                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1540
                                Filed July 9, 2015


YEMPABOU PALO,
    Petitioner-Appellee,

vs.

IOWA BOARD OF REGENTS,
     Respondent-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Story County, Steven J. Oeth,

Judge.



      The Board of Regents appeals the district court’s decision reversing a final

decision of the Board. APPEAL DISMISSED.



      Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor

General, and Diane M. Stahle, Special Assistant Attorney General, for appellant.

      Matthew M. Boles and Adam C. Witosky of Parrish, Kruidenier, Dunn,

Boles, Gribble, Gentry, Brown & Bergmann, L.L.P., Des Moines, for appellee.

      Joseph M. Barron of Peddicord, Wharton, Spencer, Hook, Barron, &

Wegman, L.L.P, West Des Moines, for amicus curiae.



      Heard by Tabor, P.J., McDonald, J., and Mahan S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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MAHAN, S.J.

       The Board of Regents (the Board) appeals the district court’s decision

reversing a final decision of the Board finding Iowa State University (ISU)

student, Yempabou Palo, had violated section 4.2.5 of the ISU Student

Disciplinary Regulations.      The Board claims its decision was based on

substantial evidence and was not irrational, illogical, or wholly unjustifiable. We

find the Board’s claims in the present action are moot because Palo has since

graduated from ISU, and a decision in this case does not fit any of the exceptions

to the mootness doctrine. Therefore, we dismiss this appeal.

I.     BACKGROUND FACTS AND PROCEEDINGS

       On September 10, 2012, the Iowa State University Office of Judicial

Affairs charged Palo with violating two provisions of the ISU Student Disciplinary

Regulations: section 4.2.5 (prohibiting sexual misconduct, sexual assault, and

sexual harassment) and section 4.2.27 (prohibiting violations of local, state, or

federal law). The charges stemmed from a report by a female ISU student, H.B,

of unwelcome sexual encounters with Palo and Spencer Cruise (who was not an

ISU student) on May 18, 2012. As a result of the incident, Palo was criminally

charged with sexual abuse in the second degree. After an investigation, the

Story County Attorney dropped the criminal charge on January 14, 2013.1 As a

result, the section 4.2.27 charge was also dropped .




1
  Following the dismissal of Palo’s criminal charges, ISU reinstated Palo to the
basketball team. He went on to play seventeen games for ISU to finish the 2012-13
season. In June 2013, after taking into account Palo’s situation and compliance with the
Student Disciplinary Regulations, ISU renewed his athletic scholarship. Following
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       Palo exercised his option to have the disciplinary case heard by an

administrative law judge (ALJ), appointed through the Department of Inspections

and Appeals, rather than by the All University Judiciary at ISU. The ISU Office of

Judicial Affairs prosecuted the case, and H.B. also participated in the hearing.

The hearing was held on April 24 and 25, 2013. The ALJ issued his decision on

May 22, and found the charge against Palo was unfounded.

       In June the Office of Judicial Affairs and H.B. separately appealed to ISU

President Steven Leath.       In its appeal, the Office of Judicial Affairs took

exception to some of the ALJ’s factual findings and also claimed the ALJ

improperly applied ISU’s sexual misconduct policy. Neither party made a request

for additional evidence or for an oral argument. President Leath considered the

case upon the record developed before the ALJ, and issued a decision on

August 30. He adopted the majority of the fact findings made by the ALJ, took

exception to three of the ALJ’s findings, and made additional findings and

credibility determinations.   President Leath relied upon the consent standard

established in the Student Disciplinary Regulations and found Palo had violated

the disciplinary regulation prohibiting sexual misconduct. Given Palo’s academic

success at ISU, President Leath declined to suspend Palo, but imposed the

following sanctions: 1) indefinite deferred suspension, 2) prohibition from

participating in or representing ISU in intercollegiate athletics, 3) required

participation in sexual assault and harassment awareness training, and 4)

participation in alcohol awareness training.



President Leath’s decision in August 2013, Palo was suspended from the basketball
team.
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        On September 6, 2013, Palo appealed the President’s decision to the

Board of Regents. He also requested the Board to issue a stay on his prohibition

on participation in intercollegiate athletics.    The Board affirmed and wholly

adopted the President’s decision on December 5. The Board also denied Palo’s

request for a stay.

        On December 10, Palo petitioned for judicial review of the Board’s

decision.      He also sought a stay of the sanctions imposed by the Board’s

decision. On January 16, 2014, the district court issued a ruling granting Palo’s

stay on a temporary basis. In its ruling, the district court noted President Leath

issued his decision five days after the deadline that would have allowed Palo to

transfer to a different school to take advantage of his remaining year of athletic

eligibility.   The court found “irreparable injury” would occur if Palo was not

allowed to return to the team for his final year of eligibility. The court also found,

since H.B. had graduated and left the State of Iowa, granting the stay would not

interfere with ISU’s ability to protect H.B.

        The district court issued its ruling on Palo’s petition for judicial review on

August 21, 2014. The court found there was not substantial evidence to support

the Board’s conclusion Palo violated the sexual misconduct policy. The Board

now appeals.

II.     SCOPE AND STANDARD OF REVIEW

        Our standard of review for judicial review of an agency action is governed

by Iowa Code chapter 17A (2013). Mike Brooks, Inc. v. House, 843 N.W.2d 885,

888 (Iowa 2014). The district court acts in an appellate capacity when it reviews

the agency’s decisions. Watson v. Iowa Dep’t of Transp. Motor Vehicle Div., 829
                                         5


N.W.2d 566, 568 (Iowa 2013). “On appeal, we apply the standards of chapter

17A to determine whether we reach the same conclusions as the district court. If

we reach the same conclusions, we affirm; otherwise we may reverse.” Id.

       Courts are required to give “appropriate deference” to the findings of an

agency when discretion is “vested by a provision of law.” Iowa Code § 17A.19.

Agencies vested with the power to make findings of facts are vested with the

power to apply the law to those facts. Mycogen Seeds v .Sands, 686 N.W.2d

457, 465 (Iowa 2004).         Our review of final agency action is “severely

circumscribed.”   See Greenwood Manor v. Iowa Dep’t of Pub. Health, 641

N.W.2d 823, 839 (Iowa 2002); Sellers v. Emp’t Appeal Bd., 531 N.W.2d 645, 646

(Iowa Ct. App. 1995). Nearly all disputes are won or lost at the agency level; the

cardinal rule of administrative law is that judgment calls are within the province of

the administrative tribunal, not the courts. See id.

       To disturb the agency’s findings of fact, those findings must not be

supported by substantial evidence in the record. Iowa Code § 17A.19(10)(f);

Burton v. Hilltop Care Ctr., 813 N.W.2d 250, 255–57 (Iowa 2012). Substantial

evidence is a “quantity and quality of evidence that would be deemed sufficient

by a neutral, detached, and reasonable person, to establish the fact at issue.”

Iowa Code § 17A.19(10)(f)(1). Evidence may be substantial even if it would have

supported a contrary inference or an inconsistent conclusion. Ludtke v. Dep’t of

Transp., 646 N.W.2d 62, 66 (Iowa 2002).

       To disturb the agency’s application of law to fact, the applications must be

irrational, illogical, or wholly unjustifiable. Iowa Code § 17A.19(10)(m); Burton,

813 N.W.2d at 256.      Those terms should be read with their plain language
                                         6

meaning. The Sherwin-Williams Co. v. Iowa Dep’t of Revenue, 789 N.W.2d 417,

432 (Iowa 2010). The review of the agency’s application of law to fact is with

“some degree of discretion . . . but not the breadth of discretion given to the

findings of fact.” Meyer v. IBP, Inc., 710 N.W.2d 213, 219 (Iowa 2006).

       There is error at law if the Board did not have a “quantity and quality of

evidence that would be deemed sufficient by a neutral . . . person, to establish

the fact at issue.” Iowa Code § 17A.19(10)(f)(1). There is error at law if the

Board applied the law to the facts in a way that was “based upon an irrational,

illogical, or wholly unjustifiable application of law to fact.” Id. § 17A.19(10)(m).

We thoroughly examine the record on which the Board based its decision to

determine if there was substantial evidence. Wal-Mart Stores, Inc., 657 N.W.2d

at 499. If those findings of fact are binding, we use them to examine the Board’s

application of law to fact. We give appropriate deference to the Board when they

have vested authority to apply fact to the law. Mycogen Seeds, 686 N.W.2d at

466.

III.   MOOTNESS

       A principle of judicial restraint is that courts do not decide issues when the

underlying controversy is moot. Rhiner v. State, 703 N.W.2d 174, 176 (Iowa

2005). “For this reason, a court will generally decline to hear a case when,

because of changed circumstances, the court’s decision will no longer matter.”

Homan v. Branstad, No. 14-0178, ___ N.W.2d ___, at *12 (Iowa May 29, 2015).

“A live dispute must ordinarily exist before a court will engage in an interpretation

of the law.” Lalla v. Gilroy, 369 N.W.2d 431, 434 (Iowa 1985). “A case is moot if

it no longer presents a justiciable controversy because the issues involved are
                                          7

academic or nonexistent.” Iowa Bankers Ass’n v. Iowa Credit Union Dep’t, 335

N.W.2d 439, 442 (Iowa 1983). Nevertheless, we have the discretion to decide a

moot issue on appeal under certain circumstances. Grinnell Coll. v. Osborn, 751

N.W.2d 396, 399 (Iowa 2008). In making this determination, we consider four

factors: “(1) the private or public nature of the issue, (2) the desirability of an

authoritative adjudication to guide public officials in their future conduct, (3) the

likelihood of the recurrence of the issue, and (4) the likelihood the issue will recur

yet evade appellate review.” Id.

       Here, in late 2013, the Board found Palo had violated Regulation 4.2.5

(Sexual Misconduct, Sexual Assault, and Sexual Harassment) and provided the

following sanctions: indefinite deferred suspension from Iowa State if Palo was

found in violation of the student code of conduct or other law, prohibition from

participating in or representing Iowa State in intercollegiate athletics, participation

in sexual assault and harassment awareness training, and participation in alcohol

awareness training. In January 2014, the district court issued a stay on Palo’s

prohibition from playing basketball for Iowa State. Palo was a fifth-year senior at

this time and was set to graduate following the spring 2014 term. Palo’s eligibility

to participate in intercollegiate athletics expired at the end of the 2014 basketball

season. The district court issued its ruling on Palo’s petition for judicial review in

August 2014, and overturned the sanctions imposed by ISU against Palo.

       On appeal, the Board asks us to overturn the district court’s ruling and

affirm its decision.   However, the circumstances surrounding the underlying

controversy have changed since the Board issued its opinion. The Board issued

multiple sanctions against Palo, but the only sanctions with long-term
                                         8


implications were the prohibition on playing for the ISU basketball team and the

deferred suspension from ISU. The basketball prohibition was stayed by the

district court, and Palo was allowed to return to the ISU basketball team for his

final season of eligibility. Additionally, the Board could not point us to any place

in the record showing that deferred suspension would remain a justiciable issue

after Palo’s scheduled graduation date       Therefore, since our decision in this

controversy would “no longer matter” and be “merely academic,” we find this

issue to be moot and decline to reach the merits of this case. We also decline to

find that an exception to the mootness doctrine applies in this case.

IV.    CONCLUSION

       We find that this action is moot, and dismiss the appeal.

       APPEAL DISMISSED.
