Webster County Bd. of Sup'rs v. Flattery, 60825

CourtUnited States State Supreme Court of Iowa
Citation268 N.W.2d 869
Docket NumberNo. 60825,60825
PartiesWEBSTER COUNTY BOARD OF SUPERVISORS, Plaintiff, v. Edward J. FLATTERY, Chief Judge, Second Judicial District, State of Iowa, Defendant.
Decision Date26 July 1978

Page 869

268 N.W.2d 869
Edward J. FLATTERY, Chief Judge, Second Judicial District, State of Iowa, Defendant.
No. 60825.
Supreme Court of Iowa.
July 26, 1978.

Page 870

Herbert R. Bennett, of McCarville, Bennett, Beisser, Ferguson & Wilke, Fort Dodge, for plaintiff.

William J. Thatcher, County Atty., and David J. Lawler, Fort Dodge, for defendant.

Considered en banc. *


This proceeding requires us to explore the reach of inherent powers of the judicial

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department as a separate and independent branch of government.

Plaintiff Webster county board of supervisors filed petition for writ of certiorari asserting defendant, as second judicial district chief judge, acted illegally in issuing certain orders for the continued employment of an investigator attached to the county attorney's office. We granted the petition, stayed the effect of defendant's orders pending this decision, and now annul these orders for reasons hereafter stated.

Because there was no hearing below, we have only the facts disclosed by those allegations of the petition which defendant's answer admits.

December 16, 1975, plaintiff board approved the Webster county attorney's application to hire Frank Gargano as special investigator for $10,750, commencing January 1, 1976, and continuing to June 26, 1977. This employment was under a federal grant administered by the Iowa Crime Commission.

In February, 1977, Webster county attorney submitted to plaintiff his annual budget for the fiscal year beginning July 1, 1977, which included the continued employment of Gargano at a $12,000 annual salary. Plaintiff struck the proposed expenditure for the special investigator. An admitted allegation of its petition asserted it later "met with both the County Attorney and Frank Gargano and explained its reason for the action taken in that regard."

About June 15, 1977, plaintiff received what it terms a "letter-order" from defendant, handwritten and dated June 14, 1977:

"Dear Friends:

"As everyone knows our criminal system in Webster Co. is overloaded. We must try to reduce this overload by setting serious priorities.

"We definitely need to have the continued services of our investigator Frank Gargano.

"I therefore make an order employing Frank for another year at 11, 000/00 per year.

With every good wish,

Ed Flattery C. J."

June 15, 1977, the following order executed by defendant was filed:

"UPON THE APPLICATION of William J. Thatcher, Webster County Attorney, the Court orders the Webster County Board of Supervisors to employ Frank Gargano as an investigator to aid the Webster County Magistrate Court and to investigate cases for the Webster County Attorney.

"IT IS FURTHER ORDERED that Mr. Gargano's salary shall be set at eleven thousand dollars ($11,000) per year, which shall be paid out of the Webster County Court Fund.

"IT IS FURTHER ORDERED that the effective date for this Order and for the employment of Mr. Gargano shall be June 26, 1977."

June 24, 1977, defendant executed and filed an "Amendment to Order" which recited:

"Whereas, the Webster County Board of Supervisors has refused to rehire Frank Gargano as an investigator in the office of the Webster County Attorney, and,

"Whereas, the undersigned deems the position necessary to help unclog the Webster County Court Docket and to speed justice, and,

"Whereas, the undersigned, as Chief Judge of the Second Judicial District of Iowa, by virtue of superintending powers vested in me over the counties in this District, and the prompt dispatch of Judicial business, do hereby enter the following order:


"1. Effective July 1, 1977, Frank Gargano is employed as an investigator for Webster County Attorney William Thatcher, at a salary of $11,000 per year, payable from the Webster County Court Fund.

"2. The Clerk of this Court is directed to certify a copy of this order to the Webster County Auditor."

Page 872

Plaintiff board asserts defendant had no jurisdiction over it or the subject matter of the controversy. It contends defendant's orders were illegal because they violated the concept of separation of powers between the legislative and judicial branches of government and exceeded the inherent powers of the court.

Defendant's brief concedes plaintiff board had statutory power to fix compensation of all county officers whose salary is not otherwise provided by law, § 332.3(10), The Code, 1977; to approve hiring of assistants for county officers including the county attorney, § 341.1; and to control the county budget, § 344.10. But defense counsel contends defendant's orders were legal by virtue of his inherent power coupled with rule 377, Rules of Civil Procedure (chief judges "shall exercise continuing administrative supervision within their respective districts over all district courts, judges, officials, and employees thereof for the purposes stated in rule 373") and rule 373, R.C.P. ("The purpose of all rules for court administration shall be to provide for the administration of justice in an orderly, efficient and effective manner, in accordance with the highest standards of justice and judicial service.").

I. Scope of review.

This controversy arrives here pursuant to a writ of certiorari issued upon plaintiff's petition filed in this court. Our review rules relating to certiorari are summarized in State v. Cullison, 227 N.W.2d 121, 126-127 (Iowa 1975). The action is by ordinary proceedings, which means it is a law action.

While ordinarily our review is not De novo, there are exceptions. Id. For example, when violation of basic constitutional safeguards is raised, an appellate court must make its own evaluation of the totality of circumstances under which the ruling on those constitutional rights was made. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854, 862 (1973); Long v. Brewer, 253 N.W.2d 549, 552 (Iowa 1977); State v. Boren, 224 N.W.2d 14, 15 (Iowa 1974), cert. den., 422 U.S. 1008, 95 S.Ct. 2630, 45 L.Ed.2d 671 (1975); State v. Cooper, 217 N.W.2d 589, 595 (Iowa 1974); State v. Niccum, 190 N.W.2d 815, 824 (Iowa 1971).

In the case before us, the only facts are those admitted in the pleadings, as we have indicated. We consider recitals in the several orders not to be factual, but conclusory in nature. The basic issue could be disposed of as a matter of law. However, we believe our rule for review of these controversies should rest on a broader base.

Where, as here, a constitutional issue relating to inherent power exercised by a lower tribunal is presented, this court shall make its own evaluation, based on the totality of circumstances, to determine whether that power has been exercised appropriately. This principle shall apply whether the matter comes before us in certiorari, as in this instance, or upon petition for review grounded on our supervisory jurisdiction.

II. Separation of powers.

This controversy proceeds against the backdrop of the following provisions of the Iowa Constitution:

Art. III, § 1:

"The powers of the government of Iowa shall be divided into three separate departments the Legislative, the Executive, and the Judicial: and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining to either of the others, except in cases hereinafter expressly directed or permitted."

Art. V, § 1:

"The Judicial power shall be vested in a Supreme Court, District Courts, and such others Courts, inferior to the Supreme Court, as the General Assembly may, from time to time, establish."

Art. V, § 4, as amended:

"The Supreme Court * * * shall have power to issue all writs and process necessary to secure justice to parties, and shall exercise a supervisory and administrative

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control over all inferior Judicial tribunals throughout the State."

Art. V, § 6:

"The District Court shall be a court of law and equity, which shall be distinct and separate jurisdictions, and have jurisdiction in civil and criminal matters arising in their respective districts, in such manner as shall be prescribed by law."

Art. III, § 1, supra, incorporates the historic concept of separation of powers to safeguard against tyranny, developed in early philosophical and political writings. See Matter of Salary of Juvenile Director, 87 Wash.2d 232, 237-243, 552 P.2d 163, 167-170 (1976); I Baron De Montesquieu, The Spirit of Laws 188 (7th ed. 1778); Ervin, Separation of Powers: Judicial Independence, 35 Law & Contemp.Prob. 108, 109-110 (1970).

The authors of the United States Constitution, carefully dividing governmental powers, were familiar with the struggle for an independent judiciary in England. See Zylstra v. Piva, 85 Wash.2d 743, 752-754, 539 P.2d 823, 828-830 (1975) (Utter, J., concurring). We find in a Federalist paper usually attributed to Madison the following caution:

"It is equally evident that the members of each department (of government) should be as little dependent as possible on those of the others for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal."

The Federalist, 344 (Ford ed. 1898)

Of course, at their apogee the orbits of power sometimes fade and overlap:

"In the nature of things, there is no high wall or definite line of demarkation between the different governmental departments. Necessarily they gradually merge and blend into each other. Administrative officials must on numerous occasions in practice (subject to review by the courts) act judicially. Occasionally administrative functions to some degree must be exercised by courts. But, in the main, the three classes of governmental powers are separate and distinct. (citations)"

In Re Appeal of Beasley Bros., 206 Iowa 229, 233, 220 N.W. 306, 308 (1928)

See State v. Van Trump, 224 Iowa...

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