Downs v. Board of Trustees of Police Retirement System of City of Sioux City, 2-65835

• Decision Date: 25 November 1981
• Docket Number: No. 2-65835,2-65835
• Citation: 312 N.W.2d 563
• Parties: Debra DOWNS and the Iowa Civil Rights Commission, Appellees, v. The BOARD OF TRUSTEES OF the POLICE RETIREMENT SYSTEM OF the CITY OF SIOUX CITY, Iowa, Appellant.
• Court: Iowa Supreme Court

Page 563

312 N.W.2d 563

Debra DOWNS and the Iowa Civil Rights Commission, Appellees, v. The BOARD OF TRUSTEES OF the POLICE RETIREMENT SYSTEM OF the CITY OF SIOUX CITY, Iowa, Appellant.

No. 2-65835.

Supreme Court of Iowa.

Nov. 25, 1981.

Michael S. Walsh, City Atty., and Patrick J. Nugent, Asst. City Atty., for appellant.

Thomas J. Miller, Atty. Gen., and Victoria L. Herring, Asst. Atty. Gen., for appellees.

Considered by LeGRAND, P. J., and HARRIS, ALLBEE, McGIVERIN, and LARSON, JJ.

ALLBEE, Justice.

In October 1978, Debra Downs, a black/native American female, was one of twenty-eight persons who applied for appointment as a Sioux City police officer. After passing the written examination given by the Sioux City Civil Service Commission (CSC), see § 400.8(1), The Code 1977, Downs proceeded to the physical examination stage, which is administered by the board of trustees of the Sioux City Police Retirement System (pension board), see id. Although Downs passed the required back x-ray and the physical agility test, the pension board doctor who examined Downs recommended that she not be admitted to the police retirement system. This recommendation was based on the doctor's conclusion that Downs was likely to develop arthritis in the future at the site of a healed ankle fracture which was set with pins. Although a second medical opinion sought by the pension board reached a different conclusion, the board adopted its own doctor's recommendation. As a result, the CSC refused to allow Downs to proceed to the final test, an oral examination. It was thought that because Downs had not passed the physical examination, any further testing would be a futile gesture and would be contrary to the CSC's examination rules, which did not permit applicants who failed one stage of the testing to proceed to subsequent stages.

Meanwhile, in April 1979, Downs filed a complaint with the Iowa Civil Rights Commission alleging that her disqualification by the pension board constituted illegal discrimination on the basis of race or disability. See § 601A.6(1)(a), The Code 1979. When the CSC refused to allow Downs to take the oral examination, the Civil Rights Commission, acting pursuant to authority granted by section 601A.5(4), The Code 1979, sought and obtained a mandatory injunction requiring that Downs be permitted to complete all the examinations. The trial judge in that action ruled that the pension board's determination that Downs had not passed the physical examination was not binding on the CSC, and that "an appropriate time" for the CSC to make its own determination on that matter would be after all tests were completed. ¹

In compliance with the court order, the CSC allowed Downs to take the oral examination, which she passed. It then placed her name third on a list of the ten applicants highest in standing who were certified to the city council as eligible for appointment to the position of police officer. See § 400.11, The Code 1979. The list stated that the applicants were certified on the basis of the written and oral examinations; no mention was made of the physical examination or the agility test.

After the list was certified, but before any of the certified applicants were appointed police officers, the pension board voted to accept as members of the police retirement system all persons on the list except Downs. Again, the reason given for Downs' rejection was the adverse recommendation of the pension board doctor.

The Civil Rights Commission and Downs then initiated this certiorari action in district court challenging the pension board's action as illegal, discriminatory and outside the board's jurisdiction. Trial court sustained the writ on the ground that the pension board acted beyond its jurisdiction by voting not to accept Downs as a member of the retirement system after the CSC had placed her name on the eligibility list. On appeal, the pension board argues that trial court's judgment should be reversed either on its merits or because the court lacked subject matter jurisdiction. The board also asserts trial court erred in failing to sustain its motion to strike a portion of petitioners' trial brief.

I. Subject matter jurisdiction.

An assistant Iowa attorney general acted as attorney for both of the petitioners-the Iowa Civil Rights Commission and Downs-in the certiorari action below. In trial court's ruling on the petition, however, the court determined that it did not have jurisdiction to decide the discrimination claims because no administrative release had been obtained by Downs pursuant to section 601A.16, The Code 1979. The court also ruled that, because there was no statutory authority for the Civil Rights Commission to file or join in a petition for writ of certiorari, only Downs, individually, was properly before the court as to the other claims. The Civil Rights Commission has not appealed from these rulings.

The pension board now asserts that because the Civil Rights Commission was not properly before the court and because an assistant attorney general has no authority to represent a private party in bringing a certiorari action, the trial court had no claim before it upon which it could act; accordingly, the board argues, trial court never acquired subject matter jurisdiction.

Assuming, without deciding, that the Civil Rights Commission was not properly before the court and that the assistant attorney general lacked authority to represent Downs, we nonetheless believe the pension board's jurisdictional argument fails. Because Downs was named as a petitioner, and her claim was properly before the court, the pension board's objection actually relates only to the legal authority of the attorney who acted on her behalf. See § 610.17, The Code 1979 (motion challenging authority of adverse party's attorney). We are satisfied that such an objection does not go to the subject matter jurisdiction of a court and cannot be raised for the first time on appeal. ² See 7 Am.Jur.2d Attorneys at Law § 144 (1980) (question of want of authority of plaintiff's attorney cannot be raised by defendant for first time in appellate court). Accord, Baker v. Baker, 248 Iowa 361, 365, 81 N.W.2d 1, 3 (1957) (challenge to authority of attorney should be made promptly). Cf. Qualley v. Chrysler Credit Corp., 261 N.W.2d 466, 468 (Iowa 1978) (objection to subject matter jurisdiction cannot be waived and therefore can be raised at any stage of proceeding, including appeal).

Furthermore, although the specific issue was not raised here, we note that certiorari is the proper means of challenging action taken by a police retirement system board of trustees. Benson v. Fort Dodge Police Pension Board of Trustees, 312 N.W.2d 548, 550 (Iowa 1981). Thus, no challenge to the subject matter jurisdiction of the trial court may be based on an objection that the judicial review procedures of the Iowa Administrative Procedure Act, chapter 17A, The Code 1979, were not followed here. Id.

In a related matter, the pension board contends that it is entitled to an attorney fee award pursuant to section 601A.16(5), The Code 1979, because it was "frivolous" for the Civil Rights Commission to bring a certiorari action without any statutory authority to do so. Even if we agreed the Commission's action was frivolous, however, there would be no basis for an attorney fee award because section 601A.16(5) pertains only to actions brought pursuant to chapter 601A, and therefore is not applicable here.

II. Propriety of sustaining writ of certiorari.

An appeal from the judgment of a district court in a certiorari proceeding is governed by the rules applicable to appeals in ordinary actions. Iowa R.Civ.P. 318. Therefore, we review for assigned error, and uphold the judgment on factual questions if it is supported by substantial evidence. Brock v. Dickinson County Board of Adjustment, 287 N.W.2d 566, 568 (Iowa 1980).

Trial court sustained Downs' writ of certiorari largely on the basis of two conclusions: (1) that the CSC, not the pension board, is the proper body to interpret and take final action upon the report of the pension board doctors relating to the physical examination of a police officer applicant, and (2) that Downs' name was properly placed on the certified eligibility list, and therefore the pension board's subsequent decision not to admit her to the retirement system had the practical effect of illegally removing her name from that list. To determine whether the writ of certiorari was properly sustained, we must decide whether these underlying conclusions are correct.

A. Final arbiter of civil service physical examination results.

Civil service commissions such as the Sioux City CSC are charged by law with the responsibility of determining the qualifications of persons seeking appointment to civil service positions. The governing code provisions are as follows:

1. The commission shall ... under such rules, including minimum and maximum age limits, as shall be prescribed and published in advance by the commission ... hold examinations for the purpose of determining the qualifications of applicants for positions under civil service, other than promotions, which examinations shall be practical in character and shall relate to such matters as will fairly test the mental and physical ability of the applicant to discharge the duties of the position to which the applicant seeks appointment. Provided, however, that such physical examination of applicants for appointment to the positions of policeman, policewoman, police matron or firefighter shall be held under the direction of and as specified by the boards of trustees of the fire or police retirement systems established by section 411.5....

2. The commission shall establish the guidelines for conducting the examinations under subsection 1 of this section.

§ 400.8, The Code 1979 (emphasis added).

The commission shall, within ninety days after the...