BEFORE THE IOWA CIVIL RIGHTS COMMISSION

ORLANDO RAY DIAL, COMMISSIONER; CRISTEN HARMS, and MIKE DE VOLDER, Complainants,

and


IOWA CIVIL RIGHTS COMMISSION,

VS.


FRIEDMAN MOTORCARS, LTD., MIKE FRIEDMAN, TIM MANNING, GARY FRIEDMAN, SCOTT HENRY, PAT SULLIVAN and CHERYL RUBLE, Respondents.

 

RULING ON MOTION FOR CHANGE OF VENUE AND REASSIGNMENT

Findings of Fact:

1A. On Thursday, March 28, 1991, four days before the hearing, Respondents, relying on Iowa Rule of Civil Procedure 167(b) and 161 Iowa Administrative Code 4.2(4), filed a motion for change of venue and reassignment. The motion did not seek a change of location of the hearing but did seek disqualification of the Administrative Law Judge and appointment of an administrative law judge not employed by the Commission. After the opportunity was given to present evidence on this issue, and after argument by counsel, the motion was denied at the outset of the hearing on April 1, 1991. (Tr. at 5-20). The findings of fact and conclusions of law set forth below clarify and expand the reasons for that decision.

2A. Respondents introduced no affidavits or other evidence into the record in support of their motion. (Tr. 5-20).

3A. On January 25, 1991, a motion for continuance filed by Respondents was granted. Ruling on Respondents' Motions to Compel Discovery and For Continuance. Respondents conceded that, on that date, they were aware of the following facts, which were all the facts set forth as the basis for their motion for change of venue and reassignment:

(a). The Administrative Law Judge assigned to this case was employed by and performed his duties for the Iowa Civil Rights Commission. (Tr. at 11-12).

(b). That Orlando Ray Dial was a commissioner of this commission. (Tr. at 1 1). [The fact that Orlando Ray Dial was a commissioner was also set forth in Commissioner Dial's complaint filed on June 7,1989. (Complaint). It was also set forth in the Notice of Hearing issued on October 23, 1990.]

(c). Assistant Attorney General Teresa Baustian, in the words of the motion, "Works solely for the Iowa Civil Rights Commission, though she is employed through the Attorney General's Office for the State of Iowa." (Tr. at 12).

(d). That the Respondents believed (1) the Administrative Law Judge assigned to this case investigates cases for the Commission, and (2) that the Administrative Law Judge assigned to this case 11 personally knows" Commissioner Orlando Ray Dial within the meaning of that phrase as used in 161 Iowa Administrative Code 4.2(4). (Tr. at 12).

4A. In the course of ruling on this motion, it was proposed that official notice be taken of the following facts. (Tr. at 20-22). No resistance to the taking of official notice of these facts nor any evidence contradicting them was offered. Therefore, official notice is taken of the following facts:

(a). The Administrative Law Judge assigned to this case is an employee of the Iowa Civil Rights Commission. He does not have any investigative or prosecutorial duties. He has only adjudicative duties with respect to contested cases..

(b). Orlando Ray Dial is a commissioner of the Iowa Civil Rights Commission and was one at the time he filed the complaint in his capacity as a commissioner.

(c). The Administrative Law Judge assigned to this case knows Commissioner Dial in the sense that he can identify him, but does not know him in the sense that one personally knows a friend or close associate.

(d). Teresa Baustian is an Assistant Attorney General employed by the Attorney General's office and assigned to the Iowa Civil Rights Commission. She prosecutes contested cases in support of the complaint as the Commission's representative. She has no adjudicative responsibilities.

(e). As described and required by statute, Iowa Code Section 17A.17(3), there is in effect a separation of functions at the Iowa Civil Rights Commission, i.e. "No individual who participates in the making of any proposed or final decision in a contested case shall have prosecuted it or advocated in connection with that case, the specific controversy underlying that case, or another pending factually related contested case, or pending factually related controversy that may culminate in a contested case, involving the same parties. Nor shall any such individual be subject to the authority, direction or discretion of any person who has prosecuted or advocated in connection with that contested case, the specific controversy underlying that contested case, or a pending factually related contested case or controversy, involving the same parties."

5A. The underlying facts supporting Finding of Fact No. 4A(e) above include those facts stated in Findings of Fact Nos. 4A(a) and 4A(d). In addition, official notice is taken that the Administrative Law Judge assigned to this case is not subject to the authority, direction or discretion of any person involved in the prosecution or advocacy of this or other contested cases before this Commission. Fairness to the parties does not require that they be given an opportunity to contest this fact.

6A. Official notice is taken of the fact that, since the issuance of the notice of hearing in the Frank Robinson case on May 23, 1990, all notices of hearing in contested cases, including this one, have included the Iowa Civil Rights Commission as a named party in order to ensure the parties are aware that, as mandated by statute, the Commission will be represented at hearing in its prosecutorial capacity. See Conclusion of Law No. 16A. This also helps to make the parties aware that the Assistant Attorney General prosecuting the case is representing the Commission and not the complainant albeit their goals may be very similar at the public hearing stage. This practice of naming the Commission as a party is not limited to cases in which a Commissioner or the full Commission initiates a charge. Fairness to the parties does not require that they be given an opportunity to contest these facts.

7A. Official notice is taken of the fact that individual Commissioners of the Iowa Civil Rights Commission, when acting in their capacity as commissioners and not as private individuals, file complaints to promote the public interest in investigating, conciliating, and ending the practices of discrimination alleged therein. When acting in this capacity, the Commissioner is acting as a representative of the people of the State of Iowa and not on the basis of his own personal interest. See Conclusions of Law No. 15A-16A. Fairness to the parties does not require that they be given an opportunity to contest this fact.

Conclusions of Law:

1A. Official notice has been taken of several facts. Official notice may be taken of all facts of which judicial notice may be taken and of facts within the specialized knowledge of the Commission, such as its own internal operating procedures. See Iowa Code § 17A.14(4).

Rulings on Procedure:

2A. The procedural authority relied on by the Respondents for their motion for change of venue and reassignment was Iowa Rule of Civil Procedure 167 (b), which permits such motions in district court: The Rule states, in relevant part:

167. Grounds for change. On motion, the place of trial may be changed as follows:

...

b. Interest of Judge. Where the trial judge is directly interested in the action.

Iowa R. Civ. P. 167(b) (emphasis in original).

3A. The Rules of Civil Procedure, however, "govern the practice and procedure in all courts of the state." Iowa R. Civ. P. 1. (emphasis added). "The functions of administrative agencies and courts are so different that the rules governing judicial proceedings are not ordinarily applicable to administrative agencies unless made so by statute." Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 769 (Iowa 1971)(quoting with approval 1 Davis, Administrative Law § 8.03 p.522 (1958)).

4A. For example, the Iowa Administrative Procedures Act provides that the rules on discovery applicable in civil actions shall also apply in contested cases before administrative agencies. Iowa Code § 17A.13(l). (1991). Therefore, under that statutory authority, Respondents' motions to compel discovery and for continuance were granted in order to protect their discovery rights. Ruling on Respondents' Motions' to Compel Discovery and For Continuance. There is, however, no statutory authority, case law, or rule providing that Iowa Rule of Civil Procedure 167(b) shall apply in administrative proceedings. Respondents conceded they knew of no such authority. (Tr. at 9-1 0).

5A. Iowa Code § 17A.4(4) sets forth the proper procedure for seeking disqualification of an Administrative Law Judge, either for violating the separation of functions provision in Iowa Code 17A.17(3), or for personal bias:

A party to a contested case proceeding may file a timely and sufficient affidavit asserting disqualification according to the provisions of subsection 3, or asserting personal bias of an individual participating, in the making of any proposed or final decision in that case. The agency shall determine the matter as part of the record in the case. When an agency in these circumstances makes such a determination with respect to an agency member, that determination shall be subject to de novo judicial review in any subsequent review proceeding of the case.

Id. (emphasis added). Respondents' failure to file any affidavit, as well as its failure to seek disqualification until the Thursday preceding a Monday hearing, requires rejection of the bias claim. Cf. B. Schwartz, Administrative Law § 6.19 p. 325 & nn. 2-3 (2nd ed. 1984)(citing NLRB v. Sanford Home, 669 F.2d 35 (2nd Cir. 1981)(failure to file affidavit-Federal Administrative Procedures Act); Capital Transportation Co. v. United States, 612 F.2d 1312 (lst Cir. 1979)(untimely bias claim)). The motion was properly denied.

6A. Additional procedural and substantive rulings in the alternative to this ruling were made as independent grounds for denial of the motion. (Tr. at 22-33). If Rule 167(b) did apply in administrative proceedings, then Iowa Rule of Civil Procedure 168(d) would also apply:

Iowa R. Civ. P. 168(d)(emphasis added).

7A. In this case, a continuance had been granted at Respondents' request on January 25, 1991, approximately two months prior to the time when Respondents filed their motion for change of venue and reassignment. Respondents conceded that, as of January 25th, they were aware of every fact which they alleged in support of their motion for change of venue or reassignment. See Finding of Fact No. 3A. Therefore, there was no "cause arising since [the] continuance or not known to the moveant prior thereto," and the motion was properly denied on that basis. Iowa R. Civ. P. 168(d).

Rulings on the Merits:

Presumption of Impartiality:

8A. There is a rebuttable presumption of regularity and impartiality in all official actions of administrative agencies. Cedar Rapids Steel Transportation, Inc. v. Iowa State Commerce Commission, 160 N.W.2d 825, 836 (Iowa 1968). This encompasses "a presumption of honesty and integrity in those serving as adjudicators." Withrow v. Larkin, 421 U.S. 35, 47 (1975)(quoted with approval in Hartwig v. Board of Nursing, 448 N.W. 321, 323 (Iowa 1989)). "Without a showing to the contrary, state administrators 'are assumed to be (persons) of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own merits."' Id. at 55 (quoting United States v. Morgan, 313 U.S. 409, 421 (1941)).

Requirement for Proof of Bias:

9A. The same basic legal principles govern the disqualification of administrative law judges and district court judges for legal bias. B. Schwartz, Administrative Law § 6.16 p. 315 (2nd ed. 1984). The reason why an affidavit, or other evidence, is required for the disqualification of an administrative law judge is because the party proposing disqualification bears a substantial burden of persuasion when it seeks to prove, as it must, its reasons for disqualification. Anstey v. Iowa State Commerce Commission, 292 N.W.2d 380, 390 (Iowa 1980); Hartwig v. Board of Nursing, 448 N.W. 321,323 (Iowa 1989); State v. Smith, 242 N.W.2d 320, 324 (Iowa 1976); Caylor v. Employers Mutual Casualty Company, 337 N.W.2d 890,895 (Iowa Ct. App. 1983). The party proposing disqualification must prove its reasons based on "allegations of fact, not conclusions or frivolous assertions." State v. Smith, 242 N.W.2d at 324. "[I]t is actual prejudice on the part of a judge, and not mere apprehension of it, which disqualifies. The disqualifying interest of a judge does not include every bias or partiality he may entertain." In Re Hale's Estate, 231 Iowa 1018, 1022, 2 N.W.2d 775 (1942). "in order to disqualify [an administrative decision maker], it must be shown 'that he is not capable of judging a particular controversy fairly on the basis of its own circumstances."' Anstey v. Iowa State Commerce Commission, 292 N.W.2d at 390. The party alleging bias must prove "an adverse, preconceived mental attitude or disposition toward the [party] by the administrative tribunal of such substantial weight as to impair materially or destroy the impartiality necessary to a fair hearing." State v. Iowa Merit Employment Commission, 231 N.W.2d 854, 857 (Iowa 1975).

10A. In summary:

A party must allege concrete facts that demonstrate the challenged judicial officer is contaminated with bias or prejudice. "Bias and prejudice are never implied and must be established by clear averments." (Citation omitted). Indeed, a party's unilateral perception of an appearance of bias cannot be a ground for disqualification unless we are ready to tolerate a system in which disgruntled or dilatory litigants can wreak havoc with the orderly administration of dispute resolving tribunals. "A judge should not be disqualified lightly or on frivolous allegations or mere conclusions." (Citation omitted).

Andrews v. Agricultural Labor Relations Board, 171 Cal. Rptr. 590 623 P-2d 151,157 (Cal. 1981)(upholding Administrative Law Officer's refusal to disqualify himself).

Alleged Grounds for Disqualification:

11A. The Respondents' motion set forth three grounds for disqualification:

6. That the due process rights of the Respondents require that this Commission appoint an independent, disinterested, fair and impartial Administrative Law Judge to hear this case, who is employed other than through the Iowa Civil. Rights Commission. The present posture of the case allows for the Commission's own employee to hear this matter, even though the Commission is a directly named party to this action. Thus, allowing the Commission to be a party, prosecutor, and judge within the same action.

7, Iowa Rule of Civil Procedure 167(b) provides for a change of venue "where the trial judge is directly interested in the action . . . ."

8. 161 Iowa Administrative Code 4.2(4) provides that interested parties shall disqualify themselves to serve as a hearing examiner.

Respondents Motion for Change of Venue and Reassignment at 2. (emphasis added).

12A. Although this factor was not mentioned in their motion, during the course of argument Respondents also asserted that the Administrative Law Judge assigned to this case should disqualify himself under the rule requiring disqualification of "[p]ersons who ... personally know the complainant or respondent," 161 Iowa Administrative Code 4.2(4), as the Respondents believe he "personally knows" Commissioner Orlando Ray Dial as that phrase is used in this rule. (Tr. at 6-7).

Due Process:

13A. The requirement for due process in any proceeding in which the government seeks to compel a person to pay damages or otherwise surrender property is based on the constitutional command "nor shall any State deprive any person of..... property, without due process of law." U.S. CONST. amend. xiv, § 1.

14A.

Due process requires an impartial tribunal that ensures neutrality in adjudicative proceedings. "Concededly, a 'fair trial in a fair tribunal is a basic requirement of due process.' . . . This applies to administrative agencies which adjudicate as well as to courts." The law recognizes two main types of legal bias: (1) interest; (2) personal bias and prejudice. When any of these types of bias is present, the tainted adjudicator must disqualify himself. If he does not do so, the decision he made or participated in must be set aside. The rules [i.e. legal principles] governing legal bias apply equally in courts and agencies.


B. Schwartz, Administrative Law § 6.16 p. 315 (2nd ed.1984)(emphasis added).

15A. The Commission, like many administrative agencies, may file a complaint alleging a violation of the statute it enforces. Iowa Code 601A.15(l); B. Schwartz,.Administrative Law § 6.20 p. 329 (2nd ed.1984). An individual commissioner or the attorney general also has this right. Iowa Code §601A.15(l). And, of course, "any person claiming to be aggrieved by an unfair or discriminatory practice" may file a complaint with the Commission. Iowa Code § 601A.15(l). In light of the absence of any requirement that the Commission, a commissioner or the attorney general claim to be aggrieved by a discriminatory practice, it is clear that complaints filed by them serve a purpose other than remedying any personal loss or damage sustained as the result of discrimination. It is reasonable to conclude that their power to file complaints is designed to serve the public interest in eliminating discrimination.

16A. After the complaint is filed, the Commission has the power to investigate the complaint, attempt to conciliate it, issue a notice of hearing, prosecute the case, hear the case, and decide it. Iowa Code § 601A.15. Even where the original complaint was not filed by the Commission or a commissioner, it is the agency's prerogative, as part of its prosecutorial discretion, to decide whether to proceed to public hearing, what parties to prosecute, and what allegations it will prosecute. See Iowa Code § 601A.15(5); Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 766 (Iowa 1971). The charges preferred by the agency are set forth in the Notice of Hearing. Iowa Code § 601A.15(5). In this sense, every complaint litigated before this agency is an agency complaint. At the hearing, "the commission's attorneys or agents" present "the case in support of the complaint." Iowa Code 601A.15. Therefore, in every case:

[t]he Commission acts in the capacity of a"plaintiff" although complaining persons [may have] presented the original issues. An administrative agency often acts upon a complaint by a citizen, although the agency through its staff, will run the proceeding against the alleged offending party and not the citizen who complains. Thus the agency, acting in the public interest, "complains of an injury."

Cedar Rapids Human Rights Commission v. Cedar Rapids Community School District, 222 N.W.2d 391, 395 (Iowa 1974). "Unlike a court, which occupies an arbitral position between two contesting parties, the agency may be both an interested party and a trier of the contentions advanced by its counsel at the hearing." B. Schwartz, ' Administrative Law § 6.20 p. 329-330 (2nd ed. 1984).

17A. Like many other administrative agencies, such as the Federal Trade Commission, the functions of accuser, investigator, prosecutor, and judge are combined within the agency. See Iowa Code § 601A.15; B. Schwartz, Administrative Law § 6.20 p. 329 (2nd ed. 1984). "A 'fair day in court' [however] is not defeated by the fact the hearing is before the same administrative authority which lawfully conducted a preheating investigation or preferred charges." Cedar Rapids Steel Transportation, Inc. v. Iowa State Commerce Commission, 160 N.W.2d 825, 836 (Iowa 1968) (emphasis added). "[A]ny legal attack upon [such] combination [of functions] must be a constitutional one, based upon the claim that due process is violated when an agency is investigator, prosecutor, and judge in a case. The claim has been rejected by the courts." B. Schwartz, Administrative Law § 6.21 p. 331 (2nd ed. 1984)(emphasis added). Under Withrow v. Larkin, 421 U.S. 35 (1975), the leading United States Supreme Court decision on this subject, "the multiple impersonation [within the agency] of the roles of complainant, counsel, judge, and jury may present difficulties, but it does not violate any constitutional prohibition." B. Schwartz, Administrative Law §6.21 p.331,332 (2nd ed.1984)(emphasis added). While advocating the opposite view, the Respondents could cite no legal authority to support their position. (Tr. at 17-18).

18A. This combination of functions within the agency does not violate due process where the prosecution and adjudication functions are performed by separate individuals within the agency. B. Schwartz, Administrative Law §§ 6.20- 6.21 pp. 330331, 332 & n.8 (2nd ed. 1984). See Findings of Fact No. 4A(a), (d)-(f). "[A]n unconstitutional combination of prosecutory and adjudicative functions may occur where the individual who is responsible for presenting one party's case to a decision maker also acts as a decision maker." Wedergren v. Board of Directors, 307 N.W.2d 12, 18 (Iowa 1981). Even if (a) the hearing were held before the Commission itself, and not just an administrative law judge employed by the Commission, and (b) the Commission was a directly named party, there would be no unconstitutional combination of the adjudication and prosecution functions as long as the actual prosecution was handled by an assistant attorney general assigned to the Commission, as it was in this case. Hartwig v. Board of Nursing, 448 N.W.2d 321, 323-24 (Iowa 1989); See Eaves v. Board of Medical Examiners, 467 N.W.2d 234, 236 (Iowa 1991); Board of Dental Examiners v. Hufford, 461 N.W.2d 194, 200 (1990). The mere fact that the complaint was filed by a Commissioner also does not indicate a combination of adjudication and prosecution functions as "[f]iling of the original complaint was a ministerial act, not prosecutorial conduct." Eaves, 467 N.W.2d at 236.

19A. The Administrative Law Judge assigned to this case performed only adjudicatory functions, and did not perform any investigative or prosecutorial function. See Finding of Fact No. 4A(a). Therefore, it is not necessary to consider the question of combination of the investigation and adjudication functions which is, in any event, often constitutionally permissible. See Hartwig at 323-24.

Disqualification of Persons With An Interest:

20A. As previously noted, interest and personal bias and prejudice are forms of legal bias which, if present in the adjudicator, violate the due process guarantee. See Conclusion of Law No. 13A. The above cited authorities make it clear that it is not a violation of the due process guarantee of an impartial tribunal for an agency employee or member to adjudicate charges brought by the agency and tried before the agency member or employee as long as the same individual does not both prosecute and adjudicate. See Conclusions of. Law No. 13A-19A. It may reasonably be inferred from these authorities that the courts do not view agency employees who adjudicate charges brought by the agency to be infected with an interest or personal bias or prejudice, merely by reason of their employment by the agency, which would violate due process guarantees.

21A. Respondents could not cite and could not find any legal authority to support their position that employment of the Administrative Law Judge, by a Commission who was a named party in the case, would constitute an interest which would disqualify the judge. (Tr. at 15). Respondents also argued, without citation of any of their authorities, that the cases they had read allowing the presiding Administrative Law Judge to be employed by the agency, although the agency was a party, held that this was not a violation of due process because a de novo hearing (a new trial of the case) would be allowed or; appeal to district court. (Tr. at 15). Judicial review of contested case decisions of administrative agencies, however, is on the record made before the agency and not de novo. Iowa Code § 17A.19(7). None of the authorities cited in this ruling rely on the availability of de novo review as a factor in allowing an agency employee to preside. Indeed, although mandated by statute, "judicial review of the findings and orders of an administrative agency is not necessary for compliance with due process." Cedar Rapids Human Rights Commission v. Cedar Rapids Community School District, 222 N.W.2d 391, 402 (Iowa 1974).

22A. An examination of the law concerning interest confirms the view that employment of an administrative law judge by the administrative agency instituting the case is not disqualifying. Interest usually refers to financial interest. B. Schwartz, Administrative Law § 6.16 p. 315 (2nd ed. 1984). "The interest which disqualifies a judge is a direct pecuniary, or direct property interest, or one which involves some individual right or privilege, in the subject matter of the litigation, whereby a liability or pecuniary gain must occur in the event of the suit." Piuser v. City of Sioux City, 220 Iowa 309, 319 (1935)(emphasis added). "A disqualifying pecuniary or property interest is an interest in the event or subject matter of the action or in the judgment to be rendered therein such that by the judgment the judge will be directly affected by a pecuniary gain or loss." 46 Am. Jur. 2D Judges § 99 (1969).

23A.

The leading case [on interest] is Tumey v. Ohio [273 U.S. 510 (1927)] which arose out of a conviction in a mayor's court for traffic offenses.The mayor shared in the fees and costs levied against convicted violators. This gave him a direct pecuniary interest which rendered his decision voidable.... Nor is this true only when the proscribed financial stake is as direct as that in Tumey. In the more recent case of Ward v. Village of Monroeville, [409 U.S. 57 (1972)], also involving traffic convictions in a mayor's court, the mayor was responsible for village finances; and the mayor's court, through fines, forfeitures, costs and fees, provided a major part of the village's income....... [H]ere too, the trial was not before the disinterested and impartial adjudicator demanded by due process.

B. Schwartz, Administrative Law § 6.16 p. 316 (2nd ed. 1984). Chapter 601A does not provide for the Administrative Law Judge to receive any portion of the damages awarded or to be responsible for Commission finances.

24A. Mere employment and receipt of a salary as a judge, moreover, does not disqualify a judge from hearing cases where the entity employing the judge is a party:

[A disqualifying] interest . . . must be such an interest in the subject matter that he will be directly affected through pecuniary or property loss. [T]he fact that a judge was receiving a salary from a municipality as such judge does not disqualify him from sitting in an action against said city.

The fact that a judge receives a portion of his salary from a county which is a defendant and cross-complainant in an action before him does not create such a personal interest as would disqualify him from presiding at trial... where no matter of public interest or public policy which would work such a disqualification is shown.

Board of Education v. Getz, 33 N.W.2d 113,114 (Mich.1943).See also 46 Am. Jur. 2D Judges § 105 (1969).

25A. This view is consistent with the language of the Iowa Administrative Procedures Act which requires agencies needing permanent full time or part-time administrative law judges to appoint them to its staff. Iowa Code § 17A.1 1 (1). Also, any administrative law judge assigned to hear a case, even a temporary appointment from another agency, would be paid out of funds budgeted to this Commission. Iowa Code § 17A.1 1 (3). Even nonjudicial employment by a party is not disqualifying if the judge's duties or practices are not related to the subject matter of the suit. See Board of Education v. Getz, 33 N.W.2d 113,114 (Mich. 1948)(faculty member of university may preside as judge in condemnation case to take land for its use); 46 Am. Jur. 2D Judges § 116 (1969).There is, in any event, no evidence in the record of the administrative Law Judge having any disqualifying financial interest in this case. See Finding of Fact No. 2A.

26A. There is another view of interest which overlaps the second form of legal bias, personal bias or prejudice:

[N]o man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered.

...

The critical determination here in assessing the charge of partiality is whether in weighing the evidence [the adjudicator) is required to call on his own personal knowledge and impression of what occurred. In such cases, the [litigants] would be deprived of [their] right to examine or cross-examine a witness and the decision maker would become the arbiter of his own credibility and fairness.

Keith v. Community School Board of Wilton, 262 N.W.2d 249,259 (Iowa 1978)(emphasis in original).

27A. There is no evidence in the record to establish that the Administrative Law Judge had to rely on his own personal knowledge of what occurred in regard to the allegations of discrimination as opposed to evidence presented at the hearing. See Finding of Fact No. 2A. When, as here, the Commission must present its evidence at hearing and the administrative law judge must base his decision solely on evidence in the record and facts officially noticed, no such disqualifying interest arises. See Wedergren v. Board of Directors, 307 N.W.2d 12, 17 (Iowa 1981). Cf. Iowa Code § 17A.12 (findings of fact based solely on evidence in the record and facts officially noticed).

Disqualification of "[P]ersons who..... Personally Know the Complainant or Respondent":

28A. Rule 4.2(4) states:

4.2(4) Disqualification. ' Persons who have any interest in the case at issue, or personally know the complainant or respondent, shall disqualify themselves to serve as hearing examiner. The investigation commissioner in the case at issue shall not be appointed to serve as a hearing examiner.

Id. (emphasis added).

29A. Administrative rules are interpreted and construed under the same rules as statutes. Motor Club of Iowa v. Dept. of Transportation, 251 N.W.2d 510, 118 (Iowa 1977). Phrases within a rule should be construed according to the context of the language. See Iowa Code § 4.1(2). When a rule is ambiguous, as this one is because the phrase "personally know" is not defined, the object sought to be obtained by the rule, the common law on the same or similar subjects, and the consequences of a particular construction should be considered in determining the legal effect of the rule. See Iowa Code § 4.1(6).

30A. Taken in context. it is clear that the requirement that "persons who... personally know the complainant or respondent, shall disqualify themselves," 161 I.A.C. § 4.2(4) does not apply to Commission or commissioner initiated complaints. This rule is a subsection of a rule governing hearing procedures. The immediately preceding subsection states:

4.2(3) Hearing officers. The chairperson of the commission shall designate three members of I the commission, or an administrative hearing officer, to conduct the hearing. The absence or disqualification of one or more members of a hearing panel appointed to hear a particular case shall not prevent the remaining panel members from hearing the case as independent hearing commissioners, unless good cause can be shown that would prevent the individual commissioner(s) from acting as independent hearing commissioners).

161 I.A.C. § 4.2(3)(emphasis added).

30A. If the "personally know" language, however defined, applies to hearings on Commission or commissioner initiated complaints, then no commissioner hearing panel on such complaints could withstand a motion for disqualification. The Commission, however, cannot lawfully, by rule, reduce the power conferred by statute, Iowa Code §§ 17A.11, 601A.15(l), (6)-(7), (and recognized by subsection 4.2(3)), to hear and decide cases filed by it. See e.g. Eastern Iowa Light and Power Coop. v. Interstate Power Co., 164 N.W.2d 135, 138 (Iowa 1969)(a rule may not change the legal meaning of a statute or the common law).

31A. If the Commission had intended to disqualify its administrative law judges from hearing cases filed by the Commission or Commissioners, it would have directly stated such disqualification as it did with regard to investigating commissioners. 161 I.A.C. § 4.2(4)("[t]he investigating commissioner in the case at issue shall not be appointed to serve as a hearing examiner"). Such a prohibition, however, would be contrary to the previously cited case law on due process and interest which allows either an administrative law judge employed by the Commission, or the Commission itself, to hear Commission or commissioner initiated complaints. See Conclusions of Law No. 2OA-27A.

32A. Another reason to believe the "personally know" rule does not apply to commission or commissioner initiated complaints is because such complaints are not filed on behalf of the personal interest of the commissioners, but to represent the public interest, i.e. the real party in interest is the people of the State of Iowa. See Conclusions of Law No. 15A-16A.

33A. Even if the "personally knows" rule were to apply to Commission or commissioner initiated complaints, the personal relationship required to disqualify would be more than mere recognition or an acquaintanceship. See State v. Smith, 242 N.W.2d 320, 324 (Iowa 1976)(upholding the refusal of a judge in a murder case to disqualify himself although he had previously dined at the victim's restaurant).

[A judge] must have neighbors, friends and acquaintances, business and social relations, and be a part of his day and generation. * * * the ordinary results of such associations and the impressions they create in the mind of the judge are not the "personal bias or prejudice" to which the statute refers.

Id.

34A. Given that the first part of subsection 4.2(4) is concerned with "interest," it is likely that the second part [the "personally know" rule] was intended to implement the prohibition against the second form of legal bias, i.e. "personal bias and prejudice." This refers to:

such personal dislike of a litigant as an individual or party to the suit, or such personal favoritism or regard for some opposite party to the suit as that the mind of the judge will be swayed or prevented by the one or the other from an impartial consideration of the merits of the controversy.


....

General partiality toward prolabor, procompetition, or other policies that the agency is established to further, should be distinguished from partiality toward or hostility against specific persons.

B. Schwartz, Administrative Law § 6.17 pp. 31819 (2nd ed. 1984)(emphasis added). Undue "partiality toward or hostility against specific persons" is disqualifying. Id.

35A. It is reasonable to conclude that the 11 personally knows" rule is intended to result in a disqualification when the administrative law judge and the complainant or respondent have a sufficiently close or intense personal relationship that it yields "personal bias or prejudice" as defined above. No such relationship existed here. See Finding of Fact No. 4(A)(c). 36A.

[A judge may] pass upon a motion for change of venue based on allegations of his own prejudice. [In so doing] he must consult his own feelings, as well as other matters, and grant or deny the change, as he may think the right demands, in the exercise of a careful discretion.
...

The right to a change of judge is not one of absolute right. The judge is entitled to consult his own mind, and he, perhaps better than anyone else, knows whether or not he can give a defendant on trial a fair and impartial trial in every way. The high appreciation of judicial duties should prompt any judge to refrain from presiding at the trial . . . when he feels a consciousness that he cannot act in the matter with impartiality and without a feeling of prejudice.

State v. Smith, 242 N.W.2d 320, 324 (Iowa 1976).
Ruling:

36A. In light of the findings of fact and conclusions of law set forth above, the Respondents' motion for change of venue and reassignment was properly overruled. In overruling this motion, the Commission does not rule on the constitutional validity of any statute mandating or permitting the employment of Administrative Law Judges by the Commission for hearing cases before the Commission. See Conclusions of Law Nos. 25A and 30A. No administrative agency has the legal authority to rule on the constitutionality of a statute. Salsbury Laboratories v. Iowa Department of Environmental Quality, 276 N.W.2d 830, 836 (Iowa 1 §79).

 

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