Bogue v. Ames Civil Service Com'n, 84-1205

• Decision Date: 22 May 1985
• Docket Number: No. 84-1205,84-1205
• Citation: 368 N.W.2d 111
• Parties: Marwin G. BOGUE and Philip Schendel, Appellees, v. AMES CIVIL SERVICE COMMISSION, Appellant.
• Court: Iowa Supreme Court

Page 111

368 N.W.2d 111

Marwin G. BOGUE and Philip Schendel, Appellees, v. AMES CIVIL SERVICE COMMISSION, Appellant.

No. 84-1205.

Supreme Court of Iowa.

May 22, 1985.

John R. Klaus, Ames City Atty., for appellant.

John L. McKinney, Ames, for appellees.

Considered by UHLENHOPP, P.J., and McCORMICK, SCHULTZ, CARTER and WOLLE, JJ.

WOLLE, Justice.

In this appeal concerning a municipal hiring decision, we must decide whether the trial court erred in overturning a civil service commission decision after trying a certiorari action as a statutory appeal under Iowa Code section 400.27 (1983). We affirm. The certiorari action commenced by Marwin Bogue (Bogue) and Philip Schendel (Schendel) gave the court the necessary authority to hear and decide the pleaded substantive legal issues, and the court properly concluded that the Ames Civil Service Commission (commission) had committed errors of law in decertifying Bogue and Schendel, the only persons eligible to be selected for the position.

In January of 1983 the city of Ames solicited applicants from the general public to fill the position of assistant power plant superintendent. Long-time civil service employees Bogue and Schendel submitted applications, then completed a written examination and personal interview with city authorities. The commission placed both individuals on a list of qualified applicants. The commission simultaneously certified as eligible for the position one person who was not then employed by the city, Collin Engebretson. The city ultimately hired Engebretson. Bogue and Schendel then filed a complaint with the commission, alleging that it had contravened statutory authority by hiring an entry-level civil service applicant rather than promoting a qualified incumbent employee. See Iowa Code § 400.9(3) (1983):

Hereafter, all vacancies in the civil service grades above the lowest in each shall be filled by promotion of subordinates when such subordinates qualify as eligible, and when so promoted, they shall hold such position with full civil service rights in the position.

Following a hearing, the commission determined that Bogue and Schendel lacked the requisite qualifications and should not initially have been certified as eligible for the position. The commission followed the recommendation of the director of the power plant and voted to remove their names from the list of qualified applicants.

Bogue and Schendel filed a petition for a writ of certiorari with the trial court, challenging the legality of the commission's actions in decertifying them and in hiring an "outside" applicant. The trial court, with express consent of the parties, treated the petition as a statutory appeal under Iowa Code section 400.27 and tried the case de novo as an action in equity. See Iowa Code § 400.27; Sieg v. Civil Service Commission, 342 N.W.2d 824, 826 (Iowa 1983); Matter of Fairbanks, 287 N.W.2d 579, 581 (Iowa 1980); McCormack v. Civil Service Commission, 315 N.W.2d 855, 857 (Iowa Ct.App.1981). The court concluded that the commission had erred in passing over qualified civil service employees in favor of Engebretson and in thereafter decertifying Bogue and Schendel.

On appeal the commission contends for the first time that the trial court lacked authority to decide the case. We first address the jurisdictional issue, then the question whether the civil service commission committed errors of law.

I. Authority to Hear and Decide Case.

A. Statutory Appeal. Section 400.27 (1983) provides in pertinent part:

The appeal to the district court shall be perfected ... by serving notice thereof on the secretary of the civil service commission from whose ruling or decision the appeal is taken.

The commission contends that the trial court did not acquire authority to decide the case under that statutory provision because Bogue and Schendel did not comply with its mandatory service requirements. Although they served the chairman of the commission in conformity with the requirements for service of notices in original actions, see Iowa R.Civ.P. 56(m), they did not serve the secretary of the commission as required by section 400.27.

Controlling Iowa precedent requires an appellant to comply substantially with the service provisions of section 400.27 in order to vest a district court with jurisdiction to decide an appeal from a civil service commission decision. Appeal of Elliott, 319 N.W.2d 244, 247 (Iowa 1982); Picray v. City of Des Moines, 348 N.W.2d 645, 646 (Iowa Ct.App.1984). The service Bogue and Schendel attempted was insufficient to give the district court authority to hear and decide this case as a statutory appeal. Moreover, the parties could not confer appellate jurisdiction upon the court by consenting to try the case as an appeal. See City of Des Moines v. Des Moines Police Bargaining Unit Association, 360 N.W.2d 729, 730 (Iowa 1985); Molitor v. City of Cedar Rapids, 360 N.W.2d 568, 569 (Iowa 1985).

B. Authority to Proceed by Certiorari. Although this case should not have been tried as a statutory appeal, the case need not now be dismissed. The petition for a writ of certiorari gave the trial court authority to hear and decide the pleaded legal issues in an original certiorari proceeding. A writ of certiorari will lie where an inferior board exercising judicial functions acts illegally, and illegality is established if a board has not acted in accordance with a pertinent statute. Istari Construction, Inc. v. City of Muscatine, 330 N.W.2d 798, 799 (Iowa 1983); Norland v. Worth County Compensation Board, 323 N.W.2d 251, 253 (Iowa 1982); Dickinson Co. v. City of Des Moines, 347 N.W.2d 436, 439 (Iowa Ct.App.1984); Iowa R.Civ.P. 306. Bogue and Schendel alleged in their certiorari petition that the commission contravened statutory authority by decertifying them and failing to promote one of them to assistant superintendent. See Iowa Code § 400.9(3) (1983). Those legal issues were properly raised by certiorari.

The commission argues that the exclusive remedy available to Bogue and Schendel was a statutory appeal pursuant to section 400.27, and in support of that argument the commission cites Appeal of Elliott, 319 N.W.2d 244 (Iowa 1982). Elliott, however, did not address the issue of exclusivity of remedy. It traced the history of judicial review of civil service commission decisions only to explain how "troublesome language relating to service of notice" cropped up in the statute. Id. ("Historically district court review of civil service commission decisions first was obtained through certiorari. The appeal procedure ... was added by amendment to the civil service chapter....") (citations omitted). Nothing in section 400.27 suggests that it was intended to be the exclusive method for obtaining review of commission decisions, and we find that it is an additional method, not a complete substitute for certiorari. The legislature knows how to make plain the exclusivity of a remedy. See Iowa Code § 17A.19:

[T]he judicial review provisions of this chapter shall be the exclusive means by which a person or party who is aggrieved or adversely affected by agency action may seek judicial review of such agency action.

No comparable provision accompanied the enactment of section 400.27. Further, Iowa Rule of Civil Procedure 308 provides:

The writ [of certiorari] shall not be denied or annulled because plaintiff has another plain, speedy or adequate remedy; but the relief by way of certiorari shall be strictly limited to questions of jurisdiction or illegality of the acts complained of, unless otherwise specially provided by statute.

The availability of a section 400.27 appeal did not preclude Bogue and Schendel from proceeding with this certiorari action to challenge the legality of the commission's actions. See City of Des Moines v. Civil Service Commission, 334 N.W.2d 133 (Iowa 1983) (allowing certiorari action to challenge jurisdiction of commission); cf. Hadjis v. Iowa District Court, 275 N.W.2d 763, 764 (Iowa 1979) ("[W]hether or not it would be possible to consider the district associate court's orders by discretionary review is irrelevant to the issue of this court's certiorari jurisdiction."); Collier v. Denato, 247 N.W.2d 236, 238 (Iowa 1976) (certiorari proper method to challenge district court's overruling of motion to dismiss, even though there may exist another plain, speedy or adequate remedy); Hitchcock v. Department of Public Safety, 250 Iowa 1016, 1019-20, 98 N.W.2d 1, 2-3 (1959) (statute providing for appeal from decision suspending license does not preclude certiorari action). But cf. McKeever v. Gerard, 368 N.W.2d 116, 119 (Iowa 1985) (criminal defendant's request for deferred judgment waives right to raise trial court errors by appeal or by certiorari action).

C. Standing. The commission also argues that Bogue and Schendel lacked standing to bring an action in district court to challenge the commission's actions, because they did not meet minimum qualifications for the position of assistant power plant superintendent. In support of its position, however, the commission cites only one case, City of Des Moines v. Public Employment Relations Board, 275 N.W.2d 753, 759 (Iowa 1979). There, we applied the standing requirements of Iowa Code section 17A.19(1), the Iowa Administrative Procedure Act, requiring that the person seeking judicial review show (1) a specific personal and legal interest in the subject matter of the agency decision and (2) a specific and injurious effect on this interest by the decision. Id.; see Iowa-Illinois Gas & Electric Co. v. Iowa State Commerce Commission, 347 N.W.2d 423, 426 (Iowa 1984).

First, we note that the Iowa Administrative Procedure Act governs only actions of state agencies, not the actions of local boards. Iowa Code § 17A.2(1) (defining "agency"); see Downs v. Board of Trustees of Police Retirement System, 312 N.W.2d 563, 565 (Iowa 1981); Benson...