Emilio Puente v. Civil Service Commission of Iowa City

IN THE COURT OF APPEALS OF IOWA

No. 22-1619
Filed September 13, 2023

EMILIO PUENTE,
Plaintiff-Appellant,

vs.

CIVIL SERVICE COMMISSION OF IOWA CITY,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Chad A. Kepros,

Judge.

Emilio Puente appeals the dismissal of his petition for judicial review

challenging a decision of the civil service commission. AFFIRMED.

Peter M. Sand, West Des Moines, for appellant.

Elizabeth Craig and Jennifer L. Schwickerath, Assistant City Attorneys,

Iowa City, for appellee.

Considered by Bower, C.J., and Badding and Buller, JJ.
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BADDING, Judge.

Is a petition for judicial review the same thing as the notice of appeal under

Iowa Code section 400.27(4) (2022)? Or can it be construed in that way to confer

appellate jurisdiction on the district court? We conclude the answer to both

questions is no, and we affirm the court’s decision dismissing Emilio Puente’s

petition for judicial review against the Civil Service Commission of Iowa City for

lack of jurisdiction.

I. Background Facts and Proceedings

On May 31, 2022, Puente filed a pleading captioned “Petition for Judicial

Review” that sought “judicial review of a ruling made by the civil service

commission of Iowa City on or about May 5, 2022.” The first paragraph of the

petition stated venue was “proper under Iowa Code 17A.19(2).” The petition then

alleged Puente, a former peace officer for the city, submitted a letter of resignation

on February 3, 2022. But, according to the petition, “the resignation was coerced

and is therefore invalid, or that he was constructively discharged.”1

The petition further alleged that on April 13, Puente sent the city a letter

asking that his resignation be rescinded and his employment reinstated. The city

refused on April 15. Puente accordingly filed a complaint with the commission on

April 27 “to review the refusal to rescind the letter of resignation” and “reinstate his

employment after a hearing on the merits.” The city moved to dismiss the

complaint as untimely because “it was made more than 14 days beyond February

1 The petition also alleged Puente initiated a separate action for constructive
discharge and contemplated seeking “either consolidation of this petition with the
pending action in equity” or a “stay of this judicial review pending the outcome of
the equity petition.”
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3,” when Puente tendered his resignation. See Iowa Code § 400.20. The minutes

of the May 5 meeting of the commission, which were attached to the petition, show

the commission voted to dismiss the complaint.

Close to one month after Puente filed his petition, he filed a proof of service

stating “that the original notice and petition in this matter were served by certified

mail in accordance with Iowa Code 17A.19(2).” Postal receipts were attached to

the proof of service, showing the mail was addressed to the commission and an

assistant city attorney and delivered to them on June 9. A few weeks later, the

commission moved to dismiss the petition for lack of jurisdiction due to Puente’s

failure to timely serve a notice of appeal of the commission’s decision as required

by Iowa Code section 400.27(4). The commission argued service by mail cannot

confer jurisdiction under chapter 400. See In re Elliott, 319 N.W.2d 244, 247 (Iowa

1982) (finding service by mail is not sufficient “to vest appellate jurisdiction in the

district court” under section 400.27). And the commission pointed out that Puente

never filed a notice of appeal at all. Instead, he petitioned for judicial review under

chapter 17A, which the commission argued “is not the appropriate legal process

for challenging a decision” of the commission.

In an attempt to fix the service issues, Puente filed a return of service

showing that the sheriff served the original notice and petition on a city employee

in human resources on July 5. Puente then filed a resistance to the commission’s

motion, again characterizing the action as seeking judicial review of the

commission’s decision. He argued that service of the petition and original notice

on the commission was timely under Iowa Rule of Civil Procedure 1.302(5) and

that he complied with section 400.27(4) because the “action for judicial review”
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was filed “within the time prescribed,” with personal service on the commission “as

required by the rules.” In reply, the commission repeated that Puente had not filed

a notice of appeal as required by section 400.27(4) and his petition for judicial

review should not be construed as one. As a result, the commission contended

the action should be dismissed for lack of jurisdiction. In any event, the

commission argued Puente never accomplished timely service on the correct

person—the clerk of the civil service commission. See Iowa Code § 400.27(4).

After this error was pointed out to him, Puente secured an acceptance of service

from the commission clerk on July 26.

In its ruling, the district court observed that Puente never filed the notice of

appeal required by section 400.27 and only sought relief under chapter 17A—even

in his resistance to dismissal. The court found that chapter 17A is “not applicable

when a city police officer is challenging his termination from employment.” Instead,

the court concluded, chapter 400 provides the means to challenge the action of a

local civil service commission. And because Puente did not file a notice of appeal

with the clerk of the district court or serve one on the commission clerk, the court

found he did not substantially comply with section 400.27(4). As a result, the court

granted the commission’s motion to dismiss for lack of jurisdiction.

Puente filed a rule 1.904(2) motion asserting for the first time that his petition

for judicial review should be construed as a notice of appeal. Alternatively, he

asked to amend the title of the petition “from ‘Petition for Judicial Review’ to ‘Notice

of Appeal.’” The court denied the motion, and this appeal followed.
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II. Standard of Review

We review a district court’s ruling on a motion to dismiss for lack of

jurisdiction for correction of errors at law. See Ortiz v. Loyd Roling Constr., 928

N.W.2d 651, 653 (Iowa 2019).

III. Analysis

Before getting to the central question on appeal, we dispose of some throw-

away claims made by Puente. The first is his suggestion that the court was not

“clear regarding the exact jurisdictional basis” on which dismissal was granted. We

summarily reject this claim. The court was very clear that it lacked jurisdiction due

to the absence of a notice of appeal, which is required by section 400.27(4). And

the law is clear that the requirements of section 400.27 are jurisdictional. See

Bogue v. Ames Civ. Serv. Comm’n, 368 N.W.2d 111, 113 (Iowa 1985) (“Controlling

Iowa precedent requires an appellant to comply substantially with the service

provisions of section 400.27 in order to vest a district court with jurisdiction to

decide an appeal from a civil service commission decision.”); Picray v. City of Des

Moines, 348 N.W.2d 645, 646 (Iowa 1984) (“The district court in this case did not

have original jurisdiction; its jurisdiction in appeals ‘is wholly statutory and depends

for its existence upon substantial compliance by the appealing party with statutory

prerequisites.’” (citation omitted)).

Next, Puente argues dismissal of a case is only authorized “for very limited

reasons,” like failure to state a claim upon which relief may be granted, and “[t]his

was not such a case.” But lack of subject-matter jurisdiction, upon which the court

granted dismissal, is one of the bases for dismissal. Iowa R. Civ. P. 1.421(1)(a).

So this argument does not get Puente anywhere.
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Finally, Puente complains the court granted dismissal on a ground that the

commission did not raise. Yet Puente acknowledges the commission’s motion to

dismiss noted that he did not file a notice of appeal. And, either way, Puente also

acknowledges this is a question of subject matter jurisdiction. Because subject

matter jurisdiction “cannot be waived by consent, waiver, or estoppel,” State v.

Mandicino, 509 N.W.2d 481, 482 (Iowa 1993), its absence “may be raised at any

time, including on the court’s own motion.” Friends of Bunker Mill Bridge, Inc. v.

Washington Cnty. Bd. of Supervisors, No. 18-0476, 2019 WL 3945965, at *1 (Iowa

Ct. App. Aug. 21, 2019); accord AJR Peakview, Inc. v. First Bank of Neb.,

No. 16-1845, 2018 WL 542706, at *2 n.1 (Iowa Ct. App. Jan. 24, 2018) (“[T]he

question of whether the district court had subject-matter jurisdiction is not limited

to only those arguments explicitly raised by a party, as the court may raise the

issue sua sponte.”). Indeed, “[w]hen the court’s power to proceed is at issue, the

court has the power and duty to determine whether it has jurisdiction of the matter

presented.” State v. Lasley, 705 N.W.2d 481, 486 (Iowa 2005) (citation omitted).

With those non-starters out of the way, we turn to that key jurisdictional

question. As noted above, “[u]nder section 400.27 a district court acquires

appellate jurisdiction only when the appellant substantially complies with its

provisions.” Elliott, 319 N.W.2d 244, 248 (Iowa 1982); accord Anderson v. W.

Hodgeman & Sons, Inc., 524 N.W.2d 418, 420 (Iowa 1994) (“Historically, we have

distinguished cases involving a district court’s appellate jurisdiction from those

invoking its original jurisdiction. Where a party attempts to invoke the district

court’s appellate jurisdiction, compliance with statutory conditions is required for

the court to acquire jurisdiction.”). Iowa Code section 400.27(4) provides:
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The appeal to the district court shall be perfected by filing a
notice of appeal with the clerk of the district court within the time
prescribed in this section and by serving notice of appeal on the clerk
of the civil service commission, from whose ruling or decision the
appeal is taken.

(Emphasis added.) Puente claims the court should have either construed his

petition as a notice of appeal or he should have been granted leave to amend the

title of the petition. We disagree on both counts.

On the first, Puente argues it was “an error of law for the lower court not to

consider the pleading to be an appeal of the civil service commission.” He submits

the failure to do so “would mark the ultimate in form over substance.” It’s true that,

generally, courts will not exalt form over substance. See, e.g., First Nat’l Bank of

Glidden v. Matt Bauer Farms Corp., 408 N.W.2d 51, 54 (Iowa 1987). Yet even the

substance of the petition sought judicial review under chapter 17A.

Still, Puente argues that “an appeal is to seek judicial review.” But judicial

review under chapter 17A “is a special proceeding” and “is in all respects

dependent upon the statutes [that] authorize its pursuit.” Anderson, 524 N.W.2d

at 420 n.1. As we recently reiterated, chapter 17A “does not apply to municipal

administrative bodies.” Mensen v. Cedar Rapids Civ. Serv. Comm’n,

No. 21-0410, 2022 WL 2160679, at *3 (Iowa Ct. App. June 15, 2022); see also

Iowa Code §§ 17A.1(2) (“This chapter is intended to provide a minimum procedural

code for the operation of all state agencies when they take action affecting the

rights and duties of the public.” (emphasis added)); .2(1) (“‘Agency’ does not mean

. . . a political subdivision of the state or its office and units.” (emphasis added)).

Proceedings under chapter 17A are, as the commission points out on appeal,

different in kind than the statutory appeal procedure set out in section 400.27.
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For one, the two proceedings are initiated differently, with different venue

provisions and, as Puente discovered, different service requirements. Compare

Iowa Code § 17A.19(2), with id. § 400.27(4). They also have different standards

and scopes of review. Under section 17A.19(10), the “standard of review depends

on the aspect of the agency’s decision that forms the basis of the petition for judicial

review.” Burton v. Hilltop Care Ctr., 813 N.W.2d 250, 256 (Iowa 2012) (discussing

the different standards under section 17A.19(10)). But under section 400.27(3),

“[t]he scope of review for the appeal shall be limited to de novo appellate review.”

And that de novo appellate review is one “without a trial or additional evidence,”

Iowa Code § 400.27(3), unlike section 17A.19(7), which allows the court to “hear

and consider such evidence as it deems appropriate” in some cases.

Puente faults the commission for failing to cite “a case supporting a view

that the word ‘appeal’ is indispensable to subject matter jurisdiction.” But he

doesn’t cite any cases supporting his argument that a petition for judicial review is

equivalent to, or should be construed as, the notice of appeal required by section

400.27. The closest case on point that we have been able to find is Bogue, which

considered whether the district court had jurisdiction to proceed under section

400.27 when the civil service employees filed a petition for writ of certiorari, rather

than a notice of appeal. 368 N.W.2d at 113. Even though the parties agreed the

trial court could “treat[] the petition as a statutory appeal under Iowa Code section

400.27,” the supreme court found that was improper because of a defect in service.

Id. (“[T]he parties could not confer appellate jurisdiction upon the court by

consenting to try the case as an appeal.”). The court nevertheless held that

because the employees’ petition alleged the commission’s decision “contravened
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statutory authority,” they could challenge the legality of that decision through the

certiorari procedure. Id. (“A writ of certiorari will lie where an inferior board

exercising judicial functions acts illegally, and illegality is established if a board has

not acted in accordance with a pertinent statute.”). But see Van Baale v. City of

Des Moines, 550 N.W.2d 153, 156 (Iowa 1996) (“[W]e think chapter 400

proceedings must be considered the exclusive means of challenging the

arbitrariness of a civil service employee’s discharge.”).2

Importantly, the court in Bogue did not find the petition for writ of certiorari

was the same as the notice of appeal required under section 400.27. 368 N.W.2d

at 114. Instead, the employees’ challenge to the commission’s decision was

allowed to go forward under the separate certiorari procedure. Id. For the reasons

stated above, judicial review under section 17A.19 is unavailable to Puente. So

Bogue does not help Puente.

Nor does the supreme court’s decision in Cooksey v. Cargill Meat Solutions

Corp., 831 N.W.2d 94 (Iowa 2013), which Puente argues “command[s] directly the

reversal of the decision below in this case.”3 The court in Cooksey was concerned

with “whether the failure of a party to list the Employment Appeal Board (EAB) as

a respondent in the caption of a petition for judicial review of the final agency

decision is fatal.” 831 N.W.2d at 96. After surveying cases with similar errors, the

2 Van Baale was abrogated on other grounds by Godfrey v. State, 898 N.W.2d 844

(Iowa 2017). Godfrey has since been overruled and the law as it existed before it
restored. See Burnett v. Smith, 990 N.W.2d 289, 291 (Iowa 2023).
3 Puente also cites Jacobs v. Iowa Department of Transportation, 887 N.W.2d 590,

591 (Iowa 2016), which considered the timeliness of a petition for judicial review
that had been electronically submitted on the last day for appeal under the statute
but returned by the clerk the next morning due to errors on the cover sheet. We
do not find that case applicable to the question presented here.
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court found the defect was not fatal because the agency was named in the body

of the petition. Id. at 104. The court reasoned “the law in Iowa for decades

traditionally has sought to avoid highly technical requirements that might serve no

useful purpose and yet deprive parties of their day in court.” Id. at 103. Yet, and

this is the part that Puente glosses over, “we must recognize that courts must follow

jurisdictional mandates imposed by valid statutes.” Id. at 103–04. Requiring

Puente to file the notice of appeal required by section 400.27, rather than a wholly

different pleading like his petition for judicial review, is not a highly technical

requirement. See id. at 110 (Mansfield, J., dissenting) (favoring “the view that

cases should not be decided on technicalities,” but noting that lawyers “know what

it means to ‘name’ an agency as a ‘respondent’”); see also Jensen v. Olson, No.

21-0204, 2022 WL 122363, at *2 (Iowa Ct. App. Jan. 12, 2022) (finding

landowners’ “failure to pursue the statutory appeal route” under Iowa Code section

468.83 required dismissal of their petition for declaratory judgment challenging the

validity of actions taken by a drainage district’s trustees).

Lastly, Puente claims the court abused its discretion “in refusing to allow re-

styling of petition.” But Puente’s rule 1.904 motion only asked to change the title

of the pleading, not its substance. So even if Puente’s belated request had been

granted, the substance of the pleading was still one for judicial review under

chapter 17A. We accordingly find no abuse of discretion in the court’s denial of

Puente’s request.

IV. Conclusion

Because a petition for judicial review under Iowa Code chapter 17A is not

the same as a notice of appeal under section 400.27, nor can it be construed as
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such, we affirm the district court’s ruling granting the commission’s motion to

dismiss for lack of jurisdiction.

AFFIRMED.