey stated that additional personnel were necessary because, due to the explosive population growth of Sarpy County, two additional judges had been appointed for that area. As a result of the new judges, Garvey stated that he needed to have an attorney for each of the new courtrooms in order to carry out his duties. Garvey also provided the county board with documents showing an estimated increase in caseloads.
Following a review of the budget request documents provided by Garvey and a comparison of those documents with the Sarpy County Attorney's budget request, the committee reduced Garvey's request. However, the committee did provide Garvey with an increase of approximately 13 percent by providing Garvey with an additional $15,000 for a part-time deputy public defender and $8,000 to pay for additional administrative help. Part of the committee's reasoning in reducing Garvey's request was that the Sarpy County Attorney's budget request indicated that while he did anticipate an increase in caseloads due to the appointment of two new judges, he did not anticipate that those increases would require additional staff.
After being informed of the changes to his budget request, Garvey asked to appear before the budget committee. At this meeting, Garvey repeated the information he had previously provided to the committee and did not provide any new information. The committee did not change its decision. A public hearing regarding the 1997 budget was subsequently held by the entire county board. Garvey did not appear at the public hearing, nor did he appear at the county board meeting in which the budget was adopted. Several days following the adoption of the budget, Garvey filed a mandamus action with the district court.
At the bench trial, both the fiscal administrator for Sarpy County and Garvey testified that Garvey hired the minimum amount of attorneys necessary to run his office and that the office was handling a caseload per attorney in excess of national standards. The record reflects that the Sarpy County Attorney's office did not anticipate the need for more personnel due to the addition of the two new judges. However, Garvey testified that the county attorney's office had more staff than the office of the public defender and presented evidence indicating that the county attorney might not require additional staff for this reason. Garvey further testified that he would not be able to provide public defenders to represent defendants in the two new courtrooms if he did not have additional personnel and that if additional public defenders were not hired, it would be difficult or impracticable for the courts to rearrange schedules in order to ensure that the public defender's clients were represented.
The county board provided testimony indicating that Garvey could ask for additional appropriations at a later date pursuant to Neb.Rev.Stat. § 23-918 (Cum.Supp.1996). However, Garvey testified that such a process would not work well for hiring people because he would have to return to the county board every month to request salaries for his staff. Garvey had gone ahead and hired an additional attorney and would run out of funds to pay him in February 1997. It was unclear from the testimony how the county board decided on the amount it did appropriate to Garvey's office, although some testimony indicated that the county board appropriated funds for enough assistant public defenders to cover each courtroom on a part-time basis. The county board did not introduce evidence to show that Garvey's request was unreasonable.
Following trial, the district court determined that the rationale used by this court in Bass v. County of Saline, 171 Neb. 538, 106 N.W.2d 860 (1960), applied, and, therefore, because the expenses and salaries set by Garvey for additional personnel were not unreasonable, arbitrary, or capricious, the county board was without authority to disapprove Garvey's budget request. Thus, the district court determined that judgment for a writ of mandamus should be entered, directing the county board to approve Garvey's budget to fully fund the office of the public defender and to include funds for the additional personnel Garvey had requested. The court also ordered the county board to pay costs and attorney fees.
The county board asserts that the district court erred in (1) finding that a writ of mandamus was the proper remedy in the case; (2) finding that Garvey did not have an adequate remedy at law; (3) finding that under the facts, the county board had a duty to approve Garvey's budget request; (4) finding that Garvey clearly and conclusively showed that his action was not arbitrary, capricious, or unreasonable and that he was entitled to the relief requested; (5) finding that Garvey showed that the county board acted in an arbitrary, capricious, and unreasonable manner in the action concerning Garvey's budget request; and (6) finding that the application of the Sixth Amendment to the U.S. Constitution required the county board to fund the public defender at the level requested.
In a bench trial of a law action, the trial court's factual findings have the effect of a jury verdict and will not be set aside on appeal unless they are clearly wrong. Four R Cattle Co. v. Mullins, 253 Neb. 133, 570 N.W.2d 813 (1997); Richardson v. Mast, 252 Neb. 114, 560 N.W.2d 488 (1997).
Interpretation of a statute presents a question of law. Pig Pro Nonstock Co-Op v. Moore, 253 Neb. 72, 568 N.W.2d 217 (1997). When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. Giese v. Stice, 252 Neb. 913, 567 N.W.2d 156 (1997); Pratt v. Nebraska Bd. of Parole, 252 Neb. 906, 567 N.W.2d 183 (1997).
The case most commonly cited when dealing with the setting of salaries for county officials is Bass v. County of Saline, supra. In Bass, a county judge set the salary for the clerk of the county court at $225 per month and the county board reduced this figure to $190. It was not disputed that the clerk was...
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