Iowa Supreme Court Attorney Disciplinary Board Vs. Attorney Doe No. 639 , 748 N.W.2d 208 ( 2008 )

IN THE SUPREME COURT OF IOWA
No. 28 / 07-1866
Filed April 18, 2008
IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,
Appellant,
vs.
ATTORNEY DOE NO. 639,
Appellee.
On review of a disposition of the Grievance Commission.
An attorney moves to dismiss the Iowa Supreme Court Attorney
Disciplinary Board’s application for permission to review a disposition of
the Grievance Commission of the Supreme Court of Iowa. APPEAL
DISMISSED.
Charles L. Harrington and Elizabeth E. Quinlan, Des Moines, for
appellant.
David L. Brown and Alex Wonio of Hansen, McClintock & Riley,
Des Moines, for appellee.
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WIGGINS, Justice.
Attorney Doe No. 6391 is an Iowa attorney who had an ethics
complaint filed against him with the Iowa Supreme Court Attorney
Disciplinary Board (Board). The Board is responsible for investigating
ethics complaints made against attorneys licensed to practice law in
Iowa. Iowa Ct. R. 34.8(1). After completing its investigation, the Board
has the option to continue the matter, dismiss the ethics complaint,
privately admonish the attorney, publicly reprimand the attorney, or file
a formal complaint with the Grievance Commission of the Supreme Court
of Iowa (Commission). Id. r. 34.11(1)–(5). After completing its
investigation, the Board decided to file a formal complaint against
Attorney Doe with the Commission.
The Commission is a separate entity from the Board. Id. r. 35.1(1).
Our court has given the Commission the task of conducting a hearing on
a formal complaint filed by the Board. Id. r. 35.1(2). The Board has the
obligation to prosecute any complaint it files with the Commission. Id. r.
34.11(5). After conducting a hearing, the Commission may dismiss a
formal complaint, privately admonish the attorney, or file a report with
our court recommending the attorney be reprimanded or the attorney’s
license be suspended or revoked. Id. r. 35.9. In the matter before us,
the Commission found Attorney Doe’s conduct violated various
provisions of the Iowa Code of Professional Conduct and issued Attorney
Doe a private admonition.
When the Commission issues a private admonition, the Board can
ask our court for permission to appeal the Commission’s disposition. Id.
r. 35.11(2). To do so the Board must file an application seeking
1The identity of an attorney who receives a private admonition from the
Commission is to remain confidential unless the supreme court, on review of the
disposition of the Commission, decides to impose discipline. Iowa Ct. R. 35.11(3).
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permission to appeal, and the application must be filed within ten days
after the Commission files its disposition with the clerk of the supreme
court. Id. We “may grant such appeal in a manner similar to the
granting of interlocutory appeals in civil cases under the Iowa Rules of
Appellate Procedure.” Id. If the Board fails to file an application seeking
permission to appeal the disposition of the Commission within ten days
after the Commission files its disposition, the Commission’s
determination is final. Id. r. 35.9.
The Board decided to file an application requesting us to review the
Commission’s decision to issue Attorney Doe a private admonition.
Attorney Doe filed a resistance to the application and a motion to dismiss
the Board’s application alleging the Board was one day late in filing its
application; therefore, this court should not consider the application.
The Board admitted it filed its application one day late due to its
inadvertence, but resisted the motion to dismiss relying on our decisions
in Committee on Professional Ethics & Conduct v. Michelson, 345 N.W.2d
112 (Iowa 1984), Committee on Professional Ethics & Conduct v. Behnke,
276 N.W.2d 838 (Iowa 1979), and Taylor v. Department of Transportation,
260 N.W.2d 521 (Iowa 1977). We granted the Board’s application for
permission to appeal and ordered the parties to brief and submit the
motion to dismiss with the appeal on the merits.
Relying on Michelson, Behnke, and Taylor, the Board contends the
ten-day time limit to file an application for permission to appeal a
disposition of the Commission is not a mandatory deadline and will not
prevent this court from reviewing the Commission’s disposition unless
Attorney Doe can show the delay was prejudicial. Attorney Doe contends
the ten-day deadline is mandatory and the principles of law we applied in
those cases do not apply to a late application filed under rule 35.11(2).
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We have drawn a distinction between those statutes and rules that
are mandatory and jurisdictional and those that are merely directory.
See Taylor, 260 N.W.2d at 522. We have stated:
Mandatory and directory statutes each impose duties. The
difference between them lies in the consequence for failure to
perform the duty . . . . If the prescribed duty is essential to
the main objective of the statute, the statute ordinarily is
mandatory and a violation will invalidate subsequent
proceedings under it. If the duty is not essential to
accomplishing the principal purpose of the statute but is
designed to assure order and promptness in the proceeding,
the statute ordinarily is directory and a violation will not
invalidate subsequent proceedings unless prejudice is
shown.
Id. at 522–23.
“Whether the statute [or rule] is mandatory or directory depends
upon legislative intent. When statutes [or rules] do not resolve the issue
expressly, statutory construction is necessary.” Id. at 522. Therefore, we
look to the purpose of a rule when determining whether it is mandatory
or directory.
In Taylor, the appellant sought a dismissal of a license revocation
proceeding because the department failed to provide a hearing within the
statutory period. Id. We held Iowa Code section 321B.8, which
established the time limit in which a hearing must be set, was directory
because the statute was passed to keep dangerous drivers off the road,
and construing the statute as mandatory would undermine the
legislative objective by providing a technical basis for avoiding license
revocation. Id. at 523. We also held the violation of this directory statute
did not prejudice Taylor because he was able to keep his license for a
longer period of time than he otherwise would have had his hearing been
held during the statutory time frame. Id. at 524.
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We applied the same analysis in Michelson where the Commission
failed to provide an attorney a hearing within thirty days from the date of
service of the complaint as required by rule 118.7, currently rule 35.7.
Michelson, 345 N.W.2d at 117. We held the rule was directory because
the purpose of the time limit contained in the rule is to expedite
disciplinary proceedings in order to protect both the public and the
lawyer concerned. Id. Further, we found Michelson was not prejudiced
by the delay; therefore, the failure of the Commission to comply with the
deadline did not invalidate the proceedings. Id.
A similar approach was applied in Behnke, when the Commission
failed to file its disposition within the time required by rule 118.9,
currently rule 35.9. Behnke, 276 N.W.2d at 841–42. For the same
reasons given in Michelson, we held the rule is directory, the delay did
not prejudice Behnke, and the Commission’s failure to comply with the
deadline did not invalidate the proceedings. Id. at 842.
Our opinions in Michelson, Behnke, and Taylor are distinguishable
from the present case. In all three of these opinions, the matter being
decided by the tribunal was properly before it. Additionally, the statutes
and rules discussed in those opinions did not provide consequences for
the tribunals’ failure to timely carry out their duties. Finally, the
tribunals, not the parties invoking the jurisdiction of the tribunals,
caused the delay in the proceedings.
The Board must file its application for permission to appeal within
ten days from when the Commission files its disposition. Iowa Ct. R.
35.11(2). Here, a party, not the tribunal, caused the delay in
proceedings by failing to meet this deadline. The rule states the
consequence for failing to file an appeal within the required time is that
the Commission’s decision becomes final. Id. r. 35.9. This language
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clearly evidences intent by this court to make the ten-day filing
requirement mandatory, not directory. See Zick v. Haugh, 165 N.W.2d
836, 837 (Iowa 1969) (holding rule pertaining to time for taking an
appeal to supreme court from an order, judgment, or decree of the lower
court is mandatory and jurisdictional).
Once the ten-day period for seeking permission to appeal expired,
the Commission’s private admonition of Attorney Doe became final.
Accordingly, the Board’s untimely application was insufficient to allow
this court to review the Commission’s action. Therefore, we grant
Attorney Doe’s motion to dismiss the Board’s application.
APPEAL DISMISSED.
All justices concur except Larson, J., who takes no part.