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

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 <an independent subsidiary>,” and “Not

dependent or contingent on something else <an independent person>.”

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

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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

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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

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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.

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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. at

2619–20. 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

40

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.