source: Caselaw Access Project

author: SABERS, Justice.

license: Public Domain

text:
    2000 SD 41
    Beverly E. ENGLEHART, Plaintiff and Appellee, v. Gary LARSON, Defendant and Appellant, and Clark Starr; Ruby Starr; Perkins County, a subdivision of the State of South Dakota; and the Internal Revenue Service, an agency of the United States of America, Defendants.
    No. 20784.
    Supreme Court of South Dakota.
    Argued Feb. 15, 2000.
    Decided March 29, 2000.

      Max Main and Dwight A. Gubbrud of Bennett, Main & Bailey, Belle Fourche, for plaintiff and appellee.
    James P. Hurley of Bangs, MeCullen, Butler, Foye & Simmons, Rapid City, for defendant and appellant.
   SABERS, Justice.

[¶ 1.] Beverly Englehart sued her brother, Gary Larson, alleging that Gary’s oral lease of trust property terminated on May 31,1993, the date of the life tenant’s death. The trial court granted summary judgment to Beverly. Gary appeals. We affirm.

FACTS

[¶ 2.] Rudolph and Hannah Larson were the parents of Beverly and Gary. The Rudolph Larson Trust was established upon Rudolph’s death in 1974. Pursuant to the terms, Rudolph’s agricultural land and other assets were held in trust for the benefit of Hannah during her life. Hannah and Beverly were designated as co-trustees. At Hannah’s death, the trust terminated and the land was to be equally divided between Beverly and Gary:

THIRD: Upon the death of Hannah Larson, the Trust shall terminate and all of the assets, real and/or personal thereof, shall be paid over and distributed as follows:
⅜ to -Gary Larson and ½ to Beverly Englehart.
It is further ordered, adjudged and decreed that in regard to the Trust the Trustees shall hold and manage the property comprising said Trust with Power to sell, exchange, mortgage or otherwise dispose of any of the property as they may deem proper.... No ben-' eficiary other than Hannah Larson shall have any transferable interest in the Trust Estate ... and no beneficiary other than Hannah Larson shall have any power to sell, assign transfer, encumber or in any other manner to anticipate or dispose of his or her interest in the Trust....

[¶ 3.] After Rudolph’s death, Hannah continued to live on the family farm with Gary. Hannah leased the trust property to Gary so he could continue the farming and ranching business. The leases were oral and renewed every year from 1974 to 1991. In consideration of the lease, Gary agreed to pay the real estate taxes and any expenses incurred by Hannah.

[¶ 4.] Under the terms of the lease, Gary was allowed to apply for federal benefits through a United States Department of Agriculture program entitled Agricultural Stabilization Conservation Service (ASCS). In 1991, ASCS required Gary to provide a written lease for farm # 1198. The lease, drafted by Beverly, named the lessor as the Trust and the lessee as Gary. The complete lease provides:

This agreement made the 26th day of April, 1991 by Rudolph Larson Trust Estate, Hannah Larson Trustee, and Beverly Englehart Trustee, Lessor and Gary Larson, Lessee.
The Lessee agrees to pay all taxes and expenses incurred by Hannah Larson for lease of the Rudolph Larson Trust Estate in Perkins County.

Gary signed the lease as lessee and Beverly and Hannah signed the lease as trustees on behalf of the Trust.

[¶ 5.] No written leases were made thereafter, but Gary continued to orally lease the property from Hannah in 1992 and 1993.

[¶ 6.] On May 31, 1993, Hannah died. Her life interest in the property was formally terminated by Judgment and Order dated February 21, 1994. After a dispute, Beverly and Gary partitioned the land. A partition judgment was issued April 2, 1996 and affirmed on appeal. See Englehart v. Larson, 1997 SD 84, 566 N.W.2d 152.

[¶ 7.] Gary prepared to farm and ranch all of the trust land in 1994. In anticipation, he applied for 1994 ASCS benefits. Beverly intervened and informed the program director that a dispute over the property existed. The director required Gary to obtain Beverly’s signature on a lease agreement by July 1, 1994. Beverly refused to sign until Gary agreed to deed her 280 acres in Campbell County, 1,200 acres of the Perkins County trust land and pay her $15,750 in cash rent (secured by a mortgage) in consideration for her leasing the 1,200 acres to Gary in 1994. Gary claims that he was unable to comply with Beverly’s demands and, as a result, he lost ASCS benefits of approximately $30,000 and was unable to pay the 1993 taxes and other expenses associated with the ranch.

[¶ 8.] Beverly filed a complaint on November 1, 1994. She alleged that Gary “breached the covenant contained in the Lease Agreement dated April 26, 1991, by his failure to pay the real estate taxes for 1993.” She further alleged that the lease agreement terminated on May 31, 1993 and she was entitled to a portion of the proceeds from the crops and rents of 1994.

[¶ 9.] Gary claims that he held a valid, oral lease on the property until it was terminated in writing on July 27,1994. As the 1994 lessee, he claims that he is solely entitled to all the 1994 proceeds, crops and payments from the leased land. He counterclaimed against Beverly for intentionally interfering and causing him to lose the 1994 ASCS benefits of approximately $30,-000. He also sought punitive damages against Beverly.

[¶ 10.] On June 29, 1995, Beverly filed a motion for summary judgment arguing that Gary’s oral lease terminated on Hannah’s death, May 31, 1993. Gary argued that he held an oral lease for 1994 based on SDCL 43-32-22.1. The trial court denied Beverly’s motion.

[¶ 11.] On August 27, 1996, the trial court held an evidentiary hearing on Gary’s claim for punitive damages against Beverly. After the hearing, Beverly again motioned for summary judgment arguing the identical issue of her June 29, 1995 motion. The trial court denied her motion a second time and determined that Gary would be permitted to submit his claim of punitive damages to the jury.

[¶ 12.] The jury trial was scheduled to commence on September 14, 1998. On July 31, 1998, Beverly filed a renewed motion for summary judgment arguing, for the third time, that Gary’s oral lease of the trust land terminated when Hannah died in 1993. Despite the two prior denials, the trial court granted Beverly’s motion on September 6, 1998 and the trial was canceled. Gary appeals summary judgment raising two issues, which are addressed in one.

STANDARD OF REVIEW

[¶ 13.] Our standard of review for summary judgment is well established and briefly is “whether a genuine issue of material fact exists and whether the law was correctly applied.” Parmely v. Hildebrand, 1999 SD 157, ¶ 7, 603 N.W.2d 713, 715-16 (citations omitted).

[¶ 14.] WHETHER GENUINE ISSUES OF MATERIAL FACT EXIST THAT AN ORAL LEASE OF TRUST PROPERTY TERMINATED ON THE DEATH OF THE LIFE TENANT.

[¶ 15.] Beverly argues that the trial court was correct in granting her motion for summary judgment because Gary only had an oral lease subject to Hannah’s life estate.

[¶ 16.] As a general rule, a lease given by a life tenant is terminated upon the life tenant’s death. Strand v. Boll, 44 S.D. 228, 183 N.W. 284, 285 (1921); 51 Am.Jur.2d Life Tenants and Remaindermen § 98 (1970). The rationale is that “a life tenant cannot make a lease which will extend beyond the life estate or confer greater rights upon h[er] lessee, as against the holders of future interests, than those which [s]he h[er]self possessed.” Drees Farming Ass’n v. Thompson, 246 N.W.2d 883, 887-88 (N.D.1976) (citations omitted); 51 Am.Jur.2d Life Tenants and Remain- dermen § 95 (1970). Thus, the lessee has no interest in the property once the life tenant dies. Therefore, under the general rule, the remainder of Gary’s lease would be void upon Hannah’s death.

[¶ 17.] Gary, however, argues that his oral leases in 1992 and 1993 were a continuation of the 1991 written lease agreement between himself and the co-trustees, Hannah and Beverly. He claims that Beverly, acting as co-trustee, consented to his lease of the trust property in 1992 and 1993. Therefore, he claims that the oral lease continued until terminated by written notice of termination under SDCL 43-32-22.1.

[¶ 18.] The Trust instrument specifically provides that “[u]pon the death of Hannah Larson, the Trust shall terminate and all of the assets, real and/or personal thereof, shall be paid over and distributed.... ” The instrument further provides “no beneficiary other than Hannah Larson shall have any powe,r to sell, assign, tra[n]sfer, encumber or in any other manner to anticipate or dispose of his or her interest in the Trust ... prior to the actual distribution. ...”

[¶ 19.] In applying these explicit terms, it is clear that the Trust terminated immediately upon Hannah’s death. Once the Trust terminates, the trustee’s powers and duties are restricted to activities associated with winding up the trust. Restatement (Second) of Trusts § 344 (1959). In other words, Beverly’s power, as co-trustee, to lease the land expired upon the death of Hannah:

[I]n the absence of an enabling statute or provision in the trust instrument, [the trustee] does not have power to lease the [trust] property for a term extending beyond the life of the life beneficiary, where such life ... marks the extent of the duration of the trust.

51 Am.Jur.2d Life Tenants and Remain-dermen § 98 (1970). Furthermore, the terms of this trust instrument purport to prohibit Beverly, acting as a remainder-man, from encumbering her interest in the property prior to distribution. Consequently, Beverly, acting either as co-trustee or remainderman, did not lease the property to Gary beyond the date of the life tenant’s death under these circumstances.

[¶ 20.] The conduct of these parties also supports this conclusion. Gary claims he was leasing the property under a continuation of the 1991 written lease. However, when Hannah died, the parties began negotiations to partition the trust property. Beverly and Gary also discussed possible terms for a lease agreement of her interest, including a payment by Gary of cash rent. Given these facts, it is reasonable to conclude that the parties knew that the terms of the lease terminated upon Hannah’s death.

[¶ 21.] Gary finally claims that the 1991 written lease continued in effect in 1994 because he was not provided with written notice of termination by November 1, 1993 as required by SDCL 43-32-22.1.

[¶ 22.] The Arkansas Supreme Court evaluated a similar issue in Plafcan v. Griggs, 291 Ark. 335, 724 S.W.2d 467, 468 (1987). In that case, Plafcan farmed a 70-acre tract of agricultural land “by oral agreement on a year-to-year basis from ... his mother, who had a life estate.” After the mother’s death in 1985, Griggs owned the land in fee simple absolute and ordered Plafcan to pay rent or vacate the premises, but Plafcan refused. Instead, he harvested the crop he had planted in 1984 and planted another crop. He claimed he was not required to vacate the land because he did not receive written notice prior to June 30, 1984, as required by Ark.Stat.Ann. § 50-531. The Arkansas Supreme Court determined that the Arkansas Legislature:

did not intend to alter the legal interest which a tenant has in land; the statute only establishes a date when an owner has to give notice to terminate a year to year farm lease. Unless the remainder-man agrees to allow the tenant to remain, the tenant has no interest in the land.

Id. (emphasis added).

[¶ 23.] In aligning with the Arkansas Supreme Court’s rationale, we determine that SDCL 43-32-22.1 does not alter the legal interest a lessee obtains from a life tenant lessor. We have already determined that Gary only held an oral lease of Hannah’s life interest. Therefore, the lease terminated, by the terms of the Trust and by operation of law, on May 31, 1993, the date of death. Written notice of termination under SDCL 43-32-22.1 was not required in this situation.

[¶ 24.] Because Gary’s oral lease terminated on May 31, 1993 and written notice of termination did not have to be provided to him, Gary was not entitled to farm the trust property in 1994. Consequently, he was not entitled to the 1994 ASCS benefits for the trust property and his counterclaim against Beverly also fails as a matter of law.

[¶ 25.] However, when dealing with agricultural land, the lessee has the right to access the land in order to cultivate, protect and harvest crops planted prior to the death of the life tenant. Strand, 183 N.W. at 285 (stating “[t]his right is ordinarily referred to as the right or doctrine of ‘emblements’.... ”). Therefore, even though the lease terminated on May 31, 1993, Gary was allowed to harvest the crops planted prior to Hannah’s death, subject only to payment of rent to Beverly from that date.

[¶ 26.] Since there are no genuine material issues of fact and the law was correctly applied, summary judgment was proper and we affirm.

[¶ 27.] MILLER, Chief Justice, and AMUNDSON, KONENKAMP, and GILBERTSON, Justices, concur.

      . The parlies and the trial court continually referred to Hannah as the "life tenant” when in fact, she was the sole "income beneficia-by. " In view of these references (and facts) and the language of the Trust, we also refer to her as the "life tenant” in this opinion.

      . Gary operated the family farm under a partnership arrangement with his father from 1960 until Rudolph died in 1974.

      . Farm #1198 included property other than trust property in which Gary and Beverly had an undivided one-half interest. It also included a 160-acre “home quarter” and 240 acres, all owned by Gary plus 80 acres owned by Carol Kolb and rented by Gary.

      .On June 14, 1994, Gary mortgaged part of the trust property in Perkins County to Clarke and Ruby Starr, who were later dismissed from this lawsuit.

      . In 1993, this statute provided:
      In the case of farm tenants, occupying and cultivating agricultural land of forty acres or more, under an oral lease, the tenancy shall continue for the following crop year upon the same terms and conditions as the original lease unless written notice for termination is given by either party to the other by November first, whereupon the tenancy shall terminate March first following. The tenancy may not continue because of absence of notice if there is default in the performance of the existing rental agreement. For the purpose of this section, agricultural land includes grassland, either native or tame.
      In 1994, this statute was amended to change November first to September first. Act effective July 1, 1994, ch. 340, 1994 S.D. Laws 465.

      . Beverly asserts that Gary admitted that he never orally leased the Trust property from Beverly:
      Q: You didn’t have any oral leases like that with [Beverly], your sister, did you?
      A: Well, she wouldn’t sign anything anyway, so it doesn't matter.
      Q: But you never had any oral leases from her, did you?
      A: No.

      . For the full text of this statute, see supra, note 5.

      . This statute provided:
      The owner of farm lands which are leased under an oral agreement may elect not to renew the oral rental or lease agreement for the following calendar year by giving written notice by certified registered mail to the renter or lessee, on or before June 30, that the lease or rental agreement will not be renewed for the following calendar year.

      . Even that part of the consideration for the lease, the obligation of Gary to pay "any expenses incurred by Hannah,” ended upon her death.


author: LAVORATO, Justice.

text:
    In re MARRIAGE OF Marie DAVIS and Richard Davis. Upon the Petition of Marie Davis, Appellant, And Concerning Richard Davis, Appellee.
    No. 98-1294.
    Supreme Court of Iowa.
    March 22, 2000.
    Rehearing Denied April 10, 2000.

      Jill Southworth Rolek of Rolek Law Office, West Des Moines, for appellant.
    Charles S. Crook III, Des Moines, for appellee.
   LAVORATO, Justice.

This appeal and cross-appeal grow out of a remand mandate from the court of appeals in a dissolution proceeding. The remand directed the district court to enter a Qualified Domestic Relations Order (QDRO) granting Marie Davis one-half of Richard Davis’ police retirement plan. Marie appeals the district court remand ruling that granted her one-half of the surviving-spouse benefits under the plan. She contends the court should have granted her the entirety of such benefits. She also challenges the district court’s ruling changing the monthly payment date of income benefits under the plan. In addition, she requests appellate attorney fees.

In his cross-appeal, Richard contends the district court erred in awarding Marie any surviving-spouse benefits and in ordering him to pay Marie interest on an additional property award ordered by the court of appeals. He also asks for appellate attorney fees.

We conclude the district court lacked authority on remand to (1) award any surviving-spouse benefits to Marie and (2) order Richard to pay Marie interest. We further conclude the district court ruling on the monthly payment date was correct. We deny Marie appellate attorney fees. We lack jurisdiction to consider Richard’s request for attorney fees because his cross-appeal was untimely. We therefore vacate in part, affirm in part, and remand with directions.

I. Background Facts and Proceedings.

Marie and Richard were married in April 1962. Marie brought three children into the marriage, and Richard and Marie had two daughters of their own.

Throughout the marriage, Richard was an employee of the Des Moines Police Department and was a participant in the Municipal Fire and Police Retirement System (MFPRS).

Marie filed a petition for dissolution of marriage on December 14, 1995. Before this, Richard had filed a service retirement application with the MFPRS on October 30,1995, and chose the basic benefit option among several benefit options that were available. The basic benefit option provides for a retirement allowance based upon years of service, with the spouse of the member receiving for his or her lifetime fifty percent of the member’s current retirement allowance upon the member’s death. See Iowa Code § 411.6 (1995). Richard named Marie as beneficiary, and Marie signed a consent to this designation of her as beneficiary.

Following a trial, the district court entered its ruling and dissolution decree on October 7, 1996. In dividing the marital property, the district court awarded the homestead to Marie and granted Richard a $15,000 judgment against Marie as his share of the equity in the homestead. As to Richard’s pension, the court ruled: “Richard is awarded his police retirement monthly benefit and shall pay Marie one-half of the monthly benefit. The first payment is due March 1,1997.”

Marie appealed, and we transferred the case to the court of appeals. Relative to Richard’s pension, the court of appeals stated:

Both parties indicated they are amenable to subjecting Richard’s police retirement to a Qualified Domestic Relations Order (QDRO). We therefore remand to the trial court to enter a QDRO granting Marie one-half of Richard’s police retirement plan.

Among other things, the court of appeals found that Marie was entitled to an additional $20,000 in property. To accomplish this, the court eliminated the $15,000 judgment that the district court had awarded Richard against Marie and ordered Richard to pay Marie $5000 ninety days from procedendo issuing. Apparently, the court of appeals was unaware that Marie had paid Richard the $15,000 judgment long before the court of appeals filed its opinion.

On remand, the district court received evidence on three issues: (1) whether Marie was entitled to surviving spouse benefits under Richard’s retirement plan, (2) whether Richard owed interest to Marie because of the court of appeals additional award of $20,000 to Marie, and (3) whether Richard had to pay one-half of his retirement benefit on the first day of every month or sometime during the month in which he received it.

The district court interpreted the court of appeals decision as granting Marie not only one-half of the monthly benefit but also one-half of the surviving-spouse benefits. The district court therefore ruled that the Marital Property Order (the equivalent of a QDRO under the MFPRS rules) should reflect that, in the event Richard predeceases Marie, one-half of the surviving-spouse benefits should go to her. For the remainder of the surviving-spouse benefits, the district court ruled that Richard retained the right to designate a new beneficiary once a new “surviving spouse” exists under Iowa Code section 411.1(19).

The district court further concluded that Richard was not required to pay Marie her share of the monthly retirement income benefits on the first day of each month. The court ruled this way because Richard’s right to receive the benefits was contingent upon his living through the month. The district court noted that the Marital Property Order would control when Marie and Richard would receive their share of the monthly benefits.

Finally, the district court concluded that Marie was entitled to interest on $15,000 of the $20,000 additional property awarded her by the court of appeals. The district court ordered Richard to pay Marie interest at the rate of $4.11 per day from January 28, 1998 (the date of the court of appeals decision) to May 1, 1998 (the day Richard paid the outstanding $5000).

We set out additional facts as they relate to the issues we discuss.

II. Authority on Remand.

When, as here, an appellate court remands for a special purpose, the district court upon such remand is limited to do the special thing authorized by the appellate court in its opinion and nothing else. Kuhlmann v. Persinger, 261 Iowa 461, 468, 154 N.W.2d 860, 864 (1967). The district court has no authority to do anything except to proceed in accordance with the mandate. Id. If the district court proceeds contrary to the mandate, its decision must be treated as null and void. Id. Therefore, when the “remand limits the issues for determination, the court on remand is precluded from considering other issues, or new matters.” 5 Am. Jur.2d Appellate Review § 787, at 455 (1995).

The court on remand should interpret the mandate in “accordance with the context of the proceedings” and should “tak[e] into account the appellate court’s opinion and the circumstances it embraces.” Id. § 782, at 451-52.

Additionally,

[t]he mandate serves the purpose of communicating the judgment of the appellate court to the lower court [on remand], and the opinion, which is part of the mandate, serves an interpretative function. Thus, [a court on remand] need not read the mandate in a vacuum, but rather has the opinion of the appellate court to aid it in interpreting the mandate. In this way, the court may examine the rationale of the appellate opinion in order to discern the meaning of language in the court’s mandate.

Id. at 452.

Finally, “[w]hat is contemplated in the appellate opinion by necessary implication may be considered equivalent to that clearly and expressly stated in the appellate opinion.” Id.

III. The Appeal.

Marie contends on appeal that the district court erred on remand in dividing the surviving-spouse benefits. She claims she is entitled to all of the surviving-spouse benefits because (1) the retirement plan designated her as the surviving spouse, and this was not altered by the original dissolution decree or the court of appeals ruling; (2) Iowa Code chapter 411 requires her alone to be awarded surviving-spouse benefits; and (3) contract law requires she should receive the entirety of the surviving-spouse benefits. She also insists that she should receive retirement benefits on the first day of each month as the district court ruled in the dissolution decree. Finally, she claims she is entitled to appellate attorney fees.

Richard argues that Marie should have no right to surviving-spouse benefits or, in the alternative, that she should only receive one-half of such benefits. He further argues that payment of the monthly benefits need only be made at some point during the month and not on the first day of the month.

A. The surviving spouse benefits. Iowa Code chapter 411 governs retirement plans for police officers and fire fighters. Chapter 411 therefore controls on the question of whether a spouse who has been designated as a surviving spouse under the plan here can continue to be a surviving spouse following a dissolution of marriage decree.

Iowa Code section 411.1(19) defines a surviving spouse:

“Surviving spouse ” shall mean the surviving spouse of a marriage solemnized prior to retirement of a deceased member from active service. Surviving spouse shall include a former spouse only if the division of assets in the dissolution of marriage decree pursuant to section 598.17 grants the former spouse rights of a spouse under this chapter ....

(Emphasis added.)

Under the second sentence of section 411.1(19), a person who is a former spouse of the retiree at the time the retiree dies is a surviving spouse entitled to the surviving-spouse benefits only if the dissolution decree granted the former spouse such benefits.

That brings us to the following question: What did the court of appeals mean by its mandate to the district court on remand? Again, that mandate stated:

Both parties indicated they are amenable to subjecting Richard’s police retirement to a Qualified Domestic Relations Order (QDRO). We therefore remand to the trial court to enter a QDRO granting Marie one-half of Richard’s police retirement plan.

We cannot answer the question we pose in a vacuum. Rather, we must look at what happened in the district court prior to the court of appeals decision to determine just what the parties had agreed to. In short, we must consider the context of the proceedings and the circumstances the mandate language embraces.

1. Proceedings in the district court prior to the court of appeals decision. In the dissolution hearing, the only reference to what Marie desired from Richard’s retirement benefits is this exchange between Marie and her attorney.

Q. Are you asking the Court to give — award you one-half of whatever the accrued benefits are under this retirement program? A. Yes.
Q. Would that be essentially the sole source of your income at this time? A. Yes.

The court sustained an objection to the last question and answer because the record was that Marie had other sources of income. The point, however, is that there was no mention of Marie’s desire to be awarded surviving-spouse benefits under Richard’s retirement plan.

Richard’s testimony on the same subject came in response to his attorney’s questions:

Q. And as far as the support or division of the retirement each month, what is your desire to have the Court do on that? A. I told her I would give her half of it—

Again, there was no mention regarding surviving-spouse benefits.

The district court in its dissolution decree clearly did not award Marie surviving-spouse benefits. Rather, the decree provided that “Richard is awarded his police retirement monthly benefit and shall pay Marie one-half of the monthly benefit,” with no mention of surviving-spouse benefits. The court ruled this way despite the position Marie took in her posttrial brief that (1) the court should by means of a QDRO divide the gross monthly benefits equally between the parties, and (2) each party should name the other as beneficiary for survivorship purposes.

Additionally, after the court filed its dissolution decree, Marie filed a motion pursuant to Iowa Rule of Civil Procedure 179(b) in which she asked the court to amend and enlarge its findings. Specifically, Marie challenged the court’s implied finding that the division of accrued retirement benefits under Richard’s retirement fund should be treated as “alimony,” whereas the court treated her own retirement plans as property. Alternatively, Marie asked the court to amend and enlarge its findings and order to find as follows:

1. That both parties testified and agreed that income from the Des Moines Police Department post-retirement should be divided equally between the parties as property. Such division should be accomplished by reason of a QDRO order effective as of the date of entry of the decree.

Marie made no mention of surviving-spouse benefits in this motion.

As the testimony of both parties shows, they did agree that the monthly income benefit be divided evenly. However, neither party mentioned a QDRO or whether surviving-spouse benefits should be included in the division.

The district court filed a ruling summarily denying Marie’s rule 179(b) motion. She appealed on November 22,1996.

Eight months later, while the appeal was pending, the parties and their attorneys appeared before another district judge with what appeared to be a stipulation. Marie’s attorney dictated the following stipulation into the record:

The stipulation that the parties have agreed to is that a qualified domestic relations order will be entered equally dividing the gross benefits payable to Richard Davis, respondent, under the terms of the Municipal Retirement and Fire System of Iowa.
[Richard’s attorney] will prepare an order, signature by [Marie’s attorney], approval by the trustee, that shall divide the gross monthly benefits payable to Richard between the two parties, and shall be effective as soon as entered.

In acknowledging the stipulation, Richard’s attorney stated: “When I draw up the qualified order, I would like to refer to the fact that either party will accept whatever tax liability [there is] on their share.” Marie’s attorney agreed to this last part of the stipulation.

Again, there was no mention made of surviving-spouse benefits. Pursuant to the stipulation, Richard’s attorney drew up a QDRO. When Marie’s attorney received the QDRO, she changed it to include a provision requiring all of the surviving-spouse benefits to go to Marie. Richard objected to approving the QDRO because of the surviving-spouse-benefits provision in Marie’s favor. From this point on, the parties were at an impasse, and there never was an order approving the stipulation.

2. Proceedings in the court of appeals. We have reviewed the briefs the parties filed in the dissolution appeal before the court of appeals. As to Richard’s retirement plan, Marie raised the following issue: “The trial court erred in not specifying Richard’s pension as property, then dividing the retirement benefits into two equal accounts by means of a Qualified Domestic Relations Order; the trial court erred by characterizing payment to Marie as spousal support, not specifying the amount to be paid, the frequency of payment, the duration of payment _” In. the body of her brief, Marie argued “that the district court erred by not specifically stating that Richard’s pension is ‘property’ which should be divided, in accordance with the parties’ testimony, into two equal portions by means of a Qualified Domestic Relations Order with survivors rights to her (Emphasis added.) As mentioned, neither party testified that the surviving-spouse benefit should go to Marie.

In response, Richard argued that the district court in the dissolution decree correctly divided Richard’s retirement account. Additionally, Richard argued that

[s]ince [the district court] required Richard to pay half of his monthly benefit, it little matters whether a Qualified Domestic Relations Order is entered or not. It is clear from the [district court] ruling that he has to pay one-half of the monthly payment and the date of the commencement of the payment .... Respondent does not object to the entry of a Qualified Domestic Relations Order to commence on the 1st of March 1997 with respect to his police retirement monthly benefit.

(Emphasis added.)

Given this history, it is obvious that, when the court of appeals in its remand mandate stated that “Both parties indicated they are amenable to a Qualified Domestic Relations Order,” it was referring to the only matter the parties had agreed upon: equal division of the gross monthly benefit. The court of appeals was not referring to surviving-spouse benefits because the parties obviously had not agreed upon that issue. Therefore, when the court of appeals remanded for a QDRO granting Marie one-half of Richard’s police retirement plan, it did so only with respect to the monthly income benefit.

By granting Marie one-half of the retirement plan, the court of appeals accepted Marie’s argument that the award constituted a property division rather than spousal support. The court of appeals was therefore treating awards of all retirement plans of the parties similarly. For example, the district court’s decree had awarded Richard one-half of Marie’s 401K plan and one-half of her IPERS plan, an award the court of appeals affirmed. Interestingly, Marie removed Richard as beneficiary from her plans.

We find support for our interpretation of the remand mandate in the court of appeals ruling on Marie’s “motion for clarification and amendment and enlargement of ruling.” In that motion, Marie asked the court of appeals to amend and enlarge its ruling on the retirement plan to state that Marie “shall also receive survivor benefits of Richard’s portion of the retirement plan.”

The court of appeals treated the motion as a petition for rehearing pursuant to Iowa Rule of Appellate Procedure 27(a) and denied it. Such a denial in our opinion meant the court of appeals did not intend the QDRO to include surviving-spouse benefits.

On remand, Marie was therefore left with a decree without a provision granting her surviving-spouse benefits. Without such a provision, she simply is not entitled to surviving-spouse benefits according to Iowa Code section 411.1(19), no matter what Marie thinks the equities are and no matter what contractual rights Marie thought she had.

The district court was therefore without authority to enter a Marital Property Order that would have a provision providing surviving-spouse benefits to Marie. Accordingly, we must vacate that part of the district court ruling.

B. Payment date. The dissolution decree provided that Richard’s first payment of the monthly benefit was due March 1, 1997. On remand, the evidence showed that Richard’s right to receive the monthly benefit was contingent upon his living through the month. Consequently, he was not entitled to the March 1997 benefit until the end of March. Notwithstanding this circumstance, Marie insists March 1, 1997, was the starting date, and because she did not receive her share of the monthly benefit until approximately the end of the month, she is entitled to one month’s payment with interest.

The district court on remand noted that the entry of the Marital Property Order would resolve the issue because Marie will receive her payment directly from the retirement fund, and Richard will have no ability to speed or delay any payment. The court ruled that there would be no arrearages as long as Marie receives her share of the monthly benefit in the month that Richard receives his share. In so deciding, the court noted that Marie was awarded one-half of Richard’s police retirement fund so her rights can be no better than Richard’s. Marie thinks the district court was without authority to make such a ruling.

We disagree. We think what the district court did was implicit in the remand mandate. As the district court noted, Marie and Richard will receive monthly payments directly from the retirement fund. The administrators of the MFPRS would necessarily dictate when the monthly payments are made, and Richard would have no control over the decision. The court of appeals in mandating the entry of a QDRO certainly must have realized this practicality and intended the payment date to be that dictated by the administrators. The district court correctly left the timing of the monthly payments to those responsible for the payments. The court also correctly determined there should be no arrear-ages as long as Marie receives her share of the monthly benefit in the same month that Richard receives his.

C. Appellate attorney fees. Marie asks for an award of appellate attorney fees. An award of appellate attorney fees in a dissolution proceeding is discretionary. In re Marriage of Ask, 551 N.W.2d 643, 646 (Iowa 1996). In determining this question, we consider the needs of the party making the request, the ability of the other party to pay, and whether the party making the request was obligated to defend the district court’s decision on appeal. Id. After considering these factors in light of the record, we conclude Marie should be responsible for her own appellate attorney fees.

IV. The Cross-Appeal.

In his cross-appeal, Richard challenges the district court’s determination that he should pay interest on $15,000 of the $20,000 additional property award to Marie. Richard also asks for appellate attorney fees.

The district court entered its remand ruling on June 17, 1998. Marie appealed on July 16, 1998. Richard cross-appealed on July 24, 1998. The cross-appeal was taken more than thirty days after the district court ruling and more than five days after Marie’s appeal. Therefore, the cross-appeal was untimely. See Iowa R.App. P. 5(a) (providing that cross-appeal must be taken within the thirty days for taking an appeal or in any event within five days after the appeal is taken). Accordingly, we dismiss the cross-appeal for lack of jurisdiction. See State ex rel. Miller v. Santa Rosa Sales & Mktg., Inc., 475 N.W.2d 210, 214 (Iowa 1991) (holding that untimely notice of cross-appeal deprives the appellate court of jurisdiction, and the appropriate remedy is dismissal).

The dismissal deprives us of jurisdiction to consider Richard’s request for appellate attorney fees. The dismissal, however, does not deprive us of jurisdiction to consider the‘interest award if the award was not a proper matter for the district court to consider on remand. If the award was not a proper matter for the district court to consider on remand, we must on our own motion treat the award as null and void.

In its decision, the court of appeals awarded Marie no interest on the additional $20,000 award. Additionally, in its remand mandate, the court of appeals made no mention of this award. The district court therefore went beyond the remand mandate when it ordered Richard to pay interest on the $15,000 portion of this $20,-000 award. The district court had no authority to enter such an order, and for that reason we must vacate the order.

V. Disposition.

In summary, we conclude the district court remand ruling ordering that the surviving-spouse benefits be divided between Marie and whomever Richard would designate went beyond the remand mandate from the court of appeals. We therefore vacate that portion of the district court remand ruling.

The district court remand ruling on the payment date did not go beyond the remand mandate but indeed was implicit in the mandate. We therefore affirm that portion of the district court remand ruling.

That portion of the district court remand ruling ordering Richard to pay Marie interest also went beyond the remand mandate. We likewise vacate that portion of the district court remand ruling.

We deny Marie’s request for attorney fees. We lack jurisdiction to consider Richard’s request for appellate attorney fees because his cross-appeal was untimely.

We remand for the district court to enter a Marital Property Order (the equivalent of a QDRO under the MFPRS rules) not inconsistent with this opinion.

DECISION OF DISTRICT COURT VACATED IN PART; AFFIRMED IN PART; AND CASE REMANDED WITH DIRECTIONS.

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


text:
    Donald W. GOODRICH, Appellant, v. STATE of Iowa, Appellee.
    No. 99-0037.
    Supreme Court of Iowa.
    March 22, 2000.

      Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Chris Odell and Martha E. Boesen, Assistant Attorneys General, and William S. Owens, County Attorney, for appellee.
   LAVORATO, Justice.

In this postconviction relief proceeding, the appellant, Donald W. Goodrich, appeals from a district court order that directed the Iowa Department of Corrections to withdraw moneys from his prison account to pay court costs and attorney fees incurred in the proceeding. We vacate and remand with directions.

I. Background Facts and Proceedings.

In February 1998, the district court sentenced Goodrich to an indeterminate five-year prison term on a second-degree theft charge to which he had earlier pled guilty. Later the court ordered him to pay court costs of $222.70 and attorney fees of $382.50. Following this order, the district court further ordered Goodrich to make restitution (1) for these amounts pursuant to Iowa Code sections 910.2 and 910.3 (1997) and (2) in accordance with a restitution plan prepared by the Iowa Department of Corrections.

In April 1998, Goodrich filed a postcon-viction relief application challenging his conviction on grounds of ineffective assistance of counsel. Before proceeding with this postconviction proceeding, Goodrich filed a request to proceed in forma pauper-is. In this request, Goodrich reported that he earned $50 per month at the Iowa State Penitentiary and that he had $2 in his prison account.

At Goodrich’s request, the district court appointed counsel to represent him pursuant to Iowa Code sections 815.9 and 815.10. Following a hearing on his application, the district court denied Goodrich any relief. In addition, the court assessed costs against him pursuant to Iowa Code section 610A.1. The court further ordered that Goodrich pay court costs of $320.18 and to reimburse the state for court-appointed attorney fees of $472.50. The court also directed the department of corrections to withdraw monies from Goodrich’s prison account for payment of court costs and court-appointed attorney fees at the rate of $25 per month until the obligations were fully paid.

Goodrich appealed, challenging only the order directing the department of corrections to withdraw monies from his prison account to pay the court costs and court-appointed attorney fees at the rate of $25 per month. He contends the order violates his constitutional due process rights because the district court did not provide him a hearing to determine his ability to pay the $25 per month installment.

II. Jurisdiction.

Preliminarily, we address the State’s contention that we lack subject matter jurisdiction to hear this appeal under Iowa Rule of Appellate Procedure 1 because the claim Goodrich raises does not involve the merits of his postconviction relief application: ineffective assistance of counsel. See Iowa R.App. P. 1 (providing that final judgments and decisions of the district court involving “the merits or materially affecting the final decision[ ] may be appealed to the Supreme Court, except as provided in this rule and Iowa Rule of Appellate Procedure 3”). The State also contends we have no subject matter jurisdiction because the amount in controversy is less than $5000. See Iowa R.App. P. 3 (providing that no appeal will be taken if an action involves less than $5000).

The short answer to the State’s contentions is that it has overlooked Iowa Code section 822.9, relating to appeals regarding postconviction relief proceedings. This provision pertinently provides that

[a]n appeal from a final judgment entered under this chapter may be taken, perfected, and prosecuted either by the applicant or by the state in the manner and within the time after judgment as provided in the rules of appellate procedure for appeals from final judgment in criminal cases.

(Emphasis added.)

The record shows that Goodrich complied with this statutory provision. Therefore, under section 822.9, we clearly have subject matter jurisdiction to hear this appeal.

III. The Court Order Requiring Goodrich to Pay $25 Per Month From his Prison Account.

Goodrich likens the challenged court order to a criminal restitution order in which the focus is on whether the defendant has the ability to pay the current installments. Although Goodrich concedes that this post-conviction relief proceeding is not strictly a criminal action, he contends the same principles should nevertheless apply because the proceeding did involve a challenge to his criminal prosecution.

Goodrich points out that the original restitution order of $10 per month and the court-cost order of $25 per month leave him with little funds from his monthly income of $50 per month. He complains because the court did not consider that he might not receive $50 every month or that he might have other expenses. He offers that we should reverse the court-cost order of $25 per month and remand for a hearing on his ability to pay this monthly amount.

Constitutionally, a court must determine a criminal defendant’s ability to pay before entering an order requiring such defendant to pay criminal restitution pursuant to Iowa Code section 910.2. Section 910.2 authorizes a court to order the offender to make restitution of court costs and court-appointed attorney’s fees “to the extent that the offender is reasonably able to do so.” The “reasonably able to pay” requirement enables section 910.2 to withstand constitutional attack. State v. Haines, 360 N.W.2d 791, 796 (Iowa 1985).

The problem with Goodrich’s contention is that the challenged order was not a criminal restitution order. Rather, it was merely an assessment of court costs and attorney’s fees under Iowa Code section 610A.1. Iowa Code chapter 610A applies to postconviction relief proceedings because such proceedings are civil actions. See Fryer v. State, 325 N.W.2d 400, 415 (Iowa 1982) (holding that postconviction proceeding is a civil suit).

Iowa Code section 610A.1(1) requires all inmates under the control of the department of corrections to “pay in full all fees and costs associated with” the inmate’s civil action or appeal. Iowa Code section 610A.l(l)(a) directs the court to order the inmate (1) upon filing the action or appeal to pay a minimum of twenty percent of the required filing fee and (2) to make monthly payments of ten percent of all outstanding fees and costs associated with the action or appeal.

The district court did not enter an order requiring Goodrich to pay the minimum amount of the required filing fee under section 610A.l(l)(a) when Goodrich filed this postconviction action. So we concern ourselves no further with the minimum filing fee requirement under this provision.

The court costs of $320.18 and the court-appointed attorney’s fees of $472.50 totaled $792.68. The district court ordered Goodrich to pay $25 per month on the total.

There are two problems with the district court order. First, the district court was without authority to enter an order directing Goodrich to pay anything less than ten percent of all outstanding fees and costs associated with this action. We can understand why the district court did so. Ten percent would amount to $79.27 per month, and this is almost $30 per month more than Goodrich earns at the penitentiary. Nevertheless, the court should have entered the order calling for the monthly payment of ten percent of court costs and attorney fees.

Second, the court’s order did not simply provide for a $25 per month payment. Rather, the order provided:

The department of corrections shall withdraw moneys maintained in a Warden’s account for Donald W. Goodrich (# 1117694) for payment of court costs and attorney fees, at the total rate of $25 per month, until the obligations are fully paid.

There is no statutory authority for the district court to direct the department of corrections to make a withdrawal from an inmate’s prison account. Rather, as Iowa Code section 610A.l(l)(b) provides, that authority resides in the department of corrections:

If the inmate has an inmate account under section 904.702, the department of corrections shall withdraw moneys maintained in the account for the payment of fees and costs associated with the inmate’s action or appeal in accordance with the court’s order until the required fees and costs are paid in full.

Iowa Code § 610A.l(l)(b) (emphasis added).

Under Iowa Code section 904.702, the department of corrections can deduct “an amount sufficient to pay all or any part of any judgment against the inmate, including but not limited to ... court costs and fees assessed ... as ... amounts required to be paid under section 610A.1.” Iowa Code § 904.702 (emphasis added). But before the department may make the deduction, it must give the inmate “[wjritten notice of the amount of the deduction.” Id. The inmate has “five days after receipt of the notice to submit in writing any and all objections to the deductions to the director [of the department of corrections], who shall consider the objections prior to transmitting the deducted amount to the clerk of the district court.” Id.

We think the legislature inserted the notice-and-opportunity-to-object language in section 904.702 to give the department of corrections authority to determine how a section 610A.l(l)(a) order for costs and attorney’s fees would be collected. Without such authority, the order might be unfair, or even confiscatory. As with the “reasonably able to pay” standard in criminal restitution, we think this authority is necessary to allow a section 610A.l(l)(a) order to pass constitutional muster. See State v. Love, 589 N.W.2d 49, 52 (Iowa 1998) (holding that (1) prisoners have protected property interest in prison allowance subject to deductions authorized in Iowa Code section 904.702 and (2) department has discretion in allocating the allowances but may make only those deductions authorized by statute).

Therefore, when the district court orders a prisoner “to make monthly payments of ten percent of all outstanding fees and costs associated” with the prisoner’s action, the department has authority to determine the amount of the payment that can be collected from the prisoner’s account. Absent this authority, the notice- and-opportunity-to-object language in section 904.702 would be meaningless. Additionally, the department must have this authority if it is to structure a payment plan that will accomplish what the legislature intended and will at the same time leave the prisoner enough to pay for essential items that the penitentiary does not provide. Here, after Goodrich has had an opportunity to be heard, the department will be in a position to structure a payment plan that will accomplish these two goals and at the same time will provide fairness to the process.

We conclude the district court’s order was contrary to its statutory authority. We vacate the order and remand. On remand, the district court shall order Goodrich to make monthly payments of ten percent of the outstanding fees and costs associated with his postconviction relief action.

JUDGMENT VACATED AND CASE REMANDED WITH DIRECTIONS.

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


author: SNELL, Justice.

text:
    STATE of Iowa, Appellee, v. Jeff Alan STEPHENSON, Appellant.
    No. 98-114.
    Supreme Court of Iowa.
    March 22, 2000.
    Rehearing Denied April 10, 2000.

      Linda Del Gallo, State Appellate Defender, and John P. Messina, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, David Skilling, County Attorney, and Conrad Meis, Assistant County Attorney, for appellee.
   SNELL, Justice.

The State seeks further review of an appellate court decision which held the defendant, Jeff Allen Stephenson, did not validly waive his Sixth Amendment right to counsel. Defendant cross-appeals, contending the State faked to prove an essential element of the crime, and that his sentence was illegal. We affirm the decision of the court of appeals, reverse the judgment of the district court and remand for a new trial.

I. Background Facts and Proceedings

On July 28, 1997, Darlene Stephenson was at home recuperating from a recent surgery, when her friend, Julie Winkel, received a message advising her that it might be prudent to check on Darlene’s welfare. When Julie visited the Stephenson household later that day it was readily apparent Darlene was not feeling well. Julie attempted to comfort her friend but Darlene’s son, the defendant, quickly became enraged. He was intoxicated and in an ill humor, complaining about his mother’s loss of appetite. He assumed a belligerent posture toward Julie and made it clear that he resented her presence. Julie left only to be summoned back by a concerned neighbor. Darlene’s condition had worsened and unbeknownst to anyone at the time, she was bleeding internally and needed immediate medical attention. Julie suggested the advisability of consulting a physician at which point defendant accosted her with profanity and accused her of meddling in affairs which were none of her business. When a nurse arrived shortly thereafter, it was determined Darlene would need to see a doctor. The three women subsequently went to a clinic leaving defendant home alone.

Defendant later phoned Julie’s residence and left an angry message with her husband Eldon. He then had a friend attempt to contact Julie at the clinic for the purpose of inquiring as to his mother’s health. Defendant eventually called the clinic himself and demanded to speak with his mother. Darlene apparently did not feel well enough to accept the call so she asked Julie to respond on her behalf. Defendant became irate when Julie answered the phone. He reviled her with obscenities and stated, “Pm going to kill you Julie Winkel.”

At the time, Julie was not unduly concerned by the threat. She was familiar with the defendant’s troubled and violent past, had known him for approximately thirty years and largely regarded him as a short tempered bully.

Defendant, however, again called Julie’s home reiterating his earlier threat to her husband, a local attorney who subsequently informed the police. In the meanwhile, it became necessary to transfer Darlene to a hospital in Mason City. Darlene be-seeched Julie to inform her son, and although uncomfortable with the request, Julie acquiesced. Stephenson responded with yet another verbal assault in which he exclaimed “Goddamn you Julie Winkel with your highfalutin ideas. You just cost ■ me $10,000. I’m going to kill you.”

At this point Julie became concerned for her safety. Her distress only intensified after receiving another call that evening in which the Winkels were warned Stephenson was acting irrationally and had threatened to “kill them with a gun.”

Defendant was arrested that night and charged with one count of first-degree harassment in violation of Iowa Code section 708.7(2) (1997) (telephone harassment). The charge was based on the two calls in which Stephenson spoke directly to Julie at the clinic and made threats on her life, neither of which he initiated. Two attorneys were appointed to represent Stephenson, but each withdrew. At his arraignment defendant was told he had a right to counsel and that a lawyer would be provided for him if he could not afford one. Stephenson indicated his preference to act as his own attorney. He later vacillated on the issue, but eventually decided to proceed with the aid of standby counsel. No formal inquiry into defendant’s decision was ever made for the record. However, a district associate court calendar entry reveals that:

“the undersigned judge visited with the defendant on the evening of October 20, 1997, and [he] was still a little resistant to the appointment of stand-by counsel, but I explained the necessity of this to him and that it was the court’s decision, not his.”

In addition to the October 20, 1997 calendar entry by the district associate court, an October 14 administrative order noted, “[t]he Defendant has indicated to the Court that he wishes to proceed pro se, although no formal record has been made on this, but that the Defendant has requested standby counsel.”

No other colloquy was initiated regarding the nature of the charges, the dangers of proceeding without counsel, available defenses or the trial process in general.

A jury trial commenced soon thereafter in which the defendant was found guilty as charged. Stephenson was sentenced to twenty-four months in the county jail with six months suspended. Owing to the apparent illegality of the sentence, the trial court redirected defendant to serve eighteen months with the Department of Corrections in addition to two years probation and a $1000 fine.

Defendant appealed his conviction and advanced the following three arguments:

1. His conviction should be vacated because the district court failed to make a sufficient inquiry regarding the waiver of his Sixth Amendment right to counsel, as is required by state and federal law;
2. There is insufficient evidence to support the charge of harassment because he did not initiate the telephone .conversations which served as the basis for the indictment; and
3. The sentence imposed by the trial judge does not conform to state mandates.

The court of appeals reversed Stephenson’s conviction holding the State failed to prove defendant’s waiver of counsel was valid. It then remanded the matter for retrial, finding substantial evidence existed upon which to found the harassment charge. It also noted that Stephenson’s sentence was illegal because an eighteen-month term is not recognized by law, and because probation cannot be ordered without a suspension of sentence or a deferral of judgment.

The State now seeks further review to reinstate defendant’s conviction. Stephenson cross appeals, again asserting his claim of insufficient evidence. Both parties agree the sentence imposed by the trial court was illegal.

II. Waiver

Constitutional challenges are reviewed de novo. State v. Rater, 568 N.W.2d 655, 657 (Iowa 1997); State v. Spencer, 519 N.W.2d 357, 359 (Iowa 1994).

The Sixth Amendment to the United States Constitution guarantees an accused the right to legal representation. Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562, 566 (1975); Rater, 568 N.W.2d at 658. In accordance with this right a criminal defendant may opt to proceed without an attorney and to conduct his or her own defense. Faretta, 422 U.S. at 819, 95 S.Ct. at 2533, 45 L.Ed.2d at 572; Rater, 568 N.W.2d at 658. However, before a trial court honors an accused’s request to waive the right to counsel, it must satisfy itself the defendant’s election is voluntary, knowing, and intelligent. Faretta, 422 U.S. at 835-36, 95 S.Ct. at 2541, 45 L.Ed.2d at 582; Rater, 568 N.W.2d at 658 (a waiver must also be unequivocal). In making this determination courts are required to engage the accused in a colloquy sufficient to apprise a defendant of the dangers and disadvantages inherent in self-representation. Patterson v. Illinois, 487 U.S. 285, 298-99, 108 S.Ct. 2389, 2398, 101 L.Ed.2d 261, 276-77 (1988); Faretta, 422 U.S. at 835-36, 95 S.Ct. at 2541, 45 L.Ed.2d at 582; Von Moltke v. Gillies, 332 U.S. 708, 723-24, 68 S.Ct. 316, 323, 92 L.Ed. 309, 320-21 (1948); Rater, 568 N.W.2d at 658. The degree of inquiry necessary to assure a valid waiver varies with the nature of the offense and the ability of the accused to understand the process. Rater, 568 N.W.2d at 660. This colloquy serves a dual purpose. It safeguards the constitutional guarantees of the accused, and by creating a formal record, it insulates the judiciary from claims of abuse.

The record in this case shows the trial court did not satisfy its Faretta duty to inquire further into Stephenson’s decision to proceed pro se. The State, however, maintains Stephenson failed to obtain transcripts of discussions in which the issue of waiver was allegedly raised. The State avers defendant bears the burden of providing a transcript or supplemental statement of those proceedings, and that his failure to do so resulted in an automatic waiver of the issue on appeal. See Iowa R.App. P. 10(c).

Alternatively, the State contends that regardless of whether a colloquy took place, Stephenson’s waiver of counsel was still voluntary, knowing and intelligent. The State cites in support the fact that Stephenson is familiar with the judicial process, having been previously convicted of a felony. Also, the State claims he was competent in the handling of his defense, filing motions, examining witnesses, and lodging objections.

We recently addressed the State’s arguments in State v. Cooley, 608 N.W.2d 9 (Iowa 2000). There we held that pursuant to Iowa Rule of Appellate Procedure 10(c), in addressing the issue of waiver of counsel, the burden of proving a valid waiver lies with the State. It is the State’s responsibility, therefore, to prepare the record for appeal; defendant’s failure to do so does not result in a waiver of the issues on appeal.

Moreover, a trial court has an absolute duty to indulge the accused in an on the record colloquy. Cooley, 608 N.W.2d at 14. There is no indication the trial court fulfilled this duty, nor has the State provided evidence to the contrary. A failure to abide by this procedure cannot be overcome by harmless error analysis. Cooley, 608 N.W.2d at 17; Rater, 568 N.W.2d at 661. Accordingly, the failure of the trial court to conduct an adequate inquiry to determine if Stephenson’s attempted waiver of his right to counsel satisfied constitutional requirements results in reversible error. The proceedings by which Stephenson was convicted violated his Sixth Amendment right to counsel under the United States Constitution.

III. Sufficiency of the Evidence

Stephenson’s claim of insufficient evidence is essentially a question of statutory construction. Our review is therefore for errors at law. State v. Eickelberg, 574 N.W.2d 1, 3 (Iowa 1997). Because this case will be retried, we address the issues of statutory construction that arose.

Iowa Code section 708.7 provides in pertinent part:

1. a. A person commits harassment when, with intent to intimidate, annoy, or alarm another person, the person does any of the following:
(1) Communicates with another by telephone, telegraph, or writing without legitimate purpose and in a manner likely to cause the other person annoyance or harm.
(2) Places a simulated explosive or simulated incendiary device in or near a building, vehicle, airplane, railroad engine or railroad car, or boat occupied by another person.
(3) Orders merchandise or services in the name of another, or to be delivered to another, without the other person’s knowledge or consent.
(4) Reports or causes to be reported false information to a law enforcement authority implicating another in some criminal activity, knowing that the information is false, or reports the alleged occurrence of a criminal act, knowing the act did not occur.
b. A person commits harassment when the person, purposefully and without legitimate purpose, has personal contact with another person, with the intent to threaten, intimidate, or alarm that other person. As used in this section, unless the context otherwise requires, “personal contact ” means an encounter in which two or more people are in visual or physical proximity to each other. “Personal contact ” does not require a physical touching or oral communication, although it may include these types of contacts.
2. A person commits harassment in the first degree when the person commits harassment involving a threat to commit a forcible felony, or commits harassment and has previously been convicted of harassment three or more times under this section or any similar statute during the preceding ten years.
Harassment in the first degree is an aggravated misdemeanor.

Stephenson suggests a violation of section 708.7(l)(a)(l) requires proof the accused initiated a harassing telephone conversation. He notes that sections 708.7(l)(a)(2)-(4) all proscribe behavior that is instigated by the harasser, and that section 708.7(l)(b) prohibits purposeful, as opposed to accidental contact. This, he believes, evinces a pattern of legislative intent through which the crime of harassment should be construed as a proscription against annoyance inflicted through uninvited, unwelcome contact, rather than an interdiction against nuisance or vulgarity over the phone. Since Stephenson did not place the calls upon which his conviction stands, he reasons the State failed to prove an essential element of the crime.

We are unpersuaded. A well recognized rule of statutory construction holds that “when a statute is plain and its meaning clear, courts are not permitted to search for meaning beyond its express terms.” State v. Chang, 587 N.W.2d 459, 461 (Iowa 1998).

We find the statute unambiguous. Section 708.7(l)(a)(l) neither expressly or impliedly supports Stephenson’s theory. That sections 708.7(l)(a)(2)-(4) specify affirmative conduct on behalf of an offender, only serves to buttress the notion that the legislature specifically intended section 708.7(l)(a)(l) to forbid all harassing telephonic communications, regardless of who initiated contact. Had the legislature intended otherwise, it would have employed language of limitation; ie., providing that only those who “make calls,” or “telephone another,” commit the crime of harassment.

We also note that the predecessor statute to section 708.7(l)(a)(2) used language on the unlawful use of a telephone that more narrowly applies to an offender. Iowa Code section 714.37 (1975) states:

It shall be unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to telephone another and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict injury or physical harm to the person or property of any person.

(Emphasis added.)

This statute was amended to provide that the act of harassment is committed by a person who “communicates with another,” rather than providing it is unlawful for a person with intent to harass “to telephone another.” The present statute was thus broadened to include those instances whereby someone other than the offender initiates the call.

We hold that Iowa Code section 708.7(l)(a)(l) applies to a defendant who commits harassment by communication regardless of who initiates the contact between the victim and an accused. The defendant may thereby be prosecuted under Iowa Code section 708.7(2).

IV. Sentencing

Although this case will be retried, questions involving sentencing have been raised that we deem important to resolve. Our review of a challenge to a district court’s application of a sentencing statute is for corrections of errors at law. State v. Edgington, 601 N.W.2d 31, 32, (Iowa 1999); State v. Rodgers, 560 N.W.2d 585, 586 (Iowa 1997). A sentence not authorized by law is void. State v. Allen, 601 N.W.2d 689, 690 (Iowa 1999); State v. Wiese, 201 N.W.2d 734, 737 (Iowa 1972).

Stephenson was sentenced to an eighteen-month term of imprisonment with the Iowa Department of Corrections, following which time, he was to serve an additional two years probation.

The impropriety of this sentence is readily conceded by both parties. Stephenson was convicted of first-degree harassment in violation of Iowa Code section 708.7(2). Harassment in the first degree is an aggravated misdemeanor. Iowa Code § 708.7(2). “When a judgment of a conviction of an aggravated misdemeanor is entered against any person and the court imposes a sentence of confinement for a period of more than one year the term shall be an indeterminate term.” Id. § 903.1(2). Under the general indeterminate sentencing statute, a judge must impose an indeterminate sentence for the full statutory maximum. Rodgers, 560 N.W.2d at 587.

Since section 708.7(2) does not provide a specific penalty for harassment in the first degree, an aggravated misdemeanor, the maximum penalty prescribed by the legislature is imprisonment not to exceed two years. Iowa Code § 903.1(2). The sentence imposed on Stephenson of eighteen months imprisonment is illegal and void.

Moreover, probation is to be served in lieu of, not in addition to, incarceration. Probation cannot be ordered in the absence of a suspension of sentence, a deferral of sentence, or a deferral of judgment. State v. Davis, 544 N.W.2d 453, 455 (Iowa 1996); State v. Tensley, 334 N.W.2d 764 (Iowa 1983); see also Iowa Code §§ 901.5, 907.3, 907.5. As Stephenson’s probation was not set to begin until after his period of incarceration expired, this portion of the sentence was also improper.

IV. Conclusion

For the reasons stated, we remand this case for retrial. The court of appeals’ decision remanding for a new trial is affirmed. The judgment of the district court is reversed.

DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED FOR NEW TRIAL.

All justices concur except LARSON, J., who dissents without opinion, and is joined by McGIVERIN, C.J.


author: NEUMAN, Justice.

text:
    STATE of Iowa ex rel. Thomas J. MILLER, Attorney General of Iowa, and Iowa Department of Natural Resources, Appellees, v. Austin J. DeCOSTER d/b/a DeCoster Farms of Iowa, Appellant.
    No. 98-294.
    Supreme Court of Iowa.
    March 22, 2000.

      William Sidney Smith and Michael P. Mallaney of Smith, Schneider, Stiles, Hudson, Serangeli, Mallaney & Shindler, P.C., Des Moines, for appellant.
    Thomas J. Miller, Attorney General, and David R. Sheridan and Michael H. Smith, Assistant Attorneys General, for appellees.
    Considered by McGIVERIN, C.J., and CARTER, NEUMAN, and CADY, JJ„ and HARRIS, S.J.

       Senior judge assigned by order pursuant to Iowa Code section 602 .9206 (1999).

   NEUMAN, Justice.

This is an environmental enforcement action brought by the State of Iowa against Austin J. DeCoster d/b/a DeCoster Farms of Iowa. The action concerns two hog manure spills at DeCoster confinement facilities, one occurring in Wright County and the other in Hamilton County. Athough not major in scope, the violations came on the heels of other administrative actions and legal proceedings against this large-scale livestock producer.

The focus of this appeal by DeCoster is not on the trial court’s ultimate finding that the violations occurred and justify the $10,000 penalty ($5,000 per site) stipulated by the parties. Rather, DeCoster contests the method by which the matters came before the court. This case involves “referrals” by the Environmental Protection Commission (hereinafter “EPC” or “commission”) to the attorney general pursuant to Iowa Code section 455B.191(4) (1997). A referral is distinguished from violations handled administratively by the EPC, see Iowa Code § 455B.191(1), or initiated directly by the attorney general, see id. § 455B.112, by the fact that referral actions carry greater consequences. A referral that results in a district court judgment and court-imposed penalty may qualify as a “strike” for purposes of classifying a producer with three strikes as an “habitual violator.” See id. § 455B.191(7). Once classified as an habitual violator, a producer cannot obtain construction permits for five years and is subjected to greater agency supervision and higher penalties for further violations. Id. § 455B.191(4).

DeCoster claims he has been singled out for harsher treatment because of the size of his operation and publicity surrounding it. Unable to successfully contest the violations on their merits, he has challenged (1) the nature of the action before the Environmental Protection Commission, (2) the membership of that commission, (3) the criteria (or lack thereof) underlying the commission’s referral to the attorney general, (4) alleged procedural defects in the commission’s action, and (5) the trial court’s refusal to permit DeCoster’s counsel to examine commission members concerning their referral decision. DeCoster also assails the court’s dismissal of his counterclaim for declaratory relief, and the court’s finding that the statutes at issue hold the violator strictly liable for waste that is discharged into the state’s watercourses.

Finding no merit in any of DeCoster’s contentions, we affirm the judgment of the district court.

I. Background Facts and Proceedings.

In early May 1996, employees of the Department of Natural Resources (DNR) discovered liquid hog waste discharging into a drainage ditch in Wright County. The source of the pollution was an old tile line carrying subsurface leakage from the anaerobic lagoon at the DeCoster facility known as Nursery Unit # 3. Sewage fungus growing downstream from the tile indicated a longstanding problem with leakage. Once notified of the problem, DeCoster employees took prompt action to repair the broken tile.

Following the DNR discovery at Nursery Unit #8, then-Governor Terry Bran-stad declared on a radio talk show that he was going to “shut down” DeCoster Farms. His radio announcement was followed by a press release which stated the governor had directed the DNR to put a hold on new construction permits for De-Coster and to “freeze” any expansion of his facilities. The record reveals that, irrespective of the governor’s declaration, the DNR had been without authority for some time to permit expansion of DeCoster facilities because of a pending enforcement action. See Iowa Code § 455B.173.

In July 1996, the incident at Nursery Unit # 3 was brought before the EPC for possible referral to the attorney general for legal proceedings in accordance with Iowa Code section 455B.191(4). On a four-to-four vote, the commission declined to refer the matter for enforcement. A month later EPC administrator, Allan Stokes, placed the matter back on the commission’s agenda. In the meantime, two members had resigned from the commission. They were replaced by two new gubernatorial appointees who assumed their responsibilities subject to later confirmation by the Iowa Senate. On reconsideration, the commission voted nine-to-zero to refer the Nursery Unit # 3 violation to the attorney general for judicial enforcement action.

In November 1996, a local farmer reported to a Hamilton County sheriffs deputy that a DeCoster employee was over-applying liquid hog manure on frozen farm ground near a DeCoster facility called Sow Unit # 1. Inspection by DNR officials revealed brownish water with a scum and odor indicative of manure flowing into a ditch along the roadside. DeCoster personnel were at the scene, trying to stop the runoff by roughing up the soil to increase absorption but the soil was too frozen. The employees had been aware of the discharge but continued surface application of the manure.

The incident at Sow Unit # 1 came before the EPC in January 1997. Counsel for DeCoster appeared at the meeting, as he had in connection with Nursery Unit # 3, to argue against referral. The commission voted seven-to-two to refer this violation to the attorney general for judicial enforcement.

The State then filed petitions in district court seeking civil penalties for the violations just described. In answer to the petitions, which were eventually consolidated, DeCoster responded with a general denial and counterclaim for declaratory judgment. His counterclaim sought a ruling from the court rejecting any notion that the nature of the violations covered by the lawsuit would give rise to an habitual violator classification within the meaning of Iowa Code section 455B.191(7).

The parties thereafter filed cross-motions for partial summary judgment. The district court rejected DeCoster’s allegation that the two newest EPC members improperly participated in the referral votes and that the commission, in reconsidering the violation at Nursery Unit #3, violated its own parliamentary rules of order. The court granted the State’s motion for partial summary judgment, finding De-Coster strictly liable for discharging hog waste into waters of the state. It also dismissed, as premature and not within the purview of this action, DeCoster’s counterclaim concerning habitual violator status.

The ease proceeded to trial on DeCoster’s procedural challenges to the EPC referrals. He argued the referrals were the product of discrimination and selective enforcement. From judgment for the State on both violations, DeCoster now appeals.

II. Scope of Review.

This case reaches us on appeal from rulings on the parties’ cross-motions for summary judgment, as well as the judgment entered following trial of the remaining issues to the court. The case was tried at law. To the extent the parties’ disagreement centers on the court’s application of the law to undisputed facts, our review is for the correction of legal error. Goodell v. Humboldt County, 575 N.W.2d 486, 491 (Iowa 1998). Fact findings by the district court are binding on appeal if supported by substantial evidence. Iowa R.App. P. 14(f)(1).

III. Issues on Appeal.

A. “Other agency action” or “contested case proceeding. ” DeCoster asserts at the outset that the trial court erred when it characterized the proceeding before the EPC as “other agency action,” thereby rejecting DeCoster’s belated claim of entitlement to a full evidentiary hearing preliminary to referral by the agency to the attorney general for enforcement. The State, mindful that the court rejected DeCoster’s argument on the merits, nevertheless insists the issue was waived, and need not have been addressed by the court, because DeCoster failed to raise it before the EPC. The State’s waiver argument is correct.

Generally, issues must first be presented to the agency in order to be preserved for appellate review. City of Hampton v. Iowa Civil Rights Comm’n, 554 N.W.2d 532, 534 (Iowa 1996); Fisher v. Board of Optometry Exam’rs, 478 N.W.2d 609, 611 (Iowa 1991); Chauffeurs, Teamsters & Helpers, Local Union No. 238 v. Iowa Civil Rights Comm’n, 394 N.W.2d 375, 382 (Iowa 1986). Although counsel for DeCoster appeared before the commission and argued vigorously against referral, nowhere does the record reflect an attempt to alert that body to the claim to contested case proceedings now being argued.

We have no reason to disagree with the district court’s thoughtful analysis concerning the nature of the proceedings before the EPC. It correctly concluded that mere referral by the EPC to the attorney general did not involve an adjudication of the facts in controversy, the hallmark of a contested case proceeding. See Allegre v. Iowa State Bd. of Regents, 349 N.W.2d 112, 114 (Iowa 1984). The complaint De-Coster now asserts was simply never raised before the commission and is, accordingly, waived. Our decision on this point applies with equal force to DeCoster’s related claims concerning the commission’s failure .to file findings of fact or conclusions of law, and that its failure resulted in an unreasonable, arbitrary and capricious decision.

B. Referral criteria. The statutory scheme governing enforcement of environmental law violations authorizes the EPC to handle violations administratively (after contested case proceedings) or refer the matter to the attorney general for legal proceedings. Compare Iowa Code § 455B. 175(1), with Iowa Code § 455B.175(4). Administrative regulations furnish express criteria to consider when imposing administrative penalties. See Iowa Admin. Code r. 567-10.2 (1992) (hereinafter “chapter 10”). DeCoster contends, however, that the evidence reveals the commission has no established criteria by which to gauge the need for referral to the attorney general. He challenges as unsupported by the record the district court’s finding that the chapter 10 regulations are “ordinarily used as the measuring stick for referrals.”

The record reveals testimony by EPC administrator, Allan Stokes, that his legal staff briefs the EPC on proposed referrals. That briefing includes discussion of the basic criteria underlying chapter 10— economic incentive to pollute, gravity of the violation, and culpability. Iowa Admin. Code r. 567-10.2(1)-(3); see also Iowa Code § 455B.109 (authorizing commission to establish schedule of penalties based on same relevant factors). The commission has before it the “litigation report” containing evidence supporting referral. Contrary to the claim made by DeCoster, commission chairperson Ro-zanne King testified at trial that the chapter 10 criteria are used by the commission in its deliberations on referral matters. And, as the district court noted in its ruling, DeCoster’s own attorney used the chapter 10 regulations in support of his argument against referral. In short, ample evidence supported the district court’s finding on this point. No ground for reversal appears.

C. Commission members as witnesses. DeCoster’s attack on the EPC’s decision to refer the pollution incidents to the attorney general included its attempt to call as witnesses six of the nine EPC commissioners. The district court permitted limited examination of Rozanne King, chairperson, concerning the criteria used by the commission to make referral decisions. Over DeCoster’s objection, the court prohibited counsel from inquiring into the reasoning behind the commission’s vote, and also prevented DeCoster from calling the other commissioners as witnesses. On appeal, DeCoster asserts these limitations have deprived him of “access to the truth without the safeguard of judicial review.”

We are convinced the court plainly acted within its broad discretion to limit the examination of the commissioners concerning their mental processes in reaching their referral decisions. The type of examination sought here by DeCoster was rejected over half a century ago by the United States Supreme Court in United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1941). There, in an action challenging an order issued by the United States Secretary of Agriculture, the Court likened the agency head to a judge and held he should never have been subjected to examination at trial concerning the process by which he reached the conclusions in his order. Morgan, 313 U.S. at 422, 61 S.Ct. at 1004-05, 85 L.Ed. at 1435-36. Following Morgan, state courts have consistently refused to permit agency decision makers to be examined about their decision-making processes. See, e.g., Board of Equalization v. Russell, 941 P.2d 257, 264-65 (Colo. 1997) (improper to call member of county board of equalization as witness before state board of assessment appeals to explain how lower tribunal reached its decision); Medical Licensing Bd. v. Provisor, 669 N.E.2d 406, 408-09 (Ind. 1996) (physician disciplined by licensing board not entitled on judicial review to discovery by written interrogatories and request for admissions directed to the licensing board); Pedernales Elec. Coop., Inc. v. Public Util. Comm’n, 809 S.W.2d 332, 342 (Tex. Ct. App. 1991) (thought processes and motivations of agency members irrelevant to judicial review of agency order absent evidence of corruption).

“When pertinent inquiry is allowed, it is “limited to information concerning the procedural steps that may be required by law and does not extend to inquiries into the mental processes of an administrator which, as being part of the judgmental process, are not discoverable.” People for Environmental Enlightenment & Responsibility (PEER), Inc. v. Minnesota Environmental Quality Council, 266 N.W.2d 858, 873 (Minn. 1978). The district court carefully applied these principles here. Although DeCoster continues to claim the governor’s public statements call the commissioners’ motives into question, the record is devoid of any proof — or even a hint — of political influence affecting the deliberations at issue here. No abuse of trial court discretion has been shown.

D. Declaratory relief. Prior to trial the district court dismissed DeCoster’s counterclaim for a declaratory ruling that these pollution violations should not be considered “strikes” for purposes of establishing habitual violator status under Iowa Code section 455B.191(7)(a)-(e). De-Coster claims the court’s dismissal was erroneous and compels reversal. The gist of DeCoster’s claim is that the trial court, not the DNR, is in a better position to impartially apply the habitual violator statute.

The district court correctly determined that the doctrine of primary jurisdiction bars DeCoster’s claim for declaratory judgment. Under this rule of administrative law,

courts will not determine a controversy involving a question which is within the jurisdiction of an administrative tribunal or agency prior to the solution of that question by the administrative tribunal (1) where the question demands the exercise of administrative discretion requiring the special knowledge, experience and services of the administrative tribunal, (2) to determine technical and intricate matters of fact, and (3) where a uniformity of ruling is essential to comply with the purposes of the regulatory statute administered.

Northwestern Bell Tel. Co. v. Hawkeye State Tel. Co., 165 N.W.2d 771, 776 (Iowa 1969); accord City of Waukee v. City Dev. Bd., 514 N.W.2d 83, 90 (Iowa 1994) (doctrine of primary jurisdiction compelled court to refrain from resolving annexation questions legislatively placed with development board).

Iowa Code section 455B.173(13) expressly vests the DNR with the duty to classify individuals as habitual violators based on statutorily prescribed criteria. Notice to the alleged violator is a prerequisite to imposition of enhanced penalties, see Iowa Code § 455B.191(7), and the alleged violations must relate to one of the statutory violations described in section 455B.191(7)(a)-(e). Until this litigation is concluded, those determinations — vested in the first instance in the DNR — cannot be made. It was wisely determined by the district court to be beyond its prerogative to do so. No error appears.

The State readily concedes that deferring to the DNR on this point does not leave DeCoster without a judicial remedy. If the DNR determines that DeCoster is an habitual violator, that agency action will be subject to judicial review in accordance with Iowa Code section 17A.19.

E. Unconfirmed appointees. DeCoster argued before the trial court, and now urges on appeal, that the newly appointed — but unconfirmed — members of the EPC were not authorized to participate and vote in the referral hearings. The district court rejected this argument and, we think, rightly so. To decide otherwise would potentially bring government to a standstill.

Iowa Code section 455A.6(1) provides that the EPC shall consist of nine members, appointed by the governor “subject to senate confirmation.” By statute, vacancies are filled in the same manner as original appointments. Iowa Code § 455A.6(2). DeCoster correctly notes that section 455A.6 is silent with respect to the appointment procedure and whether interim appointees may serve pending senate confirmation. Those procedures and that authority, however, are furnished by Iowa Code section 2.32.

Iowa Code section 2.32(l)(b) expressly authorizes the governor to make appointments to positions which require senate confirmation in order to fill vacancies occurring prior to the convening of the general assembly. That is precisely what happened here. The governor appointed Rita Venner and Dean McWilliams ■ in August 1996, several months before the legislature convened in January 1997.

As for the authority of these interim appointees to deliberate and vote with the commission, Iowa Code section 2.32(3) pertinently provides:

Sixty days after a person’s appointment has been disapproved by the senate, that person shall not serve in that position as an interim appointment or by holding over in office and the governor shall submit another appointment or file a notice of deferred appointment before the sixty-day period expires.

(Emphasis added.) Under this provision, even “disapproved” appointees may serve up to sixty days. It necessarily follows that the legislature contemplated service by interim appointees prior to senate confirmation, as in the case before us.

DeCoster argues strenuously that such a statutory scheme gives the governor “unfettered power to stack and/or control” an agency, without protection for Iowa’s citizens from “abuse or potential abuse” pending senate confirmation. It appears Iowa’s legislative leaders thought otherwise. The evident purpose of section 2.32 is to ensure that appointees are able to expeditiously assume office, and continue the agency’s work, despite the fact that the legislature is not in session. This is the general rule applied in other jurisdictions. See, e.g., Bank of Washington v. McAuliffe, 676 S.W.2d 483, 486-87 (Mo.1984) (noting importance of governor’s power to fill vacancies to protect government operations while preserving senate’s duty to supervise appointments); 81A C.J.S. States § 84 (1977). DeCoster cites no authority to the contrary. We hold the interim appointees to the commission were authorized to take action on the violations at issue. The district court was correct in so ruling.

F. Compliance with agency rules of order. In the district court, and now on appeal, DeCoster makes much of the fact that the EPC vote to reconsider the violation at Nursery Unit # 3 was initiated upon the motion of a member not on the prevailing side during its earlier vote. The earlier vote on referral had resulted in a tie, thus defeating the motion. The commission’s subsequent action on the referral vote was contrary to the rules of parliamentary procedure it had previously adopted.

DeCoster claims the commission’s procedural error dooms the referral, and the court erred in not ordering dismissal of the State’s case. The State concedes error but, like the district court, emphasizes the harmlessness of the parliamentary misstep. The renewed vote was unanimous in favor of referral to the attorney general.

In nearly identical circumstances involving a parliamentary challenge to a city council’s action, this court stated:

Because parliamentary rules are adopted by a council to govern its internal procedures, the procedures may be waived by the council: “The important inquiry always is whether the number required by law have agreed to a particular measure. If this has been done in a way not inconsistent with statutory provisions, it is quite immaterial whether parliamentary procedure has been followed.”

Smith v. City of Dubuque, 376 N.W.2d 602, 605 (Iowa 1985) (quoting Mann v. City of LeMars, 109 Iowa 251, 254, 80 N.W. 327, 328 (1899)). The same reasoning applies here. DeCoster acquired no vested right in the EPC’s failure to go forward with referral during its earlier deliberations. See id. The district court committed no error in rejecting DeCoster’s contention.

G. Strict liability. For its final assignment of error, DeCoster contends the district court erred when it ruled as a matter of law that Iowa Code section 455B.191 imposes a strict liability standard upon livestock producers who discharge waste into the state’s watercourses. De-Coster claims the language of the statute calls for no more than a negligence standard. Such negligence is established, De-Coster concedes, with respect to the knowing over-spray of liquid manure on frozen ground near Sow Unit # 1. But he claims the undiscovered deep drainage discharge from the broken tile at Nursery Unit # 3 cannot be attributed to “active human conduct” on the part of DeCoster employees.

Iowa Code section 455B. 191(1) states: Any person who violates any provision of part 1 of division III of this chapter or any permit, rule, standard, or order issued under part 1 of division III of this chapter shall be subject to a civil penalty not to exceed five thousand dollars for each day of such violation.

We recently held section 455B.191(1) is not grounded on fault but calls for strict liability. State ex rel. Miller v. DeCoster, 596 N.W.2d 898, 902 (Iowa 1999). This civil penalty provision stands in marked contrast to subparagraph (2) of the same section which authorizes criminal prosecution and penalties only for those persons who “negligently or knowingly” pollute in violation of the law. Iowa Code § 455B.191(2). Thus we held in DeCoster that, read plainly, “the statute is violated when, as here, the operator places the pollutant so that its introduction into the state’s water results.” DeCoster, 596 N.W.2d at 902. We rejected DeCoster’s contention that only “direct introduction” of pollution qualified for strict accountability. Id. To do otherwise, we reasoned, would contravene the general rule that environmental statutes must be given a liberal, rather than narrow, interpretation in order to advance their' public safety purposes. Id.

The record contains substantial evidence to support the trial court’s finding that DeCoster constructed a hog waste lagoon over a tile line at Nursery Unit # 3, and a break in that tile permitted leakage of highly toxic waste into a drainage ditch that flows to the Iowa River. As noted by the district court, the State need not prove the pollutant made its way to the river because “water of this state” by definition includes such tiles and ditches. Iowa Code § 455B.171(32); see also id. § 455B.201 (prohibiting confinement feeding operation from discharging manure into tile lines that discharge directly into waters of the state).

In short, the court made no mistake when it held DeCoster strictly liable for the discharge at Nursery Unit # 3, as well as the discharge at Sow Unit # 1. We therefore affirm in all respects the district court’s judgment in favor of the State,

AFFIRMED.

      . The petitions also sought injunctive relief and alleged a further violation at Finishing Unit # 1 involving inadequate freeboard in an earthen waste storage basin. The State later dismissed its request for injunction and the freeboard violation is not before us on appeal.

      . The record reveals these appointees were confirmed by the senate in March 1997.