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Is this a case of being able to ask for a writ of mandamus from district court?

Person A has Neighbor B who owns several dogs that bark beyond the statutory limits in city code. Person A has filed several written complaints with the city, to little avail: the city issued a warning letter to Neighbor B, but the next step in the process after continuing violations - a 2nd letter, a citation and a fine in municipal court - has been denied by the city. The reasons given by the city are that a fine won't be effective and/or is not needed, and that Person A needs to be more neighborly.

During the timeframe of Person A's conflict with Neighbor B, Person A also complained to the city about Neighbor C's dog and noise violations. The city warned Neighbor C many times in writing and by phone, and then the city finally cited and fined them. The time frame from first complaint to the fine was shorter than the duration of the continuing issues with Neighbor B.

The city attorney employees a paralegal who is Neighbor B's sister. The city attorney has told Person A that this fact doesn't impact the idea that Neighbor B has not been cited and fined.

Person A also has county sheriff's department reports of the noise violations. But the city and the sheriff's department have an unwritten agreement to not participate in the enforcement of dog complaints due to time constraints for other more important matters. This agreement exists, according to sheriff's deputies, the city mayor and city council. (The city contracts with the county for law enforcement; the city once had its own police force.)

Person A has time stamped digital recordings of Neighbor B's dogs, sheriff's department call logs, and other documentation. But other neighbors appear to be reluctant to help with complaints to the city and evidence.

A few questions:

Does the city have a right of discretion to not cite and fine Neighbor B, no matter the number of complaints and evidence from Person A? Or does the city only have a privilege of discretion that was forfeited when the city fined Neighbor C?

How does Person A legally address what appears to be the city attorney's conflict of interest with his paralegal? What is the correct terminology to use?

What about the unwritten agreement between the city and the sheriff's department to not participate in the enforcement of dog complaints due to time constraints? That type of agreement to not enforce laws on the books does not appear to be legal. Does that apply in this case?

Neighbor B has admitted to the city there is a problem with their dogs, according to what the city has emailed to Person A. Neighbor B has accepted money from Person A to buy bark collars, but does not use them effectively. Are these details significant in a legal sense? I.e., some sort of admittance of negligence?

So:

Can Person A go to district court for a writ of mandamus to force the city to cite and fine neighbor B in the hopes of solving the noise ordinance violations? Could the city attorney's conflict of interest with his paralegal be outlined in that lawsuit as a possible reason for the lack of action on the city's part? What about the unwritten agreement between the city and the sheriff's department? Is that heresy?

Edited 10/22/15

Followup Questions:

DaleM said: "At best, you could seek mandamus to force the authority to (re)make the decision to prosecute if the decision was a) not made or b) not made correctly."

What would be my logic that the decision to not prosecute was not made correctly? The body of evidence that the violations have continued? And what I see as a perceived conflict of interest on the part of the city attorney, though I can't clearly prove it?

DaleM said: "You could threaten or actually commence a suit under the tort of trespass seeking an order that the dogs be removed..."

I wouldn't be asking that they be removed; only the noise be managed. What are the burdens of proof for a Tort of Trepass?

If I did commence a suit under either write of mandamus or of trespass, would the city attorney need to recuse himself because of the perceived conflict of interest with his paralegal? Or, is it possible to ask the court to recuse him? Is there enough of a perceived conflict of interest to file an ethics complaint with the state bar?

  • You can sue for nuisance – Viktor Oct 23 '15 at 0:17
  • @Victor: nuisance in civil court? – BlueDogRanch Oct 23 '15 at 1:31
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Does the city have a right of discretion to not cite and fine Neighbor B, no matter the number of complaints and evidence from Person A?

Yes

Or does the city only have a privilege of discretion that was forfeited when the city fined Neighbor C?

No

A prosecuting body's discretion to prosecute or not to prosecute is almost unlimited; this is pretty much universal across all common law jurisdictions. See http://www.justice.gov/usam/usam-9-2000-authority-us-attorney-criminal-division-mattersprior-approvals#9-2.020 for the power for the US Attorney.

Legally there are three concepts in how this law must be exercised: good faith, lack of good faith and bad faith. In general, for a court to overturn a decision of a prosecutor (not) to prosecute there must be bad faith, an absence of good faith is not enough. Legally "bad faith implies malice or ill will. A decision made in bad faith is grounded, not on a rational connection between the circumstances and the outcome, but on antipathy toward the individual for non-rational reasons."

How does Person A legally address what appears to be the city attorney's conflict of interest with his paralegal? What is the correct terminology to use?

Perceived conflict of interest is the term. That conflict leads to apprehended bias. That bias amounts to bad faith. This is not a strong chain of legal reasoning and could fall over an either step. The perception may not match the reality, the conflict may not give rise to bias and the bias probably doesn't amount to bad faith.

What about the unwritten agreement between the city and the sheriff's department to not participate in the enforcement of dog complaints due to time constraints? That type of agreement to not enforce laws on the books does not appear to be legal. Does that apply in this case?

Unless the agreement was made in bad faith it is perfectly legal. There may be an argument that a blanket prohibition on action is bad public policy but that doesn't amount to bad faith. Better public policy would be to require a higher threshold of evidence or expected return (costs vs fines).

Are these details significant in a legal sense? I.e., some sort of admittance of negligence?

An admission is always advantageous to a plaintiff, however, unless it was made under oath or in front of witnesses it can always be recanted. "Negligence" is not an issue here; trespass is.

Can Person A go to district court for a writ of mandamus to force the city to cite and fine neighbor B in the hopes of solving the noise ordinance violations?

No; mandamus can force the authority to do what it is required to do; not what it has discretion about doing. At best, you could seek mandamus to force the authority to (re)make the decision to prosecute if the decision was a) not made or b) not made correctly.

Could the city attorney's conflict of interest with his paralegal be outlined in that lawsuit as a possible reason for the lack of action on the city's part?

Could be, sure. How are you going to prove it is?

What about the unwritten agreement between the city and the sheriff's department?

See above.

Is that heresy?

No, heresy is "any provocative belief or theory that is strongly at variance with established beliefs or customs." It is usually used in a religious or cultural sense but could be applied to the law as "established beliefs or customs." However, as stated, it is perfectly consistent with the beliefs and customs of established law.

TL;DR

You're on your own. You could threaten or actually commence a suit under the tort of trespass seeking an order that the dogs be removed or whatever else you and your lawyer think might work.

  • Excellent answer. An additional note: In my jurisdiction (PA, USA) the standard for judicial review of prosecutorial discretion is "abuse of discretion" rather than "bad faith," but it's the same concept: One would have to show a policy or pattern of favoritism towards particular individuals or groups. – feetwet Oct 16 '15 at 15:25
  • @feetwet I'm sure showing corruption would work too. – Dale M Oct 16 '15 at 20:02
  • @DaleM, many thanks for the long and detailed answer. It's an interesting situation. I didn't know the limits of mandamus, but the differences between rights and privileges of discretion make sense. I've added a few followup questions to my original. But, let me know if any of my followups should be standalone questions themselves, such as a tort of trespass, requiring an attorney to recuse themselves, etc. – BlueDogRanch Oct 22 '15 at 20:18
  • @feetwet, thanks for the details; there appears to be anecdotes relating to a pattern of favoritism, but it seems evidence would be difficult to come up with. – BlueDogRanch Oct 22 '15 at 20:49
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    @BlueDogRanch The follow ups should be stand alone and you should ask them of your lawyer - they are seeking specific legal advice and that is off-limits for this site. – Dale M Oct 22 '15 at 21:51

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