B. Ruling on Motion to Dismiss:

1. At the close of the hearing, the Respondents made a motion for dismissal. (Tr. at 393). This motion was based on the argument that the Commission had failed to carry its burden of persuasion because (a) the statute provides that the case in support of the complaint shall be presented by the commission's attorney, (b) the burden of proof is on the Commission, (c) the evidence was introduced through the complainant's attorney, not the Commission's attorney, (d) this evidence was not formally adopted by the Commission's attorney, and, therefore, (e) the Commission failed to met its burden of persuasion because evidence was not presented by its attorney. (Tr. at 393-94).

2. The statutory authorities relied upon by the Respondent are Iowa Code sections 216.15(6)(1993)(formerly 601A.15(6)) and 216.15(7)(1993)(formerly 601A.15(7)). These sections provide:

6. The case in support of such complaint shall be presented at the hearing by one of the commission's attorney's or agents. The investigating official shall not participate in the hearing except as a witness nor participate in the deliberations of the commission in such case.

7. The hearing shall be conducted in accordance with the provisions of chapter 17A for contested cases. The burden of proof in such a hearing shall be on the commission.

Iowa Code S 216.15(6), (7) (1993).

3. While the Respondent emphasizes the provisions concerning the presentation of evidence by the commission's attorney's or agents and the burden of proof being on the commission, Iowa Code S 216.15(6), (7), it neglects the provision providing that the "hearing shall be conducted in accordance with the provisions of chapter 17A [the Iowa Administrative Procedures Act] for contested cases." Iowa Code S 216.15(7). It is important to note that this latter provision was added by the 1979 amendments. Acts 1978 (67 G.A.) ch. 1179, S 15).

4. This amendment requiring compliance with the Iowa Administrative Procedures Act (IAPA) provisions for contested cases replaced four subsections of the Iowa Civil Rights Act setting forth hearing procedures. Acts 1978 (67 G.A.) ch. 1179, S 15. One of the stricken provisions provided that the complainant might be allowed, at the discretion of the hearing officer, to intervene and present evidence at the hearing. Iowa Code Ann. S 601A.14(8)(1975). The effect of the amendment, however, was to recognize that the complainant (as well as the Commission and respondent) had a right to an "[o]pportunity . . . to respond and present evidence and argument on all issues involved and to be represented by counsel." Iowa Code S 17A.12(4), "in accordance with the provisions of chapter 17A for contested cases." Iowa Code S216.15 (7) (1993). It is inherent in this statute that all three parties, the Commission, the Complainant, and the Respondent, also have the right to present evidence by the introduction of exhibits and the examination of witnesses. See Iowa Code S 17A.12(4). After the amendment, the Complainant's opportunity to present evidence was not subject to the discretion of the hearing officer. See id;.Acts1978 (67 G.A.) ch. 1179, S 15.

5. This right would be rendered meaningless, however, if the evidence presented by the complainant were not to be considered in determining whether the Commission had met its burden of proof. This absurd result which would be contrary to the legislature's intent in giving parties the right to present evidence, Iowa Code S 17A.12(4), requiring the record to include "[a]ll evidence received or considered," id. at S 17A.12(6)(b), requiring findings of fact to be "based solely on evidence in the record and on matters officially noticed in the record." id. at S 17A.12(8), and requiring reversal or other corrective action on judicial review, if the decision is "unsupported by substantial evidence in the record . . . when that record is viewed as a whole." Id. at 17A.19(8)(f)(emphasis added). There is no statute or other legal authority requiring the Commission in its prosecutorial capacity to formally adopt the evidence in the record introduced by any other party, whether complainant or respondent, before that evidence can be considered in deciding whether the Commission has met its burden of proving discrimination.

6. Finally, the statute requiring the Commission's attorneys or agents to present evidence in support of the complaint, Iowa Code S 216.15(6), is a directory, not a mandatory, statute. The difference was explained in Foods, Inc. v. Iowa Civil Rights Commission:

Mandatory and directory statutes each impose duties. The difference between them lies in the consequence for failure to perform the duty. Whether the statute is mandatory or directory depends upon legislative intent. When statutes do not resolve the issue expressly, statutory construction is necessary. If the prescribed duty is essential to the main objective of the statute, the statute ordinarily is mandatory and a violation will invalidate subsequent proceedings under it. If the duty is not essential to accomplishing the principal purpose of the statute, but is designed to assure order and promptness in the proceeding, the statute is ordinarily directory and a violation will not invalidate subsequent proceedings unless prejudice is shown.

Foods, Inc. vs. Iowa Civil Rights Comm., 318 N.W.2d 162, 170 (Iowa 1982)(quoting Taylor v. Dept. of Transportation, 260 N.W.2d 521, 522-23 (Iowa 1977)).

7. Iowa Code subsection 216.15(6) does not expressly state whether it is directory or mandatory. The subsection has remained intact from the time when the complainant had no statutory right to present evidence and the Act made no provision for attorney's fees or monetary remedies beyond back pay. See Iowa Code Ann. SS 601A.14 (7), (8), (12) (1975). It was understood that it might be difficult for a complainant to retain counsel if his fees were to be paid out of the limited damages then available. See Bonfield, A., State Civil Rights Statutes: Some Proposals, 40 Iowa L. Rev. 1067, 1113 (1964)(noting difficulty of retaining plaintiff's counsel in civil rights action due to limited damages--the influence of this article on the content of the Iowa Civil Rights Act was recognized in United States Jaycees v. Iowa Civil Rights Commission, 427 N.W.2d 450, 454 (Iowa 1988)). This provision, therefore, helps to assure order and promptness in the public hearing in two ways. First, by assigning to Commission attorneys or representatives the task of presenting evidence in support of the complaint, the statute avoids the confusion of proceedings where pro se complainants would be required to attempt to present the evidence themselves. Second, it resolved the question of whether the Commission could properly present evidence as a party acting in the public interest at its hearings. Cf. Cedar Rapids Human Rights Commission v. Cedar Rapids Community School District, 222 N.W.2d 391, 395 (Iowa 1974)(local civil rights commission acts as plaintiff on behalf of the public interest in hearings before the agency). Of course, the provision still serves both purposes in those cases where complainants are not represented by counsel and the second purpose where evidence is presented by both the Commission's and complainant's counsel.

8. Nonetheless, subsection 216.15(6) is subsidiary to the principal purpose of the Act, "to eliminate unfair and discriminatory practices in . . . employment," Foods, Inc., 318 N.W.2d at 170 (quoting 1965 Session, 61st G.A., ch. 121). That purpose can be served equally well by the presentation of evidence either by the complainant's counsel or the Commission's counsel. There is no showing that Respondent has been prejudiced by the Complainant's exercise of her statutory right to present evidence or by any failure of the Commission's counsel to do so. See id.

9. The motion to dismiss is denied.

D. Ruling on Whether Question Requests Evidence Which is Irrelevant, Immaterial or Incompetent:

1. The Respondent objected to the following question, which was asked of Complainant Martin, on the grounds that it was irrelevant, immaterial and incompetent: "Q. What was your understanding of what John [Bandstra, a therapist employed by Respondent who worked in Oelwein] was supposed to be doing as far as keeping Northeast Iowa Mental Health Center informed of your progress?" (Tr. at 31).

2. As a general rule, "administrative agencies are not bound by technical rules of evidence." Hamer v. Iowa Civil Rights Commission, 472 N.W.2d 259, 262 (Iowa 1991). The Commission may rely on "the kind of evidence on which reasonably prudent persons are accustomed to rely for the conduct of their serious affairs." Iowa Code S 17A.14(1). However, "[i]rrelevant, immaterial, or unduly repetitious evidence should be excluded." Id.

3. The witness here was competent to testify as to her own understanding of what Mr. Bandstra was supposed to be doing with respect to keeping the Northeast Iowa Mental Health Center informed of her progress. Therefore the objection as to competency is overruled.

4. The question asks for relevant information which tends to "make the existence of [a] fact of consequence to the determination of the [contested case] more or less probable than it would be without such evidence." Iowa R. Evid. 401 (definition of relevant evidence). The fact is the complainant's understanding of Bandstra's role in keeping the Respondents informed of her progress with respect to her cancer surgery and recovery. This has some bearing on the question of whether respondent was kept informed of the progress of her illness. The question also requests material evidence as it is pertinent to that issue. BLACK'S LAW DICTIONARY 881 (5th ed. 1979)(citing Vine Street Corp. v. City of Council Bluffs, 220 N.W.2d 860, 863 (definition of material evidence)). The objections to materiality and relevancy are also overruled.

E. Ruling on Other Concerns Raised on Brief:

1. There are some other concerns with Commission procedures raised on Respondent's Reply Brief which should be addressed although they are not dispositive. (Reply Brief at 13-14). Respondents seem to suggest that the complainant is being represented by two counsel, her attorney and the assistant attorney general, both of whom were allowed to examine witnesses. Respondents feel this is unfair and contrast this situation with that in trial court where "a party may employ as many attorneys as he wants . . . but . . . only one of them may question any one witness and they may not take turns questioning that witness." (Reply Brief at 13-14). The basic misunderstanding here is the failure to realize that there are two "plaintiffs" in this proceeding, not one. The first is the Commission operating in its prosecutorial capacity, on behalf of the public interest, as the party with the burden of proof. See Iowa Code S 216.15(6), (7); Cedar Rapids Human Rights Commission v. Cedar Rapids Community School District, 222 N.W.2d 391, 395 (Iowa 1974). By definition, the burden of proof can only be imposed on an entity who is a party. See BLACK'S LAW DICTIONARY 178 (5th ed. 1979)("burden of proof"). In accordance with the statutes, it is represented by an assistant attorney general. Iowa Code SS 13.2, 13.7. The second is the Complainant, represented by her counsel under Iowa Code S 17A.12(4), who is protecting her statutory and due process property "right not to be discriminated against because of her [disability]." Estabrook v. Iowa Civil Rights Commission, 283 N.W.2d 305, 310 (Iowa 1979). As in civil court proceedings, each party is entitled to examine or cross-examine witnesses, as required by due process. See Koelling v. Board of Trustees, 259 Iowa 1185, 1197, 146 N.W.2d 284 (1967).

2. Relying only on an article which cites no legal authority, McKinley, The President's Letter, 54 The Iowa Lawyer 4 (February 1994), Respondents argue that the combination of investigative, probable cause, and adjudicative functions within an administrative agency is unfair. The Iowa Supreme Court, however, has held for almost thirty years that "[a] 'fair day in court' is not defeated by the fact the hearing is before the same administrative agency which lawfully conducted a prehearing investigation or preferred charges." Cedar Rapids Steel Transportation Inc. v. Iowa State Commerce Commission, 160 N.W.2d 825, 836 (Iowa 1968). The Iowa Supreme Court, the United States Supreme Court, and the two leading legal treatises on administrative law are all in agreement that the general combination of investigative, probable cause, prosecutorial, and adjudicative functions within an agency does not violate due process. See e.g. id.; Board of Dental Examiners v. Hufford, 461 N.W.2d 194, 200 (Iowa 1990); Hartwig v. Board of Nursing, 448 N.W.2d 321, 323-24 (Iowa 1989); Wedergren v. Board of Directors, 397 N.W.2d 12, 17-18 (Iowa 1981); Withrow v. Larkin, 421 U.S. 35, 53, 56-58 (1978); B. Schwartz, Administrative Law S 6.22, p. 356 (1991); 3 K. Davis, Administrative Law Treatise (1980) 384 (citing Withrow at 53). The combination of prosecutorial and adjudicative functions in the same individual may violate due process, Wedergren, 307 N.W.2d at 18, but such combination cannot happen here. Iowa Code S 17A.17(3). Also, the only significance of the probable cause finding in this hearing is that it is a statutory prerequisite to the holding of the hearing. Iowa Code S 216.15(3).