Nicole Bribriesco-Ledger v. Frank J. Klipsch, Major, and The City of Davenport, Iowa ( 2021 )

IN THE SUPREME COURT OF IOWA
No. 19–1397
Submitted Tuesday, December 15, 2020—Filed April 9, 2021
NICOLE BRIBRIESCO-LEDGER,
Appellee,
vs.
FRANK J. KLIPSCH, Mayor, and the CITY OF DAVENPORT, IOWA,
Appellants.
Appeal from the Iowa District Court for Scott County, Thomas G.
Reidel, Judge.
The defendants appeal the district court’s denial of summary
judgment that held Davenport’s mayor was required to show cause to
remove an appointee from the Davenport Civil Rights Commission.
REVERSED AND REMANDED WITH DIRECTIONS.
McDermott, J., delivered the opinion of the court, in which
Christensen, C.J., and Mansfield, McDonald, and Oxley, JJ., joined.
Appel, J., filed a dissenting opinion. Waterman, J., took no part in the
consideration or decision of the case.
Richard A. Davidson and Brett R. Marshall (argued) of Lane &
Waterman LLP, Davenport, for appellants.
Michael J. Meloy (argued), Bettendorf, for appellee.
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McDERMOTT, Justice.
This appeal requires us to answer whether Davenport’s mayor may
remove an appointee from the Davenport Civil Rights Commission without
cause. Mayor Frank Klipsch issued an order removing Commissioner
Nicole Bribriesco-Ledger from the commission before her term had expired.
Bribriesco-Ledger sued, claiming that without a showing of cause the
mayor had no authority to remove her. Klipsch and the City of Davenport
filed a motion for summary judgment contending that the law imposed no
obligation to show cause for the removal. The district court denied the
motion, and Klipsch and the City filed an application for interlocutory
review, which we granted.
The Iowa Civil Rights Act imposes certain requirements on cities. At
issue in this case is Iowa Code section 216.19(2) (2019), which provides:
A city with a population of twenty-nine thousand, or
greater, shall maintain an independent local civil rights
agency or commission consistent with commission rules
adopted pursuant to chapter 17A. An agency or commission
for which a staff is provided shall have control over such staff.
A city required to maintain a local civil rights agency or
commission shall structure and adequately fund the agency
or commission in order to effect cooperative undertakings with
the Iowa civil rights commission and to aid in effectuating the
purposes of this chapter.
Davenport’s population exceeds the statute’s threshold and, in
compliance with the associated requirement, the City of Davenport
maintains the Davenport Civil Rights Commission. The Davenport
Municipal Code requires the mayor to appoint the members of the
commission with confirmation by the city council. See Davenport, Iowa
Municipal Code § 2.58.040 (2019). The term of appointment is two years
unless the appointment fills a vacancy for an unexpired term. Id.
Klipsch appointed Bribriesco-Ledger to fill a regular two-year term
on the Davenport Civil Rights Commission to begin December 1, 2017.
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But on April 15, 2019 (and thus before the term expired), Klipsch sent a
letter to Bribriesco-Ledger and three other commissioners removing each
of them from the commission “[e]ffective immediately.” The letter included
several pages stating “the reasons” for the action. Four new
commissioners were appointed on April 24. Bribriesco-Ledger contested
the removal, filing a petition for writ of certiorari and declaratory judgment,
and seeking a money judgment for attorney fees and costs, against Klipsch
and the City.
Neither the Iowa Civil Rights Act nor the Davenport Municipal Code
addresses removal procedures for appointees to the commission. But
procedures for “removal of appointees” from city offices are set forth in
Iowa Code section 372.15, which states:
Except as otherwise provided by state or city law, all
persons appointed to city office may be removed by the officer
or body making the appointment, but every such removal
shall be by written order. The order shall give the reasons, be
filed in the office of the city clerk, and a copy shall be sent by
certified mail to the person removed who, upon request filed
with the clerk within thirty days of the date of mailing the
copy, shall be granted a public hearing before the council on
all issues connected with the removal. The hearing shall be
held within thirty days of the date the request is filed, unless
the person removed requests a later date.
Removal from office under section 372.15 doesn’t require that the removal
be for cause. Waddell v. Brooke, 684 N.W.2d 185, 190 (Iowa 2004);
Bennett v. City of Redfield, 446 N.W.2d 467, 473 (Iowa 1989); Scott v. City
of Waterloo, 190 Iowa 467, 469, 180 N.W. 156, 157 (Iowa 1920) (holding
that an earlier iteration of the statute “does not require, as a condition
precedent, the removal by the mayor of one appointed by him to office that
he charge and prove misbehavior”).
In its summary judgment ruling, the district court held that section
216.19(2) preempts (as an exception “otherwise provided by state or city
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law”) the broad removal power granted in section 372.15. Keying in on the
word independent in the phrase “independent local civil rights agency or
commission,” the district court applied a definition for independent from
Black’s Law Dictionary meaning “[n]ot subject to the control or influence
of another.” (Alteration in original.) The district court also cited the
Black’s Law Dictionary definition for independent agency as “[a] federal
agency, commission, or board that is not under the direction of the
executive, such as the Federal Trade Commission or the National Labor
Relations Board.”
The district court cited several federal cases in finding that dismissal
for cause is a fundamental feature of an independent agency. Finding
nothing in the Iowa Civil Rights Act suggesting that our legislature
intended to deviate from this feature of agency independence, the district
court held that the phrase “independent local civil rights agency or
commission” required a showing of cause to remove Bribriesco-Ledger and
denied the motion.
In this interlocutory appeal, we review to determine whether the
district court made an error of law in its ruling. Iowa R. App. P. 6.907;
Nelson v. Lindaman, 867 N.W.2d 1, 6 (Iowa 2015). No party has raised
mootness as a ground to prevent our consideration of this appeal but, as
always, “an appellate court has responsibility sua sponte to police its own
jurisdiction.” Crowell v. State Pub. Def., 845 N.W.2d 676, 681 (Iowa 2014).
Bribriesco-Ledger’s two-year term would have expired in November 2019,
arguably making a ruling in her favor now without force or effect. See
Homan v. Branstad, 864 N.W.2d 321, 328 (Iowa 2015); see also Young v.
Olsen, 115 N.W. 1020, 1020 (Iowa Apr. 11, 1908) (per curiam)
(unpublished table decision) (appeal mooted in opponent’s election
challenge when the term of office in controversy expired). But we choose
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to decide this case on the merits under the “public-importance” exception
to our mootness rule. Homan, 864 N.W.2d at 330 (describing the factors
we consider to determine whether we should exercise our discretion to
decide a moot action). We believe this is an issue of sufficient public
import, and because the length of time remaining on a removed
commissioner’s term might often be relatively short, this case presents in
particular a situation likely to “recur yet evade appellate review,”
warranting exercise of the exception to our general rule against deciding
moot cases. Maghee v. State, 773 N.W.2d 228, 234 (Iowa 2009) (quoting
State v. Hernandez-Lopez, 639 N.W.2d 226, 234 (Iowa 2002)).
We haven’t previously interpreted the meaning of the phrase
“independent local civil rights agency or commission” in section 216.19(2).
Consistent with the district court’s ruling, Bribriesco-Ledger argues that
the word “independent,” as a descriptor of agency or commission, connotes
a legal term of art in public law that refers to an agency or commission
whose core feature is that executive officials may not remove its heads
from office except for cause. See Adrian Vermeule, Conventions of Agency
Independence, 113 Colum. L. Rev. 1163, 1168–69 (2013). She cites, for
example, to Humphrey’s Executor v. United States, in which the Federal
Trade Commission was described as independent because its enacting
statute, 15 U.S.C. § 41, permitted removal of Federal Trade
Commissioners only for “inefficiency, neglect of duty, or malfeasance in
office.” 295 U.S. 602, 619, 629, 55 S. Ct. 869, 870, 874 (1935) (quoting
15 U.S.C. § 41). This type of “cause” requirement, Bribriesco-Ledger
argues, demonstrates that the legislature intended the adjective
“independent” in section 216.19(2) to require removal of local civil rights
commissioners only for cause.
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But Bribriesco-Ledger’s argument requires us to work backward,
flipping the premise and conclusion. We’re not asked to describe an
agency as independent because its leaders may be removed only for cause;
we’re asked to find that an agency’s leaders may be removed only for cause
because the agency is described as independent. Reduced to a logical
statement, we have “If A, then B.” Bribriesco-Ledger asks us to interpret
the statute with its converse: “If B, then A.”
But her proposed reading fails through an even simpler analysis: the
straightforward textual interpretation of the statute. In interpreting a law,
the words of the text are of paramount importance. Doe v. State, 943
N.W.2d 608, 610 (Iowa 2020); Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 33 (2012) [hereinafter Scalia &
Garner, Reading Law]. Words bear their ordinary meanings unless the
context indicates that a technical meaning applies. Seavert v. Cooper, 187
Iowa 1109, 1113, 175 N.W. 19, 21 (1919); Scalia & Garner, Reading Law,
at 73. Bribriesco-Ledger concedes that in no other place in the Iowa Code
has the legislature loaded the word “independent” to mean “permitting
removal from office only for cause.” On the contrary, when the legislature
wishes to require removal of commissioners from office only for cause, it
explicitly says so. See, e.g., Iowa Code § 13B.8 (local public defender and
others removable “for cause” by state public defender); id. § 341A.12
(classified civil service employees subject to removal “for cause” by the
county sheriff); id. § 414.8 (local board of adjustment members removable
“for cause” by city councils); id. § 602.2101 (judicial branch employees
removable “for cause” by the supreme court). And most importantly here,
we need look no further for the legislature’s use of specific removal-for-
cause language than chapter 216 itself. Section 216.3(2) addresses the
power to remove commissioners from the state-level Iowa Civil Rights
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Commission, and states: “Any commissioner may be removed from office
by the governor for cause.” Iowa Code § 216.3(2) (emphasis added).
We construe the text of a statute as a whole. Doe, 943 N.W.2d at
610; Scalia & Garner, Reading Law, at 167. Words and phrases are
presumed to bear the same meaning throughout a text. State v.
Richardson, 890 N.W.2d 609, 619 (Iowa 2017); Scalia & Garner, Reading
Law, at 170. A material variation in terms suggests a variation in
meaning. Id. Applying these principles of interpretation, we see a material
variation between sections 216.3(2) (“for cause”) and 216.19(2)
(“independent”). If the legislature meant the same thing, we expect it
would have said the same thing. The variation in terms suggests a
variation in meaning, and thus “independent” as used in section 216.19(2)
can’t be read to mean “permitting removal from office only for cause.”
There’s no definitive list of features of so-called independent
agencies—indeed, there’s not even a definitive list of agencies that fall
within the category of “independent agencies”—from which we could
unpack all the features that Bribriesco-Ledger might suggest the word
independent carries with it. See Kirti Datla & Richard L. Revesz,
Deconstructing Independent Agencies (and Executive Agencies), 98 Cornell
L. Rev. 769, 785 (2013). But other language in section 216.19(2) seems to
undercut Bribriesco-Ledger’s interpretation. In the sentence immediately
following the requirement to create the “independent local civil rights
agency or commission,” the statute states: “An agency or commission for
which a staff is provided shall have control over such staff.” Iowa Code
§ 216.19(2). If the word “independent” actually carried the considerable
load that Bribriesco-Ledger contends it does—with all its built-in
components of autonomy from outside interference that come from
invocation of that word alone—there presumably would be no need to
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specify that the agency is to have control of its own staff. We interpret
every word and every provision of a statute to give it effect, if possible.
Maguire v. Fulton, 179 N.W.2d 508, 510 (Iowa 1970); Scalia & Garner,
Reading Law, at 174. Bribriesco-Ledger’s proposed interpretation clashes
with this interpretative principle, as it would tend to make superfluous the
second sentence.
But if “independent” doesn’t mean or embrace the concept of
“removal from office only for cause,” then what does it mean? It can’t
simply mean “local,” as that word is already directly stated (“independent
local civil rights agency or commission”) and would render the word with
no effect. See id. The answer, we believe, is found in the second and third
definitions of independent in Black’s Law Dictionary: “Not associated with
another (often larger) entity ,” and “Not
dependent or contingent on something else .”
Independent, Black’s Law Dictionary, at 919–20 (11th ed. 2019). Applying
these closely-connected definitions to section 216.19 gives us a reading
such that the local-level civil rights commission is not just local, but not
associated with, and not dependent or contingent on, other city
departments or the state-level civil rights commission. Such an
interpretation seems to us the best, fairest reading of the statute in its full
context. Unlike Bribriesco-Ledger’s proffered interpretation, such a
reading comports with the second sentence of the subsection quoted
above, and also with the third sentence, which requires the City to
“structure and adequately fund the agency or commission,” while allowing
the local commission to engage in “cooperative undertakings” with the
state-level commission to effectuate the purposes of the Iowa Civil Rights
Act.
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This interpretation also aligns with the definition of “independent
agency” in Iowa Code section 7E.4. That statute provides definitions for
executive branch organizations and defines an independent agency as “an
administrative unit which, because of its unique operations, does not fit
into the general pattern of operating departments.” Iowa Code § 7E.4(9).
The legislature added this definition of “independent agency” in section
7E.4 in 1986; it added the “independent local civil rights agency or
commission” language to section 216.19 not long after, in 1990. Applying
section 7E.4’s definition of an independent agency as not part of the
general pattern of operating departments of local government (police, fire,
parks and recreation departments, etc.) aligns with the interpretation of
“independent” we’ve articulated here. The definition in section 7E.4
includes nothing to suggest, let alone mandate, a for-cause removal
requirement.
Likewise, section 216.19 requires the City to maintain the
independent local civil rights agency or commission “consistent with
commission rules adopted pursuant to chapter 17A.” Id. § 216.19(2). The
Iowa Civil Rights Commission has adopted almost 100 pages of
administrative rules. See generally Iowa Admin. Code Civil Rights
Commission [161] (2020). No rule limits the grounds for termination of a
local civil rights commissioner.
The suggestion that permitting terminations without cause puts too
much power in the hands of a single political official such as a mayor fails
to consider that, under the Iowa Constitution’s home rule amendments,
cities may select among eight different forms of city government. Iowa
Const. art. III, §§ 38A, 39A; Iowa Code § 372.1. A mayor–council structure
is one form, but cities may also choose forms that disperse power among
many more people, such as a commission structure, a council–manager-
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at-large structure, a council–manager–ward structure, and so on. See
Iowa Code § 372.1. To suggest we must interpret the statute to require
for-cause removal because it cloaks one official with too much power over
local civil rights commissions ignores that removal decisions might in fact
be spread among a disparate (and discordant) body of local government
officials. See id.An appointing power comes with removal authority unless the law
otherwise provides. LaPeters v. City of Cedar Rapids, 263 N.W.2d 734, 736
(Iowa 1978). Section 216.19(2) doesn’t otherwise provide, and thus doesn’t
preempt the removal power the legislature granted to the mayor in section
372.15. We will not imply for-cause removal protections for independent
local civil rights commissions where the legislature has crafted the law as
it has.
Because the law imposed no obligation on Klipsch to show cause for
Bribriesco-Ledger’s removal from the commission, the district court
erroneously denied the defendant’s motion for summary judgment on this
basis. We thus reverse the district court’s order denying the motion for
summary judgment and remand the case for further proceedings
consistent with this ruling.
REVERSED AND REMANDED WITH DIRECTIONS.
Christensen, C.J., and Mansfield, McDonald, and Oxley, JJ., join
this opinion. Appel, J., files a dissenting opinion. Waterman, J., takes no
part.
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#19–1397, Bribriesco-Ledger v. Klipsch
APPEL, Justice (dissenting).
I respectfully dissent. The majority is untethered from the history
of the development of independent agencies and the historic caselaw
recognizing the need to protect decision-makers in independent agencies
through protection from termination without cause. The bottom line is
that history, caselaw, and administrative law authorities converge to
demonstrate what one leading scholar has proclaimed: the term
“independence” is a term of art in administrative law and signifies an
agency where key decision-makers are subject to termination only for
cause. See Adrian Vermeule, Conventions of Agency Independence, 113
Colum. L. Rev. 1163, 1168–69 (2013) [hereinafter Vermeule]. Yet the
majority endorses the intervention of the Mayor of Davenport to fire
commissioners without cause prior to the expiration of their terms to
prevent the “independent” commission from considering taking an action
that is specifically authorized by the Davenport Civil Rights Ordinance,
namely, bringing an action to enforce the Davenport Ordinance against
the City of Davenport. It is undisputed that the case involves the
attempted firing of commissioners by the Mayor of Davenport in order to
head off a potential enforcement action by the commission against the
City.
In addition, this case, when combined with our other cases, reflects
a disturbing trend to undercut the power of local commissions under the
Iowa Civil Rights Act. In Petro v. Palmer College of Chiropractic, this court
held that local agencies did not have the power to issue right to sue letters,
945 N.W.2d 763, 769–79 (Iowa 2020), thus leaving a complainant “high
and dry” if the agency, for whatever reason, declined to act, id. at 792
(Appel, J., concurring in part and dissenting in part). By preventing
12
complainants from obtaining a right to sue letter from local commissions,
this court dramatically reduced the ability of an individual to obtain
redress from a local commission. Id. at 781–92. Only a handful of claims
can possibly be pursued by even the most diligent and conscientious
commission. Id. at 788. As a result of Petro, a potentially meritorious
claim under a local ordinance will die on the vine due to commission
inaction. Id. at 788, 791. Indeed, that is exactly what happened in Petro,
where the commission staff found probable cause, the commission elected
not to proceed, and Petro’s claim under the Davenport Civil Rights
Ordinance was thereby extinguished as a result of bureaucratic inaction.
Id. at 791–92.
The impact of the unfortunate decision in Petro has now been
geometrically increased by the majority’s determination that the Mayor of
Davenport can fire members of the “independent” commission before their
terms have expired in order to head off potential commission action
against the City of Davenport that is expressly authorized by the
underlying Ordinance.
Combined with Petro, today’s decision sends a clear message to
complainants: if you file a claim with a local civil rights agency, (1) your
potentially meritorious complaint under the local ordinance may be
summarily and without explanation extinguished through commission
inaction, and (2) a potential defendant that gets wind of potential
commission action has a political remedy—convince the mayor to fire the
commissioners supporting the potential action.
In reaching the result in this case, the majority narrowly construes
the term “independent” in the Iowa Civil Rights Act and politicizes the local
civil rights commission by giving the mayor the power to fire civil rights
commissioners without cause. Not only is this development the antithesis
13
of generally applicable administrative law, it ignores the historical fact that
the Iowa Civil Rights Commission was created because politically
controlled civil rights enforcement proved entirely inadequate. The effect
of the majority decision turns this history on its head and requires the
local civil rights commissions to ride a “way back” machine back to the
1950s with politically controlled civil rights enforcement. The legislature
mandated that the Iowa Civil Rights Act “shall be construed broadly to
effectuate its purposes.” 1965 Iowa Acts ch. 121, § 11 (originally codified
at Iowa Code § 105A.11 (1966), now codified as amended at Iowa Code
§ 216.18(1) (2019)). Today, it is construed narrowly to defeat its purpose
of achieving effective civil rights enforcement.
For the reasons expressed below, I simply cannot agree.
I. Factual and Procedural Background.
A. Factual Background. The Iowa Civil Rights Act was originally
enacted in 1965. Id. §§ 1–15 (originally codified at Iowa Code ch. 105A
(1966), now codified as amended at Iowa Code ch. 216 (2019)). Under the
act as amended in 1990, localities with populations in excess of 29,000
were required to establish “an independent local civil rights agency or
commission.” 1990 Iowa Acts ch. 1166, § 1 (originally codified at Iowa
Code § 60A.19 (1991), now codified as amended at Iowa Code § 216.19(2)
(2019)) (emphasis added). In addition to expressly requiring that the local
agency be “independent,” the Iowa Civil Rights Act ensures that the agency
or commission have control of staff and that the staff of the local agency
or commission and the city must “structure and adequately fund the
agency” to effectuate the purposes of the Act. Iowa Code § 216.19(2)
The City of Davenport created such a commission through
enactment of a local ordinance. Davenport, Iowa, Municipal Code
§§ 2.58.010–2.58.380 (2019). The Davenport Municipal Ordinance seeks:
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To secure for all individuals within the City freedom from
discrimination because of race, color, religion, creed, sex,
national origin or ancestry, familial status, marital status,
age, mental or physical disability, gender identity, or sexual
orientation, in connection with employment, public
accommodations, housing, education, and credit . . . .
Id. § 2.58.010(A). For purposes of the Ordinance, “employer” means “the
city or any political subdivision, board, commission, department,
institution, or school district therein, and every other person employing
employees within the city.” Id. § 2.58.030(J). The commission is
authorized to receive complaints, conduct investigations, hold hearings,
and enforce the terms of the Ordinance through imposing various
remedies and court action. Id. §§ 2.58.150–2.58.190.
Under the Ordinance, the commission consisted of seven members
“representative of the community and the various racial, religious, cultural
and social groups within it.” Id. § 2.58.040(A). The members of the
commission are appointed by the Mayor of Davenport and confirmed by
the city council for a fixed term of two years. Id.
On April 15, 2019, Davenport Mayor Frank Klipsch sent a letter to
four Davenport Civil Rights Commission members purporting to officially
remove them from their positions prior to the expiration of their terms.
According to the letter, the four commissioners engaged in a series of
closed meetings to consider whether to “discuss initiating litigation”
against the City of Davenport. The mayor’s letter asserted that the
Davenport Civil Rights Commission “is not a separate legal entity apart
from the City of Davenport such that it has the ability to sue or be sued.”
The mayor maintained that in a series of meetings, the commission
committed prohibited labor practices, violated the Iowa Open Meetings
Act, and allowed three persons who were no longer commissioners to
participate and vote. The mayor claimed that the commission improperly
15
refused to respond to an open records request in violation of the law. The
mayor asserted that the four members of the commission refused to
recognize his recent appointment of three new members. The mayor’s
letter stated that the removed commissioners were entitled to a hearing
pursuant to Iowa Code section 372.15. Bribriesco-Ledger requested the
hearing. A hearing was held on June 7, 2019.
B. Prior Proceedings. After receiving the April 15 letter, Nicole
Bribriesco-Ledger filed an action in district court against Mayor Klipsch
seeking a preliminary injunction, writ of certiorari, and declaratory
judgment. The petition claimed that Mayor Klipsch’s action immediately
removing Bribriesco-Ledger from the commission was illegal, violated the
First Amendment rights of the commissioners, and was because of race,
sex, and sexual orientation. The petition asserted Bribriesco-Ledger could
not be removed except for cause until after they receive a due process
hearing before a neutral body.
The court granted the writ of certiorari. Mayor Klipsch then moved
for summary judgment. The gist of the mayor’s motion was that members
of the commission serve at the pleasure of the mayor and could be removed
at will. The mayor cited Iowa Code section 372.15, which provides, “Except
as otherwise provided by state or city law, all persons appointed to city
office may be removed by the officer or body making the appointment, but
every such removal shall be by written order.” Bribriesco-Ledger
maintained that under Iowa Code section 216.19(2), the Davenport Civil
Rights Commission is an “independent local civil rights agency or
commission.” As an independent local civil rights commission, Bribriesco-
Ledger argued that members of the commission can be removed only for
cause.
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The district court denied the mayor’s motion for summary judgment.
The district court emphasized that the Iowa Civil Rights Act requires
Davenport to maintain “an independent local civil rights agency or
commission.” Iowa Code § 216.19(2). The court cited Black’s Law
Dictionary for the proposition that an “independent” agency is one not
under the control of the executive. See Independent, Black’s Law
Dictionary (11th ed. 2019). Citing a line of cases and scholarly authority,
the district court stated that it has long been established that dismissal
for cause is a fundamental feature of the legal concept of agency
independence. See, e.g., Humphrey’s Ex’r v. United States, 295 U.S. 602,
629, 55 S. Ct. 869, 874 (1935); Collins v. Mnuchin, 896 F.3d 640, 649 n.
47 (5th Cir. 2018) (per curiam); Ford v. Blagojevich, 260 F. Supp. 2d 700,
707 (C.D. Ill. 2003). The district court also noted that under Iowa Code
section 216.3(3), the members of the Iowa Civil Rights Commission may
only be removed by the Governor and only for cause. The district court
reasoned that this passage indicates what the legislature meant by “an
independent local civil rights agency or commission” in Iowa Code section
216.19(2).
II. Growth and Development of Independent Government
Agencies.
The growth of independent agencies can be traced to the creation of
state railroad commissions in the Reconstruction Era and the Interstate
Commerce Commission (ICC) in 1887. See Kirti Datla & Richard L. Revesz,
Deconstructing Independent Agencies (and Executive Agencies), 98 Cornell
L. Rev. 769, 776 (2013). With respect to the ICC, the focus of the debates
was more on the need for expert, impartial decision-making than on
political independence. See id.17
But during the Progressive Era, a host of independent agencies
emerged where the notion of independence was an important rationale for
their creation. See Marshall J. Breger & Gary J. Edles, Established by
Practice: The Theory and Operation of Independent Federal Agencies, 52
Admin. L. Rev. 1111, 1130–31 (2000) [hereinafter Breger & Edles]. To the
progressives, the independent agency was seen as “an institution capable
of compensating for the shortcomings of the ‘political’ institutions of
American government.” Id. (quoting Marc Allen Eisner, Regulatory Politics
in Transition 44 (1st ed. 1993)).
In 1914, Congress created the Federal Trade Commission (FTC). Id.
at 1132. The FTC was insulated from political control by fixed seven-year
terms and a provision that commissioners could be removed by the
President only for cause. See id. at 1267–69. It is clear that among the
purposes of the FTC was to remove regulation of business from the political
fray and establish a quasi-judicial framework. See id. at 1132–33.
During the Progressive Era and extending into the New Deal,
Congress established a number of agencies along the progressive model,
including the Federal Reserve Board, the Federal Radio Commission, the
Federal Power Commission, the Securities and Exchange Commission, the
Federal Communications Commission, and the National Labor Relations
Board. Id. at 1116 n.14.
III. Independence as a Term of Art in Administrative Law
Implying For Cause Termination Protection for Multi-Member
Agencies.
A. Introduction. A key legal question surrounding the Progressive
Era and New Deal administrative agencies was whether members of multi-
member agency boards were subject to removal for cause by the President.
As a result of the extensive and well known litigation, the term
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“independent” and its derivatives, in the context of administrative law, has
become a term of art. As will be demonstrated below, independence for an
agency, as a term of art, meant, at a minimum, that its members were
subject to removal only for cause, just as the district court held in this
case.
B. United States Supreme Court Precedents.
1. Myers v. United States: Striking down the congressional role in
the removal of executive officers. The United States Supreme Court did not
consider the power of the President to remove officials that the President
appointed subject to Senate confirmation until Myers v. United States. 272
U.S. 52, 106, 47 S. Ct. 21, 22 (1926). In Myers, the Supreme Court
considered whether a postmaster appointed by the President and
confirmed by the Senate could be removed by the President even though
the relevant statute required the advice and consent of the Senate for such
a removal. Id. at 106–08, 47 S. Ct. at 22. In a lengthy opinion by Chief
Justice Taft, the Supreme Court concluded that the President had the
power to terminate the postmaster and that the statute requiring Senate
consent to the termination was unconstitutional. Id. at 176, 47 S. Ct. at
45.
Not surprisingly, Justice Brandeis, a product of the Progressive Era,
and advocate of Brandeis briefs which are meant to objectively present
science to the court, dissented. Id. at 240–95, 47 S. Ct. at 66–85
(Brandeis, J., dissenting). Brandeis found lessons in history different from
the Myers majority. Id. The great Justice Holmes also dissented, making
the theoretical point that Congress created the office in question, had the
power to abolish the office in its entirety, and therefore had the power to
limit removal of a duly appointed and confirmed postmaster. Id. at 295,
47 S. Ct. at 85 (Holmes, J., dissenting). Justice McReynolds dissented as
19
well, largely based on his historical review of the President’s constitutional
powers. Id. at 178–239, 47 S. Ct. at 46–66 (McReynolds, J., dissenting).
2. Humphrey’s Executor: Approving congressional limitations of
presidential removal power in cases involving independent agencies. The
decision in Myers appeared to be a sweeping, if controversial, victory for
executive power. But the approach in Myers was soon overtaken and
largely obliterated by the Supreme Court in one of the most famous
administrative law cases, Humphrey’s Executor v. United States. 295 U.S.
602, 55 S. Ct. 869. The question in that case was whether President
Roosevelt had the power to remove an FTC commissioner without cause.
Id. at 618–19, 55 S. Ct. at 870. In an about face from the approach in
Myers, the Supreme Court concluded that the President could not so
remove an FTC commissioner. Id. at 631–32, 55 S. Ct. at 875.
The issue in Humphrey’s Executor was somewhat different than that
presented in Myers. In Humphrey’s Executor, the FTC statute did not
require Senate approval of removal, but instead expressly purported to
limit the power of the President to remove an FTC commissioner to cases
involving “inefficiency, neglect of duty, or malfeasance in office.” Id. at
621–23, 55 S. Ct. at 871–72.
In Humphrey’s Executor, President Roosevelt first wrote Humphrey
urging him to resign. Id. at 618, 55 S. Ct. at 870. Roosevelt did not
disparage Humphrey’s performance in office, but advised Humphrey that
he wanted FTC commissioners of his own selection. Id. Instead, Roosevelt
simply stated that “I do not feel that your mind and my mind go along
together on either the policies or the administering of the Federal Trade
Commission, and, frankly, I think it is best for the people of this country
that I should have a full confidence.” Id. at 619, 55 S. Ct. at 870. When
Humphrey refused to resign, Roosevelt moved to plan B, sending him a
20
letter brusquely declaring that “Effective as of this date you are hereby
removed from the office of Commissioner of the Federal Trade
Commission.” Id.In a unanimous opinion written by Justice Sutherland, the Supreme
Court upheld the constitutionality of the statute limiting the power of the
President to remove FTC commissioners. Id. at 626–32, 55 S. Ct. at 873–
75. The Supreme Court emphasized that the duties of the FTC were “quasi
judicial and quasi legislative.” Id. at 624, 55 S. Ct. at 872. The FTC was
“to be nonpartisan; and it must, from the very nature of its duties, act with
entire impartiality.” Id.The Supreme Court drew from legislative history to support its view
that the limitations on removal in the statute passed constitutional
muster. Id. at 624–26, 55 S. Ct. 872–73. The Supreme Court cited a
Congressional Report quoting Senator Newlands, who declared that the
FTC “should be of high character and ‘independent of any department of
the government . . . a board or commission of dignity, permanence, and
ability, independent of executive authority, except in its selection, and
independent in character.’ ” Id. at 625, 55 S. Ct. at 872 (omission in
original). The Court cited and quoted debates as demonstrating the
prevailing view that the FTC was to be “free from ‘political domination or
control.’ ” Id. at 625, 55 S. Ct. at 872–73.
In the end, the Supreme Court concluded that the language of the
act, the legislative reports, and the general purposes of the legislation
reflected in debates, demonstrated a legislative intent to create “a body
which shall be independent of executive authority, except in its selection,
and free to exercise its judgment without the leave or hindrance of any
other official or any department of the government.” Id. at 625–26, 55
S. Ct. at 873.
21
The Supreme Court next turned to considering the impact of Myers
on the case. Id. at 626–32, 55 S. Ct. at 873–75. The Supreme Court
dramatically limited its scope. Id. It emphasized that in Myers, the
position of postmaster was an executive position and that unlimited
presidential removal power extended only to “purely executive officers.” Id.at 627–28, 55 S. Ct. at 874. But in Humphrey’s Executor, the Supreme
Court stated, the FTC acts “in part quasi legislatively and in part quasi
judicially.” Id. at 628, 55 S. Ct. at 874. The Supreme Court asked the
rhetorical question of whether only judicial officers are protected from
removal. Id. at 629, 55 S. Ct. at 874. The Supreme Court answered this
question with a resounding no:
The authority of Congress, in creating quasi legislative or
quasi judicial agencies, to require them to act in discharge of
their duties independently of executive control cannot well be
doubted; and that authority includes, as an appropriate
incident, power to fix the period during which they shall
continue, and to forbid their removal except for cause in the
meantime. For it is quite evident that one who holds his office
only during the pleasure of another cannot be depended upon
to maintain an attitude of independence against the latter’s
will.
Id. (emphasis added). The President’s claim of unfettered removal
authority could not be sustained because “its coercive influence threatens
the independence of a commission.” Id. at 630, 55 S. Ct. at 875.
Humphrey’s Executor was a seminal case with broad impact on
administrative law. After the decision, for cause removal became “a
symbol of independence for all members of similar regulatory independent
agencies and commissions.” J. Forrester Davison, The Place of the Federal
Trade Commission in Administrative Law, 8 Geo. Wash. L. Rev. 280, 287
(1940) (emphasis added).
3. Wiener v. United States: Limitations on presidential removal
powers as a key feature of independent agencies. The last case in the
22
famous trilogy of administrative law cases involving termination of
members of independent agencies is Wiener v. United States. 357 U.S.
349, 78 S. Ct. 1275 (1958). The Wiener case involved a claim for backpay
based on the petitioner’s alleged illegal removal as a member of the War
Crimes Commission. Id. at 349, 78 S. Ct. at 1276. The Commission
consisted of three members, two of whom were required to be members of
the bar, appointed by the President. Id. at 350, 78 S. Ct. at 1276. The
Commission was empowered to receive and adjudicate “claims for
compensating internees, prisoners of war, and religious organizations who
suffered personal injury or property damage at the hands of the enemy in”
World War II. Id. (citations omitted).
The Commission was directed to wrap up its work no “later than
three years after the expiration of the” filing of claims, but Congress
extended the deadline twice. Id. The terms of Commission members were
thus limited by the life of the Commission. Id. Unlike the situation in
Humphrey’s Executor, Congress made no express provision limiting the
power of the President to remove a commissioner. Id.President Truman originally appointed Wiener as a commissioner.
Id. Weiner was confirmed by the Senate. Id. As in Humphrey’s Executor,
President Eisenhower upon his arrival in office asked for a resignation
from Wiener. Id. Wiener declined. Id. Like Roosevelt before him in
Humphrey’s Executor, President Eisenhower then sent a letter to Wiener
purporting to remove him from the Commission in order to permit him “to
complete the administration of the War Claims Act . . . with personnel of
my own selection.” Id.The question in Wiener was what to make of congressional silence
on the question of removal of members of the Commission. Id. at 352–53,
78 S. Ct. at 1277–78. Justice Frankfurter declared that the most reliable
23
factor to consider was “the nature of the function that Congress vested in
the War Claims Commission.” Id. at 353, 78 S. Ct. at 1278. Justice
Frankfurter emphasized that the War Claims Commission was
“established as an adjudicating body” designed to adjudicate claims. Id.at 354–55, 78 S. Ct. at 1279. Noting the adjudicative responsibilities of
the Commission, Justice Frankfurter wrote:
If . . . the War Claims Act precluded the President from
influencing the Commission in passing on a particular claim,
a fortiori must it be inferred that Congress did not wish to
have hang over the Commission the Damocles' sword of
removal by the President for no reason other than that he
preferred to have on that Commission men of his own
choosing.
Id. at 356, 78 S. Ct. at 1279.
As a result, the Supreme Court in Wiener concluded that even where
the legislation was silent regarding the ability of the Executive to remove a
commissioner, a for cause removal standard would be implied where the
Commission engaged in quasi-legislative or quasi-judicial functions. Id.As noted by a leading commentator, the Wiener decision was presumed to
extend to other independent agencies even where the statute lacked an
explicit for cause removal protection. See Paul R. Verkuil, Jawboning
Administrative Agencies: Ex Parte Contacts by the White House, 80 Colum.
L. Rev. 943, 953–56 (1980).
4. Post-Wiener cases: Bowsher and Morrison. In recent years, the
Supreme Court has decided several cases relating to the power of the
President to remove various officials. In Bowsher v. Synar, the Supreme
Court revisited the question of whether Congress could reserve to itself a
role in determining whether an executive officer could be removed. 478
U.S. 714, 717, 106 S. Ct. 3181, 3183 (1986). Relying on Myers, the
Supreme Court said no. Id. at 726, 106 S. Ct. at 3187–88.
24
In the next case, Morrison v. Olson, the Supreme Court considered
the constitutionality of a statute that limited the power of the President to
remove independent counsel only for cause. 487 U.S. 654, 660–669, 108
S. Ct. 2597, 2603–07 (1988). The Supreme Court upheld the limitation.
Id. at 696–97, 108 S. Ct. at 2622. In Morrison, the Supreme Court
departed somewhat from the rigid formulation in Humphrey’s Executor
that suggested that for executive positions, removal for cause would invade
separation of power. Id. at 690, 108 S. Ct. at 2618–19. The Morrison Court
also refused to find that a “good cause” standard for removal of an inferior
executive officer “unduly trammels” the need to control the exercise of
executive discretion. Id. at 691, 108 S. Ct. at 2619. According to the
Morrison Court, the power to terminate an inferior executive official for
good cause provides the Executive with ample authority to ensure that the
counsel is competently performing his duties. Id. at 691–93, 108 S. Ct. at2619–20. Clearly, the core holdings of Humphrey’s Executor and Wiener
remained in place and, if anything, the holding in Morrison extended the
power of Congress to protect Executive Branch officials from termination
without cause.
5. Recent cases. The Supreme Court returned to the question of
presidential power to terminate officers in Free Enterprise Fund v. Public
Co. Accounting Oversight Board. 561 U.S. 477, 130 S. Ct. 3138 (2010). In
Free Enterprise Fund, the relevant congressional legislation created a dual
for cause limitation on removal of members of the Public Company
Accounting Oversight Board. Id. at 483–84, 130 S. Ct. at 3147. The Court
noted that under the statute, the President could not remove a member of
the Board for “good cause” as permitted under caselaw. Id. at 492–98,
3151–55. As a result, the statute violated Article II which vested executive
power in the President. Id.25
The last case of relevance is Seila Law LLC v. Consumer Financial
Protection Bureau. ___ U.S. ___, 140 S. Ct. 2183 (2020). In Seila Law LLC,
the Supreme Court held that the for cause restriction on presidential
removal of a single director supervising a sprawling agency with many
executive functions violated separation of powers but was severable from
the underlying legislation. Id. at ___, 140 S. Ct. at 2197–2211. The Seila
Law LLC Court emphasized that it did not revisit Humphrey’s Executor or
any other precedent. Id. at ___, 140 S. Ct. at 2206.
6. Conclusion. Notwithstanding the retreat in Seila Law LLC, the
gist of the administrative law concept that the members of independent
multi-member agencies were not subject to removal without cause
remained intact. As a result, the fact that the term “independent” and its
derivatives have a special meaning when used in a statute involving an
agency or commission is an indispensable requirement in statutory
interpretation. See Vermeule, 113 Colum. L. Rev. at 1168–74, 1204–14.
C. State Supreme Court Precedents. State agency law is not as
well developed as federal law. But, as noted by one of the leading
authorities in statutory interpretation, “[s]tate courts have consistently
refused to imply the removal power from the power of appointment, as the
federal courts have done.” 1 Norman J. Singer & J.D. Shambie Singer,
Sutherland Statutes and Statutory Construction § 3.23, at 103 (7th ed.
2010). Thus, the premise of Myers is often not the starting point in state
law. Nonetheless, ample state court precedent links the removal power to
agency independence.
For example, caselaw in Pennsylvania explores what is required to
ensure agency independence. In Bowers v. Pennsylvania Labor Relations
Board, the Governor sought to remove a member of the Pennsylvania Labor
Relation Board without cause. 167 A.2d 480, 481 (Pa. 1961). The Bowers
26
court noted that under the Pennsylvania Constitution, the legislature “may
impose such terms and limitations” with respect to “tenure or removal of
an incumbent as it sees fit.” Id. at 481–82; see also Watson v. Pa. Turnpike
Comm’n, 125 A.2d 354, 356 (Pa. 1956). Whether the legislature has
imposed a “for cause” requirement for termination is therefore a “pure
question of statutory construction which is peculiarly and exclusively the
function of the judiciary to resolve.” Bowers, 167 A.2d at 482.
In Bowers, the legislature did not expressly declare that members of
the board could only be removed for cause, but provided that members
were appointed for fixed and staggered terms. Id. at 483–84. But,
according to the Bowers court, the board exercised judicial powers. Id. at
486. The Bowers court cited Wiener and Humphrey’s Executor for the
proposition that where a board is invested with judicial powers, the chief
executive lacks the power to remove appointed members without cause.
See id. at 484–86.
In holding that board members could be removed only for cause, the
Bowers court declared:
It is implicit as well as inherent in any just system of law that
a party complaining of, or charged with, the commission of
wrongs legally redressable, be entitled, at the very least, to a
determination by a tribunal independent of the influence of
powerful personages, political or otherwise.
Id. at 486.
The Bowers court further made the comparison of members of
adjudicative boards to judges, whose independence was expressly
recognized in article VI, section 4 of the Pennsylvania Constitution. Id. at
486–87. The Bowers court recognized that the independence of
administrative agencies with adjudicative powers was not expressly
recognized in the constitutional provision, but emphasized that such
27
agencies did not exist at the time the constitution was enacted. Id. at 487.
The Bowers court concluded by holding that because the Pennsylvania
Labor Relations Board performed adjudicative functions, the Governor was
without the power to remove a member of the board at his pleasure. Id.
Finally, in Arneson v. Wolf, the Commonwealth Court of
Pennsylvania considered whether an executive director of the Office of
Open Records was subject to removal without cause. 117 A.3d 374, 376
(Pa. Commw. Ct. 2015). According to the Arneson court, “When the
legislature creates an independent administrative agency that exercises
quasi-judicial functions, this is a strong indicator that the legislature
intended that the agency’s members be removed only for cause.” Id. at
385. Citing Chisholm v. Defense Logistics Agency, 656 F.2d 42, 47 (3d Cir.
1981), the Arneson court noted that “[w]hen an administrative agency acts
as a quasi-judicial body, it fulfills the same function as a court, seeking to
make a determination which is consistent with the public interest as
reflected in the governing statute.” Arneson, 117 A.3d at 387 (quoting
Chisholm, 656 F.2d at 47). The Arneson court determined that the
Governor did not have the power to remove the executive director without
cause. Id. at 395–96.
The Supreme Court of Illinois has considered the question of
whether the Governor could remove a member of the State Board of
Elections in Lunding v. Walker. 359 N.E.2d 96, 96–97 (Ill. 1976). The
Supreme Court of Illinois generally adopted the approach of the Myers-
Humphrey’s Executor-Wiener trilogy. Id. at 99–102. The Lunding court
emphasized the need for an independent Board of Elections free from
political control. Id. at 101. The Lunding court declared:
It is plain that the legislators intended, and the public interest
demands, that Board members not be amenable to political
influence or discipline in the discharge of their official duties.
28
To subject a neutral, bipartisan, and independent board to the
unbridled whim of the Governor . . . would destroy its purpose
and its efficacy.
Id. The Lunding court held that the question of whether the failure of a
board member to file a financial disclosure form amounted to cause for
removal was a question subject to judicial review. Id. The approach in
Lunding was followed by a federal district court in Ford v. Blagojevich. 282
F. Supp. 2d 898, 904–05 (C.D. Ill. 2003) (holding that a commissioner of
the Illinois Industrial Commission may only be removed for cause following
Illinois precedent post-Lunding).
D. Academic Commentary Welding For Cause Removal to
Agency Independence.
1. Theory of avoiding political influence. Academic commentators
have synthesized the caselaw and developed rationales for independent
agencies and commissions. Reprising a theme of reformers in the
Progressive Era, a primary theme of the commentators involves the need
for independent agencies to be independent of politics. As noted by
Rachel E. Barkow, the hope is that insulated agencies “will better resist
short-term partisan pressures and instead place more emphasis on
empirical facts that will serve the public interest in the long term.”
Rachel E. Barkow, Insulating Agencies: Avoiding Capture Through
Institutional Design, 89 Tex. L. Rev. 15, 17 (2010). And, as Professor
Barkow further observes, “the creation of an independent agency is often
motivated by a concern with agency capture.” Id. She notes that risk of
agency capture is “further exacerbated by the fact that industry groups
are . . . well positioned to contribute to political campaigns and to lobby.”
Id. at 22.
Other distinguished scholars of administrative law have expressed
similar views. For example, Paul Verkuil, notes that the characteristics of
29
independent agencies are designed “to isolate those decisionmakers from
politics.” Paul R. Verkuil, The Purposes and Limits of Independent
Agencies, 1988 Duke L.J. 257, 259–60 [hereinafter Verkuil]. Similarly,
Marshall J. Breger and Gary J Edles have declared that a founding
purpose of independent agencies was to insulate them “from the political
melee.” Breger & Edles, 52 Admin. L. Rev. at 1131.
Administrative law scholars often draw comparisons between
independent agencies and the courts. Paul Verkuil has declared that
“independent agencies emulate[d] our most revered collegial bodies—the
courts, or, more precisely, the appellate courts.” Verkuil, 1988 Duke L.J.
at 261. Verkuil finds the analogy between independent administrative
agencies and the court “compelling,” noting that the first chair of the
Interstate Commerce Commission (ICC) was Michigan Supreme Court
Justice Thomas Cooley, whose reputation for independence and integrity
had much to do with the acceptance of the ICC. Id. & n.17.
As Professor Verkuil further establishes, Congress has recognized
the value of independent agencies by analogy to the courts. Id. at 275–78.
As noted by the Senate Committee on Governmental Affairs and cited by
Verkuil, “[i]ndependence does have its positive advantages. First and
perhaps most important, these commissions exercise quasi-judicial
functions in that they adjudicate and reach decisions on particular cases.”
Id. at 276 n.85 (quoting 5 S. Comm. on Gov’t Affs., Study on Federal
Regulation: Regulatory Organization, S. Doc. No. 91, at 75 (1st Sess.
1977)).
2. Implementation of the theory by removal for cause. If there is
consensus among commentators that independent agencies are designed
to be free from political will and should engage in their adjudicative
processes in a fashion similar to courts, how is that to be accomplished?
30
There is nearly complete agreement that one ingredient of an independent
agency, and indeed an essential one, is removal of key agency decision
makers only for cause. As noted by Professor Vermeule, “[c]ommentators
broadly agree that for-cause tenure protection is the sine qua non of
agency independence . . . the doctrine [of agency independence] clearly
makes for-cause tenure protection critical.” Vermeule, 113 Colum. L. Rev.
at 1168–69. Professors Breger and Edles emphasize that “the critical
element of independence is the protection . . . against removal except ‘for
cause.’ ” Breger & Gary, 52 Admin. L. Rev. at 1138. Prior to her
nomination to the Court, Elena Kagan wrote that independent agencies
are “agencies, whose heads the President may not remove at will” and
“whose heads have substantial protection from presidential removal.”
Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2247,
2250 (2001). Another scholar has noted removal is “the classic indicator
of independence under federal law.” Miriam Seifter, Understanding State
Agency Independence, 117 Mich. L. Rev. 1537, 1568 (2019). Or, as noted
by yet another commentator, “[t]he very definition of an independent
agency is an agency with a head or board that the President can remove
only for cause.” Note, Independence, Congressional Weakness, and the
Importance of Appointment: The Impact of Combining Budgetary Autonomy
with Removal Protection, 125 Harv. L. Rev. 1822, 1822 (2012); see also Lisa
Schultz Bressman & Robert B. Thompson, The Future of Agency
Independence, 63 Vand. L. Rev. 599, 610 (2010) (“[W]hat gives agencies
their independence or what otherwise distinguishes them from their
executive-branch counterparts . . . [is that] the President lacks authority
to remove their heads from office except for cause.”); Emily Hammond
Meazell, Presidential Control, Expertise, and the Deference Dilemma, 61
Duke L.J. 1763, 1777 (2012) (“[I]ndependent agencies are headed by
31
multimember groups of people who are removable only for cause.”); Angel
Manuel Moreno, Presidential Coordination of the Independent Regulatory
Process, 8 Admin. L.J. Am. U. 461, 469 n.39 (1994) (“Immunity from
discretionary removal power is a ‘condition sine qua non’ of
independence.”); Richard Rothman & Katelin Shugart-Schmidt, Lying in
Wait: How a Court Should Handle the First Pretextual For-Cause Removal,
86 Geo. Wash. L. Rev. 1348, 1353–54 (2018) (“[T]he existence of for-cause
removal limitations for the head (or heads) of an agency is considered a
defining feature of ‘independent agencies.’ ”).
E. Independence as a Legal Term of Art in Public Law. The
substantial body of decades of caselaw and commentary has been woven
into the fabric of administrative law. As noted in the literature,
“[i]ndependence is a legal term of art in public law, referring to agencies
headed by officials that the President may not remove without cause. Such
agencies are, by definition, independent agencies; all other agencies are
not.” Vermeule, 113 Colum. L. Rev. at 1168 (alteration in original) (quoting
Jacob E. Gersen, Designing Agencies, in Research Handbook on Public
Choice and Public Law 333, 347 (Daniel A. Farber & Anne Joseph
O’Connell eds., 2010)). As a result, the fact that the term independent and
its derivatives have a special meaning when used in a statute involving an
agency or commission is an indispensable requirement in statutory
interpretation.
IV. Agency Independence in the Context of Civil Rights
Enforcement.
A. Introduction. The above discussion has generally addressed
the nature of protection against removal without cause for multi-member
independent agencies. Not surprisingly, the issue of agency independence
has played out in the specific context of civil rights agencies. On the
32
national level, a highly publicized battle royale occurred in the 1980s over
the independence of the United States Commission on Civil Rights. See
Garrine P. Laney, Cong. Rsch. Serv., RL34699, The U.S. Commission on
Civil Rights: History, Funding, and Current Issues 5–6 (2008) [hereinafter
Laney]. In Iowa, the need for an independent civil rights enforcement
agency was recognized by the relatively few enforcement actions under the
Iowa Civil Rights Act of 1884, which, as a criminal statute, required
approval by an elected official before an action could be brought. See
Arthur Earl Bonfield, The Origin and Development of American Fair
Employment Legislation, 52 Iowa L. Rev. 1043, 1049 (1967) [hereinafter
Bonfield]; Robert E. Goostree, The Iowa Civil Rights Statute: A Problem of
Enforcement, 37 Iowa L. Rev. 242, 242–44 (1951) [hereinafter Goostree].
B. History and Development of the Iowa Civil Rights Act. Iowa
had a civil rights act long before enactment of the federal Civil Rights Act
of 1964. The original Iowa Civil Rights Act, enacted in 1884, provided
potentially broad substantive protection against racial discrimination in
Iowa. 1884 Iowa Acts ch. 105, § 1 (codified at McClain’s Ann. Code § 5386
(1888)). But the statute was a criminal statute and, as a result, required
that a prosecution be brought by an elected county attorney. Id. § 2
(codified at McClain’s Ann. Code § 5387 (1888)) According to Arthur
Bonfield, one of the leading proponents of the Iowa Civil Rights Act of 1965,
prosecutions under the act with a county attorney as a gate keeper “ha[d]
been very few or nonexistent.” Bonfield, 52 Iowa L. Rev. at 1049. The
reliance on elected county attorneys, with a mixed-bag of personal views
on the act itself, meant that the will of the state legislature was continually
thwarted by local officials. See Goostree, 37 Iowa L. Rev. at 245–48.
This problem of a lack in enforcement led the Iowa Legislature to
enact the Iowa Civil Rights Act of 1965 which created the Iowa state civil
33
rights commission. 1965 Iowa Acts ch. 121 (originally codified at Iowa
Code ch. 105A (1966), now codified as amended at Iowa Code ch. 216
(2019)). The act granted the commission the powers to “receive,
investigate, and pass upon complaints alleging unfair or discriminatory
practices.” Id. § 5(2) (originally codified at Iowa Code § 105A.5(2) (1966),
now codified as amended at Iowa Code § 216.5(2) (2019)). Shifting the
power of enforcement away from the political position of local county
attorney to a nonpartisan commission selected by the Governor allowed
the enforcement of the civil rights act to be insulated from local politics
and therefore an increase in complaints taken seriously. See Iowa Civil
Rights Commission, Biennial Report 17–18 (1977–1978) (demonstrating
cases handled by the commission increased five-fold between 1969 and
1977).
C. Public Battle Over Independence of the United States Civil
Rights Commissioners. The Civil Rights Act of 1957 created the United
States Commission on Civil Rights. Civil Rights Act of 1957, Pub. L. No.
85–315, § 101, 71 Stat. 634, 634 (1957) (originally codified at 42 U.S.C.
§§ 1975-1975e (1958)). The Commission was empowered to investigate
allegations, study and gather information on equal protection of the laws,
assess federal laws and policies, submit interim reports, and prepare a
report on final findings and recommendations to the President. Id. § 104,
71 Stat. at 635 (originally codified at 42 U.S.C. § 1975c (1958)). The
President was empowered to appoint six members of the Commission with
no more than three from the same political party. Id. § 101, 71 Stat. at
634. Notably, however, the statute did not contain a provision on removal
of commissioners. See Laney, Cong. Rsch. Serv., RL3699 at 2.
In 1982, however, a debate occurred over the President’s power over
the Commission. Id. at 5. President Reagan nominated the controversial
34
Reverend B. Sam Hart to the Commission. Id. Hart’s views on busing, the
equal rights amendment, and gay rights made him a divisive pick in the
eyes of civil rights groups including the National Urban League, the NAACP
Legal Defense Fund, the National Organization for Women, the Mexican-
American Legal Defense Fund, and the National Gay Task Force. Id.
President Reagan withdrew the nomination, but he replaced two
commissioners who refused to resign. Id. at 5–6. Further, in 1983,
President Reagan sought the resignation of three commissioners who he
believed opposed the administration’s policies. Id. at 6. When they refused
to resign, he purportedly fired them. Id. The attempt by President Reagan
to fire commissioners led to a substantial debate about “the Commission’s
independence, who should appoint its members, and its mandate.” Id. at
6.
In the end, a political compromise was reached in the United States
Commission on Civil Rights Act of 1983. Pub. L. No. 98–183, 97 Stat.
1301 (originally codified at 42 U.S.C. §§ 1975–1980 (Supp. 5 1982)).
Under the statute, the Commission had eight members. Id. § 2, 97 Stat.
at 1301 (originally codified at 42 U.S.C. § 1975 (Supp. 5 1982)). Four were
appointed by the President and two each by the President Pro Tempore of
the Senate and the Speaker of the House. Id. The President could remove
a commissioner only for neglect of duty or malfeasance in office. Id. The
compromise enacted in 1983 led to a series of extensions of authorization
of the Commission. See Laney, Cong. Rsch. Serv., RL34699 at 8–9.
The political struggle over the independence of members of the
United States Civil Rights Commission and whether the President could
terminate them over policy disagreements were highly publicized issues—
particularly in Iowa. Mary Louise Smith, a prominent Iowa politician and
chair of the Republican National Committee from 1974 to 1977, was
35
appointed by President Reagan as a vice chairwoman of the United States
Civil Rights Commission in 1981. See John Hyde, Civil Rights Panel Filled;
Smith Not Among Member, Des Moines Reg., Dec. 13, 1983, at 2A
[hereinafter Hyde, Civil Rights Panel Filled]; John Hyde, GOP Women
Protest Decision to Oust Smith, Des Moines Reg., Dec. 5, 1983, at 4A
[hereinafter Hyde, GOP Women]; John Hyde, Smith Joins in Criticism of
President, Des Moines Reg., June 15, 1983, at 1A [hereinafter Hyde, Smith
Joins in Criticism].
After the debate on the independence of the Commission, and
shakeup of how commissioners were selected under the United States
Commission on Civil Rights Act of 1983, neither President Reagan nor the
majority Republican United States Senate decided to reappoint Smith as
a commissioner—primarily because of a difference in philosophical
opinion on the direction of federal civil rights and a refusal to
unquestioningly carry out the demands of the Reagan Administration. See
Hyde, Civil Rights Panel Filled; Hyde, GOP Women; Hyde, Smith Joins in
Criticism; Dewey Knudson, Supporters of Smith Joined by Branstad, Des
Moines Reg., Dec. 6, 1983, at 3A. The slighting of Smith set off a storm of
protests from various groups of the Republican Party, Hyde, Civil Rights
Panel Filled; John Hyde & James Risser, Reagan Snub of Smith Triggers
Iowa “Fallout,” Des Moines Reg., Dec. 8, 1983, at 1A, and Smith criticized
President Reagan’s selection of new commissioners as affecting the “heart
of the independence of the commission.” Hyde, GOP Women. During the
controversy over appointments to the Commission, then-Senator Joseph
Biden, ranking member of the Senate Judiciary Committee, declared that
the question at issue was not the qualification of President Reagan’s
nominees. “The question at stake,” according to Biden, was “the
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independence of the commission.” Robert Pear, 3 Reagan Rights Nominees
Touch Off a Heated Clash in Senate, N.Y. Times, July 14, 1983, at 12A.
Certainly Iowa legislative leaders would have been aware of the
debate over agency independence given the direct involvement of a
prominent Iowa political figure in the controversy. In any event, the
controversy over the Commission's independence was well covered in the
Des Moines Register and could not have escaped the attention of local
political leaders, some of whom described the 1983 maneuvering as
packing what was meant to be an independent Commission with loyalists
of a particular ideology. See Hyde, Civil Rights Panel Filled; John Hyde,
Rights Panel Appointment Fuels Furor Over Smith, Des Moines Reg., Dec. 9,
1983, at 8A; John Hyde, Commentary, How Iowa Rates in Washington,
Des Moines Reg., Oct. 30, 1983, at 2C [hereinafter Hyde, How Iowa Rates
in Washington]; Civil Rights Panel Criticizes Education Cuts, Des Moines
Reg., July 13, 1983, at 6A; Reagan Choices for Civil Rights Panel Draw Fire,
Des Moines Reg., July 14, 1983, at 4A. While chairwoman of the
Commission, Smith commented to the Des Moines Register that “[c]ivil
rights is far too serious a business to let it get caught up in political in-
fighting.” Hyde, How Iowa Rates in Washington.
D. 1990 Amendment to the Iowa Civil Rights Act of 1965:
Independence Is Important to Iowans. The Iowa Civil Rights Act of 1965
as initially passed did not preempt the field and left open the ability for
local governments to address civil rights not inconsistent with the act.
1965 Iowa Acts ch. 121, § 12. However, in 1989 and 1990, a dispute arose
between the Des Moines City Council and the Des Moines Civil and Human
Rights Commission—Des Moines’s local civil rights commission. Jonathan
Roos, Panel Wants Large Cities to Keep Rights Agencies, Des Moines Reg.,
37
Feb. 1, 1990, at 2A [hereinafter Roos, Rights Agencies]. The dispute
threatened the independence of the local commissions. Id.
To protect the independence of local commissions, the state
legislature amended the Act to require cities with populations over 29,000
to establish “an independent local civil rights agency or commission.”
1990 Iowa Acts ch. 1166, § 1 (originally codified at Iowa Code § 601A.19
(1991), now codified as amended at Iowa Code § 216.19(2) (2019))
(emphasis added). The legislators who enacted this amendment were
surely aware of the debate and understood the ramifications of using the
term “independent.” In fact, “[t]he legislation stem[med] primarily from a
dispute involving the Des Moines City Council and the [Des Moines
commission]” as well as “threats to the independence of civil rights
agencies in other Iowa cities” which “included business leaders’ attempts
to kill local civil rights agencies, proposals to eliminate staff and threats
aimed at directors.” Roos, Rights Agencies; see also Cities May Have to
Have Civil Rights Agencies, Des Moines Reg., Feb. 22, 1990, at 2A. One
primary reason for the amendment, then, was the concern that the politics
of city councils and mayors threatened the independence of local
commissions. See Roos, Rights Agencies; see also David Congdon, Letter
to the Editor, Human Rights Commission, Des Moines Reg., Feb. 5, 1990,
11A (“[The bill] if passed as law, will end the debate over the independence
of [the Des Moines commission].”). Against this backdrop, it seems clear
that one of the purposes of the creation of the Iowa Civil Rights
Commission, and its local counterparts, was to remove the decision to
prosecute from state or local politicians and vest the power in a
nonpartisan, independent, commission.
E. Conclusion. The importance of the independence of civil rights
agencies has been a highly visible issue in both state and federal law. The
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battle over the independence of the United States Civil Rights Commission
and the desire to escape the limitations of political control in the Iowa Civil
Rights Act further support the notion that agency independence means
protection from outside political influence—including a requirement of for
cause termination.
V. Application of History and Traditional Administrative Law
Principles to Interpretation of the Iowa Civil Rights Act.
What is meant by an “independent local agency” is clearly
ambiguous and is subject to interpretation, including consideration of the
historical context of the statute. Given the above historical background
and the emergence of “independent” as a term of art in administrative law,
it seems to me the district court got it right when it determined that as an
independent, multi-member commission where commissioners serve for a
fixed term, a commissioner may be terminated only for cause.
This interpretation of the term “independent” in Iowa Code section
216.19 is consistent with the repeated and widespread usage of the term
in administrative law over the past hundred years or so. As has been
repeatedly noted in many cases:
[I]t is a cardinal rule of statutory construction that, when [the
legislature] employs a term of art, it presumably knows and
adopts the cluster of ideas that were attached to each
borrowed word in the body of learning from which it is taken.
Air Wis. Airlines Corp. v. Hoeper, 571 U.S. 237, 248, 134 S. Ct. 852, 861–
62 (2014) (alteration in original) (quoting FAA v. Cooper, 566 U.S. 284, 292,
132 S. Ct. 1441, 1449 (2012)); see also Commonwealth v. Scott, 982 N.E.2d
1166, 1169 (Mass. 2013) (“[Terms] that have acquired a particular
meaning within the law should be read in a manner that is consistent with
that meaning.”); McDonald v. N.C. Dep’t of Corr., 724 S.E.2d 138, 140 (N.C.
Ct. App. 2012) (“[W]hen . . . terms of art are used in a statute, they are
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presumed to be used with their technical meaning in mind, likewise absent
legislative intent to the contrary.” (quoting Dare Cnty. Bd. of Educ. v.
Sakaria, 492 S.E.2d 369, 372 (N.C. Ct. App. 1997))). Surely part of the
cluster of ideas behind the use of the word “independent” in agency law is
protection of key decision-makers from removal without cause.
Further, legislators must have been aware that the Iowa Civil Rights
Commission was created to provide a more effective mechanism than
criminal sanctions that required the exercise of discretion by an elected
county attorney before an action could be brought. In other words, one of
the purposes of forming a commission was to lessen the role of politics in
civil rights enforcement. In addition, legislators were aware of the debate
over independence of the United States Civil Rights Commission in the
1980s. The best interpretation is that the legislature used the term
“independent” in its historic context and as a term of art in administrative
law.
Further, this interpretation aligns the structure of local
commissions with that of the Iowa Civil Rights Commission. Under the
statute, the local civil rights agencies were to have the same power as the
Iowa Civil Rights Commission. The Iowa Civil Rights Commission, of
course, is an independent agency with for cause protection for its
multimember commissioners. By using the term “independent” local
agency, it seems clear the legislature wanted to have a similar body
exercise the same powers at a local level.
The majority notes that its position aligns with Iowa Code section
7E.4. This section defines an independent agency as “an administrative
unit which, because of its unique operations, does not fit into the general
pattern of operating departments.” The statute does not address, one way
or the other, the issue of termination of commissioners without cause. It
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simply describes how the operations of independent agencies fit in (or do
not fit in) on the organizational chart.
The brittle textual argument offered by the majority does not
persuade. It lacks historical context, a critical feature in statutory
interpretation. Each step in the majority’s analysis has a degree of appeal,
but the cumulative result is contrary to the sweep of history and the
meaning of agency independence as a term of art.
The impact of the majority’s position also cannot be ignored. The
Ordinance itself expressly authorizes the Davenport Civil Rights
Commission to bring actions against the City. The City gets wind of it and
the mayor seeks to fire commissioners. If this maneuver is permitted, the
independence of the Davenport Civil Rights Commission, and all local civil
rights commissions, would be shattered.
As a political actor, the mayor is subject to the influence of not just
the City but housing developers and large employers who might be subject
to commission investigation or proceedings. Political influence is, of
course, a part of the democratic process, but what the legislature did not
want is a local civil rights commission whose independence is
compromised by the ability of the mayor to fire commissioners because
they are considering bringing an action against a politically powerful or
well-connected defendant even though the proceeding is authorized by law
and potentially meritorious. Even if there are other appointing authorities
in some jurisdictions other than the mayor—say a city manager or city
council—they too will be subject to the larger political influences
associated with city management.
At oral argument, counsel for Mayor Klipsch and the City of
Davenport was asked whether members of the judiciary would be
“independent” if they were subject to termination without cause by the
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Governor. Counsel candidly responded with an unqualified “Yes,” the only
possible response consistent with his clients’ position in this case. But
does anyone really believe that members of the judiciary would be
“independent” if they could be terminated at any time without cause by a
political authority? Or that a local commission would be “independent” if
it relied on the political will of the mayor? The words of Justice Sutherland
for a unanimous Supreme Court resonate: “one who holds his office only
during the pleasure of another cannot be depended upon to maintain an
attitude of independence against the latter’s will.” Humphrey’s Executor,
295 U.S. at 629, 55 S. Ct. at 874
And here is a question. What do we tell the complainants who might
believe the City engaged in unlawful acts of discrimination under the local
Ordinance? Do we tell them that the Davenport Civil Rights Commission
would be “independent” in considering such claims when the mayor
terminated commissioners without cause who were contemplating an
enforcement action against the City?
The City relies on Iowa Code section 372.15 to permit intervention
by political leaders in the work of the independent local commissions. This
statute generally permits an appointing authority to remove those
appointed to city offices. But the statute begins with the phrase “[e]xcept
as otherwise provided by state or city law.” In my view, the specific
requirement of an “independent local . . . commission” in Iowa Code
section 216.19(2) is just such a provision that overrides the general terms
of section 372.15.
As noted at the outset, the cumulative result of this decision is to
undercut the ability of local civil rights ordinances to provide effective
relief. Persons represented by counsel will be aware of these pitfalls, but
those who are self-represented may not. After today, unless there is a
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provision in the local ordinance protecting the “independence” of the
commission,1 a sincere local commission might consider disclosing to
citizens in a candid brochure or other publication that it only has the
resources to bring a handful of cases, that a right to sue letter is not
available for violations of the local ordinance, and that if the commission
is considering bringing an action against the city itself, or another
politically connected entity, the mayor can fire the commissioners to stop
it. And though civil rights advocates supporting independent local
commissions may have thought they got the job done in 1990, they will
have to start over and take another run at it.
VI. Conclusion.
For the above reasons, I would affirm the ruling of the district court
denying the motion for summary judgment in this case.
1In addition, there is a question as to whether the Davenport Ordinance itself
prohibits the mayor from removing a commissioner without cause. Section 2.58.040 of
the Ordinance provides for the appointment of commissioners. Davenport, Iowa,
Municipal Code § 2.58.040. They are to be appointed in a fashion “broadly representative
of the community.” Id. The mayor appoints the commissioners, who must be confirmed
by the city council. Id. The Ordinance provides, however, that once appointed, “the term
of appointment shall begin on December 1st and [shall] end two years later on
November 30th.” Id. Can the mayor end the term of an appointment in the face of the
Ordinance declaring when the term “shall” commence and “shall” end? Doesn’t this local
Ordinance embrace, rather than reject, the notion that commissioners should be
independent of political authority and that termination should be only for cause? Should
the Ordinance be interpreted in light of the vast body of caselaw dealing with the issue of
“for cause” termination of administrative agencies? The question of whether section
2.58.040 of the Davenport, Iowa, Municipal Code prohibited termination of
commissioners without cause was not raised in this case. Clearly, however, Iowa Code
section 372.15 permits a local civil rights ordinance to ensure the independence of the
commission through its own termination provisions.