Koch v. City of Sargent
A-16-1008
| Neb. Ct. App. | Aug 29, 2017Background
- Mark Allen Koch (pro se) sued the City of Sargent alleging violations of Nebraska's Open Meetings Act based on a city council meeting on October 14, 2013; he sought writs of mandamus to void the meeting, remove an appointed city administrator, and force allowance of citizen recordings.
- Koch amended his complaint and the district court dismissed his claim that the entire meeting was void because it occurred on a federal holiday; two other causes proceeded to trial.
- At trial Koch offered an affidavit and two DVD recordings; the court sustained the City's hearsay/foundation objections and excluded those exhibits.
- The district court granted the City's motion to dismiss the remaining causes at the close of Koch’s evidence; Koch’s motion for new trial and motion to recuse were denied.
- On appeal Koch raised multiple procedural and substantive errors (attorney appearances, evidentiary rulings, conflicts, continuances, recusal); the Nebraska Court of Appeals reviewed de novo the dismissals and affirmed in all respects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the city may be represented at hearings by attorneys other than the city attorney | Koch argued an unauthorized "sit-in" attorney was improperly allowed to represent the City | City argued municipalities may have multiple attorneys and substitute counsel may appear for scheduling/continuance reasons | Court: Allowing other attorneys to appear was proper; no record evidence of impropriety |
| Admissibility of Koch’s affidavit and DVD recordings | Koch asserted his affidavit and video recordings were competent evidence of Open Meetings Act violations | City objected (hearsay, lack of foundation, relevance); live testimony and foundation were required | Court: Sustained objections; affidavit inadmissible without live testimony; DVDs lacked foundation and were excluded |
| Whether mandamus was available to remedy alleged Open Meetings Act violations (recording/time to set up; agenda additions; appointment in executive session) | Koch argued the City violated recording rules, improperly added agenda items, and appointed an administrator in unlawful executive session — mandamus should void actions and remove administrator | City relied on AG letter and corrective votes; argued no statutory bar to meeting on holiday, AG advised no violation re: relocation/waiting for equipment, and later corrective votes cured agenda defects; no evidence appointment occurred improperly | Court: Koch failed to prove legal entitlement to mandamus; dismissals affirmed (no prohibition on holiday meetings; no duty to wait for setup; corrected votes cure agenda defects; no proof appointment occurred in violation) |
| Judicial disqualification / conflict / continuances | Koch alleged judge should recuse after ex parte phone contact; alleged conflict where city attorney also deputy county attorney; complained about continuances granted the City | Judge found phone contact unrelated to merits and denied recusal; no evidence Attorney General pursued charges so no conflict; continuances granted within discretion | Court: No bias shown; no conflict demonstrated; continuances not an abuse of discretion |
Key Cases Cited
- Tryon v. City of North Platte, 295 Neb. 706, 890 N.W.2d 784 (Neb. 2017) (standard for reviewing dismissal)
- Pokorny v. City of Schuyler, 202 Neb. 334, 275 N.W.2d 281 (Neb. 1979) (defects in governmental proceedings may be cured by new proceedings)
- Horton v. Ford Life Ins. Co., 246 Neb. 171, 518 N.W.2d 88 (Neb. 1994) (attachments to pleadings must be designated and referred to in the petition to be treated as part of pleading)
- Zannini v. Ameritrade Holding Corp., 266 Neb. 492, 667 N.W.2d 222 (Neb. 2003) (exhibit must be marked, offered, and accepted to become part of evidentiary record)
- R.J. Miller, Inc. v. Harrington, 260 Neb. 471, 618 N.W.2d 460 (Neb. 2000) (motion to dismiss in nonjury trial treated like directed verdict)
- State ex rel. Fick v. Miller, 255 Neb. 387, 584 N.W.2d 809 (Neb. 1998) (mandamus is extraordinary remedy; relator must clearly show right to relief)
- City of Lincoln v. County of Lancaster, 297 Neb. 256, 898 N.W.2d 374 (Neb. 2017) (errors must be specifically assigned and argued on appeal)
- Friedman v. Friedman, 290 Neb. 973, 863 N.W.2d 153 (Neb. 2015) (pro se litigants held to same procedural standards as represented litigants)