A rendering of what a courthouse annex at 18th and Harney Streets would look like. The skywalk would connect to the Douglas County Courthouse. The building at right is the historic Metropolitan Utilities District headquarters.
The lawsuit holding up the controversial proposed Douglas County courthouse annex and juvenile detention center could come down to the definition of a two-word phrase: “used jointly.”
State statutes require that facilities created or renovated by public building commissions in Nebraska’s largest cities be used jointly by those cities and their respective counties. But the law doesn’t define what “joint use” is.
In a hearing Thursday, lawyers for the two sides in the case pitched differing takes to Douglas County District Judge J. Michael Coffey on how the term should apply to the proposed Douglas County justice center.
On the plaintiff’s side, Patrick McDermott argued that the project is only for Douglas County, not for the joint use with the City of Omaha. He cited a city-county contract that says the county is 100% financially responsible for the buildings, and that only a small police waiting area in the courthouse is reserved specifically for the city. Thus, McDermott contended, the building commission shouldn’t be allowed to use its authority to issue bonds without taking them to a vote of the people.
On the other side, Deputy City Attorney Bernard in den Bosch argued that because the buildings would be connected to the City-County Building and the courthouse, they would be an extension of that jointly used complex.
In den Bosch noted that the vast majority of youths who pass through the detention center and courts are arrested by Omaha police and that the City Council and County Board had approved an agreement for the building commission to erect the new buildings.
The case isn’t expected be decided for at least several weeks. Coffey gave the attorneys until Dec. 2 to file written arguments. They previewed those arguments in the hearing Thursday.
The Omaha-Douglas Public Building Commission proposes to build a $92 million courthouse annex and a $22 million juvenile detention center. They would be connected to each other and to the Douglas County Courthouse in downtown Omaha.
After more than a year of public debate, the building commission voted in May to issue $114 million in bonds for the new complex. But the project was put on hold in July just before the bonds were to be sold. David Lanphier, a former Nebraska Supreme Court judge who lives in Omaha, filed suit to stop the bond sale.
The project is on hold because the bonds cannot be sold with that legal cloud over them.
There are other legal issues in the case, such as whether the building commission, city and county have immunity from certain legal claims. But the attorneys focused mostly on the question of joint use Wednesday.
“We think this is a very simple case,” said McDermott, a retired judge who represents Lanphier. “The Legislature in its wisdom when they adopted the public building commission statutes used a term that is really central, and that is ‘used jointly.’ ”
When projects are used jointly by the county and city, the commission has the authority to issue bonds for the projects without a vote of the people, McDermott told the judge.
“We expect that the central issue for the court to determine is what does ‘used jointly’ mean,” McDermott said.
He noted that agreements for previous Omaha-Douglas Public Building Commission projects had assigned percentages of financial responsibility to both Omaha and Douglas County. But this one’s all on the county financially.
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McDermott suggested that Coffey “could reach one of three conclusions.”
“You could decide it for the plaintiff,” McDermott said. “You could decide it for the defendant in total. Or you may be able to decide that the presence of a city use of a police waiting area in the (courthouse annex) tower is sufficient to satisfy ‘used jointly,’ and that the tower can be built with bonds of this nature. But that the youth (detention) center being exclusive to the county is not subject to the issuance of bonds (by the commission).”
In den Bosch, a deputy Omaha city attorney who serves as the public building commission’s counsel, countered that the police assembly area alone creates a joint use. He noted that the new agreement between the city and county says the division of financial responsibility could vary by up to 10%.
But those weren’t his main points.
“We think that if one looks at the statute and understands the purpose and intent of the statute, there’s no conclusion that can be reached other than this is a joint use,” in den Bosch said.
Noting that all Omaha residents are also residents of Douglas County, he said the services provided in the two buildings will be provided to agencies and citizens of both the county and city.
“We’re serving people that are arrested in large part by the city,” in den Bosch said. “Similarly when we get to the detention facility, the evidence will establish that many of the people that are arrested, processed, detained in that facility are arrested by the Omaha Police Department for violation of state and city ordinances.”
The City of Omaha could build its own juvenile detention center, in den Bosch said.
“But the decision is … work together with the county on a collaborative effort,” in den Bosch said. “And quite frankly, that’s what the building commission act was intended … to provide a means by where the city and county could have facilities for joint use and be able to use them for their common benefit.”
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