ELECTRONICALLY FILED 10/20/2014 3:55 PM 02-CV-2014-900142.00 CIRCUIT COURT OF MOBILE COUNTY, ALABAMA JOJO SCHWARZAUER, CLERK IN THE CIRCUIT COURT OF MOBILE COUNTY, ALABAMA CITY OF MOBILE UNITED PUBLIC ) SERVICE WORKERS INC, YOUNG WESLEY, ) BEECH MICHAEL, ) COLLINS JOHN ET AL, ) Plaintiffs, ) ) V. ) Case No.: ) CITY OF MOBILE, ) WESCH PAUL, ) STIMPSON SANDY, ) Defendants. ) CV-2014-900142.00 ORDER THIS MATTER is before the Court on Defendants’ Motion to Dismiss Amended Complaint (“Motion”). After consideration of Plaintiffs’ Complaint as amended (“Complaint”), Defendants’ Motion, Plaintiffs’ response thereto, and the arguments of counsel heard on March 14, 2014, the Court finds that the Defendants’ Motion is due to be, and is hereby, GRANTED. 1. This action was commenced by the filing a “Complaint for Temporary Restraining Order.” Plaintiffs allege that the Mobile City Council adopted a 2014 fiscal year budget (“Budget”) which included a 2.5 percent pay raise for all City employees, and that the raise was to take effect on January 1, 2104. (See Complaint, ¶¶ 1 and 3). Mayor William S. Stimpson has not implemented a raise on the stated grounds that he ascertained a negative balance in the City general fund. Plaintiffs contend, however, that the budgeted allocation by the City Council constituted a “legal benefit to which they are being wrongfully denied.” (See id., at ¶¶ 8. and 9.). 2. Nominally, Plaintiffs seek an injunction “prohibiting Defendants from continuing their refusal” to implement a raise. (Id. at p. 4). In substance (as Plaintiffs stipulated at the March 14, 2014 hearing), they seek a writ of mandamus to the Mayor ordering him to implement a raise. Plaintiffs contend that this is a duty which the Mayor has no discretion but to perform, i.e., a mere ministerial duty. (See id. at ¶ 16 and prayer for relief, alleging that Mayor Stimpson has “abdicated” a “duty” to implement a pay raise, and would have this Court enter an order “prohibiting” the Mayor “from continuing [his] refusal” to do so.) However, even assuming that the Budget included an appropriation for a raise as Plaintiffs contend, Plaintiffs are not entitled to an extraordinary writ of mandamus because the spending of appropriated funds is a discretionary executive power vested in the Mayor. Alabama law is clear that mandamus is a drastic and “extraordinary” writ that will lie only to compel the exercise of a mere “ministerial” duty. Weir v. Aquilex Hydrochem, LLC, 128 So. 3d 722, (Ala. 2013) ("Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought, (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so, (3) the lack of another adequate remedy, and (4) properly invoked jurisdiction of the court.”) A writ of mandamus will not lie to compel the exercise of discretionary authority in a particular manner. See, e.g., Bishop v. Green, 496 So.2d 49, 50 (Ala. Civ. App. 1986) (mandamus “lies to compel the exercise of discretion when nothing is left to be done but a ministerial act”); Vance v. Montgomery County Dept. of Human Resources, 693 So.2d 493, 495 (Ala. Civ. App. 1997) (mandamus may issue to compel, but not to control, “the exercise of discretion reposed in administrative or other governmental bodies.”); Fields v. State ex rel. Jones, 534 So.2d 615, 616 (Ala. Civ. App. 1987) (mandamus lies “to compel an exercise of discretion, [but not to] compel the exercise of discretion in a particular manner absent an abuse of that discretion” (emphasis added)); and Turnbull v. Rencher, 296 So.2d 912, 913 (Ala. Civ. App. 1974) (petition for writ of mandamus to state officials to perform an alleged “ministerial duty imposed by” statute.) An act is “ministerial, when the law, exacting its discharge, prescribes and defines the time, mode and occasion of its performance, with such certainty that nothing remains for judgment or discretion.” McInnish v. Riley, 925 So. 2d 174, 184 (Ala. 2005)(emphasis in original). 3. The government of the City of Mobile is controlled by the Zoghby Act, which defines and separates the respective powers of the Mayor and City Council. Ala. Code § 11-44C1 et seq. The powers of spending, employee compensation, and budget management are executive powers granted to the Mayor. Section 11-44C-37 vests “[a]ll executive powers of the city” in the Mayor, including the power to administer the budget after its adoption by the Council, and to fix the salaries and compensation of city officers and employees. (Id. at subsections (5) and (9)). Moreover, the Mayor is empowered to revise appropriations during a fiscal year if he ascertains that revenues will be less than budgeted appropriations. Section 1144C-55 provides in pertinent part: If at any time during the fiscal year the mayor shall ascertain that the revenue cash receipts of the general fund or any public utility for the year plus any cash surplus available from the preceding year, will be less than the total appropriations to be met from such receipts and the surplus, he or she shall reconsider appropriations of the departments, offices and agencies, and, subject to the laws of the State of Alabama and any municipal ordinances of the city relating to obligatory expenditures for any purpose, revise the appropriations so as to forestall the incurring of a deficit; provided, however, that there shall be no reduction in salaries except by order of the council, or as authorized by law. Importantly, and fatal to Plaintiffs’ Complaint, the foregoing Mayoral powers are not mere ministerial duties subject to compulsion by extraordinary writ. 4. The power to spend – or not to spend – budgeted funds is a discretionary executive power vested in the Mayor. Under the Zoghby Act, the Budget is not a “floor” of expenditures that must be made, but rather is a “ceiling” which expenditures may not exceed. Section 11-44C67 expressly states that expenditures may not exceed appropriations: “No officer, department, or agency shall, during any budget year, expend or contract to expend any money or incur any liability, for any purpose in excess of the amounts appropriated for that general classification of expenditure pursuant to this chapter.” (Emphasis added). The Zoghby Act similarly requires the Director of Finance to control all “expenditures and disbursements to insure that budget appropriations are not exceeded.” § 11-44C-66 (2) (emphasis added). These prohibitions of excess imply the obvious corollary; that expenditures may be less than budget appropriations. 5. Furthermore, an across-the-board pay raise would require not only the exercise of Mayoral powers, but the exercise of authorities granted to the Director of the Mobile County Personnel Board and the Personnel Board itself. The Mobile County Civil Service Act and associated rules and regulations require the Personnel Board to maintain a “Pay Plan” for all classified employees and approve changes to the Pay Plan. (See Section XI of 1939 Local Ala. Acts No. 470, 298, 307, as amended by 2004 Ala. Acts No. 2004-105, 155; and Rule 5.3, Rules and Regulations of The Personnel Board For Mobile County, Alabama (adopted pursuant to the Civil Service Act, 1939 Local Ala. Acts No. 470, 298, 307 (as amended)). Under these provisions, the Pay Plan may be amended on the recommendation of the Director or upon the Board’s own motion, after consultation with the appointing authority, i.e., Mayor Stimpson. The Plaintiffs’ demand for an across-the-board pay raise is a demand for an amendment to the Pay Plan, which cannot be accomplished by the Council or even unilaterally by the Mayor. Certainly a change to the Pay Plan cannot be compelled by means of a judicial writ. 6. The Court concludes that the Budget did not impose a duty on the part of the Mayor or the other Defendants to spend budgeted allocations on a pay raise. The Budget did not create a “legal entitlement” to a pay raise as Plaintiffs contend. The Mayor may exercise his discretion in setting salaries and managing the Budget, and this Court cannot control his exercise of that discretion unless it is an arbitrary and capricious exercise. Surles v. City of Ashville, 68 So. 3d 89 (Ala. 2011). Although Plaintiffs dispute the Mayor’s judgment, there is no evidence or allegation that the Mayor’s decision is arbitrary and capricious. The Mayor’s decisions exercise of his discretionary powers under the Zoghby Act (Ala. Code § 11-44C-1 et seq.) made the subject of this suit are not subject compulsion or control by the judiciary. 7. The Court alternatively finds that it lacks jurisdiction of Plaintiffs’ Complaint under the separation of powers and political question doctrines. The spending of appropriated funds is a discretionary executive function. See also McInnish v. Riley, 925 So. 2d 124 (Ala. 2005). Once funds have been appropriated legislatively (i.e., by the adoption of the Budget), the spending of appropriated money becomes a discretionary executive function. McInnish, 925 So. 2d at 179 and 182 (noting that while the authority to determine the amount of necessary appropriations is a legislative function, "the spending of appropriated money [is] an executive function." (emphasis added)). The Court in McInnish also cautioned that “[s]eparation of powers requires that [discretionary decisions of an executive body] be granted deference by the judiciary to avoid usurpation of the executive body’s administrative prerogatives.” 925 So. 2d at 186. As the decision to expend funds for raises is a matter of executive (Mayoral) discretion, the Complaint here presents a non-justiciable “political question.” 925 So. 2d at 187; see also Birmingham-Jefferson Civic Center Authority v. City of Birmingham, 912 So.2d 204, 214 (Ala. 2005)(quoting Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) listing several factors for finding non-justiciable political questions, many of which appear here). 8. The substance of Plaintiffs’ Complaint does not involve a question of a want of authority, but rather the manner of exercise of authority; namely, the Mayor’s exercise of his authority in ascertaining that there is a negative fund balance and that an across-the-board pay raise should not be made so as to forestall the incurring of a deficit. It is precisely the exercise of his discretionary executive powers that the courts do not have jurisdiction to invade. The Plaintiffs are essentially asking this Court to make a factual determination that the Mayor was mistaken in “ascertain[ing] that the revenue cash receipts of the general fund … will be less than total appropriations.” § 11-44C-55. That this Court cannot do. If the Court were allowed to take charge of budget determinations associated with budget administration, there would be no standards or benchmarks to guide or end its intervention. The separation of powers doctrine precludes this Court from having jurisdiction over these functions. Ala. Const. 1901, Art. III, § 43. The Court therefore concludes that the Complaint is due to be dismissed with prejudice for lack jurisdiction. The Plaintiffs’ Complaint cannot be amended to cure these defects. As such, Plaintiff’s complaint, as amended, is dismissed, costs taxed as paid. DONE this 20th day of October, 2014. /s/ SARAH HICKS STEWART CIRCUIT JUDGE