State ex rel. Parks v. Council of Omaha
| Decision Date | 12 June 2009 |
| Docket Number | No. S-08-660.,S-08-660. |
| Citation | 766 N.W.2d 134,277 Neb. 919 |
| Parties | STATE of Nebraska ex rel. Charles O. PARKS, Jr., and Edward Rollerson, appellants, v. THE COUNCIL OF THE CITY OF OMAHA, Nebraska, also known as City Council of Omaha, Nebraska, et al., appellees. |
| Court | Nebraska Supreme Court |
Robert V. Broom, of Broom, Johnson, Clarkson & Lanphier, Omaha, and Amy A. Miller, of ACLU Nebraska Foundation, for appellants.
Alan Thelen, Omaha Deputy City Attorney, Omaha, and Michelle Peters for appellees.
Craig E. Groat, amicus curiae.
Charles O. Parks, Jr., and Edward Rollerson (Relators) brought this action for a writ of mandamus against the Omaha City Council, seeking an order requiring the city council to employ and appropriate funds for a public safety auditor (Auditor). We conclude that the Relators have no clear legal right to the relief they seek. Accordingly, the district court did not err in denying the writ of mandamus. We affirm.
The Relators are citizens, taxpayers, registered voters, and residents of Omaha, Nebraska. They also belong to the "Coalition Against Injustice," which is an unincorporated association of Omaha citizens who are concerned with identifying and correcting injustices, including those related to police misconduct and oversight. The city council is the elected legislative body of the city of Omaha. It has the power to pass ordinances and adopt the budget for expenditures.
In July 2000, the city council adopted ordinance No. 35280, codified at Omaha Mun.Code, ch. 25, art. I, § 25-9 (2005) which establishes the office of Auditor. The function of the Auditor is to review all citizens' complaints against any city of Omaha police officer or firefighter. Section 25-9F(2) provides that the Auditor "shall be appropriated funds in the normal city budgeting process similar to other city departments, and shall be included within the police department and fire department budget." The city council had not appropriated funds in the 2008 budget for an Auditor, and no Auditor has been employed by the city of Omaha since November 2006.
The Relators filed a petition for a writ of mandamus seeking to compel the city council to comply with § 25-9 by immediately appropriating funds for the office of the Auditor and employing an Auditor for as long as required by law. The district court issued an alternative writ of mandamus ordering the city council to carry out its obligations under § 25-9 or to show cause why a writ of mandamus should not issue. A hearing to show cause was held. After the hearing, the court denied the petition for writ of mandamus, concluding that the Relators lacked standing and that in any event, § 25-9 does not impose a ministerial duty on the city council to employ and appropriate funding for an Auditor. The Relators appeal.
The Relators assign, restated, that the district court erred in (1) determining that the Relators did not have standing to bring a mandamus action, (2) determining that § 25-9 did not impose a legal duty on the city council to employ and appropriate funding for an Auditor, and (3) receiving certain evidence offered by the city council to aid in the interpretation of § 25-9.
The meaning of a statute is a question of law.1 When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.2
The Relators' first argument is that the district court erred in concluding that they lacked standing. For purposes of this appeal, we assume, without deciding, that the Relators have alleged facts sufficient to permit them to bring the action. Instead, we turn to whether the Relators alleged facts sufficient to establish that they have a clear legal right to a writ of mandamus.
In their second assignment of error, the Relators argue that the district court erred when it concluded that the city council did not have a ministerial duty to employ and fund an Auditor. Mandamus is a law action and 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 a clear right to the relief sought, (2) there is a corresponding clear duty existing on the part of the respondent to perform the act, and (3) there is no other plain and adequate remedy available in the ordinary course of law.3 In a mandamus action, the party seeking mandamus has the burden of proof and must show clearly and conclusively that such party is entitled to the particular thing the relator asks and that the respondent is legally obligated to act.4
At issue in this case is whether, under § 25-9, the city council is legally obligated to employ and appropriate funding for an Auditor. The Relators argue that it is. The language of § 25-9, the Relators contend, creates a ministerial duty to employ and appropriate funds for an Auditor. Based on the plain and unambiguous language of § 25-9, however, we conclude that employing and appropriating funds for an Auditor is a discretionary function, not a ministerial act that can be compelled by mandamus. Section 25-9 provides in part that "[t]he [A]uditor committee shall retain the services of [an A]uditor and his or her support staff ...."5 In addition, § 25-9F(2) provides:
Preliminary budgeting. Initial budget obligations shall be provided before January 1, 2001, by city council fund transfer ordinances to sustain the initial startup expenditures as required. Thereafter, and in subsequent years, the ... [A]uditor shall be appropriated funds in the normal city budgeting process similar to other city departments, and shall be included within the police department and fire department budget.
When analyzing the Omaha Municipal Code, a legislative enactment, we follow the same rules as those of statutory analysis.6 Absent anything to the contrary, statutory language is to be given its plain meaning, and a court will not look beyond the statute or interpret it when the meaning of its words is plain, direct, and unambiguous.7
Section 25-9 was adopted on July 25, 2000, during budget preparations for the fiscal year 2001. Because § 25-9 was adopted in the middle of budget preparations, the first sentence of § 25-9F(2), entitled "Preliminary budgeting," provides that the preliminary budget obligations shall be provided by fund transfer ordinances. The clear import of the first sentence of § 25-9F(2) is to establish initial budgeting for the office of the Auditor by fund transfer notices. The second sentence of § 25-9F(2), however, establishes the process by which an Auditor shall be funded in subsequent years. The plain and unambiguous language provides that after the initial budgeting process, the Auditor, like other employment positions, would be appropriated funds in the normal city budgeting process. Contrary to the Relators' assertion, § 25-9F(2) does not mandate funding for the Auditor—it mandates how the position is to be funded, if the city council, in its normal budgeting process, allocates such funding. We do not read § 25-9 as compelling the employment of, or an appropriation for, an Auditor.
Mandamus lies only to enforce the performance of a mandatory ministerial act or duty and is not available to control judicial discretion.8 Mandamus is available to enforce the performance of ministerial duties of a public official but is not available if the duties are quasi-judicial or discretionary.9 A duty imposed by law which may be enforced by writ of mandamus must be one which the law specifically enjoins as a duty resulting from an office, trust, or station.10 The general rule is that an act or duty is ministerial only if there is an absolute duty to perform in a specified manner upon the existence of certain facts.11 A duty or act is ministerial when there is no room for the exercise of discretion, official or otherwise, the performance being required by direct and positive command of the law.12 A ministerial duty is not dependent upon a public officer's judgment or discretion—it is performed under the conditions specified in obedience to the mandate of legal authority, without regard for the exercise of the officer's judgment upon the propriety of the act being done.13
Here, § 25-9 does not create an absolute duty to perform in a specified manner. As explained above, the plain and unambiguous language of § 25-9 states that the employment and funding of an Auditor is subject to the normal budgeting process of the city of Omaha. The city's budgeting process is a discretionary activity and not subject to mandamus. While the word "shall" may render a particular provision mandatory in character, when the spirit and purpose of the legislation require that the word "shall" be construed as permissive rather than mandatory, such will be done.14 Because a legislative body cannot bind its successors,15 we do not read the statement in § 25-9F(2) that the Auditor "shall be appropriated funds in the normal city budgeting process similar to other city departments" as mandating an allocation of funds, as opposed to a permissive exercise of the discretion associated with the normal budgeting process.
And it is clear that whether the city of Omaha should employ and fund an Auditor is a discretionary public policy decision that is entrusted to the city, as are the myriad of policy decisions involved in setting the city's budget. The decision whether to have an Auditor, and whether or how to fund the position of Auditor, requires a policy determination that is, in the absence of a constitutional question, clearly for the legislative branch. That legislative discretion is recognized by state law, which affords a metropolitan class city council the power and duty to appoint a chief of police, ...
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