WARREN COUNTY, IOWA, еt al., Petitioners, Donald Baldis et al., Intervenors-Petitioners, v. JUDGES OF the FIFTH JUDICIAL DISTRICT of Iowa, Respondents.
No. 58379.
Supreme Court of Iowa.
June 30, 1976.
243 N.W.2d 894
The court cites State v. Watson, 242 N.W.2d 702 (Iowa). There the out-of-court statements were made by the victim of an attempted rape immediately after she was assaulted. She said, “Those guys tried to rape me and took my purse.” In holding the statements admissible as part of the res gestae this court said, “She was still suffering from her recent harrowing experience. [A witness] testified ‘she was pretty well shook up.‘” The statements in Watson, unlike Fishel‘s warning, helped explain the events of the crime charged itself. In addition, they were spontaneous utterances resulting from the harrоwing experience.
Nor is the result here supported by State v. Hinkle, 229 N.W.2d 744 (Iowa). There a witness was permitted to testify to a statement she made to a neighbor just before the murder with which defendant was charged; the witness had told the neighbor of an earlier conversation she had with the murder victim, in which the victim stated her fear of the defendant. The court said:
It is obvious from the record that this report by one in the vortex of a fear-ridden neighborhood immediately prior to the homicide caused [the witness] to approach [the victim‘s] home and return at once in great excitement just before she heard [the victim‘s] door being broken down. . . . [W]e believe the statement in issue was admissible, for the purpose of showing it was said, under the Lyons [State v. Lyons, 210 N.W.2d 543 (Iowa)] rule, in explaining the actions of these witnesses. 229 N.W.2d at 748, 749. (Italics added.)
The court was dealing with a witness who was immediately involved in the crime.
Finally, the result here is not supported by State v. Lyons, 210 N.W.2d 543 (Iowa). The controverted statements were made there by the defendant himself during the very course of the robbery with which he was charged. Like the out-of-court statements in Watson and Hinkle, those statements occurred during the course of the crime charged or helped explain the actions of the people immediately involved with the crime. Such cannot be said of Fishel or of his warning. Moreover, I think we should take care that in admitting utterances to show the whole picture of a crime we do not let in hearsay evidence of a fact in issue. The error does not stop with admission of the hearsay evidence; it is magnifiеd during jury argument.
Evidence of Fishel‘s warning was relevant, and was offered, to prove Sharen Leonard‘s intention to harm her former husband—the fighting issue in the case. The policy reasons underlying the hearsay rule call for its application here.
I would reverse for a new trial.
F. H. Becker, of Patterson, Lorentzen, Duffield, Timmons, Irish & Becker, Des Moines, for petitioners and intervenors.
Eugene Davis, of Davis, Scott & Grace, Des Moines, for respondents.
Acting pursuant to authority given in
Section 602.59 was enacted as a part of amendments to the unified trial court Act by the 65th General Assembly. Acts of the 65th G.A., 1974 Session, ch. 1085, § 13. The unified trial court Act, enacted by the 64th General Assembly, abolished all inferior courts and provided for one unified trial court in Iowa consisting of district court judges, district associate judges, and judicial magistrates. Acts of the 64th G.A., 1972 Second Session, ch. 1124, §§ 1, 2, 45.
Judicial magistrates are of two types, full-time and part-time. Their jurisdiction, salary, and functions vary accordingly, and are prescribed by statute.
Section 602.59 provides the chief judge of the district may, when a majority of the judges of a judicial election district vote fаvorably, order the substitution of a full-time magistrate for the incumbent part-time magistrates of a county. The power is given only for counties having three or more part-time magistrates. Such an action does not require public hearing, notice thereof, or factual findings by the judges.
Acting in conformance with
There is no claim of noncompliance with thе statute. Petitioners’ challenge is a direct assault on the constitutionality of the provision under which respondent judges acted.
Respondents raise threshold questions of the appropriateness of this petition and of petitioners’ standing to proceed.
I. Petitioners did not pursue their challenge in district court but petitioned directly for supervisory review in this court. They contend
Petitioners point to our opinion in Re Judges of Cedar Rapids Municipal Court, 256 Iowa 1135, 130 N.W.2d 553 (1964) in which, acting under this constitutional provision, we directed an end to objectionable practices of two municipal judges. Petitioners contend their challenge is so basic to the judicial system and is of such public importance as to merit relief under our supervisory jurisdiction.
Few cases delineate our supervisory authority. In Hutchins v. City of Des Moines, 176 Iowa 189, 157 N.W. 881 (1916) a challenge was raised to a statutory procedure allowing appointment by the supreme court of district court judges to a temporary condemnation court. We reversed for other reasons but found the appointment to be within our
“The superintending control is hampered by no specific rules or means for its exercise. It is so general and comprehensive that its complete and full extent and use have practically hitherto not been fully and completely known аnd exemplified. It is unlimited, being bounded only by the exigencies which call for its exercise. As new instances of these occur it will be found able to cope with them.” 176 Iowa at 213, 157 N.W. at 889.
Hutchins was quoted extensively in State ex rel. O‘Connor v. District Court, 219 Iowa 1165, 260 N.W. 73 (1935). In O‘Connor a writ of prohibition was sought to prevent a district court from proceeding with numerous false arrest suits. On the basis of Hutchins we granted a writ.
Judges of Cedar Rapids, supra, dealt directly with our supervisory control over inferior courts. We said:
“The grant of the power of supervision and administration implies a duty to exercise it. In fact, the language of the constitution is mandatory that we must do so. And necessarily this power must apply to something beyond the ordinary appellate procedure and correction of errors at law, which are also provided for in
Article V, Section 4, of the constitution . * * *” 256 Iowa at 1136, 130 N.W.2d at 554. See 20 Am.Jur.2d, Courts, § 113, p. 470.
We think we should exercise our authority in this case. Prompt resolution of the question is in the public interest. Our willingness to do so should not be taken as precedent for future actions. Where a remedy is provided in district court it should ordinarily be pursued before relief is sought here.
II. Respondents challenge petitioners’ standing to assert this claim. This contention rests principally on the fact Warren County was one of the named petitioners. Our cases have uniformly held a county lacks the ability to mount a constitutional attack upon state legislative enactments. Brunner v. Floyd County, 226 Iowa 583, 584-585, 284 N.W. 814, 815 (1939); C. Hewitt & Sons Co. v. Keller, 223 Iowa 1372, 1377, 275 N.W. 94, 97 (1937); Scott County v. Johnson, 209 Iowa 213, 221, 222 N.W. 378, 381 (1928). See 16 C.J.S. Constitutionаl Law § 76(b), pp. 245-246. Because, as individuals and taxpayers, certain of the petitioners have sufficient standing, we can and do decline the request we reconsider the rule barring a county from such challenges.
Individual petitioners are also residents and taxpayers in Warren County and seek the relief as such. In Vietnam Vets Against War v. Veterans M. Aud. Com‘n, 211 N.W.2d 333 (Iowa 1973), a challenge was attempted against a selection procedure prescribed by statute. Under the procedure there challenged commissioners for the City of Des Moines administered the Veterans Memorial Auditorium. Because the plaintiffs were not residents, property owners, or taxpayers of Des Moinеs they lacked standing. Under either the majority or minority view in Vietnam Vets petitioners have here alleged sufficient effect upon their rights to show standing. Cf. State ex rel. Turner v. Iowa State Highway Com‘n, 186 N.W.2d 141, 147 (Iowa 1971).
III. There are two constitutional claims in petitioners’ challenge. It is claimed
A. The claim of unconstitutional delegation is based on a familiar principle. A legislative function may be delegated to another branch of government only if adequate guidelines for its exercise accompany the delegation. Elk Run Telephone Co. v. General Telephone Co., 160 N.W.2d 311, 317 (Iowa 1968). Legislative powers are delegated to that branch by the people. The rule is derived from the belief “a delegate cannot delegate.” This is a translation of delegatus non potest delegare. Black‘s Law Dictionary 513 (Revised Fourth Ed. 1968).
It is clear a limited legislative function is delegated.
It should be noted the challenged statute does not authorize creation of a court by the judges. Neither does it authorize the judges to define or directly to alter the nature or jurisdiction of any existing court. All such matters are fully and carefully prescribed by the legislature in
But substitution does cause a significant change in the affected county‘s judicial system. Much depends on whether a full-time or part-time magistrate is named to serve: the qualifications of the magistrate under
It should also be noted that it is unimportant the delegation of legislative power is in this instance given the judicial rather than the executive branch. Although most cases on the question deal with delegations to the executive branch the prohibition applies equally to delegations to the judicial branch. See City of Clinton v. Owners of Property, Etc., 191 N.W.2d 671, 677 (Iowa 1971); State ex rel. Klise v. Town of Riverdale, 244 Iowа 423, 57 N.W.2d 63 (1953); 16 C.J.S. Constitutional Law § 139(a), pp. 634-635; 16 Am.Jur.2d, Constitutional Law, § 255, p. 504.
We believe principles developed for testing the constitutionality of a delegation of legislative power to the executive branch may be applied in testing a delegation to the judicial branch. The principles have been long in their development and continue to evolve. A thoughtful review of our cases on the subject, and those of the federal courts, appears at 58 Iowa L.Rev. 974 (1973).
Our views, in common with those of most state courts, have called for much more stringent limitations on delegation than have been demanded of the federal congress by the United States Supreme Court. Long ago a delegation with similarities to that involved in the instant case was approved in Field v. Clark, 143 U.S. 649, 12
Our early cases were typical in asserting a delegation of legislative power was appropriate only to allow findings-of-fact. Hubbell v. Higgins, 148 Iowa 36, 126 N.W. 914 (1910). The view strictly limiting delegations to fact finding functions is widely discredited now, not by way of elimination of the concept, but by way of evolution to another stage. 58 Iowa L.Rev. at 980. But lingering deference has been paid the concept, especially in cases dealing with delegation to the judicial branch of government. Clinton v. Owners of Property, supra, 191 N.W.2d at 677; Graham v. Worthington, 259 Iowa 845, 857, 146 N.W.2d 626, 635 (1966); Town of Clive v. Colby, 255 Iowa 483, 491-492, 121 N.W.2d 115, 119 and 123 N.W.2d 331 (1963); In re Community Sch. Dist. of Malvern, 250 Iowa 1240, 98 N.W.2d 737 (1959); Iowa-Illinois G. & Elec. Co. v. Ft. Dodge, 248 Iowa 1201, 1217, 85 N.W.2d 28, 37 (1957).
While continuing to expand the view a delegation was proper only for fact finding functions, our holdings indicate we allow delegation for broader purposes. We shared with the federal courts the second or filling-up-the-details stage. See Vilas v. Board of Assessment & Review, 223 Iowa 604, 273 N.W. 338 (1937) and State v. Manning, 220 Iowa 525, 531, 259 N.W. 213, 217 (1935).
The filling-up-the-details test was soon expanded into the adequate-standards approach. Davis, § 2.01 at 27. Our own expansion was somewhat restrained:
“The Iowa court, rather than adopting the standards approach followed by the United States Supreme Court, enunciated a more restrictive analysis than involved a careful inquiry into whether the standards definitively described the character of the regulation ‘intended to be imposed,’ along with the parameters within which discretion could be utilized in carrying out that regulation. The results reached by the Iowa court were also different. While the United States Supreme Court began to permit delegations with almost meaningless guidelines, the Supreme Court of Iowa carefully scrutinized the statutеs before them to insure that sufficient standards were actually present.
“However, the standards area was far from clearly defined, even in Iowa cases. While it appeared that the Iowa Supreme Court would be more permissive in situations in which the public interest was best served by a delegation, the court probably only recognized this possibility for the first time in [Spurbeck v. Statton, 252 Iowa 279, 290, 106 N.W.2d 660, 666 (1960)]. The standards approach resulted in further permissiveness toward delegations, although the court carefully inquired into the presence of standards. * * *” 58 Iowa L.Rev. at 986-987. See Miller v. Schuster, 227 Iowa 1005, 289 N.W. 702 (1940); State v. Van Trump, 224 Iowa 504, 507-508, 275 N.W. 569, 571 (1937).
It is apparent we are now in the fourth period, “the current state of flux.” Relatively recent cases have continued to consider tests developed in prior stages. In Lewis Consolidated Sch. Dist. v. Johnston, 256 Iowa 236, 127 N.W.2d 118 (1964) an unsuccessful search was made for standards. They were sought among statutes in pari materia with the one there under challenge. Standards were not found so the challenged statute was held unconstitutional.
In State v. Rivera, 260 Iowa 320, 149 N.W.2d 127 (1967) we approved a delegation to the state highway commission. We denied a challenge to the constitutionality of the statute which accorded the commission the responsibility of selecting as well as marking no passing zones through regulation. Three grounds supported our approval. Standards appeared in statutes in pari
In Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758 (Iowa 1971) we upheld delegation to the civil rights commission allowing it to formulate a remedy to eliminate a discrimination practice. We noted standards need not be shown where “* * * the procedure established for the exercise of power furnishes adequate safeguards * * *.” 191 N.W.2d at 772. This holding demonstrates standards and safeguards are not both required.
In Grant v. Fritz, 201 N.W.2d 188 (Iowa 1972) we approved a delegation given in
We said: “[We have] recognized the modern tendency toward greater liberality in permitting grants of discretion to administrative officials as the complexity of governmental and economic conditions increases * * *. (Authorities).” 201 N.W.2d at 192.
From the foregoing history certain general principles appear to govern the claim a delegation of legislative power is unconstitutional. The four stages have each left their mark.
Standards may be found in statutes in pari materia with the one under challenge. Standards may bе general or specific. Where they are specific a statute is less subject to challenge.
Safeguards are an important factor and may suffice even in the absence of detailed standards. But standards remain important. They may themselves constitute a safeguard. It is desirable, but not essential, to have both safeguards and standards; in some cases either will suffice. Standards are of more importance where the safeguards are in some way lacking.
We look to the practical necessities of public interest and will consider as an important factor the difficulty or impossibility of calling for the legislature to function in a given area.
With the foregoing interrelated principles in mind we turn to a consideration of the challenge in the instant case. The question is made close because there is no requirement for a notice or hearing before substitution is ordered. But this absence is not necessarily fatal. The absence of notice or hearing does not mean the judges will act unfairly in determining whether a substitution should be made. In State v. Rivera, supra, 260 Iowa at 325, 149 N.W.2d at 131 we quoted with approval from Spurbeck v. Statton, supra, 252 Iowa at 286, 106 N.W.2d at 664: “* * * It must be assumed that public officers will act fairly and impartially, and a statute will not be held unconstitutional because of a supposed possibility they will not do so. (Authority).”
A general right of review exists from actions of administrative officers under the administrative prоcedure act.
The statute challenged,
Section 602.61, The Code, provides for the chief judge to direct when and where magistrates shall hold court and to delegate the work load among them. The guidelines for the chief judge‘s actions under
Section 602.63, The Code, authorizes the chief judge to combine the criminal dockets of magistrates and district associate judges if “* * * administration could be improved thereby. * * *.” The over-all goal of the Rules of Civil Procedure is approved by the legislature. That goal is “* * * to provide for the administration of justice in an orderly, efficient and effective manner, in accordance with the highest standards of justice and judicial service.” Rule 373, R.C.P. See rule 377, R.C.P. and
In deciding for a substitution under
We hold
B. Petitioners’ other constitutional challenge does not present so close a question. Under
Under
As noted the unified trial court Act abolished “[a]ll mayors’ courts, justice of the peace courts, police courts, superior courts, and municipal courts * * * as of July 1, 1973. * * *” Acts of the 64th G.A., 1972 Second Session, ch. 1124, § 45. See
Constitutional provision for gubernatorial appointment of district court judges antedated by many years the unified trial court Act which first created the position of judicial magistrates. When adopted,
Prior to adoption of the unified trial court Act infеrior court officers were not appointed by the governor. There was nothing unconstitutional in this. But petitioners argue the methods of filling offices in magistrate level courts, though constitutional under the former system, were ren-
Certain qualifications of district court judges are required by the constitution. In creating and defining the office of judicial magistrate, the legislature chose in various ways not to establish similar qualificatiоns, thereby indicating magistrates were not district court judges. For example district court judges must be members of the bar.
The legislature has further indicated such distinction by contrasting statutes. District court judges receive an annual salary of $31,500.
Various Code sections refer alternatively to district judges and judicial magistrates, implying a distinction between the two offices.
The legislature was careful to delineate the confines of the office of judicial magistrates. It meticulously avoided according judicial magistrates the same status as district judges. The selection and procedure which does not provide for gubernatorial appointment is but another example of the distinction. A judicial magistrate “* * * is a judicial officer who is called upon to perform discretionary and judgmental functions of great importance. * * *” Krohn v. Judicial Magistrate Appointing Com‘n, 239 N.W.2d 562, 564 (Iowa 1976). He is not however a district judge. Since a magistrate is not a district judge there is no requirement appointments for the office be made by the governor.
Having found against petitioners upon their constitutional claims their petition for supervisory review must be and is hereby DISMISSED.
All Justices concur except LeGRAND, J., who dissents and RAWLINGS, J., who takes no part.
LeGRAND, Justice (dissenting).
Even after according
I. I agree that legislative power may be delegаted to another branch of government if adequate guidelines (or, in some cases, safeguards) for its exercise accompany the delegation. See Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 772 (Iowa 1971); Elk Run Telephone Company v. General Telephone Company, 160 N.W.2d 311, 317 (Iowa 1968).
I disagree, however, with the majority‘s conclusion the authority granted to district judges under
II. The majority ignores the added scrutiny to which delegations of legislative power are subjected when authority is vested in the judiciary. The majority says this is “unimportant.” The authorities are to the contrary.
This is well stated in Westring v. James, 71 Wis.2d 462, 238 N.W.2d 695, 698-699 (1976) as follows:
“[Schmidt v. Department of Local Affairs and Development, 39 Wis.2d 46, 158 N.W.2d 306 (1968)] emphasizes the fact that legislative powers which may be delegated to the courts are very limited. * * * The courts cannot be delegatеd the legislative responsibility of determining what is ‘in the public interest’ in respect to the creation of municipalities.”
In Westring the court was referring to the following statements from Schmidt v. Department of Resource Development, 39 Wis.2d 46, 158 N.W.2d 306, 311-313 (1968) (quoting from a prior Wisconsin decision):
“What is ‘desirable’ or ‘advisable’ or ‘ought to be’ is a question of policy, not a question of fact. What is ‘necessary’ or what is ‘in the best interest’ is not a fact and its determination by the judiciary is an exercise of legislative power when each involves political considerations and reasons why there should or should not be an annexation. * * *
“We are dealing here not with a delegation of legislative power to the judiciary but with a delegation of that power to an administrative agency or administrative director. The legislative agency or director is, in fact, an arm or agent of the legislature itself. The very existence of the administrative agency or director is dependent upon the will of the legislature; its or his powers, duties and scope of authority are fixed and circumscribed by the legislature and subject to legislative change. An administrative agency does not stand on the same footing as a court when considering the doctrine of separation of powers. An administrative agency is subject to more rigid control by the legislature and judicial review of its legislative authority and the manner in which that authority is exercised. * * *
“The power to declare whethеr or not there shall be a law; to determine the general purpose or policy to be achieved by the law; to fix the limits within which the law shall operate—is a power which is vested by our Constitution in the legislature and may not be delegated. * * *” (Emphasis added.)
Other states, too, emphasize this necessity for more strict construction when legislative power is delegated to the judiciary.
In Copeland v. Kansas State Board of Examiners in Optometry, 213 Kan. 741, 518 P.2d 377, 380 (1974), the court said:
“The legislature may impose a function upon the courts that is clearly judicial, but by reason of the separation of powers doctrine, the legislature cannot impose a legislative function upon the judiciary.”
The same thought was expressed this way in Galloway v. Truesdell, 83 Nev. 13, 422 P.2d 237, 244-246 (1967):
“Generally, the legislature may not confer or impose powers non-judicial in character upon the judiciary. * * *
“Our Constitution, even though being a ‘living thing’ and flexible still has limitations upon the powers that the legislature
can grant to a District Court. As was pointed out above, non-judicial functions cannot be imposed upon courts and judges unless expressly stated in the Constitution. * * *”
See also In Re Fond du Lac Metropolitan District, 42 Wis.2d 323, 166 N.W.2d 225, 227-228 (1969).
Our own cases also recognize this distinction. In Iowa-Illinois Gas and Electric Co. v. Fort Dodge, 248 Iowa 1201, 1216-1217, 85 N.W.2d 28, 37 (1957) we said:
“The Constitution of Iowa, like other American state constitutions, effects a complete separation of legislative, executive and judicial powers. It has been so many times recognized and dеclared that regulation of public utility rates is a legislative function, that this court will not dwell upon the matter in this opinion * * *. It should suffice to mention at this time that while the legislative body may create a public utilities commission and delegate legislative powers to it, subject to standards to be provided by the legislature, and may likewise delegate such legislative powers to municipal corporations, such delegation cannot be made to the courts even by express legislative enactment. Citations.” (Emphasis supplied.)
See also Graham v. Worthington, 259 Iowa 845, 857, 146 N.W.2d 626, 635 (1966), where the powers the legislature may delegate to a judicial body were limited to procedures, mechanics, аnd factfinding process with reasonably proper guides and standards.
In State of Iowa ex rel. Klise v. Town of Riverdale, 244 Iowa 423, 436, 57 N.W.2d 63, 70 (1953) we said:
“What is desirable is not a question of fact that can be judicially determined. It is a question of policy or public interest exercisable by the legislature alone. * * * No one knows what the legislature meant by its requirement of desirability. It probably meant the court was to decide what would best promote or be conducive to the public good. Plainly this is legislation. The legislature has been entrusted with the power to pass laws for the public good. It cannot delegate to the courts, as a condition to the laws taking effect, the choice of determining whether the law will have a salutary effect. * * *”
Later, at 24 Iowa 441, 57 N.W.2d at 73, the Klise opinion contains this:
“No case is cited that goes so far as to allow annexation if the court felt it ‘desirable.’ Such a requirement as a determination of desirability leaves the court free to first formulate all of the conditions precedent to annexation and then to find if they exist. This is a delegation of unlimited power in the courts to determine whether property shall be annexed or not and hence the statute is unconstitutional.”
In an earlier case, Denny v. Des Moines County, 143 Iowa 466, 473-474, 121 N.W. 1066, 1069 (1909), this court said:
“In other states statutes providing for proceedings in court with reference to a creation of a municipal corporation, or the extension of its limits, have frequently been considered by the courts, with the general conclusion, supported by the great weight of authority, that if the proceeding involves the determination of a legislative question, or the exercise of administrative powers, the statute is unconstitutional, and that such statutes can be upheld only where they leave to the courts the determination of questions of fact, as distinguished from the exercise of a general discretion involving the public interest.”
III. Applying the foregoing principles to the present case, I find the delegation of power under
Surely the determination of such matters is legislative. If delegable at all, the power given the judges over these vital policy questions must be limited to well-defined factfinding under adequate guidelines.
Today‘s decision goes far beyond any previous announcement of this court. It approves—for the first time—a delegation of legislative power without either guidelines or safeguards. I have already discussed the absence of guidelines. As to safeguards, I simply point out there is no provision for notice, hearing, or judicial review. This is vividly illustrated by the present case when plaintiffs were forced to invoke the original jurisdiction of this court—a rare remedy—to test the statute.
It is probably unnecessary to add I would hold