Cоmmissioner of Labor, Allen J. MEIER, Plaintiff, v. Honorable Paul J. SULHOFF, Judge, Fourth Judicial District of Iowa, Defendant.
No. 83-1247
Supreme Court of Iowa
Jan. 16, 1985
Finally, plaintiffs contend that the pro tanto rule generates unnecessary third-party claims for indemnity and contribution, while a pro rata rule would minimize the frequency of such claims. The plaintiffs, however, have provided inadequate legal or factual support for that contention. They cite no case law and present no empirical data or studies to prоve their point. Moreover, we find nothing in this record which suggests that application of our pro tanto rule will generate or complicate any problems with third-party claims that a pro rata rule would avoid. Even though the plaintiffs agreed in their covenants not to sue to hold the city and Goc harmless from any indemnity or contribution claims that might have been asserted against them, German takes the position that the judgments here need not further be reducеd by his third-party claims if credit against the judgment is based on our pro tanto rule. We therefore need not address the questions presented in the briefs about whether judgments based on a pro rata approach should have been reduced by German‘s claims for comparative contribution against the settling tortfeasors.
Our pro tanto rule remains viable in cases not affected by Iowa‘s new comparative fault act, notwithstanding the arguments plaintiffs hаve arrayed against it. The trial court should have credited against each plaintiff‘s damage verdict the full amount each had received in settlement from Goc and the city. On remand, Glidden‘s judgment against German should be reduced from $20,000 to $16,000, and judgment should be entered for German and against Wilson, based on the appropriate dollar-for-dollar credits which our Greiner—Wadle pro tanto rule required.
REVERSED AND REMANDED WITH DIRECTIONS.
No brief filed for defendant.
CARTER, Justice.
Plaintiff Allen J. Meier, the Iowa Commissioner of Labоr (hereinafter the commissioner), has petitioned for and been granted a writ of certiorari to challenge the legality of an order entered by the defendant judge denying an application for an administrative inspection warrant. He contends that as the statutory enforcer of the Iowa Occupational Safety and Health Act,
I. Basis of Review.
The propriety of certiorari to review the district court‘s refusal to act in the present case is a preliminary matter which must be considered. Certiorari lies when a court is alleged to have exceeded its jurisdiction or to have acted illegally. E.g., State v. West, 320 N.W.2d 570, 573 (Iowa 1982); Hadjis v. District Court, 275 N.W.2d 763, 765 (Iowa 1979); see generally 1 A. Vestal & P. Willson, Iowa Practice § 13.45 (1983 rev. ed.). This form of review has been utilized to challenge the legality of a dispositional order affecting the extеnt to which a public agency may act within the agency‘s statutory authority. See State v. Ryan, 351 N.W.2d 186, 187-88 (Iowa 1984). Within this context, as in Ryan, certiorari appears to be an appropriate remedy under which to review the legality of the contested ruling in the present proceeding.
II. Entitlement to a Warrant in Aid of IOSHA Inspection Authority.
The defendant judge, in denying the application for an inspection warrant, indicated that the showing made was insufficient to satisfy the warrant requirements of the
In challenging that implicit standard, the commissioner contends that probable cause, as that term has been applied in
probable cause in the criminal sense is not required. For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that “reasonable legislative or administrative standards for conducting... inspection are satisfied with respect to a particular [establishment].”2
If this were the only issue in the case, our task could end at this point by sustaining the writ and remanding the matter to the defendant judge with directions to reconsider the application under the correct constitutional standard. Our problem is made more difficult, however, by the fact that the сommissioner requests us to also consider the more fundamental question of whether the district courts or other agencies of the judicial branch are empowered to issue search warrants for the purposes of IOSHA inspections.
Section 88.6 gives the commissioner the right to enter and inspect “any factory, plant, establishment, construction site, or other area, work place or environment where work is performed by an employee of an employer.” Although the commissioner‘s regulations authorize compliance officers to apply to the courts for compulsory process for enforcement of the Department of Labor‘s statutory inspection authority, there is no statutory authority for the court to issue search warrants in aid of such inspections. The language of the statute suggests that the inspections made pursuant thereto are to be permitted upon mere presentation of “appropriate credentials” by the commissioner‘s representatives. This situation is perhaps explained by the fact that this legislation was enacted in 1966, almost a year before the Supreme Court in Camara held that warrantless entries for administrative inspections constitute a violation of the
In seeking to establish the authority of the defendant judge to issue a warrant for carrying out an IOSHA inspection, the commissioner relies upon the decisions of federal courts, after Barlow‘s, Inc., which have sustained federal OSHA inspections aided by warrants. These decisions include Babcock and Wilcox Co. v. Marshall, 610 F.2d 1128, 1134-35 (3d Cir. 1979); Matter of Establishment Inspection, 589 F.2d 1335, 1341 (7th Cir. 1979); Pelton Casteel, Inc. v. Marshall, 588 F.2d 1182, 1186 (7th Cir. 1978); Marshall v. Huffhines Steel Co., 478 F.Supp. 986, 988 (N.D.Tex. 1979); Empire Steel Manufacturing Co. v. Marshall, 437 F.Supp. 873, 881-82 (D.Mont. 1977). We find these cases to be unрersuasive with respect to the issue now before us. The federal decisions either assume the existence of the warrant authority without identifying its source, or find the source to lie in Federal Rule of Criminal Procedure 41(h) authorizing warrants “in circumstances for which special provision is made.”
We have no counterpart to federal rule 41(h) in our statutes. Our criminal warrant provisions are contained in
- For property which has been obtained in violation of law.
- For property, the possession of which is unlawful.
- For property used or possessed with the intent to be used as the means of committing a public offense or concealed to prevent an offense from being discovered.
- For any other property relevant and material as evidence in a criminal prosecution.
In other statutes, the legislature has specifically authorizеd administrative bodies to seek administrative inspection warrants under certain circumstances. See, e.g., Iowa Code sections 100.51-.54 (fire inspections), section 204.502 (controlled substances), and section 467A.51 (soil conservation).
The commissioner suggests that, if courts are emрowered to prohibit unconstitutional entries, they must accept a concomitant responsibility to facilitate remedial public interest statutes by performing the judicial acts which the constitution requires to validate such statutes. While that argument may have validity within a different context, it does not, we believe, provide a basis for authorizing a search warrant to issue in those situations not provided for in the legislative enactments pertaining to searсh or inspection warrants. The situation with which we are presently faced must be distinguished from those cases in which the court has acted to uphold statutory taking procedures against a constitutional attack by supplying judicially mandated notice requirements. E.g., Auxier v. Woodward State Hospital-School, 266 N.W.2d 139, 142 (Iowa 1978); Forst v. Sioux City, 209 N.W.2d 5, 8 (Iowa 1973). Much more is being asked of us in the present case than to merely prescribe notice. While an administrative inspection aided by search warrant is not as great an intrusion in a constitutional sense as a warrantless entry upon show of credentials, it does encompass a right of forcible entry upon refusal to honor the warrant. There is no suggestion in the applicable statutes that such right of forcible entry was intended to be given to the employees of the Department of Labor.
For the reasons herein stated, we hold that the defendant judge properly refused to issue an administrative search warrant upon the application оf the commissioner, although not for the same reasons upon which our decision is based. As a result of that conclusion, the writ is annulled.
WRIT ANNULLED.
All Justices concur except McCORMICK, J., REYNOLDSON, C.J., and HARRIS and LARSON, JJ., who dissent.
McCORMICK, Justice (dissenting).
As this court recognizes, the district court applied the wrong standard for determining whether probable cause existed for issuance of an administrative inspection warrant. The correct standard, as the court notes, is set out in Marshall v. Barlow‘s, Inc., 436 U.S. 307, 321, 98 S.Ct. 1816, 1824-25, 56 L.Ed.2d 305, 316 (1978) (“A warrant showing that a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources such as, for example, dispersion of employees in various types of industries across a given area, and the desired frequency of searches in any of the lesser divisions of the area, would protect an employer‘s Fourth Amendment rights.“). This court refuses, however, to recognize the authority of the district сourt to issue an administrative warrant to permit the commissioner of labor to carry out his statutory inspection duties. I believe the district court has implied authority to issue such warrants.
The General Assembly has declared in
In order to carry out the purposes of this chapter, the commissioner or his representative, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized:
a. To enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, work place or environment where work is performed by an employee of an employer.
b. To inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and within a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.
In the present situation the commissioner sought to inspect the premises of Shuler Manufаcturing & Equipment Co., Inc. in Griswold, pursuant to a health inspection plan under which the Shuler plant was targeted for inspection based on high health hazard potential. When the health officer presented his credentials and explained his purpose to the person in charge at the Shuler worksite, he was denied access to the premises. In accordance with regulations of the department of labor, the officer reported the refusаl to the commissioner. See 530 Iowa Admin.Code 3.2(1).
As authorized by the regulation, the commissioner sought an administrative warrant in order to carry out the inspection. The regulation provides in part: “The labor commissioner shall promptly take appropriate action, including compulsory process, if necessary.” Compulsory process is defined in the regulations to mean “the institution of any appropriate action, including ex parte application for an inspection warrant or its equivalent.” Id. at 3.2(3). The regulation also provides: “Ex parte inspection warrants shall be the preferred form of compulsory process in all circumstances where compulsory process is relied upon to seek entry to a workplace under this rule.”
Thus no question exists of the commissioner‘s authority to inspect or to seek compulsory process to enforce the inspection right. For present purposes the regulations have the force of statute. See Milholin v. Vorhies, 320 N.W.2d 552, 553 (Iowa 1982). Furthermore, no question should exist of the legislature‘s intention that inspections be made whether the person in control of the premises consents or not. Otherwise the purposes of the statute would be frustrated.
The only issue in Marshall v. Barlow‘s, Inc. was whether forced inspections could be made under the federal counterpart of our statute without an administrative warrant. The Supreme Court held that an administrative warrant, or its functional equivalent, is required by the fourth amendment. See 436 U.S. at 325, 98 S.Ct. at 1826-27, 56 L.Ed.2d at 319. No such constitutional problem exists in the present case, because the regulations mandate the obtaining of an administrative warrant before a forced inspection can be made.
The Secretary of Labor sought in Barlow‘s to avoid having to use authority to seek compulsory process provided in a regulation like that in this case. See id. at 325 n. 23, 98 S.Ct. at 1827, 56 L.Ed.2d at 319 (“[T]he Secretary has limited his submission in this case to the constitutionаlity of a warrantless search of the Barlow establishment authorized by § 8(a). He has expressly declined to rely on 29 CFR § 1903.4 (1977) and upon the order obtained in this case.“). In the present case the Iowa com
The only question here is whether the district court has authority to issue the required warrant. This question was addressed in Marshall v. Huffhines Steel Co., 478 F.Supp. 986 (N.D.Tex.1979), under the analogous federal OSHA statute. In holding that the authоrity to inspect carried with it implied judicial authority to issue warrants for forced inspections, the court reasoned: “To interpret the statute to mean that warrants are constitutionally required but that the courts lack the jurisdiction to issue them would be to render the statute meaningless and to undermine Congress’ stated objectives. This court is unwilling to so hold.” Id. at 988. The same conclusion was reached by the court in Empire Steel Mfg. Co. v. Marshall, 437 F.Supp. 873, 881 (D.Mont.1977). Because our statute is based on the federal model, the federal court interpretations constitute рersuasive authority for giving a similar interpretation to our statute. See Hubbard v. State, 163 N.W.2d 904, 909 (Iowa 1969). We recently recognized our duty in construing statutes to assume the legislature intended them to have an intelligent and meaningful purpose. See In re Girdler, 357 N.W.2d 595, 597 (Iowa 1984).
This is not a problem of legislative failure to correct a constitutional infirmity. Rather it is a case in which the legislature has granted authority by implication instead of by express grant. Exactly the same situation is presented in
The federal courts have not doubted their authority to issue inspection warrants. A division of opinion existed previously concerning whether they could issue them ex parte in the absence of a statute or regulation providing for ex parte warrants. The question was settled in Barlow‘s in favor of authority to issue ex parte warrants. See In the Matter of Establishment Inspеction of Keokuk Steel Castings, 493 F.Supp. 842, 845-46 (S.D.Iowa 1980). The question is answered in Iowa by the regulation authorizing ex parte warrants. See 530 Iowa Admin.Code 3.2(3).
I would hold that the Iowa district court has authority to issue search warrants for inspections by the commissioner of labor pursuant to
This court confronted analogous issues in Forst v. Sioux City, 209 N.W.2d 5, 8 (Iowa 1973), and Auxier v. Woodward State Hospital-School, 266 N.W.2d 139, 142-43 (Iowa 1978). In each case the court recognized its duty to spell out procedures that were essential to the constitutional operation of statutes. In doing so the court did no more and no less than give effect to its own constitutional role, in Forst as expositor of the Constitution of Iowa and in Auxier as expositor of the United States Constitution.
REYNOLDSON, C.J., and HARRIS and LARSON, JJ., join this dissent.
CITY OF DES MOINES, Iowa, Appellee, v. DES MOINES POLICE BARGAINING UNIT ASSOCIATION, Appellant.
No. 83-1245.
Supreme Court of Iowa.
Jan. 16, 1985.