author: LAVORATO, Chief Justice.

text:
    HORIZON HOMES OF DAVENPORT, Appellee, v. Sylvia NUNN, Appellant.
    No. 02-1420.
    Supreme Court of Iowa.
    July 21, 2004.

      Tommy Miller of H.E.L.P. Legal Assistance, Davenport, for appellant.
    Steven J. Havercamp of Stanley, Lande & Hunter, Davenport, for appellee.
   LAVORATO, Chief Justice.

In this discretionary review from a forcible entry and detainer action, we must decide whether good cause is necessary for the nonrenewal of a lease for an apartment in a federally subsidized housing project. In a small claims ruling, the magistrate concluded such good cause was necessary. On appeal to the district court, the district associate judge ruled otherwise. We disagree with the latter ruling, and for that reason reverse.

I. Background Facts and Proceedings.

The federal government has established various types of programs that provide through various mechanisms subsidized rental units for low income families. See U.S. Dep’t of Hous. & Urban Dev., Programs of HUD (2003) (outlining programs). The statutory basis for the federal low-income housing program in this case is split between Section 8 of the United States Housing Act of 1937, amended by 42 U.S.C.A. § 1437f (West 2001) [hereinafter Section 8] and Section 236 of the National Housing Act, amended by 12 U.S.C.A. § 1715z-l [hereinafter Section 1715Z-1],

As described by one court, Section 8 is designed to provide safe and sanitary low-income housing to qualified recipients. The general philosophy of Section 8 is that appropriate housing can best be supplied through a combination of federal, local, and private efforts. The Secretary of Housing and Urban Development (“HUD”) is the federal officer primarily responsible for implementing Section 8.
Section 8 operates in part through the existing housing assistance payments (“HAP”) program. The HAP program is a rent subsidy program. It employs a system of contracts involving HUD, local public housing authorities (“PHA’s”), private landlords and qualified tenants.

Gallman v. Pierce, 639 F.Supp. 472, 473 (N.D.Cal.1986) (citations omitted).

There are two types of assistance for renters under the federal housing programs: project-based assistance and tenant-based assistance. Project-based assistance is tied to a particular housing project. Truesdell v. Philadelphia Hous. Auth., 290 F.3d 159, 161 n. 2 (3d Cir.2002). Under project-based assistance, the Department of Housing and Urban Development (HUD) makes housing assistance payments to owners to make up the difference between what the tenant pays in rent and the total amount of rent for the housing unit. Participants in the program make rental payments based on their income and ability to pay. Id. at 161.

In contrast, under tenant-based assistance, HUD pays the participants vouchers entitling the participant to select a unit anywhere in the public housing authority’s (PHA) jurisdiction. Id. at 161 n. 2.

Like Section 8, “Section 236 of the National Housing Act, as amended, (12 U.S.C.A. § 1715z-l) is a statutory scheme seeking to achieve improved housing at reduced rentals for low and middle income families.” Green v. Copperstone Ltd. P’ship, 28 Md.App. 498, 346 A.2d 686, 690 (1975). Under Section 236, private owners of multi-family apartment complexes receive subsidies from HUD in the form of reduced interest on the mortgages covering the apartment complexes or housing payments for tenant-based assistance or project-based assistance. See 12 U.S.C.A. § 1715z-1 et seq.; 24 C.F.R. § 247.2 (2001) (defining a subsidized project as one receiving the benefit of subsidy in the form of below-market interest rates, interest reduction payments, or below market interest rate direct loans).

Sylvia Nunn entered into a lease agreement with Horizon Homes of Davenport (Horizon) in November 1997. According to the lease, Nunn was a qualified Section 8 recipient and received project-based assistance from HUD in the form of a reduced rent obligation to Horizon. As to this reduced rent obligation, the lease stated: “This lower rent is available either because the mortgage on this project is subsidized by the Department of Housing and Urban Development (HUD) and/or because HUD makes monthly payments to the Landlord on behalf of the Tenant.” Accordingly, Horizon is bound by the provisions of Section 1715z-l and the regulations implementing this statute. See 12 U.S.C.A. § 1715z-l; 24 C.F.R. § 247.2.

Paragraph two of the lease provided:

The initial term of this Agreement shall begin on 11/03/97 and end on 10/31/98. After the initial term ends, the Agreement will continue for successive terms of one month each unless automatically terminated as permitted by paragraph 23 of this Agreement.

(Handwritten in original.)

Paragraph 23 of the lease as it pertained to the tenant and landlord provided in relevant part:

23. Termination of Tenancy:
a. To terminate this Agreement, the Tenant must give the Landlord 30-days written notice before moving from the unit....
b. Any termination of this Agreement by the Landlord must be carried out in accordance with HUD regulations, State and local law, and the terms of this Agreement. The Landlord may terminate this Agreement only for:
(1) the Tenant’s material noncompliance with the terms of this Agreement;
(2) the Tenant’s material failure to carry out obligations under any State Landlord and Tenant Act; or
(3) criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity on or near such premises, engaged in by a tenant, any member of the tenant’s household, or any guest or other person under the tenant’s control; or
(4) expiration of the section 8 Housing Assistance Payments Contract between the Owner and HUD; or
(5) other good cause, which includes, but is not limited to, the Tenant’s refusal to accept the Landlord’s proposed change to this Agreement. Terminations for “other good cause” may only be effective as of the end of any initial or successive term.

Nunn satisfied the initial term of the lease and was living on the premises on a month-to-month basis.

On October 9, 2001, Horizon notified Nunn in writing that it would not renew her month-to-month lease as of midnight on November 30, 2001. Horizon gave no reason for its refusal to renew Nunn’s lease. Nunn did not vacate the premises, prompting Horizon to file a small claims action for forcible entry and detainer.

Following a hearing before Magistrate Cynthia Z. Taylor on January 8, 2002, the magistrate denied the action. Among the reasons for denying the action, the magistrate noted that the HUD handbook on termination provides that “Owners must not refuse to renew a lease solely because a lease term has expired.” The magistrate also noted that HUD regulations for public housing, Section 8 project-based programs specifically prohibit eviction based solely on the expiration of a lease.

Horizon appealed the ruling. Following a hearing, District Associate Judge Mary E. Howe reversed the magistrate’s ruling. The judge concluded that under Iowa law “a nonrenewal of the lease is allowed” and “[o]nce the initial lease term has expired [Horizon] can give the 30-day notice to [Nunn].” The judge also concluded that Nunn’s position that “the lease cannot be nonrenewed when it goes to a month-by-month situation would be contrary to Iowa law” and there is “no federal law or federal statute that does not allow the nonrenewal of the lease once it is on a month-to-month basis.”

We granted Nunn’s application for discretionary review.

II.Issues.

Nunn raises the following issues:

(1)The federal statute implemented by federal regulations and the HUD handbook mandate that a month-to-month project-based lease can be terminated by the owner only for “good cause.”
(2) Nunn’s month-to-month project-based lease provides that the lease can be ended by the landlord only by a showing of “good cause.”
(3) There is no Iowa law that prohibits a “good cause” requirement to terminate a lease.

In response, Horizon cites three arguments to support the district associate court’s ruling. First, Nunn’s interpretation runs contrary to other states’ interpretation of the federal regulations. Second, the regulations clearly apply only to tenant evictions, not to natural expirations of leases. Last, Nunn’s interpretation of the regulations would create a perpetual lease which Iowa cases strongly disfavor.

III. Scope of Review.

Because Iowa Code section 648.5 (2001) provides that forcible entry and de-tainer actions are to be tried as equitable actions, our scope of review is de novo. Iowa R.App. P. 6.4. The interpretation of statutes is reviewed for errors at law. State v. McCoy, 618 N.W.2d 324, 325 (Iowa 2000).

IV. Analysis.

A. Background. According to one writer, “[w]hen local public housing authorities (“PHAs”) were created in response to the United States Housing Act of 1937 (to provide local administration for public housing programs), they were subject only to state landlord-tenant laws.” Marc Jolin, Good Cause Eviction and the Low Income Housing Tax Credit, 67 U. Chi. L.Rev. 521, 530 (2000) (footnotes omitted) [hereinafter Jolin]. As a result, PHAs “enjoyed almost unchecked power to evict tenants.” Id This unchecked power ended with the Supreme Court’s ruling in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), when the Court held “that terminating a recipient’s welfare benefits without providing the recipient with a pre-termination eligibility hearing constituted a violation of that person’s due process rights.” Id. at 531.

Shortly after Goldberg, federal circuit courts extended the Goldberg reasoning to the public housing context, holding that the government could not deprive a tenant of such housing of a continued tenancy without affording the tenant adequate procedural safeguards. Id. (citing Escalera v. New York Hous. Auth., 425 F.2d 853, 861 (2d Cir.1970)). The Fourth Circuit in Joy v. Daniels, 479 F.2d 1236, 1240-42 (4th Cir.1973) took the final step, holding that for procedural protections to have any meaning, the landlord had to show good cause to justify the termination of a tenancy, irrespective of the terms of the lease and even though the initial term of the lease had expired. Other courts followed suit. See, e.g., Gallman, 639 F.Supp. at 482; Green, 346 A.2d at 697 (involving project-based tenant under § 1715z-1); Greenwich Gardens Assocs. v. Pitt, 126 Misc.2d 947, 484 N.Y.S.2d 439, 442 (Dist.Ct.1984). These judicial decisions resulted in the good cause eviction protection being incorporated into federal regulations of all the major federal housing programs. John, at 531-32.

B. The federal statute, regulations, and HUD handbook. Section 1715z-lb(b)(3) mandates a “good cause” for termination of project-based leases, the type of lease agreement Nunn and Horizon executed:

(b) Rights of tenants
The Secretary shall ensure that—
(3) leases approved by the Secretary provide that tenants may not be evicted without good cause or without adequate notice of the reasons therefore....

12 U.S.C.A. § 1715z-lb(b)(3) (emphasis added).

The federal regulation implementing this statutory provision provides:

(a) General. The landlord may not terminate any tenancy in a subsidized project except upon the following grounds:
(1) Material noncompliance with the rental agreement,
(2) Material failure to carry out obligations under any state landlord and tenant act,
(3) Any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents ....
(4) Other good cause.
No termination by a landlord under paragraph (a)(1) or (2) of this section shall be valid to the extent it is based upon a rental agreement or a provision of state law permitting termination of a tenancy without good cause. No termination shall be valid unless it is in accordance with the provisions of § 247.4.

24 C.F.R. § 247.3(a). The conduct of a tenant cannot qualify as “other good cause” unless the landlord has given the tenant notice that such conduct shall constitute a basis for termination of occupancy. Id. § 247.3(b).

As to eviction, federal regulations provide that “[t]he landlord shall not evict any tenant except by judicial action pursuant to State or local law and in accordance with the requirements of this subpart.” Id. § 247.6(a). 24 C.F.R. § 247.2 (Definitions) defines eviction as

the dispossession of the tenant from the leased unit as a result of the termination of the tenancy, including a termination prior to the end of a term or at the end of a term.

24 C.F.R. § 247.2.

The statute and regulations cited plainly require good cause for the termination of not only the initial term but also the month-to-month tenancy. We reach that conclusion for reasons that follow.

The statute says the leases must have provisions that ensure a tenant may not be evicted without good cause or without notice of adequate reasons pertaining to such good cause. Eviction is a legal remedy sought by the landlord as a result of the termination of the tenancy. Under Iowa law, a periodic tenancy is one that endures for a certain period and will continue for subsequent like periods unless terminated by one of the parties at the end of the period. Such a tenancy includes a month-to-month tenancy. Sunset Mobile Home Park v. Parsons, 324 N.W.2d 452, 455 (Iowa 1982). That is exactly what we have in this lease. Because the lease provided for a month-to-month tenancy, 24 C.F.R. § 247.3, which prohibits termination of a tenancy except for good cause, prevented Horizon from terminating this lease simply because the initial term had lapsed. Horizon had to show good cause and specify those grounds constituting good cause in its notice of termination. It failed to do either. See Goler Metro. Apartments, Inc. v. Williams, 43 N.C.App. 648, 260 S.E.2d 146, 150 (1979) (reaching the same conclusion using the same reasoning).

Moreover, the HUD handbook states in its section on termination of tenancy, “An owner must not refuse to renew a lease solely because a lease term has expired.” HUD Occupancy Handbook, Directive No. 4350.3, 8-12(C). The handbook also states, “Termination of tenancy is the first step in the eviction process and is often used interchangeably with the term eviction.” Id. at 8-1 (B). The handbook defines “Termination of Tenancy” as follows:

Termination of tenancy occurs when a tenant violates specific provisions of the lease agreement, and the owner notifies the tenant that he/she no longer has the right to occupy the unit as a result of lease violations. The HUD model leases have very specific conditions under which tenancy may be terminated and procedures that must be followed during the termination process.

Id. at Glossary.

Although some federal courts have held that HUD handbooks do not have the force of law, see, e.g. Beck Park Apartments v. U.S. Dep’t of Hous. & Urban Dev., 695 F.2d 366, 371 (9th Cir.1982), the Eighth Circuit has adopted the following approach:

This handbook, although not adopted by administrative rule subject to notice and comment, is entitled to notice as the agency’s interpretation of its own regulations and should be accepted by us unless there is a showing that the handbook is unreasonable or inconsistent with statutory authority.

United States v. City of St. Paul, 258 F.3d 750, 753 (8th Cir.2001). We think the Eighth Circuit’s approach is a reasonable one and we adopt it.

In our opinion, Horizon has not shown that the HUD handbook as cited and quoted above is unreasonable or inconsistent with statutory authority.

Finally, the lease agreement here provided that the lease could only be terminated in accordance with paragraph 23 of the lease which mirrors the good cause grounds in 24 C.F.R. § 247.3(a). Under the lease agreement, the original term was for one year, after which the lease would be for successive terms of one month until terminated by the tenant with thirty days notice, or by the landlord for “good cause” in accordance with paragraph 23. In addition, subparagraph 5 of paragraph 23 states that “[tjermination for ‘other good cause’ may only be effective as of the end of any initial or successive term.” (Emphasis added.) By the plain language of the lease, the landlord could not terminate Nunn’s month-to-month tenancy except for good cause as defined in the lease.

The same HUD-mandated paragraph 23 as found in Nunn’s lease was at issue in 911 Glen Oak Apartments v. Wallace, 88 S.W.3d 281 (Tex.App.2002). Interpreting the same federal statute — 12 U.S.C.A. § 1715z-lb(b)(3) — and regulations at issue here, the court concluded for two reasons that the landlord could not terminate the lease except for good cause as stated in the lease. First, the lease by its terms prevented such termination. And second, “when deciding whether a landlord may terminate a lease involving federally subsidized housing as in this case, landlords may not refuse to renew a lease solely because the term has expired.” 911 Glen Oak Apartments, 88 S.W.3d at 285.

For all of these reasons, we conclude Horizon could not terminate Nunn’s month-to-month tenancy for the simple reason that the lease had expired. To terminate such tenancy, Horizon was obligated to show good cause as defined in paragraph 23. The district court erred in concluding otherwise.

In reaching our decision we reject Horizon’s and the district court’s reliance on two state court decisions interpreting federal regulations contrary to the conclusion we reach. Unlike Horizon and the district court, we do not deem those decisions persuasive because the reasoning in both cases is faulty. The rationale in both cases was that a landlord seeking repossession at the expiration of a term of the fixed lease does not terminate the tenancy, but merely seeks possession pursuant to the termination that has otherwise taken place. See Anoka County Cmty. Action Program v. Allen, No. C5-00-1147, 2001 WL 184910 (Minn.Ct.App. Feb.27, 2001); Houle v. Quenneville, 173 Vt. 80, 787 A.2d 1258 (2001). This reasoning is contra to our own interpretation of the lease’s month-to-month tenancy in relation to the statute and regulations we have discussed. It is also contra to the case authority and the HUD handbook, which we have also discussed.

1 That leaves for our consideration Horizon’s final argument for upholding the district court’s decision.

C. Perpetual lease. As mentioned, the district court rejected Nunn’s position that her tenancy could not be terminated except for good cause defined in paragraph 23 of the lease. One of the grounds given was that this position is contrary to Iowa law. On appeal, Horizon attempts to flesh out this conclusion by contending Nunn’s position would in effect create a perpetual lease, something that is not favored in Iowa law.

It is true that Iowa law does not favor perpetual leases and that language creating one must be clear, unequivocal, and unmistakable to be enforceable. Petty v. Faith Bible Christian Outreach Ctr., Inc., 584 N.W.2d 303, 306 (Iowa 1998).

The requirement that the parties’ intent be unmistakable protects “property owners from inadvertently leasing away their property forever.” Thus, unless a lease uses language such as “perpetual,” “in perpetuity” or “forever,” courts usually construe the lease as providing for only one renewal.

Howard v. Schildberg Constr. Co., 528 N.W.2d 550, 555 (Iowa 1995) (citations omitted) (footnote omitted).

Nunn’s lease does not contain the “magic” words of perpetual, in perpetuity, or forever. Nevertheless, we reject Horizon’s contention for two reasons. First, Nunn’s lease is not a perpetual lease. As mentioned, the lease provides several grounds for termination, any one of which would be sufficient to terminate the lease. Moreover, a landlord has the ability to modify the lease, including the rent pursuant to 24 C.F.R. § 247.4(d), which provides in relevant part:

Notwithstanding any other provision of this subpart [termination notice], the landlord may with the prior approval of HUD modify the terms and conditions of the rental agreement, effective at the end of the initial term or a successive term, by serving an appropriate notice on the tenant, together with the tender of a revised rental agreement or an addendum revising the existing rental agreement.... The tenant may accept the modified terms and conditions by executing the tendered revised rental agreement or addendum, or may reject the modified terms and conditions by giving the landlord written notice in accordance with the rental agreement that he intends to terminate the tenancy.

Second, we agree with Nunn that the federal housing law preempts Iowa law in enforcement of HUD project leases. Preemption is defined as

“[t]he principle (derived from the Supremacy Clause) that a federal law can supersede or supplant any inconsistent state law or regulation.”

Black’s Law Dictionary 1216 (8th ed.2004).

We have said that “federal law will not preempt state law ‘absent a clear statement of congressional intent to occupy an entire field’ or unless applying state law would conflict with or otherwise frustrate a federal regulatory scheme.” Horak v. Argosy Gaming Co., 648 N.W.2d 137, 146-47 (Iowa 2002) (citation omitted). Given the regulatory scheme that governs the HUD leases in question, we think the Iowa doctrine of perpetual leases would conflict with or otherwise frustrate that scheme. See Forest Park v. Hadley, 336 F.3d 724, 733 (8th Cir.2003) (federal housing law preempted state law that was in conflict with it on the basis of implied preemption).

V. Disposition.

Because we conclude that the landlord here could not terminate the month-to-month tenancy except for good cause shown as explained in the lease, we reverse the district court’s ruling to the contrary.

REVERSED.

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


source: Caselaw Access Project

author: CADY, Justice.

license: Public Domain

text:
    Jen WORTHINGTON, Appellant, v. James KENKEL and Kevin Techau, Appellees.
    No. 03-0176.
    Supreme Court of Iowa.
    July 21, 2004.

      Carlton G. Salmons of Gaudineer, Comi-to & George, L.L.P., West Des Moines, for appellant.
    Thomas J. Miller, Attorney General, and Jeffrey D. Farrell, Assistant Attorney General, for appellees.
   CADY, Justice.

This appeal requires us to examine the role of the district court when presented with a petition for injunctive relief specifically authorized by a statute. Appellant sought an injunction under Iowa Code section 70A.28 (2003) to prevent her discharge from her employment. The district court, exercising its equitable powers, dismissed the petition after determining appellant had an adequate remedy at law under section 80.15. Upon our review, we reverse the district court order and remand the case for further proceedings.

I. Background Facts and Proceedings.

This action was commenced on September 11, 2002, when Jen Worthington (Wor-thington) filed a petition in district court for injunctive relief. The petition alleged Worthington was employed as a fire prevention supervisor in the office of the state fire marshal, a division of the department of public safety. She sought to enjoin Assistant State Fire Marshal James Kenk-el (Kenkel) and State Commissioner of Public Safety Kevin Techau (Techau) from terminating her employment. Worthing-ton was a longtime employee of the office.

Worthington believed she was about to be terminated from her employment after commissioner Techau issued an order temporarily suspending her from her duties with pay. The suspension was based on an allegation that she filed false reports. Worthington claimed records in the office had been altered by other employees to make it appear as if she had filed false fire safety reports with state and federal agencies. She believed the termination was in retaliation for reporting what she believed was a romantic relationship between a supervisor and a subordinate employee.

Kenkel and Techau moved to dismiss the petition. Although they acknowledged that public employees are authorized by statute to seek an injunction to prevent a retaliatory discharge, they claimed injunc-tive relief was not available to Worthington under the allegations of her petition because she had a statutory right to a preter-mination hearing under another statute.

The district court dismissed the petition. It found the traditional equitable principles governing the issuance of injunctions, including the requirement of no adequate remedy at law, applied to injunctions authorized by statute. It held Worthington was not entitled to injunctive relief as a matter of law because the statutory pre-termination hearing provisions provided her an adequate legal remedy.

Worthington appeals. She claims the availability of a pretermination hearing under one statute does not affect her statutory right to seek injunctive relief under another statute. Additionally, she requests that the district court be directed to award her attorney fees incurred in pursuing this appeal.

II. Scope of Review.

A petition for injunctive relief traditionally invokes the court’s equitable jurisdiction, and our review is de novo. E. Oaks Dev., Inc. v. Iowa Dep’t of Transp., 608 N.W.2d 566, 567 (Iowa 1999). However, the issue presented on appeal in this case concerns the legal requirements for the issuance of an injunction, and the issue arose through a ruling on a motion to dismiss. We review a district court ruling on a motion to dismiss for correction of errors at law. Henry v. Shober, 566 N.W.2d 190,191 (Iowa 1997).

III. Injunctive Relief Authorized By Statute.

Our legislature has enacted a statute that forbids retaliation or reprisal against a state employee who discloses information the employee reasonably believes “evidences a violation of law or rule, mismanagement, a gross abuse of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” Iowa Code § 70A.28(2). This provision is part of a comprehensive chapter of the Code dealing with public employees and is known as a whistle-blower statute. See id. §§ 70A.1-.38; see also Hill v. Iowa Dep’t of Employment Servs., 442 N.W.2d 128, 131 (Iowa 1989) (discussing Iowa Code section 70A.29, which also protects whistle-blowing). This whistle-blower statute makes a violation of its prohibitions a criminal offense and also creates a civil remedy. Iowa Code § 70A.28(4), (5). The remedies available in a civil action include reinstatement of the discharged employee or other equitable relief, as well as attorney fees and costs. Id. § 70A.28(5)(a). Additionally, an injunction may be granted by the district court to prohibit a person from violating the prohibitions. Id. § 70A.28(5)(&) (“When a person commits, is committing, or proposes to commit an act in violation of [section 70A.28(2)], an injunction may be granted through an action in district court to prohibit the person from continuing such acts. The action for injunctive relief may be brought by an aggrieved employee or the attorney general.”).

Worthington relies upon these provisions to support her petition for injunctive relief to prevent her termination. The appellees argue that injunctive relief under the whistle-blower statute is not available to most public employees who are members of the department of public safety because our legislature has enacted special rules governing the discipline and dismissal of these public employees. In relevant part, section 80.15 provides:

After ... twelve months’ service, a member of the department, who was appointed after having passed the [statutorily mandated physical and mental] examinations, is not subject to dismissal, suspension, disciplinary demotion, or other disciplinary action resulting in the loss of pay unless charges have been filed with the department of inspections and appeals and a hearing held by the employment appeal board created by section 10A.601, if requested by the member, at which the member has an opportunity to present a defense to the charges. The decision of the appeal board is final, subject to the right of judicial review in accordance with the terms of the Iowa administrative procedure [a]ct.

The appellees argue that the special provisions governing discipline and dismissal under section 80.15 provide Worthington with an adequate legal remedy, which makes injunctive relief improper under the traditional principles governing the issuance of injunctions. The appellees point out that the procedure under section 80.15 requires the department to conduct a hearing and provide the member an opportunity to present a defense before imposing dismissal, suspension, discipline, demotion, or other disciplinary action resulting in the loss of pay. Id. The district court found this process provides the same remedy as would be provided by injunctive relief under section 70A.28(5). Consequently, it held Worthington, as a matter of law, had not suffered an injury requiring protection by injunctive relief.

The pragmatic approach taken by the appellees, and adopted by the district court, is supported by the general equitable principles governing the issue of injunctions. In Matlock v. Weets, we discussed the traditional equitable principles for the issuance of injunctive relief:

An injunction “should be granted with caution and only when clearly required to avoid irreparable damage.” A court of equity will not grant injunctive relief “unless it appears there is an invasion or threatened invasion of a right, and that substantial injury will result to the party whose rights are so invaded, or such injury is reasonably to be apprehended.” An injunction is appropriate only when the party seeking it has no adequate remedy at law. Before granting an injunction, the court should carefully weigh the relative hardship which would be suffered by the enjoined party upon awarding injunctive relief.

531 N.W.2d 118, 122 (Iowa 1995) (citations omitted). Moreover, we have specifically held “that an action for an injunction will not lie” when the party seeking injunctive relief “has an adequate remedy at law.” Sergeant Bluff-Luton Sch. Dist. v. City of Sioux City, 562 N.W.2d 154, 156 (Iowa 1997).

More recently, we addressed the role of these equitable standards in the issuance of a temporary injunction under a statute that authorized injunctive relief, but did not specifically authorize the issuance of a preliminary injunction. In Max 100 L.C. v. Iowa Realty Co., 621 N.W.2d 178, 181-83 (Iowa 2001), we held that the equitable principles normally applicable to the issuance of injunctions applied to a request for a temporary injunction in an action based on an antitrust violation under Iowa’s competition statute because the statute only authorized injunctive relief and did not specifically sanction temporary injunctive relief or otherwise express an intent for courts to issue temporary injunctions independent of the traditional equitable principles.

The decision to issue an injunction has historically been a discretionary function of the court based on the traditional principles of equity and the specific circumstances of the case. Kent Prods., Inc. v. Hoegh, 245 Iowa 205, 211, 61 N.W.2d 711, 714 (1953). However, we observed in Max 100 L.C. that these equitable principles might not apply when a statute expressly authorizes injunctive relief. See 621 N.W.2d at 181. We indicated a statute might override the equitable requirements or impose other guidelines for courts to follow in determining whether to issue an injunction. Id. When this is done, a court’s discretion to assess the competing equities before issuing an injunction is circumscribed to the extent that the legislature “has already made such assessments.” United States v. Mass. Water Res. Auth., 256 F.3d 36, 47 (1st Cir.2001). Thus, the requirement for the issuance of a statutory injunction may rest solely on proof of a violation of the statute, and the normal rules of equity requiring a showing of irreparable injury and lack of an adequate remedy at law may not apply.

This approach reveals that the basic function of the district court can be different when deciding to issue an injunction authorized by statute than when presented with claims for injunctions under equitable principles. See United States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 174-75 (9th Cir.1987). Actions for equity-based injunctions were developed over time in response to the need for a pliant remedy for harm suffered in a controversy between individuals not available within the rather rigid and sometimes inadequate common-law scheme of remedies. See 1 John Norton Pomeroy, A Treatise on Equity Jurisprudence § 23, at 30-31 (4th ed.1918). Thus, the equitable principles surfaced to provide a court with the needed ability to fashion a remedy based on “the necessities of the particular case” and the unique competing concerns between the parties. Odessa Union Warehouse Co-op, 833 F.2d at 175. When the legislature has specifically authorized an injunction, however, it may have already decided these matters, and the primary role of the court is to enforce the legislative determination. Id.; see Ackerman v. Tri-City Genatric & Health Care, Inc., 55 Ohio St.2d 51, 378 N.E.2d 145, 149 (1978) (when an injunction is sought under a statute, the petitioner is not required to show irreparable injury and inadequacy of remedy because the legislature has already balanced the equities and proscribed behavior which it “has determined not to be in the public interest” and rightfully enjoined).

On the other hand, legislative intent to displace the traditional equitable requirements for the issuance of injunctions is not automatically expressed because a statute authorizes injunctive relief. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798, 1803, 72 L.Ed.2d 91, 99 (1982) (“[W]e do not lightly assume that Congress has intended to depart from established principles [of equitable jurisdiction].”). There must be some showing that the statute was designed to provide for an injunction based on the violation of some act prohibited by the statute independent of the equitable principles. See Postma v. Jack Brown Buick, Inc., 157 Ill.2d 391, 193 Ill.Dec. 166, 626 N.E.2d 199, 204 (1993) (the rule that equitable principles do not apply to a statute that specifically authorizes injunctive relief is limited to specific situations); State Comm’n on Human Relations v. Talbot County Detention Ctr., 370 Md. 115, 803 A.2d 527, 535-36 (2002) (discussing the approach followed by federal courts to determine whether equitable powers are utilized when a statute authorizes an injunction); Ackerman, 378 N.E.2d at 149 (it is inappropriate to balance equities when a statute authorizes the government to enjoin harmful activity “to prevent harm to the general public”).

In this case, section 70A.28(2) specifically declares that a person shall not discharge a public employee for whistle-blowing. The statute further makes a violation of this prohibition a crime. Iowa Code § 70A.28(4). It also provides for reinstatement and other equitable relief. Id. § 70A.28(5)(a.). More importantly, it permits the attorney general or the aggrieved employee to request injunctive relief in district court to stop any discharge in violation of the prohibition. Id. § 70A.28(5)(6).

It is clear the overall scheme of the statute establishes a public policy against retaliatory discharge of public employees and considers the violation of the policy to be a public harm. Although the statute uses the word “may” when authorizing in-junctive relief, the statute is not designed to weigh the equities and do justice between the parties, but to prevent harm to the public policy. The injunctive relief expresses the importance of the policy by serving to enforce the law and to stop government officials and other persons from violating the law. Additionally, the statute authorizes a government agent to pursue the injunction, along with the aggrieved person. This reveals an umbrella of protection from retaliatory discharge for all state workers and prohibits actions by those who exercise governmental authority from undermining this public policy and from stifling whistle-blowers in the workplace.

We think the design of the statute evidences an intent by our legislature to forgo the equitable requirement that there be no adequate legal remedy. Our legislature has identified conduct it has determined is not in the public interest and should not take place in our government. In making this determination, our legislature has already balanced the equities and deemed an injunction to be an appropriate response to stop the illegal activity. Consequently, it would be improper to require a preliminary showing of no adequate legal remedy. See Va. Beach S.P.C.A., Inc. v. S. Hampton Rds. Veterinary Ass’n, 229 Va. 349, 329 S.E.2d 10, 12-13 (1985) (equitable requirement of no adequate legal remedy is not applicable under statute authorizing injunctive relief to stop an unlawful practice even though an administrative remedy also exists); see also United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 497, 121 S.Ct. 1711, 1721, 149 L.Ed.2d 722, 736 (2001) (“[A] court sitting in equity cannot ‘ignore the judgment of [the legislature] deliberately expressed in [a statute].’ ” (Citation omitted.)). Additionally, the petition filed by Worthington seeks the specific injunctive relief authorized by statute. See Max 100 L.C., 621 N.W.2d at 181-83 (petitioner sought temporary injunction not specified by the statute).

IV. Attorney Fees.

Iowa Code section 70A.28(5)(a) provides that the remedies in a civil action against a person who violates the prohibitions against retaliatory discharge include attorney fees. Worthington asks that we direct the district court to include an award for reasonable attorney fees necessitated by this appeal in any attorney fee award made on remand. She believes it is unclear whether an award of attorney fees by the district court on remand would include appellate attorney fees. We decline to decide this issue at this stage of the proceedings.

Our rules of judicial restraint generally preclude appellate review of issues that depend on matters not yet developed. See State v. Bullock 638 N.W.2d 728, 734-35 (Iowa 2002); see also Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681, 691 (1967) (The ripeness doctrine exists to “prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.”), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 984, 51 L.Ed.2d 192, 199 (1977). An award of attorney fees under section 70A.28(5)(a) rests upon a finding that a person violates the retaliatory discharge provisions. Iowa Code § 70A.28(5)(a) (“A person who violates subsection (2) is liable ... for ... attorney fees.... ”). The district court has not made such a finding and ultimately may not do so on remand. Therefore, a subsequent ruling by the district court on remand could render the issue Worthington now presents for appellate review moot. We conclude the issue of whether an award of attorney fees includes appellate attorney fees under section 70A.28(5)(a) is not ripe for appellate review.

V. Conclusion.

We reverse the decision of the district court to dismiss the petition. We remand the case to the district court for any further proceedings relating to the request for the issuance of injunctive relief or for other relief sought in the petition.

REVERSED AND REMANDED.

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

      . One division of the department of public safety is the division of fire protection. Iowa Code § 80.17(5). The chief officer of the division is known as the state fire marshal. Id. § 100.1. The parties do not dispute that Wor-thington is both a public employee under chapter 70A and a member of the department of public safety protected under section 80.15.

      . During the pendency of this appeal, Wor-thington filed an application with us to stay the disciplinary action taken by the commissioner. The application alleged the commissioner found, following the pretermination hearing under section 80.15, Worthington did create a false public document and discharged her from her employment. Wor-thington filed an administrative appeal from this decision. Although the appellees did not claim the action by the commissioner rendered the appeal moot, we address the issue presented for our review under grounds that it would otherwise evade judicial review. See State v. Hernandez-Lopez, 639 N.W.2d 226, 234 (Iowa 2002).

      . It is unnecessary for us to further determine if the irreparable harm requirement is also inapplicable. The ruling by the district court was limited to the availability of another remedy. However, the principles we apply to the resolution of the issue in this case can be applied in determining the applicability of other equitable principles.


author: STREIT, Justice.

text:
    STATE of Iowa, Appellee, v. William Victor POWELL, Appellant.
    No. 03-0161.
    Supreme Court of Iowa.
    July 21, 2004.
    Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, and Paul L. Martin, County Attorney, for appellee.
   STREIT, Justice.

Concerned about a potentially powerful conflict on the part of his court-appointed trial counsel, William Victor Powell repeatedly requested appointment of another attorney on his behalf. The district court and court of appeals ruled Powell’s alleged conflict was too speculative to require substitution. Because the record before us shows the district court knew of a potential conflict into which it did not sufficiently inquire, we remand for a hearing on Powell’s allegations.

I.Facts and Prior Proceedings

After a break-in at a convenience store in Mason City involving two cases of pilfered pseudoephedrine pills, William Powell was charged with burglary, theft, and possession with intent to manufacture a controlled substance. Susan Flander, a public defender, was appointed to represent him on all three counts.

On September 25, 2002, Powell wrote the district court the following letter:

Dear Clerk of Court,
This letter is in regards to the criminal case enumerated above.
At this time I am requesting the court to substitute my court-appointed counsel for the following reasons:
1. My current counsel, public defender Susan Flander, has withheld material information from me preventing me from making intelligent and informed decisions concerning my defense. I have a right to participate in my own defense. This has created a relationship of mistrust. I can no longer tell when I can believe her or not.
2. She was defense counsel in another criminal case directly related to mine and the possibility exists this person might be called as a witness creating the possibility of a conflict of interest.
3. She was defense counsel on another case with the same circumstances.
4. I am requesting the court appoint someone outside the public defender’s office. Cynthia Toos is currently defense counsel for my brother Mike Powell who also might be a defense witness.
5. I would request that the court appoint David F. Eastman of Clear Lake to represent me on a court-appointed basis.
I thank you for your time and consideration of my request. If I can be of any assistance to the court in the timely and smooth conduct of these legal proceedings it would be my privilege to do so.
Respectfully, I am
William Powell
Cerro Gordo County Jail

Powell reiterated his request for substitution of counsel a week later in an application for court-appointed counsel.

The trial court held a hearing on Powell’s requests at his arraignment on October 14, 2002. At the hearing, Powell explained:

One of the counts that I’m charged with, possession with intent to manufacture, there’s a possibility that one of my defense witnesses, [Ms. Flander] has represented him. In fact ... allegedly some of the material that I was charged with was found in his garage during a drug raid. Well, she defended him on his ease and now she’s defending me on my case and they’re related and there’s a possibility he’ll be a defense witness in my case.... And my brother, she defended my brother. There’s a possibility he’s a defense witness. She defended him in a prior criminal case and he’s being defended by another public defender now....

The district court denied Powell’s request for substitute counsel. The court seized upon the fact Powell had only alleged a possibility of a conflict with witnesses who might be called at trial, not an actual conflict. The court pointed out the case was only two weeks old, and was confident Flander would apply to remove herself from the case if a conflict arose.

When Powell informed the court two charges had been pending for over three months, the court remarked “Well, I don’t know anything about those” and did not investigate further. The court asked Flander if she had a problem under State v. Watson, 620 N.W.2d 233 (Iowa 2000), our recent Sixth Amendment conflict-of-interest case; Flander denied a problem existed. The court then said:

[W]e can have another hearing ... at a later date but for now I’m going to deny your application. If it comes to pass that these people do end up being witnesses or whatnot, then we can take another look at it.

The court entered a written order denying Powell’s request for substitute counsel “at this time” because he had “failed to demonstrate any actual conflict of interest.” The issue, however, was never addressed again.

Powell stipulated to a bench trial on the burglary and theft charges. In exchange, the State agreed to dismiss the possession charge and to recommend concurrent five-year sentences if Powell was convicted. Another judge found Powell guilty of burglary and theft.

At sentencing, the prosecutor initially failed to recommend concurrent terms, and the district court ordered consecutive five-year sentences. When Powell protested, neither the prosecutor nor Flander could find a copy of their agreement. The district court continued with the consecutive sentences. The court said it had “put no weight whatsoever on the State’s recommendation .... ”

Powell appealed. Before the court of appeals, Powell argued the presiding judge (1) failed to adequately inquire into his trial counsel’s alleged conflict of interest and (2) erred in imposing consecutive sentences.

The court of appeals held the district court adequately inquired into Powell’s allegations of a conflict of interest. The court of appeals reasoned the district court’s inquiry was sufficient because it (1) determined that there was, at the time, only a possibility of a conflict and (2) left open the possibility of further inquiry. The court of appeals vacated Powell’s sentences and remanded for resentencing before a different judge, because the prosecutor did not fulfill his obligation under the plea agreement. Cf. State v. Horness, 600 N.W.2d 294, 299 (Iowa 1999).

On further review, Powell contends the court of appeals erred in finding the district court adequately inquired into the alleged conflict of interest on the part of his trial counsel. Based, in part, upon our decision in Watson, Powell requests we remand this case to the district court for a hearing on his claim of a conflict.

Neither party challenges the order for resentencing. We address on the conflict-of-interest matter and let stand the court of appeals’ order for resentencing. See, e.g., In re Marriage of Zabecki, 389 N.W.2d 396, 401 (Iowa 1986) (acknowledging but declining to exercise discretion to consider all issues on appeal, even those not raised in an application for further review); see also Bokhoven v. Klinker, 474 N.W.2d 553, 557 (Iowa 1991) (“[W]e may review any or all of the issues initially raised on appeal ... whether or not they are specifically brought to our attention in the applications for further review.”).

II. Standard of Review

In Pippins v. State, we recently explained our standard of review where a defendant alleges a conflict of interest implicating the right to counsel:

A determination of whether a conflict exists is a mixed question of law and fact. Because this is a claim of a Sixth Amendment violation, our review is de novo. Whether the facts show an actual conflict of interest or a serious potential for conflict is a matter for trial court discretion, and we find an abuse of that discretion only when a party claiming it shows the discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable.

661 N.W.2d 544, 548 (Iowa 2003) (citations and internal quotation omitted). Elsewhere we have stated “[a] ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law.” Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000).

III. The Merits

A. A Potential Conflict of Interest

The question before us is whether the district court abused its discretion when it denied Powell’s request for substitute counsel after he alleged his attorney had a conflict of interest. Our analysis is squarely governed by State v. Watson, 620 N.W.2d 233 (Iowa 2000), our recent conflict-of-interest case. After surveying recent Sixth Amendment right-to-counsel jurisprudence, in Watson we stated:

A trial court has the duty sua sponte to inquire into the propriety of defense counsel’s representation when it knows or reasonably should know that a particular conflict exists. If an actual conflict existed and the trial court knew or should have known of the conflict, yet failed to make inquiry, reversal is required. If the record on appeal shows only the possibility of a conflict, then the case must be remanded for a determination as to whether an actual conflict existed and/or whether the defendant made a valid waiver of his right to independent counsel. If, on remand, an actual conflict is found, prejudice is presumed and reversal is mandated.

620 N.W.2d at 238 (citations and internal quotations omitted); see also Mickens v. Taylor, 535 U.S. 162, 166-76, 122 S.Ct. 1237, 1240-46, 152 L.Ed.2d 291, 300-07 (2002).

What is a “conflict of interest”?

A conflict of interest places a defense attorney in a situation inherently conducive to divided loyalties. The phrase “conflict of interest” denotes a situation in which regard for one duty tends to lead to disregard of another; where the lawyer’s representation of one client is rendered less effective by reason of his representation of another client; or where it becomes a lawyer’s duty on behalf of one client to contend for that which his duty to another client would require him to oppose.

Pippins, 661 N.W.2d at 549 (quoting State v. Turner, 218 Neb. 125, 354 N.W.2d 617, 622 (1984)); see id., 661 N.W.2d at 549 (conflict may involve “divided loyalties” or a “divergence of interests”); Watson, 620 N.W.2d at 239 (“Basically, ‘a conflict exists when an attorney is placed in a situation conducive to divided loyalties.’”) (quoting Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir.1991)). We have thus stated that there is a possibility of a conflict when “the interests of the defendants may diverge at some point so as to place the attorney under inconsistent duties.” Pippins, 661 N.W.2d at 548-49 (emphasis in original, citation omitted). An actual conflict, in turn, results when such interests “do diverge with respect to a material fact or legal issue or to a course of action.” Id. at 549.

Powell’s written and oral requests for substitution of counsel put the district court on notice of the possibility of a conflict. Powell told the court there was “a relationship of mistrust,” attorney Flander “was defense counsel in another criminal case directly related to mine,” and that “this person might be called as a witness.” Powell further explained that the contraband he was charged with pilfering was found in this other defendant’s garage during a drug raid. Because Powell’s allegations raised the possibility of divided loyalties, the court had a duty to inquire into the propriety of Flander’s representation of Powell. See Watson, 620 N.W.2d at 239 (noting “most conflict of interest cases arise in the context of one attorney representing multiple defendants”); see also Pippins, 661 N.W.2d at 548 (“most cases that have discussed conflicts of interest have involved an attorney who has represented a defendant or a prosecution witness in the current prosecution or simultaneous civil litigation”); Watson, 620 N.W.2d at 238 (“A trial court has the duty sua sponte to inquire into the propriety of defense counsel’s representation when it knows or reasonably should know that a particular conflict exists.”).

The record before us partially corroborates Powell’s claims. In the minutes of testimony upon which Powell was convicted, a police officer testified he executed a search warrant in the garage of a man named Travis Ulrich. In Ulrich’s garage, the officer found the remains of a meth lab. The officer specifically noted that only a short time before the search warrant was executed, a very large amount of pseudoephedrine had been stolen from the convenience store Powell was ultimately convicted of burglarizing. He also pointed out the pseudoephedrine packages found in Ulrich’s garage were similar to those stolen in the burglary.

In light of these facts, the district court abused its discretion when it denied Powell’s request for substitute counsel without conducting a further inquiry. Although the court framed the issue in terms of a potential conflict between Flander and a possible future witness, Powell’s claims alerted the judge that Flander’s representation of Powell might be hindered by then-existing divided loyalties. These divided loyalties would, it was alleged, result from her alleged representation of a man found in possession of the very contraband Powell was charged with stealing.

While the precise nature of the relationship, if any, between Flander’s representations of Powell and Ulrich are unclear from the record before us, in our previous discussions of the right to counsel we have long discouraged multiple representation of criminal defendants under circumstances similar to those alleged here. In the context of dual representation of code-fendants, for example, we have stated that “the risks involved ... ordinarily outweigh any imagined advantage in appointing the same lawyer to represent defendants jointly charged.” Jackson v. Auger, 239 N.W.2d 180, 183 (Iowa 1976); cf. Mickens, 535 U.S. at 168, 122 S.Ct. at 1241, 152 L.Ed.2d at 302 (although not always fatal, “joint representation of conflicting interests is inherently suspect”).

It will generally be found when two or more are accused of a serious crime, that their interests are to some extent divergent. Often the question will arise as which was the planner of the crime, which took the leading part, or in many other ways each may desire to attempt to throw the onus upon the other.... [I]t is settled that where there may be adverse interests, each defendant is entitled to separate representation.

State v. Karston, 247 Iowa 32, 37, 72 N.W.2d 463, 466 (1955) (citations omitted). Although conflicts of interest are perhaps more often recognized where defendants are tried jointly, we have pointed out that the same dangers are present where their trials are separate. See State v. Gatewood, 179 N.W.2d 520, 523 (Iowa 1970); cf. Cosgrove v. State, 304 N.W.2d 184, 187 (Iowa 1981) (“[T]he potential conflict of interest inherent in the representation of both a defendant and an adverse party or witness is as substantial as in situations involving dual representation and should ordinarily militate against concurrent representation by counsel.”). In both sorts of cases,

[mjaintaining the independence of professional judgment required of a lawyer precludes the acceptance or continuation of employment that will adversely affect the lawyer’s judgment on behalf of, or loyalty to, a client. This problem arises whenever a lawyer is asked to represent two or more clients who may have differing interests, whether such interests be conflicting, inconsistent, diverse, or otherwise discordant.

Iowa Code of Profl Responsibility EC 5-14 (2002).

Allegations such as Powell’s raise the concern that an attorney’s conflicting obligations will “effectively seal [the lawyer’s] lips on crucial matters and make it difficult to measure the precise harm arising from counsel’s errors.” Mickens, 535 U.S. at 168, 122 S.Ct. at 1241, 152 L.Ed.2d at 302 (citation and internal quotation omitted). Our rules of professional responsibility thus exhort the lawyer to “weigh carefully the possibility that the lawyer’s judgment may be impaired or loyalty divided if the employment is accepted or continued.” Iowa Code of Profl Responsibility EC 5-15 (2002). “The lawyer should resolve all doubts against the propriety of the representation.” Id.

Although the district court asked Flan-der if she had a conflict and received a simple negative response, the court did not ask her to elaborate or otherwise inquire into the specifics of the situation. See United States v. Krebs, 788 F.2d 1166, 1172 (6th Cir.1986) (“[W]hen a trial court becomes aware of a potential conflict of interest, it is obligated to pursue the matter even if counsel does not.”). Moreover, when the court decided substitution was not warranted because the case was only two weeks old and Powell responded that two of the charges had been outstanding for several months, the court stated it “didn’t know anything about those [other files]” and moved on. Simply put, the court did not sufficiently examine the relationship between Powell, Flander, and Ul-rich. The court therefore abused its discretion when it denied Powell’s request for substitution, insofar as it did so without developing the facts upon which such discretion could properly be exercised. See Pippins, 661 N.W.2d at 548 (abuse of discretion where decision rests on untenable grounds); Graber, 616 N.W.2d at 638 (untenable grounds where decision not supported by substantial evidence).

We point out that this is not a case where the record clearly shows that multiple codefendants requested that the same attorney represent them, or consented to appointment of the same attorney after they were advised of a conflict. Rather, from the record before us we simply have a lone defendant inquiring about the propriety of his attorney’s representation. Cf. State v. Tejeda, 677 N.W.2d 744, 747-48 (Iowa 2004). Although we are cognizant of the realities of life in the district court, the right to counsel demands the court promptly deal with the issue of the conflict, and not let it simmer on the back burner. Once the court is made aware of a gestating conflict it is insufficient to merely leave open the possibility of further inquiry without undertaking any follow-up measures. See Watson, 620 N.W.2d at 238 (where court knows or reasonably should know of the possibility of a conflict, a court has a sua sponte duty to inquire). As indicated, there is nothing in the record to suggest the court revisited this matter as the case inexorably progressed towards trial. There was not any other mechanism by which the issue of divided loyalties would be addressed. It is unrealistic to expect more from a defendant untrained in the law. Cf. Tejeda, 677 N.W.2d at 749. Moreover, the right to counsel is not a question left solely up to the attorney — an especially tough call when that same attorney’s loyalties have been questioned. These two concerns motivated the characterization of the duty to inquire in Watson as a sua sponte duty. See Watson, 620 N.W.2d at 238. The court has the heavy burden here to seek sufficient information to make an informed decision as to whether there is a conflict of interest.

In sum, the court did not sufficiently inquire into Powell’s allegations before it denied his request for substitute counsel. Far too many important questions — chief among them the precise nature of Flan-der’s representations — were left unanswered even though the district court was put on notice of a potential conflict early on in the process. It therefore abused its discretion when it denied Powell’s request for substitute counsel without ascertaining the facts necessary to determine whether a conflict was present, even though it knew of the possibility of a conflict.

B. The Remedy

In accordance with our decision in Watson, Powell requests we remand this case for an inquiry into his allegations. Unlike Watson, here it is contended that the record only shows the possibility of a conflict. Cf. Watson, 620 N.W.2d at 241-42 (reversing and remanding for new trial because record on appeal showed an actual conflict of which trial court knew or should have known). We agree the record before us shows the possibility of a conflict, and therefore a remand for an inquiry into Powell’s allegations is appropriate. See id. at 238 (“If the record on appeal shows only the possibility of a conflict, then the case must be remanded for a determination as to whether an actual conflict existed and/or whether the defendant made a valid waiver of his right to independent counsel.”); Wayne R. LaFave et al., Criminal Procedure § 11.4(b), at 79 (2004 Supp.) (“where the defendant alleged cause for replacing counsel, and the trial court failed to hold an inquiry, the proper appellate court response on review following conviction is to remand for a hearing as to whether cause did exist ....”); cf. Tejeda, 677 N.W.2d at 752-53 (preserving issue of pretrial breakdown in communication for postcon-viction relief, because unlike conflicts of interest, breakdowns may be resolved before trial). There was a possibility of a conflict because of the potential witness problem in the future. More importantly,however, since the court did not determine the extent and nature of Flander’s representations, there was potential for divided loyalties in the present. Because the trial court failed to develop an adequate record as to whether an actual conflict existed, the record on appeal is likewise insufficient for our de novo review. We are unable to determine the extent or nature, if any, of Flander’s representation of Ulrich; nor can we ascertain whether such representation, if it occurred, would result in divided loyalties. The precise nature of the representation will, of course, determine the sorts of conflicts of interests implicated. See, e.g., Watson, 620 N.W.2d at 241A2 (actual conflict found where record clearly established defense counsel also represented a key prosecution witness); Karston, 247 Iowa at 37, 72 N.W.2d at 466 (joint representation); cf. United States v. Culp, 934 F.Supp. 394, 397-98 (M.D.Fla.1996) (“intractable conflict of interest” warranting disqualification where defense counsel had previously represented cocon-spirators in related proceedings).

On remand, the record should be developed further in the district court to determine whether there was an actual conflict, and, if so, whether Powell made a valid waiver of his right to independent counsel. See Watson, 620 N.W.2d at 238. If an actual conflict is found, the district court must grant Powell a new trial; if not, his convictions should stand. See id. at 238. We affirm on this condition. Cf. In re Luloff, 512 N.W.2d 267, 275 (Iowa 1994) (affirming on condition and remanding). We do not retain jurisdiction.

IV. Conclusion

Because the record on appeal shows a possibility of a conflict, this case must be remanded for a determination as to whether an actual conflict existed. If an actual conflict is found, Powell must be granted a new trial; if not, his convictions stand. In accordance with the decision of the court of appeals, Powell’s sentences are vacated and he shall be resentenced before a different judge.

DECISION OF COURT OF APPEALS AFFIRMED IN PART, VACATED IN PART; DISTRICT COURT JUDGMENT REVERSED IN PART, AFFIRMED ON CONDITION IN PART; REMANDED WITH INSTRUCTIONS.

Al justices concur except LARSON, J., who takes no part.

      . The possession and burglary charges were filed by trial information on July 11, 2002. See Iowa Code §§ 124.401(4), 713.1, 713.6A (2001). The State filed the theft charge by a second trial information and a motion to consolidate all three charges on October 2, 2002. See id. §§ 714.1(1), 714.2(2). As we shall see, this may explain why the court was unaware of the possession and burglary charges at the hearing on the alleged conflict of interest on October 14, 2002. On October 21, 2002, the district court agreed to consolidate the theft charge with the burglary charge, but not with the possession charge.

      . In his brief to this court, Powell also points to online court records which, he alleges, show Flander represented Ulrich for drug offenses around the same time period. As the State correctly points out, these records are not part of the record before us, and we will not consider them in this appeal. Hughes v. Waters, 204 N.W.2d 599, 600 (Iowa 1973); see Hawkeye-Security Ins. Co. v. Ford Motor Co., 174 N.W.2d 672, 685 (Iowa 1970) ("We do not take judicial notice of records in another case tried in the same court.”). This important aspect of Powell’s allegations remains uncorroborated.

      . We also note that it is, as a matter of judicial economy, far more efficient to resolve potential problems early on in the process, rather than wait until trial or later, after significant resources have already been expended on a particular court-appointed defense attorney.


author: PER CURIAM.

text:
    STATE of Iowa, Appellee, v. Robert Benjamin MATHESON, Appellant.
    No. 02-1743.
    Supreme Court of Iowa.
    July 21, 2004.
    Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, Rosalise Olson, County Attorney, and Edward W. Bjornstad, Assistant County Attorney, for appellee.
   PER CURIAM.

The sole issue in this appeal from a criminal sentencing is exceptionally narrow. Impact statements by victims of an out-of-state crime should not have been admitted into evidence. The State contends the error in admitting them was harmless and thus does not require reversal. We conclude the error was not harmless and therefore reverse and remand. So doing, we vacate a contrary determination by the court of appeals.

The underlying facts are as outrageous and ominous as they are bizarre. Defendant, Robert Benjamin Matheson, worked at a plant in Spirit Lake where he assaulted three women. In each case, Matheson spent several months developing a work-related relationship so none of the three were concerned about his intentions when he planned private meetings with them during times the plant was closed. Each of the three meetings, though, turned into a frightening experience for the women involved. After about an hour, Matheson would suddenly grab the victim, subdue her, and bind her arms and, in the case of one of the women, her legs. After thus restraining them, Matheson took photographs of the women. Needless to say, it was a highly traumatic experience for the victims. Each feared being raped. Although the physical injuries were not extensive — muscle tissue damage, bruising, and red marks — the psychological damage to each was extreme and lasting.

After being charged, Matheson pled guilty to three counts of false imprisonment in violation of Iowa Code section 710.7(9) (2001) and two counts of second-degree burglary in violation of sections 713.1 and 713.5. At the sentencing hearing, the State offered, among other things, three victim-impact statements relating to a similar but separate crime committed by Matheson in Illinois, where that case was prosecuted." The Illinois statements were admitted in the present case over Mathe-son’s objection. Matheson does not challenge evidence of the crime or his conviction in Illinois; his challenge is limited to admission in this case of the impact statements offered by the victims of the Illinois crime.

The objection was well taken. Authority to submit impact statements is authorized under Iowa Code section 915.21 and is wholly statutory. A victim under our statute includes only those who are affected by a crime “committed in this state.” Iowa Code § 915.10(3).

The State contends the error in admitting the evidence was harmless and points to the presumption that a sentencing court does not ordinarily consider an impermissible factor. State v. Sailer, 587 N.W.2d 756, 759 (Iowa 1998). The State argues the harmlessness is apparent from the fact the court did not mention the Illinois impact statement in listing reasons for sentencing selection. It is true, as the State suggests, that an appellate court is less likely to reverse when improper evidence is introduced in bench trials in which the matter is for a judge’s determination rather than for determination by a jury. Jasper v. State, 477 N.W.2d 852, 857 (Iowa 1991) (In a bench trial, a court’s mere knowledge of inadmissible evidence does not predicate error if the court states it will not consider the inadmissible evidence.). This is because legal training helps equip those in the profession to remain unaffected by matters that should not influence the determination.

But we cannot ignore the error here by assuming the sentencing court did not consider it. In the first place, the court did not state the inadmissible evidence would not be a factor in its determination. The evidence challenged here was offered specifically to influence the sentencing selection. The sentencing court here must have overruled defendant’s objections by determining the evidence was admissible, and there is nothing in the record to indicate the court ever changed its mind. So the State is not rescued by our holding in State v. Ashley, 462 N.W.2d 279, 282 (Iowa 1990) (“The fact that the sentencing judge was merely aware of the uncharged offense is not sufficient to overcome the presumption that his determination was properly exercised.... [Tjhere must be an affirmative showing that the trial judge actually relied on the [information].”). Under the facts in the present case, unlike those in Ashley and the cases it cites, the appropriateness of the challenged factor was made an issue when the evidence was offered and challenged at the sentencing hearing.

Neither is the error rescued by our holding in State v. Sumpter, 438 N.W.2d 6, 9 (Iowa 1989) (no prejudice where the court concluded, although the victim-impact statements were hostile and bitter and expressed a strong desire for the ultimate retribution, they told the judge little, if anything, that was not already apparent). The Illinois impact statements told the sentencing judge here a good deal more than would otherwise be known. Sumpter is not on point.

It might not always be fatal when evidence of this kind invades the record. But error is not cured when the sentencing court merely omits the tainted evidence in its list of sentencing considerations. As a minimum the court should make it clear the offending evidence was not a consideration. Such a disclaimer is lacking here.

We reverse and remand the case for resentencing by a judge who has not read the Illinois impact statements.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED; CASE REMANDED WITH INSTRUCTIONS.

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

      . Matheson was sentenced to ten years for both counts of second-degree burglary and one-year sentences for each of the three false imprisonment counts — to be served consecutively.


text:
    CORALVILLE HOTEL ASSOCIATES, L.C., Appellant, v. CITY OF CORALVILLE, Appellee.
    No. 03-2057.
    Supreme Court of Iowa.
    July 21, 2004.

      Steven L. Nelson of Davis, Brown, Koehn, Shors & Roberts, P.C., Des Moines, for appellant.
    Dennis W. Johnson of Dorsey & Whitney, L.L.P., Des Moines, for appellee.
   STREIT, Justice.

Hotel owners object to a city going into the hotel business in competition with private businesses. In Fults v. City of Coralville, 666 N.W.2d 548 (Iowa 2003), we ruled against two property owners who had challenged Coralville’s plan to build a hotel and conference center near Interstate 80. Not long after our decision, a group of hoteliers mounted a second challenge to the project, which they contend will illegally compete with their hotels. Because the plain language of Iowa’s noncom-petition-by-government statute permits a city to enact an ordinance specifically authorizing itself to compete with private enterprise, we affirm the district court’s dismissal of the hoteliers’ lawsuit.

I. Facts and Procedural Background

In January 2002, the City of Coralville passed a resolution that provided for the construction of a hotel and conference center as part of an urban renewal project along Interstate 80. Two locál property owners brought suit to enjoin the project. Last June, we held the project was a permissible exercise of municipal authority. See Fults, 666 N.W.2d at 552-59 (designation complied with Iowa Code chapter 403, and financing did not offend Iowa Const, art. XI, § 3).

The following month, Coralville Hotel Associates, L.C., a local group of hoteliers, brought suit. The hoteliers claimed, in part, that the project violated Iowa Code chapter 23A, insofar as it would put the City in direct competition with private enterprise. The hoteliers pointed out the project will contain a hotel, restaurant, and lounge.

In response, the City claimed the plain language of Iowa Code chapter 23A permits a city to compete with private enterprise if an ordinance specifically authorizes it to do so. See Iowa Code § 23A.2(1) (2003) (municipalities forbidden from competing with private enterprise “unless specifically authorized by statute, rule, ordinance, or regulation”). Shortly after the hoteliers’ lawsuit was filed, the City enacted an ordinance authorizing itself to undertake the project, and, in doing so, compete with private enterprise. The district court agreed with the City and dismissed the case on the City’s motion for summary judgment.

The hoteliers appealed. They claim the district court’s interpretation of chapter 23A permits cities to eviscerate the purpose of the statute, renders the statute internally inconsistent, and conflicts with our prior rulings.

The City asserts the plain language of the statute countenances its position. In the alternative, the City argues the project falls within three statutory exceptions to the noncompetition-by-government act. See Iowa Code §§ 23A.2(10)(a) (exception for “city enterprises”), (¾) (exceptions for activities which are or carry out essential or general corporate purposes of a city), (id) (exception for activities “intended to assist in economic development or tourism”).

II. Standard of Review

A petition seeking injunctive relief for an alleged violation of Iowa’s non-competition-by-government act is tried in equity, and therefore our review is generally de novo. Iowa Code § 23A.4; Iowa R.App. P. 6.4; see, e.g., Net Midwest, Inc. v. State Hygienic Lab., 526 N.W.2d 313, 314 (Iowa 1995). Nonetheless,

we cannot find facts de novo in an appeal from summary judgment. The proper scope of review of a case in equity resulting in summary judgment is for correction of errors of law.

Koenigs v. Mitchell County Bd. of Supervisors, 659 N.W.2d 589, 592 (Iowa 2003) (citations and internal quotation omitted).

Summary judgment is proper only if the record shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981(3); see, e.g., Delaney v. Int'l Union UAW Local No. 94, 675 N.W.2d 832, 834 (Iowa 2004). We view the record in a light most favorable to the nonmoving party and “indulge in every legitimate inference that the evidence will bear in an effort to ascertain the existence of a fact question.” Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa 2000).

III. Merits

Iowa’s noncompetition-by-government act provides as follows:

1. A state agency or political subdivision shall not, unless specifically authorized by statute, rule, ordinance, or regulation:
a. Engage in the manufacturing, processing, sale, offering for sale, rental, leasing, delivery, dispensing, distributing, or advertising of goods or services to the public which are also offered by private enterprise unless such goods or services are for use or consumption exclusively by the state agency or political subdivision.

Iowa Code § 23A.2 (emphasis added). Subsequent portions of the act list various exceptions to this general rule. See, e.g., id. § 23A.2(10). The district court ruled the plain language of the above-italicized proviso permits a municipality to compete with private enterprise if it enacts an ordinance specifically authorizing itself to do so.

We agree. The language of the statute is precise and unambiguous: if a municipality enacts an ordinance specifically authorizing itself to compete with private enterprise, it may then do so. Id. § 23A.2; see 1995 Op. Iowa Att’y Gen. 6-1(L) (“Although section 23A.2(1) does not prohibit a county from competing with private enterprise, it does require the adoption of an ordinance to authorize the competitive activity.” (Citation and internal quotation omitted.)); 1990 Op. Iowa Att’y Gen. 4-5(L) (same); 1989 Op. Iowa Att’y Gen. 2-3 (“sufficient authorization” to satisfy noncompetition-by-government act where state fair’s own rules specifically provided it could run a campground, and thereby compete with private enterprise). Because it is not disputed that the City has passed such an ordinance, summary judgment in its favor was proper; precise and unambiguous language should be given its plain and rational meaning without resort to the rules of statutory construction. State v. Green, 470 N.W.2d 15, 18 (Iowa 1991); Le Mars Mut. Ins. Co. v. Bonnecroy, 304 N.W.2d 422, 424 (Iowa 1981); Palmer v. State Bd. of Assessment & Review, 226 Iowa 92, 95, 283 N.W. 415, 416 (1939); see Haywood v. Seeber, 61 Iowa 574, 576, 16 N.W. 727, 728 (1883). Notwithstanding the plain and unambiguous language of the statute, the hoteliers contend the legislature clearly intended to prohibit competition with private enterprise unless it falls within a specifically enumerated exception. See, e.g., Iowa Code § 23A.2(10) (listing various exceptions to the general rule against competition without specific authorization). The hoteliers claim these exceptions are rendered meaningless if a city can simply pass an ordinance “authorizing” itself to compete with private enterprise.

It is true that resort to statutory construction may be had “when absurd consequences or some fatal evil must result from following the plain and unambiguous language of a statute.... ” Hahn v. Clayton County, 218 Iowa 543, 551, 255 N.W. 695, 699 (1934). Such is not the case here, however. The above-italicized proviso does not render the exceptions meaningless; if a municipal activity is excepted from the statute, the municipality need not seek specific authorization. Although it may not be terribly difficult for a city to pass such an ordinance (especially when it has already approved the concomitant project), specific authorization — even if self-authorization — does add an additional and legitimate modicum of political accountability to municipalities wanting to compete with private enterprise.

While the legislature could have adopted stricter measures against governmental competition with private enterprise, it has not done so. “In construing statutes [we] search[ ] for the legislative intent as shown by what the legislature said, rather than what it should or might have said.” Iowa R.App. P. 6.14(6)(m); see State v. Brustkern, 170 N.W.2d 389, 392 (Iowa 1969) (“[I]t is not for us to speculate as to probable legislative intent apart from the wording used [in the statute].”). Nothing in the legislature’s use of the word “authorized” in the plain language of Iowa Code section 23A.2 precludes self-authorization; the statute clearly permits a city to compete with private enterprise if an ordinance authorizes it to do. Cf. Doherty v. Kansas City Star Co., 143 Kan. 802, 57 P.2d 43, 45 (1936) (“The word ‘authorized’ ... need not have any implication of a grantor and a grantee of power.”).

The hoteliers rejoin that another subsection of Iowa’s noncompetition-by-government statute lists nine specific circumstances according to which “[t]he state board of regents or a school corporation may, by rule, provide for exemption from [the general prohibition against competition with private enterprise].” Iowa Code § 23A.2(2). The hoteliers contend this subsection is rendered superfluous under the district court’s interpretation, because any political subdivision may simply promulgate a rule authorizing itself to compete with private enterprise in any case. To the contrary, this subsection strengthens the City’s argument, insofar as it recognizes the principle of self-authorization, not constrained to any specific instances of competition. Even if we were to assume that these two provisions in the statute were ambiguous or in conflict when read as a whole, however, this mere fact would not void the more general statute, which is at issue in this appeal. See Midwest Auto. III, L.L.C. v. Iowa Dep’t of Transp., 646 N.W.2d 417, 425 (Iowa 2002) (where there is an ambiguity due to an irreconcilable conflict between two statutes, the special provision prevails over the general).

Lastly, we reject the hoteliers’ claim that the district court’s interpretation of Iowa Code section 23A.2 conflicts with our precedents. The hoteliers correctly point out that we have decided several noncom-petition cases but have never analyzed whether the political subdivision had promulgated a rule, ordinance, or regulation authorizing itself to compete with private enterprise. They argue our decisions in those cases would have been unnecessary if a political subdivision could simply pass an ordinance to “exempt itself’ from chapter 23A. See, e.g., Crippen, 618 N.W.2d at 565-67 (recycling services fell within “city enterprises” exception to statute); Net Midwest, Inc., 526 N.W.2d at 314-16 (environmental testing services fell within exception for school’s extension mission); Am. Asbestos Training Ctr., Ltd. v. E. Iowa Cmty. College, 463 N.W.2d 56, 58-59 (Iowa 1990) (teaching students how to work with asbestos not forbidden). So far as we can tell, however, in no prior case did the political subdivision raise the argument presented in this appeal, and therefore there is no conflict with our precedents. See Sager v. Farm Bureau Mut. Ins. Co., 680 N.W.2d 8, 14 (Iowa 2004) (cases generally decided only on issues raised, argued, and briefed by the parties).

IV. Conclusion

In sum, we can find no reason why we should depart from the plain and unambiguous language of Iowa Code section 23A.2. That statute clearly permits a city to enact an ordinance specifically authorizing itself to compete with private enterprise. The City of Coralville passed such an ordinance, and therefore the hotel and conference center project does not violate Iowa’s noncompetition-by-government statute. We affirm the district court’s dismissal of the hoteliers’ lawsuit. Because of our resolution of this- case, we need not rule on the City’s remaining arguments.

AFFIRMED.

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

      . The precise level of involvement of the City is disputed. For the purposes of this appeal, we assume the City will own and operate the hotel and conference center.

      . The hoteliers also claimed the project exceeded the City's home rule authority. See Iowa Const, art. Ill, § 38A; Iowa Code §§ 364.1, 384.24(2) (2003) (setting forth home rule principles and definition of "city enterprise"). The district court dismissed this claim, but the hoteliers did not appeal this issue. We therefore do not discuss it further.

      . In part, Ordinance 2003-979 stated:
      WHEREAS, Section 23A.2 of the Code of Iowa allows cities to engage in the offering for sale, rental, leasing, delivery, dispensing, distributing or advertising of goods or services to the public which are also offered by private enterprise if such city is specifically authorized by ordinance; and
      WHEREAS, the City of Coralville ... desires to have specific authorization to own, operate, maintain and offer convention center and hospitality services and related facilities in furtherance of the City's economic development objectives.... BE IT ENACTED ...:
      Section 1. The City of Coralville, Iowa, is hereby authorized to own, operate, maintain and offer to the public convention center and hospitality services and related facilities including, but not limited to parking, meeting rooms, conference rooms, exhibit halls, health and recreation facilities, laundry services, ball rooms, restaurants and lounges, catering, concierge services and guest lodging.
      Section 2. The authorization granted in Section 1 of this ordinance is hereby declared to be in satisfaction of Section 23A.2 of the Code of Iowa.