Salsbury Laboratories v. Iowa Dept. of Environmental Quality

• Citation: 276 N.W.2d 830
• Decision Date: 21 March 1979
• Docket Number: No. 61605,61605
• Parties: SALSBURY LABORATORIES, an Iowa Corporation, Appellant, v. IOWA DEPARTMENT OF ENVIRONMENTAL QUALITY, Appellee.
• Court: United States State Supreme Court of Iowa

Page 830

276 N.W.2d 830

13 ERC 1037

SALSBURY LABORATORIES, an Iowa Corporation, Appellant, v. IOWA DEPARTMENT OF ENVIRONMENTAL QUALITY, Appellee.

No. 61605.

Supreme Court of Iowa.

March 21, 1979.

Rehearing Denied April 19, 1979.

Gary S. Gill, Robert A. Hutchison, and William D. Bartine II of Swift, Brown, Winick & Graves, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Clifford E. Peterson, James C. Davis, and Timothy D. Benton, Asst. Attys. Gen., for appellee.

Considered by REYNOLDSON, C. J., and LeGRAND, UHLENHOPP, HARRIS and ALLBEE, JJ.

REYNOLDSON, Chief Justice.

District court sustained a motion to dismiss Salsbury Laboratories' action for certiorari, declaratory and injunctive relief from an order promulgated by the Iowa Department of Environmental Quality (DEQ). Salsbury appeals and we affirm.

December 13, 1977, Salsbury filed a petition for declaratory and injunctive relief from an anticipated executive order of DEQ. Salsbury alleged the order "to be issued on Wednesday, December 14, 1977, will prohibit the business operations of . . . (Salsbury's) plant located in Charles City." District court issued an ex parte temporary injunction prohibiting issuance of any order concerning Salsbury. Hearing was set for December 21.

December 14 DEQ petitioned this court for a writ of certiorari to district court and applied for a stay of the temporary injunction. DEQ asserted the order had been issued on December 14 and sent to Salsbury before notice of the temporary injunction was served. December 15 a three-justice panel stayed the ex parte injunction, denied the certiorari petition and indicated the court would be willing to consider the issues raised by DEQ after the December 21 hearing. Salsbury received formal notice of Executive Order 77-DQ-01 on December 16.

Executive Order 77-DQ-01, in general terms, prohibited Salsbury from depositing waste materials at its existing disposal site near its Charles City plant and required Salsbury to submit within thirty days a commitment to remove all waste materials from the site and a plan for doing so. The timetable for the enumerated tasks to be performed by Salsbury, including creation of a new disposal site and construction of waste water treatment facilities, extended into 1980.

Before the December 21 temporary injunction hearing commenced, DEQ filed a motion to dismiss. Salsbury resisted this motion and filed a three-count amendment to its petition, praying for declaratory, certiorari and injunctive relief. The new counts alleged the order had been issued and served.

January 12, 1978, E. Robert Baumann, professor of engineering at Iowa State University, requested through his own counsel a ruling on his duty to testify pursuant to subpoena issued at Salsbury's request. Baumann, on annual retainer as a consultant to Salsbury since 1967, feared prosecution for testifying against the State's interest. §§ 68B.6, .8, The Code 1977.

District court declined to lay down any guidelines for Baumann other than that the subpoena "requires witnesses to testify unless constitutional, statutory, or other grounds may exist with respect to the qualification of a witness for his testimony to be received in evidence."

On January 19, without concluding the temporary injunction hearing, district court sustained DEQ's dismissal motion and ordered Salsbury's action dismissed. Salsbury timely appealed and presents two issues for review: (1) Should Salsbury's action have been dismissed for failure to exhaust administrative remedies when it alleged DEQ's enabling statute was facially unconstitutional, and (2) did trial court err in not ruling Baumann could testify without fear of prosecution?

I. This appeal requires us to explore, as a matter of first impression, certain aspects of judicial review of agency action under the provisions of chapter 17A, The Code.

In Richards v. Iowa State Commerce Commission, 270 N.W.2d 616 (Iowa 1978), we said provisions in section 17A.19 "constitute the exclusive means of judicial review of agency action." 270 N.W.2d at 619. We also held:

(A) party seeking judicial review of intermediate agency action under § 17A.19(1) must show . . . (1) adequate administrative remedies have been exhausted And (2) review of the final agency action would not provide an adequate remedy.

Id. at 619-20 (emphasis in original).

The parties agree DEQ's order constitutes agency action as defined in section 17A.2(9). See Kerr v. Iowa Public Service Co., 274 N.W.2d 283, 286 & n.1 (Iowa 1979); Richards, 270 N.W.2d at 619. However, once the order was issued Salsbury did not petition for judicial review pursuant to section 17A.19. It now contends certiorari, declaratory judgment and injunction actions are exceptions to our "exclusive means" pronouncement. Nor did Salsbury exhaust administrative remedies before commencing this litigation. It contends such failure is excused when the agency's enabling statute is attacked as facially unconstitutional.

We consider these issues under the principles invoked by DEQ's dismissal motion. A motion to dismiss waives any ambiguity or uncertainty in the petition. For purposes of testing the petition's sufficiency, it is construed in the light most favorable to the pleader and its allegations are accepted as true. The motion cannot aid itself with factual allegations not part of the petition. Nor can movant rely on facts supplied by an evidentiary hearing. See Berger v. General United Group, Inc., 268 N.W.2d 630, 634 (Iowa 1978); Weber v. Madison, 251 N.W.2d 523, 525 (Iowa 1977).

Over 200 pages of the 346-page appendix are devoted to testimony and evidence adduced at the December 21 hearing, which was expressly restricted to the temporary injunction issue. Our review, except for matters we may judicially note, is limited to Salsbury's amended petition.

A. Exclusivity of section 17A.19. Richards was not the first time we specifically held section 17A.19 to contain, just as it says it does, the exclusive means of judicial review of agency action. See, e. g., Iowa Department of Revenue v. Iowa State Board of Tax Review, 267 N.W.2d 675, 677 (Iowa 1978); City of Davenport v. PERB, 264 N.W.2d 307, 311 (Iowa 1978).

In Warren County v. Judges of the Fifth Judicial District, 243 N.W.2d 894 (Iowa 1976), we made a clear distinction between judicial officers and administrative officers for purposes of reviewing their actions. Actions of the former "may be reviewed in a number of ways, including . . . certiorari." As to administrative officers, however, "(a) general right of review exists . . . under the administrative procedure act." 243 N.W.2d at 900. In Wright v. State Board of Engineering Examiners, 250 N.W.2d 412 (Iowa 1977), the court found it necessary to note the case was pre-Iowa Administrative Procedure Act after holding alleged illegality in the board's adjudication of a practitioner's misconduct "must be tested against principles governing ordinary certiorari proceedings." 250 N.W.2d at 416.

In Curtis v. Board of Supervisors, 270 N.W.2d 447 (Iowa 1978), county residents used certiorari to challenge board's selection of location for freeway overpass. We affirmed an order dismissing the certiorari action because the power to locate the overpass lay with the department of transportation, whose decision was subject to judicial review under section 17A.19. 270 N.W.2d at 450.

More recently in Kerr v. Iowa Public Service Co., 274 N.W.2d at 286, plaintiffs unsuccessfully objected to the utility's petition for a franchise with eminent domain rights. Instead of seeking judicial review of the commerce commission's decision to grant the franchise, plaintiffs waited several months and then sought an injunction just before the condemnation proceedings started. We held that because the contentions presented by the injunction action were resolved by the commission, plaintiffs were actually seeking review of agency action. Under those circumstances,

the exclusivity of the IAPA judicial review provisions cannot be disregarded. Judicial review of the administrative proceedings is a right conferred by statute.

. . . (W)here a right of judicial review is statutory, the procedure prescribed by the statute must be followed.

274 N.W.2d at 287 (citations omitted). We also held a statute, passed more recently than chapter 17A, which purportedly authorized injunctive relief was "ineffective to override the IAPA" without express provision to that effect in the newer statute. Id. at 287-88.

In numerous other cases the parties and this court have routinely applied section 17A.19. See, e. g., Cedar Valley Leasing, Inc. v. Iowa Department of Revenue, 274 N.W.2d 357 (Iowa 1979); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 (Iowa 1979); Miller v. Iowa Real Estate Commission, 274 N.W.2d 288 (Iowa 1979); Churchill Truck Lines, Inc. v. Transportation Regulation Board, 274 N.W.2d 295 (Iowa 1979). In the two decisions which appear to fall outside the pattern the agency did not raise the failure to proceed pursuant to section 17A.19 or otherwise question the form of action pursued. Hawkins v. Preisser, 264 N.W.2d 726 (Iowa 1978); Board of Supervisors v. Department of Revenue, 263 N.W.2d 227 (Iowa 1978).

In none of these cases, however, have we specifically held that section 17A.19 precludes judicial review by common-law writs such as certiorari, declaratory judgment, and injunction. Salsbury relies on Iowa R.Civ.P. 308 and 261, which provide that the existence of other remedies does not preclude relief through certiorari and declaratory judgment respectively. Of course, if the legislature intended section 17A.19 to be truly exclusive, relief through such common-law writs is precluded. See Herbst v. Treinen, 249 Iowa 695, 701, 88 N.W.2d 820, 824 (Iowa 1958).

Salsbury also relies on the sentence immediately following the "exclusive means" language in section 17A.19:

However, nothing in this chapter shall abridge or deny to any person or party...