FILED 05/18/2

010 12:42PM
CLERK DIST
RICT COURT
LINN COUNT
Y IOWA

IN THE IOWA DISTRICT COURT IN AND FOR LINN COUNTY

Joel Miller, Linn County Auditor, )
)
Plaintiff, )
) No. EQCV068249
vs. )
) RULING
Board of Supervisors of Linn County, )
et al., )
)
Defendants. )
_____________________________________
Joel Miller, Linn County Auditor, )
)
Plaintiff, )
) No. EQCV068235
vs. )
) RULING
Board of Supervisors of Linn County, )
et al., )
)
Defendants. )

Hearing was held on May 14, 2010, on Defendants‟ Pre-Answer Motion to Dismiss, filed
in EQCV068249. The claims stated in EQCV068235 also are relevant to the Motion to Dismiss.
Appearances were made by Plaintiff, personally, along with his counsel, Attorney Peter Riley.
Assistant Linn County Attorney Susan Nehring appeared on behalf of Defendants. Having
considered the file, relevant case law, and written and oral arguments of counsel, the Court
hereby enters the following ruling:

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Joel Miller, Linn County Auditor, filed a Petition for Writ of Certiorari in Linn
County Case Number EQCV068249 on February 17, 2010. Plaintiff has named the following
Defendants: Linn County Board of Supervisors; Lu Barron; Linda Langston; Ben Rogers; Brent
Oleson; and James Houser. The individually named Defendants are members of the Linn
County Board of Supervisors.

Plaintiff states that on December 14, 2009, he removed one of four authorized deputy
auditors. Plaintiff claims to have acted under the auspices of Iowa Code § 331.503(2). Plaintiff
appointed Karen Heiderscheit to the open position on January 18, 2010. Plaintiff contends the
purpose of the removal and appointment was to fill one of the deputy positions with an
individual who is qualified to conduct audits of county expenditures because Plaintiff believes it
is appropriate in his duty to oversee the stewardship of public funds that a process of routine and
random audits of county expenditures be conducted. Plaintiff alleges that, contrary to its duty,
the Board refused to approve the appointment of Ms. Heiderscheit as deputy. Plaintiff then

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appointed Ms. Heiderscheit as a temporary deputy, and filed a bill for services with the Board on
February 3, 2010. The Board allegedly refused to pay for the services, and on January 25, 2010,
the Board voted to reduce the number of deputy auditors from four to three. Plaintiff asserts that
the reduction in the number of deputy auditors was not a proper exercise of the Board‟s power,
and was done for the purpose of preventing Plaintiff from appointing a deputy or compensating a
temporary deputy, and was an unlawful attempt to interfere with the statutory powers of Plaintiff
to appoint deputies.

For the Petition for Writ of Certiorari, Plaintiff argues the Board has acted illegally in (a)
failing to approve the appointment of Karen Heiderscheit to the position of deputy auditor; (b)
refusing to approve the bill of services for Karen Heiderscheit as a temporary deputy; and (c)
taking action to reduce the number of deputy auditors from four to three for the purpose of
interfering with Plaintiff‟s power to appoint deputies and compensate temporary deputies.

Plaintiff requests the Court issue a writ of certiorari, requiring the Board to certify to the
Court its records of proceedings in connection with the submission by Plaintiff of Ms.
Heiderscheit as deputy auditor; submission of the bill of services; and reduction of the number of
deputy auditors from four to three. Plaintiff further requests a trial following submission of the
records of proceedings.

Defendants filed the pending Pre-Answer Motion to Dismiss Petition for Writ of
Certiorari on March 17, 2010. Defendants argue that there is no statutory authority for a writ of
certiorari review for the type of actions alleged in the Petition, and the Petition does not
challenge an action or inaction that could reasonably be considered to be a judicial function or
even a quasi-judicial function of the Board. Defendants further argue that the actions or
inactions complained of by Plaintiff concern the Board‟s exercise of statutory powers, and could
not be construed to constitute a review of a judicial function of the Board. Defendants contend
the action should be dismissed for failure to present a claim for issuing a writ of certiorari.

Plaintiff resists, and also has filed a Motion to Consolidate. Plaintiff states that a separate
mandamus action has been filed (EQCV068235), and the mandamus action and this certiorari
action should be considered jointly. Plaintiff argues that the Board made its decisions regarding
the deputy auditor position based on Linn County‟s determination that its home rule powers give
the Board the exclusive right to conduct internal auditing functions. Plaintiff contends that it is
unclear whether certiorari may be an appropriate remedy for some portion of the relief sought by
Plaintiff, and it would be inappropriate to dismiss the certiorari action at this time. The Motion
to Consolidate also has been filed in EQCV068235, although it does not appear that an order has
been entered with respect to either Motion to Consolidate.

Defendants reply that the Petition for Writ of Certiorari does not state a claim upon which
relief could be granted because the only action taken by the Board was to reduce the number of
deputy auditors from four to three, a power that is designated to the Board. Defendants argue
that because Plaintiff has alleged, in the mandamus action, that the Court should compel
mandamus because the deputy auditor issue is an area in which the Board has no discretion, it is
clear that Plaintiff cannot now claim that the board was acting in a judicial capacity in denying
the claim. Defendants contend the Court can fully consider the merits of Plaintiff‟s claim in the

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mandamus action. Defendants state they do not object to consolidation of the cases if the Court
denies the Motion to Dismiss.

CONCLUSIONS OF LAW

Standards Applied to Motions to Dismiss

“An order granting a motion to dismiss will be upheld only if the petition, on its face,
fails to state a cause of action upon which relief could be granted under any circumstances.”
Raas v. State, 729 N.W.2d 444, 446 (Iowa 2007). “On a motion to dismiss, the petition should
be construed in the light most favorable to the plaintiff, with all doubt resolved in the plaintiff‟s
favor.” Id.

A Motion to Dismiss pleading for failure to state a cause of action is sustainable only
when it appears to a certainty the pleader has failed to state a claim upon which any relief may be
granted under any state of facts which could be proved in support of the claim asserted. Murphy
v. First National Bank of Chicago, 228 N.W.2d 372 (Iowa 1975).
A Motion to Dismiss admits well pleaded facts in a petition and waives any ambiguity or
uncertainty. Tate v. Derifield, 510 N.W.2d 885 (Iowa 1994).
“The petition, however, must contain factual allegations that give defendant „fair notice‟
of the claim asserted so that defendant can adequately respond to the petition.” Rees v. City of
Shenandoah, 682 N.W.2d 77, 79 (Iowa 2004). “A petition complies with the „fair notice‟
requirement if it informs the defendant of the incident giving rise to the claim and of the claim‟s
general nature.” Id. “We view the plaintiff‟s allegation „in the light most favorable to the
plaintiff with doubts resolved in that party‟s favor.‟” Id. “In Cutler v. Klass, Whicher, &
Mishne, 473 N.W.2d 178 (Iowa 1991), we expressed the pitfalls in filing a motion to dismiss and
stated:

We recognize the temptation is strong for a defendant to strike a vulnerable

petition at the earliest opportunity. Experience has however taught us that vast
judicial resources could be saved with the exercise of more professional patience.
Under the foregoing rules dismissals of many of the weakest cases must be
reversed on appeal. Two appeals often result where one would have sufficed had
the defense moved by way of summary judgment, or even by way of defense at
trial. From a defendant‟s standpoint, moreover, it is far from unknown for the
flimsiest of cases to gain strength when its dismissal is reversed on appeal.”
Id. (citing Cutler, 473 N.W.2d at 181).

Writ of Certiorari Standards

Iowa Rule of Civil Procedure 1.1401 provides:

A writ of certiorari shall only be granted when specifically authorized by statute;

or where an inferior tribunal, board or officer, exercising judicial functions, is
alleged to have exceeded proper jurisdiction or otherwise acted illegally.

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I.R.Civ.P. 1.1401 (2010).

“Certiorari is an „extraordinary remedy.‟” Wallace v. Des Moines Independent Comm.

Sch. Dist., 754 N.W.2d 854, 857 (Iowa 2008) (citing Hohl v. Bd. of Educ., 94 N.W.2d 787, 791
(1959)). “It „is the method for bringing the record of an inferior tribunal before the court for the
purpose of ascertaining whether the inferior tribunal or body had jurisdiction and whether its
proceedings were authorized.‟” Id. (citing Hohl, 94 N.W.2d at 791).

“Illegality exists when the court's factual findings lack substantial evidentiary support, or
when the court has not properly applied the law.” Christensen v. Iowa District Court for Polk
County, 578 N.W.2d 675, 678 (Iowa 1998).

“Evidence is substantial „when a reasonable mind could accept it as adequate to reach the
same findings.‟” City of Cedar Rapids v. Municipal Fire and Police Retirement System of Iowa,
526 N.W.2d 284, 287 (Iowa 1995) (citing Norland v. Iowa Dep't of Job Serv., 412 N.W.2d 904,
913 (Iowa 1987)). “Evidence is still substantial even though it would have supported contrary
inferences.” Id.

With respect to judicial functions, the Iowa Supreme Court has held:

We do not construe “judicial functions” in a strict or technical sense. Hoefer v. Sioux City
Cmty. Sch. Dist., 375 N.W.2d 222, 224 (Iowa 1985). Therefore, the action of the Board
need only be quasi-judicial to support a certiorari proceeding. Id. We consider three
factors to determine whether an action is judicial or quasi-judicial in nature: (1) whether “
„the questioned act involves a proceeding in which notice and an opportunity to be heard
are required‟ ”; (2) whether “ „a determination of rights of parties is made which requires
the exercise of discretion in finding facts and applying the law thereto‟ ”; or (3) whether “
„the challenged act goes to the determination of some right the protection of which is the
peculiar office of the courts.‟ ” Id. at 224-25 (quoting Buechele v. Ray, 219 N.W.2d 679,
681 (Iowa 1974)). “ „[Q]uasi ordinarily means superficially resembling but intrinsically
different. Therefore, when an activity appears to be judicial in nature, but in reality is not,
it is termed quasi-judicial.‟ ” Id. at 225 (quoting Buechele, 219 N.W.2d at 681). However,
“ „the mere exercise of judgment or discretion is not alone sufficient to characterize an
act as quasi-judicial.‟ ” Id. (quoting Buechele, 219 N.W.2d at 681).

Wallace v. Des Moines Independent Community School Dist. Bd. of Directors, 754 N.W.2d 854,
858 (Iowa 2008).

The Court finds the Petition for Writ of Certiorari is sufficient to meet notice pleading
standards, and when the allegations of the Petition are viewed in the light most favorable to
Plaintiff, the Court cannot say with certainty that there is no set of facts under which Plaintiff
might be entitled to certiorari relief with respect to the claim stated against Defendants. No
discovery has taken place, and Defendants have not produced the documents that may comprise
the certiorari record. The Court finds that exploration of Defendants‟ actions and development
of the record of proceedings below will be necessary to determine whether Defendants exercised
judicial functions, and whether a certiorari action is appropriate. Therefore, the Court finds the

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Pre-Answer Motion to Dismiss should be denied. This action should be consolidated with the
mandamus action while the record is developed in order to give Plaintiff an opportunity to
determine whether it will be necessary for him to proceed with the certiorari action, or whether
the relief he seeks can be sought solely through the mandamus action.

RULING

IT IS THEREFORE ORDERED that the Pre-Answer Motion to Dismiss is DENIED.

IT IS FURTHER ORDERED that EQCV068249 and EQCV068235 are consolidated

for the purposes of discovery. Consolidation for other court proceedings may be addressed at a
later date, upon the application of either party.

Clerk to notify.

Dated this 17th day of May, 2010.

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__________________________________________
SEAN W. MCPARTLAND, JUDGE
Sixth Judicial District of Iowa