text:
    John BAKER, Appellant, v. CITY OF IOWA CITY, Iowa, and Iowa City Human Rights Commission, Appellees.
    No. 05-1833
    Supreme Court of Iowa.
    May 30, 2008.

      Michael J. Pitton of Martinek & Pitton, Iowa City, for appellant.
    Susan M. Dulek, Assistant City Attorney, Iowa City, for appellees.
   TERNUS, Chief Justice.

The plaintiff, John Baker, appeals the district court’s entry of summary judgment for the appellees, City of Iowa City, Iowa, and Iowa City Human Rights Commission, based on the court’s conclusion the plaintiffs claims were moot. In addition, Baker contends the court erred in failing to rule as a matter of law that the City’s ordinances exceed its home rule powers in two particulars: (1) the prohibition of discrimination by small employers; and (2) the prohibition of discrimination on the basis of marital status. Baker also challenges the district court’s quashing of his subpoena seeking production of the assistant city attorney’s records.

On appeal, the Iowa Court of Appeals affirmed the rulings of the district court. Upon our further review, we conclude two of the plaintiffs claims are not moot, that the district court should have entered summary judgment for the plaintiff on his constitutional challenge to the Iowa City ordinance prohibiting employment discrimination by small employers, and that the plaintiff has waived his challenge to the district court’s ruling on the defendants’ motion to quash. Accordingly, we vacate the court of appeals’ decision, reverse in part and affirm in part the district court’s judgment, and remand the case for further proceedings.

I. Background Facts and Proceedings.

The plaintiff owns a home located in Iowa City. Because he lives out of state, he employs a resident manager for the property. In 2003 Baker advertised for a new manager and later rejected a female applicant because she failed to provide the requested references and because she indicated she intended to have her eleven-year-old son perform outside property maintenance, which Baker believed was unsafe and might also violate child labor laws. The applicant later filed a complaint with the Iowa City Human Rights Commission, claiming discrimination in employment and housing on the basis of marital status, race, and sex.

The Commission is a municipal civil rights commission, established by ordinance of the City of Iowa City, in part, to protect persons aggrieved by discrimination within the corporate limits of Iowa City. After investigating the woman’s complaint, the Commission’s staff found probable cause existed that discrimination had occurred based upon race and marital status, both in the area of employment and housing. This finding of probable cause was based on an alleged violation of city ordinances, not state law. See Iowa City City Code §§ 2-3-1, 2-5-1. Efforts at conciliation were unsuccessful, so the matter was set for hearing.

Prior to the hearing scheduled on the discrimination complaint, Baker filed this action against the City and the Commission. Baker’s petition consisted of four counts: (1) count I requested a declaratory judgment that the city ordinances were inconsistent with and in conflict with state law and therefore unconstitutional; (2) count II sought damages under 42 U.S.C. § 1983 based on the City’s enforcement of the ordinances, the investigation undertaken, and the commencement of the administrative proceedings; (3) count III sought a writ of certiorari on the ground the defendants exceeded their proper authority and acted illegally in conducting the investigation and commencing the administrative proceeding; and (4) count IV requested a stay of the administrative proceeding until a determination of the validity of the ordinances was made.

Baker’s constitutional claim focused on two aspects of the city ordinances: (1) the City’s employment discrimination ordinance includes all employers within its prohibitions, whereas state law exempts employers having fewer than four employees from its prohibition of unfair employment practices; and (2) the City’s ordinance prohibits discrimination on the basis of marital status, a prohibition not found in state law. Compare Iowa City City Code § 2-1-1 (defining “employer” in part as “all entities, wherever situated, who employ one or more employees within the City”), with Iowa Code § 216.6(6)(a) (2003) (excluding from employment discrimination prohibition “[a]ny employer who regularly employs less than four individuals”); compare Iowa City City Code § 2-3-1 (prohibiting employment discrimination on the basis of marital status), with Iowa Code § 216.6(1)(<z) (prohibiting employment discrimination on several bases, but not mentioning marital status); compare Iowa City City Code § 2-5-1 (prohibiting discrimination in housing on the basis of marital status), with Iowa Code § 216.8 (prohibiting discriminatory housing practices on several bases, but not including marital status). Based on these differences, Baker claimed the City’s ordinances are beyond the City’s constitutional home rule authority because they conflict with state law.

After bringing this action, Baker served subpoenas duces tecum on several city employees, including the assistant city attorney Susan Dulek. The defendants filed a motion to quash, which the district court sustained as to Dulek based on the attorney-client privilege.

Before the administrative hearing on the civil rights complaint was held, Baker settled with the complainant. As a result, the discrimination complaint was dismissed with prejudice.

Subsequently, Baker filed a motion for partial summary judgment on count I in the present case, claiming the city ordinances were facially unconstitutional because they conflicted with state law. The defendants resisted Baker’s motion for partial summary judgment and filed a cross-motion for summary judgment as to counts I and II. In his resistance, Baker agreed count I should be determined as a matter of law, but contended count II — his § 1983 claim — rested on issues of disputed fact and was not suitable for summary resolution. The defendants then filed a second motion for summary judgment, asserting that, because the discrimination complaint had been dismissed, with the exception of an “as-applied” procedural due process claim asserted in count II, all of the plaintiffs claims were moot.

After hearing, the district court ruled all the issues raised by the plaintiff were rendered moot by settlement of the underlying discrimination claim. The court granted the defendants’ motions for summary judgment and dismissed the plaintiffs action in its entirety.

The plaintiff appealed the district court’s dismissal of counts I, II, and III, as well as the district court’s quashing of the subpoena seeking records from assistant city attorney Dulek. The appeal was transferred to the court of appeals. That court held that, “[w]ith the dismissal of the discrimination complaint, the controversy that precipitated the [plaintiffs] lawsuit was eliminated.” For this reason, the court of appeals concluded the district court was correct in dismissing this case as moot; it did not reach the propriety of the district court’s ruling with respect to the subpoena. We granted the plaintiffs application for further review.

II. Scope of Review.

Summary judgment rulings are reviewed for correction of errors of law. Hallett Constr. Co. v. Meister, 713 N.W.2d 225, 229 (Iowa 2006). “To obtain a grant of summary judgment on some issue in an action, the moving party must affirmatively establish the existence of undisputed facts entitling that party to a particular result under controlling law.” Interstate Power Co. v. Ins. Co. of N. Am., 603 N.W.2d 751, 756 (Iowa 1999).

District court rulings regarding the discovery process are reviewed for an abuse of discretion. Exotica Botanicals, Inc. v. Terra Int’l Inc., 612 N.W.2d 801, 804 (Iowa 2000); State ex rel. Miller v. Nat’l Dietary Research, Inc., 454 N.W.2d 820, 822 (Iowa 1990). An abuse of discretion will be found when the district court exercises its discretion on grounds or for reasons that are clearly untenable or to an extent that is clearly unreasonable. Nat’l Dietary Research, 454 N.W.2d at 822.

III. Mootness.

On occasion a claim will become moot when facts or governing laws change after an action is commenced. “A case is moot if it no longer presents a justiciable controversy because the issues involved are academic or nonexistent.” Perkins v. Bd. of Supervisors, 636 N.W.2d 58, 64 (Iowa 2001). Issues are academic when an opinion would be of no force or effect in the underlying dispute. Id. A second aspect of the mootness doctrine is known as the “personal stake requirement.” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479, 490 (1980).

The “personal stake” aspect of mootness doctrine also serves primarily the purpose of assuring that ... courts are presented with disputes they are capable of resolving. One commentator has defined mootness as “the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).”

Id. at 397, 100 S.Ct. at 1209, 63 L.Ed.2d at 491 (quoting Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973)); accord Iowa Civil Liberties Union v. Critelli 244 N.W.2d 564, 567-68 (Iowa 1976) (“Standing may, of course, be lost if the claim on which it is based becomes moot.”).

The district court believed Baker’s settlement with the complainant rendered the issues in this case academic. Baker does not disagree with this assessment as to count IV in which he sought to stay the administrative proceeding. Given the dismissal of the administrative proceeding, any dispute with respect to whether that proceeding should be stayed is nonexistent.

We think the same is true with respect to count III, in which Baker sought a writ of certiorari pursuant to Iowa Rule of Civil Procedure 1.1404. In that count he claimed the defendants exceeded their proper authority and acted illegally by investigating and pursuing the complaint under the challenged city ordinances. If the plaintiff were ultimately successful in establishing the defendants acted illegally, the scope of any relief would be circumscribed by Iowa Rule of Civil Procedure 1.1411, which provides:

Unless otherwise specially provided by statute, the judgment on certiorari shall be limited to sustaining the proceedings below, or annulling the same wholly or in part, to the extent that they were illegal or in excess of jurisdiction, and prescribing the manner in which either party may proceed further, nor shall such judgment substitute a different or amended decree or order for that being reviewed.

Iowa R. Civ. P. 1.1411. The potential relief — annulling the proceedings below and prescribing the manner in which to proceed further — could have no practical effect because the proceeding that would be impacted by any such relief is no longer pending. Therefore, we agree with the district court that Baker’s settlement of the underlying discrimination claim has rendered his request for a judgment on certiorari moot.

We do not, however, concur that Baker’s claim under count II of his petition is moot. In count II, Baker alleges a § 1983 claim for damages based on the defendants’ enforcement of the city ordinances, their investigation of the complaint, and the commencement of administrative proceedings. He claims their actions violated his due process rights and the equal protection guarantee of the United States Constitution. In response, the defendants make the conclusory argument that, because there is no discrimination complaint pending against Baker, these issues are moot. While Baker’s voluntary settlement of the discrimination complaint may have eliminated the controversy that precipitated this lawsuit, that settlement clearly did not encompass Baker’s claim that his civil rights had been violated by the City. Count II is not moot, and the district court erred in dismissing count II on this basis.

We also conclude count I remained viable after dismissal of the administrative proceeding. In count I, Baker seeks a declaratory judgment that the city ordinances are unconstitutional to the extent the City attempts to prohibit employment discrimination by employers having fewer than four employees and to prohibit employment and housing discrimination on the basis of marital status. The defendants claim, in essence, that Baker has lost his standing to challenge the ordinances because he is no longer being sued under these laws.

Standing has been defined to mean that a party must have “ ‘sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of the controversy.’ ” We have held that in order to have standing a party must (1) have a specific personal or legal interest in the litigation and (2) be injuriously affected.

Berent v. City of Iowa City, 738 N.W.2d 198, 202 (Iowa 2007) (quoting Birkhofer ex rel. Johannsen v. Brammeier, 610 N.W.2d 844, 847 (Iowa 2000)).

Under circumstances analogous to those present here, the Massachusetts Supreme Judicial Court has held that a plaintiff continued to have standing to challenge the validity of a municipal ordinance prohibiting public begging even though his prosecution under the ordinance was no longer pending. Benefit v. City of Cambridge, 424 Mass. 918, 679 N.E.2d 184, 187 (1997). Relying in part on the existence of a continuing threat of prosecution under the ordinance, the court concluded “the plaintiff [had] a sufficient personal interest in the rights and relief at stake to meet standing requirements.” Id. Similarly, in Ramos v. Town of Vernon, 254 Conn. 799, 761 A.2d 705 (2000), the Connecticut Supreme Court held a minor subject to a juvenile curfew ordinance did not have to risk the consequences of violating the ordinance in order to have standing to test the constitutionality of the law. 761 A.2d at 714.

We reach the same conclusion here. Notwithstanding the dismissal of the underlying discrimination complaint, as an Iowa City housing owner and employer, Baker remains constrained by restrictions imposed by the city ordinances. Therefore, he continues to have a specific personal interest in whether the city ordinances are valid and to be injuriously affected by these ordinances. Thus, Baker has a sufficient stake in the resolution of the controversy to satisfy our standing requirements. Cf. Ames Rental Prop. Ass’n v. City of Ames, 736 N.W.2d 255, 259 n. 3 (Iowa 2007) (holding association of landlords had standing to challenge city zoning ordinance, noting association’s members “have a legitimate interest in Ames’s ordinance because they are being fined for violating the ordinance and presumably the ordinance makes the homes more difficult to rent”). We conclude the district court erred in dismissing count I on the ground of mootness.

IV. Constitutionality of Ordinances.

In addition to seeking a reversal of the district court’s summary judgment for the defendants, the plaintiff also raises on appeal the district court’s failure to grant his motion for summary judgment on count I of the petition, in which he claims the Iowa City ordinances are unconstitutional. As noted earlier, Baker’s challenge to the ordinances is twofold: he contends the inclusion of small employers, as well as the prohibition of discrimination based on marital status, are inconsistent with chapter 216. Therefore, he argues, the ordinances exceed the City’s home rule power.

A. Governing Legal Principles.

The Iowa Constitution gives municipalities authority to regulate matters of local concern, subject to the superior power of the legislature: “Municipal corporations are granted home rule power and authority, not inconsistent with the laws of the general assembly, to determine their local affairs .... ” Iowa Const. art. Ill, § 38A; see also Iowa Code § 364.1 (allowing cities to exercise powers and perform functions “if not inconsistent with the laws of the general assembly”). This type of home rule is “sometimes referred to as legislative home rule” because the legislature retains the power “to trump or preempt local law.” Berent, 738 N.W.2d at 196.

“An exercise of a city power is not inconsistent with a state law unless it is irreconcilable with the state law.” Iowa Code § 364.2(3). A municipal ordinance is irreconcilable with a law of the General Assembly and, therefore, preempted by it, when the ordinance “ ‘prohibits an act permitted by statute, or permits an act prohibited by a statute.”’ City of Des Moines v. Gruen, 457 N.W.2d 340, 342 (Iowa 1990) (quoting City of Council Bluffs v. Cain, 342 N.W.2d 810, 812 (Iowa 1983)); accord Goodenow v. City Council of Maquoketa, 574 N.W.2d 18, 26 (Iowa 1998); cf. Goodell v. Humboldt County, 575 N.W.2d 486, 500 (Iowa 1998) (applying same analysis to identical provisions governing county home rule authority).

In determining what the legislature has permitted and prohibited, we look to the legislative intent in enacting the state statutes and we require that any local ordinance remain faithful to this legislative intent, as well as to the legislative scheme established in the relevant state statutes.

Goodell, 575 N.W.2d at 500.

B. Constitutionality of Ordinance Applying Prohibition of Unfair Employment Practices to Small Employers. With regard to unfair employment practices, the Iowa City City Code makes it unlawful for

any employer to refuse to hire, accept, register, classify, upgrade or refer for employment, or to otherwise discriminate in employment against any other person or to discharge any employee because of age, color, creed, disability, gender identity, marital status, national origin, race, religion, sex or sexual orientation.

Iowa City City Code § 2-3-1 (emphasis added). As noted earlier, section 2-1-1 of the city code defines “employer” in relevant part as “all entities, wherever situated, who employ one or more employees within the City.” (Emphasis added.) In contrast, Iowa Code section 216.6 states in pertinent part:

1. It shall be an unfair or discriminatory practice for any:
а. Person to refuse to hire, accept, register, classify, or refer for employment, to discharge any employee, or to otherwise discriminate in employment against any applicant for employment or any employee because of the age, race, creed, color, sex, national origin, religion, or disability of such applicant or employee, unless based upon the nature of the occupation....
б. This section shall not apply to:
a. Any employer who regularly employs less than four individuals. For purposes of this subsection, individuals who are members of the employer’s family shall not be counted as employees.

Iowa Code § 216.6(l)(a), (6)(a) (emphasis added). The issue before us for decision is whether the City’s application of its prohibition against unfair employment practices to employers who would be excluded under state law prohibiting unfair and discriminatory employment practices creates an irreconcilable conflict between the ordinance and the state statute.

We first address the City’s assertion that chapter 216 expressly permits variations between local and state discrimination laws such as the difference at issue here. Iowa Code section 216.19 provides that “[n]othing in this chapter shall be construed as limiting a city or local government from enacting any ordinance or other law which prohibits broader or different categories of unfair and discriminatory practices.” Id. § 216.19 para. 2. The defendants contend their prohibition of discrimination by employers with less than four employees is the prohibition of discrimination by a “broader or different category.” This argument ignores the statutory language qualifying the noun “categories”: “of unfair and discriminatory practices.” When read in its entirety, section 216.19 expressly allows cities latitude only with respect to discriminatory practices. See Webster’s Third New International Dictionary 1780 (unabr. ed.2002) (defining a “practice” as “a mode of acting or proceeding”). The class of small employers added to the City’s ordinance is not a different category of “practices.” We conclude, therefore, that section 216.19 does not authorize the defendants to apply the City’s prohibition of discriminatory employment practices to a broader category of employers.

Having concluded the legislature did not expressly authorize the difference under consideration, we return to an evaluation of whether the city ordinance is otherwise inconsistent with section 216.6. We think the answer to this question lies in the legislative intent underlying the exemption of small employers from the state employment discrimination statute. The exclusion of small employers from employment discrimination prohibitions was enacted as part of revisions made to Iowa’s civil rights statute in 1965. See 1965 Iowa Acts ch. 121, § 7. Those revisions, including the small-employer exemption, were substantially based on changes advocated in a 1964 law review article. See U.S. Jaycees v. Iowa Civil Rights Comm’n, 427 N.W.2d 450, 454 (Iowa 1988) (citing Arthur Bonfield, State Civil Rights Statutes: Some Proposals, 49 Iowa L.Rev. 1067 (1964) [hereinafter “Bonfield Article”]). In United States Jaycees, this court relied on statements in this law review article,as an expression of the rationale underlying the legislature’s adoption of the suggested revisions, id., and we do so again here.

In the article, the author urged enactment of an employment discrimination statute that included a small-employer exemption. Bonfield Article, 49 Iowa L.Rev. at 1108. In advocating for the adoption of this exemption, the author explained:

Almost all fair employment practices acts exempt small employers, which are defined as employers with less than a specified number of employees. The general consensus seems to be that notions of freedom of association should preponderate over concepts of equal opportunity in these situations because the smallness of the employer’s staff is usually likely to mean for him a rather close, intimate, personal, and constant association with his employees.

Id. at 1109 (footnotes omitted); see also Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 802 A.2d 731, 741 (2002) (stating one reason for small-employer exemption was legislature’s desire to protect the “ ‘intimate and personal relations existing in small businesses’ ” (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1314 (2d Cir.1995))). The exemption suggested in this article was subsequently adopted nearly verbatim by the Iowa legislature. We think, therefore, that the legislature made the policy decision that “freedom of association should preponderate over concepts of equal opportunity” in situations involving small employers.

As noted above, “[i]n determining what the legislature has permitted and prohibited, we look to the legislative intent in enacting the state statutes and we require that any local ordinance remain faithful to this legislative intent....” Goodell, 575 N.W.2d at 500. Iowa Code section 216.6(6)(a.) reflects the legislature’s intent to recognize and protect small employers’ associational interests. To allow local communities to bar employment discrimination by these same small employers would thwart this legislative intent. Therefore, we conclude the Iowa City ordinance subjecting small employers to its prohibition of unfair employment practices conflicts with state law and exceeds the City’s home rule authority. The district court erred in failing to rule the ordinance was unconstitutional in this respect.

C. Constitutionality of Ordinances Prohibiting Discrimination on the Basis of Marital Status. As previously discussed, the Iowa City City Code prohibits discrimination in employment and housing on the basis of marital status, a class not mentioned in the state civil rights statute. Compare Iowa City City Code § 2-3-1 (prohibiting employment discrimination on the basis of marital status), and id. § 2-5-1 (prohibiting discrimination in housing on the basis of marital status), with Iowa Code § 216.6(1)(a) (prohibiting employment discrimination on several bases, but not mentioning marital status), and id. § 216.8 (prohibiting discriminatory housing practices on several bases, but not including marital status). Unlike the small-employer exemption, there is no express indication in chapter 216 that the legislature made a policy decision to allow employment and housing decisions to turn on a person’s marital status. To the contrary, this variation between loeal law and state statute falls within the regulatory latitude the legislature bestowed on cities in section 216.19 to enact ordinances that prohibit “broader or different categories of unfair or discriminatory practices.” Discrimination on the basis of marital status is a class of discriminatory practices. Therefore, the City has authority under section 216.19 to prohibit such conduct. Because the City’s enactment of ordinances prohibiting discrimination in employment and housing on the basis of marital status is not inconsistent with state law, such ordinances are within the City’s home rule authority. The district court did not err in failing to rule the City’s ordinances were unconstitutional in this respect.

Y. Ruling on Defendants’ Motion to Quash Subpoena.

Because this matter must be remanded for trial on Baker’s § 1983 claim, we will address his challenge to the district court’s quashing of the subpoena seeking the records of assistant city attorney Du-lek. The district court ruled “the information sought from Ms. Dulek is protected by the attorney/client privilege.” Baker contends the attorney-client privilege should not shield the assistant city attorney’s file from discovery because “the city attorney’s office participates administratively in a human rights contested case.”

Pursuant to Iowa City City Code section 2-4-2, the city attorney receives an investigative summary and recommendation from the commission investigator and must then issue a written opinion to the Commission on “whether probable cause exists to believe a discriminatory practice occurred as alleged by the complainant.” Iowa City City Code § 2-4-2(F), (G). Other than a conclusory statement that such “opinions and information by the city attorney’s office should not be deemed privileged,” Baker advances no argument in his brief and cites no authority to support a conclusion that the city attorney’s opinion is not attorney work product or that these communications are not protected by the attorney-client privilege as found by the district court. In order to address this issue under these circumstances, we would be obliged “to assume a partisan role and undertake the appellant’s research and advocacy.” Inghram v. Dairyland Mut. Ins. Co., 215 N.W.2d 239, 240 (Iowa 1974) (dismissing an appeal based on appellant’s failure to cite any authority); accord Hyler v. Garner, 548 N.W.2d 864, 876 (Iowa 1996) (stating “we will not speculate on the arguments [the defendant] might have made and then search for legal authority and comb the record for facts to support such arguments”); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 184 (Iowa 1980) (noting party failed to give supportive authority for general allegations of error and concluding party’s “argument is so indefinite as to preclude our consideration”). We decline to do so. Consequently, we deem the plaintiffs challenge to the district court’s ruling waived. See City of Marquette v. Gaede, 672 N.W.2d 829, 835 (Iowa 2003) (holding party’s failure to cite any authority resulted in waiver of issue); Iowa R.App. P. 6.14(1)(c) (stating “[fjailure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue”).

VI. Summary and Disposition.

We hold the plaintiffs settlement of the underlying discrimination complaint did not render moot his request for declaratory relief made in count I or his claim for damages under 42 U.S.C. § 1983 made in count II. On the other hand, that settlement did make moot the plaintiffs claims for certiorari relief and for injunctive relief as sought in counts III and IV, respectively. Based on these conclusions, we reverse the grant of summary judgment to the defendants on counts I and II, and affirm the grant of summary judgment to the defendants on counts III and IV.

The City’s inclusion of small employers in its prohibition of unfair employment practices conflicts with state law exempting small employers from such constraints under state law. Because the city ordinance exceeds the City’s home rule authority in this regard, the district court erred in failing to issue a declaratory judgment to the plaintiff declaring the employment discrimination ordinance unconstitutional insofar as it is applied to employers exempted under the state civil rights statute. The City’s prohibition of discriminatory employment and housing practices based on marital status is not inconsistent with state law. Rather, such an expansion of state prohibitions is expressly authorized by section 216.19. Accordingly, the district court did not err in failing to issue a declaratory judgment that the ordinances were unconstitutional in this respect.

The plaintiff has failed to support with legal authorities and argument his conclu-sory contention that the assistant city attorney’s file does not constitute attorney work product and is not protected by the attorney-client privilege. Therefore, we deem this issue waived.

We remand this case to the district court for entry of a judgment on count I declaring the employment discrimination ordinance unconstitutional in its application to employers having fewer than four employees and for further proceedings on the plaintiffs § 1983 claim as alleged in count II.

DECISION OF COURT OF APPEALS VACATED. JUDGMENT OF DISTRICT COURT REVERSED IN PART AND AFFIRMED IN PART; CASE REMANDED.

All justices concur except BAKER, J., who takes no part.


source: Caselaw Access Project

author: HECHT, Justice.

license: Public Domain

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. David John ISAACSON, Respondent.
    No. 08-0070.
    Supreme Court of Iowa.
    June 6, 2008.

      Charles L. Harrington and David J. Grace, Des Moines, for complainant.
    David L. Brown and Alexander Wonio of Hansen, McClintock & Riley, Des Moines, for respondent.
   HECHT, Justice.

This matter comes before the court on the report of a division of the Grievance Commission of the Supreme Court of Iowa. See Iowa Ct. R. 35.10. The Iowa Supreme Court Attorney Disciplinary Board alleged the respondent, David J. Isaacson, violated ethical rules by failing to deposit a client’s funds in a trust account, converting the client’s funds, failing to keep records of transactions with the client, and making misrepresentations to the Iowa Supreme Court Disciplinary Board, the Iowa Supreme Court Client Security Commission, and the law firm partnership of which he was a member. The grievance commission found Isaacson violated the Iowa Code of Professional Responsibility by failing to deposit a client’s funds in a trust account, and failing to keep proper records of transactions pertaining to those funds, but concluded the board failed to meet its burden of proof as to the other allegations. The majority of the commission recommends the imposition of a public reprimand. Upon our respectful consideration of the commission’s findings of fact, conclusions of law, and recommendation of the commission, we find the respondent committed several of the charged ethical violations and suspend his license to practice law for six months.

I. Standard of Review.

We review de novo the commission’s findings. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Gottschalk, 729 N.W.2d 812, 815 (Iowa 2007). We give the commission’s findings and recommendations respectful consideration, but we are not bound by them. Id. It is the board’s burden to prove attorney misconduct by a convincing preponderance of the evidence. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004). If we find the board has proved its allegations of attorney misconduct, we “may impose a lesser or greater sanction than the discipline recommended by the grievance commission.” Iowa Ct. R. 35.10(1).

II. Factual Findings.

Isaacson, a partner in a Des Moines law firm, represented Kelly Belz in an action to collect rent owed by Belz’s tenant, Robert Young. An agreement was reached on September 30, 2003, in which Young agreed to make a series of payments to settle the case: $1500 on or before October 15, 2003; $1500 on or before November 15, 2003; and the balance of $5100 on or before December 31, 2003.

Young paid the first settlement installment by delivering to Isaacson a check in the amount of $1500. Isaacson deposited the check in his personal bank account, withdrew $1300 in cash, and delivered $684 in cash to Belz.

Young delivered to Isaacson a check in the amount of $3000 on or about November 18, 2003. When Isaacson deposited this check in his personal account on that date, the account had a negative balance of $155.52. It is undisputed that Isaacson subsequently delivered to Belz the sum of $3000 in cash, but neither Isaacson nor Belz maintained records that could establish when this occurred.

The third and final installment of the settlement was paid on or about December 26, 2003, when Young delivered to Isaac-son a check in the amount of $2600. Isaacson deposited the instrument in his personal account on December 30, 2003, and failed to promptly deliver the funds to Belz. Several months passed. After being informed by a third party in late June of 2004 that Belz believed Isaacson had failed to account for the third settlement installment, Isaacson’s law partner reviewed the law firm’s trust account. Finding no evidence of Belz’s settlement proceeds, the partner confronted Isaacson who denied he was in possession of the proceeds and claimed Belz was mistaken.

In his initial written response on June 13, 2005, to the board’s inquiry, Isaacson represented that although Young was to have made all payments under the settlement with Belz by December 31, 2003, “the monies were received at a considerably later time period.” Isaacson also assured the board that he could provide “a proper accounting for the settlement [funds].” Both of these representations made by Isaacson to the board were false. Young made all payments required under the settlement agreement before the end of 2003, and Isaacson could not properly account for the settlement funds because he commingled them with his personal funds and failed to maintain records from which an accurate accounting could be demonstrated.

Isaacson subsequently prepared, and Belz signed, an affidavit in response to the board’s inquiry. In the affidavit, Belz asserted that Isaacson cashed the settlement checks at Belz’s direction and delivered to Belz all funds to which Belz was entitled. The affidavit also alleged Belz was satisfied with Isaacson’s representation in connection with the Young matter, and asserted Belz subsequently consulted Isaacson on other matters and referred relatives to Isaacson for legal services.

The board filed a complaint on April 30, 2007, alleging Isaacson committed numerous ethical violations. The board asserted Isaacson’s failure to deposit the settlement funds in a trust account, and his failure to respond truthfully to the board violated DR 9-102 (preserving identity of client’s funds), DR 9-103(A) (maintaining books and records sufficient to demonstrate compliance with DR 9-102), and DR 1-102(A)(1) (violating a disciplinary rule), (4) (dishonesty, fraud, deceit, or misrepresentation), (5) (conduct prejudicial to the administration of justice) and (6) (conduct adversely reflecting on fitness to practice law). In an amendment to its complaint, the board subsequently alleged Isaacson also violated DR 1-102(A)(4) and (6) by failing to deposit in the firm’s office account fees paid by several other clients, and by drawing a check on the law firm’s partnership account to compensate his daughter for labor and reimbursing the firm with a check on his personal account that was returned for insufficient funds.

III. Ethical Violations.

A convincing preponderance of the evidence establishes that Isaacson violated DR 9-102(A) by failing to deposit Belz’s funds in a trust account. Isaacson contends this violation should be viewed as a mere technical violation of the rule because he fully complied with his client’s instructions and delivered the settlement proceeds in cash. We disagree. Belz’s preference to receive his funds in cash did not vitiate Isaacson’s duty under the rule to deposit the settlement checks in a trust account and properly account for them. We find implausible Isaacson’s claim that he believed Belz’s preference to receive the settlement funds in cash rendered DR 9-102(A) inapplicable. A lawyer’s duty under the rule to deposit a client’s funds in a trust account is not constrained by a client’s instruction or preference. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sullins, 648 N.W.2d 127, 134 (Iowa 2002) (“Even if a client tells her attorney to withhold funds from a trust account, the attorney’s failure to deposit the funds into a trust account would result in an ethics violation.”).

Although Belz confirmed by his affidavit and deposition testimony that he eventually received all of the settlement proceeds to which he was entitled, the record in this case aptly illustrates the types of perils DR 9-102 seeks to avoid. Isaacson’s personal bank account balance was from time to time insufficient to cover checks drawn on the account during the relevant time periods.

The record also overwhelmingly establishes that Isaacson violated DR 9-103 by failing to maintain books and records sufficient to demonstrate compliance with DR 9-102. As he failed to deposit Belz’s funds in a trust account, Isaacson necessarily violated DR 9-103.

The record establishes that on several occasions Isaacson collected fees from other clients, and deposited them in his personal account rather than the partnership’s account. As a consequence of this, the firm billed some clients who had already paid Isaacson for legal services. Isaacson contends his conduct was not dishonest, deceitful, or fraudulent because the partnership agreement did not require him to share his legal fees with his partner. Although Isaacson had no contractual obligation to share his fees with his partner, we conclude this fact is not dispositive as to the board’s claim he violated DR 1-102(A)(4). We find persuasive the testimony of Isaacson’s partner who explained the partnership agreement required the partners to deposit all fees collected in the partnership account to assure each partner’s share of the firm’s overhead would be paid before the partners’ “draws” were distributed. Isaacson violated this agreement by depositing several fees in his personal account, and, as a consequence, soon fell behind in the payment of his share of the overhead. His partner repeatedly requested payment of the arrearage after the partnership was dissolved in 2004. Notably, Isaacson failed to respond to his partner’s requests with reasons why he did not owe approximately $15,000 as his share of the firm’s overhead. Although Isaacson claimed in his testimony before the commission that he disputed whether he owed the arrearage claimed by his partner, we find his testimony wholly unpersuasive. We conclude Isaacson violated DR 1-102(A)(4) when he deceitfully failed to deposit fees in the partnership account to avoid paying his share of the firm’s overhead.

Isaacson also violated DR 1-102(1) and DR 1-102(4) when he filed his 2004 Combined Statement and Questionnaire with the Iowa Supreme Court Client Security Commission. In that questionnaire, Isaacson represented that he kept “all funds of clients for matters involving the practice of law in Iowa in separate interest bearing trust accounts.” As we have noted, Isaacson did not deposit Belz’s settlement funds in such an account. Isaacson violated the same rules when he misrepresented to the board that he could provide an accounting of the Belz transactions when in fact he had no records that would document when the cash transactions occurred. An attorney is prohibited from engaging in conduct involving dishonesty, fraud, misrepresentation, and deceit. In connection with this fundamental principle, we have stated that a “casual, reckless disregard for the truth” warrants discipline. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Daggett, 653 N.W.2d 377, 380 (Iowa 2002).

Finally, we find the board has failed to prove by a convincing preponderance of evidence that Isaacson violated DR 1-102(A)(4) and (6) by drawing a check on the partnership account payable to his daughter for services rendered to the firm, and by reimbursing the firm with a check drawn on his personal account. We find Isaacson’s daughter did provide services to the firm for which she was compensated, and the evidence in this record does not sustain the board’s claim that Isaacson’s actions in this transaction were characterized by dishonesty, or that they reflect adversely on his fitness to practice law.

IY. Sanction.

Isaacson contends the commission’s recommendation of a public reprimand is appropriate in this case. The board urges this court to suspend Isaac-son’s license. “There is no standard sanction for a particular type of misconduct, and though prior cases can be instructive, we ultimately determine an appropriate sanction based on the particular circumstances of each case.” Iowa Supreme Ct. Atty. Disciplinary Bd. v. Earley, 729 N.W.2d 437, 443 (Iowa 2007). “When deciding on an appropriate sanction for an attorney’s misconduct, we consider the nature of the violations, protection of the public, deterrence of similar misconduct by others, the lawyer’s fitness to practice, and [the court’s] duty to uphold the integrity of the profession in the eyes of the public. We also consider aggravating and mitigating circumstances present in the disciplinary action.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Walker, 712 N.W.2d 683, 685 (Iowa 2006) (internal quotations and citations omitted).

We have imposed sanctions for violations of DR 9-102 ranging from a suspension of one year to a revocation. Compare Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Gottschalk, 553 N.W.2d 322, 325 (Iowa 1996) (lawyer’s license suspended for one year for misappropriation of fees from trust account where no client funds were lost), with Comm. on Prof'l Ethics & Conduct v. Rowe, 225 N.W.2d 103, 104 (Iowa 1975) (revocation ordered where constellation of lawyer’s violations included failure to deposit client’s funds in a trust account, misappropriation, and eventual restitution). We conclude a sanction less than revocation is appropriate in this case because the board failed to prove Isaacson intended to convert the third installment of the Young settlement. Although Isaacson’s failure to deposit those funds in a trust account was a clear violation of DR 9-102, and the long delay of approximately six months in the delivery of the third settlement installment evidences deplorable inattention to Belz’s interests, we find the delay was substantially attributable to Belz’s casual attitude about receiving the funds. The board did not controvert Isaacson’s testimony suggesting that Belz exhibited a somewhat cavalier attitude about the delivery of the third installment, urged Isaacson not to make a “special trip” to effect its delivery, and represented that the delivery could be accomplished at a future date when Belz would consult Isaacson on other matters.

Isaacson’s violation of DR 9-102 does not stand alone, however. Dishonesty, deceit, and misrepresentation are “abhorrent concepts to the legal profession, and can give rise to the full spectrum of sanctions, including revocation.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Hall, 728 N.W.2d 383, 387 (Iowa 2007). Isaacson’s lack of candor in his responses to the board and the client security commission, and the deceit he practiced in the relationship with his law partner also demand a significant suspension in this case.

This court has indicated “prior disciplinary action is properly considered as an aggravating circumstance.... ” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Gallner, 621 N.W.2d 183,188 (Iowa 2001); accord Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. McKittrick, 683 N.W.2d 554, 563 (Iowa 2004). Isaacson’s license to practice was suspended for six months in 1997 for violations of DR 1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation); DR 5-104(A) (entering a business transaction with client without full disclosure of differing interests); DR 5-105(B) (accepting employment where exercise of independent judgment likely to be affected); and DR 5-105(C) (continuing multiple employment where exercise of independent judgment likely to be adversely affected). Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Isaacson, 565 N.W.2d 315, 318 (Iowa 1997).

As we determine the appropriate sanction, “[i]t is also proper to consider ... that [the Respondent] is an experienced lawyer.... ” Gallner, 621 N.W.2d at 188. As a practicing lawyer with more than thirty years of experience as a practitioner, Isaacson clearly knew of his obligation to deposit his client’s funds in a trust account, his duty to keep records of such transactions, and his responsibility to be truthful in his responses to the board, the client security commission, and his law partner.

We suspend Isaacson’s license to practice law in Iowa indefinitely, with no possibility of reinstatement for a period of six months from the date of filing of this opinion. The suspension imposed applies to all facets of the practice of law as provided by Iowa Court Rule 35.12(3), and requires notification to clients as provided in Iowa Court Rule 35.21.

Upon any application for reinstatement, Isaacson shall have the burden to show he has not practiced law during the period of suspension, and that he meets the requirements of Iowa Court Rule 35.13. Costs are taxed to Isaacson pursuant to Iowa Court Rule 35.25(1).

LICENSE SUSPENDED.

All justices concur except WIGGINS and BAKER, JJ., who take no part.

      . One member of the commission found the board met its burden on other charges and recommended Isaacson's license be suspended for at least eighteen months.

      . Isaacson explained in his testimony before the commission that Belz, a used car dealer, preferred to receive the settlement proceeds in cash. Isaacson withheld from the first installment the sum of $816 for services rendered to Belz in achieving the settlement.

      . Isaacson suggests his denial was truthful because by the time the partner expressed his concern about the matter, the funds had been delivered to Belz. Neither Isaacson nor Belz maintained records that could confirm or refute Isaacson’s version of the facts.

      . The affidavit also avers Belz "approved extensions of the times provided for payment.” We are unable to discern from the record any extensions of time granted to Young. As nei-iher Isaacson nor Belz kept records documenting when the payments were made by Young, we are unable to determine when the first settlement installment due October 15, 2003, was received by Isaacson. The check representing the second installment, due on November 15, 2003, was deposited by Isaac-son on November 18, 2003. The third installment due December 31, 2003, was paid on December 26, 2003.


author: STREIT, Justice.

text:
    STATE of Iowa, Appellee, v. Eric Richard HANSEN, Appellant.
    No. 06-1735.
    Supreme Court of Iowa.
    June 6, 2008.
    Mark C. Smith, State Appellate Defender, and David A. Adams, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Charity McDonnell, Assistant County Attorney, for appellee.
   STREIT, Justice.

Eric Richard Hansen met online an undercover police officer who was posing as a fifteen-year-old girl. The topic of their conversation was sexual at times. They agreed to meet at a Wal-Mart in Cedar Falls. When Hansen arrived at the store, he was arrested for enticement of a minor. He was found guilty as charged. Because the crime of enticement requires the victim to be “entiee[d] away,” Hansen is guilty of attempted enticement. We affirm the decision of the court of appeals.

I. Facts and Prior Proceedings.

On May 22, 2006, a Cedar Falls police officer was in an internet chat room under the assumed identity of a fifteen-year-old girl, “Suzi.” Hansen, using the screen name “Rick H.,” approached the undercover officer online. The officer told Hansen he was a fifteen-year-old girl from Cedar Falls. Hansen, who was twenty-three years old at the time, claimed he was nineteen and indicated he was interested in meeting Suzi. He said he was available to meet the next day but twice asked “what was in it for him” to drive from Des Moines to Cedar Falls. When Suzi said she had a friend on the other line, Hansen wrote “she can join in lol [laugh out loud].” The officer asked Hansen if they could speak on the telephone. The officer gave Hansen a telephone number. Shortly thereafter, Hansen called and reached an investigator posing as Suzi. During their conversation, Hansen discussed “messing around” with Suzi and also spoke extensively about being careful and ensuring the girl would not get in trouble. When their conversation continued online, he confirmed they would be safe: “Trust me. I’ll bring a full pack.”

The next morning, Hansen contacted Suzi just after 7:30 a.m. They arranged to meet at the Wal-Mart in Cedar Falls around 9:45 or 10:00 that morning. Hansen said he would be driving a red Chevy S-10 pick-up. At 10:20 a.m., Hansen pulled into the parking lot in a truck matching the description he provided. Hansen walked into the store and called Suzi from a pay phone. No one answered. Hansen returned to his truck, and two Cedar Falls police officers approached him. Initially, Hansen claimed he did not know Suzi’s age. Later he admitted he believed she was fifteen or sixteen years old. Although he conceded “the pack” referred to condoms, he said he only intended to “h[a]ng out at Wal-Mart or [go] to lunch” with Suzi. He did not have any condoms with him.

Hansen was charged with enticing away a minor, in violation of Iowa Code section 710.10(2) (2005). The ease was tried to the court on the minutes of testimony. Hansen argued he could at most be guilty of attempted enticement. The district court found Hansen guilty as charged, and he appealed. The court of appeals found there was not substantial evidence to support an enticement conviction. It reversed Hansen’s conviction with instructions to enter a finding of guilt for attempted enticement. We granted further review and affirm the decision of the court of appeals.

II. Scope of Review.

Challenges to the sufficiency of the evidence are reviewed for correction of errors at law. State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005). The district court’s findings of guilt are binding on appeal if supported by substantial evidence. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). Evidence is substantial if it would convince a rational trier of fact the defendant is guilty beyond a reasonable doubt. Id.

III. Merits.

We must decide whether there is sufficient evidence to find Hansen guilty of enticement of a minor. He apparently concedes there is sufficient evidence to find him guilty of attempted enticement. Iowa Code section 710.10 makes it illegal for adults to solicit sexual contact with a minor or a person reasonably believed to be a minor. It states:

2. A person commits a class “D” felony when, without authority and with the intent to commit an illegal act upon a minor under the age of sixteen, the person entices away a minor under the age of sixteen, or entices away a person reasonably believed to be under the age of sixteen.
3. A person commits an aggravated misdemeanor when, without authority and with the intent to commit an illegal act upon a minor under the age of sixteen, the person attempts to entice away a minor under the age of sixteen, or attempts to entice away a person reasonably believed to be under the age of sixteen.

(Emphasis added.) A sexual act between a twenty-three-year old man and a fifteen-year-old girl would constitute third-degree sexual abuse. Iowa Code § 709.4(2)(c).

Hansen claims he cannot be guilty of enticement because he did not successfully “entice away” either a minor or a person reasonably believed to be a minor. Without someone being enticed away, Hansen argues the offense was not completed, only attempted. We agree.

The statute does not define “entice.” In State v. Osmundson, 546 N.W.2d 907 (Iowa 1996), we rejected a vagueness challenge to section 710.10. There, we noted “a statute is not unconstitutionally vague if the meaning of the words used can be fairly ascertained by reference to their ordinary and usual meaning, the dictionary, similar statutes, the common law, or previous judicial determinations.” Os-mundson, 546 N.W.2d at 909. We then quoted from two dictionaries. Webster’s defined “entice” as “ ‘to draw on by arousing hope or desire’ or ‘to draw into evil ways.’ ” Id. (quoting Webster’s Third New International Dictionary 757 (1986)). “Synonymous words include ‘allure,’ ‘attract,’ and ‘tempt.’ ” Id. (quoting Webster’s Third New International Dictionary 757). We also quoted from Black’s Law Dictionary, which defined “entice” as

“[t]o wrongfully solicit, persuade, procure, allure, attract, draw by blandishment, coax or seduce. To lure, induce, tempt, incite, or persuade a person to do a thing. Enticement of a child is inviting, persuading or attempting to persuade a child to enter any vehicle, building, room or secluded place with intent to commit an unlawful sexual act upon or with the person of said child.”

Id. (quoting Black’s Law Dictionary 477 (5th ed.1979) (emphasis added)). We concluded “[tjhese definitions and the commonly understood meaning of ‘entice’ are specific enough to provide guidance to ordinary citizens and fair notice of what actions are proscribed” in section 710.10. Id. at 910.

According to the State, the definition found in Black’s focuses entirely on the defendant’s conduct and supports its contention Hansen is guilty of enticement. The State argues the victim or purported victim’s response to the defendant’s actions is irrelevant because all that is required is “inviting, persuading or attempting to persuade.” Black’s Law Dictionary 477. The problem with the State’s contention is the Black’s definition encompasses both enticement and attempted enticement. That distinction did not matter in Osmundson because Osmundson was convicted of attempted enticement. Osmundson, 546 N.W.2d at 908. We simply referenced definitions from the two dictionaries in order to illustrate the meaning of “entice” was readily ascertainable. Our intent was not to wholly incorporate these definitions into section 710.10.

If we were to use the Black’s definition of “entice” to establish the parameters of the crime of enticement, we would virtually eliminate any distinction between enticement and attempted enticement. Our legislature clearly intended to establish separate crimes with separate penalties. Thus, when defining “entice” for purposes of section 710.10, we believe Webster’s definition is more succinct:

“Entice” is defined as “to draw on by arousing hope or desire” or “to draw into evil ways.” Synonymous words include “allure,” “attract,” and “tempt.”

Id. at 909 (quoting Webster’s Third New International Dictionary 757).

Moreover, the State’s interpretation of the statute renders the word “away” meaningless. Section 710.10 refers to the defendant “entic[ing] away” or “attempting] to entice away” a minor or a person reasonably believed to be a minor. Iowa Code § 710.10(2), (3). The State notes we said in Osmundson the word “away” “does not add to or alter the meaning of the word ‘entice.’ ” Osmundson, 546 N.W.2d at 910. The State takes this quote out of context. We were simply stating the word “away” does not make the word “entice” vague or confusing. In Os-mundson, we said the meaning of “away” is clear: “Applied to the facts of this case, no person of ordinary intelligence would be left in doubt as to the meaning of the word ‘away’; the defendant attempted to persuade the boys to leave the area where they were talking and go to [the defendant’s] apartment.” Id.

As we said in Osmundson, the word “ ‘entice’ focuses on the actions of the defendant; it does not matter what the victim thought.” Id. For example, if a defendant with the intent to molest a child asks that child to help him find his puppy, it does not matter what the child thought was going to happen if she went with the defendant. However, the phrase “entices away” requires the fact finder to look not only to the actions and conduct of the defendant but also to the impact of those actions upon the victim. A perpetrator entices, but it is the victim who is enticed away. Thus, under our example, the defendant is guilty of enticement if the child goes with the defendant and guilty of attempted enticement if the child runs away from the defendant.

We find substantial evidence lacking to support Hansen’s conviction for enticement. While Hansen had the requisite intent, he failed to lure or tempt away a minor or someone reasonably believed to be a minor. We doubt any of the Cedar Falls police officers were “enticed away” from their offices to the Wal-Mart store because of Hansen’s blandishments. Thus, he is guilty of attempted enticement. We affirm the court of appeals.

IV. Conclusion.

We agree with the court of appeals there is insufficient evidence to support Hansen’s conviction for enticement. We agree the case should be remanded with instructions to enter a verdict of guilty for attempted enticement.

DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT JUDGMENT REVERSED; AND CASE REMANDED.

      . The State claims even under a broad definition of enticement, there would be at least some circumstances where a defendant is only guilty of attempted enticement. According to the State, a defendant would be guilty of attempted enticement if he tried to make contact with a minor with the requisite intent to commit the illegal act but was unsuccessful in reaching the minor. Presumably, the State is referring to circumstances where a defendant called a minor and got a busy signal or a defendant’s email to a minor was blocked by filters. We do not believe this is the type of conduct the State meant to outlaw when it created the attempted enticement statute.


text:
    Kathy WEDDUM, Appellee, v. DAVENPORT COMMUNITY SCHOOL DISTRICT, Appellant.
    No. 07-0573.
    Supreme Court of Iowa.
    June 6, 2008.

      William C. Davidson, Mikkie R. Schütz, and Wendy S. Meyer of Lane & Waterman, LLP, Davenport, for appellant.
    Dorothy A. O’Brien, Davenport, for ap-pellee.
    Edward M. Mansfield of Belin Lamson McCormick Zumbach Flynn, PC, Des Moines, for amicus curiae Iowa Association of School Boards.
   STREIT, Justice.

A school district denied a teacher’s application for early retirement incentives because she did not meet the plan’s minimum age requirement. She sued, arguing the school district’s decision violated the Iowa Civil Rights Act’s prohibition on age discrimination. She and the school district brought cross motions for summary judgment. Both were denied. We granted the school district’s motion for interlocutory appeal and now reverse. The district court should have granted the school district’s motion because the early retirement incentive plan falls within an express exception to the general prohibition on age discrimination.

I. Facts and Prior Proceedings.

Kathy Weddum had been a math teacher with the Davenport Community School District since 1972. The school district implemented an early retirement incentive plan for the 2004-2005 school year. The plan provided a purpose statement:

The purpose of this plan is to provide the District’s employees with the option and opportunity for early retirement from their employment with the District. This Early Retirement Incentive Plan is designed to show the District’s appreciation for the services an employee has rendered to the District, to aid the employee in their transition from public service to retirement, and to save District funds through a reduction in staff and/or replacement savings.

To be eligible for the plan, an employee was required to satisfy the following criteria:

(1) reached age fifty-five or older by June 30, 2005;
(2) completed at least twenty years of continuous contracted service with the district by June 30, 2005;
(3) worked at least a minimum of six hours per day or had a contract of at least 75% full time employment;
(4) submitted an application for participation in the plan to the school board prior to January 31, 2005; and
(5) agreed to retire at, and not before, the conclusion of the contract or assignment year for 2004-2005 and no later than June 30, 2005.

In return for meeting the terms of the plan, an employee received the following benefits:

(1) the lesser of $25,000 or 50% of the employee’s 2004-2005 salary to be paid into a 403(b) or Health Care Savings Plan over five years; and
(2) continued participation of current coverage in a medical plan by employee’s payment of the monthly premium.

In late December 2004, Weddum submitted her application for early retirement. She satisfied the years-of-service requirement but did not reach the age of fifty-five until September 17, 2005, almost three months after the deadline. The school district denied Weddum’s request in a January 6 email.

On January 19, the school district notified employees of its decision to expand the early retirement plan to employees who had completed at least fifteen years of continuous contracted service. The remaining eligibility requirements of the plan were unchanged. The school district later extended the application deadline.

On January 31, Weddum wrote a letter to the school district indicating her intent to retire at the end of the 2005 school year. The letter stated “I have decided to retire and wish to resign from teaching in the Davenport Community School District at the end of the 2004-2005 school year.” The school board accepted her resignation on February 14 but refused to categorize her departure as a retirement.

After satisfying the administrative requirements, Weddum filed this lawsuit contending the school district’s denial of early retirement benefits violated the age discrimination prohibition found in the Iowa Civil Rights Act (ICRA). Both Wed-dum and the school district moved for summary judgment. Weddum argued the school district’s early retirement plan amounted to overt and arbitrary age discrimination. Alternatively, she argued summary judgment should not be granted in favor of the school district because the district’s treatment of other employees created a question of fact as to its motives for excluding Weddum from the plan. The school district argued summary judgment should be granted in its favor because its early retirement plan is consistent with the exception for retirement plans found in the ICRA.

The court denied both motions, ruling there was a material question of fact with respect to the school district’s motives that should be decided by a jury. We granted the school district’s request for an interlocutory appeal. We subsequently dismissed Weddum’s cross appeal as untimely. For the reasons that follow, we reverse the decision of the district court and remand for the court to enter judgment in favor of the school district.

II. Scope of Review.

We review a district court’s ruling on a motion for summary judgment for correction of errors at law. Stewart v. Sisson, 711 N.W.2d 713, 715 (Iowa 2006). Summary judgment is appropriate if, viewing the evidence in the light most favorable to the nonmoving party, “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). An issue of fact is “material,” for summary judgment purposes, “only if ‘the dispute is over facts that might affect the outcome of the suit, given the applicable law.’ ” Lewis v. State ex rel. Miller, 646 N.W.2d 121, 124 (Iowa Ct.App.2002) (quoting Fouts ex rel. Jensen v. Mason, 592 N.W.2d 33, 35 (Iowa 1999)). “When the only controversy concerns the legal consequences flowing from undisputed facts, summary judgment is the proper remedy.” Bob Zimmerman Ford, Inc. v. Midwest Auto. I, L.L.C., 679 N.W.2d 606, 608 (Iowa 2004).

III. Merits.

Weddum’s lawsuit contends the school district violated the ICRA when it denied her early retirement benefits because she did not satisfy the plan’s minimum age requirement — i.e., she was discriminated against because she was not old enough. In considering age discrimination claims brought under the ICRA, we turn to federal law interpreting the Age Discrimination in Employment Act (ADEA). See McMannes v. United Rentals, Inc., 371 F.Supp.2d 1019, 1027 (N.D.Iowa 2005). In General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 584-85, 124 S.Ct. 1236, 1239, 157 L.Ed.2d 1094, 1103 (2004), the United States Supreme Court held the ADEA does not prohibit “reverse age discrimination.” It found the Act’s prohibition of age-based discrimination only forbade employers from favoring younger workers at the expense of older workers. Gen. Dynamics Land Sys., Inc., 540 U.S. at 600, 124 S.Ct. at 1248-49, 157 L.Ed.2d at 1113 (“We see the text, structure, purpose, and history of the ADEA, along with its relationship to other federal statutes, as showing that the statute does not mean to stop an employer from favoring an older employee over a younger one.”).

Weddum argues the ICRA is more expansive because it prohibits age discrimination against all employees in contrast to the federal act which only prohibits age discrimination against employees age forty years or older. Compare Iowa Code § 216.6(1)(a), with 29 U.S.C. § 623(a)(1), 631(a). Indeed we recognized the ICRA is “age-neutral” in a case brought by a thirty-nine year old employee. Hulme v. Barrett, 449 N.W.2d 629, 631-32 (Iowa 1989). However, in Hulme the plaintiff did not allege she was being discriminated against because she was too young. Rather, she alleged her employer violated the ICRA by reducing her hours instead of the hours of newer, younger employees who were being paid lower wages. Id. Thus, it remains an open question whether the ICRA prohibits an employer from favoring older workers at the expense of younger workers because of their age. We need not determine whether the ICRA contemplates a cause of action for reverse age discrimination in other contexts because we find the ICRA plainly allows early retirement plans with minimum age requirements. Cf. Davis v. City of Waterloo, 551 N.W.2d 876, 881 (Iowa 1996) (stating ICRA protects Caucasians from discrimination based on race as much as it does African-Americans and members of other racial minorities).

Chapter 279 of the Iowa Code governs the powers and duties of school boards. Iowa Code section 279.46 expressly gives school boards the power to offer early retirement incentives to its employees conditioned upon reaching a minimum age. It states:

The board of directors of a school district may adopt a program for payment of a monetary bonus, continuation of health or medical insurance coverage, or other incentives for encouraging its employees to retire before the normal retirement date as defined in chapter 97B.... The age at which employees shall he designated eligible for the program shall be at the discretion of the board.

(Emphasis added.) While the ICRA makes it generally unlawful to discriminate against an employee because of the employee’s age, see Iowa Code § 216.6(l)(a), the Act provides a specific exception for retirement plans. Iowa Code section 216.13 states:

The provisions of this chapter relating to discrimination because of age do not apply to a retirement plan or benefit system of an employer unless the plan or system is a mere subterfuge adopted for the purpose of evading this chapter.

A “subterfuge” is a “ ‘scheme, plan, stratagem, or artifice of evasion.’ ” Pub. Employees Ret. Sys. of Ohio v. Betts, 492 U.S. 158, 167, 109 S.Ct. 2854, 2861, 106 L.Ed.2d 134, 148 (1989) (quoting United Air Lines, Inc. v. McMann, 434 U.S. 192, 203, 98 S.Ct. 444, 450, 54 L.Ed.2d 402, 413 (1977)); see also Merriam-Webster’s Collegiate Dictionary 1171 (10th ed. 2002) (defining “subterfuge” as “a deceptive device or stratagem”). There is no evidence in the record to suggest the school district acted with age-related animus toward Weddum. Nor is there evidence to suggest Weddum was otherwise being singled out. To the contrary, two other employees did not qualify for the early retirement plan because they were also too young.

Moreover, the school district provided a legitimate reason for setting the minimum age requirement. According to the school district, the early retirement program is primarily driven by financial savings. Teachers’ salaries are paid out of the school district’s general fund. Replacing a senior teacher with a more junior teacher results in a cost savings because a teacher’s salary is based on years of experience. Additionally, chapter 279 allows school districts to pay early retirement incentives out of their “management levy” funds (i.e. local tax revenues). See Iowa Code § 279.46. This funding avenue for the incentives frees up more money in the school districts’ general funds for other needs. However, in order to utilize management levy funds to pay early retirement incentives, the employees receiving the funds must be between the ages of fifty-five and sixty-five at the time of their retirement. Id. Thus, the school district in this case was not willing to extend its early retirement plan to teachers who were not at least fifty-five years old on June 30 because the cash incentive would have to come out of the general fund if it did so.

After the plan was originally offered, fewer than expected employees chose to retire. The school district expanded the pool of employees qualified for the plan by lowering the years-of-service requirement from twenty years to fifteen years. The school district chose this route to make more employees eligible because the use of management levy funds is not dependent upon how many years the employees worked.

Weddum notes the school district offered a similar early retirement incentive plan during the previous school year which required employees to be at least fifty-five by September 30. Weddum’s birthday is September 17. Had the school district used the same date in the year Weddum retired, she would have been eligible for the early retirement benefits plan. However, Iowa law expressly gives school districts the discretion to determine the age upon which employees are eligible for early retirement benefits. Iowa Code § 279.46. School districts are under no obligation to offer the same plan (or any plan) from year to year.

Our conclusion is also supported by federal case law. The ADEA provides a safe harbor provision for “voluntary early retirement incentive plan[s] consistent with the relevant purpose or purposes of this chapter.” See 29 U.S.C. § 623(1)(2)(B)(ii). Recently, the eighth circuit held a plan similar to the one at issue here fell within this exception. Morgan v. A.G. Edwards & Sons, Inc., 486 F.3d 1034 (8th Cir.2007). There, employees age fifty or older with at least fifteen years of service were given one year’s salary and other benefits in return for retiring. Id. at 1037. The Morgan court distinguished one of its earlier decisions upon which Weddum relies. See Jankovitz v. Des Moines Indep. Cmty. Sch. Dist., 421 F.3d 649 (8th Cir.2005). In Jankovitz, the eighth circuit found an early retirement incentive plan violated the ADEA because benefits were cut off by an upper age limit of sixty-five. Id. at 655 (“The basis for our conclusion that the amended [early retirement incentive plan] is consistent with a purpose of the ADEA is the fact that the amount of available early retirement benefits drops to zero upon an employee’s attainment of the age of 65.”); see also Auerbach v. Bd. of Educ. of the Harborfields Cent. Sch. Dist., 136 F.3d 104, 114 (2d Cir.1998) (“An early retirement incentive plan that withholds or reduces benefits to older retiree plan participants, while continuing to make them available to younger retiree plan participants so as to encourage premature departure from employment by older workers conflicts with the ADEA’s stated purpose to prohibit arbitrary age discrimination in employment.”). The Morgan court found the early retirement incentive plan lawful because it did not include a maximum age requirement. Morgan, 486 F.3d at 1042.

Similarly, the school district’s plan in the present case “offered the same incentives to all eligible persons and did not employ an age-based phase-out where plan benefits decreased over time or were reduced to zero upon a certain age in order to encourage employees to participate in the plan.” Id. Moreover, there was no evidence to suggest the plan was “a mere subterfuge adopted for the purpose of evading” the ICRA. Iowa Code § 216.13. The school district was entitled to a judgment in its favor as a matter of law.

IV. Conclusion.

In summary, the school district’s early retirement incentive plan fell squarely within the ICRA exclusion for retirement plans. Therefore, it was error to deny the school district’s motion for summary judgment.

REVERSED AND REMANDED.

      . Weddum also alleges the district court’s denial of early retirement benefits was unconstitutional. However, because the district court did not rule on this issue, we will not address it for the first time on appeal. DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002) (holding the court will not consider a substantive or procedural issue for the first time on appeal except for evidentiary rulings).

      .Iowa Code § 216.6(l)(a) states "[i]t shall be an unfair or discriminatory practice for any ... [plerson to refuse to hire, accept, register, classify, or refer for employment, to discharge any employee, or to otherwise discriminate in employment against any applicant for employment or any employee because of the age ... of such applicant or employee, unless based upon the nature of the occupation.”

      . The school district’s plan does not have a maximum retirement age.

      . The school district chose the later cut-off date the year before in order to induce a teacher with performance problems to accept the early retirement incentive. She had a September birth date.