Meier v. Sulhoff

• Citation: 360 N.W.2d 722
• Decision Date: 16 January 1985
• Docket Number: No. 83-1247,83-1247
• Parties: 12 O.S.H. Cas. (BNA) 1212, 1984-1985 O.S.H.D. (CCH) P 27,181 Commissioner of Labor, Allen J. MEIER, Plaintiff, v. Honorable Paul J. SULHOFF, Judge, Fourth Judicial District of Iowa, Defendant.
• Court: United States State Supreme Court of Iowa

Page 722

360 N.W.2d 722

12 O.S.H. Cas. (BNA) 1212, 1984-1985 O.S.H.D. (CCH) P 27,181 Commissioner 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.

Thomas J. Miller, Atty. Gen., and Thomas D. McGrane, Asst. Atty. Gen., for plaintiff.

No brief filed for defendant.

Considered en banc.

CARTER, Justice.

Plaintiff Allen J. Meier, the Iowa Commissioner of Labor (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, Iowa Code chapter 88, (hereinafter IOSHA), he is empowered to seek administrative inspection warrants and that his application to the defendant judge established the requisite cause to obtain the issuance of an administrative inspection warrant in the present proceeding.

The commissioner's application sought an administrative inspection warrant allowing agents of the Department of Labor to make a general safety and health inspection at the premises of Schuler Manufacturing and Equipment Company in rural Cass County. The application states with particularity the method by which Schuler has been identified as an inspection site pursuant to a general administrative plan established by the commissioner for purposes of carrying out his responsibilities under IOSHA. ¹ The application further recites that Schuler had been cited for six "non-serious" IOSHA violations on a prior occasion and that the commissioner's duly qualified agent had been denied entry to the Schuler plant by managerial personnel after presenting necessary credentials and requesting admission.

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 extent 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 fourth amendment to the federal constitution. Although not explicitly stating so in the order, the defendant judge strongly implied that in order for a search warrant to issue the application must establish probable cause that an IOSHA violation is occurring on the premises.

In challenging that implicit standard, the commissioner contends that probable cause, as that term has been applied in fourth amendment claims arising in criminal investigations, is not relevant to the present proceeding. We believe that the commissioner is correct in that assertion based upon our reading of two decisions of the Supreme Court. As indicated in Marshall v. Barlow's, Inc., 436 U.S. 307, 320-21, 98 S.Ct. 1816, 1824-25, 56 L.Ed.2d 305, 316 (1978), for purposes of an administrative investigation designed to secure compliance with federal OSHA laws,

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

Accord, Camara v. Municipal Court, 387 U.S. 523, 538, 87 S.Ct. 1727, 1736, 18 L.Ed.2d 930, 940 (1967) (emphasis added).

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 commissioner 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 fourth amendment. The question thus posed is whether the courts, in the absence of legislative authorization, may issue administrative search warrants to the commissioner or his representatives in order that those persons may carry out their mandate in a constitutional, albeit legislatively unanticipated manner.

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 unpersuasive 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 Iowa Code sections 808.1-.8 and authorize the issuance of such warrants for the following:

1. For property which has been obtained in violation of law.

2. For property, the possession of which is unlawful.

3. 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.

4. For any other property relevant and material as evidence in a criminal prosecution.

Iowa Code § 808.2. Search warrants issued for these purposes may be executed only by a peace officer.

In other statutes, the legislature has specifically authorized 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).

Because there is no common-law right to issue a search warrant, see, e.g., State ex rel. Accident Prevention Division v. Foster, 31 Or.App. 291, 570 P.2d 398, 401 (1977); State v. Baker, 251 S.C. 108, 160 S.E.2d 556 (1968); 68 Am.Jur.2d Search and Seizure § 61 (1973), we conclude that we lack the authority to expand by judicial fiat the purposes fixed by the legislature for which search warrants may lawfully issue. Nor do we consider it our province, whatever the purpose of a search warrant, to establish the procedural requirements for issuance, execution and return thereof. Because of the many choices involved, each involving important policy considerations, the court cannot begin to imply a legislative intent on matters which the legislature has not itself addressed.

The commissioner suggests that, if courts are empowered 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 search 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...