Iowa Farm Bureau Federation, Iowa Renewable Fuels Association, and Iowa Water Environment Association , 850 N.W.2d 403 ( 2014 )

IN THE SUPREME COURT OF IOWA
No. 12–0827
Filed July 11, 2014
IOWA FARM BUREAU FEDERATION, IOWA RENEWABLE FUELS
ASSOCIATION, and IOWA WATER ENVIRONMENT ASSOCIATION,
Appellants,
and
AGRIBUSINESS ASSOCIATION OF IOWA, ASSOCIATION OF
BUSINESS AND INDUSTRY, IOWA CATTLEMEN’S ASSOCIATION,
IOWA INSTITUTE FOR COOPERATIVES, IOWA LIMESTONE
PRODUCERS ASSOCIATION, IOWA PORK PRODUCERS
ASSOCIATION, IOWA POULTRY ASSOCIATION, IOWA TURKEY
FEDERATION, and IOWA CORN GROWERS ASSOCIATION,
Appellants,
vs.
ENVIRONMENTAL PROTECTION COMMISSION
and IOWA DEPARTMENT OF NATURAL RESOURCES,
Appellees,
and
ENVIRONMENTAL LAW & POLICY CENTER OF THE MIDWEST,
IOWA ENVIRONMENTAL COUNCIL, and the SIERRA CLUB,
Appellees.
Appeal from the Iowa District Court for Polk County, Bradley
McCall and Mary Pat Gunderson, Judges.
Petitioners and intervenors appeal from the summary judgment
granted by the district court in a judicial review action. AFFIRMED.
2
Michael L. Mock and Karl T. Olson of Parker, Simons & McNeill,
P.L.C., West Des Moines, and Julia L. Vyskocil and Eldon L. McAfee of
Beving, Swanson & Forrest, P.C., Des Moines, for appellants.
Thomas J. Miller, Attorney General, David R. Sheridan and
David S. Steward, Assistant Attorneys General, for appellees
Environmental Protection Commission and Iowa Department of Natural
Resources.
Bradley D. Klein, Chicago, Illinois, and Joshua T. Mandelbaum,
Des Moines, for intervenor-appellee Environmental Law & Policy Center,
and Wallace L. Taylor, Cedar Rapids, for appellee Sierra Club.
3
CADY, Chief Justice.
In this appeal, we decide two issues concerning the qualifications
of persons who serve state government on commissions that engage in
rulemaking. First, we must decide whether an Iowan who served on a
commission was disqualified to vote on the adoption of a rule and
regulation when she engaged in activities in her employment in support
of the rule. Second, we must decide whether a rule adopted by a
commission was invalid after it was discovered that a member who
participated in the voting was not actually qualified to serve on the
commission because she had lost her status as an elector in Iowa.
On our review of the decision by the district court, we conclude the
nature of rulemaking does not disqualify a commission member from
voting to adopt rules she personally and professionally supported. We
also conclude that the disqualification of a commission member does not
invalidate the action taken by the commission when the particular
disqualification did not undermine the integrity of the process and when
the public interest supports validating the rule despite the
disqualification. We affirm the decision of the district court.
I. Background Facts and Proceedings.
The Environmental Protection Commission exists to protect Iowa’s
environment and conserve its natural resources. One of its primary
duties is to establish policies and make rules governing the environment,
including the adoption of rules to implement federal environmental
programs. See Iowa Code § 455A.6(6)(a) (2009). The Commission is
composed of nine members appointed by the Governor subject to senate
confirmation. Id. § 455A.6(1). The members serve staggered four-year
terms. Id. The Commission meets at numerous times throughout the
year, usually monthly, and the members receive per diem compensation
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in addition to reimbursement for expenses. Id. § 455A.6(3), (4).
Membership on the Commission is not a full-time position. Members
usually have other careers and employment, but join hundreds of other
Iowans to participate in the operation of government by serving on
various boards and commissions that assist in the operation of
government.
In March 2007, Governor Chet Culver appointed Susan Heathcote
to the Commission. The appointment was confirmed by the senate.
Heathcote was employed by the Iowa Environmental Council. The Iowa
Environmental Council is a nonprofit corporation located in Des Moines.
Its function is to work to protect Iowa’s natural environment. Heathcote
held the position of Water Program Director and was responsible for
researching environmental issues, advising the Council on policy, and
representing the Council on advisory groups. Heathcote began working
for the Council in 1996.
In May 2009, Governor Culver appointed Carrie La Seur to the
Commission. Her appointment was also confirmed by the senate. She
lived in Mount Vernon, Iowa, at the time of her appointment. La Seur is
a lawyer and ran an organization called Plains Justice. She served as
secretary of the Commission.
In July 2009, La Seur moved to Montana. Her husband was a
professor at Cornell College in Mount Vernon, and she accompanied him
when he left Iowa on a teaching sabbatical in Montana. La Seur,
however, continued to own a home in Mount Vernon during the
sabbatical and continued to serve on the Commission. She returned to
Iowa for Commission meetings or appeared by telephone conference call.
La Seur obtained a Montana drivers’ license after moving and
registered to vote in Montana in July 2009. She was previously
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registered to vote in Iowa. The sabbatical turned into a permanent move
after La Seur’s husband accepted a job offer to work in Montana in
January 2010.
Heathcote and La Seur served on the Commission during a critical
period of time when it considered the adoption of rules to prevent the
degradation of existing water quality of Iowa’s water resources. The
United States Environmental Protection Agency (EPA) promulgated a
regulation in 1983, which required states to adopt policies aimed at
preventing degradation of existing water quality and consistent with
federal criteria. See 48 Fed. Reg. 51,400–01 (Nov. 8, 1983) (codified at 40
C.F.R. § 131.6 (2010)). The EPA promulgated the regulation pursuant to
the Federal Water Pollution Control Act, which is better known as the
Clean Water Act (CWA). See 33 U.S.C. § 1313(a)(3)(A) (2006) (requiring
states to establish water quality standards). One component of a state’s
water quality standards submission is “[a]n antidegradation policy
consistent with § 131.12.” 40 C.F.R. § 131.6(d). For an antidegradation
policy to be consistent with federal criteria, it must, at a minimum,
maintain and protect certain existing uses of waterways. Id.§ 131.12(a)(1). Iowa law similarly requires the Iowa Department of
Natural Resources (IDNR), through the Commission, to “[e]stablish,
modify, or repeal water quality standards, pretreatment standards, and
effluent standards.” Iowa Code § 455B.173(2).
Iowa was slow to respond to the federal regulation, despite efforts
by federal authorities over the years to spur Iowa to begin the
implementation process. In July 2007, the IDNR finally initiated what
ultimately would be a three-year process of adopting rules to implement
the federal antidegradation program. The process began with a meeting
between the individuals from the IDNR, Iowa Environmental Council,
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Iowa Chapter of the Sierra Club, Hawkeye Fly Fishing Association, and
the Environmental Law and Policy Center. Two petitions for rulemaking
with recommended antidegradation rules were subsequently submitted
to the IDNR in support of the development of appropriate antidegradation
standards. The first petition was submitted in October 2007 by a
coalition of water quality groups consisting of the Iowa Environmental
Council, Iowa Chapter of the Sierra Club, and Hawkeye Fly Fishing
Association. In June 2008, Iowa Farm Bureau Federation and other
agribusiness and industrial interests filed a second petition for
rulemaking that sought a different set of antidegradation standards. The
antidegradation rules advocated in the first petition were generally more
stringent than the rules advocated in the second petition.
Heathcote played an active role in her employment with the Iowa
Environmental Council in developing the proposed rules submitted to the
IDNR in the October petition by her employer and the other coalition
groups. She was also active in pushing the IDNR to initiate the
rulemaking process, and she remained involved in the process the IDNR
followed after the petitions for rulemaking were filed. Heathcote was
recognized as a lead person among the environmental groups advocating
for the first petition.
The IDNR held numerous workshops and meetings with various
stakeholders after the petitions were filed. It also solicited public
comments and held various public hearings. Heathcote advocated in
support of the first petition at all stages of the process.
After considering the petitions and the input provided by the
rulemaking process, the IDNR drafted a proposed antidegradation rule
for the state, as well as proposed implementation procedures. The
proposed rules and procedures would eventually be submitted to the
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Commission for approval. The rules drafted by the IDNR differed from
the rules proposed by the two petitions, but they were more closely
aligned to the proposals in the first petition.
In December 2009, the Commission approved the final
antidegradation rules and procedures by a vote of six to two. Heathcote
and La Seur voted to approve the rules, and one member of the
Commission abstained.
The rules and procedures approved by the Commission were then
approved by a legislative committee and submitted to the EPA for review
and approval. Iowa’s antidegradation rules and procedures were
approved by the EPA in September 2010.
In October 2010, Iowa Farm Bureau Federation and two other
associations filed a petition for judicial review under section 17A.19 of
the Iowa Administrative Procedure Act (IAPA). 1 The petition sought to
overturn the Iowa Antidegradation Standards and Implementation
Procedures. They allege the action taken by the Commission was invalid
because Heathcote was disqualified to vote due to a conflict of interest,
and La Seur was disqualified to serve on the Commission at the time she
voted because she did not satisfy the requirement for Commission
members to be eligible Iowa electors.
In April 2011, the Commission filed a motion for summary
judgment in response to the petition for judicial review. It claimed
neither Heathcote nor La Seur was disqualified from voting as a matter of
law. Farm Bureau responded to the motion by requesting time to reply
so that it could pursue discovery of facts and information relevant to the
summary judgment proceedings. It also moved to compel discovery from
1The petitioners will be collectively referred to in this opinion as Farm Bureau.
8
the Iowa Environmental Council, which had intervened in the case.
Farm Bureau had previously obtained extensive documents and
materials from the Commission, IDNR, and Iowa Environmental Council
pursuant to subpoenas and other methods of discovery, but wanted
additional production of internal records and documents relating to
Heathcote’s employment and other activities related to her employment,
as well as all other communications by Heathcote relating to the process
and the adoption of the antidegradation rule. This request included
emails and other communications between staff, attorneys, donors, and
others. The Iowa Environmental Council claimed the discovery request
sought confidential and protected information and was overly
burdensome and largely unnecessary to resolve the substantive issues.
The district court denied the motion to compel discovery and
granted the motion to quash filed by the Iowa Environmental Council.
Farm Bureau eventually filed a resistance to the summary judgment
motion and sought summary judgment on the issue involving the
disqualification of La Seur.
The district court granted summary judgment for the Commission,
denied summary judgment sought by Farm Bureau, and dismissed the
petition. Farm Bureau appealed and raised three issues. First, it claims
the district court erred by granting summary judgment prior to the close
of discovery. Second, it claims the district court erred by granting
summary judgment to the Commission on Farm Bureau’s claim that
Heathcote had a conflict of interest that required vacating the
antidegradation policy. Finally, Farm Bureau contends the district court
erred by granting summary judgment to the Commission regarding Farm
Bureau’s claim that La Seur’s registration to vote in Montana voided her
status as an eligible Iowa elector and that she was in turn no longer
9
qualified to serve on the Commission. Accordingly, Farm Bureau argues
the district court also erred by not vacating the antidegradation policy on
this ground.
II. Scope of Review.
We review a decision to deny discovery by the district court for
abuse of discretion. Kulish v. Ellsworth, 566 N.W.2d 885, 889 (Iowa
1997). We review a decision by the district court to grant summary
judgment for correction of errors at law. Rucker v. Humboldt Cmty. Sch.
Dist., 737 N.W.2d 292, 293 (Iowa 2007); Iowa R. App. P. 6.907.
III. Discovery Prior to Summary Judgment.
The decision to deny or grant a continuance of a motion for
summary judgment to pursue discovery lies within the discretion of the
trial court. Kulish, 566 N.W.2d at 889. Generally, a party to a lawsuit
should be allowed to complete discovery before summary judgment is
considered. Miller v. Cont’l Ins. Co., 392 N.W.2d 500, 503 (Iowa 1986).
Although a continuance would ordinarily be appropriate in a case
of this nature, it is clear the salient facts relevant to the claim that
Heathcote was disqualified from voting had emerged by the time the
summary judgment was filed. As an employee of the Iowa Environmental
Council, Heathcote unquestionably played an active role in urging the
IDNR to move forward with antidegradation rules and procedures and
she actively participated in filing and promoting a petition for rulemaking
with the IDNR. She also advocated on behalf of her employer for the
stringent rules proposed by the advocacy groups responsible for filing the
petition and was engaged in the process established by the IDNR to
address both petitions for rulemaking. Heathcote advocated that the
IDNR propose stringent antidegradation rules and procedures to the
10
Commission, upon which she served, for approval. Farm Bureau had
obtained ample discovery to pursue its legal challenge in this case.
Importantly, the structural claim of a conflict of interest asserted
by Farm Bureau was not based on hidden conduct by the Iowa
Environmental Council or the IDNR. Instead, the claims squarely
centered on a very open and visible dual role that Heathcote performed
as an advocate and ultimate adjudicator. There were ample
considerations to balance by the district court, and it was within the
court’s discretion to deny discovery.
IV. Disqualification of Commissioner Heathcote.
The resolution of this case first requires a full understanding of the
process followed in our government to implement regulations within the
executive branch. At first blush, the idea of an individual serving as both
an advocate and a decision-maker seems contrary to our general
governmental approach. We must decide if this initial response rings
true upon deeper inquiry into the rulemaking function of government.
Within our governmental structure, the IDNR is administered by a
director appointed by the Governor, subject to senate confirmation. Iowa
Code § 455A.3. The director serves at the pleasure of the Governor. Id.
Generally, the director has the power and duty to administer the IDNR as
provided by the legislature. Id. § 455A.4. Our legislature, however, also
established the Environmental Protection Commission to perform certain
overview responsibilities, including the duty to establish policy and rules
for the effective administration of the IDNR. Id. § 455A.6(6)(a).
Consistent with most commissions within the executive branch of
government, the Environmental Protection Commission is composed of a
citizen panel. This approach is part of the larger venerable governmental
process of citizen participation and voice in our democracy that together
11
with direct participation by publicly elected officials marks the strength
and vibrancy of our democracy.
As a component of the executive branch of government, the
members of the Environmental Protection Commission are appointed by
the Governor, subject to senate confirmation. Id. § 455A.6(1). The
integrity and strength of citizen participation is established by the
required composition of the membership of the Commission. All
members must be electors of Iowa and all members must have
knowledge of the subjects embraced under the governing laws. Id. More
specifically, three members of the Commission must be actively engaged
in livestock and grain farming, one member must be an active manager
of a manufacturing company, and one member must be actively working
in finance or commerce. Id. § 455A.6(1)(a), (b), (c). The remaining four
members do not need any specific employment or background, other
than to be an elector and have knowledge of the subject matter of the
Commission. Id. § 455A.6(1)(d). An elector is a person eligible to vote in
Iowa. See Iowa Const. art. II, § 1.
The Governor may not make appointments to the Commission
based on political considerations, other than to meet the general
requirements for the membership of appointive boards and commissions
in this state to satisfy the balance of political affiliation under Iowa Code
section 69.16. Iowa Code § 455A.6(1). Yet, this statutory requirement
does not infringe upon the prerogative of a governor to otherwise appoint
individuals to the Commission who may share the views of the Governor
on the subject matter of the Commission or individuals who may even
publicly advocate those views in their personal or professional life. All
individuals who work in a particular discipline acquire special knowledge
and develop perspectives and views about various issues. By requiring
12
some members of the Environmental Protection Commission to
specifically work in certain areas and by requiring all members to have
special knowledge of the subject matter of the Commission, the
legislative scheme appears to contemplate that individual views,
perspectives, and knowledge are desired strengths.
Moreover, a governor, as the top-elected representative of the
people, has always had the ability to shape the overall perspective and
direction of commissions through the power of appointment. Thus, the
“political considerations” excluded from the appointment process by
statute do not normally extend to the ability of a governor to appoint
Commission members who have particular views about subjects expected
to come before the Commission that may be consistent with the views of
the Governor or the political party of the Governor. Instead, this concept
reflects the basic nature of governing through public elections and is
deeply embedded within the executive and legislative branches of
government.
This background does not undermine or oppose the claim asserted
by Farm Bureau in this case that Heathcote should have been
disqualified. Instead, it permits it. See id. § 17A.19. One of the specific
grounds for judicial review of agency action permits courts to grant relief
from an action taken by an agency when it was “[t]he product of decision
making undertaken by persons who were improperly constituted as a
decision-making body, were motivated by an improper purpose, or were
subject to disqualification.” Id. § 17A.19(10)(e). Accordingly, Farm
Bureau uses the IAPA to frame its core claim that its rights were
prejudiced by the Commission action in this case because Heathcote was
“motivated by an improper purpose” and should have been disqualified
from voting. Id.
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The claim by Farm Bureau that the Commission rulemaking action
was motivated by an improper purpose and was subject to
disqualification is based on the dual role of Heathcote as a strong and
active advocate, both personally and on behalf of her employer, before
the IDNR at the same time as she was a member of the Commission that
would ultimately be responsible to approve an antidegradation rule
developed by the IDNR. More specifically, Farm Bureau argued the
actions of Heathcote violated the conflict-of-interest statute that restricts
outside employment and activities by a person who is employed by the
state or otherwise serves the state. See id. § 68B.2A(1)(a), (b). This
statute prohibits a state employee or other person serving the state from
engaging in outside employment or activity that conflicts with the
person’s official duties and responsibilities. See id. § 68B.2A(1).
To aid in a determination whether a particular outside employment
or activity creates an unacceptable conflict of interest, the legislature
identified three types of unacceptable conflicts. See id. One situation
concerns outside employment or activity that involves the use of state
time or resources or the use of state identification that gives the person
an advantage or benefit not available to the general public. Id.
§ 68B.2A(1)(a). Another situation deemed an unacceptable conflict by
the legislature is when the outside employment or activity involves
consideration received by a state employee from someone other than the
state for performing work that is a part of the duties and responsibilities
of state employment. Id. § 68B.2A(1)(b).
We have in the past determined that a statutory conflict can serve
to disqualify the vote of a member of a governmental council or
commission. Wilson v. Iowa City, 165 N.W.2d 813, 823 (Iowa 1969). In
Wilson, we confronted a statute that prohibited a public official from
14
acquiring a personal interest in an urban renewal project and,
specifically, disqualified officials with such an interest from voting on a
project. Id. at 817; see also Iowa Code § 403.16 (1966) (prohibiting
interested officials from participating in urban renewal proceedings).2
We held a city councilman violated this statute and was disqualified from
voting to approve an urban renewal plan because he was employed by an
entity that owned real estate in the project area that would directly
benefit by the renewal project. Wilson, 165 N.W.2d at 823. Furthermore,
the councilman was expected to work with the city in his employment on
various interests in the renewal project. Id. We found the nature of the
employment duties created a disqualifying personal interest, even though
there was no direct financial advantage to the councilman. Id. at 821–
23. We recognized the councilman had dual interests at stake—duties to
his employer and duties of the city council—and that his dual interests
had a potential to present the disqualifying conflict. Id. at 823. We
emphasized that the councilman’s employer had an “unusual and direct”
financial interest in the renewal proceedings: his employer had the
2That section provided, in relevant part:
No public official or employee of a municipality, or board or commission
thereof . . . shall voluntarily acquire any personal interest, direct or
indirect, in any urban renewal project, or in any property included or
planned to be included in any urban renewal project of such
municipality, or in any contract or proposed contract in connection with
such urban renewal project. . . . If any such official, commissioner or
employee presently owns or controls, or has owned or controlled within
the preceding two years, any interest, direct or indirect, in any property
which he knows is included or planned to be included in an urban
renewal project, he shall immediately disclose this fact in writing to the
local governing body, and such disclosure shall be entered upon the
minutes of the governing body; and any such official, commissioner or
employee shall not participate in any action by the municipality, or board
or commission thereof, or urban renewal agency affecting such property.
Iowa Code § 403.16 (1966).
15
exclusive right to purchase some of the land the city condemned. Id. at
821, 823.
Farm Bureau avers section 68B.2A(1)(a) and (b) provides the
applicable statutory standard for the disqualification of Heathcote in this
case. Yet, unlike the underlying statute in Wilson, section 68B.2A does
not prohibit members of commissions from voting if they have an
unacceptable conflict as defined in subsections (1)(a) and (b); instead, it
merely requires the official to “cease the employment or activity.” Iowa
Code § 68B.2A(2). This is not to say section 68B.2A does not support
disqualification of those officials who have unacceptable conflicts of
interest. It does, just not for the conflict of interest Farm Bureau alleges
should have disqualified Heathcote. See id. (providing that officials
whose outside employment creates a conflict under either subsection
(1)(c) or else a rule promulgated by the ethics board pursuant to
subsection (4) shall “refrain from taking any official action or performing
any official duty that would detrimentally affect or create a benefit for the
outside employment or activity” if the official does not cease the activity).
The violations of section 68B.2A claimed by Farm Bureau do not
necessarily support automatic disqualification as a remedy for violation.
We also recognize chapter 68B includes a specific ban on lobbying
by state officials before certain boards. Id. § 68B.5A; see City of
Des Moines v. City Dev. Bd., 633 N.W.2d 305, 311–12 (Iowa 2001)
(discussing the relationship between general and specific statutes). The
Government Ethics and Lobbying Act, however, excludes members of
boards and commissions from that ban. See Iowa Code §§ 68B.2, .5A.
Section 68B.5A(1) prohibits lobbying by any “statewide elected official,
the executive or administrative head of an agency of state government,
the deputy executive or administrative head of an agency of state
16
government, or member of the general assembly.” Id. § 68B.5A(1).
Section 68B.5A(2) prohibits “[t]he head of a major subunit of a
department or independent state agency whose position involves
substantial exercise of administrative discretion or the expenditure of
public funds” as well as certain employees “whose position involves
substantial exercise of administrative discretion or the expenditure of
public funds” from “lobbying before the agency in which the person is
employed or before . . . whom the person has substantial or regular
contact as part of the person’s duties.” Id. § 68B.5A(2). Section
68B.5A(3) prohibits other employees from lobbying with respect to “any
particular case, proceeding, or application with respect to which the
person is directly concerned and personally participates as part of the
person’s employment.” Id. § 68B.5A(3). All three subsections create a
limited exception that permits an individual to lobby if specifically
designated by the agency for which the individual works. Id.
§ 68B.5A(1)–(3).
However, a member of a board or a commission does not fall into
any of these statutory categories. A member of a board or commission is
an “official,” a term that consists of a specific enumeration of positions.
Id. § 68B.2(17). Notably, many of the individuals who constitute the
class of “officials” are identified in the outright ban on lobbying contained
in section 68B.5A(1), with the notable exceptions of the heads of major
subunits of departments or agencies and members of boards or
commissions. See id. § 68B.5A(1). Of course, the heads of major
subunits are barred from a narrower scope of lobbying—lobbying before
their agency or an agency they regularly contact—in section 68B.5A(2).
See id. § 68B.5A(2). Yet, the first two subsections do not mention
members of boards or commissions. See id. § 68B.5A(1), (2).
17
Furthermore, a “[s]tate employee” is not an “official.” Id. § 68B.2(25).
Thus, the narrowest ban on lobbying contained in section 68B.5A(3) does
not apply to members of boards or commissions. In construing section
68B.2A as identified by Farm Bureau, we cannot ignore the more specific
statute on point that does not prohibit lobbying by members of boards or
commissions.
Of course, many of the general principles identified in Wilson
remain applicable. As Farm Bureau points out, Wilson recognized many
conflict of interest statutes “are merely declaratory of the common law.”
165 N.W.2d at 822. Indeed, we did not “limit ourselves to the literal
language of [section 403.16] alone” in Wilson. Id. Here, section
68B.2A(3) expressly disavows displacing common law. See Iowa Code
§ 68B.2A(3) (“Unless otherwise specifically provided the requirements of
this section shall be in addition to, and shall not supersede, any other
rights or remedies provided by law.”). Additionally, we think section
17A.19(10) of the IAPA incorporates general common law conflict-of-
interest principles. Notably, section 17A.19(10)(e) not only prohibits
action that was “motivated by an improper purpose,” but also action
taken when the administrator was “subject to disqualification.” Id.
§ 17A.19(10)(e). It seems that the legislature intended to incorporate
general conflict-of-interest standards and enable judicial development of
these standards.
Conflict-of-interest rules, “whether common law or statutory, are
based on moral principles and public policy.” Wilson, 165 N.W.2d at
822. “They demand complete loyalty to the public and seek to avoid
subjecting a public servant to the difficult, and often insoluble, task of
deciding between public duty and private advantage.” Id. “It is not
necessary that this advantage be a financial one,” and “[t]he employer–
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employee relationship has always been recognized as one source of
possible conflict of interest.” Id. at 822, 823. To be more accurate, we
have viewed the specific conflict in an employer–employee relationship
context “as a conflict of duties rather than a conflict of interest.” Id. at
823. In this regard, our basic inquiry considers how the conflict impacts
loyalty and duty to perform the commission work. See id. To be sure, an
urban renewal proceeding is only one type of official action, and Wilson
itself treated its facts as unique. See id. at 821–23. Therefore, section
68B.2A is relevant, but we must examine the particular claim of conflict
asserted within the role of rulemaking. We thus proceed to identify a
standard to utilize to resolve the conflict-of-interest issue presented.
We begin by examining the nature of agency rulemaking. The
standard of disqualification based on a conflict of interest would not
necessarily be the same in every type of agency action. Generally, agency
action encompasses the product of rulemaking, contested cases, and
other agency action. Smith v. Iowa Bd. of Med. Exam’rs, 729 N.W.2d 822,
826 (Iowa 2007). A contested case is
a proceeding including but not restricted to ratemaking,
price fixing, and licensing in which the legal rights, duties or
privileges of a party are required by Constitution or statute
to be determined by an agency after an opportunity for an
evidentiary hearing.
Iowa Code § 17A.2(5). In contrast, rulemaking is the “process for
adopting, amending, or repealing a rule.” Id. § 17A.2(12). A rule is a
“statement of general applicability that implements, interprets, or
prescribes law or policy.” Id. § 17A.2(11). A rule is not, however, “[a]
determination, decision, or order in a contested case.” Id. § 17A.2(11)(d).
Section 17A.2 thus creates an irreducible dichotomy between rulemaking
19
and contested cases. The importance of this dichotomous relationship is
fully revealed by the facts of this case.
The diverse forms of agency action necessitate different standards
of review depending on the agency action and the context of the
challenge. See Iowa Code § 17A.19(10). We have also said the
distinction between forms of agency action is important for determining
the amount of “due process afforded to parties.” Greenwood Manor v.
Iowa Dep’t of Pub. Health, 641 N.W.2d 823, 834 (Iowa 2002). For the
reasons that follow, we think the distinction is similarly relevant to the
standard for disqualifying an administrator. One standard—employed in
Wilson and suggested by Farm Bureau—focuses on the potential for a
conflict or the appearance of bias. See 165 N.W.2d at 822 (“It is the
Potential for conflict of interest which the law desires to avoid.”). We take
note that this standard is closely similar to a standard utilized by federal
courts in some contexts, which defines a disqualifying interest as any
interest on the part of an administrator that could cause “ ‘a
disinterested observer [to] conclude that (the agency) has in some
measure adjudged the facts as well as the law of a particular case in
advance of hearing it.’ ” See Cinderella Career & Finishing Sch., Inc. v.
FTC, 425 F.2d 583, 591 (D.C. Cir. 1970) (quoting Gilligan, Will & Co. v.
SEC, 267 F.2d 461, 469 (2d Cir. 1959)). Under the Cinderella standard,
adjudicatory hearings before the agency “ ‘must be attended, not only
with every element of fairness but with the very appearance of complete
fairness.’ ” Id. (quoting Texaco, Inc. v. FTC, 366 F.2d 754, 760 (D.C. Cir.
1964)).
The Cinderella standard is generally compatible, not only to the
standard employed in Wilson, but the standard we have applied in the
context of contested cases as well. See Anstey v. Iowa State Commerce
20
Comm’n, 292 N.W.2d 380, 390 (Iowa 1980) (“We believe that agency
personnel charged with making decisions of great import . . . should be
guided by the rationale of [Canon 2 of the Code of Judicial Conduct as it
existed in 1980, which provided that ‘[a] judge should avoid impropriety
and the appearance of impropriety in all of his activities.’]”). 3 Yet,
Anstey’s contemporary cases reveal bias is not an unlimited concept. We
stated in another case:
As here employed the term “bias” means adverse,
preconceived mental attitude or disposition, toward a party
to a controversy, of such weight and nature as to materially
impair or destroy that impartiality essential to a fair hearing.
It does not relate to views entertained regarding the subject
matter involved . . . .
Cedar Rapids Steel Transp., Inc. v. Iowa State Commerce Comm’n, 160
N.W.2d 825, 837 (Iowa 1968) (emphasis added). After all, a claim of bias
in the context of contested cases “becomes a justiciable issue only as it
bears on the fairness of the hearing.” Anstey, 292 N.W.2d at 390. In the
context of due process in adjudicative proceedings before school boards,
the presumption of objectivity and impartiality in contested cases “will
typically be determinative of the bias issue” and can only be overcome by
“direct, compelling evidence to the contrary.” Bd. of Dirs. v. Justmann,
476 N.W.2d 335, 340 (Iowa 1991).
Anstey itself recognized that comments generally suggestive of a
particular policy position do not require disqualification in the
adjudicatory context. See 292 N.W.2d at 391. In the context of an
administrator who had made statements in a contested case surrounding
extension of electrical transmission lines, we said:
3A current component of the Code of Judicial Conduct requires a judge to
“disqualify himself or herself in any proceeding in which the judge’s impartiality might
reasonably be questioned.” Iowa Ct R. 51:2.11(A).
21
Van Nostrand’s statements at the Energy Policy Council that
few objections are good, that most objectors are motivated by
financial considerations and that most objectors merely want
the lines to cross other peoples’ property, while they might
be interpreted as leaning toward the general view that
electrical transmission franchises should be extended, are
not shown to be directly referable to this particular line or to
the objections to it.
Id. at 390. Thus,
taking a position, even in public, on a policy issue related to
the dispute does not disqualify a decision maker. In order to
disqualify him, it must be shown “that he is not capable of
judging a particular controversy fairly on the basis of its own
circumstances.”
Id. (quoting Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ. Ass’n,
426 U.S. 482, 493, 96 S. Ct. 2308, 2314, 49 L. Ed. 2d 1, 9 (1976));
accord United States v. Morgan, 313 U.S. 409, 421, 61 S. Ct. 999, 1004,
85 L. Ed. 1429, 1435 (1941).
Notwithstanding, a rulemaking is different from a contested case
and follows a different standard for disqualification. Ass’n of Nat’l
Advertisers, Inc. v. FTC, 627 F.2d 1151, 1165–70 (D.C. Cir. 1979); accord
Lead Indus. Ass’n v. EPA, 647 F.2d 1130, 1179 (D.C. Cir. 1980). This
different standard is based on the broad distinctions between rulemaking
and a contested case proceeding, as well as the different due process
concerns.
In a rulemaking, agencies are expected to “allocate resources more
efficiently, act with greater speed, and give specific notice to industries of
the scope” of the proposed rule. Ass’n of Nat’l Advertisers, 627 F.2d at
1166; see also Nat’l Petroleum Refiners Ass’n v. FTC, 482 F.2d 672, 690–
91 (D.C. Cir. 1973) (recognizing the efficiency that accrues to rulemaking
proceedings). “The legitimate functions of a policymaker, unlike an
adjudicator, demand interchange and discussion about important
issues.” Ass’n of Nat’l Advertisers, 627 F.2d at 1168. Indeed, effective
22
officials “must engage in debate and discussion about policy matters
before [the Agency],” and “ ‘informal contacts between agencies and the
public are the “bread and butter” of the process of administration.’ ” Id.
at 1169 (emphasis added) (quoting Home Box Office, Inc. v. FCC, 567 F.2d
9, 57 (D.C. Cir. 1977) (per curiam)).
Thus, “[t]he Cinderella view of a neutral and detached adjudicator
is simply an inapposite role model for an administrator who must
translate broad statutory commands into concrete social policies.” Id. at
1168–69. Due process in a rulemaking does not “impose judicial roles
upon administrators when they perform functions very different from
those of judges.” See id. at 1168. Consequently, the Association of
National Advertisers standard will disqualify a commissioner “only when
there has been a clear and convincing showing that the agency member
has an unalterably closed mind on matters critical to the disposition of
the proceeding.” Id. at 1170.
The D.C. Circuit has uniformly applied this standard to challenges
to informal rulemaking proceedings asserting an administrator should
have recused himself or herself. See Air Transp. Ass’n of Am., Inc. v. Nat’l
Mediation Bd., 663 F.3d 476, 487 (D.C. Cir. 2011); PLMRS Narrowband
Corp. v. FCC, 182 F.3d 995, 1002 (D.C. Cir. 1999); C & W Fish Co. v. Fox,
Jr., 931 F.2d 1556, 1564 (D.C. Cir. 1991); Consumers Union of U.S., Inc.
v. FTC, 801 F.2d 417, 427 (D.C. Cir. 1986); United Steel Workers of Am.,
AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1209 (D.C. Cir. 1980). Other
courts have adopted this rubric as well. See Alaska Factory Trawler
Ass’n v. Baldridge, 831 F.2d 1456, 1467 (9th Cir. 1987); Citizens for a
Better Env’t v. Illinois Pollution Control Bd., 504 N.E.2d 166, 171 (Ill. App.
Ct. 1987); Fogle v. H & G Rest., Inc., 654 A.2d 449, 462 (Md. 1995); Nw.
Bell Tel. Co. v. Stofferahn, 461 N.W.2d 129, 133–34 (S.D. 1990); Tenn.
23
Cable Tel. Ass’n v. Tenn. Pub. Serv. Comm’n, 844 S.W.2d 151, 165 (Tenn.
Ct. App. 1992); see also Mun. Servs. Corp. v. State ex rel. N.D. Dep’t of
Health & Consol. Labs., 483 N.W.2d 560, 563–64 (N.D. 1992) (citing
favorably cases applying the Association of National Advertisers rule, but
applying the stricter Cinderella standard to adjudicative facts). A
subsequent panel of the D.C. Circuit did seem to call into question the
Association of National Advertisers rule, but did so by suggesting due
process should not apply at all in rulemakings. See Natural Res. Def.
Council, Inc. v. EPA, 859 F.2d 156, 194 (D.C. Cir. 1988). It does not
appear any court has rejected the Association of National Advertisers rule
in favor of the Cinderella standard.
The D.C. Circuit’s standard is based in part upon a pair of
century-old United States Supreme Court cases that distinguished
between administrative proceedings that resemble legislative action and
proceedings that resemble adjudicatory action. See Ass’n of Nat’l
Advertisers, 627 F.2d at 1165. See generally Bi-Metallic Inv. Co. v. State
Bd. of Equalization, 239 U.S. 441, 36 S. Ct. 441, 60 L. Ed. 372 (1915);
Londoner v. City and Cnty. of Denver, 210 U.S. 373, 28 S. Ct. 708, 52
L. Ed. 1103 (1908); Arthur Earl Bonfield, The Definition of Formal Agency
Adjudication Under the Iowa Administrative Procedure Act, 63 Iowa L. Rev.
285, 323–24 (1977) [hereinafter Bonfield] (discussing the influence of
Londoner and Bi-Metallic Investment Co. on the development of
administrative law). In Londoner, the City of Denver established an
administrative scheme permitting local boards “to make local
improvements and to assess the cost upon property specially benefited.”
210 U.S. at 375, 28 S. Ct. at 709, 52 L. Ed. at 1108. Determining the
affected landowners were entitled to a hearing, the Court reasoned:
24
In the assessment, apportionment, and collection of
taxes upon property within their jurisdiction, the
Constitution of the United States imposes few restrictions
upon the states. . . . But where the legislature of a state,
instead of fixing the tax itself, commits to some subordinate
body the duty of determining whether, in what amount, and
upon whom it shall be levied, and of making its assessment
and apportionment, due process of law requires that, at
some stage of the proceedings, before the tax becomes
irrevocably fixed, the taxpayer shall have an opportunity to
be heard, of which he must have notice, either personal, by
publication, or by a law fixing the time and place of the
hearing.
Id. at 385–86, 28 S. Ct. at 714, 52 L. Ed. at 1112.
By contrast, in Bi-Metallic Investment Co., the Colorado Tax
Commission and State Board of Equalization adopted a substantial
uniform tax increase. 239 U.S. at 443, 36 S. Ct. at 142, 60 L. Ed. at
374. The Court rejected the challenge without any significant pause,
reasoning:
Where a rule of conduct applies to more than a few
people, it is impracticable that everyone should have a direct
voice in its adoption. The Constitution does not require all
public acts to be done in town meeting or an assembly of the
whole. General statutes within the state power are passed
that affect the person or property of individuals, sometimes
to the point of ruin, without giving them a chance to be
heard. Their rights are protected in the only way that they
can be in a complex society, by their power, immediate or
remote, over those who make the rule.
Id. at 445, 36 S. Ct. at 142, 60 L. Ed. at 375. In doing so, the Court
distinguished Londoner as a case in which “[a] relatively small number of
persons was concerned, who were exceptionally affected, in each case
upon individual ground.” Id. at 446, 36 S. Ct. at 142, 60 L. Ed. at 375.
The Court continues to adhere to this well-established framework. See
generally United States v. Florida E. Coast Ry., 410 U.S. 224, 93 S. Ct.
810, 35 L. Ed. 2d 223 (1973); United States v. Allegheny-Ludlum Steel
Corp., 406 U.S. 742, 92 S. Ct. 1941, 32 L. Ed. 2d 453 (1972).
25
Decisions by federal courts interpreting the Federal Administrative
Procedure Act are persuasive in our interpretation of the IAPA. See Iowa
Citizen/Labor Energy Coal., Inc. v. Iowa State Commerce Comm’n, 335
N.W.2d 178, 180 (Iowa 1983). Nevertheless, we think our cases already
provide a foundation for crafting a distinction similar to the one made by
Ass’n of National Advertisers. See Geringer v. Iowa Dep’t of Human
Servs., 521 N.W.2d 730, 734 (Iowa 1994) (noting Anstey’s rule “must be
tempered so as to harmonize with the dictates of the administrative
process as established by the legislature”); cf. Ass’n of Nat’l Advertisers,
627 F.2d at 1166 (“[W]e must apply a disqualification standard that is
consistent with the structure and purposes of [the FTC Act].”).
After all, the IAPA presupposes a number of significant differences
between rulemakings and contested cases. For example, the IAPA
specifically prohibits ex parte communications in contested cases. Iowa
Code § 17A.17(1)(a). Yet, the rule is silent on ex parte contacts in
informal rulemakings. See id. This suggests the legislature was not as
concerned with ex parte contacts in informal rulemakings. This
conclusion is consistent with the approach taken by federal courts when
determining whether ex parte agency contacts during informal
rulemakings violate the Federal Administrative Procedure Act. See Ass’n
of Nat’l Advertisers, 627 F.2d at 1169 n.39; see also Hercules, Inc. v. EPA,
598 F.2d 91, 124–25 (D.C. Cir. 1978) (holding intra-agency contacts
during an informal rulemaking do not violate the Federal Administrative
Procedure Act); Home Box Office, 567 F.2d at 57 (“[W]e recognize that
informal contacts between agencies and the public are the ‘bread and
butter’ of the process of administration and are completely appropriate
26
so long as they do not frustrate judicial review or raise serious questions
of fairness.”). 4
Chapter 17A similarly provides a disqualification standard for
administrators acting in contested cases but not informal rulemakings.
See Iowa Code § 17A.11(2). The absence of a statutory standard for
disqualification in the rulemaking context is instructive. See Ass’n of
Nat’l Advertisers, 627 F.2d at 1169 n.39 (discussing differences in
processes between rulemaking and adjudication). Section 17A.2(5)
indicates a contested case is any administrative action “in which the
legal rights, duties or privileges of a party are required by Constitution or
statute to be determined by an agency after an opportunity for an
evidentiary hearing.” Iowa Code § 17A.2(5) (emphasis added). The
common thread tying contested cases together in the due process
context—a fair tribunal—is only truly necessary because of the function
of determining adjudicative facts. Hollinrake v. Iowa Law Enforcement
Acad., 452 N.W.2d 598, 602 (Iowa 1990); Bonfield, 63 Iowa L. Rev. at
323–24. Adjudicative facts “concern[] immediate parties,” Kenneth Culp
Davis, An Approach to Problems of Evidence in the Administrative Process,
55 Harv. L. Rev. 364, 402 (1942) [hereinafter Davis], and “the facts of the
particular case,” Bonfield, 63 Iowa L. Rev. at 323. In contrast, when an
agency implements statutory policy and acts legislatively, it considers
“legislative facts,” which do not concern the immediate parties but
society as a whole, Davis, 55 Harv. L. Rev. at 402–04, and for which an
evidentiary hearing is generally unnecessary, see Bonfield, 63 Iowa L.
4While Home Box Office expresses limits on this principle, a subsequent panel
backed away from its proposed limits. See Action for Children’s Television v. FCC, 564
F.2d 458, 477–78 (D.C. Cir. 1977); see also Ass’n of Nat’l Advertisers, 627 F.2d at 1169
n.40 (discussing the relationship between Home Box Office and Action for Children’s
Television).
27
Rev. at 325. Adjudicative facts play no role in an informal rulemaking,
making a hearing unnecessary. See Ass’n of Nat’l Advertisers, 627 F.2d
at 1161–62. Neither the United States or Iowa Constitutions nor any
statute requires the Commission hold a formal evidentiary hearing on the
record before adopting a rule.
In this regard, chapter 17A suggests a virtual absence of due
process in the context of rulemakings. See Greenwood Manor, 641
N.W.2d at 834 (“The importance of the distinction between the categories
[of agency action] lies in the due process afforded to parties involved in
contested case proceedings.”); Polk County v. Iowa State Appeal Bd., 330
N.W.2d 267, 276 (Iowa 1983) (same); Lunde v. Iowa Bd. of Regents, 487
N.W.2d 357, 359 (Iowa Ct. App. 1992) (“ ‘Other agency action’ entitles the
person affected to no more than an informal hearing, without the
procedural due process safeguards inherent in an adversarial
proceeding.”). Federal law is in accord. See Ass’n of Nat’l Advertisers,
627 F.2d at 1165–66 (“When a proceeding is classified as a rulemaking,
due process ordinarily does not demand procedures more rigorous than
those provided by Congress.”); see also Vt. Yankee Nuclear Power Corp. v.
Natural Res. Def. Council, Inc., 435 U.S. 519, 524, 98 S. Ct. 1197, 1202,
55 L. Ed. 2d 460, 467 (1978) (stating the Federal Administrative
Procedure Act’s informal rulemaking procedures contained in 5 U.S.C.
§ 553 establish “the maximum procedural requirements which Congress
was willing to have the courts impose upon agencies in conducting
rulemaking procedures”).
In this case, the Commission acts under a delegation of authority
from the legislature, see Iowa Code § 455A.6(6), which from a theoretical
standpoint the Commission shares with the Governor, see Iowa Const.
art. IV, § 1 (vesting “supreme executive authority” in the Governor); id.
28
art. IV, § 9 (providing that the Governor “shall take care that the laws are
faithfully executed”). As a consequence, section 455A.6 represents a
broad mandate of authority to the Commission, which oversees
overwhelming complex and technical subject matter. This, of course, is
consonant with one obvious, general purpose of administrative agencies
within the modern regulatory state: the subjects of regulation are
justifiably numerous and complex, and the importance of an
administrator’s legal, technical, and scientific expertise cannot be
understated. The commissioners are not mere functionaries of the
legislative will; rather, they are executive officers who exercise sound
discretion within the policy-making guidelines the legislature has
provided them. Accordingly, it is understandable the Governor (and the
Iowa Senate, which unanimously confirmed Heathcote based on her
outstanding credentials) would have viewed the expertise Heathcote
could bring to the antidegradation policy rulemaking as indispensable.
See Ass’n of Nat’l Advertisers, 627 F.2d at 1168 (“Rulemaking involves
the kind of issues ‘where a month of experience will be worth a year of
hearings.’ ” (quoting Am. Airlines, Inc. v. Civil Aeronautics Bd., 359 F.2d
624, 633 (D.C. Cir. 1966))).
Similarly, we cannot forget that the legislature, like Congress, “is
not confined to that method of executing its policy which involves the
least possible delegation of discretion to administrative officers.” Yakus
v. United States, 321 U.S. 414, 425–26, 64 S. Ct. 660, 668, 88 L. Ed.
834, 849 (1944). On the contrary, the discretion can be quite significant
so long as an “intelligible principle” exists to guide its exercise. See
Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 474, 476, 121 S. Ct.
903, 913, 914, 149 L. Ed. 2d 1, 17, 18 (2001) (holding the EPA could
regulate air pollutants under the Clean Air Act solely on the basis of the
29
pollutant’s risk to human health). Finally, the Iowa Constitution also
contains a provision permitting the legislature to nullify an
administrative rule “by the passage of a resolution by a majority of all of
the members of each house of the general assembly.” Iowa Const. art.
III, § 40; see also Jerry L. Anderson & Christopher Poynor, A
Constitutional and Empirical Analysis of Iowa’s Administrative Rules
Review Committee Procedure, 61 Drake L. Rev. 1, 64 (2012) (describing
the legislature’s authority to nullify rules under article III, section 40).
We recognize, however, as the D.C. Circuit did, that some limited
conception of due process should accompany informal rulemaking. We
understand that meaningful judicial review requires some narrow
opportunity to challenge an administrator for bias. We note, of course, a
commissioner acting in a rulemaking “is presumed to be objective and
‘capable of judging a particular controversy fairly on the basis of its own
circumstances.’ ” United Steelworkers, 647 F.2d at 1208 (quoting
Morgan, 313 U.S. at 421, 61 S. Ct. at 1004, 85 L. Ed. at 1435). Yet, the
appropriate inquiry does not center merely on whether a disinterested
observer could conclude an administrator acting in a rulemaking had in
some measure prejudged the merits of the proposed quasi-legislative
action. Placing the Commission and its commissioners—and the
rulemaking in this case—in the proper context, we think a district court
may vacate a rulemaking on the ground of bias upon no less than a
showing by clear and convincing evidence that the administrator has
undertaken the agency action with an “unalterably closed mind,” thereby
making their action “motivated by an improper purpose.” See Ass’n of
Nat’l Advertisers, 627 F.2d at 1170.
“This showing should focus on the agency member’s prejudgment,
if any, rather than a failure to weigh the issues fairly.” C & W Fish Co.,
30
931 F.2d at 1564. The showing should essentially demonstrate the
administrator was so predisposed to one position that they were
“unwilling to consider arguments to the contrary.” PLMRS Narrowband,
182 F.3d at 1002. Therefore, “[a]gencies are required to consider in good
faith, and to objectively evaluate, arguments presented to them; agency
officials, however, need not be subjectively impartial.” Carolina Env’tl
Study Grp. v. United States, 510 F.2d 796, 801 (D.C. Cir. 1975); accord
United Steelworkers, 647 F.2d at 1209. After all, “[a]gency
decisionmakers are appointed precisely to implement statutory
programs, and so inevitably have some policy preconceptions.” Lead
Indus. Ass’n, 647 F.2d at 1179. Thus, even favoring a specific rule over
another is not a basis for disqualification absent evidence that the
administrator’s view “could not be changed by the rulemaking
proceedings that were to follow.” Consumers Union, 801 F.2d at 427.
Indeed, environmental statutes themselves often presume a certain
amount of institutional bias. See Env’tl Def. Fund v. Corps of Eng’rs, 470
F.2d 289, 295 (8th Cir. 1972) (“[W]e do not agree with the view implicit in
the contentions of appellants that [the National Environmental Policy
Act] requires agency officials to be subjectively impartial.”). Far from
being neutral and dispassionate regarding preservation of our
environment, a commissioner is expected to have a position in favor of
expanding environmental protections in all forms:
“A Trade Commissioner should not be neutral on anti-
monopoly policies, and a Securities and Exchange
Commissioner should not be apathetic about the need for
governmental restrictions.
The theoretically ideal administrator is one whose
broad point of view is in general agreement with the policies
he administers.”
31
Lead Indus. Ass’n, 647 F.2d at 1179 (quoting Kenneth Culp Davis,
Administrative Law Text § 12.01, at 247 (3d ed. 1972)). While extreme
singlemindedness in favor of a position that makes an administrator
“totally incapable of giving fair consideration to the issues that are
presented for decision” is likely unacceptable, participating in a
rulemaking with a preexisting policy position is well within the ambit of
permissible conduct, absent clear and convincing evidence to the
contrary. See id. at 1179, 1180; PLMRS Narrowband, 182 F.3d at 1002(distinguishing an administrator’s “unalterable prejudgment” and
“legitimate policy preconceptions”).
Turning to the facts of this case, Farm Bureau emphasizes
Heathcote’s preexisting support for and advocacy of a robust
antidegradation policy. Indeed, at all times during the rulemaking
proceedings, Farm Bureau argues, Heathcote actively advocated for the
antidegradation policy’s adoption. It bolsters this argument by pointing
out a number of similarities between the Iowa Environmental Council’s
proposed rule, which Heathcote helped draft, and the final rule adopted
by the Commission. Farm Bureau also maintains Heathcote’s salary was
a factor—asserting Heathcote’s job duties included “paid advocacy” and
likening her to a lobbyist.
We observe that a similar challenge was rejected in Lead Industries
Association. See 647 F.2d at 1174–80. In that case, an EPA
administrator had previously worked as an attorney with the Natural
Resources Defense Council in a suit seeking to compel the EPA to list
lead as a hazardous air pollutant under the Clean Air Act. Id. at 1172.
See generally Natural Res. Def. Council, Inc. v. Train, 545 F.2d 320 (2d
Cir. 1976). After the EPA was required to list lead as an air pollutant,
the administrator joined the EPA’s staff and participated in the
32
subsequent rulemaking that listed lead as a pollutant and prescribed the
maximum amounts of acceptable lead pollution in the atmosphere. Lead
Indus. Ass’n, 647 F.2d at 1172. The court rejected the Lead Industry
Association’s challenge to the rules based on the administrator’s
participation.
The court observed that no other court had ever—under any
standard—disqualified an administrator from participating in an informal
rulemaking proceeding on the basis of policy bias. Id. at 1179. The
court concluded that “under the prejudgment test for rulemaking in
[Association of National Advertisers] . . . there can be no question but
that [the administrator’s] disqualification from the lead standards
rulemaking is unwarranted.” Id. at 1180.
Here, evidence supports a conclusion that Commissioner
Heathcote had a preconceived position about the value of a muscular
antidegradation policy. As Farm Bureau points out, she was involved in
drafting policy for the Iowa Environmental Council and was instrumental
in drafting the 2007 rulemaking petition. We also agree that the final
rule adopted by the Commission was similar in some key aspects to the
proposed rule by the Iowa Environmental Council. Nevertheless, the
similarities or differences are not evidence of bias. See Consumers Union,
801 F.2d at 427. Likewise, Farm Bureau has failed to proffer clear and
convincing evidence of an unalterably closed mind.
We recognize factual distinctions exist between this case and Lead
Industries Association. First, Heathcote’s participation both in crafting
the policy before being nominated to the Commission and during the
rulemaking proceedings was likely greater than the administrator’s in
Lead Industries Association. See 647 F.2d at 1174. While the D.C.
Circuit commented on the lack of evidence demonstrating any outside
33
influence by the administrator, it proceeded to emphasize that as an
official expected to implement a policy for the executive, he was not
expected to be—and ideally should not be—neutral from a policy
standpoint. See id. at 1177–79. Of course, it does not seem the scope of
influence the challenged administrator had over a rule has ever been
dispositive. The challenged administrator in C & W Fish Co. had a
considerable impact on the rulemaking proceedings, but the D.C. Circuit
held his participation was not improper. See 931 F.2d at 1559, 1564–65.
Second, and perhaps more importantly, Heathcote continued her
employment with the Iowa Environmental Council. Yet, we are not
persuaded that this would be a dispositive distinction. The Commission
contains built-in policy conflicts of interest. The statute provides five of
the nine commissioners must be actively engaged in or employed in—and
thereby presumably represent—certain industries that might conceivably
be subject to regulation by the Commission. See Iowa Code § 455A.6(1).
It would be anomalous to conclude that the other four commissioners
would not similarly be expected to bring with them both policy
experience and preconceived policy positions. To paraphrase Justice
Rehnquist: Susan Heathcote’s years of experience and continued
employment as Water Policy Director for the Iowa Environmental Council
are the source of indispensable qualifications, not the source of
disqualifying bias. See Laird v. Tatum, 409 U.S. 824, 835, 93 S. Ct. 7,
13–14, 34 L. Ed. 2d 50, 59 (1972).
Accordingly, we hold Commissioner Heathcote’s employment with
the Iowa Environmental Council—including her job duties of policy
research and advocacy—do not require us to vacate the antidegradation
policy. The process of rulemaking simply does not give rise to the
standard of disqualification urged by Farm Bureau.
34
V. Disqualification of Commissioner La Seur.
The Commission concedes La Seur was not an eligible elector on
December 15, 2009, when the Commission voted to adopt the
antidegradation policy. 5 Nonetheless, the Commission argues Iowa’s
long-standing de facto officer doctrine validates the Commission’s action
despite the failure of La Seur to qualify for office after she moved. Farm
Bureau responds the de facto officer doctrine is not without limit and
does not apply in this case. In the alternative, Farm Bureau asserts the
de facto officer doctrine was superseded by the 1998 IAPA amendments.
Specifically, Farm Bureau contends the doctrine is incompatible with the
amended form of section 17A.19(10)(e).
A. De Facto Officer Doctrine. The de facto officer doctrine
validates official action taken without legal authority by giving authority
to an official who lacks de jure authority to take official action. See Allen
v. State, 528 N.W.2d 583, 588 (Iowa 1995). In other words, “the acts of a
de facto officer are valid as to the public and third persons.” Waite v.
City of Santa Cruz, 184 U.S. 302, 322, 22 S. Ct. 327, 334, 46 L. Ed. 552,
566 (1902). The de facto officer doctrine has been a key stitch in the
fabric of our common law since our earliest days of statehood. See State
ex rel. Rice v. Cnty. Judge, 7 Iowa (7 Clarke) 186, 195 (1858). It has
“ancient origin,” Herbst v. Held, 194 Iowa 679, 684, 190 N.W. 153, 155
(1922), dating at least to an early English common law case called The
Abbé of Fountaine, Y.B. 9 Hen. 6, f. 32, pl. 3 (1431), see State v. Carroll,
38 Conn. 449, 458 (1871) (tracing the history of the doctrine through
English common law). Over time, the doctrine has achieved “practically
5Because the Commission concedes La Seur’s lack of qualifications, we need not
decide whether she was actually an “elector” at the time the Commission voted to adopt
the antidegradation policy.
35
universal acceptance by the courts.” Herbst, 194 Iowa at 684, 190 N.W.
at 155. We applied this ancient doctrine as recently as 1997. See City of
Windsor Heights v. Spanos, 572 N.W.2d 591, 593–94 (Iowa 1997).
At its core, the doctrine limits the ability of a plaintiff “to challenge
governmental action on the ground that the officers taking that action
are improperly in office.” Andrade v. Lauer, 729 F.2d 1475, 1493–94
(D.C. Cir. 1984). It operates in a way that
distinguishes between “collateral” attacks, in which plaintiffs
attack government action on the ground that the officials
who took the action were improperly in office, and “direct”
attacks, in which plaintiffs attack the qualifications of the
officer, rather than the actions taken by the officer.
Id. at 1496. 6 Under the doctrine, the legality of the officer’s qualifications
to hold office cannot be attacked collaterally as a means of invalidating
6The distinction the de facto officer doctrine draws is itself distinct from the
more commonly used meanings of “direct” and “collateral,” as used, for instance, in the
context of whether a new constitutional rule applies retroactively. See, e.g., State v.
Ragland, 836 N.W.2d 107, 114 (Iowa 2013); Perez v. State, 816 N.W.2d 354, 358 (Iowa
2012). As used in the retroactivity inquiry, the terms distinguish between direct
appeals from an initial conviction or proposed application of a new constitutional rule in
a postconviction relief action, which by definition occurs when the underlying
conviction is “final.” Perez, 816 N.W.2d at 358. In other words, the direct–collateral
distinction ordinarily refers to when and in what proceeding a challenge may be
brought. The same is basically true in the context of a collateral attack on a court’s
exercise of personal jurisdiction over a civil defendant, although the distinction
contemplates different fora. See Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 706, 102 S. Ct. 2099, 2106, 72 L. Ed. 2d 492, 504 (1982) (“A
defendant is always free to ignore the judicial proceedings, risk a default judgment, and
then challenge that judgment on jurisdictional grounds in a collateral proceeding.”).
In contrast, the direct–collateral distinction in the context of the de facto officer
doctrine refers to the object of the attack—the officer’s qualifications to hold office or the
official action that is the result of the officer’s actions. In other words, instead of the
“when” or “where” of a challenge, the direct–collateral distinction focuses in the de facto
officer context on the “what” of the petitioner’s challenge. In Windsor Heights, for
example, we applied the de facto officer doctrine to a challenge to the authority of the
city attorney to prosecute a traffic case on direct review from the defendant’s conviction.
572 N.W.2d at 593–94. As we discuss below, challenges to official qualifications are
permitted through a narrow procedural framework that closely circumscribes the types
of persons who may bring an action. See Iowa R. Civ. P. 1.1302. In this regard, the
direct–collateral distinction also contemplates the “who” of a challenge in addition to the
36
their official actions. Keeney v. Leas, 14 Iowa 464, 469 (1863); see also
Nat’l Ass’n of Greeting Card Publishers v. U.S. Postal Serv., 569 F.2d 570,
579 (D.C. Cir. 1976) (“In short, the remedy for improper composition is
not invalidation of the Commission’s action through indirect challenge,
but rather removal of the allegedly disqualified Commissioner by way of
direct attack.”), vacated on other grounds by 434 U.S. 884, 98 S. Ct. 253,
54 L. Ed. 2d 169 (1977). The doctrine is based on necessity and seeks to
protect the public by sustaining the orderly functions of government
despite some defect in the qualifications of an officer. Windsor Heights,
572 N.W.2d at 593; accord State v. Driscoll, 455 N.W.2d 916, 917 (Iowa
1990); Buck v. Hawley & Hoops, 129 Iowa 406, 409, 105 N.W. 688, 689
(1906). Clearly, the doctrine adopts a practical approach to an
infrequent problem. We have also observed that the de facto officer
doctrine “is consistent with the broader rule that presumes the validity of
official agency actions.” Allen, 528 N.W.2d at 588; see also Teleconnect
Co. v. Iowa State Commerce Comm’n, 404 N.W.2d 158, 162 (Iowa 1987)
(“An agency rule is presumed valid and the burden is on the party
challenging it to demonstrate that a ‘rational agency’ could not conclude
the rule was within the agency’s delegated authority.”). The United
States Supreme Court has explained that the public and third parties
“are not required to investigate” the officer’s title and “may safely act
upon the assumption” that the officer is legally in office. Waite, 184 U.S.
at 323, 22 S. Ct. at 334, 46 L. Ed. at 566. After all, citizens have a right
“to accept the law as it is written” and are not “required to determine its
_____________________
“what.” Consequently, the fact that the IAPA permits direct review of administrative
action, see Iowa Code § 17A.19, is immaterial. The point of our holding today is that
Farm Bureau did not fit its challenge within the narrow parameters that permit a court
to set aside agency action on the ground that the officer did not lawfully hold perfect
title to office.
37
validity.” Lang v. City of Bayonne, 68 A. 90, 92 (N.J. 1907). Just as
citizens do not make the law, they should not bear the responsibility of
determining its validity. See id. “It is manifest that endless confusion
would result if in every proceeding before such officers their title could be
called in question.” Norton v. Shelby County, 118 U.S. 425, 442, 6 S. Ct.
1121, 1125, 30 L. Ed. 178, 186 (1886).
Moreover, “the doctrine gives no weight to the public interest in
enforcing legal norms concerning eligibility and appointment to office and
individuals’ interests in having the government act against them only
through lawfully appointed agents.” Andrade, 729 F.2d at 1497. It
“assumes that an individual suffers no judicially cognizable injury when
he is the subject of adverse governmental action that is legitimate in all
respects save that the official taking the action lacks lawful title to office.”
Kathryn A. Clokey, Note, The De Facto Officer Doctrine: The Case for
Continued Application, 85 Colum. L. Rev. 1121, 1122 (1985) [hereinafter
Clokey]; see also Hussey v. Smith, 99 U.S. (9 Otto) 20, 24, 25 L. Ed. 314,
315 (1878) (“The acts of [de facto] officers are held to be valid because the
public good requires it. The principle wrongs no one.”). But see Ryder v.
United States, 515 U.S. 177, 182–83, 115 S. Ct. 2031, 2035, 132
L. Ed. 2d 136, 143 (1995) (holding an individual who makes a timely
challenge to a judicial officer based on the Appointments Clause is
entitled to a determination of the merits of his claim).
The doctrine “applies where a qualified official, by technical
infirmity, does not validly hold the official position.” Windsor Heights,
572 N.W.2d at 593–94.
In order to support the acts of one on the ground that
he is a de facto officer, they must be done under color of the
office, the duties of which must have been assumed and
discharged by the person claiming to fill the office.
38
Bailey v. Fisher, 38 Iowa 229, 231 (1874). There must be a de jure office
in order for the court to find the officer to be one de facto. Town of
Decorah v. Bullis, 25 Iowa 12, 18 (1868); accord Norton, 118 U.S. at 441,
6 S. Ct. at 1125, 30 L. Ed. at 186 (“[T]here can be no officer, either
de jure or de facto, if there be no office to fill.”). The duties performed by
the de facto officer must also be within the powers of the office. See
Bailey, 38 Iowa at 231. Early cases assumed color of appointment or
election was also a necessary element of the doctrine’s application. See
Herkimer v. Keeler, 109 Iowa 680, 683, 81 N.W. 178, 179 (1899); Carroll,
38 Conn. at 471–72. Yet, we later held an appointment or election
establishing color of title is not indispensable. Buck, 129 Iowa at 409,
105 N.W. at 689.
In the past, we have applied the doctrine to a variety of defects in
official title. Some instances in which we have applied the doctrine have
surely been minor technical infirmities of those who otherwise clearly
had color of title to their office. See State v. Sheets, 291 N.W.2d 35, 37
(Iowa 1980) (applying the doctrine to a county attorney who, following
election to the office, failed to submit a written oath with his bond); Bd.
of Dirs. v. Cnty. Bd. of Educ., 257 Iowa 106, 112, 131 N.W.2d 802, 806
(1964) [hereinafter Grimes Indep. Sch. Dist.] (applying the doctrine to
members of the board of directors of a school district who performed
three years of board functions before being sworn in as required by
statute); State ex rel. Hartnett v. Powell, 101 Iowa 382, 385–86, 70 N.W.
592, 593 (1897) (applying the doctrine to school board directors who took
a required oath from a person not legally authorized to administer the
oath); Wheeler & Wilson Mfg. Co. v. Sterrett, 94 Iowa 158, 159, 62 N.W.
675, 675–76 (1895) (applying the doctrine to a deputy county clerk who
had been appointed by the clerk, but the board of supervisors had not
39
approved the appointment, and the deputy had not given bond required
by statute); State ex rel. Rice, 7 Iowa (7 Clarke) at 195 (applying the
doctrine to ex officio judges of election results who had failed to take the
statutorily required oath).
In each of these cases, the application of the doctrine was obvious.
Yet, we have never downplayed the importance of the requisite
qualification for officials to act. For example, we have not ignored the
importance of officials taking the oath of office. See Grimes Indep. Sch.
Dist., 257 Iowa at 113, 131 N.W.2d at 806; State ex rel. Hartnett, 101
Iowa at 386, 70 N.W. at 593. To the contrary, we have stressed the
necessity and justice of the doctrine’s application on behalf of the public
and third parties. See Grimes Indep. Sch. Dist., 257 Iowa at 113, 131
N.W.2d at 806.
We have also applied the doctrine to more serious errors in election
or appointment. See State v. Cent. States Elec. Co., 238 Iowa 801, 818,
28 N.W.2d 457, 466 (1947) (applying the doctrine to a mayor and city
councilman who accepted positions as trustees contended to be
incompatible with their municipal offices); Cowles v. Indep. Sch. Dist.,
204 Iowa 689, 698–99, 216 N.W. 83, 87–88 (1927) (applying the doctrine
to two school board members appointed to fill the vacancies of two
current school board members who had already resigned, thereby
technically depriving the board of a quorum); Metro. Nat’l Bank v.
Commercial State Bank, 104 Iowa 682, 687, 74 N.W. 26, 28 (1898)
(applying the doctrine to a clerk of court who accepted a position as
receiver for a bank in insolvency proceedings before the court at which
he worked, allegedly disqualifying him from continuing to serve as clerk).
Some of these cases suggest the specter of a lurking conflict of interest
between incompatible positions. See, e.g., Cent. States Elec. Co., 238
40
Iowa at 818, 28 N.W.2d at 466; Metro. Nat’l Bank, 104 Iowa at 687, 74
N.W. at 28. We also applied the doctrine to a peace officer who had failed
to undergo a statutorily required psychological evaluation. Driscoll, 455
N.W.2d at 918.
Furthermore, we have opined that the doctrine could validate the
acts of a quasi-official when the public relied on the official’s consistent
assertions of authority. See Buck, 129 Iowa at 408–09, 105 N.W. at 689.
Additionally, we have even applied the doctrine to factual situations in
which an officer’s lack of lawful title to office arguably implicated larger
concerns, such as due process. See Windsor Heights, 572 N.W.2d at593–94 (applying the doctrine to a city attorney who did not actually
have contractual authority to prosecute a traffic violation occurring in a
neighboring city under chapter 32B, which allows political subdivisions
to contract with each other for the performance of governmental services
for mutual advantage); Allen, 528 N.W.2d at 588 (applying the doctrine to
appeals committee members who were appointed by the director of the
department of personnel in violation of a statute requiring appointment
by the personnel commission); Koss v. City of Cedar Rapids, 271 N.W.2d
730, 737 (Iowa 1978) (applying the doctrine to a district judge whose
term as assistant chief judge, and thus whose authority to appoint a
district associate judge in a condemnation proceeding, had expired).
Similarly, federal courts have applied the doctrine to pure
challenges to the constitutional propriety of an appointment or what has
been called attempts to “enforc[e] legal norms concerning eligibility and
appointment to office.” Andrade, 729 F.2d at 1497. For example, the
United States Supreme Court validated all pre-1976 actions by the
Federal Election Commission, even though its members were appointed
unconstitutionally in violation of the Appointments Clause of Article II,
41
Section 2, Clause 2. Buckley v. Valeo, 424 U.S. 1, 142–43, 96 S. Ct. 612,
693, 46 L. Ed. 2d 659, 758 (1976), superseded by statute on other
grounds as recognized in McConnell v. FEC, 540 U.S. 93, 124 S. Ct. 619,
157 L. Ed. 2d 491 (2003). Perhaps most dramatically, the United States
Supreme Court applied the doctrine to the actions of the insurrectionist
government of civil-war-era Texas. See Texas v. White, 74 U.S. (7 Wall.)
700, 732–33, 19 L. Ed. 227, 240 (1868). These dramatic applications of
the de facto officer doctrine are possible in part because courts are
cognizant of what the consequences of declaring a government actor
without power entails. Cf. Luther v. Borden, 48 U.S. (7 How.) 1, 38–39,
12 L. Ed. 581, 597–98 (1849) (applying the political question doctrine to
the martial law used by the charter government of Rhode Island during
the Dorr Rebellion in part because of the consequences associated with
effectively declaring one proffered government illegal). The Luther Court
reasoned:
[T]he question presented is certainly a very serious one: For,
if this court is authorized to enter upon this inquiry as
proposed by the plaintiff, and it should be decided that the
charter government had no legal existence during the period
of time above mentioned,—if it had been annulled by the
adoption of the opposing government,—then the laws passed
by its legislature during that time were nullities; its taxes
wrongfully collected; its salaries and compensation to its
officers illegally paid; its public accounts improperly settled;
and the judgments and sentences of its courts in civil and
criminal cases null and void, and the officers who carried
their decisions into operation answerable as trespassers, if
not in some cases as criminals.
Id. at 38–39, 12 L. Ed. at 597.
Historical application of the doctrine—both inside and outside of
this state—reveals it is not uniquely reserved for mere minor oversights.
As Judge Learned Hand commented, “It is not wholly clear how far the
conditions upon a[n] [official’s] qualifications may be absent and his acts
42
still be immune from collateral attack.” Johnson v. Manhattan Ry., 61
F.2d 934, 938 (2d Cir. 1932).
However, the doctrine has its limits. For example, we have
recognized it does not apply to a third person who “is chargeable with the
knowledge of the defect in the title of a claimed officer to his office.”
Heyland v. Wayne Indep. Sch. Dist. No. 5, 231 Iowa 1310, 1314, 4 N.W.2d
278, 280 (1942); accord Herkimer, 109 Iowa at 684, 81 N.W. at 179; State
v. Mayor of Jersey City, 44 A. 709, 712 (N.J. 1899). The “appearance of
right is the essence of a de facto officer’s authority, [and] ‘[i]f an official’s
claim to office is known to be unlawful, the notoriety of his title defect
prevents a finding of color of authority.’ ” Sierra Club v. Castle & Cooke
Homes Hawai’i, Inc., 320 P.3d 849, 865 (Haw. 2013) (quoting Clokey, 85
Colum. L. Rev. at 1123). If the defect in the authority of a public official
was known to the public, then the doctrine does not apply. See id. at
868. Nevertheless, in this case, there was no allegation that La Seur’s
lack of elector status was notorious during the time the Commission
considered and approved the antidegradation policy. 7
A very important factor in the application of the de facto officer
doctrine can be drawn from two cases we decided involving peace officers
who had arrested persons for the crime of operating a motor vehicle while
7Of course, La Seur herself might have been put on notice that she lost her
elector status by registering to vote in Montana. See Millwright v. Romer, 322 N.W.2d
30, 33 (Iowa 1982) (“Every citizen is assumed to know the law and is charged with
knowledge of the provisions of statutes.”). However,
[s]ince the primary purpose of the doctrine is to protect the public
and the government agencies which act in reliance on the validity of an
officer’s actions, the fact that the officer himself knew or should have
known that he lacked official authority would not be dispositive of the
issue. More directly pertinent is the appearance to others at the time.
EEOC v. Sears, Roebuck & Co., 650 F.2d 14, 18 (2d Cir. 1981).
43
intoxicated prior to the time they had completed all the required law
enforcement training. In State v. Palmer, we held a peace officer who had
not completed the required statutory course of instruction relating to the
processing of drivers suspected of operating a motor vehicle while
intoxicated was not a de facto officer for purposes of invoking the
implied-consent statute. 554 N.W.2d 859, 864–65 (Iowa 1996); see also
Iowa Code § 321J.1(7) (1995) (defining “peace officer” to include “[a]ny
other law enforcement officer who has satisfactorily completed an
approved course relating to motor vehicle operators under the influence
of alcoholic beverages at the Iowa law enforcement academy or a law
enforcement training program approved by the department of public
safety”). The de facto officer doctrine did not apply to validate the
invocation of the implied-consent procedures because the lack of
qualifications went “to the heart of section 321J.1(7)(e).” Palmer, 554
N.W.2d at 865. In other words, the peace officer was not “ ‘otherwise
trained for and certified to administer the test.’ ” Id. (quoting Driscoll, 455
N.W.2d at 918).
In contrast, in Driscoll, a peace officer had completed the required
implied-consent training, but had not yet completed a psychological
evaluation required for all peace officers prior to employment. 455
N.W.2d at 917–18. We held the de facto officer doctrine applied to
validate the administration of the blood-alcohol test by the officer
because the disqualification at issue did not undermine the ability of the
officer to properly administer the test and protect the public from being
subjected to inaccurate and indiscriminate testing. See id. at 918.
These two cases make it very clear that the de facto officer doctrine
is not applied when the particular disqualification at issue undermines
the integrity and confidence demanded in actions taken or decisions
44
made by government. See Clokey, 85 Colum. L. Rev. at 1135 (“Although
the de facto officer doctrine generally denies individuals an interest in
enforcing title requirements, the doctrine should not apply when a
qualification for specific office aims to protect the individuals subject to
that official’s authority.”). In Palmer, the lack of qualifications threatened
the basic objective of the implied-consent procedures, but the lack of
qualifications in Driscoll did not. When the disqualification does not
undermine the integrity and confidence of the action taken or the
decision made by government, it would be contrary to the public good to
allow the action to be collaterally attacked. Driscoll, 455 N.W.2d at 918.
This distinction is critical to the ultimate resolution in this case.
This approach is also consistent with the approach taken by other
courts and commentators. One commentator has said:
When a court considers a collateral title challenge, it
should discern the policies embodied in the particular
requisite to office and determine whether they are designed
to protect the interests of individuals appearing before such
officers or to protect the administration of government.
See Clokey, 85 Colum. L. Rev. at 1138. Other courts follow this model.
See Fair Political Practices Comm’n v. Californians Against Corruption, 134
Cal. Rptr. 2d 659, 665 (Ct. App. 2003); Daniels v. Indus. Comm’n, 775
N.E.2d 936, 940 (Ill. 2002) (plurality opinion); id. at 946 (McMorrow, J.,
specially concurring); In re Fichner, 677 A.2d 201, 206–07 (N.J. 1996).
This approach also resembles the rule of the United States
Supreme Court decision in Glidden Co. v. Zdanok, which indicated the
de facto officer rule did not apply when the qualification for an officer
embodied “a strong public policy” concerning the proper administration
of government or was “based upon nonfrivolous constitutional grounds.”
370 U.S. 530, 535–36, 82 S. Ct. 1459, 1465, 8 L. Ed. 2d 671, 678–79
45
(1962) (plurality opinion). A similar reason can be found in American
Construction Co. v. Jacksonville, Tampa & Key West Railway, 148 U.S.
372, 387–88, 13 S. Ct. 758, 764–65, 37 L. Ed. 486, 492 (1893), although
the de facto doctrine was not specifically identified. In that case, a
statute prohibited a judge whose order was before the court of appeals
from sitting on the panel reviewing the order. Id. at 387, 13 S. Ct. at
764, 37 L. Ed. at 492; see Circuit Court of Appeals Act of 1891, ch. 517,
§ 3, 26 Stat. 826, 827 (1891) (“[N]o justice or judge, before who a cause
or question may have been tried or heard in a district court . . . shall sit
on the trial or hearing of such cause or question in the circuit court of
appeals.”); see also 28 U.S.C. § 47 (2012) (“No judge shall hear or
determine an appeal from the decision of a case or issue tried by him.”).
Without mentioning the doctrine, the Court reasoned:
If the statute made him incompetent to sit at the hearing,
the decree in which he took part was unlawful, and perhaps
absolutely void, and should certainly be set aside or quashed
by any court having authority to review it by appeal, error, or
certiorari.
Am. Constr. Co., 148 U.S. at 387, 13 S. Ct. at 764, 37 L. Ed. at 492.
Similarly, the Supreme Court has held:
[O]ne who makes a timely challenge to the constitutional
validity of the appointment of an officer who adjudicates his
case is entitled to a decision on the merits of the question
and whatever relief may be appropriate if a violation indeed
occurred.
Ryder, 515 U.S. at 182–83, 115 S. Ct. at 2035, 132 L. Ed. 2d at 143.
The Court explained, “Any other rule would create a disincentive to raise
Appointments Clause challenges with respect to questionable judicial
appointments.” Id. at 183, 115 S. Ct. at 2035, 132 L. Ed. 2d at 143.
In this case, it is difficult to discern with precision the underlying
objective or policy the legislature had in mind in imposing the
46
requirement for commissioners to be electors. The legislature could have
wanted Commission members to be electors in order to help determine
with greater accuracy the required political balance for the Commission,
to help ensure members were engaged Iowa citizens, in order to help
ensure members were connected by residency to Iowa, or other reasons.
Overall, the reasonableness of the requirement is likely derived from the
perspective that the state would not want Commission members with
little or no contact to the state making rules governing Iowans. Thus, it
is reasonable to view the purpose of the requirement as consistent with
this perspective. Nevertheless, there is nothing to suggest the elector
requirement was designed to protect individuals who may be subjected to
the authority of a public official or to protect the orderly administration
of government.
Importantly, La Seur was an elector when appointed to the
Commission. This is important because the policy of the requirement
was clearly satisfied in the inception. While La Seur subsequently lost
her status as an elector when she moved from the state, the move did not
totally undermine the objectives of the requirement that were initially
met. The move did not eviscerate her background and qualifications.
Moreover, the challenged vote cast by La Seur occurred only five months
after she left Iowa, and the vote took place at a time when she still owned
a home in Iowa. It is very difficult to see, in reality, how La Seur was less
fit to consider the rule adopted by the Commission five months after she
left the state when she continued to participate in every Commission
hearing in person or by telephone. The facts of this case fall well short of
those in Palmer, in which the officer was never properly trained to
perform the task at issue in the first place and the purpose of the
47
statutory qualifications were undermined by the failure to qualify.
Instead, the facts fit more with Driscoll.
It is also important to keep in mind that the qualifications to be an
elector do not exist for the benefit of an individual or to protect an
individual from the authority of a public officer. Additionally, the case
does not implicate any constitutional challenge. The Commission serves
all Iowans and the action sought to be declared invalid by Farm Bureau
would affect all Iowans. The very purpose of the de facto officer doctrine
is to ensure the orderly function of government despite defects in the
qualifications of an officer when the defects are minor or technical.
Ryder, 515 U.S. at 180–81, 115 S. Ct. at 2034, 132 L. Ed. 2d at 142. We
think the public policy of this state requires the vote cast by La Seur five
years ago to approve the rules be considered valid today, and we decline
to undo all that has been done because she was not an elector at the
time of the vote. Under all the circumstances, there is a stronger public
policy to maintain the orderly functioning of government than the policy
to undo the process of government based on a defect.
In truth, the public policy behind the de facto officer doctrine is
found throughout government. For example, in the area of criminal
prosecution, we do not reverse a conviction in a criminal case on appeal
merely because a legal error occurred at trial. See State v. Peterson, 663
N.W.2d 417, 430 (Iowa 2003). If we did not take this practical approach
to the operation of government, chaos and uncertainty could prevail. To
err is human, and errors in the process of government that are
nonprejudicial and technical in nature should not require government
action predicated on that error to be undone.
The situation presented in this case is comparable to that of an
elected official who fails to properly take the oath of office. For 150
48
years, we have rejected every claim that government action must be
invalidated when an official failed to properly take the oath of office. See
Sheets, 291 N.W.2d at 37 (dealing with a county attorney who failed to
submit a written oath); Grimes Indep. Sch. Dist., 257 Iowa at 112, 131
N.W.2d at 806 (concerning school board members who did not take the
oath); State ex rel. Hartnett, 101 Iowa at 386, 70 N.W. at 593 (dealing
with school board members who took oath of office from an individual
not authorized to administer it); State ex rel. Rice, 7 Iowa (7 Clarke) at
195 (dealing with ex officio judges of election results who failed to take
the statutorily required oath). The oath of office is a fundamental
requirement, but it does not otherwise undermine action taken by an
official who failed to properly take the oath if the official otherwise
understood the duties of the office and the requirements to perform those
duties. The de facto officer doctrine seeks practicality and is applied
when the defect at issue did not undermine the administration of
government or an individual’s rights. In this case, the defect did neither.
Finally, we have previously applied the de facto officer doctrine to
residency requirements of a kind. See Rich Mfg. Co. v. Petty, 241 Iowa
840, 842, 846, 42 N.W.2d 80, 81, 84 (1950) (applying the doctrine when
one member of a county board of supervisors was not a freeholder and
other members were not adequately representative of certain townships).
Farm Bureau emphasizes the need for “geographical . . . boundaries” to
the de facto officer doctrine. In this regard, Farm Bureau imagines an
elaborate scenario in which La Seur could move to a foreign country and
renounce her American citizenship, and yet the Commission would still
assert the doctrine applies. Of course, nothing in section 455A.6 beyond
the elector requirement suggests actual residency is a qualification of
office. Compare Iowa Code § 455A.6, with id. § 39.27 (“An elected official
49
shall continue to be a resident of the state, district, county, township,
city, or ward by or for which the person was elected, or in which the
duties of the office are to be exercised for the duration of the term of
office.”).
Our result in Rich Manufacturing is in accord with many other
courts considering whether the de facto officer doctrine applies to elector
and residency requirements. See, e.g., Gwin v. State, 808 So. 2d 65, 67
(Ala. 2001); Gates v. City of Tenakee Springs, 954 P.2d 1035, 1038
(Alaska 1998); Juliani v. Darrow, 119 P.2d 565, 568 (Ariz. 1941); Brown
v. Anderson, 198 S.W.2d 188, 191 (Ark. 1946); People ex rel. Hoffman v.
Hecht, 38 P. 941, 944 (Cal. 1895); State ex rel. James v. Deakyne, 58
A.2d 129, 131 (Del. Super. Ct. 1948); Hagood v. Hamrick, 157 S.E.2d
429, 430–31 (Ga. 1967); State v. Duncan, 54 N.E. 1066, 1066–67 (Ind.
1899); Patterson v. Miller, 59 Ky. 493, 496 (1859); State v. White, 101 So.
136, 140 (La. 1924); Baker v. State, 833 A.2d 1070, 1086 (Md. 2003);
Greyhound Corp. v. Mich. Pub. Serv. Comm’n, 104 N.W.2d 395, 401–02
(Mich. 1960); Bird v. State, 122 So. 539, 540 (Miss. 1929); In re Oak St.,
273 S.W. 105, 109 (Mo. 1925); Prescott v. Hayes, 42 N.H. 56, 58–59
(1860); State ex rel. Newman v. Jacobs, 17 Ohio 143, 152–53 (1848);
Franks v. Ponca City, 38 P.2d 912, 913 (Okla. 1934); Graham v. Sch. Dist.
No. 69, 54 P. 185, 187 (Or. 1898); Dove v. Kirkland, 75 S.E. 503, 507
(S.C. 1912); Roche v. Jones, 12 S.E. 965, 966 (Va. 1891); Green Mountain
Sch. Dist. No. 103 v. Durkee, 351 P.2d 525, 528 (Wash. 1960); State
ex rel. Schneider v. Darby, 190 N.W. 994, 998 (Wis. 1922); Crawford v.
City of Sheridan, 392 P.2d 519, 520 (Wyo. 1964). But see Orndorff v.
Potter, 25 S.E.2d 911, 912 (W. Va. 1943) (recognizing a nonresident who
receives the most votes for elected office does not hold the office, but not
discussing the de facto officer doctrine).
50
In the final analysis, the practical nature of the de facto officer
doctrine supports our conclusion to uphold the validity of the
Commission action taken in this case. The only real support for a
contrary conclusion is found in the failure of La Seur to maintain her
required status as an elector. Yet, the de facto officer doctrine exists to
validate official action when an underlying requirement is not satisfied.
Thus, the mere failure to qualify is not enough. Moreover, the
disqualification in this case did not undermine the integrity and
confidence in the process followed by the Commission or in the
Commission decision. When La Seur lost her status as an elector, the
loss did not render her unqualified to do her job.
We understand a different scenario or fact situation can be
proposed that would render the application of the de facto officer
doctrine inappropriate. Such a proposition, however, does not serve to
undermine the appropriate application of the doctrine under the facts of
this case. Thus, we confine our analysis to the facts of this case, as we
are required to do, and apply the law consistently with its application in
the past. The de facto officer doctrine has served a valid role in
maintaining the government process since the earliest years of our
statehood, and it continues to do so today.
B. Amendment to IAPA. We next turn to the argument by Farm
Bureau that the 1998 amendments to the IAPA abrogated the de facto
officer doctrine. The IAPA establishes the exclusive means for a person
or party adversely affected by agency action to seek judicial review. Iowa
Code § 17A.19. Prior to 1998, the Act permitted a court to reverse or
grant other relief from agency action when, among other reasons, it was
“[a]ffected by other error of law.” See Iowa Code § 17A.19(8)(e) (1997). In
1998, the statute was amended to require a court to reverse, modify, or
51
grant other relief when “[t]he product of the decision making undertaken
by persons who were improperly constituted as a decision-making body,
were motivated by an improper purpose, or were subject to
disqualification” if the court determines the infirmity in the agency action
“prejudiced” the “substantial rights” of the person seeking judicial relief.
1998 Iowa Acts ch. 1202, § 24 (codified at Iowa Code § 17A.19(10)(e)
(2011)). The gist of Farm Bureau’s argument is that the de facto officer
doctrine is now incompatible with section 17A.19(10)(e), and has been
abolished by implication.
When the legislature amends a statute, we have said that “any
material change in the language of a statute is presumed to alter the
law.” State v. Ahitow, 544 N.W.2d 270, 273 (Iowa 1996). Moreover, “[t]he
common law may be repealed by implication in a statute that plainly
expresses the legislature’s intent to do so.” Atwood v. Vilsack, 725
N.W.2d 641, 644–45 (Iowa 2006).
Yet, “[c]onstitutional or statutory provisions do not repeal the
common law by implication unless the intention to do so is plain.” Iowa
Civil Liberties Union v. Critelli, 244 N.W.2d 564, 568 (Iowa 1976).
“To the contrary, the legislature will be presumed not to
intend to overturn long-established principles of law, and the
statute will be so construed, unless an intention to do so
plainly appears by express declaration or necessary or
unmistakable implication, and the language employed
admits of no other reasonable construction.”
Ritter v. Dagel, 261 Iowa 870, 879, 156 N.W.2d 318, 323 (1968) (quoting
50 Am. Jur. Statutes § 340, at 333), superseded by rule as stated in In re
Estate of Steinberg, 443 N.W.2d 711, 712 (Iowa 1989); accord Wilson, 165
N.W.2d at 822; cf. State v. Osborn, 368 N.W.2d 68, 69–70 (Iowa 1985)
(“We start with the premise that changes made by revision of a statute
will not be construed as altering the law unless the legislature’s intent to
52
accomplish a change in its meaning is clear and unmistakable.”). After
all, some statutes “are merely declaratory of the common law.” Wilson,
165 N.W.2d at 822; see also City of Hiawatha v. Reg’l Planning Comm’n,
267 N.W.2d 31, 32 (Iowa 1978) (“The statute merely codifies the
common-law rule.”). Additionally, “[w]e are obliged . . . to interpret
statutes in conformity with the common law wherever statutory language
does not directly negate it.” Cookies Food Prods., Inc. v. Lakes Warehouse
Distrib., Inc., 430 N.W.2d 447, 452 (Iowa 1988). Thus, our focus is on
the intent of the legislature.
In this case, there is simply no indication the legislature intended
to abolish the de facto officer doctrine when it amended section
17A.19(10)(e). Section 17A.19(10)(e) does not mention the de facto officer
doctrine, and we recognize the legislature certainly understands the
venerable role of the de facto officer doctrine that has been embedded
throughout our law. For example, in the area of disputes over title to
land, it specifically applied the doctrine by providing:
In all actions and controversies involving the question
of title to a parcel held under a county treasurer’s deed, all
acts of assessors, treasurers, auditors, supervisors, and
other officers de facto shall be of the same validity as acts of
officers de jure.
Iowa Code § 448.14 (emphasis added). Considering the historical
presence of the de facto officer doctrine in our law, it is very unlikely the
legislature would have intended to uproot and abrogate it by simply
identifying the grounds for judicial review in greater specificity.
We also think it is significant that the leading authority on
administrative procedure law did not mention any claim or theory in his
treatise on the Act following the 1998 amendments to indicate the
amendments were intended to abrogate the de facto officer doctrine. In
53
fact, Professor Bonfield’s comment on the amended section 17A.19(10)(e)
was limited to a single sentence: “Paragraphs (d) and (e) are beneficial,
clarifying elaborations of current IAPA § 17A.19(8) paragraphs (d)-(e).”
Arthur E. Bonfield, Proposed New Iowa Administrative Procedure Act (SF
2404) with Comments by Reporter-Draftsman 192 (1996); accord
Arthur E. Bonfield, Amendments to Iowa Administrative Procedure Act
(1998), Chapter 17A, Code of Iowa (House File 667 as Adopted) Report on
Selected Provisions to Iowa State Bar Association and Iowa State
Government 64 (1998) (“Paragraphs (d) and (e) are beneficial, clarifying
elaborations of original IAPA section 17A.19(8)(d)-(e).”). 8 At the same
time, Professor Bonfield provided valuable and detailed comment on
other amendments to section 17A.19. We think the nation’s leading
authority on administrative law, who has been instrumental over the
years in assisting the Iowa legislature in drafting its Act, would have
devoted considerable commentary and analysis to section 17A.19 (10)(e)
if the purpose of the 1998 amendments was to abrogate an important,
centuries-old common law doctrine that is deeply embedded into our law.
In contrast, in Estate of Woodroffe, we reasoned that the drafters of
1984 Model Business Corporation Act (upon which our legislature based
the Iowa Act) expressly stated “they intended to do away with the de facto
corporation concept through provisions mirroring” Iowa Code sections
490.203 and 490.204. 742 N.W.2d 94, 103 (Iowa 2007) (citing 5
Matthew G. Doré, Iowa Practice Series, Business Corporations § 16:9
(2007)). Unlike the statutes in Estate of Woodroffe, the IAPA
8Theprevious version of the statute permitted reversal of an agency decision
when it was “(d) [m]ade upon unlawful procedure” or “(e) [a]ffected by other error of
law.” Iowa Code § 17A.19(8) (1997).
54
amendments were merely intended to clarify the scope of the previous
statute. 9
Finally, our rule that presumes the legislature intended to change
legal rights and construction of statutory terms by amending the
statutory text does not impact this case. We have said in the past, “ ‘The
legislature is presumed to know the state of the law, including case law,
at the time it enacts a statute.’ ” Welch v. Iowa Dep’t of Transp., 801
N.W.2d 590, 600 (Iowa 2011) (quoting State v. Jones, 298 N.W.2d 296,
298 (Iowa 1980)). Similarly,
9We recognize many issues are presented by the amendments to the IAPA, but
these issues do not impact the de facto officer doctrine. We need not determine the
precise meaning of “improperly constituted.” Iowa Code § 17A.19(10)(e). After all, our
inquiry today is only whether a clear legislative intent to overrule a century-and-a-half
of caselaw plainly appears. See Ritter, 261 Iowa at 879, 156 N.W.2d at 323. It does
not. In all likelihood, of course, an improperly constituted board is probably one that
does not have quorum to act. Setting aside action taken without quorum is a
reasonable application of section 17A.19(10)(e). Nor would the de facto officer doctrine
apply in such a case, as the board as a whole is the problem, not the credentials of an
isolated board member.
Interestingly, section 455A.6(5) itself provides that “[a] majority of the members
of the commission is a quorum, and a majority of a quorum may act in any matter
within the jurisdiction of the commission, unless a more restrictive rule is adopted by
the commission.” Iowa Code § 455A.6(5) In this case, all nine members of the
Commission were present at the vote regarding the antidegradation policy. Clearly, a
quorum existed. Similarly, section 455A.6 itself would seemingly only require five votes
in favor of the antidegradation policy. See id. § 455A.6(1). Because we have determined
Heathcote’s vote in favor of the rule was not improper, any inquiry into whether
La Seur’s participation was acceptable is conceivably moot. In this way, Farm Bureau’s
“substantial rights . . . have [not] been prejudiced.” Iowa Code § 17A.19(10); see also
City of Des Moines v. Pub. Emp’t Relations Bd., 275 N.W.2d 753, 759 (Iowa 1979)
(indicating the “substantial rights” language in the IAPA is “analogous to the harmless
error rule”). Of course, as we mentioned above, our decision in Wilson rejected the view
that a conflicted official’s participation is not insulated from scrutiny merely by not
being the deciding vote. See 165 N.W.2d at 819–20. Arguably, Wilson applies here as
well. Surely, however, a plain reading of Wilson reveals its reasoning is limited to
conflicts of interest and has nothing to do with good-faith participation by an official in
spite of a technical inability to hold office. See id. at 819 (“[A] vote case in violation of a
conflict of interest statute, even if immaterial to the outcome, vitiates the proceeding.”
(Emphasis added.)). Notwithstanding, no party has made such an argument, and we do
not consider it further here.
55
“The legislature is presumed to know the prior construction
of terms in the original act, and an amendment substituting
a new term or phrase for one previously construed indicates
that the judicial or executive construction of the former term
or phrase did not correspond with the legislative intent and a
different interpretation should be given the new term or
phrase. Thus, in interpreting an amendatory act there is a
presumption of change in legal rights. This is a rule peculiar
to amendments and other acts purporting to change the
existing statutory law.”
State ex rel. Palmer v. Bd. of Supervisors, 365 N.W.2d 35, 37 (Iowa 1985)
(quoting 1A Sutherland, Statutory Construction § 22.30, at 178 (4th ed.
1973)). Thus, an amendment to statutory text following our construction
of the text raises a presumption that the legislature intended to alter the
rights explained by our cases. See Postell v. Am. Family Mut. Ins. Co.,
823 N.W.2d 35, 49 (Iowa 2012). In the present case, we decided three
de facto officer doctrine cases in the years immediately preceding the
1998 amendments, and the court of appeals decided one. See Windsor
Heights, 572 N.W.2d at 593–94; Palmer, 554 N.W.2d at 865–66; Allen,
528 N.W.2d at 587–88; Glawe v. Ohlendorf, 547 N.W.2d 839, 842 (Iowa
Ct. App. 1996). However, none of these cases purport to interpret the
predecessor of section 17A.19(10)(e). See Windsor Heights, 572 N.W.2d
at 593–94; Palmer, 554 N.W.2d at 865–66; Allen, 528 N.W.2d at 587–88.
Indeed, three of the four involved officers not subject to the Administrative
Procedure Act. See Windsor Heights, 572 N.W.2d at 593–94; Palmer, 554
N.W.2d at 865–66; Glawe, 547 N.W.2d at 842. Only Allen involved the
IAPA, but we did not interpret section 17A.19(8)(e) in that case. See 528
N.W.2d at 587–88. Unlike Postell, nothing about the statutory text or the
timing of the amendments suggests an intention to abolish our de facto
officer doctrine by amending section 17A.19(8)(e).
In this case, the legislature merely identified specific challenges to
agency action in the amendments to section 17A.19(8)(e), some of which
56
may overlap challenges considered under the de facto officer doctrine as
not serious enough to warrant overturning the official action that is
challenged. The statute only directs the court to grant relief from an
agency decision by a person who was disqualified when substantial
rights of the petitioner were prejudiced because of the infirmity. This
standard, as we have identified, is entirely consistent with the standard
governing the de facto officer doctrine. Compare Iowa Code § 17A.19(10)
and City of Des Moines v. Pub. Emp’t Relations Bd., 275 N.W.2d 753, 759
(Iowa 1979), with Windsor Heights, 572 N.W.2d at 593–94. Under
section 17A.19(10)(e), as under the de facto officer doctrine, minor or
technical infirmities that did not prejudice the substantial rights of those
affected by the decision do not permit courts to grant relief. See Iowa
Code § 17A.19(10)(e). Thus, the statute works hand-in-hand with the
amended statute. It is not inconsistent with the continuing purpose of
the doctrine, and it does not undermine the application of the doctrine.
Instead, the doctrine continues to play an important role in the operation
of the government in this state and recognizes that the grounds for relief
from official action does not always mean those grounds are enough to
overturn the action taken. We conclude the legislature did not intend to
abolish the de facto officer doctrine by implication. Because the doctrine
survived the 1998 Administrative Procedure Act amendments and
applies to the facts of this case, we hold the district court correctly
granted summary judgment to the Commission regarding Commissioner
La Seur.
VI. Conclusion.
The district court did not err by granting summary judgment to the
Commission regarding both Heathcote’s and La Seur’s participation. The
district court also did not err by granting summary judgment without
57
affording Farm Bureau an opportunity to obtain the internal emails from
the Iowa Environmental Council regarding the scope of Heathcote’s job
function. Accordingly, we affirm the decision of the district court.
AFFIRMED.
All justices concur except Waterman, Mansfield, and Zager, JJ.,
who concur in part and dissent in part.
58
#12–0827, Iowa Farm Bureau v. Env’tl Prot. Comm’n
WATERMAN, Justice (concurring in part and dissenting in part).
I respectfully concur in part and dissent in part. I agree with the
majority’s conclusion that Commissioner Heathcote’s position with an
environmental organization did not disqualify her from voting on the
antidegradation rules promulgated by the Environmental Protection
Commission. The statute creating the Commission provides that a
majority of the commissioners will be actively engaged in activities
directly affected by environmental regulations. See Iowa Code
§ 455A.6(1)(a)–(c) (2009). 10 Accordingly, viewpoint bias is contemplated
and permitted, and Farm Bureau failed to establish grounds to disqualify
Heathcote. 11
I disagree, however, with the majority’s conclusion as to
Commissioner La Seur. The law requires every commissioner to be an
“elector[] of the state.” Id. § 455A.6(1). It is undisputed La Seur lost that
status when she moved to Montana and registered to vote in Montana.
Yet, she continued to serve on the Commission, traveling back to Iowa to
vote in favor of the antidegradation rules.
10Iowa Code section 455A.6 creates a nine-member commission and requires
that three members shall be “actively engaged in livestock and grain farming,” one
member shall be “actively engaged in the business of finance or commerce,” and one
member shall be “actively engaged in the management of a manufacturing company.”
Iowa Code § 455A.6(1)(a)–(c).
11The record suggests that Commissioner Heathcote may have counseled her
colleagues in the environmental organization at the Iowa Environmental Council on how
to lobby for the antidegradation rules while the proposed rules were pending before the
Commission. Farm Bureau, however, has not advanced this as a ground for
disqualifying her, focusing instead on allegations of bias and conflict of interest. I agree
with the majority that Commissioner Heathcote’s outside employment with Iowa
Environmental Council and her policy positions do not disqualify her from voting on the
antidegradation rules. I leave for another day whether a commissioner can vote on a
rulemaking proceeding when the commissioner also was personally involved in outside
lobbying on that same proceeding.
59
This is not some mere technicality. As the majority emphasizes in
the Heathcote portion of its opinion, the Commission has a “broad
mandate of authority” and engages in “policy rulemaking” for Iowa.
Thus, it is fair and reasonable for the legislature to require that its
members be Iowans. As I discuss below, the same requirement applies
to all elected state and local officials in Iowa, and all judicial officers, as
well as certain other boards and commissions. The Commission
concedes La Seur was not an elector of this state when she voted for the
antidegradation rules.
The majority acknowledges that La Seur ceased to be qualified to
serve once she moved to Montana, but nonetheless upholds her
participation based on the de facto officer doctrine. According to the
majority’s view of the de facto officer doctrine, the only way to stop an
unqualified public official from voting or acting is to bring a quo warranto
proceeding to get her or him removed. Meanwhile, while such a
proceeding works its way through the courts, the official can continue to
vote or act, and affected citizens have no remedy.
I think this is wrong. The legislature corrected this unfairness and
narrowed the de facto officer doctrine when it adopted the 1998
amendments to the Iowa Administrative Procedure Act (IAPA), Iowa Code
ch. 17A. See 1998 Iowa Acts ch. 1202, § 24 (codified at Iowa Code
§ 17A.19(10) (2001)). While the de facto officer doctrine may still
preclude collateral attack on a past agency action, since 1998 a party
may seek direct review of agency action on the ground that one or more
decision-makers should have been disqualified. Specifically, Farm
Bureau can challenge the Commission’s action under Iowa Code section
17A.19(10)(e) (2009) as “[t]he product of decision making undertaken by
persons who were improperly constituted as a decision-making body . . .
60
or were subject to disqualification.” The majority disregards that
amendment to the IAPA. I would hold that because La Seur was
disqualified from voting and the Commission was improperly constituted
with her participating, the antidegradation rules are void.
The majority’s use of the de facto officer doctrine—to uphold a vote
after La Seur moved her residence to Montana—undermines a variety of
residency requirements in the Iowa Code and Constitution.12 Justices of
this court, for example, must be Iowa residents. Iowa Code § 46.14(1);
see also Iowa Const. art. V, § 18 (requiring justices to be members of the
Iowa bar). Does the de facto officer doctrine allow me to move to Florida
and continue voting on decisions of our court, despite objections from
the parties, until I am thrown out of office?
As the majority points out, the Commission was exercising a quasi-
legislative function when engaged in rulemaking. Our legislature
requires EPC commissioners to live in Iowa to ensure environmental
regulations are promulgated by Iowans who understand conditions in
12See, e.g., Iowa Const. art. III, § 4 (stating a state representative “shall have
been an inhabitant of this state one year next preceding his election, and at the time of
his election shall have had an actual residence of sixty days in the county, or district he
may have been chosen to represent”); id. art. III, § 5 (requiring state senators to satisfy
the same residence requirement as state representatives); id. art. IV, § 6 (requiring the
Governor and Lieutenant Governor to be Iowa residents); id. art. V, § 16 (requiring
members of the judicial nominating commissions to be Iowa electors); Iowa Code
§ 217.2(1)(c) (2013) (requiring members of the Council on Human Services to be Iowa
electors); id. § 330.20 (requiring members of local airport commission to be residents “of
the city or county establishing the commission or a resident of a city or county in this
state served by the airport”); id. § 347.9 (requiring trustees of a county public hospital
to be residents of the county); id. § 368.14 (“A local representative [to the City
Development Board] must be a registered voter of the territory or city which the
representative represents . . . .”); id. § 400.17(3) (“[Civil service e]mployees shall not be
required to be a resident of the city in which they are employed, but they shall become a
resident of the state within two years of such appointment or the date employment
begins and shall remain a resident of the state during the remainder of employment.”);
id. § 421.1(1) (“The state board of tax review . . . shall consist of three members who
shall be registered voters of the state . . . .”).
61
our state and who will live under the rules they issue. See Iowa Code
§ 455A.6(1) (“The members shall be electors of the state . . . .”).
“Wherever qualifications are fixed there is a division into classes; that is
to say, there is a class which may serve, and another that may not.”
State ex rel. Jones v. Sargent, 145 Iowa 298, 307, 124 N.W. 339, 343
(1910) (emphasis added). The legislature did not allow exceptions for
carpetbaggers. Common sense tells us that a public official will have a
greater interest in the rules he or she is voting on, will possess a greater
understanding of the issues in question, and will lend more credibility
and confidence to the proceeding if he or she is a resident—or specifically
in this case an elector—of the jurisdiction affected by the actions of that
public official.
The important purposes served by residency requirements have
been noted in many court decisions. See, e.g., Woodward v. City of
Deerfield Beach, 538 F.2d 1081, 1083 (5th Cir. 1976) (noting durational
residency requirements ensure “candidate knowledge of the issues and
problems of the area”); Triano v. Massion, 513 P.2d 935, 938 (Ariz. 1973)
(finding a residency requirement that candidates had to be qualified
electors for six months was supported by the conclusion that candidates
living in the districts they represent are likely to familiarize themselves
with the people and the problems of the district); State v. Macias, 783
P.2d 255, 258 (Ariz. Ct. App. 1989) (noting a state constitutional
provision requiring elected officers to be “qualified elector[s]” of the state
at the time of the election was intended to prevent “political
carpetbagging,” and without such qualifications, “anyone in Arizona or
elsewhere would be free to run for the office of Mayor of Nogales so long
as he or she established residence after the election in time to be a
qualified elector before the term of office began”); Wall v. Mun. Ct., 272
62
Cal. Rptr. 702, 703–04 (Ct. App. 1990) (noting that “the possibility that
citizen confidence in the adjudication of traffic cases increases when they
are handled by local residents” was an important legislative goal that was
sufficient to justify the requirement that traffic commissioners be
residents of the county in which they are appointed); Snyder v. Boulware,
96 P.2d 913, 915 (Mont. 1939) (indicating the purpose of a residency
requirement for county commissioners “was to disqualify those who were
not familiar with the needs of the particular section of the county”);
Gangemi v. Rosengard, 207 A.2d 665, 668 (N.J. 1965) (noting its
previous caselaw supports a residency requirement for city
commissioners on the theory that “residence assures a rudimentary
understanding of local conditions”); Horwitz v. Reichenstein, 103 A.2d
881, 882 (N.J. 1954) (stating the “lack of residence in his ward by a ward
councilman imperil[s] the representation of the ward in the sense
intended by the statute”); Farnsworth v. Jones, 441 S.E.2d 597, 602
(N.C. 1994) (indicating one rationale of a residency requirement is to
“ensure that elected officials sincerely represent the residents of a
particular district”). The majority opinion thwarts the legislature’s goal of
ensuring the Commission regulations are promulgated exclusively by
Iowans who will live under those regulations.
But, the fundamental problem with the majority’s opinion is that it
conflicts with the IAPA. 13 Prior to 1998, the IAPA only allowed courts to
reverse or modify agency action
13The purpose of the IAPA is, in part, “to simplify the process of judicial review of
agency action as well as increase its ease and availability.” Iowa Code § 17A.1(3). The
IAPA “is meant to apply to all rulemaking and contested case proceedings and all suits
for the judicial review of agency action.” Id. § 17A.1(2); accord IES Utils., Inc. v. Iowa
Dep’t of Revenue & Fin., 545 N.W.2d 536, 539 (Iowa 1996) (“The [I]APA generally
63
if substantial rights of the petitioner ha[d] been prejudiced
because the agency action [was]:
a. In violation of constitutional or statutory
provisions;
b. In excess of the statutory authority of the agency;
c. In violation of an agency rule;
d. Made upon unlawful procedure;
e. Affected by other error of law;
f. In a contested case, unsupported by substantial
evidence in the record made before the agency when that
record is viewed as a whole; or
g. Unreasonable, arbitrary or capricious or
characterized by an abuse of discretion or a clearly
unwarranted exercise of discretion.
Iowa Code § 17A.19(8) (1997). Significantly, however, in the 1998
amendment, the following language was added:
The court shall reverse, modify, or grant other appropriate
relief from agency action, equitable or legal and including
declaratory relief, if it determines that substantial rights of
the person seeking judicial relief have been prejudiced
because the agency action is any of the following:
....
e. The product of decision making undertaken by
persons who were improperly constituted as a decision-
making body . . . or were subject to disqualification.
See 1998 Iowa Acts ch. 1202, § 24. La Seur was subject to
disqualification once she moved to Montana. 14 And, the Commission
was improperly constituted when it included a voting member, La Seur,
who had lost her required status as an Iowa elector. This provision
precludes use of the de facto officer doctrine here.
_____________________
allows . . . judicial review from an agency action to district court whether the action is
rulemaking, a contested case, or ‘other agency action.’ ”).
14LaSeur is a graduate of the Yale Law School and a licensed attorney. She
should have known that moving to Montana and registering to vote there would end her
status as an Iowa elector and would disqualify her from continued service on the
Commission.
64
The 1998 amendment to the IAPA renders irrelevant the majority’s
lengthy discussion of the history and development of the common law
de facto officer doctrine in Iowa and the federal courts. The 1998
amendment to the IAPA expressly allows parties to challenge and
empowers courts to review agency action that previously would have
been upheld under the common law de facto officer doctrine. The
majority notes that, historically, we have “applied the [de facto officer]
doctrine to . . . errors in election or appointment.” However, none of the
cases cited by the majority address an improperly constituted decision-
making body or member subject to disqualification after the 1998
amendments to the IAPA. Those cases cited by the majority predated the
1998 amendment and are no longer apposite. See, e.g., State v. Cent.
States Elec. Co., 238 Iowa 801, 818, 28 N.W.2d 457, 466 (1947); Cowles
v. Indep. Sch. Dist., 204 Iowa 689, 698–699, 216 N.W. 83, 87–88 (1927);
Metro. Nat’l Bank v. Commercial State Bank, 104 Iowa 682, 687, 74 N.W.
26, 28 (1898). Similarly, because there is no analogous federal provision
to Iowa Code section 17A.19(10)(e) (2009), the federal caselaw discussed
by the majority is inapposite.
The majority’s interpretation renders part of section 17A.19(10)(e)
without effect, contrary to our canons of construction. See Bearinger v.
Iowa Dep’t of Transp., 844 N.W.2d 104, 110 (Iowa 2014) (“We are to
interpret [legislation] in a manner to avoid . . . rendering any part of the
enactment superfluous.” (internal quotation marks omitted)); State v.
Keutla, 798 N.W.2d 731, 734 (Iowa 2011) (“We seek an interpretation
that does not render portions of [a statute] redundant or irrelevant.”). By
concluding the agency action must be upheld under the de facto officer
doctrine, the majority effectively cuts off any opportunity to seek review
under the “subject to disqualification” language of section 17A.19(10)(e)
65
and leaves it meaningless. What does that term mean if it can be
trumped by the de facto officer doctrine? The majority offers no answer.
Rather, the majority concludes the de facto officer doctrine
survives the 1998 amendment because that term is not mentioned in
section 17A.19(10)(e). Yet, as the majority acknowledges, we presume
amendments to statutes alter the law. See Postell v. Am. Family Mut. Ins.
Co., 823 N.W.2d 35, 49 (Iowa 2012) (“Finally, when the legislature
amends a statute, it raises a presumption that the legislature intended a
change in the law.”). And, as the majority further acknowledges, “[t]he
common law may be repealed by implication in a statute that plainly
expresses the legislature’s intent to do so.” Atwood v. Vilsack, 725
N.W.2d 641, 644–45 (Iowa 2006). That is what we have here. The
majority’s interpretation is not supported by its reliance on the rule of
construction that statutes are presumed not to repeal the common law.
Our legislature has overruled that rule of construction:
The rule of the common law, that statutes in
derogation thereof are to be strictly construed, has no
application to this Code. Its provisions and all proceedings
under it shall be liberally construed with a view to promote
its objects and assist the parties in obtaining justice.
Iowa Code § 4.2.
Farm Bureau’s challenge is the exact situation contemplated by
the statute. There is no question that La Seur, at the time of the action
in question, was subject to disqualification under Iowa Code section
455A.6(1). The parties agree she was no longer an Iowa elector at the
time of the vote in question. Therefore, I would conclude the decision-
making body was improperly constituted with her voting participation.
See Iowa Code § 455A.6(1) (requiring all Commission members to be
electors of the State of Iowa).
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Next, Farm Bureau has shown its “substantial rights” were
prejudiced by La Seur’s act of voting while disqualified. See Iowa Code
§ 17A.19(10) (“The court shall reverse, modify, or grant other appropriate
relief from agency action, equitable or legal and including declaratory
relief, if it determines that substantial rights of the person seeking
judicial relief have been prejudiced . . . .”). We have described the
“substantial rights” language as follows:
We have found this “substantial rights” language analogous
to a harmless error rule. We recognize the commissioner’s
action “should not be tampered with unless the complaining
party has in fact been harmed.” This form of analysis is
appropriate because it would be inefficient for us to provide
relief from invalid agency action when the particular
invalidity has not prejudiced the substantial rights of the
petitioner. Therefore, [the complainant] bears the burden of
demonstrating both the invalidity of the agency’s action and
resulting prejudice.
Hill v. Fleetguard, Inc., 705 N.W.2d 665, 671 (Iowa 2005) (citations
omitted).
Prejudice is easily established here. We have long held that a vote
is invalid when one member of a voting body should have been
disqualified from voting, even when the tainted member’s vote is not
decisive. See, e.g., Wilson v. Iowa City, 165 N.W.2d 813, 819 (Iowa
1969). In Wilson, the five members of the city council of Iowa City voted
on and adopted resolutions related to urban renewal. Id. at 816–17.
However, at the time of the votes, at least one member of the council was
prohibited by a statute from voting on issues related to urban renewal
because of an existing conflict of interest. Id. at 817, 820–21. In
determining whether the vote should be vacated, even when the vote of
the disqualified member would not have changed the outcome, we held
“the better rule holds a vote cast in violation of a conflict of interest
statute, even if immaterial to the outcome, vitiates the proceeding.” Id. at
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819. We noted two rationales supported such a rule: (1) “the
participation of the disqualified member in the discussion may have
influenced the opinion of the other members,” and (2) “such participation
may cast suspicion on the impartiality of the decision.” Id. at 820(internal quotation marks omitted). We stated, “It being impossible to
determine whether the virus of self-interest affected the result, it must
. . . be assumed that it dominated the body’s deliberations, and that the
judgment was its product.” Id. (internal quotation marks omitted). The
same is true here.
La Seur’s participation while disqualified may have influenced the
opinion of the other members, and in the very least, it casts suspicion on
the decision. As in Wilson, it is impossible for us to know the exact
impact of La Seur’s participation. The Iowa cases relied upon by the
majority for the de facto officer doctrine predated both Wilson and the
IAPA.
The majority, by denying Farm Bureau’s challenge raised on direct
review, renders meaningless the requirement that Commissioners be
Iowa residents. I would conclude La Seur’s failure to maintain her status
as an Iowa elector enables the district court to review the agency’s action
under Iowa Code section 17A.19(10)(e), and summary judgment was
improperly granted to the EPC on the issue.
Even if this case was decided under our common law, I would find
La Seur’s vote is not validated by the de facto officer doctrine. Because of
the foregoing rationales for residency and elector requirements, I disagree
with the majority’s contention that La Seur’s failure to maintain her
status as an Iowa elector “is comparable to that of an elected official who
fails to properly take the oath of office.” Taking the oath of office is a
technical procedure to be performed before an otherwise qualified
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candidate takes office. By contrast, the requirement that each member
of the commission be an elector of this state is a condition of holding
office that is fundamental, not technical. This residency requirement
cannot be remedied through a procedural step such as taking or retaking
an oath.
La Seur’s failure to maintain her status as an Iowa elector is
similar to the failure of the officer in State v. Palmer to take the required
training course prior to administering a breath test. See 554 N.W.2d
859, 864–65 (Iowa 1996). In that case, we noted allowing an officer to be
considered a de facto peace officer approved to administer the test
without the proper training would “ignore the legislature’s decision to
define ‘peace officer’ more narrowly for purposes of the implied consent
law,” and “would completely ignore [the statute]’s requirement of
specialized OWI training.” Id. at 865. We further noted the absence of
the training was more than a “technical infirmity” because the training
provided safeguards to protect the citizens of Iowa from improperly
administered tests with consequential criminal and administrative
penalties including loss of driving privileges. See id. at 865–66. As the
majority points out, “the de facto officer doctrine is not applied when the
particular disqualification at issue undermines the integrity and
confidence demanded in actions taken or decisions made by
government.”
Here, allowing La Seur to vote on rules affecting the citizens of
Iowa when she did not meet the basic qualification that she be an Iowa
elector “ignore[s] the legislature’s decision” to require commissioners to
be electors of the state. See id. at 865; cf. Sargent, 145 Iowa at 307, 124
N.W. at 343 (“The fixing of qualifications for office is a legislative and not
a judicial function.”). Further, as noted above, the elector requirement
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protects Iowa’s citizens by ensuring that those individuals responsible for
making rules that will affect the citizens of the state will be interested
and invested in the outcome of the rulemaking procedures, as they
themselves will live under the rules that are enacted. Therefore, the
failure to maintain status as an elector of the state is more than a
technical infirmity. As one of only two qualifications required of every
commission member, it “goes to the heart” of the qualifications set forth
under section 455A.6(1), and therefore, La Seur’s vote should not be
rescued by the de facto officer doctrine. See Palmer, 554 N.W.2d at 865.
For these reasons, I conclude La Seur’s failure to maintain her
status as an Iowa elector, as required by Iowa Code section 455A.6(1),
left her subject to disqualification and rendered the Commission an
improperly constituted decision-making body. See Iowa Code
§ 17A.19(10)(e). That statute trumps the de facto officer doctrine. But,
even under the majority’s common law analysis, La Seur’s participation
should not be excused by the de facto officer doctrine. Her participation
in voting, therefore, invalidates the Commission’s antidegradation rules.
See Wilson, 165 N.W.2d at 820. Accordingly, I would reverse the district
court’s entry of summary judgment against Farm Bureau.
Mansfield and Zager, JJ., join this concurrence in part and dissent
in part.