Pottawattamie County Dept. of Social Services v. Landau, No. 55732

• Court: United States State Supreme Court of Iowa
• Writing for the Court: Heard by MOORE; REES
• Citation: 210 N.W.2d 837
• Parties: 6 Fair Empl.Prac.Cas. (BNA) 845, 7 Empl. Prac. Dec. P 9051 POTTAWATTAMIE COUNTY DEPARTMENT OF SOCIAL SERVICES and Pottawattamie County Board of Social Welfare, Appellees, v. Elliott LANDAU and Iowa Civil Rights Commission, Appellants.
• Decision Date: 19 September 1973
• Docket Number: No. 55732

Page 837

210 N.W.2d 837 6 Fair Empl.Prac.Cas. (BNA) 845, 7 Empl. Prac. Dec. P 9051 POTTAWATTAMIE COUNTY DEPARTMENT OF SOCIAL SERVICES and Pottawattamie County Board of Social Welfare, Appellees,
v.
Elliott LANDAU and Iowa Civil Rights Commission, Appellants. No. 55732. Supreme Court of Iowa. Sept. 19, 1973.

Page 838

Dickinson, Throckmorton, Parker, Mannheimer & Raife, Des Moines, for appellants.

Lyle H. Rodenberg, County Atty., and David E. Richter, Chief Deputy County Atty., Council Bluffs, for appellees.

Heard by MOORE, C.J., and RAWLINGS, LeGRAND, REES and UHLENHOPP, JJ.

REES, Justice.

This appeal is from the order and judgment of the trial court directing the issuance of a writ of prohibition to restrain proceedings by the Iowa Civil Rights Commission on the complaint of one Jackson Graham. We find the court erred in directing the issuance of a writ of prohibition, and reverse with direction.

An action was instituted for the issuance of a writ of prohibition to restrain the defendant Iowa Civil Rights Commission from proceeding with a hearing before defendant Landau, a hearing examiner appointed by the Commission, in connection with a complaint of discrimination filed with the Commission by one Jackson Graham against the plaintiffs. Plaintiffs' petition alleged that the Civil Rights Commission had no jurisdiction to conduct a hearing, that the issues to be considered at the hearing were Res judicata, that there were certain procedural defects, and that the hearing examiner Landau had indicated bias and prejudice.

Jackson Graham was discharged by the Pottawattamie County Board of Social Welfare, effective November 15, 1970,

Page 839

from his position as a community program aide in the County Department of Social Services. He filed appeal with the Iowa Merit Employment Commission on November 6, 1970, and the matter came on for hearing on December 3, 1970.

In the hearing before the Merit Employment Commission, Graham contended he had been effectively and conscientiously carrying out the duties of his employment as he understood them to be; that his discharge was based on allegations of immoral conduct referred to in a supplemental decree in the district court of Pottawattamie County, which allegations were unproven; and that his employer had been unsympathetic and opposed to his active role in community welfare and civil rights programs.

The Merit Employment Commission decided unanimously that Graham should be reinstated to his former position effective December 16, 1970, but that he be suspended without pay from November 15, 1970 to December 15, 1970, due to what the Commission characterized in its order as 'poor judgment exercised by Graham in his role as case-worker and community-minded citizen'. The decision of the Commission is of particular interest, in the light of the provisions of the Acts of the 62nd General Assembly, chapter 95, § 14 (now section 19A.14, The Code), which provides with regard to the Merit Employment Commission's authority on apppeal:

'* * * If the commission finds that the action complained of was taken by the appointing authority for any * * * racial * * * or nonmerit reasons, the employee shall be reinstated to his former position Without loss of pay for the period of the suspension. (Emphasis supplied)

Only three days after Graham had taken his appeal to the Iowa Merit Employment Commission, he filed a complaint on November 9, 1970 with the Iowa Civil Rights Commission, the complaint being based on the alleged impropriety of his employer's actions in discharging him. The Department of Social Services was notified of the charge on November 10th, but no further action was taken at that time.

Graham, in conformity with the order of the Merit Employment Commission, was reinstated to his employment on December 16, 1970, but thereafter the Board of Social Welfare again dismissed him, effective December 24, 1970 for misconduct which had occurred both before and after his previous dismissal and reinstatement and during the period of his suspension. The misconduct complained of involved primarily the marital difficulties of one Mrs. Shirley Claycomb. A criminal charge of interference with the administration of justice stemming from the concealment of Mrs. Claycomb's two children was filed against Graham; he was convicted, appealed to this court, and his conviction was affirmed. See State v. Graham, 203 N.W.2d 600 (Iowa 1973).

On December 26, 1970 a second appeal was taken by Graham to the Merit Commission, the case coming on for hearing on January 14, 1971. At the hearing Graham contended that his second discharge was a 'continuation of events' which started prior to his first discharge, and insisted his discharge was on a racial basis because of his work with the disadvantaged of the community. Other than Graham's personal statement, no further record was made by him.

On January 18, 1971 the Merit Employment Commission affirmed the second discharge on the ground that Graham had failed to refute the charges which formed the basis of his dismissal.

Action before the Civil Rights Commission again resumed on February 10, 1971 with the Commission notifying the County Department of Social Services that probable cause under chapter 105A had been found on Graham's November, 1970 complaint, and a proposed date for conciliation was fixed to be held at the Commission's office in Des Moines. Thereafter, on

Page 840

April 1, 1971 the Civil Rights Commission ordered a public hearing with defendant Landau as hearing examiner. On or about April 12, 1971 a notice of such hearing was allegedly delivered to the Department of Social Services, although the department claimed that no complaint was attached thereto.

Hearing commenced before Hearing Examiner Landau on May 3, 1971. A motion to dismiss by plaintiffs was summarily overruled, and the taking of testimony relative to Graham's discharge proceeded. The complaint was amended on May 5, 1971 to include allegations of 'discrimination by reason of creed and patterns of racial discrimination', and the scope of the hearing was thereby broadened and extended. The proceeding continued until May 6, 1971 when plaintiffs filed petition for the issuance of a writ of prohibition to restrain defendant Landau as hearing examiner and Iowa Civil Rights Commission from proceeding further with the hearing. A temporary writ of prohibition was ordered to issue at that time.

Hearing was held on the petition for permanent writ of prohibition on June 12, 1971. The court's order and judgment, entered on March 15, 1972, directed that a permanent writ of prohibition issue restraining any further proceedings on Graham's complaint before the Iowa Civil Rights Commission. From such order and judgment, this appeal is taken.

Defendants assign two propositions on which they rely for reversal:

1. The district court has no power under any circumstance to issue a writ of prohibition directed to the Iowa Civil Rights Commission.

2. Even assuming the district court has power to issue a writ of prohibition against the Civil Rights Commission, it was error to issue the writ in the present circumstances.

I. This court has heretofore considered the nature of the writ of prohibition. In Abbott v. Christopher, 253 Iowa 311, 112 N.W.2d 310 (1961), a writ of prohibition was held to have been properly issued against an election contest court where the chairman refused to disqualify himself. The court, in Abbott v. Christopher, 112 N.W.2d at 311, defined and characterized the writ of prohibition as follows:

'The following is an acceptable definition of writ of prohibition: 'As its name imports, the writ is one which commands the person or tribunal to whom it is directed not to do something which, by the suggestion of the relator, the court is informed he is about to...