Iowa Department of Social Services, Iowa Men's Reformatory v. Iowa Merit Employment Department

UHLENHOPP, Justice

(dissenting).

The question is not whether this court should hold that women may work in male prisons. Rather, the question is whether this court should overturn the decision of the responsible administrative agency on that issue. I part company with the court *168 majority over the role of this court vis-a-vis the role of the administrative agency.

In 1967 our legislature enacted the Merit System Act creating the Iowa Merit Employment Department under the general jurisdiction of the Merit Employment Commission. That department through the commission is the agency charged with administering the merit employment laws which protect covered state workers such as Gunther. 62 G.A. ch. 95 (Code 1977, ch. 19A). One of those laws prohibits discrimination in employment practices on account of sex, in the following unequivocal language in § 18 of chapter 95 (Code 1977, § 19A.18):

No person shall be ... in any way . . . discriminated against with respect to employment in the merit system because of his sex

[[Image here]]

In 1969 the legislature further strengthened the Merit System Act by adding this section:

The provisions of this Act including but not limited to its provisions on employees and positions to which the merit system apply, shall prevail over any inconsistent provisions of the Code and all subsequent Acts unless such subsequent Acts provide a specific exemption from the merit system. 63 G.A. ch. 79, § 8 (Code 1977, § 19A.22).

The legislature authorized the Merit Employment Commission to hold hearings and render decisions in administering the act. 62 G.A. ch. 95, § 14 (Code 1977, § 19A.14). The commission accordingly promulgated rules for such hearings and decisions. 570-Ch. 15(19A) IAC. Both the act and the rules provide for appeal to the courts under the Administrative Procedure Act (chapter 17A of the Code). 62 G.A. ch. 95, § 14 (Code 1977, § 19A.14); 570-15.4(19A) IAC.

The existing rigid employee classification system at the Reformatory in fact freezes women in the lowest class, Correctional Officer I. Gunther challenged this system and proceeded through the proper steps prescribed by the commission’s rules to a hearing and decision by the commission, which held for her. The commission found that women can perform some functions in the Reformatory, and that the Reformatory may not impose an inflexible employee classification system which prevents Gunther and other qualified females from advancing from Correctional Officer I to Correctional Officer II, and so on up the ladder. The commission did, however, include a sensible exception for functions involving undue compromise of residents’ bodily privacy or unreasonable hazard. The Reformatory as the appointing authority appealed to district court under the Administrative Procedure Act from the commission’s decision. That court affirmed. The Reformatory then appealed to this court, as the Administrative Procedure Act also permits. Gunther did not by cross appeal challenge the exception relating to invasion of privacy or undue hazard.

The judicial review in district court and in this court permitted by the Administrative Procedure Act is not de novo; on the contrary, it is restricted. See Hoffman v. Iowa Dep’t of Transportation, 257 N.W.2d 22 (Iowa). Under that act, courts may intrude upon agency action only if substantial rights of the petitioner have been prejudiced because the agency action is

a. In violation of constitutional or statutory provisions;

b. In excess of the statutory authority of the agency;

c. In violation of an agency rule;

d. Made upon unlawful procedure;

e. Affected by other error of law;

f. In a contested case, unsupported by substantial evidence in the record made before the agency when that record is viewed as a whole; or

g. Unreasonable, arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion. Code 1977, § 17A.19(8)(a Hg).

If the commission, in the face of the unequivocal statutory proscription on sex discrimination in public employment, had held against Gunther, we would have a *169 difficult case. Then quoted subparagraph a in the Administrative Procedure Act — violation of statutory provision by the commission — would squarely confront us. But the commission held for Gunther and enforced the proscription.

I have examined subparagraphs a through g of § 17A.19(8) and cannot find any subparagraph which permits the courts to intervene here. The commission did not in its decision violate a statutory provision; rather, it carried out the command that “No person shall be ... in any way . . . discriminated against with respect to employment . . . because of his . . . sex . . . .” 62 G.A. ch. 95, § 18 (Code 1977, § 19A.18); see Reynolds v. Wise, 375 F.Supp. 145 (N.D.Tex.). Certainly the commission did not contravene a constitutional clause; on the contrary it implemented the guarantee that “No state shall deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const.Amend. XIV, § 1; see Dothard v. Rawlinson, — U.S. —, 97 S.Ct. 2720 , 53 L.Ed.2d 786 n. 20 (U.S.). It did not violate residents’ constitutional right of privacy, for it excepted assignments “to assure inmate privacy.” The commission did not exceed its statutory authority; its very function is to carry out the provisions of the Merit System Act as it did here. Nor did the commission violate an agency rule, employ improper procedure, or apply an erroneous rule of law. The rule of law involved is the statutory proscription on sex discrimination, which the commission enforced.

As to subparagraph f (“unsupported by substantial evidence”) and subparagraph g (“unreasonable, arbitrary and capricious” or “abuse of discretion”), substantial evidence shows that women can perform some of the tasks in the Reformatory, and the commission did not rule that women be allowed to do everything — it made an exception regarding privacy and hazards. With these exceptions the ruling is well within the evidence and neither unreasonable nor in excess of the commission’s discretion. Indeed the Reformatory’s own psychologist admitted on the stand, “I would say that I think it would be much more advantageous if we had a setting where we could provide adequate security to women so that we could employ more women in various areas and I think that having men interact with more women in a secure way would be of much greater benefit to rehabilitation than the current situation.” Since the commission carried out the statutory anti-discrimination language here, the only way I can see for calling the commission’s decision “unreasonable, arbitrary and capricious” is by holding the statute itself unreasonable, arbitrary, and capricious, yet I do not understand that the Reformatory challenges the validity of the statute.

The temptation is subtle and strong for judges to decide themselves whether females should be appointed correctional officers. But we should not enter upon the question of the wisdom of opening up employment to women in male correctional institutions, for that decision has not been confided to us. Employment in the Reformatory is public employment and the whole problem of sex discrimination in public employment has been entrusted by the legislature to the commission, functioning under the unequivocal mandate of the Merit System Act. We should not thwart the commission in its effort to execute the en-joinder of the act.

Thus I would not interfere with the legislatively designated body in its handling of the present discrimination problem. See Davis, Administrative Law Text, § 30.04 at 549-551 (3rd Ed.). I would instead uphold the affirming judgment of the District Judge.

McCORMICK, J., joins this dissent.