December 21, 2016
WALMART STORES, INC. and CITY OF DAVENPORT, Petitioners-Appellants,
IOWA CIVIL RIGHTS COMMISSION, Respondent-Appellee.
from the Iowa District Court for Scott County, Nancy S.
appeal from the district court's denial of their petition
for writ of certiorari. AFFIRMED.
A. Guttau-Fox of Baird Holm LLP, Omaha, Nebraska, for
appellant Walmart Stores Inc.
Christopher S. Jackson, Davenport, for appellant City of
Davenport. Thomas J. Miller, Attorney General, and Katie
Fiala, Assistant Attorney General, for appellee.
by Danilson, C.J., and Doyle and McDonald, JJ. Tabor, J.,
takes no part.
Code section 17A.19 (2015) provides "the judicial review
provisions of this chapter shall be the exclusive means by
which a person or party who is aggrieved or adversely
affected by agency action may seek judicial review of such
agency action." Despite the plain language of the
statute, the City of Davenport ("Davenport") and
Wal-Mart Stores, Inc. ("Wal-Mart") filed a petition
for writ of certiorari in the district court seeking judicial
review of an intermediate decision of the Iowa Civil Rights
Commission (ICRC). The challenged decision remanded a pending
case to an administrative law judge for additional
proceedings. The district court dismissed the petition for
writ of certiorari. Davenport and Wal-Mart now appeal.
appellants contend the district court erred in finding
chapter 17A provides the exclusive means to challenge agency
action in this case. Plainly stated, "no exception
exists to section 17A.19's exclusivity for a writ of
certiorari." Tindal v. Norman, 427 N.W.2d 871,
873 (Iowa 1988); see also Iowa Indus. Comm'r v.
Davis, 286 N.W.2d 658, 661 (Iowa 1979); Salsbury
Labs. v. Iowa Dep't of Envtl. Quality, 276 N.W.2d
830, 835 (Iowa 1979). Cases suggesting the contrary concern
themselves with collateral questions and are thus
distinguishable. See, e.g., Denison Mun. Utils.
v. Iowa Workers' Comp. Comm'r, 857 N.W.2d 230,
233-34 (Iowa 2014) (considering challenge to agency
procedure); Maghee v. State, 773 N.W.2d 228, 238-39
(Iowa 2009) (considering whether chapter 17A applied to
postconviction-relief action); Jew v. Univ. of Iowa,
398 N.W.2d 861, 864-65 (Iowa 1987) (considering whether
chapter 17A applied to civil-rights action). This case
squarely presents substantive matters decidedly within the
purview of the ICRC. Cf. Jew, 398 N.W.2d at 865
("In both [Kerr v. Iowa Public Service Co., 274
N.W.2d 283 (Iowa 1979)] and [Dougherty v. State, 323
N.W.2d 249 (Iowa 1982)], the action challenged was the very
decision which the agency's mandate directed it to make.
In the present case, the action challenged (sexual
harassment) has little connection with the mandate of the
University or the Regents."). Davenport and Wal-Mart
have given us "no basis on which to conclude the
'exclusive means' language in section 17A.19 is
mitigated by an exception for . . . certiorari."
Salsbury Labs., 276 N.W.2d at 835. The question was
jurisdictional and properly resolved by motion to dismiss.
we find a petition for writ of certiorari is improper here,
we may treat this case as a proper chapter 17A appeal if the
situation merits. See id. (looking "beyond the
labels of Salsbury's petition" to "effectuate
justice"); Denison Mun. Utils., 857 N.W.2d at
234 (stating lower court "should have treated DMU's
appeal as a writ of certiorari"). A party seeking
judicial review of non-final agency action, as here, must
show that (1) adequate administrative remedies have been
exhausted and (2) review of the final agency action would not
provide an adequate remedy. Because "both requirements
must be satisfied before intermediate judicial review is
permitted, the failure to meet one requirement disposes of
the issue." Richards v. Iowa State Commerce
Comm'n, 270 N.W.2d 616, 620 (Iowa 1978). Clearly,
administrative remedies have not been exhausted here: the
ICRC remanded the case for further proceedings before
Davenport and Wal-Mart appealed. Second, review of the final
agency action would provide an adequate remedy. It would
allow for review of the decision on the merits. This case, no
matter how it is labeled, cannot proceed.
Davenport challenges the process afforded it in two ways.
First, the city argues it was denied procedural due process
because the agency decision was arbitrary and capricious.
This argument was not raised below. We do not decide issues
presented to us on appeal that a party did not present to the
district court. See City of Postville v. Upper
Explorerland Reg'l Planning Comm'n, 834 N.W.2d
1, 8 (Iowa 2013). We decline to consider this claim.
Davenport contends the scheme whereby an agency may appeal an
adverse proposed decision to itself is unfair. This would
appear to be a constitutional claim based on due process, so
our review is de novo. See State v. Shanahan, 712
N.W.2d 121, 131 (Iowa 2006). We disagree with Davenport. The
challenged procedure is provided for by statute. See
Iowa Code § 17A.15(3) ("When the presiding officer
makes a proposed decision, that decision then becomes the
final decision of the agency without further proceedings
unless there is an appeal to, or review on motion of, the
agency within the time provided by rule."). The ICRC has
adopted the process through administrative rulemaking.
See Iowa Admin. Code r. 161-4.22 ("After a
review of the transcript, the evidence, and the briefs, the
presiding officer shall set forth . . . a proposed decision
and order. The proposed decision becomes the final decision
of the commission without further proceedings unless there is
an appeal to, or review on motion of, the [ICRC] within the
time provided in rule 4.23."), 4.23 ("Any adversely
affected party may appeal a proposed decision to the
commission within thirty days after issuance of the proposed
decision."). Our supreme court has implicitly approved
the scheme. See, e.g., Chauffeurs, Teamsters
& Helpers, Local Union No. 238 v. Iowa Civil Rights
Comm'n, 394 N.W.2d 375, 377 (Iowa 1986) (noting
party appealed hearing officer's decision to ICRC). We
decline to discard this well-established procedure on this