State v. District Court in and for Polk County, 2--57627

• Decision Date: 25 June 1975
• Docket Number: No. 2--57627,2--57627
• Citation: 231 N.W.2d 1
• Parties: STATE of Iowa, Plaintiff, v. DISTRICT COURT IN AND FOR POLK COUNTY, Defendant.
• Court: Iowa Supreme Court

Page 1

231 N.W.2d 1

STATE of Iowa, Plaintiff, v. DISTRICT COURT IN AND FOR POLK COUNTY, Defendant.

No. 2--57627.

Supreme Court of Iowa.

June 25, 1975.

Richard C. Turner, Atty. Gen., and Larry M. Blumberg, Asst. Atty. Gen., for plaintiff.

William J. Lillis of Connolly, O'Malley, Lillis & Hansen, Des Moines, for defendant.

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

REYNOLDSON, Justice.

In this certiorari action the State challenges a district court order dismissing the State's 'Application Claiming Contempt for Violation of Injunction' against Julia McGinnis, operator of the 'Golden Age Retirement Home.'

The home, located at 4140 Grand Avenue, Des Moines, Iowa, is occupied by approximately 40 persons. Apparently because of the building structure, Ms. McGinnis has been unable to obtain a health care facility license pursuant to Chapter 135C, The Code.

The State initially brought action for permanent injunction against Ms. McGinnis. Following trial an injunction entered October 26, 1973 enjoining her from 'establishing, operating, managing or otherwise conducting at 4140 Grand Avenue, Des Moines, Iowa without first possessing the license required by Chapter 135C, Code of Iowa 1973, a boarding home as defined in Section 135C.1(2) * * *,' or any other unlicensed health care facility as defined by Chapter 135C.

Section 135C.1(2) defines 'boarding home,' insofar as relevant here, as a place providing for persons 'who by reason of age, illness, disease, or physical or mental infirmity are unable to sufficiently or properly care for themselves, but who are essentially capable of managing their own affairs.' This section defines other health care facilities, mainly distinguished by the degree of care, management, or nursing required. Section 135C.21 provides a criminal penalty for operating a health care facility without a license and also provides such a person may be temporarily or permanently restrained from operating such an unlicensed facility.

The injunction further restrained Ms. McGinnis from holding herself out to other persons as operating a licensed health care facility. A periof of ninety days was

'* * * provided for individuals who were residents * * * and are within the classification of boarding home residents, i.e.,

'persons who by reason of age, illness, disease, or physical or mental infirmity are unable to sufficiently or properly care for themselves,

'to find, or have found for them, and to remove to, suitable accommodations elsewhere * * *.'

Trial court's decree additionally ordered Ms. McGinnis to give 45 day's 'written notice of the granting of the within injunction and of the necessity of securing and moving to accommodations elsewhere * * * to the respective relative, guardian, conservator, attorney, or other party responsible for each such individual who comes within the classification of boarding home resident * * *,' and retained jurisdiction to make any further or additional orders as might be necessary or advisable.

By application filed August 1, 1974, the State sought to have Ms. McGinnis punished for contempt for violating the injunction. See § 665.2(6), The Code; rule 330, Rules of Civil Procedure. The application alleged affected residents were not removed as mandated by the decree of October 26, 1973; notice had not been given to residents as required by the decree; notice to newly affected residents had not been given within a reasonable time; and Ms. McGinnis had allowed new affected residents into the home since the date of the injunction. These allegations were denied. Hearing was had before Honorable John N. Hughes, district court judge, who had entered the injunction decree.

Evidence indicated Ms. McGinnis had permitted one Leo Julich to be admitted to her facility from the Veterans Hospital on January 23, 1974, following the injunction. Trial court refused to consider proffered testimony tending to show Julich's condition brought him within the classification of persons who should be provided for in a licensed boarding home, apparently on the theory Julich's subsequent death prevented Ms. McGinnis from purging any contempt involved.

At the close of its evidence the State unsuccessfully moved to amend its application to assert Ms. McGinnis had held out her home as a licensed facility.

Trial court dismissed the State's application. In ruling the presiding judge interpreted his own injunctive decree that, 'The Court was concerned that these individuals not be summarily ejected from defendant's premises in view of the two fold problem facing most or all of them of first finding other accommodations, and second finding accommodations within their financial means.' Trial court held it was not the intent of the decree to place sole responsibility of removing affected persons from the home on Ms. McGinnis, notices were given pursuant to the decree, and the State had not carried its burden to show her willful failure to obey the decree by merely proving affected persons were still in the home.

The court named 12 residents still in the home who came within the classification of persons requiring health care facility services and 'recommended' the State designate representatives from the Iowa State Department of Health and Iowa State Department of Social Services to assist these individuals in locating available licensed facilities, to investigate financial arrangements, and if necessary assist these persons in applications for financial assistance.

Trial court held the State had not proved by clear and satisfactory proof that Ms. McGinnis willfully admitted into her residence 'new' persons requiring licensed health care facilities.

In this certiorari proceeding the State contends trial court 'abused its discretion' 1) in refusing to admit into evidence and consider the proffered testimony of two witnesses concerning the condition of the 'new' resident, Mr. Julich, 2) in not permitting the State to amend its application to conform to the proof, and 3) in not holding Ms. McGinnis in contempt and in 'placing the burden of compliance with the injunction * * * upon the State.'

I. We preliminarily note the posture of this controversy and our scope of review. The State claims relief by way of certiorari. Its brief (p. 16) indicates it proceeded under the following statute:

'665.11 Revision by certiorari. No appeal lies from an order to Punish for a contempt, but the proceedings may, in proper cases, be taken to a higher court for revision by certiorari.' (Emphasis supplied.)

It is clear § 665.11 proscribes appeal only when a defendant is found in contempt. See Bailey v. Broderick, 212 N.W.2d 395, 398 (Iowa 1973). When the application to punish for contempt is dismissed, a direct appeal is permitted. McDonald v. McDonald, 170 N.W.2d 246, 247 (Iowa 1969); Harkins v. Harkins, 256 Iowa 207, 210--211, 127 N.W.2d 87, 89 (1964); Bixby v. Bixby, 253 Iowa 1172, 1174, 115 N.W.2d 852, 854 (1962). See Annot. 24 A.L.R.3d 650, 681--682, 684, 686. Although rule 352, R.C.P., ostensibly would permit us to proceed as though the proper form of review had been selected, the defect of parties which surfaced in Penland v. Penland, 255 Iowa 308, 312--313, 122 N.W.2d 333, 336 (1963) may raise serious questions of jurisdiction and remedy.

There is Iowa authority indicating a trial court's refusal to find a defendant in contempt may also be reviewed on writ of certiorari. See Bixby v. Bixby, supra, 253 Iowa at 1174, 115 N.W.2d at 854; Barber v. Brennan, 140 Iowa 678, 119 N.W. 142 (1909); Currier v. Mueller, 79 Iowa 316, 44 N.W. 555 (1890); Lindsay v. District Court of Clayton County, 75 Iowa 509, 39 N.W. 817 (1888). Where as here neither party has formulated an issue relating to our scope of review and where the State seeks to shoulder the burden imposed by the form of review it selected, we elect to consider the issues as posed in certiorari. Pertinent is our rationale in Eden Township Sch. Dist. v. Carroll County Bd. of Ed., 181 N.W.2d 158, 166 (Iowa 1970): '(T)his proceeding does not arise from litigation where no appeal is permitted. * * * Since plaintiffs elected to proceed in certiorari * * * they are bound by procedure and limitations of the remedy of certiorari.'

Relief in certiorari is strictly limited to questions of jurisdiction or illegality of trial court's ruling, where (as here) there is no applicable statutory exception to the provisions of rule 308, R.C.P. See Wright v. Denato, 178 N.W.2d 339, 340 (Iowa 1970); Smith v. City of Fort Dodge, 160 N.W.2d 492, 495 (Iowa 1968).

Because contempt is treated as criminal or quasi-criminal in nature, in reviewing a contempt judgment we examine the evidence, not De novo, but to assure ourselves that proof of contempt is clear and satisfactory. Lane v. Oxberger, 224 N.W.2d 245, 247 (Iowa 1974); Sound Storm Ent., Inc. v. Keefe, 209 N.W.2d 560, 565 (Iowa 1973). But this is an exception to our basic certiorari review rule (see State v. Cullison, 227 N.W.2d 121, 126 (Iowa 1975)) that we do not review fact findings of the lower tribunal further than to ascertain if they are sustained by competent and substantial evidence. Rules 334, 344(f) (1), R.C.P.; State v. District Court of Iowa, in and for Linn County, 218 N.W.2d 641, 643 (Iowa 1974).

In this controversy there was no judgment of contempt. Our review is therefore governed by the rule ordinarily applied and last articulated, and is necessarily constrained not only by the burden the State assumes by proceeding in certiorari in this court, but the burden imposed upon it in trial court, to prove Ms. McGinnis' willful disobedience of the injunction decree by clear, satisfactory and convincing evidence. Crary v. Curtis, 199 N.W.2d 319, 322 (Iowa 1972); Foust v. Denato, 175 N.W.2d 403, 404 (Iowa 1970); Orkin Exterminating Co., Inc. (Arwell Div.) v. Burnett, 160 N.W.2d 427, 431 (Iowa 1968).

II. We turn first to the contention trial court 'abused its discretion'...