State ex rel. Parks v. Council of City of Omaha

State of NebraSka ex rel . C harleS o. ParkS, Jr ., aNd
edward rollerSoN, aPPellaNtS, v. the C ouNCil of
the C ity of omaha , NebraSka , alSo kNowN aS
C ity C ouNCil of omaha , NebraSka ,
et al ., aPPelleeS.
766 N.W.2d 134
Filed June 12, 2009. 	No. S-08-660.
1. Mandamus: Words and Phrases. 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, corpora-
tion, 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.
2. Mandamus: Proof. 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.
3. Municipal Corporations: Statutes: Appeal and Error. When analyzing a
municipal code, a legislative enactment, an appellate court follows the same rules
as those of statutory analysis.
4. Statutes. 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.
5. Mandamus. Mandamus lies only to enforce the performance of a mandatory
ministerial act or duty and is not available to control judicial discretion.
6. Mandamus: Public Officers and Employees. 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.
7. ____: ____. 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.
8. Mandamus. 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 cer-
tain facts.
9. ____. 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.
10. Public Officers and Employees. 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.
11. Statutes: Intent: Words and Phrases. While the word “shall” may render a
particular provision mandatory in character, when the spirit and purpose of the
STATe ex rel. pArkS v. couNcIl oF cITy oF oMAhA 	919
cite as 277 Neb. 919
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

legislation require that the word “shall” be construed as permissive rather than
mandatory, such will be done.
12. Legislature. A legislative body cannot bind its successors.
13. Ordinances: Appeal and Error. Interpretation of a municipal ordinance is a
question of law, on which an appellate court reaches an independent, correct
conclusion irrespective of the determination made by the court below.
Appeal from the District court for Douglas county: SaNdra
l. dougherty, Judge. Affirmed.
robert V. Broom, of Broom, Johnson, clarkson & lanphier,
and Amy A. 	Miller, 	of Aclu 	Nebraska 	Foundation, 	for
appellants.
Alan Thelen, Deputy omaha city Attorney, and Michelle
peters for appellees.
craig e. Groat, amicus curiae.
heaviCaN, C.J., wright, C oNNolly, gerrard, StePhaN, and
mCC ormaCk , JJ.
gerrard, J.
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.
BAckGrouND
The 	relators 	are 	citizens, 	taxpayers, 	registered 	voters,
and residents of omaha, Nebraska. They also belong to the
“coalition Against Injustice,” which is an unincorporated asso-
ciation 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 legis-
lative body of the city of omaha. It has the power to pass ordi-
nances 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),
920 	277 NeBrASkA reporTS

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 seek-
ing 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 hear-
ing 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.
ASSIGNMeNTS oF error
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 fund-
ing for an Auditor, and (3) receiving certain evidence offered
by the city council to aid in the interpretation of § 25-9.
STANDArD oF reVIeW
The meaning of a statute is a question of law.1 When review-
ing questions of law, an appellate court has an obligation to
resolve the questions independently of the conclusion reached
by the trial court.2
1 Ahmann v. Correctional Ctr. Lincoln, 276 Neb. 590, 755 N.W.2d 608
(2008).
2 Steffen v. Progressive Northern Ins. Co., 276 Neb. 378, 754 N.W.2d 730
(2008).
STATe ex rel. pArkS v. couNcIl oF cITy oF oMAhA 	921
cite as 277 Neb. 919

ANAlySIS
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 suf-
ficient to establish that they have a clear legal right to a writ
of mandamus.
[1,2] 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 fund-
ing 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 con-
clude that employing and appropriating funds for an Auditor is
a discretionary function, not a ministerial act that can be com-
pelled by mandamus.
3 State ex rel. Upper Republican NRD v. District Judges, 273 Neb. 148,
728 N.W.2d 275 (2007); Crouse v. Pioneer Irr. Dist., 272 Neb. 276, 719
N.W.2d 722 (2006).
4 State ex rel. Upper Republican NRD, supra note 3.
922 	277 NeBrASkA reporTS

[3,4] 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 expendi-
tures 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 man-
date funding for the Auditor—it mandates how the position is
5 § 25-9B(1).
6 Brunken v. Board of Trustees, 261 Neb. 626, 624 N.W.2d 629 (2001). See,
also, Moulton v. Board of Zoning Appeals, 251 Neb. 95, 555 N.W.2d 39
(1996).
7 McNally v. City of Omaha, 273 Neb. 558, 731 N.W.2d 573 (2007).
STATe ex rel. pArkS v. couNcIl oF cITy oF oMAhA 	923
cite as 277 Neb. 919

to be funded, if the city council, in its normal budgeting pro-
cess, allocates such funding. We do not read § 25-9 as compel-
ling the employment of, or an appropriation for, an Auditor.
[5-10] 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 discretion-
ary.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 gen-
eral rule is that an act or duty is ministerial only if there is an
absolute duty to perform in a specified manner upon the exis-
tence 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 com-
mand 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 judg-
ment upon the propriety of the act being done.13
[11,12] here, § 25-9 does not create an absolute duty to per-
form 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
8 State ex rel. FirsTier Bank v. Mullen, 248 Neb. 384, 534 N.W.2d 575
(1995).
9 Crouse, supra note 3.
10 State ex rel. City of Alma v. Furnas Cty. Farms, 257 Neb. 189, 595 N.W.2d
551 (1999); Neb. rev. Stat. § 25-2156 (reissue 2008).
11 State ex rel. Musil v. Woodman, 271 Neb. 692, 716 N.W.2d 32 (2006);
Krolikowski v. Nesbitt, 257 Neb. 421, 598 N.W.2d 45 (1999).
12 Crouse, supra note 3.
13 See State of Nebraska ex rel. Line v. Kuhlman, 167 Neb. 674, 94 N.W.2d
373 (1959).
924 	277 NeBrASkA reporTS

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 depart-
ments” as mandating an allocation of funds, as opposed to a
permissive exercise of the discretion associated with the nor-
mal 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 legisla-
tive 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, “and all other members of
the police force to the extent that funds may be available to pay
their salaries, and as may be necessary to protect citizens and
property, and maintain peace and good order.”16 Although it is
certainly a laudatory goal to “increase public confidence in the
internal investigations process”17 of omaha citizens’ complaints
against police officers and firefighters, it is beyond our judicial
authority to force the city, by granting the writ of mandamus,
to appoint and fund the Auditor. The employment and funding
of an Auditor is a discretionary function, not a ministerial act
that can be compelled by mandamus.
14 Troshynski v. Nebraska State Bd. of Pub. Accountancy, 270 Neb. 347, 701
N.W.2d 379 (2005).
15 See, State ex rel. Stenberg v. Moore, 249 Neb. 589, 544 N.W.2d 344
(1996); State ex rel. City of Grand Island v. Union Pacific R. R. Co., 152
Neb. 772, 42 N.W.2d 867 (1950). See, also, Kometscher v. Wade, 177 Neb.
299, 128 N.W.2d 781 (1964).
16 See Neb. rev. Stat. § 14-601 (reissue 2007) (emphasis supplied).
17 § 25-9A.
STATe ex rel. pArkS v. couNcIl oF cITy oF oMAhA 	925
cite as 277 Neb. 919

This is made plain by the fact that § 25-9 expressly incor-
porates the normal city budgeting process, instead of establish-
ing a separate appropriation process, or specifying an amount
to be appropriated. By contrast, the cases relied upon by the
relators involve circumstances in which the amount of public
funds to be expended in the performance of a ministerial duty
were specified by the same law that created the ministerial duty
in the first place.18 For example, in State ex rel. Agricultural
Extension Service v. Miller,19 we found a ministerial duty to
have been created when the state statutes establishing a budget
for the county agricultural extension service created a process
“different than the method provided by law for the prepara-
tion of the general county budget.” We noted that the county
board had “a general duty and power to coordinate and to
reduce, alter, or amend the county budget,” but that the statute
at issue in that case had the “obvious intent” to specify funding
and “not vest it in the county board under its general budget-
making powers.”20 In other words, the duty of the county board
in Miller was ministerial precisely because it had been removed
from the normal budgeting process. The ordinance at issue in
this case, by contrast, expressly incorporates the normal bud-
geting process—and therefore is subject to the discretion that
is inherently part of that process.
And the relators’ petition necessarily implicates judicial
involvement in the city’s budgeting process. The relators peti-
tioned the court to issue a writ “commanding” the city council
to comply with § 25-9 “by immediately appropriating funding
for the office of the . . . Auditor, and to employ and appropriate
18 See, e.g., State ex rel. Ledbetter v. Duncan, 702 S.W.2d 163 (Tenn. 1985);
Sturgis v. County of Allegan, 343 Mich. 209, 72 N.W.2d 56 (1955);
Foster v. Taylor et al., 210 S.c. 324, 42 S.e.2d 531 (1947); People ex rel.
O’Loughlin v. Prendergast, 219 N.y. 377, 114 N.e. 860 (1916); Metro.
Dist. Com’n v. City of Cambridge, 12 Mass. App. 921, 424 N.e.2d 272
(1981); State ex rel. Hall v. Bauman, 466 S.W.2d 177 (Mo. App. 1971);
Lohr v. Sullenberger, No. cl 03 000001 00, 2003 Wl 1923790 (Va. cir.
Apr. 8, 2003).
19 State ex rel. Agricultural Extension Service v. Miller, 182 Neb. 285, 287,
154 N.W.2d 469, 471 (1967).
20 Id. at 288, 154 N.W.2d at 471.
926 	277 NeBrASkA reporTS

funding for the . . . Auditor so long as required by law, or be
held in contempt by this court.” The court could not enforce
such a writ unless it was willing to determine, not only whether
funding has been appropriated for an Auditor, but whether that
funding is sufficient to support the office. This is not a case in
which the respondent’s legal duty was clearly articulated—for
example, filling a vacancy in an office created by state law,21 or
abiding by merit selection or civil service rules.22 The duty at
issue in this case requires the exercise of discretion that cannot
be commanded by a court.
In this mandamus action, the relators bear the burden of
demonstrating clearly and conclusively that they are entitled to
the particular thing they want—the funding and appointment
of the Auditor—and that the city council is legally obligated
to act.23 The relators have failed to carry their burden of dem-
onstrating that § 25-9 imposes a clear legal duty on the city
council to employ and appropriate funding for an Auditor.
Because the relators have not demonstrated that they had a
clear right to the relief they sought, we conclude that the dis-
trict court did not err in denying the relators their requested
writ of mandamus.
The relators’ final assignment of error is that the district
court erred in admitting certain evidence because it was irrele-
vant. Specifically, the relators contend that the following evi-
dence should not have been admitted: a portion of the omaha
city charter dealing with the budget and finance, a copy of
omaha’s 2008 budget and resolutions approving the budget,
an affidavit of the omaha city clerk, an affidavit of the omaha
personnel finance director, and the testimony of the staff
assistant to the omaha city council. essentially, the relators
21 See, Dieringer v. Bachman, 131 W. Va. 562, 48 S.e.2d 420 (1948);
McMullen v. City Manager, 300 Mich. 166, 1 N.W.2d 494 (1942); Board
of Commissioners v. Montgomery, 170 Ga. 361, 153 S.e. 34 (1930); State
ex rel. Maes v. Wehmeyer, 324 Mo. 933, 25 S.W.2d 456 (1930); State ex
rel. Hartman v. Thompson, 627 So. 2d 966 (Ala. civ. App. 1993).
22 See, Blair v. Coey, 113 ohio App. 3d 325, 680 N.e.2d 1074 (1996);
Irmscher v. McCue, 504 N.e.2d 1034 (Ind. App. 1987).
23 See Woodman, supra note 11.
STATe ex rel. pArkS v. couNcIl oF cITy oF oMAhA 	927
cite as 277 Neb. 919

argue that because the foregoing evidence is unnecessary in
interpreting § 25-9, it was error for the court to admit and rely
on it.
[13] But as noted above, interpretation of a municipal ordi-
nance is a question of law, on which we reach an independent,
correct conclusion irrespective of the determination made by
the court below.24 We need not determine whether the district
court inappropriately relied on evidence in interpreting § 25-9,
because even if it did, such error was harmless—our indepen-
dent analysis of § 25-9 cures any such error.25
coNcluSIoN
The relators were not entitled to the writ of mandamus
ordering the city council to appoint and fund an Auditor.
Therefore, we affirm the order of the district court.
affirmed.
miller-lermaN, J., participating on briefs.
24 See Brunken, supra note 6.
25 See Alsobrook v. Jim Earp Chrysler-Plymouth, 274 Neb. 374, 740 N.W.2d
785 (2007).
matthew wilSoN aNd liNda wilSoN, aPPellaNtS, v.
SemliNg -meNke C omPaNy, iNC., aPPellee .
766 N.W.2d 128
Filed June 12, 2009. 	No. S-08-985.
1. Statutes: Appeal and Error. Statutory interpretation is a matter of law in con-
nection with which an appellate court has an obligation to reach an independent,
correct conclusion irrespective of the determination made by the trial court.
Appeal from the District court for otoe county: raNdall l.
rehmeier, Judge. reversed and remanded.
Brian J. Adams, of cline, Williams, Wright, Johnson &
oldfather, l.l.p., for appellants.
V. Gene Summerlin, of ogborn, Summerlin & ogborn, p.c.,
for appellee.
928 	277 NeBrASkA reporTS