text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS & CONDUCT, Appellee, v. Wesley B. HUISINGA, Appellant.
    No. 01-1127.
    Supreme Court of Iowa.
    Feb. 27, 2002.

      Mark McCormick of Belin Lamson McCormick Zumbach Flynn, P.C., Des Moines, for appellant.
    Norman G. Bastemeyer and David J. Grace, Des Moines, for appellee.
   NEUMAN, Justice.

This disciplinary action stems from the acrimonious breakup of a Cedar Rapids law firm. One of the six withdrawing partners, in a misguided and unethical move, deposited a receivable intended for the firm into his personal checking account. Although the lawyer, respondent Wes Huisinga, seems to suggest his attempt at self-help should be excused under the circumstances, the real question is not whether our code of professional ethics has been violated but what sanction is appropriate for its breach.

The grievance commission recommended a thirty-day suspension of Huisinga’s license. For the reasons that follow, we believe a public reprimand combined with obligatory community service achieves a better fit between the unique facts before us and our prior eases.

I. Background.

Wes Huisinga was admitted to practice law in Iowa in 1981. Since 1982 his practice has centered on commercial litigation and bankruptcy. Upon appointment by the United States Attorney General in 1987, he served fulltime as the U.S. trustee in bankruptcy for a region that eventually spanned Iowa, Minnesota and South Dakota. His position and expertise in the field of bankruptcy involved him in regional administration and hiring of trustees as well as policy-making and education at the national level.

In 1994, with the change in presidential administration, Huisinga returned to private practice in Cedar Rapids. He joined the law firm of Simmons, Perrine, Albright & Ellwood, P.L.C. (hereinafter “Simmons Perrine”), where he became a member in 1998. His practice continued to focus on commercial law and bankruptcy. A large portion of his bankruptcy work involved “Chapter 7” cases in which he served as court-appointed or “panel” trustee. Financial success in this arena turned on efficient administration of a high volume of non-asset cases for which he received a flat fee of $60 apiece.

The record reveals that, in 1998, Huisin-ga handled over 500 Chapter 7 cases. He had the assistance of a skilled paralegal, Mary Klingler. Specialized computer equipment and software enabled them to file reports and perform direct banking functions in accordance with federal bankruptcy court regulations.

In the fall of 1998, Huisinga and five other members of the business section of Simmons Perrine decided to end their association with the firm. They gave thirty-days notice of their departure, and October 26 was eventually agreed upon as the official date for vacating their offices. It would unduly lengthen this opinion, and add little to our jurisprudence, to detail the personal and professional frustration, mistrust and unhappiness that led to — and surrounded — the firm’s breakup. In a nutshell, the members’ withdrawal was met with considerable hostility by those who remained at Simmons Perrine, both lawyers and staff.

Huisinga’s paralegal, Klingler, responded particularly harshly to the breakup. From the day of the announced withdrawal she refused to assist him in any way. As she was the only staff member familiar with Huisinga’s bankruptcy work, his practice was thrown into a state of chaos. Huisinga had the part-time assistance of another secretary who helped him as best she could but, among other obstacles, she was unable to access the bankruptcy software at Klingler’s workstation during office hours. This necessitated substantial overtime work on her part, an expense the Simmons Perrine management made clear it would not pay.

A frustrated Huisinga moved his furniture and files to Shuttleworth & Ingersoll, P.L.C. (hereinafter “Shuttleworth”), his new firm, on October 19, roughly a week earlier than planned. Coincidentally, the Shuttleworth and Simmons Perrine firms occupy space in the same office building. Huisinga’s secretary remained temporarily at Simmons Perrine and, for the next several days, Huisinga moved between the two offices trying to get his work done.

It was during this transition period that the events giving rise to this disciplinary proceeding occurred. Huisinga received from the bankruptcy court a check for $8180 covering trustee’s fees for Chapter 7 cases closed in September. Under Huisin-ga’s agreement with Simmons Perrine, fees earned during his association with the firm were to be deposited with the Simmons Perrine bookkeeper for allocation in accordance with the firm’s compensation agreement. Instead, Huisinga deposited the check in his own personal checking account. It remained there until April 1999, and that is what brings him before this court.

Huisinga has offered several explanations for his conduct. In March 1999, when his former colleagues at Simmons Perrine inquired about the payment, Hui-singa first denied receipt of trustee’s fees for any work completed in September or October. Later, after he authorized a check payable from Shuttleworth to Simmons Perrine for the missing amount, his accompanying letter advised that the funds had been held at Shuttleworth pending an accounting and he had been unaware that a check had not been previously issued. When eventually confronted with his former colleagues’ knowledge (gained from the bankruptcy court clerk) that the check, received months earlier, had been deposited in his personal account, Huisinga admitted that his anger over the turmoil surrounding his last days at Simmons Perrine had prompted him to withhold the funds until he could calculate the extent of his damages. He asserted his intent to make that calculation part of the final fee allocation between the firms. Several of the lawyers at Simmons Perrine were highly skeptical.

II.Complaint.

Huisinga self-reported the matters surrounding this controversy to the Board of Professional Ethics and Conduct (Board). The Board then filed a complaint charging him with conduct involving dishonesty and misrepresentation adversely reflecting on his fitness to practice law, in violation of DR 1 — 102(A)(4) and (6) of the Iowa Code of Professional Responsibility. The matter proceeded to hearing before a panel of the grievance commission. Numerous lawyers and staff members from both firms shared their perspectives on the facts sketched above. In his own testimony, Huisinga admitted that he had been less than candid with his former colleagues at Simmons Perrine and, in retrospect, that it was improper for him to have deposited the $3180 check in his personal account.

The grievance commission, summing up its reasons for recommending a thirty-day suspension, described the case this way:

To the extent that it might be considered a mitigating factor, the Respondent was the subject of an extremely unpleasant situation at the time of the transgression. He was not provided essential staffing requirements to support the work his practice demanded. Nonetheless, as an attorney, and as an attorney holding the special position of trust within the realm of the United States Bankruptcy Court, the Respondent had a duty to refrain from resorting to self help even though he perceived that he was being wronged. Respondent admits that he exercised bad judgment, but his conduct goes beyond simply bad judgment. Respondent converted into his personal account funds that did not belong to him.

III. Scope of Review.

Our review on appeal from proceedings before the grievance commission is de novo. Iowa Sup.Ct. R. 118.11; Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Carr, 588 N.W.2d 127, 129 (Iowa 1999); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sylvester, 548 N.W.2d 144, 146 (Iowa 1996). The burden rests on the Board to prove the alleged misconduct by a convincing preponderance of the evidence. Carr, 588 N.W.2d at 129. We accord respectful consideration to the commission’s findings and recommended sanction, but we are not bound by its decision. Comm, on Prof'l Ethics & Conduct v. McClintock, 442 N.W.2d 607, 607 (Iowa 1989).

IV. Applicable Law.

Our prior decisions make plain that a lawyer’s failure to account for the receipt of fees or other funds due to a law firm constitutes a violation of DR 1-102. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Schatz, 595 N.W.2d 794, 796 (Iowa 1999); Carr, 588 N.W.2d at 129; Sylvester, 548 N.W.2d at 147; McClintock, 442 N.W.2d at 607; Comm, on Prof'l Ethics & Conduct v. Piazza, 405 N.W.2d 820, 822 (Iowa 1987); Comm, on Profl Ethics & Conduct v. Hanson, 244 N.W.2d 822, 824 (Iowa 1976). These cases rest on the premise that even though a lawyer’s dishonest conduct does not involve an attorney-client relationship, our code of ethics nevertheless applies. McClintock, 442 N.W.2d at 608.

An attorney cannot resort to self-help to rectify what may be perceived to be an inequity in the division of law partnership earnings. Most law partnerships are founded upon a total trust and confidence among the partners. A breach of this exceedingly close relationship merits disciplinary action.

Id.

The scope of any disciplinary action must be tailored to the particular facts and circumstances of the case. Schatz, 595 N.W.2d at 796. The guiding principles for imposing a sanction include “the nature of the alleged violations, the need for deterrence, protection of the public, maintenance of the reputation of the bar as a whole and the respondent’s fitness to continue in the practice of law.” Sylvester, 548 N.W.2d at 146 (quoting Comm. on Prof'l Ethics & Conduct v. Blomker, 379 N.W.2d 19, 21 (Iowa 1985)).

V. Sanction.

The controversy before us centers on the sanction Huisinga deserves for his dishonest conduct toward his partners. In his testimony before the grievance commission, Huisinga acknowledged the impropriety of depositing a check for trustee’s fees in his personal account. Yet he continued to rationalize his self-help remedy in terms of “leverage” crucial to the “day of reckoning” with his former firm. Like the grievance commission, we think it important to recognize Huisinga’s supposed dilemma for what it really is. Had he directly confronted Simmons Perrine about the perceived inequity of his situation, this would be no more than a contract dispute. Instead the record reveals Hui-singa’s attempt to conceal wrongdoing until caught in the act. No amount of after-the-fact rationalizing can satisfactorily explain this fundamental breach of honesty and professional ethics.

A review of our prior decisions involving attorneys accused of similar misconduct yields two public reprimands and five license revocations. In the cases resolved by reprimand, the records reveal full disclosure and restitution by the offending attorney, agreement by the affected firm with the settlement reached and no other aggravating circumstances. See Iowa Supreme Court Bd. of Prof'l Ethics & Conduct v. Fredericksen, No. 99-1181 (Iowa September 3,1999) (Order of Public Reprimand); McClintock, 442 N.W.2d at 608. But see State ex rel. Nebraska State Bar Ass’n v. Frederiksen, 262 Neb. 562, 635 N.W.2d 427, 430-31 (2001) (companion disciplinary action against lawyer licensed in both Iowa and Nebraska resulted in three year suspension of Nebraska license).

The cases warranting revocation reveal much more egregious surrounding circumstances such as criminal conduct, drug dealing or conversion of client funds. See Schatz, 595 N.W.2d at 795-96 (embezzlement of $140,000 in firm funds, income tax evasion and two felony convictions warrants revocation); Carr, 588 N.W.2d at 129 (lawyer defrauded client as well as firm by collecting, and failing to account for, “false” fee); Sylvester, 548 N.W.2d at 147 (conviction of felony for conversion of firm funds and forgery); Piazza, 405 N.W.2d at 823-24 (misappropriation of client as well as law partnership funds; prior record of suspensions); Hanson, 244 N.W.2d at 824 (drug dealing combined with conversion of firm funds warrants revocation).

We think the case before us falls somewhere between these two extremes. Hui-singa has previously enjoyed an unblemished record of service to his profession and his community. Several members of the bench and bar testified not only to his reputation for honesty and integrity but to the unusually acrimonious circumstances surrounding his departure from Simmons Perrine. On the one hand, Huisinga’s regrettable reaction to these adverse conditions reveals a betrayal of the fundamental trust by which we, as lawyers, are bound and upon which we must rely in our professional associations with one another. Yet the incident at issue appears isolated and out of character for a lawyer whose fiduciary responsibility and expertise are widely recognized. This latter fact makes even a brief suspension of his license problematic. Beyond the usual personal upheaval wrought by any suspension, imposing such a sanction here would greatly inconvenience the bankruptcy court and public otherwise capably served by Huisin-ga.

We conclude that a reprimand combined with a public service requirement will satisfactorily address the objectives of this disciplinary proceeding. Huisinga has settled his financial differences with Simmons Perrine. We trust that imposing a public service obligation will renew Huisinga’s fidelity to professional ethics, encourage others to deal more forthrightly with their colleagues, and repair the public trust inevitably damaged by cases such as this.

■ We therefore order that within thirty days of this ruling, Huisinga shall submit to this court a plan for completion of forty hours of public service to his community. It is not our intent that such service duplicate or replace community activities in which Huisinga is already engaged. Rather, this service shall be performed independently to recognize and redress the serious breach of trust this record reveals.

Assuming approval of the plan, Huisin-ga shall fulfill its requirements within one year and thereafter immediately report its completion to this court. Failure to abide this requirement may subject the respondent to further action by this court, including but not limited to citation for contempt. We trust that no further proceedings will be necessary.

The costs of this action are assessed against the respondent in accordance with Iowa Supreme Court Rule 118.22.

ATTORNEY REPRIMANDED.

All justices concur except CARTER and STREIT, JJ., who take no part.

      . The Board subsequently amended its complaint to add identical counts concerning two additional checks received by Huisinga after November 1998. The record reveals that both checks were deposited in the Shuttle-worth general trust account and included in the final settlement between the firms. The commission found, and we agree, that the evidence is insufficient to show any deceit or misrepresentation by Huisinga with respect to these checks. We therefore give the additional counts of the complaint no further attention.


source: Caselaw Access Project

author: CADY, Justice.

license: Public Domain

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Lance GROTEWOLD, Respondent.
    No. 01-1430.
    Supreme Court of Iowa.
    Feb. 27, 2002.

      Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for complainant.
    John J. Scieszinski, Des Moines, for respondent.
   CADY, Justice.

This case is before us on the report of a division of the Iowa Supreme Court Grievance Commission. The Commission found Lance Grotewold violated the Iowa Code of Professional Responsibility by neglecting client matters, making misrepresentations to the district court, and failing to timely respond to the Iowa Supreme Court Board of Professional Ethics and Conduct. The Commission recommended a public reprimand. On our consideration of the matter, we find Grotewold violated the Code of Professional Responsibility as alleged, and we suspend his license to practice law for sixty days.

I. Commission Report.

Lance Grotewold was licensed to practice law in Iowa in 1986, and he has practiced in Oskaloosa since that time. He is married and has two daughters. One daughter is in college and the other daughter is in high school. Grotewold has generally enjoyed a good reputation as a lawyer, although he is known to be slow in meeting deadlines. He is both affable and casual in the manner he practices his profession. He has never been publicly disciplined in the past for unethical conduct.

The complaint against Grotewold centered on his conduct in two separate cases. The first case dates back to 1991, when Grotewold represented the administrator of the estate of Annie Vande Geest Hul-bert, who was murdered by her husband. The decedent was twenty-three years old, and was survived by a young daughter. The administrator of the estate was the father of the decedent, who was also the guardian and conservator of the surviving daughter. Annie’s husband was sentenced to serve a life term of imprisonment for the murder.

Grotewold opened the estate in December 1991. The estate remained open for nearly nine years, with little work done during the first eight and one-half years to bring the matter to a conclusion. The estate was closed in April 2000, after the district court appointed an attorney to serve as guardian ad litem for Annie’s daughter, the sole heir, to assist Grotewold in completing the work necessary to close the estate.

Grotewold neglected a variety of matters during the probate proceedings. He failed to take the necessary steps to publish a notice to creditors. He delayed payment of an uncontested claim filed in the estate for over five years, and failed to obtain a receipt or satisfaction of the claim after it was finally paid. He did not file the final report until October 1999 and failed to include an accounting in the report. He also failed to file the inheritance tax return until January 2000. The final settlement to the sole heir was not made until April 2000. Grotewold also filed incomplete interlocutory reports for several years while the estate was open.

In addition to the neglect, Grotewold misrepresented the status of the estate to the district court. In a report filed with the district court on October 15, 1999, Grotewold falsely stated that the Iowa Department of Revenue acquittance was on file. At the time Grotewold made the representation, he had not filed the tax return. When questioned by the district court about the absence of the acquittance in the court file, Grotewold acknowledged he never received an acquittance, and he told the district court that the Department of Revenue must have never received the tax return. Grotewold also told the district court he had prepared and filed new returns. However, the tax returns were not filed until January 2000.

The second case involved a small claims action. In that matter, Grotewold met with an individual named Jerry Fowler in his law office on December 4, 2000. Fowler and his wife had been sued by their former landlord for unpaid rent, and an answer to the petition was due by December 10, 2000. Fowler sought Grotewold to represent him in the case. An answer was not timely filed and a default judgment was entered against the Fowlers. Grote-wold subsequently filed an answer and counterclaim on behalf of the Fowlers on January 17, 2001, but took no further action to set aside the default. When confronted with his failure to file a timely answer, Grotewold maintained that he had not agreed to represent the Fowlers until they paid a $150 retainer to him. Fowler disputed such a condition, and Grotewold failed to satisfactorily explain the reason for filing a late answer on behalf of the Fowlers without receipt of the retainer or any other communication from the Fowl-ers following the December 4 meeting.

Separate complaints were filed against Grotewold for his conduct in both cases. The Board first notified Grotewold of the complaint concerning his activities in the estate proceedings on May 2, 2000, and requested a response. Grotewold failed to respond to the notice as well as two followup notices from the Board.

Grotewold was notified of the small claims complaint on March 26, 2001. He failed to respond to the notice, as well as a second notice.

Grotewold suffers from depression that began to reveal itself in 1998, but probably began much earlier in more subtle ways. The depression experienced by Grotewold immobilized and overwhelmed him at times, and he literally was unable to perform his work for weeks at a time. He was also overcome by feelings of hopelessness. At times, he looked gaunt and disheveled. In October 1998, Grotewold discovered his secretary embezzled approximately $190,000 from his trust account. The embezzlement only deepened his depression, as did the filing of the complaint against him in the estate case.

In February 2001, Grotewold returned from a vacation and found himself unable to muster the strength to go to his law office to work. He called the Board to turn in his license to practice law, and was referred to the director of the Lawyers Helping Lawyers program. Grotewold promptly sought the assistance of a mental health professional who began to treat Grotewold for his mental illness. Grote-wold was diagnosed with major depression.

Medication and counseling have helped Grotewold control his depression. He also has friends and family members who support and help him. His treating physician believes he has “almost returned to normal.” Grotewold attributes some of his conduct that resulted in the complaints to his untreated depression. Grotewold believes in retrospect that he suffered from deep depression long before the embezzlement but was unaware of it. Additionally, there was some evidence to suggest that the secretary who embezzled from Grote-wold’s trust account may have purposely failed to mail the estate tax returns prepared by Grotewold.

The Commission found Grotewold committed misconduct in the estate and small claims cases. See DR 1-102(A)(5), (6) (conduct that adversely reflects on fitness to practice law and conduct prejudicial to administration of justice); DR 6-101(A)(S) (neglect, of client’s legal matters); DR 7-101(A) (failure to represent client zealously). It also found Grotewold made misrepresentations to the district court in the estate case, although it found that the misrepresentations resulted from sloppy, casual conduct, not an intent to deceive. See DR 1-102(A)(4) (conduct involving misrepresentation). Finally, the Commission found Grotewold committed misconduct by failing to respond to the inquiries of the Board. See DR 1-102(A)(5), (6). The Commission recommended Grotewold receive a public reprimand.

II. Scope of Review.

Our scope of review is well established. We review an attorney disciplinary proceeding de novo. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Mulford, 625 N.W.2d 672, 679 (Iowa 2001). We are not bound by the findings of the Commission, although we give them weight. Id. “We also respectfully consider the discipline recommended by the Commission, but we are not bound by [it].” Id. The Board has the burden to prove “disciplinary violations by a ‘convincing preponderance of the evidence.’ ” Id. (citation omitted).

III. Violations.

We agree Grotewold violated the Iowa Code of Professional Responsibility as determined by the Commission. First, Grotewold neglected a client matter by the manner in which he served as attorney for the executor. See DR 6-101(A)(3). He repeatedly failed to perform required functions as attorney for the executor, repeatedly failed to meet deadlines, and failed to close the estate within a reasonable period of time. Our law contemplates that an estate proceeding should be closed within three years following notice to creditors. See Iowa Code § 633.473 (2001) (estate must be closed within three years of second notice to creditors unless the court orders otherwise); Iowa R. Prob. P. 6 (personal representative must file interlocutory report identifying work remaining to be done in the estate and the estimated time to complete the work if the final report is not filed within eighteen months after the second notice to creditors). His dilatory conduct was a disservice to his client and others, as well as to the administration of justice. See DR 1-102(A)(5), (6).

Grotewold also neglected a client matter by failing to file a timely answer in the Fowler ease and failing to move to set aside the default judgment. See DR 6-101(A)(3); DR7-10KA). Grotewold failed to perform these important tasks after assuming the responsibility to represent the Fowlers.

Grotewold also misrepresented the status of the estate to the district court in violation of DR 1-102(A)(4). Although his conduct may have related to his casual, lax mannerism, and perhaps his state of depression, it still constituted misrepresentation. See Hyler v. Garner, 548 N.W.2d 864, 871 (Iowa 1996) (intent to deceive may be shown when the speaker either has actual knowledge of the falsity or speaks with reckless disregard). We recognize negligent misrepresentation does not constitute a violation of DR 1-102(A)(4), and therefore misstatements resulting from oversight or haste do not constitute misrepresentations. Comm. on Prof' Ethics & Conduct v. Bitter, 279 N.W.2d 521, 526 (Iowa 1979). On the other hand, recklessness can support fraudulent misrepresentation. See Hyler, 548 N.W.2d at 871. We have said that false statements cannot be excused on the basis of a “casual[ ] unawareness of the truth.” Comm. on Prof'l Ethics & Conduct v. Ramey, 512 N.W.2d 569, 571 (Iowa 1994). Our system of justice requires “absolute reliability and an impeccable reputation for honesty” by its officers. Id. At best, Grotewold’s misinformation to the court that the uncompleted tasks in the estate had been completed was based on hope and an intention that those tasks would eventually be completed. Yet, his conduct did not result from negligence, but his casual, reckless disregard for the truth. Grotewold engaged in conduct involving misrepresentation in violation of DR 1-102(A)(4), (5).

Grotewold acknowledged he • failed to timely respond to the Board. This conduct violates DR 1-102(A)(5), (6).

IV. Discipline.

In determining the appropriate discipline in each case, “we consider ‘the nature of the alleged violations, the need for deterrence, protection of the public, maintenance of the reputation of the [bar] as a whole, and the respondent’s fitness to continue in the practice of law.’ ” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hohenadel, 634 N.W.2d 652, 655 (Iowa 2001) (citations omitted). “We also take into account ‘[any] aggravating and mitigating circumstances.’ ” Id. (citation omitted).

“[T]here is no standard discipline for a particular type of attorney misconduct.” Id. Yet, when neglect of a client’s legal matters is the principal violation, “discipline generally ranges from a public reprimand to a six-month suspension.” Id. Misrepresentations, on the other hand, warrant a more severe sanction than neglect. In re Inquiry Concerning McCormick, 639 N.W.2d 12, 17 (Iowa 2002); Hohenadel, 634 N.W.2d at 655. Considering the importance of honesty to our profession, we have stated that misrepresentation by a lawyer “constitutes a grave and serious breach of professional ethics” and generally results in “a lengthy suspension.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Stein, 603 N.W.2d 574, 576 (Iowa 1999).

Clearly, misrepresentation is the most serious violation in this case. The concept of such conduct is repulsive to our system of justice and its very presence within our profession supports serious discipline, justified by the need to deter the offender and others, protect the public, and maintain the reputation of the profession. See In re McCormick, 639 N.W.2d at 17. Yet, against the backdrop of depression, misrepresentation can take on added meanings, as can neglect. This backdrop complicates the imposition of discipline and requires us to fully examine the impact of depression.

The evidence in this case reveals that serious depression often results from chemical imbalances in the brain that cause those afflicted to be plagued by growing and overwhelming feelings of hopelessness and despair. It also reveals that depression can take hold of a person without his or her knowledge or understanding of the need for treatment. The same type of evidence revealed in this case has been the subject of articles in professional journals describing the impact of depression on lawyers. See Gary L. Bakke, Brainstorm, My Experience with Depression, 61 The Iowa Lawyer, Mar. 2001, at 5, 5-7 (personal composition by President of the Wisconsin State Bar Association) [hereinafter Bakke]; see also Dennis W. Kozich, Status of Stress in the Legal Profession, 70 Wis. Lawyer, May 1997, at 31, 31 (discussing stress-related problems connected with the legal profession); Gregory J. Van Rybroek, Lawyers and Stress: An Anti-Quick Fix View, 70 Wis. Lawyer, May 1997, at 30, 30-31 (same). See generally Connie J.A. Beck et al., Lawyer Distress: Alcohol-Related Problems and Other Psychological Concerns Among A Sample of Practicing Lawyers, 10 J.L. & Health 1, 1-60 (1995-96) (compilation of results from extensive study of psychological distresses, including depression, and additional afflictions affecting lawyers) [hereinafter Beck et al.]. We also observed the same type of evidence in a recent attorney disciplinary proceeding. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Erbes, 604 N.W.2d 656, 658 (Iowa 2000). With the state of mind brought on by depression, it is understandable how neglect, and even excuses for nonperformance, can become part of the disease. See Beck et al., 10 J.L. & Health at 1-5; Bakke, 61 The Iowa Lawyer, Mar. 2001, at 6. Thus, unethical professional conduct can double as a symptom of depression. See Beck et al., 10 J.L. & Health at 2. Moreover, these symptoms too often appear before the disease is diagnosed and treatment is sought. See Bakke, 61 The Iowa Lawyer, Mar. 2001, at 5-6.

While depression does not minimize the seriousness of unethical eon-duct, it can impact our approach to discipline. We continue to maintain a firm position that the personal problems of a lawyer that may contribute to the commission of unethical conduct do not excuse the misconduct. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Adams, 623 N.W.2d 815, 818 (Iowa 2001); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Thompson, 595 N.W.2d 132, 134 (Iowa 1999). Moreover, we have specifically applied this principle to depression. See Adams, 623 N.W.2d at 817-18 (characterizing lawyer’s depression of fifteen to twenty years as a personal problem); Thompson, 595 N.W.2d at 134 (depression and alcoholism do not excuse unethical conduct). This approach is grounded in “our overriding obligation to the public which suffers the same” harm regardless of the underlying source of the conduct. Comm, on Prof'l Ethics & Conduct v. Sytsma, 405 N.W.2d 844, 845 (Iowa 1987). Nevertheless, personal circumstances such as depression are not ignored when we consider the sanctions to impose for the conduct. See Erbes, 604 N.W.2d at 659. Instead, we consider all circumstances in imposing discipline upon lawyers, and have considered personal afflictions and subsequent recovery efforts in the imposition of sanctions, both in terms of fitness to practice law and as mitigating circumstances. See Hohenadel, 634 N.W.2d at 656-57 (unethical conduct involving neglect and misrepresentation attributable to a long battle with alcoholism warranted a four-month suspension where evidence included genuine efforts by the attorney to address the problem); Erbes, 604 N.W.2d at 659 (attorney successfully addressed debilitating depression and posed no threat to the public).

We must also consider the impact of depression on the goals of attorney discipline. The rationale for the imposition of sanctions as a deterrent to the offending lawyer, and others, from engaging in the conduct in the future loses some of its value when the conduct involved is the product of untreated mental illness. Similarly, when unethical conduct is the product of untreated mental illness, the protection of the public and the reputation of the profession can be vindicated by the diagnosis and successful treatment of the disease. Treatment in the form of medicine, counseling, and support often eliminates the state of mind responsible for the unethical conduct and paves a return to normalcy. See Bakke, 61 The Iowa Lawyer, Mar. 2001, at 6. When unethical conduct attributable to depression is aberrant, and not part of the normal disposition of a lawyer, the goals of discipline are not as easily applied as when unethical conduct stems from the normal activities of a lawyer.

In this case, Grotewold found himself trapped in a state of major depression for a considerable period of time. He had no known history of the disease, and no real understanding of the forces working against him. He was unaware of the seriousness of his condition and what he needed to do to overcome it. We think these are important factors. However, the full extent of depression as a mitigating circumstance in the imposition of discipline necessarily relates to the relationship between the unethical conduct and the depression. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Rylaarsdam, 636 N.W.2d 90, 92-93 (Iowa 2001) (unethical conduct occurred over a period of many years and predated diagnosis of major depression); Hohenadel, 634 N.W.2d at 656-57 (unethical conduct was the consequence of alcoholism).

There was ample evidence in the record to explain the relationship between depression and neglect of professional obligations. Grotewold testified he would go to work and be unable to meaningfully perform any tasks for weeks at a time. He testified he was unable to even go to work at times. Yet, the evidence did not similarly explain the same relationship between the depression and the false statements, although it was apparent the two circumstances were co-existent. Furthermore, the judge to whom the misstatements were made testified Grotewold appeared and acted normal at the time. More importantly, Grotewold’s defense before the Commission was that his statements to the district court were not false. He did not claim they were directly related to his depression. Finally, evidence of the onset of Grotewold’s depression was largely confined to that period of time after 1998. Prior to the onset of depression, Grotewold had developed a reputation as a procrastinator, which seemed to adequately explain many of the acts of neglect in the estate case over the years.

Under these circumstances, we believe deterrence, public protection, and vindication of the profession are appropriately considered in imposing discipline. This is not to say Grotewold’s depression is not a mitigating factor, but not enough to support the recommendation of the Commission of a public reprimand. Comm. on Prof'l Ethics & Conduct v. O’Callaghan, 436 N.W.2d 51, 51 (Iowa 1989) (Commission recommendation is not binding, but is given respectful consideration). The unethical conduct engaged in by Grotewold was not solely related to the onset of his undiagnosed major depression and was otherwise uncharacteristic of his manner of practice. See Rylaarsdam, 636 N.W.2d at 92-93 (diagnosis of depression predated unethical conduct); Hohenadel, 634 N.W.2d at 653, 656-57 (alcoholic lawyer refused help in the past and engaged in prior unethical conduct). Yet, we believe the growing state of depression experienced by Grotewold played some role in the matters involved in this case, in varying degrees. Thus, we consider the depression experienced by Grotewold as a mitigating factor in the imposition of discipline. We also recognize Grotewold has received successful treatment and is fit to practice law. We suspend Grotewold’s license to practice law for sixty days. This discipline appropriately considers the vast competing circumstances represented in this case.

The suspension imposed applies to all facets of the practice of law. Ct. R. 118.12. Reinstatement is governed by the automatic reinstatement provisions of Court Rule 118.12. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Stowers, 626 N.W.2d 130, 134 (Iowa 2001). Costs of this action shall be taxed to Grotewold pursuant to Court Rule 118.22.

LICENSE SUSPENDED.


author: STREIT, Justice.

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. William J. LANE, Respondent.
    No. 01-1929.
    Supreme Court of Iowa.
    April 3, 2002.

      Norman G. Bastemeyer and David J. Grace, Des Moines, for complainant.
    Mark McCormick of Belin Lamson McCormick Zumbach Flynn, P.C., Des Moines, for respondent.
   STREIT, Justice.

An Iowa attorney passed someone else’s writing as his own and claimed he spent almost two weeks writing that which he used. The Iowa Supreme Court Board of Professional Ethics and Conduct filed a complaint with our Grievance Commission against respondent, William J. Lane, alleging he violated several ethical rules and recommended we suspend Lane’s license to practice law for three months. Our review is required by Court Rule 118.10. We agree with the Commission’s findings of misconduct but suspend Lane’s license for six months.

I. Background Facts and Proceedings

After the conclusion of a trial in federal court in which Daniel Sicard claimed a violation of the Americans with Disabilities Act, attorney Lane submitted a post-trial brief to the court. The legal portion of the brief was in great part plagiarized from a treatise written by Barbara Lindemann and Paul Grossman. See Lindemann & Grossman, Employment Discrimination Law (3d ed.1996). Lane later applied to the court for attorney fees. Among other charges, Lane requested compensation for eighty hours of work spent to prepare the questioned brief. Charging $200 per hour, Lane asked for $16,000 to write the brief that was largely copied from an uncredited source. In total, Lane requested $104,127 in attorney fees plus $13,368.29 in costs for his representation of Sieard.

On May 6, 1998, there was a hearing on Lane’s attorney fee application. The United States magistrate judge stated it did not appear to him that Lane wrote the legal portions of the brief. Lane responded, “I borrowed liberally from other sources. Yes, your Honor.” The court noted,

[b]ecause of the consistency of style and the sequence of footnotes, the court assumes that [the brief] is from a particular source. If the source is a published treatise, it can simply be identified by name, author, and publisher.

To address this suspicion, the judge ordered Lane to explain or identify the sources cited in his brief within ten days. At the end of the ten days, Lane did nothing to comply with the court’s order. On June 4, 1998, a member of the judge’s staff asked Lane if he intended to respond to the order. Only days later, a fire at Lane’s home destroyed many of his files and records in the Sieard matter. In July 1998, Lane closed his office, but continued to practice out of his home.

Four months passed and Lane still did not respond to the judge’s order. On September 30, 1998, the judge entered an order awarding Lane $20,000 in fees in the Sieard case. The judge stated “there [were] many serious problems with plaintiffs fees and cost claim.” The-court was particularly concerned because Lane did not support his contention he was entitled to receive compensation at the rate of $200 per hour for his services. Lane also requested $9000 as compensation for the time he spent preparing his bill. The judge stated Lane requested $16,000 for the lifted brief but failed to comply with the court’s order to “disclose the sources from which counsel ‘borrowed liberally.’ ” Lane also requested compensation for fifty-nine hours of legal research preceding the trial. The court concluded

it is not reasonable to bill 59 hours of legal research in the two weeks prior to trial.... If counsel spent this amount for time performing research, it is further evidence that he does not possess the skill and experience of those who charge $200 per hour.

The court further explained its reduction of the attorney fees awarded by citing to Lane’s charges of $5.00 per telephone call, $1.00 per page of facsimile transmissions, $191 for long distance transmission, and $.50 per photocopy. Finally, the court stated Lane did not cite authority for the ability to charge for estimated pretrial travel expenses. Lane did not appeal the $20,000 award of attorney fees.

On October 30, 1998, Lane filed a compliance with the judge’s order to document his sources but the judge was not made aware of the compliance until March 1999. WOien the judge read Lane’s compliance he did not notice any reference to the primary source of the legal portion of Lane’s brief. Lane’s compliance constituted four pages of single-spaced lists of authorities. Among them was the Grossman treatise. However, no particular attention was drawn to this source. Consequently, the judge undertook his own investigation and discovered Lane took the legal portion of his brief verbatim from the Grossman treatise.

This complaint also involves Lane’s representation in two separate and unrelated bankruptcy cases. The Ethics Board charged Lane with, among other violations, neglect of clients’ legal matters, withdrawal from employment without taking reasonable steps to avoid prejudice to his clients and without promptly refunding unearned fees, and failure to seek the lawful objectives of his clients. The Commission found, and we agree, the Ethics Board failed to satisfy its burden to prove Lane violated any ethical rules in representing his clients in the bankruptcy matters. Therefore, we will only address the charges relevant to the Sicard case.

II. Scope of Review

This matter is before us on de novo review. Iowa Ct. R. 35.11(3). We give respectful consideration to the findings and recommendations of the Commission, but are not bound by them. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sherman, 637 N.W.2d 183, 186 (Iowa 2001) (citations omitted). Misconduct must be proven by a convincing preponderance of the evidence. Id.

III. Complaint

The Ethics Board alleges violations of DR 1-102(A)(1), (3), (4), (5), and (6). This rule provides in part, a lawyer shall not

• Violate a disciplinary rule;
• Engage in illegal conduct involving moral turpitude;
• Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
• Engage in conduct that is prejudicial to the administration of justice; and
• Engage in any other conduct that adversely reflects on the fitness to practice law.

The Ethics Board also charges Lane with a violation of DR 2-106(A) which states, “[a] lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.” The Commission found Lane violated DR 1 — 102(A)(1), (3), (4), (5), and (6) and DR 2-106(A) by his handling of the Sicard case.

IV.Ethical Violations

Lane plagiarized from a treatise and submitted his plagiarized work to the court as his own. This plagiarism constituted, among other things, a misrepresentation to the court. An attorney may not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. DR 1-102(A)(4). This issue is akin to the matter of ghost-writing attorneys who “author pleadings and necessarily guide the course of the litigation with unseen hand.” Johnson v. Bd. of County Comm’rs, 868 F.Supp. 1226, 1231 (D.Colo.1994), aff'd in part and disapproved in part, 85 F.3d 489 (10th Cir.), cert. denied sub nom. Greer v. Kane, 519 U.S. 1042, 117 S.Ct. 611, 136 L.Ed.2d 536 (1996). In this situation, an attorney authors court documents for a pro se litigant who, in turn, submits the court document as his or her own writing. This practice is widely condemned as unethical and a “deliberate evasion of the responsibilities imposed on attorneys.” Wesley v. Don Stein Buick, Inc., 987 F.Supp. 884, 886 (D.Kan.1997); see, e.g., Iowa State Bar Ass’n Comm, on Profl Ethics & Conduct, Formal Op. 96-31 (June 5, 1997); Iowa State Bar Ass’n Comm. on Profl Ethics & Conduct, Formal Op. 94-35 (May 23, 1995); Duran v. Carris, 238 F.3d 1268, 1273 (10th Cir.2001); In re Ellingson, 230 B.R. 426, 435 (Bankr.D.Mont.1999); Ricotta v. State, 4 F.Supp.2d 961, 987 (S.D.Cal.1998). See generally Trigon Ins. Co. v. United States, 204 F.R.D. 277, 292 (E.D.Va.2001). Just as ghost writing constitutes a misrepresentation on the court, so does plagiarism of the type we have before us.

Plagiarism itself is unethical. “Plagiarism, the adoption of the work of others as one’s own, does involve an element of deceit, which reflects on 'an individual’s honesty.” In re Zbiegien, 433 N.W.2d 871, 875 (Minn.1988). Use of “appropriated material ... cannot go undisciplined, especially because honesty is so fundamental to the functioning of the legal profession” In re Lamberts, 93 Ill.2d 222, 228, 66 Ill.Dec. 623, 443 N.E.2d 549, 552 (1982). Undoubtedly, Lane’s plagiarism reflects poorly on both his professional ethics and judgment.

It was not difficult to find similarity between Lane’s post-trial brief and the Grossman treatise. The legal argument of Lane’s post-trial brief consisted of eighteen pages of plagiarized material, including both text and footnotes, from the treatise. In copying this material, Lane cherry-picked the relevant portions and renumbered the footnotes to reflect the altered text. Examination of Lane’s brief does not reveal any independent labor or thought in the legal argument. See Alexander v. Irving Trust Co., 132 F.Supp. 364, 367 (S.D.N.Y.1955).

On the first occasion plagiarism became an issue, Lane appeared to be forthcoming with the court and admitted “[he] borrowed liberally from other sources.” It also appears Lane attempted to identify the source of his writing before the court but was unable to recall the exact title of the treatise. Lane later had the chance to identify his source to the court, but when he responded to the court’s order, he failed to specifically draw the court’s attention to the Grossman treatise. Instead, Lane buried the title within a list of over 200 other sources. Though a technical compliance with the court’s order, Lane’s continued lack of candor indicates he hoped, by concealing the treatise among 200 other titles, the judge would not recognize the extent of Lane’s plagiarism.

We do recognize Lane’s personal circumstances shortly after the time of the court’s order were not ideal. Lane’s home was nearly destroyed by the fire forcing him and his family to live in a motel for two months. However, this does not excuse his failure to comply with the court’s order in a timely fashion. We will not excuse the seriousness of passing off another’s work as one’s own. We find the record shows Lane knowingly plagiarized and intended to deceive the court.

Equally troubling is Lane’s application for attorney fees. Lane copied the entire portion of his legal argument out of a book and then claimed it took him eighty hours to write the brief containing the copied material. He requested attorney fees for this work at the rate of $200 per hour. Other than Lane’s assertions that perhaps he works less efficiently than other lawyers, there is little in the record to indicate Lane actually spent this amount of time writing the brief. Because he plagiarized the entire legal argument, the chances are remote that it took Lane eighty hours to write the argument. Rather, the facts show Lane stole all eighteen pages of his legal argument from a single source. Then to justify his request for attorney fees for the eighty hours it took to “write” the brief, Lane submitted a list of over 200 legal sources' to the court. In doing so, Lane attempted to have the court believe he researched and relied on each of these sources in writing the brief. These circumstances only support the conclusion Lane endeavored to deceive the court.

The Ethics Board argues Lane’s plagiarism was part of a larger scheme to defraud the court by means of inflated time and expense billings. When Lane requested compensation for time he did not spend working on the case, he violated the professional rule forbidding a lawyer from entering into an agreement for, charging, or collecting an illegal or clearly excessive fee. See DR 2-106(A); see, e.g., Iowa Supreme Ct. Bd. of Prof l Ethics & Conduct v. Hoffman, 572 N.W.2d 904, 909-10 (Iowa 1997) (attorney’s charging excessive fee warranted six month suspension where attorney attempted to mislead grievance commission and supreme court with untenable excuses for seeking such an excessive fee). Even after the plagiarism issue arose, Lane continued to assert he was entitled to receive $200 for the eighty hours it took him to copy the material in his brief. He did not at any time admit that it did not take, nor could it have taken him that long to simply copy his legal argument out of a treatise. Charging such a clearly excessive bill brings Lane’s integrity into question and the entire legal profession into disrepute.

It is important to note that Lane’s request for attorney fees in this case is not similar to cases where the attorney is simply not awarded the fee requested. Lane relies on one particular case in which the district court reduced the attorney’s fee application of over $171,000 to $95,000. See Lynch v. City of Des Moines, 464 N.W.2d 236, 238 (Iowa 1990). The dispute in Lynch involved the attorney’s expenditure of time, effort, and money in representing her client. Id. at 240. There, the trial court properly considered several factors in reducing the award of attorney fees. Id. at 239. These factors included: the time necessarily spent; the difficulty of handling and importance of the issues; the responsibility assumed and results obtained; the standing and experience of the attorney in the profession; and the customary charges for similar service. Id. at 238 (citing Landals v. George A Rolfes Co., 454 N.W.2d 891, 897 (Iowa 1990)). In Lynch, there was no suggestion of impropriety or intent to deceive the court on the part of the attorney who submitted the fee application. Moreover, the record contained no evidence to contradict the evidence supporting the fee application. Id. at 239.

In many cases a fee application may not necessarily be a precise measure of the time an attorney spent on a particular case. Ethics concerns are not unavoidably raised where the court reduces the attorney fee award merely reflecting considerations that do not bring into question the attorney’s honesty or integrity in submitting the fee application. On the other hand, although ethics is not a matter of degree of misstatement — any knowing misstatement to the court being unethical — the nature and depth of Lane’s misrepresentation speaks of knowing deception.

The record before us amply supports the conclusion Lane’s conduct rises to the level of intent to deceive. Action based in the hopes of deceiving the court are not the same as those arising from simple negligence or even recklessness. A lawyer who knowingly submits a fee application to the court and thereby attempts to misrepresent the amount of time he or she spent working on a case has committed serious ethical violations. Accordingly, we will not treat all of the cases the same. When the fee application involves culpable conduct, the seriousness of the offense will be considered in fashioning the appropriate sanction. We conclude the record supports the Commission’s findings that Lane charged a clearly excessive fee in the Sicard case.

Y. Discipline

In determining the proper sanction, we consider the particular facts and circumstances of each case. low a Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lemanski, 606 N.W.2d 11, 13 (Iowa 2000). Among the factors we give weight to are the need for deterrence, protection of the public, maintenance of the reputation of the Bar as a whole, and the violator’s fitness to continue to practice law. Id. at 14. We also consider any aggravating or mitigating circumstances. Iowa Supreme Ct. Bd. of Prof l Ethics & Conduct v. Ruth, 636 N.W.2d 86, 89 (Iowa 2001).

One such aggravating circumstance is a lawyer’s prior disciplinary history. Lemanski, 606 N.W.2d at 14. Lane has once before faced attorney disciplinary proceedings. In 1997, the Commission sanctioned Lane for failing to respond to an inquiry. He was publicly reprimanded for conduct prejudicial to the administration of justice contrary to DR 1-102(A)(5) and conduct adversely reflecting on his fitness to practice law contrary to DR 1-102(A)(6).

A mitigating factor to consider is Lane’s recognition of some wrongdoing. Lane filed “Respondent’s Statement” with this court. Although not evidence, we will treat this statement as a supplemental brief. Lane stated,

I can accept that my behavior was the result of bad judgment, ignorance, even stupidity or carelessness, or sloppiness, or any number of things, such as laziness, negligence, arrogance, indolence, pettiness, or just plain old incompetence ....

Lane asserted he did not intend to deceive the court and cited his reputation for honesty. In support of this contention, several character witnesses testified on Lane’s behalf at the hearing before the Commission. Despite Lane’s statements to the court, he still does not appear to comprehend the wrongfulness of his actions. In requesting excessive and unreasonable attorney fees for a brief he did not write, Lane was not negligent, or even reckless. Rather, more seriously, he intended to deceive. Lane’s purported acknowledgment of misconduct fails to recognize the full extent of his wrongdoing.

Mitigating factors alone do not overcome our responsibility to the public and to the legal profession. Though Lane offered evidence of difficult personal circumstances, this does not excuse his unethical conduct. Taking all of the above factors into consideration, we conclude in cases of this type, fairness and justice require discipline be imposed to deter future misconduct, protect the public, and maintain the reputation of the Bar as a whole. See Lemanski, 606 N.W.2d at 14. Lane’s excessive billing for writing a largely plagiarized brief cannot go undisciplined. Honesty is fundamental to the functioning of the legal profession, and Lane’s conduct in this case has compromised that honesty. Moreover, Lane has jeopardized the integrity of the Bar and the public’s trust in the legal profession. We conclude a six-month license suspension is warranted. We therefore suspend Lane’s license to practice law in the State of Iowa, with no possibility of reinstatement for a period of six months from the date of the filing of this opinion. Upon application for reinstatement, Lane shall have the burden to prove he has not practiced law during the period of suspension and that he meets the requirements of Iowa Court Rule 35.13. Any hearing on application for reinstatement shall be at least sixty days after the filing of such application. See Iowa Ct. R. 35.13(l)(a).

The costs of this action are assessed against the respondent in accordance with Iowa Court Rule 35.25.

LICENSE SUSPENDED.


author: LAVORATO, Chief Justice.

text:
    Michael P. O’HARA, Appellant, v. STATE of Iowa, Iowa Department of General Services, AFSCME Iowa Council 61, and AFSCME Local 35, Appellees.
    No. 00-0211.
    Supreme Court of Iowa.
    April 3, 2002.

      Kevin M. Kirlin of Roehrick, Hulting, Krull & Blumberg, P.C., Des Moines, for appellant.
    Thomas J. Miller, Attorney General and Grant K. Dugdale, Assistant Attorney General, for appellees State of Iowa and Iowa Department of General Services.
    Michael E. Hansen, Des Moines, for ap-pellee AFSCME Iowa Council 61.
    MacDonald Smith of Smith & McElwain, Sioux City, for amicus curiae Iowa Federation of Labor, AFL-CIO.
   LAVORATO, Chief Justice.

Michael O’Hara appeals from a district court ruling dismissing his claims against AFSCME Iowa Council 61, AFSCME Local 35, the State of Iowa, and the Iowa Department of General Services. In this appeal, we must address the effect of 1990 amendments to Iowa Code chapter 20 (Public Employment Relations Act or PERA) on our decision in Norton v. Adair County, 441 N.W.2d 347 (Iowa 1989). Specifically, we must determine whether the Public Employment Relations Board (PERB) has exclusive, original jurisdiction over public employee claims against (1) the union for breach of the duty of fair representation, and (2) the public employer for breach of the collective bargaining agreement. In addition, we must decide whether a public employee has a right to a jury trial on the employee’s claim for breach of the fair representation duty.

We agree with the district court that it lacked subject matter jurisdiction over O’Hara’s claims against the unions and that O’Hara has no right to a jury trial on his claim for breach of the fair representation duty. We therefore affirm on those issues. Because we conclude the district court erred in holding it lacked subject matter jurisdiction over O’Hara’s claim against the State and the Iowa Department of General Services, we reverse and remand for further proceedings on that claim.

I. Scope of Review.

We review the district court’s ruling on a motion to dismiss for correction of errors at law. Iowa RA.pp. P. 6.4; McCormick v. Meyer, 582 N.W.2d 141, 144 (Iowa 1998). “A motion to dismiss admits the well-pleaded facts in the petition and waives any ambiguity or uncertainty.” Tate v. Derifield, 510 N.W.2d 885, 887 (Iowa 1994). The allegations of the petition are therefore taken as true. Stess-man v. Am. Black Hawk Broadcasting Co., 416 N.W.2d 685, 686 (Iowa 1987).

II. Background Facts and Proceedings.

The petition alleges the following relevant facts which we accept as true for the purpose of determining whether the district court’s ruling was correct. The Iowa Department of General Services (IDGS) employed O’Hara from April 1, 1974, through May 15, 1995. At the times material to this action, O’Hara was living in a monogamous homosexual relationship. His co-workers and supervisors knew of his sexual orientation and his relationship.

On April 17, 1995, a fifteen-year-old male student intern working for the IDGS accused O’Hara of making homosexual advances toward him in a restroom at work. O’Hara denied the accusations. The IDGS terminated O’Hara’s employment effective May 15, 1995. At the time the IDGS terminated his employment, O’Hara worked as a Maintenance Worker II, a position within the collective bargaining unit governed by a collective bargaining agreement between the State of Iowa and the American Federation of State, County, and Municipal Employees, Iowa Council 61 (Union).

O’Hara grieved the termination and requested assistance from the Union. Under the collective bargaining agreement, the employer may suspend, discipline, or discharge employees for proper cause. Employees may grieve their discharge through four steps, up to and including binding arbitration, subject to certain time limitations.

The Union represented O’Hara at a third-step grievance hearing before a Labor Relations Specialist of the Iowa Department of Personnel (IDOP). On September 21, 1995, the Labor Relations Specialist issued a decision upholding the termination of O’Hara’s employment. O’Hara asked for the Union’s assistance to appeal the decision to the director of the IDOP and to take the grievance to arbitration pursuant to the collective bargaining agreement. The Union appealed the decision.

Subsequently, a Union representative asked O’Hara to submit to a polygraph examination. The Union refused to take any further action on O’Hara’s grievance until he consented to the examination. O’Hara submitted to the polygraph examination on January 4, 1996, following which the Union declined to process the grievance further. The Union may have advised the IDGS of the examination and the results.

On January 9, 1996, the Union advised O’Hara that it was withdrawing his grievance from arbitration. The Union gave O’Hara five reasons for its action: (1) it was O’Hara’s word against the student intern’s word; (2) O’Hara had no witnesses; (3) the intern had four witnesses, all of whom were O’Hara’s co-workers; (4) the depth of the accusations, because the intern was a minor; and (5) O’Hara failed the polygraph test.

O’Hara appealed the Union’s decision to withdraw his grievance. He told the Union of medical conditions that likely affected the results of the polygraph and offered to authorize the Union to consult with his physicians to confirm the medical conditions. The Union did not consult with the physicians. Rather, in a letter dated March 20, 1996, the Union advised O’Hara it would take no further action on his grievance.

On June 14, 1996, O’Hara filed a prohibited practice complaint against the Union with the PERB. He alleged that the Union engaged in prohibited practices within the meaning of Iowa Code section 20.17(1) (1995). Specifically, O’Hara alleged that

The Union breached its duty of fair representation and acted in an arbitrary and discriminatory manner, and in bad faith, by:
1. Failing to promptly investigate the allegations upon which the employer based the termination of his employment.
2. Failing to obtain a neutral forum for resolution of his grievance.
3. Requiring him to consent to a polygraph examination as a condition of representing him on his grievance.
4. Advising the employer’s representatives that he took a polygraph examination and of the results.
5. Abandoning its role as an advocate in favor of that of a judge of the facts.
6. Declining to represent him on the basis of his sexual orientation.

On July 25,1996, the Union filed several motions with the PERB, including a motion to dismiss and a motion to join the employer/State as a party respondent. An administrative law judge denied both motions. The Union filed an interlocutory appeal, which the PERB granted.

On October 23, 1998, while his prohibited practice complaint was still pending before the PERB, O’Hara filed an action in the district court against the State of Iowa and the IDGS (hereinafter referred to collectively as the State). He alleged that the State had breached the collective bargaining agreement between the State and the Union by terminating his employment without just cause, and discriminating against him on the basis of his sexual orientation.

On April 11, 1999, the State moved to dismiss, contending that the district court lacked subject matter jurisdiction, based on recent amendments to Iowa Code chapter 20. A month later, O’Hara filed a jury demand and a resistance to the motion to dismiss.

On June 10, 1999, O’Hara filed an amended and substituted petition. (This was after the PERB had denied the Union’s motion to join, but before the PERB ruling granting the Union’s interlocutory appeal.) O’Hara joined the Union and AFSCME Local 35 (hereinafter collectively referred to as the Union). He alleged that the Union breached its duty of fair representation in its processing of his grievance, alleging the same six grounds that he alleged in the prohibited practice complaint that he filed with the PERB.

On July 8, 1999, the Union moved to dismiss the amended and substituted petition, alleging the district court lacked subject matter jurisdiction because of the recent amendments to Iowa Code chapter 20. These were the same amendments the State relied on in its motion to dismiss O’Hara’s petition against it.

On December 30, 1999, the district court granted the Union’s motion to dismiss, concluding that the recent amendments to chapter 20 gave the PERB exclusive original jurisdiction over fair representation claims. The court rejected O’Hara’s claim that the amendments denied him the constitutional right to a jury trial.

Shortly thereafter, in response to O’Hara’s motion to amend and enlarge the court’s ruling on the Union’s motion to dismiss, the district court granted the State’s motion to dismiss for lack of subject matter jurisdiction.

O’Hara appealed and the Union cross-appealed.

While this appeal was pending, O’Hara and the State filed a stipulated motion for summary reversal. The State asked us to reverse the district court’s ruling on its motion to dismiss because “upon more extensive and detailed research on appeal, [the State] must concede that its motion to dismiss and the district court’s subsequent ruling based on that motion was in error.” The Union filed a resistance.

We ordered the parties to brief and submit with the appeal the issue of whether the district court has subject matter jurisdiction of the claim against the State for breach of the collective bargaining agreement.

III. Issues.

O’Hara concedes that recent amendments to chapter 20 give the PERB exclusive original jurisdiction over his claim against the Union for breach of its duty of fair representation. However, he argues that the amendments are unconstitutional, because they deny him his right to a jury trial, equal protection, and due process.

In addition, O’Hara contends that chapter 20, as amended, does not deprive the district court of subject matter jurisdiction over his claims against the State for breach of the collective bargaining agreement.

As mentioned, the State concedes the district court has subject matter jurisdiction over O’Hara’s claims against it. O’Hara and the State therefore urge us to reverse the district court’s ruling on the State’s motion to dismiss.

The Union, however, argues that the district court did not err in dismissing O’Hara’s action against all defendants, including the State. The Iowa Federation of Labor filed an amicus curiae brief in support of the Union’s position.

IY. Subject Matter Jurisdiction.

A. Background. In 1989, we held that the district court has concurrent jurisdiction with the PERB over a public employee’s action against the union for alleged violations of the union’s statutory duty of fair representation. Norton, 441 N.W.2d at 354. We explained that federal and state courts have concurrent jurisdiction with the National Labor Relations Board (NLRB) over fair representation actions brought by private employees covered by the federal Labor Management Relations Act (LMRA), after which the PERA is patterned. Id. at 351-52. We determined that “nothing in Iowa Code chapter 20 indicates that the legislature intended to depart from the federal approach with respect to jurisdiction of the courts over fair representation suits brought by public employees.” Id. at 354. Moreover, following the federal concurrent approach would not result in an inconsistent development of substantive law on the issue of fair representation because the district court and the PERB “would presumably look to the same body of law on this issue.” Id. We also determined that the courts were in a better position than the PERB to protect individual rights because the PERB had no remedial power to cause reinstatement of employees with back pay. Id.

We adopted a five-year statute of limitations for actions brought in district court alleging a union’s breach of the fair representation duty. Id. at 355. We adopted a five-year limitation period in part because the closest analogy to an action for breach of duty of fair representation is a claim for legal malpractice. Id. Both actions challenge the adequacy of representation and circumstances requiring specialized knowledge in advocacy skills. Id. We noted, however, the disparity created by adopting a five-year statute of limitations for fair representation suits brought by public employees when compared to the limitation period for the same court action brought by private-sector employees under the LMRA (six months). Id. We invited the legislature to “address the issue and fix a more suitable statute of limitations that strikes a better balance between the employee’s individual interest in prosecuting a grievance and the public’s interest in expeditiously resolving public sector disputes.” Id.

In response to our Norton decision, the legislature amended certain provisions of chapter 20 in 1990. House File 2460 amended section 20.1 by deleting the italicized language and adding the underlined language as indicated:

[T]he powers and duties of the board include ...
2. Adjudicating prohibited practice complaints and fashioning appropriate remedial relief for violations of this chapter including the exercise of exclusive original jurisdiction over all claims alleging the breach of the duty of fair representation imposed by section 20.17.
3. Fashioning appropriate remedial relief for violations of this chapter, including but not limited to the reinstatement of employees with or without back pay and benefits.

1990 Iowa Acts ch. 1037, §§ 1, 2 (codified at Iowa Code § 20.1 (1995)).

In addition, the legislature added the following language to section 20.17(1):

To sustain a claim that a certified employee organization has committed a prohibited practice by breaching its duty of fair representation, a public employee must establish by a preponderance of evidence action or inaction by the organization which was arbitrary, discriminatory, or in bad faith.

1990 Iowa Acts ch. 1037, § 3 (codified at Iowa Code § 20.17(1)).

The legislature did not amend section 20.17(5), which provides:

Terms of any collective bargaining agreement may be enforced by a civil action in the district court of the county in which the agreement was made upon the initiative of either party.

Iowa Code § 20.17(5). Failure of the legislature to amend this provision is crucial to a resolution of the subject-matter-jurisdiction issue as our analysis of the issue will show.

B. Parties’ Contentions. To better understand the dilemma the amendments pose, we set out the various contentions of the parties as well as the amicus.

1. O’Hara. As mentioned, O’Hara concedes the 1990 amendments granted the PERB exclusive original jurisdiction over his claims against the Union for breach of its duty of fair representation. However, he argues, the amendments do not deprive the district court of jurisdiction over his claims against the State for breach of the collective bargaining agreement. He relies on a literal interpretation of the statute as amended.

He begins by noting that section 20.1(2), as amended, gives the PERB exclusive original jurisdiction over claims alleging breach of the duty of fair representation imposed by section 20.17. See Iowa Code §§ 20.1(2) (providing that the PERB has the power and duty to “[a]djudieat[e] prohibited practice complaints including the exercise of exclusive original jurisdiction over all claims alleging the breach of the duty of fair representation imposed by section 20.17”) (emphasis added); 20.17(1) (“The employee organization certified as the bargaining representative ... shall represent all public employees fairly.”). The public employer has no duty of fair representation under section 20.17 or any other statute. Only the union has such a duty.

Moreover, O’Hara points out, section 20.17(1), as amended, establishes the burden of proof that public employees must satisfy to “sustain a claim that a certified employee organization has committed a prohibited practice.... ” Iowa Code § 20.17(1) (emphasis added). The statute does not indicate the type or quantum of proof necessary to sustain a claim against the public employer.

Finally, O’Hara notes, while section 20.1(3), as amended, gives the PERB the power to order reinstatement of employees with or without back pay and benefits for violation of chapter 20, this provision does not explain whether and how the PERB could order reinstatement, back pay, or benefits in a prohibited practice case to which the public employer is not a party.

2. The State. The State points to Norton and section 20.17(5) to support O’Hara’s position. In Norton we relied in part on section 20.17(5), which provides that the “[tjerms of any collective bargaining agreement may be enforced by a civil action in the district court ... upon the initiative of either party.” Iowa Code § 20.17(5). We indicated that this “broad enforcement provision ... clearly denotes ... legislative intent” to follow the federal approach to fair representation suits. Norton, 441 N.W.2d at 354. We concluded that employees, as third-party beneficiaries of collective bargaining agreements, have standing to bring an action in district court pursuant to section 20.17(5) for breach of collective bargaining agreements.

The State argues as follows. The amendments did not alter section 20.17(5), but rather only addressed fair representation claims against the union. The failure to amend section 20.17(5) to prohibit employee suits in the district court for breach of the collective bargaining agreement means an employee can still bring an action against the employer in the district court for breach of such agreements. However, because of the amendments, the employee can only bring an action against the union for breach of the union’s duty of fair representation before the PERB. The legislature “created a bifurcated approach to resolution of these related claims,” granting to the PERB exclusive original jurisdiction over claims for breach of the union’s duty of fair representation, and the district court jurisdiction over claims for breach of collective bargaining agreements.

3. The Union. In contrast to O’Hara’s and the State’s arguments, the Union contends the plain meaning and intent of the amendments indicate the legislature granted the PERB exclusive original jurisdiction over “all claims arising out of’ an alleged breach of the duty of fair representation. According to the Union, the legislature did not include an exception that “an employer’s contract violation arising from a fair representation violation shall be before the court,” and this court cannot amend the statute to include such an exception.

Moreover, the Union argues, the PERB cannot reinstate an employee, as section 20.1(3) directs, unless it has exclusive original jurisdiction over the union, the employee, and the public employer. The public employer is therefore a necessary party to the fair representation proceedings.

To further bolster its position, the Union argues that fair representation claims consist of two elements: (1) the union’s violation of the duty of fair representation, and (2) the employer’s breach of the collective bargaining agreement. The Union insists that to establish a breach of the fair representation duty, an employee must prove both elements.

In this case, O’Hara filed his action against the Union with the PERB within the ninety-day statute of limitations period in Iowa Code section 20.11(1). He failed to file his suit with the PERB against the State within that period of time. For this reason, the Union asserts, O’Hara’s action against the State is time-barred and he should not be permitted to substitute the jurisdiction of the district court for that of the PERB.

As for the State’s argument relating to section 20.17(5), the Union asserts that this provision was originally passed for the sole purpose of allowing the union and the public employer access to the courts for enforcement of arbitration awards involving violation of the collective bargaining agreement because the PERB does not have jurisdiction to take such action. The Union therefore concludes that the parties to the union contract for purposes of section 20.17(5) are the union and the employer, not the employee. This conclusion, of course, is in direct conflict with our Norton holding that the employee is a third-party beneficiary of the union contract, a holding that we reaffirm here. Norton, 441 N.W.2d at 354.

4. The amicus. The amicus contends the term “all claims” in section 20.1(2) includes claims by public employees against the employer for breach of the collective bargaining agreement. In support of its contention, the amicus relies on the legal doctrine governing “hybrid” cases. In such cases, the amicus argues, an employee is required to allege and prove the union breached its duty of fair representation as a prerequisite to recovering for a claimed breach of the collective bargaining agreement against the employer. Therefore, all “hybrid” claims against the employer necessarily involve claims alleging the union’s breach of its fair representation duty. The amicus explains that

because the legislature presumably knew this basic law regarding “hybrid” duty of fair representation cases, it is most reasonable to conclude that it understood and intended the term “all claims” as used in section 20.1(2) to include claims against employers as well as unions.

The amicus explains further that in “hybrid” cases where both the union and the employer are defendants, either both or neither must be liable. The amicus points out, however, that in Norton the court upheld the district court’s ruling that the employer committed no breach of contract, but also upheld a jury verdict against the union based on its breach of the fair representation duty. (Actually, we upheld the district court’s summary judgment ruling in favor of the employer-county on the grounds that Norton had only an at-will employment with the county and therefore could be dismissed at any time for any reason. Norton, 441 N.W.2d at 361). Therefore, the amicus concludes, “the same set of facts produced contradictory results and disparate treatment of the employer and the union.” The amicus argues that the legislature enacted the amendments to correct this anomalous result.

In addition, the amicus points to language in section 20.1(3), which gives the PERB authority to fashion an appropriate remedy “for violations of this chapter.” This language, the amicus argues, is evidence that the legislature intended that the PERB be the sole body to determine all claims involving alleged violations of the fair representation duty, including claims against the employer in “hybrid” cases. This is so, the amicus explains, because only the employer, and not the union, can be ordered to reinstate with back pay an employee damaged through a breach of the collective bargaining agreement.

The amicus makes several other arguments. First, its reading of the statute results in the employee receiving what the employee would have received if grievance procedures had not broken down. See Iowa Code § 20.1(4) (PERB serves as arbitrator in resolving grievance disputes). Second, its reading is also consistent with-the damages principle of contract law that a party should be put in the same position it would have been in but for the breach. Last, its reading establishes a uniform statute of limitations requiring prompt assertion of “hybrid” claims, which promotes greater certainty and stability for the employer’s governmental operations. The amicus notes that O’Hara’s reading of the statute creates the problem of split jurisdiction noted by the court in Norton, where the court awards relief against the employer and leaves it to the PERB to fashion relief against the union. See Norton, 441 N.W.2d at 354.

C. Analysis. The arguments the Union and the amicus make may convince the legislature to amend chapter 20 again at some future date, but they cannot overcome our duty to interpret the amendments as written. For reasons that follow, we agree with O’Hara and the State that the amendments do not deprive the district court of subject matter jurisdiction over an employee’s claim for breach of a collective bargaining agreement against the employer,

Section 20.1(2) gives the PERB exclusive original jurisdiction over all claims alleging a breach of the fair representation duty imposed by section 20.17. This duty is codified in section 20.17(1), which provides that the “employee organization certified as the bargaining representative [the union] ... shall represent all public employees fairly.” Iowa Code § 20.17(1) (emphasis added). By the plain language of the statute, the duty applies only to the union.

To meet the burden of proving that “a certified employee organization [the union] has committed a prohibited practice by breaching its duty of fair representation,” the public employee “must establish by a preponderance of the evidence action or inaction by the organization which was arbitrary, discriminatory, or in bad faith.” Iowa Code § 20.17(1) (emphasis added). Again, by the plain language of the statute, the fair representation duty applies only to the union.

The foregoing statutory language clearly and plainly provides that the PERB has exclusive original jurisdiction over claims of breach of the fair representation duty. No one disputes this.

The amendments are silent, however, when it comes to a public employee’s claims against a public employer for breach of a collective bargaining agreement. The amendments did not add language to address claims for breach of a collective bargaining agreement. Nowhere in chapter 20 is there any mention about jurisdiction over such claims and the proof required to establish those claims. Moreover, the amendments made no change to section 20.17(5), which permits “either party” to a collective bargaining agreement to enforce the terms of such agreements in a civil action in the district court. And, as mentioned, we held in Norton that the language of section 20.17(5) was “broad enough to include ... a third-party beneficiary [such as] the employee.” Norton, 441 N.W.2d at 354.

Therefore, a reading of the plain language of chapter 20, as amended, leads to the conclusion that (1) the PERB has exclusive original jurisdiction over a public employee’s claim for breach of the fair representation duty against the union, and (2) a public employee may raise a claim for breach of a collective bargaining agreement against the public employer in the district court.

The district court therefore correctly held that it lacked subject matter jurisdiction over O’Hara’s claim for breach of the Union’s duty of fair representation. However, the court erred in holding that it lacked such jurisdiction over O’Hara’s claim against the State for breach of the collective bargaining agreement.

D. Response. Notwithstanding the plain meaning of chapter 20, as amended, we think we should address some of the Union’s and amicus’s arguments.

To begin, the Union’s interpretation of chapter 20, as amended, is flawed in several respects. The Union throughout its brief continually refers to “all cases arising out of a fair representation violation.” Chapter 20, as amended, contains no such “arising out of’ language. Additionally, the Union contends the amendments give the PERB “exclusive jurisdiction” to fashion an appropriate remedy, including reinstatement of the employee. Chapter 20, as amended, contains no language to this effect.

Regarding the amicus’s discussion about “hybrid claims,” we agree that a “hybrid” claim and a claim for a breach of a fair representation duty are related. However, we do not agree that they are interchangeable. The United States Supreme Court has made this clear:

[A hybrid] suit, as a formal matter, comprises two causes of action. The suit against the employer rests on § 301, since the employee is alleging breach of the collective-bargaining agreement. The suit against the union is one for breach of the union’s duty of fair representation, which is implied under the scheme of the National Labor Relations Act. “Yet the two claims are inextricably interdependent. ‘To prevail against either the company or the Union, ... [employee-plaintiffs] must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating a breach of duty by the Union. ’ ” The employee may, if he chooses, sue one defendant and not the other; but the case he must prove is the same whether he sues one, the other, or both. The suit is thus not a straightforward breach of contract suit under § 301 .... but a hybrid § 301/fair representation claim, amounting to “a direct challenge to ‘the private settlement of disputes under [the collective-bargaining agreement].’ ”

DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164-65, 103 S.Ct. 2281, 2290-91, 76 L.Ed.2d 476, 489 (1983) (citations and footnote omitted) (emphasis added); accord Breininger v. Sheet Metal Workers Int’l Ass’n Local Union No. 6, 493 U.S. 67, 80, 110 S.Ct. 424, 432-33, 107 L.Ed.2d 388, 404-05 (1989).

Our PERA is patterned after the federal LMRA. Norton, 441 N.W.2d at 351. So in construing the PERA, we often look to the construction of analogous provisions of the LMRA. Id. In the federal context, the NLRB has exclusive jurisdiction over unfair labor charges. Id. However, section 301 of the LMRA, 29 U.S.C. § 185, permits a court suit for breach of a collective bargaining agreement regardless of whether the particular breach is also an unfair labor practice within the jurisdiction of the NLRB. Id. at 352 (citing Vaca v. Sipes, 386 U.S. 171, 179-80, 87 S.Ct. 903, 911, 17 L.Ed.2d 842, 851 (1967)).

We agree with the Union and the amicus that the plain language of chapter 20, as amended, leads to a situation similar to that addressed in Norton. A public employee must raise claims against the union for breach of the fair representation duty before the PERB, while at the same time such an employee may raise a claim for breach of a collective bargaining agreement in the district court. This could lead to several practical problems. The employee could have two separate actions before two separate tribunals, both addressing the same set of facts.

Moreover, chapter 20, as amended, permits the PERB to reinstate the employee with or without back pay. Unless the employee chooses to join the employer in its action against the union before the PERB, the agency would not have jurisdiction to enforce this remedy against the employer.

In fact, by granting the PERB exclusive original jurisdiction over claims against the union for breach of its duty of fair representation, the legislature has left public employees with uncertain remedies against the union for breach of such duty. Under section 20.1, the PERB has authority to “fashion[ ] appropriate remedial relief ... including but not limited to the reinstatement of employees with or without back pay and benefits.” Iowa Code § 20.1(3). This case does not answer the question of exactly what remedies the PERB can offer public employees under the language “including but not limited to.” Section 20.11 is the only provision that expressly mentions remedies the PERB could fashion. Those include (1) “entering] into a consent order with [the union] to discontinue the practice,” or (2) “petition[ing] the district court for injunctive relief....” Iowa Code § 20.11(4).

Finally, a public employee has ninety days from the date of the alleged violation to raise a claim for breach of a fair representation duty against the union with the PERB. See Iowa Code § 20.11(1). The same employee, however, would have ten years to raise a claim for breach of a collective bargaining agreement in the district court. See Iowa Code § 614.1(5) (ten-year statute of limitations period for written contracts). A difference in the applicable statute of limitations caused by the choice of forum led this court in Norton to urge the legislature to change the five-year statute of limitations thereby “striking] a better balance between the employee’s individual interest in prosecuting a grievance and the public’s interest in expeditiously resolving public sector disputes.” Norton, 441 N.W.2d at 355.

To solve the dilemma posed by the amendments, we must read into chapter 20, as amended, language that simply is not there. This, of course, is not within our province. We are bound by what the legislature said, not by what it should or might have said. Krull v. Thermogas Co., 522 N.W.2d 607, 612 (Iowa 1994). Moreover, we “may not add words or change terms under the guise of judicial construction.” Henriksen v. Younglove Constr., 540 N.W.2d 254, 258 (Iowa 1995).

V. Constitutional Issues.

A. Scope of review and preservation of error. We review constitutional claims de novo. Channon v. United Parcel Serv. Inc., 629 N.W.2d 835, 852 (Iowa 2001). A party challenging a statute carries a heavy burden of rebutting the presumption of constitutionality with which statutes are cloaked. Id. The party must negate every reasonable basis upon which the statute can be upheld as constitutional. Id.

O’Hara raised the following constitutional issues in his resistance to the Union’s motion to strike and/or dismiss: right to jury trial, equal protection, and due process. The district court’s ruling on the motion addressed only the right-to-jury-trial issue.

A motion under Iowa Rule of Civil Procedure 1.904(2) (formerly Iowa Rule of Civil Procedure 179(b)) is essential to preserve error when a district court fails to resolve an issue, claim, defense, or legal theory properly submitted to it for adjudication. State Farm Mut. Auto. Ins. Co. v. Pflibsen, 350 N.W.2d 202, 206 (Iowa 1984); see Iowa R. Civ. P. 1.904(2). O’Hara filed a motion to amend and enlarge the court’s ruling, but did not ask the court to address the equal protection and due process issues. He therefore did not properly preserve these constitutional issues for our review. See State v. Mulvany, 600 N.W.2d 291, 293 (Iowa 1999) (“[W]e require error preservation even on constitutional issues.”); Pflibsen, 350 N.W.2d. at 207 (“Issues must ordinarily be presented to and passed upon by the trial court before they may be raised and decided on appeal.”).

B. Right to jury trial. The Seventh Amendment of the Federal Constitution preserves the right to trial by jury. U.S. Const, amend. VII. This amendment, however, does not apply to the states. 47 Am.Jur.2d Jury § 5, at 716 (1995). Therefore, no federal constitutional right to a jury trial exists in state court. Channon, 629 N.W.2d at 852.

Article one, section nine of the Iowa Constitution provides that “the right of trial by jury shall remain inviolate.” Iowa Const, art. I, § 9. There is no right to trial by jury in special proceedings under the Iowa Constitution. Smith v. ADM Feed Corp., 456 N.W.2d 378, 382 (Iowa 1990). Iowa Code section 611.2 classifies actions in the district court as of two types: civil and special. Iowa Code § 611.2. Judicial review of an agency action is a special action as recognized in section 611.2. Iowa West Racing Ass’n v. Iowa Racing & Gaming Comm’n, 578 N.W.2d 663, 664 (Iowa 1998). There is therefore no right to trial by jury where judicial review of an agency action is involved.

Iowa Code section 20.11 governs the procedure for “[p]roceedings against a party alleging a violation of section 20.10” — the prohibited practices provision. Iowa Code § 20.11(1). The proceeding is commenced by a party filing a complaint with the PERB within ninety days of the alleged violation. Id. The PERB is an agency within the meaning of Iowa Code chapter 17A — the Iowa Administrative Procedure Act. Maquoketa Valley Cmty. Sch. Disk v. Maquoketa Valley Ed. Ass’n, 279 N.W.2d 510, 512 (Iowa 1979). An administrative law judge hears the complaint and renders a decision, which may be appealed to the PERB. Iowa Code § 20.11(2). The PERB may hear the appeal de novo or upon the record made before the administrative law judge. Id. Finally, Iowa Code section 20.11(5) provides that the PERB’s “review of proposed decisions and the rehearing or judicial review of final decisions is governed by the provisions of chapter 17A.” Iowa Code § 20.11(5) (emphasis added).

Because section 20.11(5) provides for judicial review of the PERB’s decision, such actions are special proceedings within the meaning of section 611.2. Therefore, there is no right to a jury trial in such proceedings. The district court was correct in so holding.

VI. Disposition.

Because we conclude the district court correctly held that it lacked subject matter jurisdiction over O’Hara’s claim against the Union for breach of its duty of fair representation, we affirm on this issue.

The district court, however, erred in holding that it lacked subject matter jurisdiction over O’Hara’s claim against the State for breach of the collective bargaining agreement. We therefore reverse on this issue and remand for further proceedings against the State.

Finally, we conclude that O’Hara has no right to a jury trial on his claim against the Union for breach of its duty of fair representation. We therefore affirm on this issue.

AFFIRMED IN PART, REVERSED IN PART, AND REMADED.