*1 by that Iowa Light requirement able defendant.” Elec. tion of the improvidently here Co., v. & Power Co. Gen. Elec. 352 N.W.2d easily forsakes our clear and applied prin- (Iowa 1984); also, e.g., see Rossell ciples of factual causation. I in- would Am., Volkswagen 147 Ariz. apply stead our traditional principles of (1985) P.2d “an inter- (explaining factual causation in this case and conclude vening superseding force becomes a cause Huck has advanced evidence sufficient to only when operation its was both unfore- jury allow a to find alleged the brands’ seeable when with and the benefit of ‘hind- negligence awas but-for of the harm cause sight’ may it be described as abnormal or she has suffered here. I would therefore extraordinary” applying and rule in case of entry reverse the district court’s of sum- negligent placement battery); of car Lar- mary judgment on Huck’s claims with re- Mach., Wallace, son Inc. v. 268 Ark. spect to the brands and remand for trial. 600 S.W.2d (explaining “[t]he mere fact that other causes intervene be- APPEL, JJ., WIGGINS and join this tween original negligence act of and in part concurrence in part. dissent the injury recovery sought for which original sufficient relieve the actor if liability, injury is the natural and probable consequence original negli-
gent act or might omission and is such as
reasonably apply- have been foreseen” and
ing rule in spreader); ease of fertilizer (“[T]he
Weyerhaeuser,
tervening supersedes force the defendant’s Industry, ciation of Business negligence is for the jury to decide” and Association, Iowa Cattlemen’s Iowa applying rule in case of wheel explosion). Cooperatives, Institute for Iowa Lime short,
In imaginable Association, universe of sce- stone Producers Iowa narios in which an actor who man- has not Association, Pork Producers Iowa ufactured a product may Poultry or sold neverthe- Association, Turkey less both cause and be damages liable for Federation, and Iowa Corn Growers caused is enormous. The majority’s pro- Association, Appellants, posed “product-identification re- causation quirement” does no work to address the ENVIRONMENTAL PROTECTION majority
vast of these scenarios. See Bo- Department COMMISSION and Iowa lin, (“Taken 2014 WL at *8 out of Resources, Appellees, Natural context, language product identification ... may cases well appear support argument. truth, GSK’s the principles
for which Policy line of cases stands are Environmental Law & Center here.”). inapposite Midwest, majority’s invoca- Iowa Environmental *2 Club, Appel Council, Sierra
lees.
No. 12-0827. of Iowa.
Supreme Court
July *3 Protection Commission
Environmental of Natural Resources. Department Illinois, Klein, Chicago, Bradley D. Moines, Mandelbaum, Des T. Joshua Law & Environmental intervenor-appellee Center, Taylor, L. Ce- Policy Wallace appellee Sierra Club. Rapids, dar CADY, Justice. Chief *4 issues decide two appeal, we In this qualifications persons concerning the commis- on government serve state who First, rulemaking. engage sions who an Iowan must decide whether we disqualified to was on a commission served regula- a rule and adoption of vote on the in activities in her engaged tion when she rule. Sec- support employment rule ond, whether a we must decide was invalid after by a commission adopted par- member who that a it was discovered actually voting in the ticipated be- on the commission qualified to serve as an elector lost her status cause she had in Iowa. by the of the decision
On our review court, the nature of we conclude district a commis- rulemaking disqualify does not adopt rules voting member from sion sup- personally professionally and she disqual- conclude that the We also ported. member does not of a commission ification taken the commis- invalidate the action disqualification particular when the sion integrity not undermine did sup- interest process and when the dis- validating despite the rule ports the decision of We affirm qualification. T. L. Mock and Karl Olson Michael court. the district McNeill, P.L.C., Parker, West Simons & Moines, Vyskocil L. and Julia Des Proceed- Background Facts I. Swanson & Beving, L. McAfee of Eldon ings.
Forrest, P.C., Moines, appellants. Des Protection Commis- The Environmental General, Miller, protect Iowa’s environment Attorney exists to J. sion
Thomas resources. One of Steward, its natural and conserve and David S. David R. Sheridan policies General, duties is to establish primary its Attorneys appellees Assistant governing Vernon, and make rules the environ- College Cornell in Mount and she ment, including the adoption accompanied of rules to him when he left Iowa on a implement pro- federal environmental teaching Seur, sabbatical in Montana. La 455A.6(6)(a) grams. however, continued to own home in (2009). The Commission is composed during Mount Vernon the sabbatical and nine appointed by members the Governor continued serve on the Commission. to senate confirmation. Id. She to Iowa returned for Commission 455A.6(1). The members serve stag- meetings appeared by telephone confer- gered four-year terms. Id. The Commis- ence call. sion meets at throughout numerous times La Seur obtained a Montana drivers’ year, usually monthly, the mem- license after moving registered to vote receive per compensation bers diem in ad- July in Montana in 2009. She was previ- expenses. dition reimbursement for Id. ously registered to vote in Iowa. The sab- (4). 455A.6(3), on Membership the batical permanent turned into a move after Commission is not a full-time position. La Seur’s husband accepted joba offer to usually Members have other careers and work Montana in January 2010. *5 employment, join but hundreds of other Heathcote La and Seur served on the participate Iowans to in the operation of during Commission a critical period of government by serving on various boards time when it adoption considered the and opera- commissions assist in the prevent rules to the degradation of exist government. tion of ing quality water of Iowa’s water re In March Governor Chet Culver sources. The United States Environmen appointed Susan Heathcote to the Com- (EPA) tal Agency Protection promulgated mission. The appointment was confirmed regulation required which states by the senate. employed Heathcote was adopt to policies aimed at preventing deg by the Iowa Environmental Council. The radation of existing quality water and con Iowa Environmental nonprofit Council is a with sistent federal criteria. See 48 Fed. corporation located in Des Moines. Its (Nov. 51, 400-01 1983) (codified Reg. at function protect is to work to Iowa’s natu- (2010)). § 40 C.F.R. 131.6 pro The EPA ral environment. Heathcote posi- held the mulgated the regulation pursuant to the Program tion of Water Director and was Federal Act, Water Pollution Control responsible for researching environmental which is better known the as Clean Water issues, advising the Environmental Council (CWA). 1313(a)(3)(A) § Act See 33 U.S.C. on policy, and representing advisory it on (2006) (requiring states to establish water groups. Heathcote began working for the standards). quality component One Council state’s quality water standards submission In May appoint- Governor Culver antidegradation “[a]n policy consistent ed Carrie La Seur to the Commission. 131.6(d). §with 131.12.” 40 C.F.R. For appointment Her by also confirmed an antidegradation policy to be consistent the Vernon, senate. She lived Mount criteria, must, with federal it at a mini Iowa, at the time of her appointment. La mum, maintain protect existing certain lawyer Seur is a organization and ran an 131.12(a)(1). uses of waterways. Id. called Plains Justice. She served as secre- similarly Iowa law requires the Iowa De
tary of the Commission. partment (IDNR), of Natural Resources July In La Seur through Commission, moved to Mon- “[establish, tana. Her professor husband was a modify, standards, at or repeal quality water groups advocat- among the environmental standards, and effluent stan
pretreatment 455B.173(2). petition. first for the ing dards.” workshops The IDNR held numerous to the federal respond was slow Iowa af- meetings with various stakeholders au- by federal efforts despite regulation, It also solic- petitions were filed. ter the spur Iowa to years over thorities held comments and various public ited July process. implementation begin the hearings. advocated in Heathcote ulti- finally initiated what IDNR stages all petition support first three-year process mately would process. the federal implement rules to adopting process The be- program. antidegradation petitions considering After individu- meeting rulemaking process, between with gan provided input IDNR, Environmental antidegrada- Iowa from proposed als the IDNR drafted a Club, state, Council, Chapter proposed the Sierra well as tion rule for Association, procedures. proposed Fly Fishing Hawkeye implementation eventually be procedures rules and would Policy Center. Environmental Law & approval. to the recom- submitted Commission rulemaking with petitions Two the IDNR differed The rules drafted subse- rules were antidegradation mended peti- rules the two proposed from the support IDNR in quently submitted tions, they closely aligned more but were antide- development appropriate proposals petition. in the first petition first standards. The gradation by a coali- in October 2007 was submitted ap- In December the Commission consisting of quality groups tion of water antidegradation the final rules and proved *6 Council, Iowa the Iowa Environmental by a of six to two. Heath- procedures vote Club, Hawkeye Chapter of the Sierra and approve cote and La Seur voted to In June Fly Fishing Association. rules, and one member of the Commission Farm Bureau and other Iowa Federation abstained. interests filed a agribusiness and industrial approved by The rules and procedures sought petition rulemaking for
second approved by then the Commission were stan- antidegradation a different set submitted to the legislative committee and advocat- antidegradation The rules dards. approval. EPA for review Iowa’s an- and petition generally in more ed the first were procedures and were tidegradation rules than the stringent rules advocated by approved September the EPA in 2010. petition. second In October Iowa Farm Bureau role in played Heathcote an active her and Federation two other associations filed with Environmental employment the Iowa judicial under for review section petition in developing proposed Council rules 17A.19 Iowa Administrative Proce- in the submitted to IDNR October (LAPA).1 sought petition Act The dure by her and the other petition employer Antidegradation Stan- overturn Iowa also active in groups. coalition She was Implementation Procedures. dards the IDNR to initiate the rulemak- pushing allege by taken They Com- action involved ing process, and she remained was Heathcote was mission invalid because followed after the to a conflict process disqualified IDNR vote due interest, disqualified La were filed. Seur was petitions rulemaking at the time she recognized person was as a lead serve on Commission Heathcote collectively opinion Bureau. petitioners will referred to in this as Farm First, satisfy appealed because she did not the re- and raised three voted issues. it to be quirement for Commission members by claims the district court erred granting eligible Iowa electors. summary judgment prior to the close of Second, discovery. it claims the district April the Commission filed a by court erred granting summary judg- summary judgment response motion for ment to the on Farm Commission Bureau’s petition judicial to the review. It claim that Heathcote had a conflict of in- claimed neither Heathcote nor La Seur required terest vacating the antide- disqualified voting from as a matter of gradation policy. Finally, Farm Bureau law. Farm Bureau responded to the mo- contends the district court by grant- erred by tion requesting reply time to so that it ing summary judgment to the Commission pursue discovery could of facts and infor- regarding Farm claim Bureau’s that La- mation relevant to summary judgment registration Seur’s to vote in Montana It proceedings. compel also moved to dis- voided her status eligible as an covery from the Iowa Environmental elector and that she inwas turn no longer Council, which had intervened in the case. qualified to serve on the Commission. Ac- Farm Bureau had previously obtained ex- cordingly, Farm argues Bureau the district tensive documents and materials from the court also erred vacating the anti- Commission, IDNR, and Iowa Environ- degradation policy ground. on this pursuant mental Council to subpoenas and other discovery, methods of but wanted Scope II. of Review. production additional of internal records relating documents to Heathcote’s em- We review a deny decision to dis ployment and other activities related to covery by the district court for abuse of employment, her Ellsworth, as well as all other com- discretion. Kulish v. (Iowa 1997). munications Heathcote relating to the N.W.2d We review process the adoption antidegra- decision the district court grant sum dation request rule. This included emails mary judgment for correction of errors at staff, and other communications between law. Rucker v. Cmty. Humboldt Sch. *7 donors, Dist., attorneys, (Iowa 2007); and others. The Iowa Environmental Council claimed the R.App. discov- Iowa P. 6.907. ery request sought pro- confidential and Discovery Summary III. Prior to
tected information overly and was burden- Judgment. some and largely unnecessary to resolve the issues. substantive deny The decision to grant or a summary continuance of a motion for judg
The district court denied the motion to ment pursue discovery to lies within the compel discovery granted and the motion Kulish, discretion of the trial court. quash by to filed the Iowa Environmental N.W.2d at 889. Generally, party to a Council. Farm Bureau eventually filed a lawsuit should be allowed to complete dis resistance to the summary judgment mo- covery before summary judgment is con tion sought summary judgment and on the Co., sidered. Miller v. Cont’l Ins. involving disqualification issue the of La (Iowa 1986). Seur. The district granted summary court Although a continuance would ordi Commission, judgment for the narily denied sum- appropriate in a case of this mary judgment Bureau, nature, sought by Farm it is clear the salient facts relevant and the petition. dismissed Farm Bureau to the claim that Heathcote was disquali- structure, the governmental the Within our voting emerged by time had
fied from ap- by As is administered a director was filed. an IDNR summary judgment the Governor, subject to senate by the pointed Environmental the Iowa employee § 455A.3. The played Council, unquestionably confirmation. Code Heathcote IDNR of the Gov- urging pleasure the serves the role director an active the antidegradation rules has Generally, forward with ernor. Id. the director move actively partici- IDNR duty and she and procedures power administer and petition filing promoting by legislature. and Id. provided pated however, rulemaking IDNR. She also legislature, with the also for 455A.4. Our employer her for on behalf of Protection advocated the Environmental established by the advo- stringent proposed rules perform certain overview Commission peti- responsible filing for cacy groups to es- including duty responsibilities, in the es- engaged process and was tion and for the effective policy tablish rules by the to address both tablished IDNR Id. IDNR. administration advo- rulemaking. Heathcote petitions 455A.6(6)(a). stringent propose the IDNR cated with with- most commissions Consistent procedures antidegradation rules government, in the executive branch of Commission, served, which she upon composed panel. of a citizen Commission approval. Farm Bureau had obtained approach part larger This venera- discovery ample pursue legal its chal- governmental process partic- of citizen ble in this case. lenge democracy that ipation and voice in our claim of Importantly, the structural together participation pub- with direct conflict of interest Farm Bu- asserted licly strength elected marks the officials reau was not based on hidden conduct vibrancy democracy. of our the Iowa Environmental Council Instead, squarely
IDNR. claims cen- branch component As a of the executive very visible dual open tered on role government, members of the Com- performed Heathcote as an advocate Governor, appointed by mission adjudicator. There were and ultimate am- to senate confirmation. Id. by the ple considerations to balance dis- 455A.6(1). strength integrity and court, trict it was within court’s by the participation citizen is established deny discovery. discretion to composition membership required must be the Commission. All members Disqualification IV. of Commission- *8 of Iowa members must electors and all er Heathcote. knowledge subjects embraced have spe- More governing under laws. Id. requires The resolution case of this first cifically,three members of Commission process a full of the fol- understanding actively in and engaged must be livestock government implement lowed in our to farming, one member must be grain regulations within the executive branch. blush, manufacturing compa- of a manager active At first of an idea individual actively one must be serving ny, as both an and member advocate and decision- commerce. Id. contrary general gov- working maker seems to our finance or 455A.6(l)(a), (6), (c). remaining approach. § ernmental must decide if We any specific deeper initial true four members do not need response rings upon this than to background, into the function or other inquiry rulemaking employment of the knowledge an elector and have government. be 4H subject matter of the Commission. Id. elections is deeply embedded within 455A.6(l)(d). § person An elector is a eli- legislative executive and branches of Const, gible government. to vote in Iowa. See Iowa art.
II, § 1. background This does not or undermine may appoint- oppose
The Governor not make by the claim asserted Farm Bureau ments to the on politi- Commission based in this that case Heathcote should have considerations, cal Instead, other than to meet the been disqualified. it permits it. general requirements for the membership See id. 17A.19. One of the specific appointive boards and in grounds judicial commissions review of ac- satisfy this state to political the balance of tion permits to grant courts relief from an affiliation under Iowa Code section 69.16. action by taken an agency when it was 455A.6(1). Yet, this statuto- product “[t]he making decision under- ry requirement does not infringe upon by taken persons who were improperly prerogative a governor to otherwise ap- constituted as a decision-making body, point individuals to a may commission who were by motivated an improper purpose, share the governor views of the on the or subject were disqualification.” Id. subject 17A.19(10)(e). matter of a commission or individ- Accordingly, Farm Bu- may uals who publicly even advocate those reau uses the IAPA to frame its core claim personal professional views their life. its rights were prejudiced by the All individuals who work in particular Commission action in this case because discipline acquire special knowledge and Heathcote by an improper “motivated develop perspectives purpose” and views about vari- have disqualified should been By ous issues. requiring some members voting. from Id. specifically Commission to work The claim by Farm Bureau that certain areas requiring all mem- Commission rulemaking action was moti- bers to have special knowledge of the sub- vated an improper purpose and was
ject Commission, matter of the legisla- disqualification on the based tive appears scheme contemplate dual role of strong Heathcote as a views, perspectives, individual and knowl- advocate, active both personally and on edge are strengths. desired employer, behalf of her before the IDNR
Moreover, governor, top-elected as the at the same time as she was a member of representative people, always has the Commission that ultimately would ability had the shape the overall per- responsible approve an antidegradation spective and direction of commissions rule developed by the IDNR. More specifi- through the power appointment. Thus, cally, Farm Bureau argued the actions “political considerations” excluded Heathcote violated the conflict-of-interest from the appointment process by statute statute that employment restricts outside normally do not ability extend to the and activities a person who is employed *9 governor appoint to by commission members the state or otherwise serves the state. who have particular (b). views about subjects 68B.2A(l)(a), § See id. This statute expected to come before a commission prohibits that a employee state or other person may be consistent with the serving views of the the engaging state from in outside governor political party or the gov- employment of the activity or that conflicts with Instead, ernor. concept this the person’s reflects the official responsibili- duties and 68B.2A(1). basic nature governing through public § ties. See id. entity employed by he an plan whether a because was a determination
To
in
aid
project
real
in the
area
activity
or
that owned
estate
employment
outside
particular
interest,
by
benefit
the renewal
directly
that would
unacceptable conflict
an
creates
Wilson,
Fur-
affect or create a benefit for the outside However, a member of a board or a employment activity” if the official does commission does not fall any into of these activity). not cease the The violations of statutory categories. A member of a section 68B.2A claimed Farm Bureau “official,” board or commission is an a term necessarily support do not automatic dis- that consists of a specific enumeration of qualification remedy as a for violation. 68B.2(17). positions. § Id. Notably, recognize We also chapter 68B includes many of the individuals who constitute the a specific lobbying by ban on state officials class of “officials” are in identified 68B.5A; § before certain boards. Id. see outright ban lobbying on contained sec- Bd., City City Des Moines v. Dev. 68B.5A(1), tion with the notable exceptions (Iowa 2001) (discuss- N.W.2d 311-12 major of the heads of subunits of depart- ing relationship general between agencies ments or and members of boards statutes). specific The Government Ethics 68B.5A(1). § or commissions. See id. Of Act, however, Lobbying excludes course, the major heads of subunits are members of boards and commissions from barred from a scope lobby- narrower 68B.2, §§ that ban. See Iowa Code .5A. ing lobbying before agency their or an — 68B.5A(1) prohibits lobbying by Section agency they regularly contact—in section official, any “statewide elected the execu- 68B.5A(2). 68B.5A(2). Yet, § See id. tive or administrative agency head of an first two subsections do not mention mem- state government, deputy executive or bers of boards or commissions. See id. agency administrative head of an of state (2). 68B.5A(1), “[sjtate § Furthermore, a government, or member of general employee” is not an “official.” Id. 68B.5A(1). assembly.” Id. Section 68B.2(25). Thus, the narrowest ban on 68B.5A(2) prohibits major head of a “[t]he 68B.5A(3) lobbying contained section subunit department or independent apply does not to members of boards or agency position state whose involves sub- commissions. construing section stantial exercise of administrative discre- Bureau, 68B.2A as identified Farm we tion or the expenditure public funds” as cannot ignore specific the more statute on well employees as certain position “whose point that does prohibit lobbying by involves substantial exercise of administra- members of boards or commissions. tive expenditure discretion or the course, many Of “lobbying general princi- funds” from before the ples which person employed applicable. identified in remain or before Wilson out, ... As Farm person points whom the has Bureau recog- substantial or Wilson regular part many contact as nized person’s conflict-of-interest statutes 68B.5A(2). duties.” Id. merely declaratory Section “are of the common 68B.5A(3) prohibits Indeed, other employees from law.” 165 we did *11 the conflict- to utilize to resolve language literal standard to the “limit ourselves
not presented. Id. issue alone” Wilson. of-interest 403.16] of [section 68B.2A(3) Here, expressly disa- section of by examining the nature begin We law. See Iowa displacing common vows of dis- rulemaking. The standard agency 68B.2A(S) (“Unless spe- § otherwise Code of interest based on a conflict qualification of cifically provided requirements this every necessarily not be the same would to, be in and shall not shall addition section Generally, agency agency action. type or any rights other remedies supersede, of rule- encompasses product action law.”). Additionally, we think provided cases, agency and other making, contested 17A.19(10) incorpo- IAPA section Med. action. Smith Iowa Bd. of law conflict-of-inter- general rates common (Iowa 2007). Exam’rs, 729 N.W.2d Notably, section principles. est case is A contested 17A.19(10)(e) prohibits action that only restricted proceeding including a but not improper purpose,” “motivated an licensing ratemaking, price fixing, action when the administra- and but also taken “subject disqualification.” Id. legal rights, privi- tor was duties or which 17A.19(10)(e). legisla- § that the It seems leges party required Consti- general to incorporate ture intended con- by an statute determined tution or to be judi- enable flict-of-interest standards and an evi- agency opportunity after for standards. development cial of these hearing. dentiary rules, “whether com- Conflict-of-interest 17A.2(5). contrast, § In rule- on statutory, mon law or are based moral making adopting, is “process Wilson, principles public policy.” Id. amending, repealing or a rule.” “They complete at 822. demand 17A.2(12). § A rule is “statement loyalty public to the and seek to avoid in- general applicability implements, difficult, subjecting public to the servant terprets, prescribes policy.” law or Id. insoluble, deciding be- and often task of 17A.2(11). however, not, A “[a] rule is duty advantage.” private tween determination, decision, in a con- or order necessary advantage “It is not Id. that this 17A.2(ll)(d). Id. Section tested case.” financial one,” employer- abe and “[t]he 17A.2 thus creates dichoto- an irreducible always been rec- employee relationship has my and contested rulemaking between one ognized possible source of conflict importance of this dichoto- cases. Id. of interest.” at 823. To be more relationship by the fully mous revealed accurate, specific we have con- viewed case. facts of this employer-employee flict in an relationship action ne agency The diverse forms of rather context “as conflict of duties than different review de cessitate standards of a conflict interest.” Id. at 823. this agency on the action and the con pending regard, inquiry our basic considers how challenge. text of the See Iowa Code impacts loyalty duty the conflict 17A.19(10). the dis We have also said work. See id. perform commission To tinction between action is sure, forms proceeding an urban renewal action, important determining the amount only type one official Wilson process parties.” “due afforded to Green treated its See id. unique. itself facts as Health, Dep’t Manor v. Pub. Therefore, wood 821-23. 68B.2A is rele- section 2002). (Iowa For the vant, particular but we must the^ examine follow, claim of conflict within the role of reasons that we think the distinc asserted identify similarly to the standard rulemaking. proceed We thus tion is relevant
415
disqualifying
an administrator.
employed
One
As here
the term “bias”
adverse,
employed
sug
in Wilson and
means
preconceived mental at-
standard —
by
gested
Farm Bureau —focuses on the
titude or disposition, toward a party to a
for a conflict
potential
appearance
or
controversy,
weight
of such
and nature
(“It
bias. See
gan, Will & v.Co. 267 F.2d sumption objectivity impartiality (2d Cir.1959)). Under Cinderella stan contested cases “will typically be determi- dard, adjudicatory hearings before the native of the bias issue” only and can be “ attended, agency ‘must be only not with “direct, overcome compelling evidence every element of very fairness but with the to the contrary.” Bd. Dirs. v. Just- ” appearance of complete fairness.’ Id. mann, (Iowa 1991). Texaco, (quoting FTC, Inc. v. 336 F.2d (D.C.Cir.1964)). Anstey recognized itself that comments generally suggestive particular policy The Cinderella standard is generally position require do not disqualification in compatible, only to the standard em- the adjudicatory context. See 292 N.W.2d Wilson, ployed in but the standard we at 391. In the context of an administrator applied have in the context of contested who had made statements in a contested cases as well. See Anstey v. Iowa State case surrounding extension of electrical Comm’n, Commerce 292 lines, transmission we said: (Iowa 1980) (“We believe that per- charged sonnel making with decisions of Van Nostrand’s statements at the Ener- great import ... guided by should be gy Policy objections Council that few rationale of [Canon of the good, Code of Judi- objectors that most are motivated cial Conduct as it existed which financial considerations and that most provided that judge ‘[a] should avoid im- objectors merely want the lines to cross propriety and appearance of impro- other peoples’ property, they while activities.’]”).3 priety Yet, in all of his might interpreted be leaning toward Anstey’s contemporary cases reveal bias general view that electrical trans- not an concept. unlimited extended, We stated mission franchises should be another case: are not shown to be directly referable to A component current judge’s of the Code of Judicial impartiality might reasonably ques- requires judge Conduct “disqualify him- 51:2.11(A). tioned.” Iowa Ct. R. any proceeding self herself in in which the added) Box (quoting Home (emphasis objections or to the line particular
this Of- (D.C.Cir. FCC, fice, Inc. v. F.2d it. 1977) curiam)). (per *13 Thus, at 890. Id. a public, on position, even
taking a
Thus,
of a neutral
Cinderella view
“[t]he
dispute
to the
does
issue related
policy
in-
simply an
adjudicator
is
detached
maker.
In or-
a decision
disqualify
not
model for an administrator
apposite role
him, must
it
be shown
disqualify
der
statutory com-
broad
who must translate
of
a
capable
judging
“that he
Id. at
policies.”
into concrete social
mands
controversy fairly on the basis
particular
rulemaking
in a
process
Due
1168-69.
of its own circumstances.”
ad-
judicial
upon
roles
“impose
does not
they
Dist.
perform
Joint Sch.
when
functions
(quoting
Id.
Hortonville
ministrators
Ass’n,
judges.”
Educ.
426 U.S.
from
See
very
1 v. Hortonville
those of
No.
different
2314,
1,
2808,
482, 493,
49
Consequently,
96
L.Ed.2d
the Associa-
id. at 1168.
S.Ct.
(1976));
Morgan,
v.
States
will
9
accord United
tion National Advertisers standard
of
409,
999, 1004,
421,
85
S.Ct.
“only
313 U.S.
61
when
disqualify a commissioner
1429, 1435(1941).
L.Ed.
and convincing
there has been
clear
member has an
showing
that the
rulemaking
is differ-
Notwithstanding,
mind matters critical
unalterably closed
on
case and follows
ent from contested
of
Id.
disposition
proceeding.”
disqualification.
different
standard
at 1170.
Advertisers,
FTC,
v.
Inc.
Ass’n
Nat’l
of
1151,
(D.C.Cir.1979); ac-
F.2d
1165-70
627
uniformly applied
has
The D.C. Circuit
EPA,
v.
F.2d
Lead
Ass’n
647
cord
Indus.
this
to informal
challenges
standard
(D.C.Cir.1980).
1130, 1179
This different
ad-
asserting an
rulemaking proceedings
on the broad distinctions
standard
based
have recused himself or
ministrator should
and a
case
rulemaking
between
contested
Am.,
herself. See Air
Ass’n
Transp.
of
as the
due
proceeding, as well
different
Bd.,
476,
Inc.
Mediation
663 F.3d
v. Nat’l
process concerns.
(D.C.Cir.2011);
487
PLMRS Narrowband
(D.C.Cir.
FCC,
995,
agencies
Corp.
In a
v.
182 F.3d
1002
rulemaking,
expected
Fox,
1999);
efficiently,
to “allocate
more
act
& W Fish Co. v.
931 F.2d
resources
C
1556,
(D.C.Cir.1991);
specific
Un-
greater speed,
give
with
notice
1564
Consumers
FTC,
417,
US.,
scope”
to industries of
ion
Inc. v.
F.2d
427
proposed
801
of
Advertisers,
(D.C.Cir.1986);
F.2d
rule. Ass’n Nat’l
627
United Steelworkers of
Am.,
Marshall,
1166;
see
Nat’l
647
also
Petroleum
AFL-CIO-CLC
Refiners
(D.C.Cir.1980).
FTC,
672,
1189,
Ass’n v.
482 F.2d
690-91 F.2d
1209
Other
(D.C.Cir.1973)
(recognizing
efficiency
adopted
courts have
this rubric
well.
v. Bal-
rulemaking proceedings).
Factory
that accrues
Trawler Ass’n
Alaska
(9th
1456,
Cir.1987);
legitimate
policymaker, dridge,
“The
of a
F.2d
functions
adjudicator,
interchange
a Better
v. Illinois Pol-
unlike
demand
Citizens
Env’t
105,
Bd., 152
important
Ill.App.3d
and discussion about
issues.”
lution
Control
Advertisers,
(1987);
627 F.2d at
Ill.Dec.
504 N.E.2d
Ass’n
Nat’l
Indeed,
Rest., Inc.,
Md.
Fogle
officials
en-
v. H &
effective
“must
G
(1995); Nw. Bell Tel. Co.
gage
policy
in debate and discussion about
654 A.2d
“
‘infor- v.
133-34
Agency],”
Stojferahn,
matters before
[the
(S.D.1990);
Tel. Ass’n
agencies
mal contacts between
and the
Tenn. Cable
Comm’n,
are the
the Tenn. Pub. Serv.
844 S.W.2d
“bread and butter” of
”
administration.’
also Mun.
(Tenn.Ct.App.1992);
at 1169 165
see
process
Id.
N.D.
Corp.
Dep’t
imposes
Servs.
v. State ex rel.
of the United States
few re-
Labs.,
Health &
upon
Consol.
strictions
the states.... But where
(N.D.1992) (citing favorably cases
state,
563-64
legislature
instead of fix-
the Association
National Ad-
applying
itself,
ing the tax
commits to some sub-
rule,
applying
vertisers
but
the stricter
body
duty
ordinate
of determining
facts).
to adjudicative
standard
Cinderella
whether,
amount,
in what
upon
subsequent panel
A
of the D.C. Circuit did
levied,
whom
making
it shall be
and of
question
seem to call into
the Association
apportionment,
its assessment and
due
rule,
National
but did so
Advertisers
that,
process
law requires
at some
*14
suggesting
process
apply
due
should not
at
stage of the proceedings, before the tax
all in
Natural
rulemakings. See
Res.
fixed,
Def.
becomes irrevocably
taxpayer
Council,
EPA,
156,
Inc. v.
859 F.2d
194
opportunity
heard,
shall have an
to be
of
(D.C.Cir.1988).
appear any
It does not
notice,
which he must have
either per-
rejected
court has
the Association
Na-
of
sonal, by publication,
byor
fixing
law
tional
rule in favor of the
Advertisers
Cin-
place
the time and
of the hearing.
derella standard.
385-86,
714,
Id. at
28
at
52
S.Ct.
L.Ed. at
standard is
D.C. Circuit’s
based
1112.
part upon
pair
century-old
of
United
contrast,
By
in Bi-Metallic Investment
Supreme
States
Court cases that distin-
Co., the Colorado Tax Commission and
guished
proceed-
between administrative
State
of Equalization
Board
adopted sub-
ings
legislative
that resemble
action and
stantial uniform tax increase. 239 U.S. at
proceedings
adjudicatory
that resemble
ac-
443,
142,
Advertisers,
and collection of taxes upon property exceptionally who were in each jurisdiction, within their 446, the Constitution upon ground.” case individual Id. at 418 Advertisers, F.2d at Nat’l 627 Ass’n L.Ed. at 375. The See 60
36 S.Ct.
EPA,
39;
Hercules, Inc. v.
well-
n.
see also
to this
to adhere
continues
Court
(hold
(D.C.Cir.1978)
generally
F.2d
124-25
framework.
established
infor
during an
Ry.,
ing intra-agency
contacts
v.
E. Coast
States
Florida
United
rulemaking do
violate the Federal
L.Ed.2d 223 mal
S.Ct.
U.S.
Act); Home Box
Allegheny-Lud-
Procedure
(1973);
Administrative
States
United
(“[W]e
recognize
Power v. Natural Res. Def. 624, (D.C.Cir.1966))). F.2d 633 Inc., 519, 524, 1197, 1202, 435 U.S. 98 S.Ct. (1978) 460, Similarly, 55 L.Ed.2d (stating forget 467 we cannot that the leg islature, Federal Congress, Administrative like Procedure Act’s “is not confined to rulemaking procedures informal of executing policy contained method its which in 5 553 possible U.S.C. establish “the maximum involves the least delegation of procedural requirements Congress which discretion to administrative officers.” Fa was willing States, 414, to have the impose upon 425-26, courts tes v. United 321 U.S.
420 (1944). upon showing no less than a 660, 668, ground of bias L.Ed. 849 88 S.Ct.
64
that the
convincing evidence
be
clear and
the discretion can
contrary,
On
agency
-has
administrator
undertaken
“intelligible
as an
long
significant so
quite
mind,”
“unalterably
an
closed
action with
See
its exercise.
guide
exists to
principle”
“motivated
Inc.,
thereby making their action
Ass’ns,
Trucking
v. Am.
Whitman
Ass’n Nat’l
improper purpose.”
457, 474,
121 S.Ct.
531 U.S.
Advertisers,
F.2d
(2001)
627
at
1, 17,
(holding
L.Ed.2d
pollutants
air
un
regulate
could
the EPA
on
showing
“This
focus
should
on
solely
Act
the basis
the Clean Air
der
if
prejudgment,
any,
member’s
agency
health).
human
Fi
risk to
pollutant’s
failure
weigh
rather than a
issues
also
contains
nally, the Iowa Constitution
Co.,
F.2d
fairly.”
W Fish
C &
nul
legislature
permitting
provision
showing
essentially
1564. The
should
“by
passage
rule
lify an administrative
pre
so
the administrator was
demonstrate
majority
all of
of a resolution
they
disposed
position
to one
were
general
house
members
each
to the
“unwilling
arguments
to consider
Ill,
40;
art.
see
assembly.” Iowa Const.
Narrowband,
PLMRS
contrary.”
Christopher
L.
&
Jerry
Anderson
also
Therefore, “[ajgencies
F.3d at 1002.
are
Poynor,
Empirical
A
Constitutional
faith,
required
and to
good
to consider in
Rules
Analysis
Iowa’s Administrative
evaluate,
objectively
presented
arguments
Procedure,
Drake
Review Committee
however,
them;
officials,
need
(describing
legisla
L.Rev.
subjectively impartial.”
Carolina
authority
nullify
rules under arti
ture’s
States,
Grp. v.
Study
Env’tl
United
III,
40).
cle
section
(D.C.Cir.1975);
F.2d
accord Unit
Steelworkers, 647
at 1209.
ed
F.2d
After
however, as
D.C.
recognize,
We
all,
appoint
“[ajgency decisionmakers
did,
conception
limited
Circuit
that some
implement statutory pro
precisely
ed
accompany
process
due
informal
should
*17
grams,
have some
inevitably
policy
and so
rulemaking.
understand that mean
We
Ass’n,
Lead Indus.
preconceptions.”
requires
nar
ingful judicial review
some
Thus,
F.2d
a
favoring
spe
at 1179.
even
challenge
row
an
opportunity
adminis
cific
over another
not a basis
rule
is
note,
course,
of
trator
for bias. We
a
disqualification absent evidence that
in a
acting
rulemaking
commissioner
“is
view “could not
administrator’s
be
presumed
objective
‘capable
to be
rulemaking proceedings
changed
particular controversy
a
on
judging
fairly
”
Union,
that were to follow.” Consumers
the basis of its own circumstances.’ Unit
“A
should not be
seeking
Trade Commissioner
Defense Council
a suit
to com-
antimonopoly policies,
on
and a pel
neutral
the EPA to list
lead as hazardous air
Exchange
Securities and
Commissioner pollutant under the
Air
Clean
Act. Id. at
apathetic
should not be
about
need
1172. See generally Natural Res. Def.
governmental
restrictions.
Council,
Train,
(2d
Inc. v.
We observe that a challenge Union, similar was of bias. Consumers 801 F.2d rejected in Likewise, Lead Industries Association. at 427. Farm Bureau has failed experi- quist: years Heathcote’s convincing evidence of Susan clear and proffer
to as employment mind. ence and continued Water unalterably closed an for the Environmen- Policy Director distinctions exist factual recognize We indispensable tal are the source of Council and Lead Industries this case between disqualify- qualifications, not source First, partic Heathcote’s Association. Tatum, 409 U.S. ing bias. See Laird crafting policy before ipation both 7, 13-14, L.Ed.2d 93 S.Ct. to the Commission and being nominated (1972). rulemaking proceedings was during the the administrator’s than likely greater Accordingly, we hold Commissioner Association. See 647 Industries Lead employment Heathcote’s with the Iowa the D.C. Circuit com at 1174. While F.2d job including her Environmental Council— lack of evidence demon mented on the advocacy policy research and duties —do ad any influence strating outside antidegrada require not us to vacate the ministrator, emphasize it proceeded process rulemaking The policy. tion implement poli expected an official give not rise to the standard simply does executive, expected he was not cy for the urged by Farm Bureau. disqualification not ideally should be—neutral to be—and policy standpoint. See id. at 1177- from a Disqualification V. of Commissioner course, scope 79. Of it does not seem the La Seur. challenged influence the administrator La Seur was The Commission concedes dispositive. over a rule has ever been had not elector on December eligible challenged in & The administrator C W adopt when the Commission voted impact had Fish Co. a considerable on Nonetheless, antidegradation policy.5 rulemaking proceedings, but D.C. Cir argues long-stand- the Commission Iowa’s his participation improp cuit held not ing officer doctrine validates the de facto 1559, 1564-65. er. See F.2d action the failure of despite Commission’s Second, perhaps importantly, more qualify La for office after she Seur employment Heathcote continued her with Bureau responds moved. Farm de Yet, the Iowa Environmental Council. we facto doctrine officer is not without limit this persuaded are not would be apply case. In the does this dispositive distinction. Commission alternative, Farm asserts the de Bureau built-in conflicts interest. policy contains superseded facto officer doctrine was provides five of the The statute nine com- Specifically, 1998 IAPA amendments. actively in or engaged missioners must be is in- Farm Bureau contends the doctrine thereby presumably employed in—and compatible with the amended form of sec- represent might industries that —certain 17A.19(10)(e). tion conceivably regulation by 455A.6(1). Facto Doctrine. A. De Officer Commission. See *19 The validates offi- It would be de facto officer doctrine anomalous conclude that authority by legal four commissioners would not simi- cial action taken without other authority to an who lacks larly expected bring giving be with them both official de jure authority to take See policy experience preconceived policy official action. (Iowa State, 583, Allen 528 N.W.2d 588 positions. paraphrase To Justice Rehn- v. adopt Commission voted to 5. Because the Commission concedes La time the qualifications, lack we Seur's need not de- antidegradation policy. actually cide whether at she was "elector”
423
1995).
words,
acts of a de
In other
“the
City
ly
as 1997.
Heights
Windsor
v.
Spanos,
(Iowa
591,
are
officer
valid as to the
572 N.W.2d
593-94
facto
1997).
v. City
Waite
Santa
persons.”
third
Cruz,
802, 822,
327, 334,
22
184 U.S.
S.Ct.
core,
At its
ability
doctrine limits the
(1902).
552,
46 L.Ed.
566
The de facto
of a plaintiff “to challenge governmental
officer doctrine has
a key
been
stitch in
action on the ground that the officers tak-
the fabric of our common law since our
ing that action are improperly in office.”
of statehood. See State ex
days
earliest
Lauer,
Andrade v.
729 F.2d
1493-94
(7 Clarke)
Cnty. Judge,
rel Rice v.
1 (D.C.Cir.1984).
It operates in a way that
(1858).
186, 195
It has “ancient origin,”
distinguishes
between “collateral”
at-
Held,
Herbst
679, 684,
194 Iowa
190
tacks,
plaintiffs
which
gov-
attack
(1922),
N.W.
155
dating at least to an
ernment action on the ground that
early English common law case called officials who took the action
im-
were
Fountaine,
Abbé
6, 32,
Y.B.
pi.
9 Hen.
f.
office,
properly in
attacks,
and “direct”
Carroll,
(1431),
see State v.
3
38 Conn.
plaintiffs
which
attack
qualifica-
(tracing
history
of the doc
officer,
tions of the
rather
than the ac-
law).
through
trine
English common
Over
tions taken by the officer.
time, the doctrine has achieved “practically
acceptance
universal
courts.”
Id. doctrine,
Under the
1496.6
the le
Herbst,
means 464, (1863); Leas, Iowa 469 title could be called in 14 officers their Keeney v. such Pub Greeting County, Card v. 118 question.” Shelby Nat’l Ass’n Norton see also 570, Serv., F.2d 425, 1125, 569 442, 1121, v. Postal 30 lishers U.S. 6 S.Ct. L.Ed. U.S. (“In (D.C.Cir.1976) short, remedy (1886). the 178, 186 579 invalida composition is not improper Moreover, weight no gives “the doctrine through action tion Commission’s enforcing legal the interest removal of but rather challenge, indirect appoint- concerning eligibility norms Commissioner allegedly disqualified interests in ment office and individuals’ attack.”), other vacated on way of direct having against act them government 253, 884, 54 98 S.Ct. grounds 434 U.S. lawfully agents.” only through appointed (1977). The 169 doctrine is based L.Ed.2d Andrade, F.2d at 1497. It “assumes 729 pub necessity protect seeks on cog- judicially that an individual suffers no orderly functions of by sustaining lic he injury nizable when is some despite defect government legiti- governmental action that is adverse of an officer. Windsor qualifications respects mate in all save that the official 593; at Heights, 572 accord State N.W.2d lacks lawful title to of- taking action (Iowa Driscoll, 916, N.W.2d 917 v. 455 Note, Clokey, The De Kathryn fice.” A. 1990); & 129 Hawley Hoops, Buck v. Iowa Facto Doctrine: The Case Con- Officer 688, (1906). 406, 409, 105 N.W. 689 Clear 85 Application, tinued Colum. L.Rev. a ly, adopts practical approach the doctrine 1121, Clokey]; 1122 see [hereinafter problem. to an have also infrequent We Otto) (9 Smith, 20, v. 99 Hussey also U.S. the de facto observed that officer doctrine (1878) (“The 24, 314, acts 25 315 L.Ed. “is consistent with the broader rule that officers are held to be valid [de facto] validity of presumes agency official it. public good requires because the The Allen, 588; actions.” 528 N.W.2d at see one.”). Ryder no But principle wrongs see v. also Co. Iowa State Com Teleconnect 182-83, States, v. United 515 U.S. 115 (Iowa Comm’n, 158, 162 merce 2031, 2035, 132 S.Ct. L.Ed.2d 143 1987) (“An rule is agency presumed valid (1995) makes (holding an individual who a party and the is on the challenging burden timely judicial to a officer challenge based it to demonstrate that ‘rational Appointments on the is entitled Clause not could conclude the rule was within the claim). of his determination merits agency’s delegated authority.”). The Unit “applies qualified doctrine where Supreme explained ed States Court has official, by infirmity, does technical not the public parties that and third “are hot validly position.” hold the official Windsor required to investigate” the officer’s title Heights, 572 at 593-94. “may safely upon assumption” act of one support order to the acts on Waite, legally that the officer office. officer, ground he is a de facto U.S. S.Ct. at 46 L.Ed. they done must be under color all, right at 566. After citizens have “to office, of which must the duties have accept the law it is and are written” not discharged been assumed and “required validity.” its Lang to determine fill person claiming the office. City Bayonne, N.J.L. A. (1874). Fisher, (1907). Iowa Bailey Just as citizens do not make law, responsi jure There be a de office in order for they should bear the must bility determining validity. its the court to find the officer to be one de See id. Bullís, “It manifest endless confusion facto. Town Decorah v.
425
(1868);
Norton,
12, 18
accord
118 U.S. at
the doctrine to ex officiojudges of election
1125,
441,
undergo
(1976),
Driscoll,
superseded by
455 N.W.2d at L.Ed.2d
758
evaluation.
cal
grounds
recognized
on other
as
in
statute
918.
FEC,
v.
124
540 U.S.
S.Ct.
McConnell
Furthermore,
opined
we have
that the
(2003).
Perhaps
491
157 L.Ed.2d
quasi-
acts of a
could validate the
doctrine
dramatically,
States
the
Su-
most
United
public
on the offi-
when the
relied
official
applied the doctrine to the
preme Court
authority.
of
consistent assertions
cial’s
government
actions
insurrectionist
Buck,
408-09,
However,
the doctrine has its limits. vehicle while intoxicated was not a de facto
example,
For
we have recognized it does
purposes
officer for
of invoking the im-
apply
person
to a third
who
charge-
“is
plied-consent
859,
statute.
554 N.W.2d
able with the knowledge of the defect in
(Iowa 1996);
864-65
see also Iowa Code
the title of a claimed officer to his office.”
321J.1(7) (1995)
(defining “peace officer”
5,
Heyland Wayne Indep. Sch. Dist. No.
“[a]ny
to include
other law enforcement
1310, 1314,
278,
231 Iowa
4 N.W.2d
280 officer who
satisfactorily completed
has
an
(1942);
Herkimer,
684,
accord
109 Iowa at
approved course relating to motor vehicle
179;
81 N.W. at
Mayor
Jersey
State v.
operators under the influence of alcoholic
(1899).
634,
City,
709,
63 N.J.L.
44 A.
712
beverages at the Iowa law enforcement
“appearance
of right is the essence of academy or a law
training
enforcement
authority,
de facto officer’s
[and] ‘[i]f
program approved by
department
official’s claim to office is known to be public safety”). The de facto officer doc-
unlawful,
notoriety
of his title defect
apply
trine did not
to validate the invoca-
”
prevents a finding of color of authority.’
implied-consent
tion of the
procedures be-
Sierra Club v.
&
Castle Cooke Homes Ha-
cause the lack
qualifications
went “to
waii, Inc.,
184,
849,
132 Hawaii
320 P.3d
321J.l(7)(e).” Palmer,
the heart of section
(2013) (quoting Clokey,
865
85 Colum.
words,
A officers applica- employment. factor in the 455 tion of the de facto officer N.W.2d at doctrine can be 917-18. We held the de facto drawn from two cases we decided officer involving applied doctrine to validate the ad- peace officers who persons had arrested ministration of the blood-alcohol test course, might 7. Of La Seur agencies herself have been ernment which act in reliance on put on notice actions, that she lost her elector status validity of an officer's the fact by registering to vote in Montana. See Mill- that the officer himself knew or should have Romer, 30, (Iowa wright v. 33 authority known that he lacked official 1982) ("Every citizen is assumed to know the dispositive would not be of the issue. More charged knowledge law and is with directly pertinent appearance is the to oth- However, statutes.”). provisions of ers at the time. Sears, Co., 14, primary purpose [s]ince the EEOC v. doc- Roebuck & 650 F.2d (2d 1981). protect public trine gov- is to 18 Cir. 659, (Ct.App. Cal.Rptr.2d disqualification because
the officer
Comm’n,
2003);
ability
Daniels
Indus.
not undermine
did
issue
N.E.2d
the test and Ill.2d
Ill.Dec.
administer
properly
officer
id.,
being
266 Ill.
subjected
opinion);
from
(plurality
protect
(McMorrow,
testing.
and indiscriminate
Dec.
This with the is also consistent ... hearing shall sit on the trial or such approach taken other courts and com- cause circuit court question or mentators. One commentator has said: appeals.”); see also 28 U.S.C. considers a When court collateral (“No judge shall hear or determine an challenge, poli- title it should discern the appeal the decision a case or issue from particular requisite cies in the embodied him.”). mentioning tried Without they to office determine whether doctrine, the Court reasoned: designed protect the interests of indi- viduals before such or appearing officers incompetent If made him the statute protect govern- the administration of hearing, sit in which he at the decree ment. unlawful, part perhaps took ab- void, Clokey, certainly L.Rev. be solutely See at 1138. should set Colum. quashed by any having Other courts this model. Fair or court follow aside error, authority by appeal, to review Political Practices it Comm’n Californi Against Cal.App.4th Corruption, ans certiorari. Co., ception.
Am.
at
subsequently
Constr.
U.S.
S.Ct.
While La Seur
lost
764, L.Ed. at 492.
her status as an elector when she moved
state,
from the
the move
totally
did not
Similarly,
Supreme
Court has held:
objectives
undermine the
require-
timely challenge
who makes a
[0]ne
ment that
initially
were
met. The move
validity of
appoint-
the constitutional
did not eviscerate her background and
adjudicates
ment of
officer who
his
Moreover,
qualifications.
challenged
case is entitled to a decision on the
vote cast
La
only
Seur occurred
five
question
merits of the
whatever re-
Iowa,
months after she left
and the vote
may
appropriate
lief
if a violation
took place at a time
she still
when
owned a
indeed occurred.
very
see,
home in Iowa. It is
difficult to
182-83,
Ryder,
tain the
government
tion
or an individual’s
process
undo the
policy
than
case,
rights. In this
defect did neither.
a defect.
based on
government
truth,
Finally,
previously applied
we have
public policy behind the de
residency re-
throughout
found
de facto officer doctrine to
officer doctrine is
facto
Mfg.
kind.
quirements
in
See Rich
Co.
example,
For
the area
government.
840, 842,
not
241 Iowa
Petty,
we do
reverse a
prosecution,
criminal
80, 81,
(applying
the doctrine
appeal
in a criminal case on
conviction
county
error occurred at when
member of a
board of
merely
legal
because a
one
Peterson,
supervisors was not a freeholder and other
trial. See State
(Iowa 2003).
representa-
not
adequately
If we did
take members were
not
Farm
operation
townships).
to the
tive of certain
Bureau
practical approach
this
emphasizes
“geographical
the need
...
uncertainty
and
could
government, chaos
human,
To err
in
to the de facto officer doc-
errors
boundaries”
prevail.
regard,
Bureau
process
government
imag-
are non-
trine.
In this
Farm
ines an elaborate scenario in which La
prejudicial
technical
nature should
predicated
foreign country
action
Seur
move to a
require government
could
citizenship,
renounce her American
on that error
be undone.
yet
assert
the Commission would still
situation
this case is
presented
course,
applies.
nothing
doctrine
Of
*26
to
comparable
that of
elected official
beyond
require-
455A.6
the elector
section
to
take the
properly
who fails
oath
residency
qualifi-
actual
is a
suggests
ment
have
years,
rejected
For 150
we
office.
Compare
cation
office.
Code
every
government
claim that
action must
(“An
455A.6,
with id.
39.27
elected
an official
to
be invalidated when
failed
official shall continue to be a resident of
take the oath
office. See
properly
state, district, county, township,
city,
Sheets,
(dealing
431 1066, (1899); Miller, 1066-67 Patterson v. We understand a different scenario or 493, White, (1859); Ky. 59 496 State v. 156 fact proposed situation can be that would 770, 136, (1924); 140 La. 101 So. Baker v. the application render of the de facto offi- State, 567, 1070, 377 833 Md. A.2d 1086 inappropriate. cer doctrine propo- Such a (2003); Greyhound Corp. v. Mich. Pub. sition, however, does not serve to under- Comm’n, 578, Serv. 360 Mich. appropriate mine the application of the (1960); 395, State, v. 401-02 Bird 154 doctrine under the facts of this case. 493, 539, (1929); 122 So. 540 Miss. In re Thus, we analysis confine our to the facts St., 494, 105, Oak 308 Mo. 273 S.W. 109 case, do, of this required as we are (1925); 56, Hayes, Prescott v. 42 N.H. 58- apply the law consistently with its applica- (1860); Jacobs, 59 State ex rel. Newman v. tion in past. The de facto officer 143, (1848); 17 Ohio 152-53 v. Franks doctrine has served a valid role main- 134, 912, 170 City, Ponca Okla. 38 P.2d 913 taining government process since the (1934); 69, v. Graham Sch. Dist. No. 33 years statehood, earliest of our and it con- 263, 185, (1898); Or. 54 P. 187 Dove v. today. tinues to do so Kirkland, 313, 503, 92 S.C. 75 S.E. (1912); Jones, 484, Roche v. 87 Va. 12 S.E.
965, (1891); B. Amendment to IAPA. We Green Mountain Sch. Durkee, Dist. No. v. next turn argument by 56 Wash.2d to the Farm Bu- (1960); 351 P.2d State ex rel. reau that the 1998 amendments to the Darby, Schneider v. 179 Wis. abrogated IAPA the de facto officer doc- (1922); N.W. City Crawford trine. The IAPA establishes the exclusive Sheridan, (Wyo.1964). 392 P.2d person means for a or party adversely Potter, But see 125 W.Va. Omdorff by agency affected action judicial to seek 25 S.E.2d (recognizing a review. 17A.19. Prior nonresident who receives the most votes 1998, the Act permitted a court to reverse *27 office, for elected office does not hold the grant or other relief from action but not discussing the de facto officer doc- when, reasons, among other it was “[a]f- trine). by fected other error of law.” See Iowa In analysis, the final practical the nature 17A.19(8)(e) (1997). Code the the de facto officer doctrine supports statute was to require amended a court to our uphold validity conclusion to the of the reverse, modify, grant or other relief when Commission action taken in this case. The product making “[t]he of the decision un- only support contrary real for a conclusion by persons dertaken who improperly were is found in the failure of La Seur to main- constituted as a decision-making body, tain her required status as an elector. were by improper motivated an purpose, Yet, the de facto officer doctrine exists to or disqualification” were to if the validate official action when an underlying court infirmity determines the agen- the requirement Thus, is not satisfied. the cy action “prejudiced” the “substantial mere failure to qualify enough. is not rights” person seeking judicial re- Moreover, disqualification the in this case (codi- 1202, § lief. 1998 Iowa ch. Acts not did undermine the integrity and confi- 19(10)(e) (2011)). fied at Iowa Code 17A. dence in process by followed the Com- gist argument Farm Bureau’s is mission or in the Commission decision. that the de facto officer doctrine is now When La Seur lost her status elector, 17A.19(10)(e), incompatible the loss not with section unqual- did render her ified to do job. her by and has been implication. abolished it.” Food directly negate not Cookies legislature amends a does
When Distrib., Prods., Inc. v. Lakes Warehouse statute, “any material said that we have 1988). (Iowa Inc., 430 N.W.2d statute language of a in the change Thus, Ahi- our focus is on intent law.” State to alter presumed 1996). (Iowa legislature. tow, 544 N.W.2d Moreover, may be re common law “[t]he case, no indica- simply In this there by a statute implication pealed legislature to abolish tion the intended legislature’s intent to expresses the plainly amended facto officer doctrine when it de Vilsack, 725 N.W.2d so.” Atwood do (10) (e). 17A.19 section 17A.19 Section 2006). (Iowa 641, 644-45 (10) (e) facto not mention the de does doctrine, leg- we recognize officer Yet, or statu “[c]onstitutional the venera- certainly understands islature repeal the common tory provisions do facto officer doctrine ble role the de intention unless the implication law our law. throughout has been embedded plain.” Iowa Civil Liberties Un do so is over example, disputes in the area of For (Iowa Critelli, 244 N.W.2d ion v. land, the doc- specifically applied it title 1976). by providing: trine will contrary, legislature “To involv- In all and controversies actions long- intend presumed not to to overturn question parcel of title held ing law, and principles of established deed, county all acts under treasurer’s construed, unless an statute be so will treasurers, auditors, assessors, super- plainly appears intention do so visors, shall other de officers facto necessary or express declaration un- validity as be of the acts of officers same language implication, and the mistakable jure. de employed of no other reasonable admits added). § 448.14 (emphasis construction.” Considering presence the historical 870, 879, Dagel, Ritter v. 261 Iowa law, facto in our it is de officer doctrine (quoting 50 Am. have very unlikely legislature would 333), at superseded by Jur. Statutes it sim- uproot abrogate intended Steinberg, In re rule as stated in Estate of judicial re- ply identifying grounds (Iowa 1989); 443 N.W.2d accord greater specificity. view Wilson, 822; State v. cf. *28 (Iowa Osborn, 1985) significant N.W.2d also it is that the 69-70 We think (“We changes premise leading authority proce- start with the on administrative made a will not law claim or any revision of statute be dure did not mention altering theory following construed the law unless treatise on Act as his change legislature’s accomplish intent to the 1998 amendments to indicate unmistakable.”). abrogate in its clear and meaning is amendments were intended all, fact, merely After statutes de- the de facto In Pro- some “are officer doctrine. Wilson, claratory B amended of the common law.” fessor onfield’s comment on the 822; 17A.19(10)(e) City see Hia- section was limited to sin- N.W.2d also (d) (e) Comm’n, “Paragraphs are Reg’l Planning gle watha sentence: (Iowa 1978) (“The beneficial, of cur- clarifying statute elaborations rule.”). 17A.19(8) (d)- § IAPA merely paragraphs the common-law rent codifies (e).” onfield, New Proposed are ... to in- Arthur E. B Additionally, obliged “[w]e (SF terpret conformity with the Iowa Administrative Procedure Act statutes 2WI) statutory language Reporter-Drafts- common law wherever with Comments (1996); man 192 accord Arthur E. Bon- old common law deeply doctrine that is field, Amendments to Iowa Administra- embedded into our law. (1998), Chapter Procedure Act tive 17A contrast, in Estate Woodroffe, we (House Adopted) File 667 as Code of reasoned that the drafters of the 1984 Report on Selected Provisions to Iowa Corporation Model Business (upon Act State Bar Association and Iowa State Act) legislature which our based the Iowa (d) (“Paragraphs Government expressly “they stated away intended to do (e) beneficial, clarifying elabora- with the de facto corporation concept 17A.19(8)(d)- tions IAPA original section through provisions mirroring” Iowa Code (e).”).8 time, At the same Professor Bon- sections 490.203 and 490.204. 742 N.W.2d provided field valuable and detailed com- (Iowa 2007) 94, 103 (citing 5 Matthew G. ment on other amendments to section Doré, Series, Iowa Practice Business Cor- 17A.19. We think the nation’s leading au- (2007)). porations § 16:9 Unlike the stat- law, thority on administrative who has utes in Woodroffe, Estate the IAPA years been instrumental over the in assist- were merely amendments intended to clar- ing legislature Act, the Iowa in drafting its ify scope previous statute.9
would have devoted considerable commen-
(10) (e)
Finally, our
tary
analysis
rule that presumes
section 17A.19
if
purpose
legislature
of the 1998
amendments
intended to change legal
abrogate
was to
an important,
rights
centuries-
and construction of statutory terms
previous
permit-
8. The
present
version of the statute
regarding
antidegrada-
at the vote
ted reversal of an
decision when it
policy. Clearly, quorum
tion
existed. Simi-
"(d)
upon
procedure”
was
unlawful
larly,
[m]ade
seemingly
section 455A.6 itself would
"(e)
by other
[a]ffected
error of law.” Iowa
only require five votes in favor of the antide-
19(8) (1997).
§
Code 17A.
455A.6(1).
gradation policy.
See id.
Be-
cause we have determined Heathcote’s vote in
recognize many
presented by
9. We
issues are
improper, any inqui-
favor of the rule was not
IAPA,
the amendments to the
but these issues
ry
participation
into whether La Seur’s
impact
do not
the de facto officer doctrine.
acceptable
conceivably
way,
moot.
In this
precise meaning
We need not determine the
Farm
rights
Bureau’s "substantial
... have
"improperly
constituted."
Iowa Code
prejudiced.”
[not]
been
all,
17A.19(10)(e).
inquiry today
After
our
19(10);
City
17A.
see also
Des
Moines
only
legislative
whether a clear
intent to
Bd.,
Emp't
Pub.
Relations
century-and-a-half
overrule a
of caselaw
(Iowa 1979) (indicating
the "substantial
Ritter,
plainly appears. See
261 Iowa at
rights” language in
"analogous
the IAPAis
impact
“
presumed
Heights,
is
to
legislature
‘The
Act. See
572
Procedure
Windsor
past,
law, including
Palmer,
case
593-94;
of the
the state
554 N.W.2d at
know
at
N.W.2d
a statute.’”
law,
Glawe,
time it enacts
865-66;
at
the
Only
at 842.
547 N.W.2d
Transp., 801
Dep’t
v. Iowa
IAPA,
Welch
we did
involved the
but
not
Allen
2011)
(Iowa
(quoting State
600
17A.19(8)(e)
N.W.2d
in that case.
interpret section
1980)).
(Iowa
Jones,
298
298 N.W.2d
v.
Postell,
“The
in
suggests
the
an
timing of
amendments
in
construction of terms
the
prior
the
officer
to abolish our de facto
doc
tention
act,
substi-
and an amendment
original
17A.19(8)(e).
by amending
trine
section
phrase
a new term or
one
tuting
case,
merely
legislature
In this
the
iden-
construed indicates
the
previously
agency
to
action
specific challenges
tified
or executive
the
judicial
construction
17A.19(8)(e),
in the amendments to section
not corre-
phrase
term or
did
former
overlap challenges con-
may
some of which
intent and a
legislative
with the
spond
under
de facto officer doctrine
sidered
given
interpretation should be
different
to
overturn-
enough
as not serious
warrant
Thus, in inter-
phrase.
new term or
ing
challenged.
the official action that is
amendatory
an
act there is a
preting
only
grant
The statute
the court
directs
legal rights.
change
in
presumption
by person
an
relief from
decision
peculiar
is a rule
to amendments
This
disqualified
who was
when substantial
change
other acts
purporting
rights
petitioner
prejudiced
of the
were
existing statutory law.”
standard,
infirmity.
of the
This
because
Supervisors,
Palmer
State ex rel.
v. Bd. of
identified,
entirely
we have
consistent
(Iowa 1985)
(quoting
1A
865 N.W.2d
governing
with the
the de facto
standard
Sutherland,
Statutory
Construction
Compare
officer doctrine.
Code
(4th ed.1973)).
22.30,
Thus,
at 178
an
17A.19(10)
Des
City
Moines
statutory
following
text
our
amendment
Bd.,
Emp’t
Pub.
Relations
N.W.2d
presump
of the text raises a
construction
(Iowa
1979),
with Windsor
legislature
that the
intended to alter
tion
Heights,
ed and and Farm Bureau failed grounds to establish disqualify Heath- VI. Conclusion. cote.11 by grant- district court did not err however, I disagree, majority’s with the ing summary judgment to the Commission conclusion as to Commissioner La Seur. regarding both Heathcote’s and La Seur’s The law requires every commissioner to be participation. The district court also did “elector[ ] state.” Id. by granting summary not err judgment 455A.6(1). It is undisputed La Seur lost affording without Farm oppor- Bureau an that status when she moved to Montana tunity to obtain the internal emails from registered Yet, to vote in Montana. the Iowa Environmental regarding Council Commission, she continued to serve on the scope job of Heathcote’s function. Ac- traveling back to Iowa to vote in favor of cordingly, we affirm the decision of the antidegradation rules. district court. This is not some mere technicality. As AFFIRMED. the majority emphasizes in the Heathcote justices All concur except WATER- portion of opinion, its the Commission has MAN, MANSFIELD, ZAGER, JJ„ a “broad mandate of authority” and en- part
who concur in in part. dissent gages “policy rulemaking” for Iowa. Thus, it is fair and reasonable for the WATERMAN, Justice (concurring in legislature require that its members be part dissenting part). below, Iowans. As I discuss the same respectfully I part concur in requirement and dissent applies to all elected state I part. agree with the majority’s Iowa, con- and local officials in judicial and all clusion that officers, Commissioner po- Heathcote’s as well as certain other boards Iowa Code section pending 455A.6 creates a nine- rules were before the Commission. requires member commission and that three Bureau, however, Farm has not advanced this "actively engaged members shall be in live- her, ground disqualifying as a focusing grain farming,” stock and one member shall allegations instead on of bias and conflict of "actively engaged be in the business of fi- agree majority interest. I with the that Com- commerce," nance or and one member shall missioner employment Heathcote’s outside "actively engaged management in the with Iowa Environmental Council and her manufacturing company.” policy positions disqualify do not her from 455A.6(l)(a)-(c). voting antidegradation on the rules. I leave suggests 11. The day record that Commissioner for another whether a commissioner can may colleagues Heathcote have counseled her rulemaking proceeding vote on a when the organization in the environmental at the Iowa personally commissioner also was involved in lobby Environmental Council on how to lobbying proceeding. outside on that same antidegradation proposed rules while the *31 disqualified. Specifical- con- should have been The Commission
and commissions. challenge can the Com- ly, of Farm Bureau not an elector this was La Seur cedes under section antidegrada- mission’s action Iowa Code for the voted when she state 17A.19(10)(e) of product “[t]he rules. tion by persons undertaken making decision acknowledges that La majority The as a deci- improperly who were constituted once qualified be to serve ceased to Seur body ... or were to sion-making Montana, but nonetheless moved to she disregards The disqualification.” majority the based on de her upholds participation the IAPA. I would hold that amendment to to According the officer doctrine. facto disqualified La Seur that because was doc- the de facto officer view of majority’s Commission was im- voting from and the trine, unqualified way stop the to an only participat- with her properly constituted voting acting or official from are ing, antidegradation the rules void. get quo proceeding bring a warranto Meanwhile, of facto majority’s while The use the de officer him removed. her or La way through uphold a vote after Seur proceeding a works its doctrine—to such courts, moved her to Montana —under- can continue vote residence the official act, variety residency requirements reme- a have no mines of or and affected citizens Jus- in the Iowa Code Constitution.12 dy. court, example, of must tices this be wrong. legislature I think this 46.14(1); § Iowa Iowa residents. Code narrowed unfairness and corrected this Const, V, (requir- § art. see also Iowa adopted when it de facto officer doctrine justices ing to be members Iowa 1998 amendments to the Iowa Admin- bar). the de facto officer doctrine Does (IAPA), Act Iowa istrative Procedure Code allow me to move to Florida and continue 17A. Iowa Acts ch. ch. See 1998 court, voting despite on decisions our (codified 17A.19(10) § § 24 at Iowa Code parties, I objections from the until am (2001)). While the de facto officer doctrine thrown out office? may preclude still collateral attack on a action, out, majority points As the past agency party may since 1998 Commis- exercising quasi-legislative seek direct action on the sion review engaged ground rulemaking. that one or more decision-makers function when Const, See, Ill, e.g., (stating county city § art. dent of a served Iowa or this state representative state "shall have been in- airport”); (requiring § 347.9 id. trustees year preceding habitant of one next this state hospital county public residents to be election, at the his his time of election ("A county); represen- § id. 368.14 local sixty have had an actual residence of shall City Development [to tative Board] must days county, may in the or district he have registered territory city be a voter of the or Ill, § represent”); art. been chosen to id. ....”); representative represents which (requiring satisfy state senators same ("[Civil 400.17(3) e]mployees § id. service representa- requirement residence as state required shall not to be a resident of the be tives); IV, (requiring § id. art. the Governor city they employed, they in which but and Lieutenant Governor to be dents); resi- Iowa shall become a resident of the state within V, (requiring § id. members of art. years appointment two or the date of such judicial nominating commissions be employment begins shall remain resi- electors); 217.2(l)(c) during remainder dent of the state (2013) (requiring members of the Council on 421.1(1) ("The employment.”); id. state electors); to be Iowa Human Services id. ... consist of three board tax review shall airport (requiring 330.20 members of local registered members voters city who shall commission to be residents "of state_"). county establishing the or a commission resi-
437 requires legislature ging,” Our EPC commission- and without such qualifications, to live in Iowa to ensure environmental ers “anyone in Arizona or elsewhere would be regulations promulgated by are Iowans free to run for the office of Mayor of who understand conditions in our state and Nogales long so as he or she established who will live under the they rules issue. residence after the election in time to be a 455A.6(1)(“The See Iowa Code members qualified elector before the term of office ”). shall be electors of state.... began”); Ch, Wall v. Mun. Cal.App.3d 223 qualifications “Wherever are fixed there is 247, 702, (1990) (not- 272 Cal.Rptr. 703-04 classes; a division into that is say, there ing that possibility “the that citizen confi- serve, is a class which may and another adjudication dence in the of traffic cases may not.” ex State rel. Jones v. increases when they by are handled local 298, 307, Sargent, 339, 145 Iowa 124 N.W. residents” was an important legislative (1910) added). 343 (emphasis The legisla- goal that was sufficient justify the re- exceptions ture did not allow carpet- for quirement traffic commissioners be baggers. Common sense tells us that a residents of the county in which they are greater official will have a interest appointed); Boulware, Snyder v. 109 on, in the rules he voting or she is will 427, (1939) (indicat- 913, Mont. 96 P.2d 915 possess greater understanding of the ing purpose of a residency requirement question, issues in and will lend more cred- county commissioners disquali- “was to ibility and confidence to the if proceeding fy those who were not familiar -with the specifically he or she is a resident —or particular needs of the section of the coun- this case an jurisdiction elector—of the ty”); Gangemi 166, v. Rosengard, 44 N.J. by affected the actions of that public offi- (1965) 665, 207 A.2d (noting previ- its cial. supports ous caselaw residency require- important purposes The served resi- ment city theory commissioners on the dency requirements have been noted in that “residence assures a rudimentary un- many See, e.g., court decisions. Woodward derstanding conditions”); of local Horwitz Beach, City 1081, 538 F.2d of Deerfield Reichenstein, 6, 881, 15 N.J. 103 A.2d (5th Cir.1976) (noting durational resi- (1954) (stating the “lack of residence dency requirements ensure “candidate his ward ward councilman imperil[s] knowledge problems the issues and representation of the ward in the sense area”); Massion, Triano v. 109 Ariz. statute”); intended Farnsworth v. (1973) 513 P.2d (finding a Jones, N.C.App. 441 S.E.2d residency requirement that candidates had (indicating one rationale of a qualified to be electors for six months was residency requirement is to “ensure that supported by the conclusion that candi- sincerely elected officials represent living dates in the they represent districts district”). residents of particular likely are to familiarize themselves with majority opinion thwarts the legislature’s the people problems and the of the dis- goal of ensuring the regula- Commission trict); Macias, State v. 162 Ariz. tions promulgated exclusively by Iow- P.2d 258 (Ariz.Ct.App.1989) (noting a ans who will live regulations. under those state provision constitutional requiring But, “qualified elected officers to be problem the fundamental elector[s]” with the of the state at majority’s the time the election opinion is that it conflicts with prevent intended to “political carpetbag- Prior to only IAPA.13 the IAPA is, purpose part, 13. The simplify process of the IAPA in judicial "to review of disquali- ... body or were modify agency ing reverse courts allowed *33 fication. action 1202, § 24. Iowa ch. La 1998 Acts rights petitioner if substantial disqualification once Seur was to agen- the because prejudiced been ha[d] And, to Montana.14 the Com- she moved cy [was]: action constituted when improperly mission or In violation of constitutional a. Seur, member, La who voting it included statutory provisions; an required her status as Iowa had lost statutory authori- In excess of the b. provision precludes This use the elector. agency; ty of the here. de facto officer doctrine rule; agency In violation of an c. the IAPA ren- The 1998 amendment to lengthy majority’s irrelevant the dis- ders upon procedure; Made unlawful d. development the history cussion of and law; by error of e. Affected other common law de facto officer doctrine in the case, unsupported In a contested f. the The Iowa and federal courts. 1998 the record by substantial evidence expressly to amendment the IAPA allows that rec- the when agency made before empowers challenge to courts parties whole; viewed as a or ord is agency previously review action that Unreasonable, arbitrary capri- or g. have been under the upheld would com- an by cious or characterized abuse law de officer doctrine. The mon facto clearly or a unwarranted ex- discretion that, historically, we majority notes have of discretion. ercise “applied the facto doctrine to [de officer] appointment.” ... errors in election or 17A.19(8) (1997). Signifi- However, by cited none of the cases however, amendment, cantly, address majority improperly constitut- following language was added: decision-making body ed or member sub- reverse, modify, grant The court shall disqualification after ject ac- appropriate agency other relief from Those amendments the IAPA. cases tion, equitable or legal including majority predated cited relief, declaratory if it determines that longer apposite. no amendment rights person seeking substantial See, Co., e.g., State Elec. v. Cent. States judicial relief be- prejudiced have been 801, 818, 288 Iowa 28 N.W.2d agency any cause action is Dist., (1947); Indep. Cowles v. Sch. following: 689, 698-99, N.W. Iowa 87-88
(1927); Metro. Nat’l Bank Commercial Bank, 682, 687, product making e. The of decision State 104 Iowa 74 N.W. (1898). there persons Similarly, who were im- 28 because is no undertaken analogous federal to Iowa properly provision constituted as a decision-mak- Code agency rulemaking, action as well increase its ease and trict court whether the action case, ”). 1(3). agency availability.” contested or 'other action.' Iowa 17A. The Code rulemaking apply IAPA"is meant to to all proceedings contested case and all suits for graduate 14. La Seur is Yale Law judicial agency attorney. review of action.” Id. She School and licensed should Utils., 17A.1(2); moving accord IES Inc. known to Montana and have that' Fin., Dep't registering Revenue & end her to vote there would status (Iowa 1996) ("The disqualify generally allows ... her [I] as an Iowa elector and would APA judicial continued on the Commission. review from an action dis- from service 17A.19(10)(e) (2009), section legislature federal mon law. Our has overruled that rule of majority discussed construction: inap- caselaw posite. law, The rule of the common statutes in derogation thereof are to be majority’s interpretation renders construed, strictly application has no 17A.19(10)(e) effect, part of section without provisions this Code. Its proceed- and all contrary to our canons of construction. ings under it shall liberally construed *34 Bearinger v. Dep’t Transp., See Iowa promote with a view to objects its (Iowa 2014) (“We 844 N.W.2d parties assist obtaining justice. interpret [legislation] in a manner to Iowa 4.2. Code avoid ... rendering any part of the enact- Farm Bureau’s challenge is the exact (internal ment superfluous.” quotation contemplated situation by the statute. omitted)); Keutla, marks State v. 798 There question Seur, is no that La at the (Iowa 2011) (‘We 731, 734 N.W.2d seek an time of the action in question, was interpretation does not render por- disqualification under Iowa Code sec- tions of [a statute] redundant or irrele- 455A.6(1). tion parties The agree she was vant.”). By concluding agency action longer no an Iowa elector at the time of upheld must be under the de facto officer question. Therefore, the vote in I would doctrine, majority effectively cuts off conclude the decision-making body was any opportunity to seek review under the improperly constituted with her voting “subject to disqualification” language of 455A.6(1) participation. See Iowa Code 17A.19(10)(e) section and leaves it mean- (requiring all Commission members to be ingless. Iowa). What does that term mean if it electors of the State of can trumped by be the de facto officer Next, Farm Bureau has shown its “sub- doctrine? The majority offers no answer. rights” stantial prejudiced were by La Seur’s act of voting disqualified. while Rather, majority concludes the de 17A.19(10)(“The court shall facto officer doctrine survives the 1998 reverse, modify, grant other appropri- amendment because that term is not men- action, ate relief from equitable or 17A.19(10)(e). Yet, tioned section as the legal relief, including declaratory if it majority acknowledges, presume we determines that substantial rights of the amendments to statutes alter the law. See person judicial seeking relief have been Co., Postell v. Family Am. Mut. Ins. 823 prejudiced-”). We have described the (Iowa 2012) (“Finally, when rights” “substantial language as follows: legislature statute, amends a it raises a We have found this rights” “substantial presumption that legislature intended language analogous to a harmless error law.”). change And, in the as majori- recognize rule. We the commissioner’s ty further acknowledges, common “[t]he action “should not be tampered with un- may law repealed by implication in a less the complaining party has in fact plainly expresses statute that the legisla- been analysis harmed.” This form of Vilsack, ture’s intent to do so.” Atwood v. appropriate because it would be ineffi- (Iowa 2006). 725 N.W.2d 644^5 That provide cient for us to relief from invalid is what we have majority’s here. The agency action particular when the inval- interpretation supported by is not its reli- idity prejudiced has not the substantial ance on the rule of construction that stat- rights petitioner. Therefore, [the are presumed repeal utes not to complainant] com- bears the burden of dem- majori- upon by the The Iowa cases relied invalidity both
onstrating predat- officer doctrine ty for de facto resulting prejudice. agency’s action the IAPA. ed both Wilson and Inc., 705 N.W.2d Fleetguard, Hill omitted). 2005) (citations (Iowa Farm Bu- majority, by denying review, raised on direct challenge reau’s easily here. We established Prejudice is meaningless requirement renders vote invalid when that a long have held Iowa residents. I Commissioners be voting body should have one member of to main- conclude La Seur’s failure would when disqualified voting, from even been an Iowa enables tain her status as elector vote decisive. member’s is not the tainted agency’s the district court to review the See, City, v. Iowa e.g., Wilson section action under Code (Iowa 1969). Wilson, the five 17A.19(10)(e), summary judgment City city council of Iowa members on to the EPC improperly granted adopted related on and resolutions voted *35 issue. Id. at Howev- urban renewal. 816-17. to votes, er, least if our the of the at one Even this case was decided under at time law, was a find vote prohibited member of the council common I would La Seur’s is voting on related to doc- statute from issues not validated the de facto officer existing renewal because an con- the foregoing urban trine. Because of rationales Id. at residency requirements, flict of interest. 820-21. elector I determining whether vote should be disagree majority’s with the contention vacated, disqual- when the her sta- even vote of that La Seur’s failure to maintain changed not comparable ified member would have as an elector “is to tus outcome, prop- we held “the better rule holds a that of an official who fails to elected a inter- Taking vote cast in violation of conflict of erly take the oath of office.” statute, if the out- est even immaterial to to procedure oath of office is a technical be come, proceeding.” vitiates the Id. 819. qualified an otherwise performed before contrast, noted such supported By We two rationales office. candidate takes (1) disquali- rule: participation requirement “the of the that each member of the com- may fied member in the discussion have be state is mission an elector this influenced mem- opinion the other funda- holding condition of office that bers,” may mental, residency “such cast re- participation not technical. This suspicion impartiality through on the of the deci- quirement cannot be remedied (internal sion.” Id. quotation taking retaking at 820 marks such as procedural step omitted). stated, “It being impossible We an oath.
to determine whether the virus of self- La Seur’s failure maintain her status result, ... interest affected the it must as an Iowa elector is similar to the failure body’s de- assumed that it dominated the of the officer in State v. to take the Palmer liberations, and that the judgment its prior adminis- required training course (internal product.” Id. quotation marks tering breath test. omitted). The same is true here. (Iowa 1996). case, In that we not- 864-65 allowing participation disqualified
La Seur’s while ed an officer be considered a may peace approved have influenced the facto officer to adminis- opinion de members, least, very proper training other it ter the test without suspicion “ignore As decision legislature’s casts on decision. in would Wilson, narrowly ‘peace it to know define officer’ more impossible for us law,” and impact participation. purposes implied exact of La Seur’s consent completely ignore [the statute]’s “would tion and rendered the Commission im- requirement specialized training.” properly OWI constituted decision-making body. 17A.19(10)(e). at 865. further noted the Id. We absence See Iowa Code That stat- training was more than a “technical trumps ute the de facto officer doctrine. infirmity” But, the training provided because majority’s even under the common safeguards protect the citizens of Iowa analysis, law participation La Seur’s from improperly administered tests with should not be excused the de facto consequential criminal and administrative officer doctrine. Her participation in vot- penalties including driving privi- loss of therefore, ing, invalidates the Commis- leges. See id. at 865-66. As the majority antidegradation Wilson, sion’s rules. See out, points “the de facto officer doctrine is 165 N.W.2d at Accordingly, I would applied particular disqualifi- when the reverse the district court’s entry of sum- integrity cation at issue undermines the mary judgment against Farm Bureau. and confidence demanded in actions taken JJ., Mansfield and Zager, join this con- by government.” or decisions made part currence in part. and dissent in Here, allowing La Seur to vote on rules affecting the citizens of Iowa when she did qualification
not meet the basic she “ignore[s]
be an Iowa legisla- elector *36 require
ture’s decision” to commissioners 865;
to be electors of the state. See id. at
Sargent,
tion.”). Further, above, as noted
elector requirement protects citi- Iowa’s by ensuring zens those individuals ENTERPRISES, Eagle SZ LLC d/b/a responsible making rules will af- Solar, Appellee, Point fect the citizens the state will be inter- ested and invested in the outcome of the rulemaking procedures, they as them-
selves will live under the rules that are BOARD, IOWA UTILITIES a Division Therefore, enacted. the failure to main- Department Commerce, tain status as an elector of the state is Iowa, Appellant, State of more than a technical infirmity. As one of only qualifications required two every Light Company, Interstate Power and member, commission “goes it to the heart” Coopera- Iowa Association of Electric qualifications set forth under section tives, Energy and MidAmerican Com-
455A.6(1), therefore, La Seur’s vote pany, Intervenors-Appellants, should not be rescued by the de facto Palmer, officer doctrine. See Advocate, Office of Consumer Environ-
at 865. Policy Center, mental Law & Iowa reasons, For Council, these I La conclude Seur’s Environmental Iowa So- failure to maintain Energy her status as an Iowa Wind Trade Asso- lar/Small elector, ciation, required by Energy Code section Iowa Renewable As- 455A.6(1), sociation, left her disqualifica- Energy Solar Industries