IN THE SUPREME COURT OF IOWA

No.: 18-0047

Polk County No.: CVCV0S4944

ISAAC ORTIZ, Petitioner-Appellant,

v.

LOYD ROLING CONSTRUCTION and GRINNELL MUTUAL REINSURANCE,

Respondents-Appellees.

APPEAL FROM THE IOWA DISTRICT COURT IN AND FOR POLK COUNTY

THE HON. JEANIE VAUDT, JUDGE

RESPONDENTS'-APPELLEES' BRIEF AND REQUEST FOR ORAL ARGUMENT

STEPHEN W. SPENCER CHRISTOPHER S. SPENCER

PEDDICORD WHARTON, LLP 6800 LAKE DRIVE, SUITE 125 WEST DES MOINES, IA 50266

Stevesr1tJ peddicord.!aw Chrisrmpeddicord.law

ATTORNEYS FOR RESPONDENTS-APPELLEES

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TABLE OF CONTENTS

Page

Table of Contents ................................................................................................... 2

Table of Auiliorities .............................................................................................. 3

Statement of Issues Presented for Review ...................................................... 4

Routing Statement ............................................................................................... 5

Statement ofilie Case .................................................... , ....................................... 5

S1:a.tement of Facts ......................................................................................................... 6

I. THE DISTRICT COURT CORRECTLY DISMISSED THE PETITION FOR JUDICIAL REVIEW AS THE CLAIMANT FAILED TO TIMELY SERVE THE PETITION IN THE MANNER REQUIRED BY IOWA CODE§ 17 A.19(2) .............. 8

Conclusion ..................................................................................................... 23

Request for Oral Argument ........................................................................... 23

Certificate of Complian.ce ............................................................................. 24

Certificate of Servi.ce ...................................................................................... 24

Certificate of Filing ....................................................................................... 25

Attorney's Cost Certificate ............................................................................ 25

2

TABLE OF AUTHORITIES

Page Cases:

Brown v. John Deere Waterloo Tractor Works, 423 N.W.2d 193 (Iowa 1988) ............................................................................ 11, 12, 21

Buchholtz v. Iowa Dep't of Pub. Instruction, 315 N.W.2d 789 (Iowa 1982) .......................................................................................... 13

Colwell v. All-American, Inc., 308 N.W.2d 92 (Iowa 1981) ........................ 13 Cooperv. Kirkwood Community College, 12 N.W.2d 160 (Iowa2010) ..... 21 Dawson v. Iowa Merit Employment Com 'n, 303 N. W.2d 158

(Iowa 1981) ..................................................................................... 5, 10 Green v. Iowa Dep 't of Job Serv., 299 N. W. 2d 651 (Iowa 1980) .............. 13 Hedlund v. State, 875 N.W.2d 720 (Iowa 2016) ............................................ 8 Iowa Public Service Company v. Iowa State Commerce Com 'n,

263 N.W.2d 766 (Iowa 1978) .............................................................. 8 Monson v. Iowa Civil Rights Commission, 461 N.W.2d 230 (Iowa 1991) .. 19 Neumeister v. City Development Board, 291 N.W.2d ll(Iowa 1980) .... 5, 10 R.K Richards v. Iowa Department of Revenue, 362 N.W.2d 486

(Iowa 1985) ........................................................................................ 10 Recordv. Iowa Merit Employment Department, 285 N.W.2d 169

(Iowa 1979) ............................................................................... 5, 10, 21 Schaefer v. Putnam, 841 N.W.2d 68 (Iowa 2013) ......................................... 8

Statutes:

Iowa Code § 1 7 A.12( 1) ................................................................................. 1 7 Iowa Code § 17 A.19 ............................................................ 8, 9, 11, 14, 15, 21 Iowa Code§ 17A.19(2) ........... 5, 6, 8, 9, 10, 11, 12, 13, 16, 18, 19, 20, 21, 22 Iowa Code § 602.4201 .................................................................................. 14 Iowa Administrative Code§ 876-4.7 ...................................................... 16, 17 Iowa Administrative Code § 876-4.12 .......................................................... 17 Iowa Administrative Code§ 876-4.13 .......................................................... 17 Iowa Administrative Code § 876-4.35 .......................................................... 18 Iowa R. Civ. P. 1.442(2) ................................................................................ 18 Iowa R. Civ. P. 1.1601 .................................................................................. 15 Iowa R. Civ. P. 16.314 .................................................................................. 15 Iowa R. Civ. P. 16.315 .................................................................................. 15

3

STATEMENT OF ISSUES PRESENTED FOR REVIEW

I. THE DISTRICT COURT CORRECTLY DISMISSED THE PETITION FOR JUDICIAL REVIEW AS THE CLAIMANT FAILED TO TIMELY SERVE THE PETITION IN THE MANNER REQUIRED BY IOWA CODE§ 17A.19(2).

Cases:

Brown v. John Deere Waterloo Tractor Works, 423 N.W.2d 193 (Iowa 1988) Buchholtz v. Iowa Dep 't of Pub. Instruction, 315 N. W.2d 789 (Iowa 1982) Colwell v. All-American, Inc., 308 N.W.2d 92 (Iowa 1981) Cooper v. Kirkwood Community College, 12 N.W.2d 160 (Iowa 2010) Dawson v. Iowa Merit Employment Com 'n, 303 N.W.2d 158 (Iowa 1981) Green v. Iowa Dep 't of Job Serv., 299 N. W. 2d 651 (Iowa 1980) Hedlundv. State, 875 N.W.2d 720 (Iowa 2016) Iowa Public Service Company v. Iowa State Commerce Com 'n,

263 N.W.2d 766 (Iowa 1978) Monson v. Iowa Civil Rights Commission, 461 N.W.2d 230 (Iowa 1991) Neumeister v. City Development Board, 291 N.W.2d 11 (Iowa 1980) R.K Richards v. Iowa Department of Revenue, 362 N. W.2d 486 (Iowa 1985) Record v. Iowa Merit Employment Department, 285 N.W.2d 169

(Iowa 1979) Schaefer v. Putnam, 841 N.W.2d 68 (Iowa 2013)

Statutes:

Iowa Code§ 17A.12(1) Iowa Code§ 17A.19 Iowa Code§ 17A.19(2) Iowa Code § 602.4201 Iowa Administrative Code § 876-4. 7 Iowa Administrative Code § 876-4.12 Iowa Administrative Code§ 876-4.13 Iowa Administrative Code § 876-4.35 Iowa R. Civ. P. 1.442(2) Iowa R. Civ. P. 1.1601 IowaR. Civ. P. 16.314 Iowa R. Civ. P. 16.31 S

4

ROUTING STATEMENT

Pursuant to Iowa R. App. P. 6.1101(1), transfer of this case to the

Court of Appeals for decision would be appropriate. This case involves the

dismissal of a Petition for Judicial Review for failure to make the required

service under Iowa Code § 17 A.19(2) and a lack of jurisdiction. Resolution

of the issues in this matter involves the application of prior Iowa Supreme

Court precedent interpreting Iowa Code § 17 A.19(2) as set forth in Record v.

Iowa Merit Employment Department, 285 N.W.2d 169 Qowa 1979);

Neumeister v. City Development Board, 291 N. W.2d 11 (Iowa 1980);

Dawson v. Iowa Merit Employment Com'n, 303 N.W.2d 158 (Iowa 1981).

Contrary to the assertions made by the Claimant, there are no broader

implications for EDMS or conflicts among the Iowa Supreme Court

precedent, and transfer of this case would be appropriate.

STATEMENT OF THE CASE

This case involves an administrative appeal of a decision of the Iowa

Workers' Compensation Commissioner. (September 19, 2017 Petition for

Judicial Review, App. pp. 24 - 26). The Claimant filed a Petition for

Judicial Review from a decision of the Workers' Compensation

Commissioner with the Polk County District Court on September 19, 2017.

(September 19, 2017 Petition for Judicial Review; App. pp. 24 - 26). The

5

counsel for the Claimant filed an Affidavit of Service indicating that the

Petition was sent by email to Stephen Spencer, the attorney for the

Respondents. (September 20, 2017 Affidavit of Service). No attempt was

made to mail a perso~ly served Petition for Judicial Review until it was

mailed on October 3, 2017. (Exhibit B to Defendants' Motion to Dismiss;

App. p. 23). On October 9, 2017, the Respondents filed a Motion to Dismiss

the Petition for Judicial Review due to a lack of jurisdiction on the part of

the Polk County District Court and the failure to make proper service.

(October 9, 2017 Motion to Dismiss; App. pp. 27 - 33). The Polk County

District Court granted the dismissal of the Petition for Judicial Review

finding that the Claimant failed to make a proper service as required by Iowa

Code § 17 A.19(2), and therefore the Polk County District Court lacked

jurisdiction over the present matter. (December 30, 2017 Order Granting

Respondents' Motion to Dismiss Judicial Review, App. pp. 5 - 13). The

Claimant filed a Notice of Appeal to the Iowa Supreme Court on January 8,

2018. (January 8, 2018 Notice of Appeal, App. pp. 45 - 46).

STATEMENT OF FACTS

The Iowa Workers' Compensation Commissioner issued a decision on

September 1, 201 7, and the Claimant filed a Petition for Judicial Review of

this adrninistrati ve decision on September 19, 201 7. (September 19, 2017

6

Petition for Judicial Review, App. pp. 24 - 26). Shortly thereafter, on

September 20, 2017, counsel for the Claimant filed an Affidavit of Service

indicating that the Petition was sent by email to Stephen Spencer, attorney

for the Respondents. (September 20, 2017 Affidavit of Service). The

Judicial Branch filing system generated an EDMS Notice of the filing of the

Petition for Judicial Review within ten (10) days of the filing of the Petition.

Counsel for the Respondents sent an email communication to counsel

for the Claimant on September 2s·, 2017 inquiring as to whether the

Claimant was sending a copy of the Petition regular mail. (Exhibit A to

Respondent's Motion to Dismiss Petition for Judicial Review, App. p. 22).

Prior to that date, the Claimant had not undertaken any further acts to

complete service of the Petition for Judicial Review. On September 29,

2017, counsel for the Claimant responded indicating that the Petition would

be sent by mail. (Exhibit A to Respondent's Motion to Dismiss Petition for

Judicial Review, App. p. 22). However, the Petition for Judicial Review was

not sent out by regular mail on September 29, 2017, and was postmarked

October 3, 2017. (Exhibit B to Respondent's Motion to Dismiss Petition for

Judicial Review, App. p. 23).

7

BRIEF POINT I

THE DISTRICT COURT CORRECTLY DISMISSED THE PETITION FOR JUDICIAL REVIEW AS ·THE CLAIMANT FAILED TO TIMELY SERVE THE PETITION IN THE MANNER REQUIRED BY IOWA CODE § 17 A.19(2)

Preservation Of Error: Error was preserved by the Claimant on this

particular issue by filing a Resistance to Respondent's Motion to Dismiss the

Petition for Judicial Review and sustaining an adverse ruling by the Polk

County District Court in the Order Granting Respondent's Motion to

Dismiss Petition for Judicial Review. (December 30, 2017 Order Granting

Respondent's Motion to Dismiss Judicial Review, App. pp. 5-13).

Standard Of Review: The standard of review on a District Court's ruling

on a motion to dismiss is for correction of errors at law. Hedlund v. State,

875 N.W.2d 720, 724 (Iowa 2016). Issues regarding subject matter

jurisdiction are reviewed for correction of errors of law, as would be

questions of statutory construction. Schaefer v. Putnam, 841 N.W.2d 68, 73

(Iowa 2013). Therefore, the Respondents would agree that the appropriate

standard of review is for correction of errors of law.

ARGUMENT

The right to appeal from a final Agency action is purely statutory, and

that right is governed by Iowa Code § 17A.19. Iowa Public Service

8

Company v. Iowa State Commerce Com'n, 263 N.W.2d 766, 768 (Iowa

1978). Iowa Code § 17 A.19 specifically provides that unless another statute

refers to the Iowa Administrative Procedure Act by name, the provisions of

that chapter are the exclusive means by which a party may seek review of

Agency action. Iowa Code§ 17A.19.

Iowa Code § 17 A.19(2) addresses how a petition for judicial review

must be served upon parties to the proceeding. The Iowa Administrative

Procedure Act requires that a petition for judicial review be served within

ten (10) days after the filing of the Petition for Judicial Review. Iowa Code

§ 17 A.19(2). Further, it is required that "the petitioner shall serve by means

provided in the Iowa rules of civil procedure for the personal service of an

Original Notice, or shall mail copies of the Petition to all parties named in

the Petition ... " Iowa Code§ 17A.19(2). The service requirement is made

jurisdictional for the District Court by statute. Iowa Code § 17 A.19(2).

The Iowa Supreme Court has already examined and construed Iowa

Administrative Procedure Act in terms of dealing with methods of service

beyond those identified in Iowa Code § 17 A.19(2). The Iowa Supreme

Court looked at a prior version of Iowa Code § 17 A.19(2) which at the time

only permitted service by mail, and held that this would not be read as to

include personal service as an acceptable means of service of a petition for

9

judicial review. Neumeister v. City Development Board, 291 N.W.2d 11, 14

(Iowa 1980); Dawson v. Iowa Merit Employment Commission, 303 N.W.2d

158, 160 (Iowa 1981). The Iowa Supreme Court interpreted Iowa Code§

17 A.19(2) and declined to read into the act other methods of service beyond

those provided for in the language used in the statute, reasoning that this

would make the chosen language of the statute meaningless. Neumeister v.

City Development Board, 291 N.W.2d at 14. The Iowa Supreme Court has

also held that when a party is entitled to service of a petition for judicial

review, and that petition is not served upon that party, that failure to

complete service is a jurisdictional flaw. Record v. Iowa Merit Employment

Department, 285 N.W.2d 169, 173 (Iowa 1979). In response to these

holdings, the Iowa Supreme Court later noted that the Legislature saw fit to

modify prior Iowa Code § 17 A.19(2) to permit additional types of service in

light of the Iowa Supreme Court holdings. R.K Richards v. Iowa

Department of Revenue, 362 N.W.2d 486, 48 {Iowa 1985).

The Claimant does not cite to the foregoing cases, or even attempt to

distinguish these holdings from the present proceeding. However, the

argument the Claimant is making is essentially the same as was rejected by

the Iowa Supreme Court on three prior occasions. The Claimant is once

10

again inviting the Court to re-write Iowa Code § 17A.19(2) to permit

additional methods of service of a petition for judicial review.

To support the proposition that the service requirements of Iowa Code

§ 17 A.19(2) should be ignored, the Claimant cites to Iowa Supreme Court

precedent dealing with substantial compliance with Iowa Code § 17A.19.

Brown v. John Deere Waterloo Tractor Works, 423 N.W.2d 193 {Iowa

1988). The Claimant cannot show that he either personally served or mailed

the Petition for Judicial Review within ten (10) days of its filing. The

Petition for Judicial Review was filed on September 19, 2017, and this

would mean that the required service would need to have been completed by

September 29, 2017. The Claimant did not attempt to mail the Petition for

Judicial Review as would be required by Iowa Code § 17 A.19(2) until it was

placed in the mail on October 3, 2017 outside the required ten (10) days.

These facts are not in dispute. Thus, the Claimant now argues that providing

a petition for judicial review by email, or through the EDMS system should

constitute adequate service of a petition for judicial review.

The Claimant argues that substantial compliance standard would

merely require a party to sufficiently follow a statute as to carry out the

intent of the statute. Brown v. John Deere Waterloo Tractor Works, 423

N.W.2d at 194. In the Brown case, a petitioner mailed a copy of a petition

11

for judicial review to the respondent's attorney of record prior to the filing of

the Petition. Id. at 193. The issue in that case was whether the Petition

should be dismissed as it was not served within ten (10) days after the

petition was filed, but was served before the petition was filed. Id In that

circumstance, the Iowa Supreme Court determined that the petitioner had

substantially complied by providing the appropriate service prior to the

expiration of the ten (10) day service deadline. Id. at 193 - 194. However,

even the case cited to by the Claimant to support his proposition that

substantial compliance would allow him to serve a petition by alternative

means clearly recognizes the prior Iowa Supreme Court precedent cited to

by the District Court and the Respondents that alternative means of service

are not adequate and are a jurisdictional defect. Id. at 194.

The District Court in this case is not creating some new sweeping

rule, but is recognizing the longstanding Iowa Supreme Court precedent

regarding service of a Petition for Judicial Review, and the specific

requirements of Iowa Code § 17 A.19(2). Even the Brown opinion cited to

by the Claimant recognizes this longstanding precedent. It is the Claimant

who has chosen to ignore these holdings. It is the Claimant in this matter

that wants to now argue that the Iowa Code should be rewritten in such a

way as to make the service provisions meaningless. Indeed, such a notion

12

would make all provisions for the service of any original notice and petition

meaningless. No specific form of service could ever be required as all that

should be deemed necessary is that a party get the information in front of the

person to whom service must be made. The Iowa Supreme Court has rightly

rejected this notion previous, and the District Court has done so in this case.

A review of substantial compliance cases noted by the District Court

under Iowa Code § 17 A.19(2) clearly shows that the defects for which

substantial compliance is appli~d are technical in nature, but that in each of

those circumstances it appears that the actual methods of service required by

the statute were complied with. Id. at 196 (finding that the act of mailing the

petition to the respondent two days before it was filed substantially complied

with the service requirements); Buchholtz v. Iowa Dep 't of Pub. Instruction,

315 N.W.2d 789, 792-93 (Iowa 1982) (holding that there was substantial

compliance even though the petition misidentified the name of the board as

department and notice was actually received by the board); Colwell v. Al/­

American, Inc., 308 N.W.2d 92, 94-95 (Iowa 1981) (finding act of mailing

copies of the petition to a party's attorney of record substantially complie<;i

with the service provisions because it could reasonably be assumed that the

party wished all communications in the proceeding to be sent to its

attorney); Green v. Iowa Dep't of Job Serv., 299 N.W. 2d 651, 654 (Iowa

13

1980) (holding failure to designate the underlying agency as a respondent in

the petition was insufficient to defeat jurisdiction when the agency was

identified in attached exhibits and timely mailed notice provided).

The Claimant argues in his brief that it is factually incorrect that he

did not attempt service prior to the expiration of the ten (10) day deadline.

What is absolutely true is that the Claimant did not undertake any attempt to

personally serve or mail the Petition for Judicial Review prior to the

expiration of the ten (10) day service deadline. What the Claimant did do is

send a copy of the Petition for Judicial Review by email, and relied upon the

notification systems of the EDMS system to notify counsel for the

Respondent that the Petition for Judicial Review had been filed.

First, the Claimant argues that the EDMS notification was adequate to

meet his burden for service of a Petition for Judicial Review. It is significant

that the Iowa Administrative Procedure Act makes it explicitly clear that

unless a statute refers to the Iowa Administrative Procedure Act by name,

that those statutory provisions contained in Iowa Code § 17A.19 are the

exclusive means by which review of an administrative action may be taken.

Iowa Code§ 17A.19. The Iowa Supreme Court is empowered by statute to

promulgate rules governing pleading, practice, evidence and procedure by

provision of the Iowa Code. Iowa Code§ 602.4201. However, nowhere in

14

the Iowa Code authorizing the Iowa Supreme Court to promulgate the Iowa

Rules of Civil Procedure does it specifically refer to the Iowa Administrative

Procedure Act or Chapter 17 A of the Iowa Code by name. Id Therefore,

the Iowa Rules of Civil Procedure cannot supersede the requirements of

Iowa Code § 17 A.19. This fact is recognized in Iowa R. Civ. P. 1.1601 that

makes absolutely clear that the Iowa Rules of Civil Procedure only will be

applied to a judicial review proceeding to the extent they are not inconsistent

with Iowa Code Chapter 17 A, the Iowa Administrative Procedure Act. Iowa

R. Civ. P. 1.1601.

Even examining the service provisions contained in the Iowa Court

rules dealing with the EDMS system, it is not indicated that Iowa R. Civ. P.

16.315 is superseding the Iowa Administrative Procedure Act or the

requirements of Iowa Code§ 17A.19, and by its very terms only applies to

documents and service after the original notice. Iowa R. Civ. P. 16.315. For

an original notice and petition Iowa R. Civ. P. 16.314 refers back to the Iowa

Rules of Civil Procedure predating the EDMS system for methods of

service. Iowa R. Civ. P. 16.314. The Claimant's discussion of the EDMS

system is wholly irrelevant, as the EDMS service provisions do not apply to

an original notice and petition, and the Iowa Rules of Civil Procedure make

clear that they do not supersede or modify the requirements of Iowa Code §

15

17A.19(2) in terms of the service of a petition for judicial review. EDMS is

a means of service, but only for documents that would be filed in this case

after the Petition for Judicial Review. The Claimant seems to be arguing for

an expansive reading of the Iowa Rules of Civil Procedure beyond the

explicitly contrary language in the Iowa Rules of Civil Procedure

themselves, and in contravention of Iowa Code § 17 A.19(2).

This then turns to the Claimant's final contention regarding

substantial compliance with service in that email should be considered

proper service of his Petition for Judicial Review. The Claimant argues that

it is important that the Iowa Workers' Compensation Commissioner serves

its own orders, rulings and decjsions by email. Service made before the

Iowa Workers' Compensation Commissioner is governed by administrative

rules promulgated by the Iowa Workers' Compensation Commissioner. The

Claimant is correct that the Iowa Workers' Compensation Commissioner

will serve its orders, rulings and decisions by email, but this is owing to the

fact that the Iowa Workers' Compensation Commissioner's own rules

specify that this will be the case. Iowa Administrative Code § 876-4.7.

Thus, the Iowa Workers' Compen$ation Commissioner derives the authority

to serve orders, rulings, and decisions by email from the rules of practice

16

promulgated by the agency. This has absolutely no bearing whatsoever

upon the issue of service of the Claimant's Petition for Judicial Review.

Of greater note, an original notice and petition before the Iowa

Workers' Compensation Commissioner is required to be personally served,

or served via a certified mailing. Iowa Code § 17A.12(1). This is

recognized by the Iowa Workers' Compensation Commissioner's own rules.

Iowa Administrative Code § 876-4.7. As to any document that is not an

original notice and petition, a ruling, decision or order of the Iowa Workers'

Compensation Commissioner, Iowa Administrative Code§ 876-4.12 applies,

and requires the service of any document that must be filed. Iowa

Administrative Code § 876-4.12. The rules specifically state in detail the

appropriate methods of service of any other document that must be filed

with the Workers' Compensation Commissioner. Iowa Administrative Code

§ 876-4.13. It is of some note that the Iowa Workers' Compensation

Commissioner's own rules do not permit email as a valid method of service

of any document that a party must file with· the Iowa Workers'

Compensation Commissioner. Iowa Administrative Code § 876-4.13.

However, the Iowa Workers' Compensation Commissioner's rules would

also make Iowa Rules of Civil Procedure applicable to proceedings, unless

those provisions would be in conflict with the Iowa Workers' Compensation

17

Commissioner's own rules or the provisions of Iowa Code Chapters 85,

85A, 85B, 86, 87 or 17A. Iowa Administrative Code§ 876-4.35. Under the

Iowa Rules of Civil Procedure, service of any documents where the EDMS

system would not be applicable do allow for service by email, but this must

be with written consent of the party upon whom service is going to be made.

Iowa R. Civ. P. 1.442(2).

Even before the Iowa Workers' Compensation Commissioner email is

not necessarily a valid means of service of any document that is not required

to be filed with the agency, and by specific rule is not a valid means of

service of any document that must be filed. Thus, nothing in the service

requirements and procedures before the Iowa Workers' Compensation

Commissioner in any way implicates that a Claimant may avoid making

proper service of a petition for judicial review, or would even remotely

support the proposition that the Claimant may use email as a valid means of

service whenever he so chooses.

In the end the Claimant wants to argue that substantial compliance

should merely mean that he has complied with the broad overarching goal

that he creates for Iowa Code § 17A.19(2) rather than even attempting to

comply with the actual written requirements of the statute. In examining an

issue of substantial compliance, the Iowa Supreme Court did excuse service

18

which was completed after the ten (10) day deadline for service of a Petition

for Judicial Review, but only did so in the circumstance where the late

service was not attributable to the petitioner. Monson v. Iowa Civil Rights

Commission, 467 N.W.2d 230, 232 (Iowa 1991). However, the Iowa

Supreme Court did not choose to merely write out or ignore the ten (10) day

service requirement. The service in the Monson case likely did not prejudice

the respondent as it was completed shortly after the deadlines. However, in

finding substantial compliance the Iowa Supreme Court found that due to the

fact that the petitioner undertook to complete the service, and the failure of

service was not due to the fault of the petitioner, that this would be

substantial compliance. Id In that case the petitioner had attempted to

comply with the written requirements of the statute. The Claimant seems to

want to argue for a rule that would obliterate a requirement in that

circumstance, and allow a party who chose to undertake no service prior to

the ten (10) day deadline, and then chose to either personally serve or mail a

Petition after the prescribed deadline, to avail themselves of substantial

compliance. The Claimant in this case wants to ignore completely any

requirement that he attempt to do what is prescribed by statute in the manner

specified in Iowa Code § 17A.19(2). Under the Claimant's argument, this

would be justified so long as there is no argument of prejudice. This is not

19

an issue of substantial compliance, but an attempt to wholesale, revise and

ignore the requirements written into the statute in the guise of arguing for

substantial compliance. Substantial compliance still requires that a party

actually attempts to comply with the written requirements statute, not make

up a different requirement entirely.

The Claimant's arguments are nothing more than an attempt to assail

the wisdom of the methods chosen by the Iowa Legislature for service of a

petition for judicial review. The Iowa Legislature previously amended Iowa

Code § 17A.19(2) when it believed that additional means of service that

were not permitted should be allowed, and that is their precedence in this

instance. In the end, the Claimant wants to wholesale scrap the requirements

of the statute, and under his logic be allowed to do whatever he so pleases so

long as he can show that the other parties to the action are not prejudiced.

This is not substantial compliance, that is no compliance. It is the

Legislature who should be permitted to examine the wisdom of the methods

of service chosen in Iowa Code § 17 A.19(2), just as they have previous, and

it is the providence of the Legislature to determine whether any changes are

warranted. However, that does not help the Claimant in this case.

Iowa Code § 17 A.19(2) makes the service requirements a

jurisdictional issue. Iowa Code § 17 A.19(2). The Iowa Supreme Court has

20

determined that as Iowa Code § 17 A.19 is the exclusive means by which

review of an Agency action may be taken, that a party must comply with the

requirements of the statute for the Court to have jurisdiction to hear the

Petition. Cooper v. Kirkwood Community College, 72 N.W.2d 160, 164

{Iowa 2010). The Iowa Supreme Court has recognized that failure to

comply with Iowa Code§ 17A.19(2) is a subject matter jurisdiction issue,

and would deprive a District Court of appellate jurisdiction over a case.

Brown v. John Deere Waterloo Tractor Works, 423 N.W.2d at 194. An

issue of subject matter jurisdiction cannot be waived by the parties, and

cannot be conferred by consent of the parties. Cooper v. Kirkwood

Community College, 782 N. W.2d at 164. A court may even raise the issue

of subject matter jurisdiction upon its own motion. Record v. Iowa Merit

Employment Department, 25 N.W.2d at 173. As the Claimant failed to

comply with the service requirements of Iowa Code § 17 A.19(2) that defect

is jurisdictional by the statute's own terms, and under the Iowa Supreme

Court precedent. The District Court would lack subject matter jurisdiction

to hear the Petition for Judicial Review in this case due to the failure to

comply with Iowa Code § 17 A.19(2). Therefore, the Polle County District

Court properly dismissed the Petition for Judicial Review.

21

The Claimant does point out in his brief that he believes that the

Respondents did not object to email service before the Commissioner, that

the EDMS rules provide that a party consents to service by email, and

similar arguments. It is clear cut law that subject matter jurisdiction cannot

be waived or cannot be conferred by consent of the parties. As such, even if

those arguments were in any way valid, which as noted in the preceding

argument it is clear they are not, parties to judicial review proceedings

cannot waive subject matter jurisdiction or requirements that convey subject

matter jurisdiction upon the District Court.

Iowa Code § 17 A.19(2) is clear by its terms regarding the methods of

proper service of a Petition for Judicial Review. Compliance with that

requirement is mandatory to confer jurisdiction upon the District Court. In

order for the Claimant to demonstrate compliance, or even substantial

compliance, the Claimant has to show that he undertook to meet the

requirements written into the statute rather than make up different methods

of service or requirements on his own. The Claimant in this case chose to

make up new methods of service, and despite receiving notification that he

would need to mail the Petition for Judicial Review, chose not to undertake

what was required by the statute within the ten (10) day timeframe

prescribed by law. The Claimant did not comply with the letter of the law,

22

and did not substantially comply with the letter of the law. The Claimant

made up his own law, and now asks the courts to rewrite the statute to his

ben~fit. The Claimant's Petition for Judicial Review was properly dismissed

by the Polk County District Court, and that dismissal should be aflirmed on

appeal.

CONCLUSION

The facts of this matter are undisputed that the Claimant did not mail

or attempt to have personally served upon the Respondents his Petition for

Judicial Review within ten (10) days of its filing. The Code requires that

service be either by personal service or by mail, and does not authorize or

permit additional means of service. The failure to make, or attempt to make,

the required service within the ten (10) day timeframe is a jurisdictional

defect. As the District Court was without subject matter jurisdiction, the

Petition for Judicial Review was properly dismissed.

REQUEST FOR ORAL ARGUMENT

The Respondents-Appellees, Loyd Roling Construction and Grinnell

Mutual Reinsurance, through the undersigned counsel, state that they desire

to be heard in oral argument.

23

CERTIFICATE OF COMPLIANCE

This brief complies with the typeface requirements and type-volume

limitation of Iowa Rs. App. P. 6.903(l)(d) and 6.903(1)(g)(l) or (2) because

it has been prepared in a proportionally spaced typeface using Time New

Roman in 14 point font and contains 5184 words, excluding the parts of the

brief exempted by Iowa R. App. P. 6.903(1)(g)(l).

0/t8 Date

CERTIFICATE OF SERVICE

I, Christopher S. Spencer, member of the Bar of Iowa, hereby certify

that on June 1, 2018, I or a person acting on my behalf served the above

Respondents-Appellees' Brief and Request for Oral Argument to the

Plaintiff-Appellant's attorneys of record, Andrew William Bribriesco and

Anthony John Bribriesco, via EDMS in full compliance with Rules of

Appellate Procedure and Rules of Civil Procedure.

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CERTIFICATE OF FILING

I, Christopher S. Spencer, hereby certify that I, or a person acting in

my direction, did file the attached Respondents-Appellees' Brief and

Request for Oral Argument upon the Clerk of the Iowa Supreme Court via

EDMSonthislstdayofJune,2018. ~ -.__

h . her-~ . Spem:er-

ATTORNEY'S COST CERTIFICATE

The undersigned attorney does hereby certify that the actual cost of

producing the foregoing Respondents-Appellees' Brief and Request for Oral

Argument was $0 because of service and filing via EDMS.

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