David Botsko, D.m.d. Vs. Davenport Civil Rights Commission And Ingelore Nabb

IN THE SUPREME COURT OF IOWA
No. 06–1542 & 07–0895
Filed November 13, 2009
DAVID BOTSKO, D.M.D.,
Appellant,
vs.
DAVENPORT CIVIL RIGHTS COMMISSION
and INGELORE NABB,
Appellees.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Scott County, Bobbi Alpers
(final ruling) and Mark J. Smith (rulings regarding the production of
public records), Judges.
Petitioner appeals agency action finding sexual harassment,
alleging a violation of procedural due process and an erroneous award of
attorneys’ fees. DECISION OF THE COURT OF APPEALS AFFIRMED
IN PART AND VACATED IN PART; DISTRICT COURT JUDGMENT
AFFIRMED IN PART AND REVERSED IN PART.
Richard A. Davidson and Thomas D. Waterman of Lane &
Waterman, Davenport, for appellant.
Judith J. Morrell, Davenport, for appellee commission.
Dorothy A. O’Brien of Dorothy A. O’Brien, P.L.C., Davenport, for
appellee Nabb.
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APPEL, Justice.
Ingelore Nabb filed a harassment complaint with the Davenport
Civil Rights Commission alleging that her employer, dentist David
Botsko, maintained a hostile work environment. Due to the
discriminatory behavior, Nabb claimed she was constructively discharged
from her position as a dental assistant. The commission found for Nabb,
awarding her compensatory and emotional distress damages and
attorneys’ fees and costs. After affirmances at the district court and
court of appeals, we granted further review to consider: (1) whether the
district court erred in affirming the commission’s award of attorneys’ fees
and in awarding Nabb additional attorneys’ fees on appeal, (2) whether
the district court erred in affirming the commission’s holding that it was
authorized to hold closed deliberative sessions, and (3) whether the
district court erred in rejecting Botsko’s procedural due process claim.
I. Background Facts and Prior Proceedings.
Nabb filed a complaint alleging that her employer, Botsko,
maintained a hostile work environment and constructively discharged
her from employment. An administrative law judge (ALJ) originally
issued a proposed decision in favor of Botsko. The ALJ concluded that
while Nabb was subjected to an unpleasant and disagreeable work
environment, she did not establish a claim of harassment based on age,
gender, or national origin.
The commission reviewed the recommended decision of the ALJ in
two closed-door meetings. After reviewing the record, the commission
adopted the factual and credibility findings of the ALJ, but came to a
different conclusion with respect to Nabb’s claim of sexual harassment.
The commission determined that the conduct complained of was “based
on sex” and unwelcomed. The commission further concluded that Nabb
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established a hostile work environment based on sex and that she was
constructively discharged as a result. The commission awarded Nabb
$5000 in emotional distress damages, $20,000 in compensatory
damages, attorneys’ fees in the amount of $30,081.86, and commission
costs of $2935.70.
Botsko filed a petition for judicial review. Among other things,
Botsko challenged the findings of the commission as not supported by
substantial evidence, claimed that the commission did not properly
honor the ALJ’s credibility determinations, asserted that the award of
attorneys’ fees was not authorized by statute, argued that the
commission’s closed-door deliberations were unlawful, and claimed that
his right to procedural due process was violated when the executive
director of the commission, Judith Morrell, assisted the petitioner at the
hearing and then proceeded to advise the commission regarding the
proper disposition of the case.
After much procedural wrangling, including two remands for
additional fact finding by the commission, the district court upheld the
decision of the commission in its entirety. Botsko appealed.
We transferred the case to the court of appeals. The court of
appeals affirmed the district court judgment. We granted further review.
When this court grants further review, it may in its discretion limit its
opinion to selected issues or may address all issues presented on appeal.
In re Marriage of Ricklefs, 726 N.W.2d 359, 361–62 (Iowa 2007). In this
case, we consider only the issues related to attorneys’ fees, the
lawfulness of the closed-door meetings to deliberate, and aspects of
Botsko’s procedural due process challenge.
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II. Standard of Review.
Although the commission is not an agency within the meaning of
the Iowa Administrative Procedure Act (IAPA), Iowa Code chapter 17A
(1999), both parties agreed that this court’s review is determined by the
standards set forth in section 17A.19(8). The legislature has directed
that a final decision of a municipal civil rights commission is reviewable
to the same extent as a final decision of the Iowa Civil Rights
Commission. See Iowa Code § 216.19; Farmland Foods, Inc. v. Dubuque
Human Rights Comm’n, 672 N.W.2d 733, 740 (Iowa 2003).
As a result, a reviewing court should reverse the commission’s
decision only when it is “[i]n violation of constitutional or statutory
provisions,” “[a]ffected by other error of law,” or “unsupported by
substantial evidence in the record made before the agency when that
record is viewed as a whole[.]” Iowa Code § 17A.19(8)(a), (e), (f). To the
extent the court is called upon to determine constitutional issues raised
in the administrative proceeding, our review is de novo. Drake Univ. v.
Davis, 769 N.W.2d 176, 181 (Iowa 2009).
III. Award of Attorneys’ Fees.
Botsko claims that the district court erred in affirming the
commission’s award of attorneys’ fees to Nabb in the amount of
$30,081.86. 1 Botsko notes that the Davenport Municipal Code, at the
time relevant to these proceedings, 2 did not specifically authorize an
award of attorneys’ fees, but instead provided only that parties may be
1Following the district court’s affirmance of the commission’s decision, Nabb
filed an application for appellate attorneys’ fees. Over Botsko’s objection, the district
court awarded Nabb an additional $26,946. Botsko appealed. That appeal has been
consolidated with this case. Our discussion on the attorneys’ fees issue thus applies to
both the initial award of $30,081.86 and the subsequent award of $26,946.
2We note that the Davenport Municipal Code has since been amended to allow
for an award of “reasonable attorney fees.” Davenport Mun. Code § 2.58.175(A)(8).
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represented by counsel in proceedings before the commission “at their
own expense.” Davenport Mun. Code § 2.58.170(F). He asserts that in
the absence of a statutory provision authorizing attorneys’ fees, a party
has no right to recover attorneys’ fees as part of a damages award.
Nabb conversely argues that Botsko misinterprets the ordinance.
First, she claims the provision authorizing a party to be represented by
counsel “at their own expense” applies solely to administrative hearings
and does not restrict fee-shifting as a form of relief. Second, Nabb points
to other sections of the Davenport ordinance to support her claim for
attorneys’ fees. She notes the ordinance is designed to provide a means
for executing the policies within the Iowa Civil Rights Act. Id. § 2.58.010.
Under the Iowa Civil Rights Act, a party may be awarded “reasonable
attorney fees.” Iowa Code § 216.15(8)(a)(8). Nabb concludes that
because the ordinance is designed to provide a means of executing the
policies of the Iowa Civil Rights Act, and the Iowa Civil Rights Act
contains an explicit fee-shifting provision, a similar fee-shifting provision
should be implied as part of the local ordinance.
We disagree. We have stated that because attorneys’ fee awards
are a derogation of the common law, they “are generally not recoverable
as damages in the absence of a statute or a provision in a written
contract.” Kent v. Employment Appeal Bd., 498 N.W.2d 687, 689 (Iowa
1993). Such statutory authorization must be expressed and “must come
clearly within the terms of the statute.” Thorn v. Kelley, 257 Iowa 719,
726, 134 N.W.2d 545, 548 (1965).
Our stringent approach to statutory attorneys’ fees is reflected in
Telegraph Herald, Inc. v. City of Dubuque, 297 N.W.2d 529, 536–37 (Iowa
1980), where we held that a statutory provision authorizing an award of
attorneys’ fees related to district court proceedings did not imply that
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attorneys’ fees on appeal could also be recovered. Our demanding
approach is consistent with cases in other jurisdictions which reject
awarding statutory attorneys’ fees by implication and require express
language. See Comm’r of Envtl. Prot. v. Mellon, 945 A.2d 464, 470 (Conn.
2008); Vance v. Speakman, 409 A.2d 1307, 1311 (Me. 1979); Holland v.
Wal-Mart Stores, Inc., 1 S.W.3d 91, 95 (Tex. 1999); see also Robert L.
Rossi, Attorneys’ Fees § 6:7, at 6–22 to 6–23 (3d ed. 2002) (noting where
statutory provisions contain no language explicitly mentioning attorneys’
fees, such fees are generally not authorized).
Iowa Code section 216.19 authorizes a city to adopt its own civil
rights ordinance. Dietz v. Dubuque Human Rights Comm’n, 316 N.W.2d
859, 861 (Iowa 1982) (discussing the municipal authority to establish
civil rights commissions under section 601A.19 now section 216.19).
The relevant question, however, is not whether the state legislature has
authorized a fee-shifting provision in a local ordinance enacted pursuant
to section 216.19. Instead, the question is whether the ordinance
enacted by the City of Davenport at the time of this proceeding contained
an express provision clearly authorizing an award of attorneys’ fees.
The local ordinance in this case fails to meet this test. While the
Davenport ordinance declares that it provides a means for executing the
policies within the Iowa Civil Rights Act, such generalized language is not
a substitute for language expressly authorizing the payment of attorneys’
fees to the prevailing party. While Nabb asserts that important policy
objectives are advanced by awarding attorneys’ fees in civil rights cases,
we will not read into the ordinance a fee-shifting provision when the local
legislative body did not approve one. As a result, Nabb is not entitled to
an award of attorneys’ fees in these proceedings.
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IV. Challenge to Closed Meetings.
Botsko claims that the commission improperly deliberated in
closed meetings. According to Botsko, the commission has no statutory
authority under the Iowa Open Meetings Law, Iowa Code chapter 21, to
conduct its deliberations behind closed doors. Botsko concludes that in
light of the lack of statutory authorization, his due process rights were
violated because the process was fundamentally unfair. He further
presses the argument by seeking disclosure of the tapes of the “illegal”
closed sessions.
Nabb counters that the closed sessions were authorized by Iowa
Code section 21.5(1)(f). This section of the Open Meetings Law provides
that closed deliberations may be utilized “[t]o discuss the decision to be
rendered in a contested case conducted according to the provisions of
chapter 17A.” Iowa Code § 21.5(1)(f).
It is true, of course, that a local civil rights commission is not an
agency under the IAPA and thus the IAPA is not directly applicable. Iowa
Code § 17A.2(1). The fact that a local civil rights commission is not
explicitly subject to chapter 17A, however, is not determinative on the
issue here. The precise question is whether the proceedings in this case
before the commission were conducted “according to the provisions of
chapter 17A,” even if chapter 17A did not expressly govern the matter.
One of the common meanings of “accordance” is agreement or
conformity. Merriam-Webster’s Collegiate Dictionary 7 (10th ed. 2002).
Courts interpreting the phrase “in accordance with” have relied upon this
common definition in a variety of contexts. See, e.g., Love v. Bd. of
County Comm’rs, 701 P.2d 1293, 1295 (Idaho 1985) (finding the phrase
“in accordance” did not require a zoning ordinance to be an exact copy of
the master plan, but rather required the ordinance to reflect the goals of
8
the plan in light of all the facts and circumstances); Holmgren v. City of
Lincoln, 256 N.W.2d 686, 690 (Neb. 1977) (same); Thomas Group, Inc. v.
Wharton Senior Citizen Hous., Inc., 750 A.2d 743, 748 (N.J. 2000) (finding
that the phrase “in accordance with the contract” in construction lien
statute must be read sensibly and consistent with the statute’s overall
intent and thus requires parties to perform work under the contract in
order to be entitled to a lien, but does not require that a party satisfy all
the contract’s terms and conditions).
Utilizing this common definition, we determine that section
21.5(1)(f) requires a contested case hearing to be conducted under
procedures consistent with, but not an exact replica of, chapter 17A in
order for its deliberations to meet the open meetings exception. Whether
the commission’s proceedings were conducted “in accordance with”
chapter 17A must be determined “in light of all the relevant
circumstances.” Mathew v. Mathew, 209 N.W.2d 573, 578 (Iowa 1973).
As noted previously, Iowa Code section 216.19 requires cities to
“maintain an independent local civil rights agency or commission
consistent with commission rules adopted pursuant to chapter 17A.”
Iowa Code § 216.19. Local civil rights commissions cooperate with the
Iowa Civil Rights Commission in the investigation and prosecution of civil
rights actions. These commissions, therefore, largely pattern their
procedures after the state commission and chapter 17A. For example,
under the Davenport ordinance, a litigant has rights and responsibilities
that are parallel to those provided by the contested case provisions of
chapter 17A, including the right to notice, to counsel, and to an
evidentiary hearing. Davenport Mun. Code § 2.58.170. The parties,
moreover, concede that on appeal, the standards of review established by
chapter 17A are applicable. As a result, we conclude that this local
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proceeding amounts to “a contested case conducted according to the
provisions of chapter 17A.” Under Iowa Code section 21.5(1)(f), the
commission acted lawfully when it conducted closed meetings to
deliberate in this matter.
We next turn to the question of whether the otherwise lawful
closed deliberations violate Botsko’s right to procedural due process of
law. We conclude statutorily-authorized closed meetings to conduct
deliberations do not violate procedural due process rights. Juries,
executive agency boards and commissions, and appellate courts engage
in closed deliberations every day. The law is fiercely protective of the
deliberative process of multi-member bodies in order to promote candid
and uninhibited discussion which produces the give-and-take that is the
hallmark of effective collective decisionmaking. See Kholeif v. Bd. of Med.
Exam’rs, 497 N.W.2d 804, 806–07 (Iowa 1993) (noting the strong public
policy reasons to avoid inquiry into mental processes of administrative
decisionmakers). We find no procedural due process infirmity as a result
of the closed deliberations in this case.
V. Procedural Due Process Challenge Arising from the
Conduct of the Director.
A. Introduction. Botsko also challenges the role of Director
Morrell in this proceeding as violating procedural due process under the
Fourteenth Amendment of the United States Constitution and article I,
section 9 of the Iowa Constitution. 3 He launches a two-pronged attack,
objecting to the presence of Director Morrell during the commission’s
deliberations. The first challenge goes to Morrell’s role in the
3While Botsko cites article I, section 9 of the Iowa Constitution, he does not
make an argument that the Iowa due process clause should be interpreted differently
than the Due Process Clause of the Fourteenth Amendment to the United States
Constitution. We therefore assume that the standards of due process are the same
under the state and federal constitutions. State v. Feregrino, 756 N.W.2d 700, 703 n.1
(Iowa 2008).
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investigation of Nabb’s claim, specifically when she participated in the
initial finding of probable cause. The second challenge goes to Morrell’s
alleged role as an advocate for Nabb at the administrative hearing and in
presenting a joint brief to this court.
Nabb counters Botsko’s arguments by asserting that a paralegal,
and not Morrell personally, investigated the case and made a
recommendation to Morrell after completing her investigation. She
further asserts there was no evidence that Morrell prosecuted the case,
noting that under the ordinance, the duties and power of the director do
not include prosecution. Davenport Mun. Code § 2.58.070.
She additionally asserts that Botsko failed to show actual bias
sufficient to overcome the presumption of honesty and integrity by
persons who serve as adjudicators. Nabb argues the undisputed
evidence shows that Morrell had no vote in the deliberative process, did
not tell anyone how to vote, and did not try to influence anyone’s vote.
Nabb finally argues that Morrell participated in the closed sessions solely
to advise the commissioners if they had any questions, to talk with them
about procedures, and to record their votes.
B. Analytic Framework for Due Process Claims in
Administrative Proceedings. A party in an administrative proceeding is
entitled to procedural due process. Richardson v. Perales, 402 U.S. 389,
401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842, 852 (1971). The question is
generally not whether a party is entitled to due process, but rather what
process is due in any particular proceeding. Morrissey v. Brewer, 408
U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484, 494 (1972). Due
process always involves, however, a constitutional floor of a “ ‘fair trial in
a fair tribunal.’ ” Withrow v. Larkin, 421 U.S. 35, 46, 95 S. Ct. 1456,
11
1464, 43 L. Ed. 2d 712, 723 (1975) (quoting In re Murchison, 349 U.S.
133, 136, 75 S. Ct. 623, 625, 99 L. Ed. 942, 946 (1955)).
The key United States Supreme Court case regarding procedural
due process in the context of the conflicting roles of agency personnel is
Withrow v. Larkin. In Withrow, the United States Supreme Court held
that procedural due process is not denied where investigative and
adjudicative functions were both housed within a medical examination
agency. Withrow, 421 U.S. at 47–55, 95 S. Ct. at 1464–68, 43 L. Ed. 2d
at 723–28. The Court generally embraced the notion that due process
required basic fairness in an administrative proceeding and noted that in
some situations, such as those involving pecuniary interest or
demonstrated personal bias, “experience teaches that the probability of
actual bias on the part of the judge or decisionmaker is too high to be
constitutionally tolerable.” Id. at 47, 95 S. Ct. at 1464, 43 L. Ed. 2d at
723.
In contrast to these settings, however, the Court stated that a
combination of investigative and adjudicative functions faces a much
more difficult burden of persuasion. Id. When a party challenges on
procedural due process grounds the combination of investigative and
adjudicative processes within an agency,
[i]t must overcome a presumption of honesty and integrity in
those serving as adjudicators; and it must convince that,
under a realistic appraisal of psychological tendencies and
human weakness, conferring investigative and adjudicative
powers on the same individuals poses such a risk of actual
bias or prejudgment that the practice must be forbidden if
the guarantee of due process is to be adequately
implemented.
Id. at 47, 95 S. Ct. at 1464, 43 L. Ed. 2d at 723–24.
The Court furthered observed in Withrow that the variety of
administrative mechanisms in the country will not yield any single
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organizing principle for procedural due process analysis. Id. at 51, 95
S. Ct. at 1466–67, 43 L. Ed. 2d at 726. Nonetheless, several of the
principles articulated in Withrow have appeared consistently in the case
law and appear to have general application.
First, the mere fact that investigative, prosecutorial, and
adjudicative functions are combined within one agency does not give rise
to a due process violation. Morongo Band of Mission Indians v. State
Water Res. Control Bd., 199 P.3d 1142, 1146 (Cal. 2009); Pub.
Employees’ Ret. Sys. v. Stamps, 898 So. 2d 664, 678 (Miss. 2005);
Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 847 (Tenn. 2008). Such
combinations inhere in the very nature of the administrative process
before an agency. Dep’t of Alcoholic Beverage Control v. Alcoholic
Beverage Control Appeals Bd., 145 P.3d 462, 464 (Cal. 2006); State ex rel.
Martin-Erb v. Mo. Comm’n on Human Rights, 77 S.W.3d 600, 610 (Mo.
2002). In addition, the mere fact that an agency adjudicator has a
supervisory role over agency actors involved in the investigatory or
prosecutorial functions of the agency does not establish a procedural due
process claim. R.A. Holman & Co. v. Sec. & Exch. Comm’n, 366 F.2d 446,
452–53 (2d Cir. 1966).
Second, consistent with Withrow, there is a consensus in the case
law that even where investigative and adjudicative functions are
combined in a single individual or group of individuals, there is no due
process violation based solely upon the overlapping investigatory and
adjudicatory roles of agency actors. For instance, the mere knowledge or
participation of an adjudicatory fact finder in a preliminary investigation
does not taint the proceedings when there is a later evidentiary hearing
before the agency on the merits of the case. Fisher v. Iowa Bd. of
Optometry Exam’rs, 510 N.W.2d 873, 877 (Iowa 1994); Wedergren v. Bd.
13
of Dirs., 307 N.W.2d 12, 17 (Iowa 1981). As noted by one appellate court,
state administrators are assumed to be professionals capable of
distinguishing between investigations to determine if a threshold
requirement for commencing the action has been met and the actual
factual adjudication of those actions. Colquitt v. Rich Twp. High Sch.
Dist. No. 227, 699 N.E.2d 1109, 1114 (Ill. App. Ct. 1998); see also Fisher,
510 N.W.2d at 877.
In order to prove a procedural due process violation in the context
of a combination of investigative and adjudicative roles, even in a single
individual, the challenging party must bear the difficult burden of
persuasion to overcome the presumption of honesty and integrity in
those serving as adjudicators. Fisher, 510 N.W.2d at 877, see also
Cronin v. Town of Amesbury, 895 F. Supp. 375, 387 (D. Mass. 1995);
Hartwig v. Bd. of Nursing, 448 N.W.2d 321, 323 (Iowa 1989).
A more serious problem, however, is posed where the same person
within an agency performs both prosecutorial and adjudicative roles. As
noted by Michael Asimow, a leading authority on administrative law, the
primary purpose of separating prosecutorial from adjudicative functions
is to screen the decisionmaker from those who have a “will to win”—“a
psychological commitment to achieving a particular result because of
involvement on the agency’s team.” Michael Asimow, When the Curtain
Falls: Separation of Functions in the Federal Administrative Agencies, 81
Colum. L. Rev. 759, 773 (1981) [hereinafter Asimow]. Richard J. Pierce,
Jr. in his leading administrative law treatise also observed, “It is difficult
for anyone who has worked long and hard to prove a proposition . . . to
make the kind of dramatic change in psychological perspective necessary
to assess that proposition objectively . . . .” 2 Richard J. Pierce, Jr.,
Administrative Law Treatise § 9.9, at 681 (4th ed. 2002).
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The distinction between combining prosecutorial rather than
investigatory roles with adjudication in a single individual has been
recognized by courts. The court in Howitt v. Superior Court, 5 Cal. Rptr.
2d 196 (Ct. App. 1992) observed:
A different issue is presented, however, where
advocacy and decision-making roles are combined. By
definition, an advocate is a partisan for a particular client or
point of view. The role is inconsistent with true objectivity, a
constitutionally necessary characteristic of an adjudicator.
Howitt, 5 Cal. Rptr. 2d at 202. Many of these cases find that such a
combination poses so great a risk that due process has been violated
without a showing of actual prejudice. See, e.g., Gonzales v. McEuen,
435 F. Supp. 460, 465 (D.C. Cal. 1977); Dorr v. Wyo. Bd. of Certified Pub.
Accountants, 21 P.3d 735, 745 (Wyo. 2001). The ordinary requirement of
actual bias or prejudice in separation of functions challenges does not
apply because the risk of impartiality is thought to be too great when an
advocate with the “will to win” also has a role in the adjudication of the
dispute. Nightlife Partners v. City of Beverly Hills, 133 Cal. Rptr. 2d 234,
246 (Ct. App. 2003). Other cases have finessed the issue of whether the
appearance of impropriety alone is sufficient to result in a due process
violation by finding the presence of actual prejudice. See, e.g., Allen v.
La. State Bd. of Dentistry, 543 So. 2d 908, 915 n.15 (La. 1989).
At least one case, however, stands for the proposition that while an
attorney who prosecuted charges and then accompanied a board to
deliberate may have acted imprudently, the fact that the counsel cast no
vote and the apparent absence of any substantial prejudice did not
warrant reversal of the adjudication. Weissman v. Bd. of Educ., 547 P.2d
1267, 1276 (Colo. 1976). The Weissman court advised in future cases
that counsel who plays a role as an advocate should not take part in the
deliberations of the board. Id. While some cases may allow one person
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to combine prosecutorial and adjudicative roles, the context is generally
one where swift decisionmaking is a necessity and the interests at stake
are minimal. See generally Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729,
42 L. Ed. 2d 725 (1975) (allowing principal to mete out student
discipline).
The contours of procedural due process in an administrative
proceeding, involving the combination of prosecutorial and adjudicative
functions, were explored in depth in Nightlife. In Nightlife, the owner of
an adult cabaret appealed a denial of a regulatory permit by city officials.
Nightlife, 133 Cal. Rptr. 2d at 237–38. An assistant city attorney who
participated in the city’s decision to deny the permit then appeared at the
appeal hearing, where the hearing officer stated that the assistant city
attorney would advise him regarding the appeal. Id. at 238. The court in
Nightlife ruled that the cabaret’s due process rights were violated by the
dual roles of the assistant city attorney. Id. at 239.
After stating the broad general principles of procedural due
process, the Nightlife court emphasized that due process in the
administrative setting required “the appearance of fairness and the
absence of even a probability of outside influence on the adjudication.”
Id. at 242–43. In support of its contention that the “appearance of
fairness” implicates due process concerns, the court cited provisions of
the California Administrative Procedure Act, the Federal Administrative
Procedure Act, and other state administrative procedure acts that
provide for the separation of prosecutorial and adjudicatory functions.
Id. at 244–45.
The Nightlife court recognized that the combination of investigative
and adjudicative functions, standing alone, did not generally create a due
process violation in the absence of some showing of bias. Id. at 243. The
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court observed, however, that “the same cannot be so readily said when
prosecutorial and adjudicative functions are too closely combined.” Id. at
243–44. In analyzing the combination of prosecutorial and adjudicative
functions, the Nightlife court stated,
[T]o permit an advocate for one party to act as the legal
advisor for the decision-maker creates a substantial risk that
the advice given to the decision-maker will be skewed,
particularly when the prosecutor serves as the decision-
maker’s advisor in the same or a related proceeding.
Id. at 245. As a result, the court concluded that it was improper for an
attorney to serve as a partisan advocate and as a legal advisor to the
neutral decision-maker. Id. at 248.
Even the Nightlife court noted, however, that the mere asking of
questions by an agency lawyer in an administrative hearing did not
amount to partisan activity. Id. at 247. For instance, in 12319 Corp. v.
Business License Commission, 186 Cal. Rptr. 726, 731 (Ct. App. 1982), a
government lawyer in an administrative hearing asked whether a witness
was familiar with a signature and whether the witness could recognize
the signature on a document. The court held that the questioning was
not inconsistent with the role of a neutral advisor taking action to ensure
that the evidence was properly before the commission and did not
amount to adoption of the prosecutorial role. 12319 Corp., 186 Cal.
Rptr. at 731.
Determining whether an individual’s actions amount to neutral
participation or are prosecutorial, for due process purposes, is not
always clear. Asimow, 81 Colum. L. Rev. at 776–77. As noted by
Asimow, while it is possible to take the position that all participation of
any kind in prosecution raises the problem, a strict approach is
oversimplified and could be quite costly. Id. at 776. “Agency technical
17
staff is a limited and valuable resource” that should be available as a
source of expertise to agency decisionmakers. Id.
As a result, Asimow questions whether the mere giving of technical
advice to an adversary is sufficient participation in the prosecution to
preclude an individual from later participation in the adjudication as an
advisor. Id.; see also Dittus v. N.D. Dep’t of Transp., 502 N.W.2d 100,
103–04 (N.D. 1993) (offering of foundational exhibits in proceeding
insufficient basis to preclude agency official from participating in
adjudication). Additionally, the mere approval of the form of a draft order
by a staffer who was an advocate may not be sufficient to trigger a
procedural due process violation. Richview Nursing Home v. Minn. Dep’t
of Pub. Welfare, 354 N.W.2d 445, 460 (Minn. Ct. App. 1984).
A number of cases also hold that, like a judge in a judicial
proceeding, neutral staff members of an agency may ask questions in an
adjudicative proceeding in order to clarify the record without being
regarded as a partisan advocate and violating due process if they
subsequently participate in adjudicatory functions. 12319 Corp., 186
Cal. Rptr. at 731. In addition, the mere filing of a complaint by an
executive director is considered ministerial in nature and does not give
rise to a due process issue in the event the executive director participates
in the final agency adjudication. Eaves v. Bd. of Med. Exam’rs, 467
N.W.2d 234, 236–37 (Iowa 1991); see also Finer Foods Sales Co. v. Block,
708 F.2d 774, 779–80 (D.C. Cir. 1983).
Finally, the involvement of agency staff in judicial proceedings after
the agency has reached a final decision is not generally regarded as
raising procedural due process problems. In this setting, the advocate is
defending a final agency action that is unlikely to produce the same
psychological commitment as when an agency staffer seeks to persuade
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the agency on the merits. Asimow, 81 Colum. L. Rev. at 777; Ceres
Marine Terminal, Inc. v. Md. Port Admin., No. 94-01, 1999 WL 287321, *6–
*12 (F.M.C. April 16, 1999) (finding participation in briefing before
appellate court defending agency action not prosecution that engenders a
“will to win” sufficient to raise procedural due process infirmity when
combined with other agency roles).
On the other hand, as in Nightlife, when a staff member becomes
involved in the plaintiffs’ litigation strategy or assumes a personal
commitment to a particular result, he or she becomes an adversary with
the “will to win.” Asimow, 81 Colum. L. Rev. at 778. In Withrow
terminology, when an agency staffer functions as an advocate, experience
teaches that the probability of actual bias is too high to allow the staffer
to also participate in the adjudicative process. See, e.g., Gonzales, 435
F. Supp. at 464–65 (finding procedural due process violation without
showing of bias where school district attorneys acted as prosecutors and
then as legal advisors to the board in school expulsion matter); Schmidt
v. Indep. Sch. Dist. No. 1, Aitkin, 349 N.W.2d 563, 568 (Minn. Ct. App.
1984) (finding procedural due process violation where counsel presented
case for terminating teacher, advised board chairman on legal rulings,
and drafted and presented the findings of fact and conclusions of law).
As is often the case with respect to procedural due process, the question
is one of line-drawing and balancing. See generally Mathews v. Eldridge,
424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
C. Application. We reject Botsko’s claim that Morrell’s mere
participation in the probable cause finding and the deliberations of the
commission violates due process. The fact that Morrell may have made
an initial finding of probable cause in this matter does not necessarily
give rise to a due process violation if she later participates as an advisor
19
in the commission’s deliberations. Under Withrow, a party who contends
that the participation of an agency staff member in investigatory and
adjudicatory functions violated due process must overcome a
presumption of honesty and integrity. Withrow, 421 U.S. at 47, 95 S. Ct.
at 1464, 43 L. Ed. 2d at 723–24. The fact that Morrell had some
involvement in the initial finding of probable cause and later participated
in the deliberations is not sufficient to give rise to a due process violation
in the absence of a demonstration of actual bias.
Botsko argues, however, that Morrell did not simply participate in
the initial finding of probable cause and the agency’s later deliberations.
Botsko claims that Morrell was an advocate for Nabb at the
administrative hearing. Botsko notes that Morrell introduced several
exhibits into the record for jurisdictional purposes. She was also seated
at counsel table with Nabb’s attorney. Botsko further notes that during
the evidentiary presentation, Morrell and Nabb’s counsel engaged in
numerous off-the-record consultations. Finally, Botsko asserts that
Morrell joined Nabb’s counsel in its brief to this court. The commission
and the district court, however, found that Morrell did not improperly act
as an advocate in the proceedings.
First, we are not troubled by the fact that Morrell entered several
exhibits into the record for jurisdictional purposes. These actions related
to uncontested matters that simply set the stage for the proceeding.
These activities are the kind of marginal participation in the
administrative process that do not give rise to the “will to win” that would
unduly tilt the playing field when prosecutorial and adjudicatory
functions are combined. Dittus, 502 N.W.2d at 103–04.
Second, we also are not concerned about Morrell’s participation in
the litigation after the agency made its final determination. Such post-
20
decision defense of agency action does not inject unacceptable risks of
bias into the agency determination. Ceres, No. 94-01, 1999 WL 287321
at *6–*12.
Of more concern is the fact that Morrell sat at counsel table for the
plaintiff and participated in off-the-record conferences with Nabb’s
private counsel at the close of testimony. While it is true that Morrell did
not ask any questions directly of any witness, on at least one occasion,
after discussions between Morrell and counsel for Nabb, counsel for
Nabb asked additional questions, which led to Botsko’s impeachment.
Morrell did not engage in similar private conferences with counsel for
Botsko. While the record does not indicate the nature of these
conversations, the ALJ apparently believed that Morrell was participating
in the prosecution of the case, observing at the close of evidence that the
burden of proof was on “Ms. Greve [Nabb’s attorney] or Ms. Morrell.” If
Morrell were a neutral observer, she would have no burden of proof.
Where it is undisputed that the director of an agency sits at
counsel table with a complainant, confers with that counsel at the close
of the testimony of witnesses, and does not object when the hearing
officer suggests that she, along with counsel for the complainant, bears
the burden of proof, we conclude, as a matter of law, that the director
was engaged in advocacy on behalf of the complainant. That advocacy is
of a sufficient nature to preclude her later participation in the
adjudicatory process in the case under the due process clauses of the
state and federal constitutions. Nightlife, 133 Cal. Rptr. 2d at 248. The
combination of advocacy and adjudicative functions has the appearance
of fundamental unfairness in the administrative process. Id. at 242–43.
Further, because of the risk of injecting bias in the adjudicatory process,
Botsko is not required to show actual prejudice. Id.
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The commission, nevertheless, argues that Morrell did not perform
as an advocate in the adjudicative stage of the proceeding. The
commission points out that Morrell did nothing more than answer
questions of the commissioners in its closed sessions. Further, affidavits
from various commission members state that they made their findings
independently. These arguments and declarations, however, provide this
court with little comfort. An advocate can accomplish much by simply
answering questions. Indeed, that is what happens in every case where
there are oral arguments before this court, where a skilled advocate will
answer the court’s questions in terms as objective as possible as a means
of convincing the court to adopt a client’s position. We cannot accept the
contention that Morrell, after assisting Nabb as a second-chair advocate,
may retreat into the closed sessions of the agency to “answer questions.”
D. Remedy. In light of the due process violation, the decision of
the commission must be vacated and the case remanded for further
proceedings. The commission may avoid the due process violation by
submitting the case, on the record previously developed, to a
disinterested quorum of current commission members. See In the Matter
of Broome County Dep’t of Pub. Transp. v. New York State Div. of Human
Rights, 632 N.Y.S.2d 266, 267 (App. Div. 1995) (calling for remand for
further proceedings before an impartial arbitrator in light of due process
violation). In addition, the commission may explore the possibility under
any applicable cooperation agreement of presenting the case before an
untainted body of the Iowa Civil Rights Commission. See Iowa Code
§ 216.19(2), (3) (2009).
VII. Conclusion.
For the above reasons, the decision of the court of appeals is
affirmed in part and vacated in part and the district court judgment is
22
affirmed in part and reversed in part. The case is remanded to the
commission for further proceedings consistent with this opinion. Costs
on appeal are taxed to the parties equally.
DECISION OF THE COURT OF APPEALS AFFIRMED IN PART
AND VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED
IN PART AND REVERSED IN PART.
All justices concur except Baker, J., who takes no part.