Buechele v. Ray

• Decision Date: 26 June 1974
• Docket Number: No. 56135,56135
• Parties: Arnold BUECHELE et al., Appellees, v. Robert RAY et al., Appellants, Kenneth L. Logemann, Intervenor-Appellant.
• Court: Iowa Supreme Court

Page 679

219 N.W.2d 679

Arnold BUECHELE et al., Appellees, v. Robert RAY et al., Appellants, Kenneth L. Logemann, Intervenor-Appellant.

No. 56135.

Supreme Court of Iowa.

June 26, 1974.

Richard C. Turner, Atty. Gen., Richard E. Haesemeyer, Sol. Gen., George W. Murray, Sp. Asst. Atty. Gen., for appellants.

Brown, Kinsey & Funkhouser, Mason City, for intervenor-appellant.

Pappas & Dunn, Mason City, for appellees.

Heard before MOORE, C.J., and RAWLINGS, LeGRAND, UHLENHOPP and HARRIS, JJ.

RAWLINGS, Justice.

Plaintiffs Arnold Buechele, Harvey Bartz and Boyd Harmon, as taxpayers, sought Polk District Court certiorari review of action by members of defendant State Executive Council (Council) in appointing an attorney to defend State Representative Kenneth L. Logemann in a slander suit brought against him by plaintiffs individually. Trial court sustained the writ. Defendants and intervenor Logemann appeal. We reverse.

February 5, 1972, State Representative Logemann, with other legislators and constituents, attended a breakfast at the Green Mill Cafe in Mason City sponsored by the local Chamber of Commerce. In response to a news media inquiry he there made a statement regarding plaintiffs, then Worth County Supervisors.

April 19, 1972, plaintiffs resultantly filed a slander damage action against Logemann.

By letter dated May 4, 1972, Attorney General Richard Turner requested the Council engage the services of an attorney to represent Logemann in the slander suit. The Council was thereby advised to the effect Turner believed the State had a very substantial interest in the outcome of the lawsuit, and was resultantly obligated to undertake Logemann's defense. Turner also stated his staff would normally provide such defense, but there was a possibility the Attorney General or his associates would be called as witnesses, thus making appointment of disinterested counsel essential.

May 8, 1972, the Council, upon Turner's recommendation, authorized the employment of an attorney to represent Logemann.

May 17, 1972, plaintiffs commenced the aforesaid certiorari action, thereby challenging defendant Council's authority to so do. They supportively alleged the Council acted illegally and in excess of authority under The Code 1971, Sections 13.7, 19.10.

June 1, 1972, Logemann allied himself with defendants via a petition of intervention.

June 1, 1972, defendants moved to quash the writ and dismiss plaintiffs' action because (1) the act complained of is not judicial, but executive or administrative, consequently not reviewable by certiorari; (2) the petition seeks review of discretionary acts by defendants, not reviewable by certiorari; (3) under Code § 13.7 the Council may employ legal assistance to defend in any action as to which the Attorney General could defend pursuant to § 13.2, upon a sufficient written showing by him that his department is for some reason unable to perform those services, which showing was here made; and (4) the State does have an interest in defending against the above noted slander action.

August 1, trial court entered findings of fact and conclusions of law holding, in essence, (1) certiorari is a proper remedy; (2) State has no legal interest in the slander suit; and (3) defendants' action in employing outside counsel for Logemann is illegal and void.

August 11, 1972, defendants and intervenor unsuccessfully moved for a new trial.

They here contend trial court erred in (1) holding certiorari is a proper remedy; (2) finding the State had no interest in defending the slander action, thus the Council acted illegally or in excess of jurisdiction in employing an attorney; and (3) overruling defendants' and intervenor's new trial motion.

I. First entertained is the aforesaid assignment to the effect certiorari is not instantly an available remedy.

It is supportively contended the Council's action in engaging an attorney to defend Logemann was neither judicial nor quasijudicial in nature, therefore not amenable to certiorari review.

In that regard Iowa R.Civ.P. 306 provides:

'A writ of certiorari shall only be granted when specifically authorized by statute; or where an inferior tribunal, board or officer, Exercising judicial functions, is alleged to have exceeded its, or his proper jurisdiction or otherwise acted illegally.' (Emphasis added).

The term 'judicial functions' is not here construed in a strict or technical sense. In other words, certiorari will lie if the act in question is quasi-judicial in nature. See State v. Johann, 207 N.W.2d 21, 24 (Iowa 1973); Staads v. Board of Trs. of Fireman's Ret. Pension Fund, 159 N.W.2d 485, 489 (Iowa 1968); Lehan v. Greigg, 257 Iowa 823, 827, 135 N.W.2d 80 (1965); Aplin v. Clinton County, 256 Iowa 1059, 1062, 129 N.W.2d 726 (1964); Anderson v. Hadley, 245 Iowa 550, 561, 63 N.W.2d 234 (1954); Massey v. City Council, 239 Iowa 527, 530, 31 N.W.2d 875 (1948).

In the same vein, it is the nature of an act, not identity of the board or tribunal charged with its performance, which determines whether or not a function is judicial or quasi-judicial. See Porter v. Iowa State Board Public Instn., 259 Iowa 571, 576, 144 N.W.2d 920 (1966); Lehan v. Greigg, Supra Gates v. City Council of Bloomfield, 243 Iowa 1, 9--10, 50 N.W.2d 578 (1951); 14 Am.Jur.2d, Certiorari, § 7; 14 C.J.S. Certiorari § 17b.

It is at best difficult to determine whether acts are judicial or quasi-judicial. See Massey v. City Council, Supra. The focal point of the solution may lie in use of the term 'quasi'. That word ordinarily means superficially resembling but intrinsically different. Therefore, when an activity appears to be judicial in nature, but in reality is not, it is termed quasi-judicial. See Galloway v. Truesdell, 83 Nev. 13, 422 P.2d 237, 243 (1967).

In keeping therewith it has been authoritatively held, an inferior tribunal which is not a court exercises a judicial function when (1) the questioned act involves a proceeding in which notice and opportunity to be heard are required; or (2) a determination of rights of parties is made which requires the exercise of discretion in finding facts and applying the law thereto. See generally Hoffman v. City of Fort Collins, 30 Colo.App. 123, 489 P,2d 355, 356 (1971); Modlin v. City of Miami Beach, 201 So.2d 70, 74 (Fla.1967); Carter v. Wilkins, 160 Me. 290, 203 A.2d 682, 684 (1964); City of Albany v. McMorran, 34 Misc.2d 316, 230 N.Y.S.2d 434, 436-437 (1962); 27 Iowa L.Rev. 291, 299 (1942); 14 C.J.S. Certiorari § 17b.

Although we long ago indicated our view is not so restricted, it still remains the foregoing judicial attributes are worthy of some weight in resolving the question at hand.

At the same time, consideration is accorded another test voiced with approval in Massey, supra, i.e., whether or not the challenged act goes to the determination of some right the protection of which is the peculiar office of the courts. See also Thompson v. Amis, 208 Kan. 658, 493 P.2d 1259, 1262--1263 (1972).

On the other hand, it must be understood the mere exercise of judgment or discretion is...