               IN THE SUPREME COURT OF IOWA
                                No. 18–2201

                             Filed June 30, 2020


DARREN PETRO,

      Appellant,

vs.

PALMER COLLEGE OF CHIROPRACTIC,

      Appellee.


      Appeal from the Iowa District Court for Scott County, Mary E. Howes

(motion to dismiss) and Stuart P. Werling (summary judgment), Judges.



      An individual appeals the dismissal of his civil rights action against

an educational institution he formerly attended. AFFIRMED.



      Thomas J. Duff and Jim T. Duff of Duff Law Firm, P.L.C., West

Des Moines, for appellant.



      Mikkie R. Schiltz and Alexander C. Barnett of Lane & Waterman,

LLP, Davenport, for appellee.



      Latrice L. Lacey, Davenport, for amicus curiae Iowa League of Civil

and Human Rights Agencies.
                                       2

MANSFIELD, Justice.

      This case presents an important question about the extent to which

municipalities can confer state-court jurisdiction over individual lawsuits.

In particular, does state law authorize municipalities to give state courts

jurisdiction over private claims under municipal civil rights ordinances?

      A student who attended a chiropractic college contends he was

discriminated against on the basis of age and disability and ultimately had

to leave the school. In 2014, he lodged a complaint with the Iowa Civil

Rights Commission (ICRC).        The complaint was screened out and
administratively closed, but the student did not seek a right-to-sue letter.

Instead, he filed an identically worded complaint with the local civil rights

commission. Notably, while both state and local law prohibit disability

discrimination,   only   the   local    civil   rights   ordinance   prohibits

discrimination in education on the basis of age.

      Three years later, in 2017, the local commission completed its

investigation and found probable cause to believe violations of the local

ordinance had been committed. It declined to take the matter to a public

hearing, however. Instead, at the student’s request, the local commission

issued a right-to-sue letter under the local ordinance.

      The student subsequently brought claims in district court for

violations of the local ordinance, violations of the Iowa Civil Rights Act

(ICRA), and breach of contract. The district court dismissed all claims,

reasoning that it had no jurisdiction over the local ordinance claims, that

the ICRA claims were barred because they were the second round of claims

based on the same conduct, and that the student did not have a viable

breach of contract claim. The student appeals.
      On our review, we affirm.        We conclude that home rule in Iowa

generally stops at the point where a municipality attempts to bring about
                                     3

enforceable legal relations between two private parties. For a municipality

to enact law that would be binding between those parties in state court,

specific authorization from the general assembly is needed. After a close

review, we also conclude that the ICRA does not contain such

authorization. Additionally, we agree with the district court’s resolution of

the ICRA and breach of contract claims.        Accordingly, we affirm the

judgment below.

      I. Background Facts & Proceedings.

      A. Overview of the Dispute. Darren Petro enrolled as a student at
Palmer College of Chiropractic (Palmer) in Davenport in the spring of 2012.

Petro was a nontraditional student. Prior to enrolling at Palmer, Petro

served as an officer in the United States Navy and as both a civil servant

and contract consultant with the Central Intelligence Agency.          Petro

sustained a lower back injury while serving in Iraq in 2009. At the time of

enrollment, Petro was forty-four years old.

      Petro contends that during his time at Palmer, various faculty

commented on his age.        Petro also maintains that during a cervical

technique class, he received derogatory comments because of his lower

back injury. In January 2014, Petro contends he was falsely accused of

an ethics violation. The following month, according to Petro, a false text

message was passed around stating that Petro had threatened two women

professors. At that point, Petro left the Palmer campus and did not return.

      The gist of Petro’s civil claim is that Palmer engaged in a series of

discriminatory acts based on age and real or perceived disability while

Petro was a student.       Petro also alleged Palmer engaged in unlawful

retaliatory actions when he complained about the discriminatory conduct.
      In Palmer’s online application form, a “Notice” appears that includes

the following statement:
                                      4
            In order to provide an environment that encourages
      respect, dignity, and equal opportunity and is in compliance
      with applicable federal and state laws and regulations, Palmer
      College of Chiropractic and its respective colleges do not
      discriminate in employment or in educational programs,
      services or activities on the basis of age, race, creed, color,
      sex, national origin, ancestry, citizen status, religion[,]
      disability, veteran status or other characteristics protected by
      law.

      Palmer’s Board of Trustees required the college’s executive

administration to develop, institute, and enforce institutional policies to

govern the operations of the college. At the time of Petro’s attendance,

Palmer had adopted a policy regarding equal opportunity. The opening
statement of the policy provided that

             Palmer College of Chiropractic (College) does not
      discriminate in employment, admissions or in educational
      practices, programs, services or activities on the basis of age,
      ancestry, citizenship status, color, creed, disability, national
      origin, race, religion, sex, sexual orientation, gender identity;
      veteran status or other characteristic protected by law in the
      state in which the applicable College premise is located.

The equal opportunity statement was incorporated into the student

handbook at Palmer.       Petro claims that these statements created a

contractual obligation on Palmer to comply with antidiscrimination law.

      B. Petro’s First Complaint Filed with the Iowa Civil Rights
Commission.

      1. Substance of Petro’s first complaint.      After withdrawing from

Palmer, Petro filed his first civil rights complaint with the ICRC on April 24,

2014. In his answers on the complaint form filed with the ICRC, Petro

stated “Yes” to the question of whether he believed he was discriminated

against because of a “disability, real or perceived.” Petro also stated, “I

have low back pain and physical restrictions caused by an injury from
military service.”   To a question asking whether he was discriminated

against based on age in employment or credit, he answered “Yes.” Petro
                                    5

also answered “Yes” to a question regarding whether he had been

retaliated against as a result of complaining about discrimination. He

claimed on the questionnaire that he was “constructively expelled” from

Palmer.

      2. Action of ICRC on first complaint. The ICRC screened out Petro’s

claim as not warranting investigation. The ICRC staff reasoned that age

is not a protected class under the education section of the ICRA. While

the ICRC staff reasoned that Petro might have a disability arising out of

his back injury, the evidence submitted in the screening process did not
“demonstrate a reasonable possibility of a probable cause determination.”

The ICRC staff noted that Petro had received a favorable grade in the

cervical technique class.   The ICRC administratively closed the file on

September 18. Petro did not request a right-to-sue letter from the ICRC

at that time.

      C. Petro’s Second Complaint Filed with the Davenport Civil

Rights Commission and Cross-Filed with the ICRC.

      1. Substance of Petro’s second complaint.     Instead, less than a

month later, on October 10, Petro brought a second civil rights complaint,

although this time with the Davenport Civil Rights Commission (DCRC).

Soon thereafter, the DCRC cross-filed Petro’s second complaint with the

ICRC. Petro’s complaint with the DCRC was supported by exactly the

same four-page narrative that Petro had attached to his ICRC complaint.

      2. Action of DCRC on second complaint. Almost three years after the

complaint was filed, the director of the DCRC issued a finding of probable

cause on July 17, 2017. The director provided a forty-three-page analysis

of the facts and her conclusions. According to the DCRC director, there
was sufficient evidence to support Petro’s discrimination claims based

upon disability and retaliation. Among other things, the director found
                                     6

that the ethics charge was “questionable”; that Palmer’s employees did not

believe Petro posed a physical threat, although one woman in the

administration had begun to feel “intimidated and disrespected” at a

meeting; and that there had been no need for a security alert regarding

Petro. The director also faulted Palmer for not taking adequate action

when an outside contractor’s security guard sent a defamatory text

message about Petro to a Palmer student.       (The security guard had a

relationship with that Palmer student, and the text was subsequently

disseminated among other Palmer students.) The director initially found
no probable cause for discrimination based upon age.          However, on

September 26, the DCRC director amended her previous finding and found

probable cause to support Petro’s age discrimination claim as well.

        After DCRC-sponsored conciliation failed, the DCRC on October 10

declined to hold a public hearing on Petro’s complaint and instead issued

an administrative closure of the file. In a letter to Petro’s counsel, the

DCRC stated,

        An administrative closure is not a final determination of the
        merits of the case but merely a determination based on the
        limited resources of the commission. However, it does not
        mean that your client is without a remedy.

              A complainant who wishes to take the case into district
        court can do so by requesting a right to sue letter from the
        Davenport Civil Rights Commission before 2 years have
        elapsed from the issuance date of the administrative closure.

        Petro obtained a right-to-sue letter from the DCRC on October 19

and filed suit in the Iowa District Court for Scott County on January 16,

2018.

        D. District Court Litigation.

        1. Initial   proceedings.    Petro’s   original   petition   alleged
discriminatory practices by Palmer exclusively under the Davenport civil
                                     7

rights ordinance, Davenport Municipal Code chapter 2.58.            Count I

charged age discrimination and harassment, count II charged disability

discrimination and harassment, and count III charged retaliation by

Palmer for Petro’s complaints. On January 25, Palmer promptly filed a

motion to dismiss the action, asserting that the ICRA did not authorize a

district court to hear a direct action brought by a complainant arising from

a right-to-sue letter issued by a local commission such as the DCRC.

      2. Petro obtains right-to-sue letter from ICRC and amends district

court complaint. After receiving Palmer’s motion to dismiss, Petro sought
and obtained a right-to-sue letter from the ICRC based upon the cross-

filing of his second complaint with the state agency. He then amended his

petition on January 30, adding allegations that Palmer’s actions

constituted disability discrimination, harassment, and retaliation under

the ICRA, plus a breach of contract claim against Palmer.

      Palmer unsuccessfully attempted to convince the ICRC to reconsider

its issuance of the right-to-sue letter. The ICRC rejected the request in a

March 9 summary order and notice.

      Back in the district court, Palmer sought a stay of Petro’s case in

order to challenge the validity of the right-to-sue letter issued by the ICRC

in a judicial review proceeding under the Iowa Administrative Procedures

Act (IAPA), Iowa Code chapter 17A. See Iowa Code § 17A.19 (2017). The

district court granted the stay, and Palmer brought the IAPA action.

      3. Disposition of IAPA action. In the IAPA action, Palmer challenged

the ICRC’s March 9 summary order and notice denying reopening.

According to Palmer, the ICRC did not have the authority to issue Petro a

right-to-sue letter because his second complaint was repetitive and thus
filed contrary to Iowa Code section 216.19(6).
                                      8

      On August 14, the district court in the IAPA action upheld the right-

to-sue letter issued by the ICRC and dismissed Palmer’s claim. The district

court stated, however, that the question of whether the second complaint

was duplicative of Petro’s first civil rights claim could be raised in the

pending Petro action. The district court indicated that Palmer was not

barred “from raising its duplicative arguments under Iowa Code

§ 216.19(6) in Petro’s district court case, Scott County Case No.

CVCV297911.” Ten days later, the district court in Petro’s case lifted the

stay and proceedings resumed.
      4. Disposition    of   underlying   litigation   on   the   merits.   On

November 30, the district court granted Palmer’s motion to dismiss. It

held that the ICRA did not authorize a district court to hear an action

brought by a private party pursuant to a right-to-sue letter issued by a

local civil rights agency. The court reasoned that Iowa Code section 216.19

“provides an aggrieved plaintiff the right to petition the district court for

judicial review of a [local] civil rights commission’s decision,” but “does not

provide for a general civil cause of action for an aggrieved plaintiff for

wrongs alleged solely under municipal ordinances.”            As a result, the

district court dismissed Petro’s claims under the Davenport civil rights

ordinance.

      Meanwhile, Palmer had filed a motion for summary judgment on the

remaining claims.      One week later, on December 7, the district court

granted Palmer’s motion for summary judgment on all claims under the

ICRA and on the breach of contract claim. As to the ICRA claims, the

district court found they were barred by Iowa Code section 216.19(6),

which prohibits someone who files a complaint with the ICRA from “filing
a complaint with the referral agency alleging violations based upon the

same acts or practices cited in the original complaint.” The court pointed
                                      9

out that Petro’s first civil rights complaint (filed with the ICRC) and his

second civil rights complaint (filed with the DCRC and subsequently cross-

filed with the ICRC) were based on an identical four-page narrative;

therefore, Petro could not pursue the second complaint, which was the

basis for his district court action. In addition, the court found no basis

for a breach of contract claim.

      Petro appealed, and we retained the appeal.

      II. Standard of Review.

      “We review rulings on motions to dismiss for correction of errors at
law.” Karon v. Elliott Aviation, 937 N.W.2d 334, 339 (Iowa 2020). “We

review a district court’s ruling on subject matter jurisdiction for correction

of errors at law.” Ney v. Ney, 891 N.W.2d 446, 450 (Iowa 2017). “A ruling

on summary judgment is reviewed for correction of errors at law.” Munger,

Reinschmidt & Denne, L.L.P. v. Lienhard Plante, 940 N.W.2d 361, 365 (Iowa

2020).   “Summary judgment is appropriate when the record shows no

genuine issues of material fact and the moving party is entitled to

judgment as a matter of law.” Id.

     III. Jurisdiction of District Courts to Hear Private Actions
Under Local Civil Rights Ordinances.

      A. Municipal Authority to Create Private Rights of Action in
Iowa. This case presents the question whether a municipality can confer

district court jurisdiction on a claim by one private party against another

under that municipality’s civil rights ordinance. Article III, section 38A of

the Iowa Constitution and Iowa Code section 364.1 grant home rule

authority to cities. However, section 364.1 also provides that the grant of

home rule power to cities “does not include the power to enact private or
civil law governing civil relationships, except as incident to an exercise of

an independent city power.” Iowa Code § 364.1; see Gary T. Schwartz, The
                                      10

Logic of Home Rule and the Private Law Exception, 20 UCLA L. Rev. 671,

696 (1973) (explaining that this language refers to “the relationship

between plaintiff and defendant in a civil private lawsuit”).

       In Molitor v. City of Cedar Rapids, we addressed “whether a city has

power to confer jurisdiction in the district court by city ordinance.” 360

N.W.2d 568, 568 (Iowa 1985). We said no and thus rejected an effort by a

citizen to appeal an adverse ruling of the Cedar Rapids housing board to

the district court, as authorized by the Cedar Rapids housing ordinance.

Id.   We explained that “[t]he Iowa district court is a state court.        Its
jurisdiction is conferred by the constitution and by legislation.” Id. at 569.

We added,

       The constitutional and statutory framework makes
       jurisdiction of state courts “a state affair rather than a
       municipal affair.” If municipal corporations had the power to
       confer jurisdiction on the district court, the jurisdiction of the
       court potentially could be fragmented into as many
       components as there are municipalities.

             . . . Municipal power over local and internal affairs does
       not include authority to determine the jurisdiction of a state
       court. We find no basis in the constitution or statutes for
       holding otherwise.

Id. (quoting 2 Eugene McQuillan, The Law of Municipal Corporations
§ 4.95, at 165 (1979)).

       B. Iowa Code Section 216.19. Despite the categorical nature of

what we said in Molitor, Petro insists that municipal civil rights ordinances

are different.   In the ICRA, according to Petro, the general assembly

empowered municipalities to issue right-to-sue letters allowing private

parties to sue for violations of municipal civil rights ordinances.

       Since 1978, a complainant may request from the ICRC an
administrative release or “right to sue” letter. Iowa Code § 216.16; see also

1978 Iowa Acts ch. 1179, § 1 (then codified at Iowa Code § 601A.16 (1979),
                                     11

now codified as amended at Iowa Code § 216.16 (2017)). By obtaining the

right-to-sue letter, the complainant obtains the right to directly file an

action in district court alleging violations of the ICRA. Iowa Code § 216.16.

There is no prior final agency determination, however, and the district

court proceeding is de novo.        Id.   With a right-to-sue letter, the

complainant controls the enforcement of the claim but ordinarily must hire

a lawyer to represent them in the litigation. See id.

      In considering Petro’s contentions, we begin with the text of the

ICRA. Iowa Code section 216.19, entitled “Local laws implementing this
chapter,” addresses local civil rights agencies such as the DCRC.         Id.

§ 216.19. It provides as follows:

            1. All cities shall, to the extent possible, protect the
      rights of the citizens of this state secured by the Iowa civil
      rights Act. Nothing in this chapter shall be construed as
      indicating any of the following:

            a. An intent on the part of the general assembly to
      occupy the field in which this chapter operates to the
      exclusion of local laws not inconsistent with this chapter that
      deal with the same subject matter.

             b. An intent to prohibit an agency or commission of
      local government having as its purpose the investigation and
      resolution of violations of this chapter from developing
      procedures and remedies necessary to insure the protection
      of rights secured by this chapter.

            c. Limiting a city or local government from enacting any
      ordinance or other law which prohibits broader or different
      categories of unfair or discriminatory practices.

            2. A city with a population of twenty-nine thousand, or
      greater, shall maintain an independent local civil rights
      agency or commission consistent with commission rules
      adopted pursuant to chapter 17A. An agency or commission
      for which a staff is provided shall have control over such staff.
      A city required to maintain a local civil rights agency or
      commission shall structure and adequately fund the agency
      or commission in order to effect cooperative undertakings with
      the Iowa civil rights commission and to aid in effectuating the
      purposes of this chapter.
                               12
        3. An agency or commission of local government and
the Iowa civil rights commission shall cooperate in the sharing
of data and research, and coordinating investigations and
conciliations in order to expedite claims of unlawful
discrimination and eliminate needless duplication. The Iowa
civil rights commission may enter into cooperative agreements
with any local agency or commission to effectuate the
purposes of this chapter. Such agreements may include
technical and clerical assistance and reimbursement of
expenses incurred by the local agency or commission in the
performance of the agency’s or commission’s duties if funds
for this purpose are appropriated by the general assembly.

        4. The Iowa civil rights commission may designate an
unfunded local agency or commission as a referral agency. A
local agency or commission shall not be designated a referral
agency unless the ordinance creating it provides the same
rights and remedies as are provided in this chapter. The Iowa
civil rights commission shall establish by rules the procedures
for designating a referral agency and the qualifications to be
met by a referral agency.

       5. The Iowa civil rights commission may adopt rules
establishing the procedures for referral of complaints. A
referral agency may refuse to accept a case referred to it by
the Iowa civil rights commission if the referral agency is
unable to effect proper administration of the complaint. It
shall be the burden of the referral agency to demonstrate that
it is unable to properly administer that complaint.

       6. A complainant who files a complaint with a referral
agency having jurisdiction shall be prohibited from filing a
complaint with the Iowa civil rights commission alleging
violations based upon the same acts or practices cited in the
original complaint; and a complainant who files a complaint
with the commission shall be prohibited from filing a
complaint with the referral agency alleging violations based
upon the same acts or practices cited in the original
complaint. However, the Iowa civil rights commission in its
discretion may refer a complaint filed with the commission to
a referral agency having jurisdiction over the parties for
investigation and resolution; and a referral agency in its
discretion may refer a complaint filed with that agency to the
commission for investigation and resolution.

        7. A final decision by a referral agency shall be subject
to judicial review as provided in section 216.17 in the same
manner and to the same extent as a final decision of the Iowa
civil rights commission.

    8. The referral of a complaint by the Iowa civil rights
commission to a referral agency or by a referral agency to the
                                      13
      Iowa civil rights commission shall not affect the right of a
      complainant to commence an action in the district court
      under section 216.16.

Id.

      The only provision directly addressing right-to-sue letters is section

216.19(8). See id. § 216.19(8). It is worded as a savings clause (“shall not

affect”). See id. It preserves a complainant’s otherwise existing right to

sue, but it doesn’t create an additional right to sue such as a right to sue

under an ordinance. See id. And it only preserves a right to sue under

section 216.16. See id. Section 216.16, as already noted, concerns right-
to-sue letters under the ICRA. It refers to an “unfair or discriminatory

practice,” a term of art that means a violation of the ICRA.                Id.

§§ 216.2(15), .16(1). It then authorizes the ICRC’s issuance of “a release

stating that the complainant has a right to commence an action in the

district court.” Id. § 216.16(3)(a). Iowa Code section 216.16(3) authorizes

the right-to-sue letter. Section 216.16 does not authorize a complaining

party to sue for a violation of a municipal ordinance.

      Furthermore, “we read statutes as a whole.” Iowa Ins. Inst. v. Core

Grp. of the Iowa Ass’n for Justice, 867 N.W.2d 58, 72 (Iowa 2015). Iowa

Code section 216.19(7) provides that “[a] final decision by a referral agency

shall be subject to judicial review . . . in the same manner and to the same

extent as a final decision of the Iowa civil rights commission.” This shows

the legislature knew how to confer district court jurisdiction over local civil

rights matters when it wanted to. The legislature could have provided in

section 216.19(8) that a complainant to a local referral agency would have

the right to sue for violation of a local civil rights ordinance “in the same

manner” as a complainant to the ICRC. It did not.
      It is true that Iowa Code section 216.16 does not directly preclude a

local civil rights commission from issuing a right-to-sue letter under a local
                                     14

ordinance. But given Molitor and section 364.1, there must be something

more—an affirmative grant of authority from the general assembly. And

the affirmative provision for judicial review in section 216.19(7) suggests,

by negative implication, that the general assembly did not envisage a

judicial forum in other contexts.

      Notably, both concepts at issue—the right to sue and the local

referral agency—were added in 1978 by the same legislation. See 1978

Iowa Acts ch. 1179 §§ 1, 21 (then codified at Iowa Code §§ 601A.16, .19

(1979), now codified as amended at Iowa Code §§ 216.16, .19 (2017)).
What became section 216.19(8) was part of that legislation. See id. § 21

(then codified at Iowa Code § 601A.19 (1979), now codified at Iowa Code

§ 216.19(8) (2017)). Logically, therefore, section 216.19(8) defines when a

right to sue is available to a civil rights complainant whose complaint goes

through a local referral agency. When two subjects are covered by the

same legislation and the legislature takes the time to spell out the interplay

between those two subjects, as it did in section 216.19(8), we should be

hesitant to add to what the legislature wrote. To the extent the text of Iowa

Code section 216.19 is ambiguous, this legislative history supports the

foregoing interpretation. See Iowa Code § 4.6(3) (2017).

      A published opinion of the United States District Court for the

Southern District of Iowa makes several of these points. See Toppert v.

Nw. Mech., Inc., 968 F. Supp. 2d 1001, 1010–11 (S.D. Iowa 2013). Toppert

found the ICRA did not authorize private actions to enforce municipal civil

rights ordinances. Id. The Toppert court explained,

             Iowa Code § 216.19(7) states: “A final decision by a
      referral agency shall be subject to judicial review as provided
      in section 216.17 in the same manner and to the same extent
      as a final decision of the Iowa civil rights commission.”
      Reading this provision in conjunction with § 216.19(1)(c),
      which states that the ICRA does not prevent a municipality
                                       15
       from protecting broader or different categories of
       discrimination, makes it clear that judicial review is available
       for violations of not only the ICRA, but also violations of local
       ordinances. This is in contrast to the only subsection in Iowa
       Code § 216.19 that refers to an administrative release, right
       to sue letter or ability to commence an action in district court;
       that subsection is Iowa Code § 216.19(8).

              Iowa Code § 216.19(8) states: “The referral of a
       complaint by the Iowa civil rights commission to a referral
       agency or by a referral agency shall not affect the right of a
       complainant to commence an action in the district court
       under section 216.16.” The Iowa Supreme Court has not
       clearly spoken, but a natural interpretation is that a
       complainant does not lose her right to sue in district court
       under the ICRA when a referral or a deferral agency handles
       her investigation and/or resolution of the case. The provision
       cannot reasonably be read to empower a local commission
       with authority to issue its own right to sue letters under its
       local ordinance because the provision explicitly says
       “commence an action under Chapter 216.16,” indicating that
       the action is for a violation of the ICRA.

Id. (citations omitted). Although Toppert is not binding on us, its analysis

parses the statutes in the same way as we do.

       Lastly, it does not appear that a decision holding that municipalities

cannot issue right-to-sue letters under municipal civil rights ordinances

would throttle municipal civil rights enforcement. See Iowa Code §§ 4.4(3),

.6(5). According to the DCRC’s most recent annual reports, it has issued

only one or two right-to-sue letters a year, representing approximately 1%

or, at most, 1.5% of its caseload. See Davenport Civil Rights Comm’n,

2017      Annual      Report     22,        2016   Annual      Report      16,

https://cityofdavenportiowa.com/cms/one.aspx?portalId=6481456&pag

eId=10025497.      Elsewhere, the Iowa City Human Rights Commission

issued no right-to-sue letters in the last two reporting years. See Iowa City

Human        Rights     Comm’n,        Annual      Report      FY2018       7,

https://www.icgov.org/city-government/boards/human-rights-commiss
ion. The Cedar Rapids Civil Rights Commission issued one right-to-sue

letter in the last two reporting years.       See Cedar Rapids Civil Rights
                                      16

Comm’n,     2019    Annual     Report      22,   2018    Annual     Report    22,

http://www.cedar-rapids.org/local_government/city_boards_and_

commissions/publications.php.         The ICRC, by contrast, has recently

issued approximately 150 to 200 right-to-sue letters per year, representing

approximately 10% to 15% of its overall caseload. See Iowa Civil Rights

Comm’n,         Annual       Report        Fiscal       Year       2019       14,

https://icrc.iowa.gov/document-type/annual-reports.               Indeed,    Petro

could have obtained a right-to-sue letter from the ICRC on his first

complaint in 2014. He elected not to.
      To the extent that denying right-to-sue letters under local

ordinances restricts private enforcement of local civil rights ordinances,

one has to ask whether that might have been the legislature’s plan. In the

end, rights to sue under local ordinances matter only when the local

ordinance is broader than the ICRA. Otherwise, the existing right to sue

under the ICRA suffices. But the legislature might have been concerned

that allowing local commissions to create additional protected classes—

and then to authorize private suits for discrimination based on these forms

of protected status—might have been too much too soon. For example,

what if a municipality decided to ban discrimination based on individual’s

credit score?    The legislature might have been willing to accept this

exercise of municipal autonomy to the extent the local commission was

willing to enforce the ban itself but did not want a tide of private litigation.

      In arguing that local civil rights agencies can authorize suits for

violations of local ordinances, Petro relies primarily on Iowa Code

sections 216.19(1)(b) and (c). We think the reliance is unavailing. True,

section 216.19(1)(b) appears to allow for flexibility in local agency
“procedures and remedies.” See id. § 216.19(1)(b). But if we study the

actual language, it refers to “an agency or commission of local government
                                          17

. . . developing procedures and remedies necessary to insure the protection

of rights secured by this chapter.”         Id. (emphasis added).       Petro’s case

involves, in part, a right to attend an educational institution regardless of

age. That is not a “right[] secured by this chapter,” i.e., chapter 216. It is

a right conferred only by the Davenport civil rights ordinance.

       Furthermore, Iowa Code section 216.19(1)(b), like Iowa Code

section 216.19(8), is a form of savings clause. Again, we focus on the

words themselves.       They state that “[n]othing in this chapter shall be

construed as indicating . . . [a]n intent to prohibit” the development of local
procedures and remedies.           Id.   Thus, section 216.19(1)(b) is not an

independent grant of authority to cities to enact local law governing

relationships between private parties such as Petro and Palmer. At best,

it allows such local law to stand if there is an independent basis for it. As

Molitor holds, a municipality that wants to regulate conduct between

private parties and confer jurisdiction on the state courts to adjudicate

such a dispute needs a wellspring in state law for doing so. Otherwise,

chapter 364 closes the door.

       Likewise, it’s true that Iowa Code section 216.9(1)(c) allows local

agencies to “prohibit[] broader or different categories of unfair or

discriminatory practices” than the ICRA. But an agency’s authority to

prohibit other practices should not be confused with authority to grant

private rights of action—which is expressly covered by section 216.9(8).

See also Baker v. City of Iowa City, 750 N.W.2d 93, 101 (Iowa 2008) (stating

that this provision “expressly allows cities latitude only with respect to

discriminatory practices”). In short, neither of these provisions confers the

authority Davenport purported to exercise here.1

       1Petro also invokes Iowa Code section 216.18(1), which provides, “This chapter
shall be construed broadly to effectuate its purposes.” We do not read this language as
                                             18

       Overall, Petro utilizes the wrong analytical framework. He contends

that “[t]he [l]egislature did not intend to prohibit the enforcement of local

civil rights laws in district court.” But that is the wrong question because,

in light of Molitor, the legislature had to do more. It had to affirmatively

authorize the private enforcement of local civil rights laws in district court.

       Petro does not rely on Iowa Code section 216.19(4), but the amicus

curiae Iowa League of Civil and Human Rights Agencies has invoked this

provision. One could argue that the League’s position has been waived

since the appellant did not urge it. See Rants v. Vilsack, 684 N.W.2d 193,
199 (Iowa 2004) (holding that an issue is not preserved if only argued by

an amicus curiae). However, we will credit Petro’s briefing with raising the

overall question whether Iowa Code section 216.19 authorizes suits under

local ordinances. Under the practical approach that we follow, the entire

section, including subsection (4), is properly before us.

       Iowa Code section 216.19(4) requires a local referral agency to afford

“the same rights and remedies as are provided in this chapter.”                           The

League maintains this language requires a municipality to provide a right

to sue under its civil rights ordinance. We agree that the right to sue is a

“right[] and remed[y].”         The relevant question, though, is whether the

municipal ordinance must provide a right to sue under chapter 216 or

whether this language authorizes—indeed requires—municipalities to

provide rights to sue under their own civil rights ordinances, regardless how

broadly those ordinances might sweep.

       The words “rights and remedies” in Iowa Code section 216.19(4) are

somewhat vague and general. Sections 216.19(7) and 216.19(8) are more

authorizing a private right to action to enforce a local civil rights ordinance in light of the
language in sections 216.19(7) and 216.19(8) withholding that right. We also do not
believe it was a purpose of the ICRA to create previously nonexistent private rights of
action to enforce local civil rights ordinances that may establish substantive rights and
remedies quite different from those in the ICRA.
                                      19

specific. See id. § 216.19(7)–(8). To the extent these provisions conflict,

we should give greater weight to the more specific provisions. See id. § 4.7.

      Another point worth pondering is this: It makes sense for the local

civil rights commission to have authority to issue a right-to-sue letter

under the ICRA when a complaint is referred to it by the ICRC.            That

enables a complete referral of the case. It avoids the situation where the

ICRC might be issuing a right-to-sue letter for a case that is being actively

investigated by the local commission.          But what underlying policy

consideration would have motivated the general assembly to require (not
merely permit) private enforcement of substantive rights that the general

assembly had itself declined to recognize? That seems odd.

      In Gray v. Kinseth Corp., a complaint was filed with the Council

Bluffs Human Rights Commission and cross-filed with the ICRC. 636

N.W.2d 100, 101 (Iowa 2001). The ICRC sent a letter to the Council Bluffs

commission indicating that it would “await results of [its] processing.” Id.

However, the box to indicate whether the ICRC was making a referral or a

deferral was not checked. Id. Both the ICRC and the local commission

later issued right-to-sue letters with different deadlines for filing suit. Id.

at 101–02. The plaintiff’s lawsuit was timely only under the ICRC letter.

Id. at 102. Thus, we had to decide whether the ICRC’s right-to-sue letter

was valid or whether it had been rendered ineffective by the ICRC’s prior

referral of the case to the local agency. Id. We held that a local agency

could have authority to issue a right-to-sue letter to enforce the ICRA but

only if there had been an actual referral from the ICRC. Id. at 102–03.

Since there was no binding referral, the ICRC right-to-sue letter was valid,

the local agency did not have authority to issue a right-to-sue letter under
the ICRA, and the plaintiff’s lawsuit was timely. Id. at 103. Here is the

key language:
                                     20
             Gray contends there is no statutory authority for a local
      commission to issue an administrative release that would
      preempt a plaintiff’s right to sue under the Iowa Civil Rights
      Act. Rather, he claims, such a release by a local commission
      would limit a plaintiff’s right only under a local ordinance.
      Gray cites Quaker Oats Co. v. Cedar Rapids Human Rights
      Commission, 268 N.W.2d 862, 864 (Iowa 1978), to support
      this argument. The statute cited by Quaker Oats was amended
      in 1978 (and later moved to section 216.19), and now it
      appears that, pursuant to section 216.19, local commissions
      have jurisdiction to enforce the Iowa Civil Rights Act as well
      as local ordinances. Part of the new language reads:

                   Nothing in this chapter shall be construed
            as indicating an intent to prohibit an agency or
            commission of local government having as its
            purpose the investigation and resolution of
            violations of this chapter from developing
            procedures and remedies necessary to insure the
            protection of rights secured by this chapter. All
            cities shall, to the extent possible, protect the
            rights of the citizens of this state secured by the
            Iowa civil rights Act. Nothing in this chapter shall
            be construed as limiting a city or local
            government from enacting any ordinance or other
            law which prohibits broader or different
            categories of unfair or discriminatory practices.

      Iowa Code § 216.19 (1995) (emphasis added).

            We believe the local commission here has authority to
      enforce the Iowa Civil Rights Act, under Iowa Code
      chapter 216. This, however, does not mean the local
      commission has replaced the state commission.

Id. at 102–03 (footnote omitted).

      In other words, we opined that the local commission did have

authority to issue right-to-sue letters under the ICRA. Id. However, the

concern in Gray was that there had not been a referral (as opposed to a

deferral) from the ICRC. Id. at 103. Gray stands for the proposition that

local civil rights agencies acting as referral agencies can issue right-to-sue

letters under the ICRA but does not decide whether local agencies can
issue such letters under local civil rights ordinances.
                                      21

      In light of Gray, a right to sue under a local ordinance matters only

when the local ordinance provides substantive rights and remedies that

the ICRA doesn’t provide—i.e., the situation with respect to Davenport.

Otherwise, the complainant can receive a right-to-sue letter under the

ICRA, either from the ICRC or the local agency, which provides every

private right of action the complainant might want or need. See id. at 102–

03. When Davenport decided to prohibit age discrimination in education—

a right that doesn’t exist in Iowa Code chapter 216—it established an

additional right not recognized by state law. An ordinance that creates an
additional right and allows private suits to enforce it isn’t providing for “the

same rights and remedies.” Iowa Code § 216.19(4). Instead, it is providing

something more. So, unless “same” in section 216.19(4) means “greater,”

we cannot accept the League’s reading of the statute.

      The League also directs us to Iowa Code section 216.19(1) which

states, “All cities shall, to the extent possible, protect the rights of the

citizens of this state secured by the [ICRA].” But this argument does not

advance the discussion very much. In part, we are not talking here about

a right secured by the ICRA.            Also, this opening exhortation in

section 216.19 begs the question of what is “possible.” Iowa law limits

municipal creation of “private or civil law governing civil relationships.”

Iowa Code § 364.1. We find nothing in section 216.19 to overcome that.

      C. Other Considerations. We acknowledge that in Dietz v.

Dubuque Human Rights Commission, 316 N.W.2d 859, 861–62 (Iowa

1982), we held that judicial review was available under Iowa Code

section 17A.19 over a local civil rights agency’s decision even though the

agency wasn’t a “referral agency,” and therefore, a right of review was not
expressly conferred by section 216.19(7) (then section 601A.19).          Dietz

indicated that judicial review was authorized by the section’s opening
                                      22

paragraphs and supported by the provision directing a broad construction

of the ICRA. Id.; see also Iowa Code § 216.18.

      Petro argues by analogy that our recognition of an implied right of

judicial review in Dietz should presage our recognition of a right to sue

here. But judicial review is different from an independent right to sue.

Serious questions would be raised if local agency determinations were

unreviewable. Judicial review is a restraint on municipal authority; right-

to-sue letters are an expansion of municipal authority. In the former case,

the state courts exercise appellate review over the local agency; in the latter
case, the local agency creates rights that it directs the state courts to

enforce. Also, at a minimum, a local civil rights agency would be subject

to certiorari review anyway even if section 17A.19 review were not

available. See Bricker v. Iowa Cty. Bd. of Supervisors, 240 N.W.2d 686,

689 (Iowa 1976).     Hence, Molitor, not Dietz, is the relevant precedent.

Molitor requires express legislative authorization for district court

jurisdiction—authorization that is lacking here. See Molitor, 360 N.W.2d

at 568–69.

      We also acknowledge that some states have recognized private

actions under local civil rights ordinances.      This is not because those

states are more sympathetic to civil rights; it is traceable to differences in

home rule authority in those jurisdictions. In Sims v. Besaw’s Café, 997

P.2d 201, 210 (Or. Ct. App. 2000) (en banc), the Oregon Court of Appeals

held that the City of Portland could adopt a civil rights ordinance allowing

for private enforcement in the state courts. Oregon, however, does not

appear to have the same limitation on home rule set forth in Iowa Code

section 364.1. As the court explained,

      All that the Portland anti-discrimination ordinance does is
      change the substantive law that state courts use to perform
      the adjudicative role that they have been assigned by state law
                                     23
      to perform. It does not run afoul of any limit of which we are
      aware that is imposed on the enactment of municipal law.

Id. at 208 n.12. The court also took the opposite view from that which we

expressed in Molitor: “Oregon Supreme Court cases establish, however,

that, contrary to McQuillin’s view, Oregon cities can “enlarge the common

law . . . duty or liability of citizens among themselves.” Id. at 209.

      In Edwards Systems Technology v. Corbin, 841 A.2d 845, 854–55

(Md. 2004), the Maryland Court of Appeals likewise held that an individual

could sue in state court for violation of county antidiscrimination

ordinances.   But there, in response to earlier decisions deeming such

actions impermissible, the state legislature had adopted a law expressly

providing that “a person who is subjected to an act of discrimination

prohibited by the county code may bring and maintain a civil action

against the person who committed the alleged discriminatory act for

damages, injunctive relief, or other civil relief.” Id. at 853 (quoting Md.

Code Art. 49B, § 42, since repealed and transferred by Acts 2009, ch. 120,

§ 1); see also Bracker v. Cohen, 612 N.Y.S.2d 113, 115 (App. Div. 1994)

(finding that New York City could create a private cause of action for

unlawful discrimination after determining that the state home rule law,

“which lists the areas in which local governments may not legislate, [does
not contain] any language relating to the creation of private causes of

action”).

      On the other hand, in State ex rel. Bolzenius v. Preisse, 119 N.E.3d

358, 362 (Ohio 2018) (per curiam), the Ohio Supreme Court recently held

that a proposed ordinance was beyond the power of the City of Columbus

to enact because it would create a private cause of action. The proposed

ordinance would authorize “ ‘any resident of the City of Columbus’ to
‘enforce the rights and prohibitions of this Community Bill of Rights
                                       24

through an action brought in any court possessing jurisdiction over

activities occurring within the City.’ ” Id. The Ohio court explained that

“the proposed ordinance here would create a new cause of action—

something we have held municipalities lack the power to do.” Id.; see also

Malicote v. Don Alberto Corp., No. 5:18-CV-29-KKC, 2018 WL 4760832, at

*3 (W.D. Ky. Oct. 2, 2018) (“While the Kentucky General Assembly granted

municipalities the authority to prohibit forms of discrimination by local

ordinance, it did not allow municipalities to create private rights of action

for those injured by violations of such ordinances.”); Paul A. Diller, The
City and the Private Right of Action, 64 Stan. L. Rev. 1109, 1129–33 (2012)

(noting the different approaches taken by states as to municipal authority

to create private rights of action).

      Local civil rights enforcement by local agencies is an important

component of civil rights enforcement in Iowa. In recent years, using their

own enforcement authority, those agencies have been responsible for

achieving significant legal outcomes. See generally Seeberger v. Davenport

Civil Rights Comm’n, 923 N.W.2d 564 (Iowa 2019); Simon Seeding & Sod,

Inc. v. Dubuque Human Rights Comm’n, 895 N.W.2d 446 (Iowa 2017);

Palmer Coll. of Chiropractic v. Davenport Civil Rights Comm’n, 850 N.W.2d

326 (Iowa 2014).

      Here the DCRC conducted a seemingly thorough investigation over

a period of nearly three years that found probable cause to believe that

civil rights violations had occurred. When conciliation was unsuccessful,

the DCRC could have initiated proceedings as it did in two of the cases

noted above.    The record in this case does not reveal why the DCRC

declined to go forward despite having the benefit of its own exhaustive
investigation. Regardless, nothing in today’s decision affects enforcement

of the local civil rights ordinances by local civil rights agencies.
                                     25

      Instead, this case is one manifestation of a broader principle. Many

times, while applying well-settled principles of statutory interpretation, we

have held that the general assembly did not provide a private right of

action as the remedy for a particular violation of law. See, e.g., Estate of

McFarlin v. State, 881 N.W.2d 51, 58 (Iowa 2016); Bass v. J.C. Penney Co.,

880 N.W.2d 751, 763 (Iowa 2016); Shumate v. Drake Univ., 846 N.W.2d

503, 516 (Iowa 2014); Mueller v. Wellmark, Inc., 818 N.W.2d 244, 254–58

(Iowa 2012); King v. State, 818 N.W.2d 1, 34–35 (Iowa 2012).

      Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), is a seminal case
in our nation’s history, but it tends to be cited for things it did not hold.

Marbury does not stand for the proposition that every wrong is remediable

by a private action in court. In fact, Marbury lost his case, despite having

suffered a legal wrong, because the Supreme Court held it could not

constitutionally exercise jurisdiction. Id. at 173–80. So too here: We

conclude the general assembly did not confer jurisdiction on our state

courts to hear claims by private parties arising under municipal civil rights

ordinances.

     IV. Summary Judgment on Claims Under the ICRA Based Upon
Duplicative Filing.

      We now turn to whether Petro may pursue claims under the ICRA.
Iowa Code section 216.19(6) states, “[A] complainant who files a complaint

with [the ICRC] shall be prohibited from filing a complaint with the referral

agency alleging violations based upon the same acts or practices cited in

the original complaint.”

      Petro filed a complaint with the ICRC in April 2014. This complaint

was administratively closed in September 2014.        The following month,
Petro filed a complaint with the DCRC that was cross-filed with the ICRC.

Petro does not dispute for purposes of appeal that the disability,
                                     26

harassment, and retaliation allegations he brought in April 2014 and those

he brought in October 2014 are duplicative. His argument, rather, is that

a memorandum authored by an ICRC civil rights specialist determined

that Petro’s second complaint was not duplicative.           Based on that

memorandum, the ICRC refused Palmer’s request to close the second

complaint. Later the ICRC issued a right-to-sue letter in January 2018.

Petro argues that these actions remained binding unless overturned by

judicial review and could not be reconsidered by the district court in this

action.
      We disagree. One problem with Petro’s argument is that Palmer, as

a protective measure, did seek judicial review of the January 2018 right-

to-sue letter under the IAPA. In that judicial review proceeding, the district

court found that the memorandum was “intermediate agency action and

not final agency action,” that the final ICRC action was the issuance of the

right-to-sue letter, but that Palmer’s Iowa Code section 216.19(6)

arguments could and should be considered in Petro’s district court action

rather than in the judicial review proceeding. See Ritz v. Wapello Cty. Bd.

of Supervisors, 595 N.W.2d 786, 792 (Iowa 1999) (holding that the district

court could consider whether the plaintiff had timely filed her complaint

with the ICRC, even though the plaintiff later obtained a right-to-sue letter

from the ICRC and the defendant did not seek judicial review of the ICRC’s

issuance of that letter). Neither party sought further appellate review of

the IAPA court’s determination.

      We set aside the question of whether the IAPA court’s determination

that Palmer is free to raise Iowa Code section 216.19(6) in this action has

preclusive effect. In any event, we agree with the IAPA court’s reasoning.
By obtaining an administrative release and a right-to-sue letter, Petro

prevented the ICRC from taking any further administrative action. See
                                         27

Iowa Code § 216.16(4). Once Petro received his right-to-sue letter, the

ICRC lost jurisdliction of the matter. Id. Thus, Palmer was not precluded

from raising in this action the question of whether Petro’s second

complaint was barred as duplicative of his prior complaint. See Ritz, 595

N.W.2d at 792. This forum was the proper one in which to resolve the

section 216.19(6) issue.2

      V. Summary Judgment on Contract Claims Arising Out of
Alleged Civil Rights Violations.

       Petro argues that Palmer breached a contract when it discriminated

against him on the basis of age and disability. Petro contends that existing

legal prohibitions on discrimination were incorporated into contracts he

had with Palmer. He relies on two specific examples of statements: (1) in

the online application form and (2) in the equal opportunity policy

referenced by Palmer’s student handbook.

       We agree with Palmer and the district court that the general

statements of nondiscrimination in the online application and the equal

opportunity policy quoted earlier do not give rise to contractual liability.

The “notice” in the application form is akin to a poster on the wall

announcing compliance with law. It is what it says it is—a notice, and not

a contractual covenant. Although we have not addressed this issue in
Iowa, courts have consistently found that such general statements of

compliance are not tantamount to a binding contract. See, e.g., Bailey v.

N.Y. Law Sch., No. 16 Civ. 4283 (ER), 2017 WL 6611582, at *9 (S.D.N.Y.

Dec. 27, 2017) (“NYLS’s statement of commitment to complying with non-

discrimination laws . . . is a non-actionable general policy statement.”);



       2We are not asked to decide, and do not decide, whether Iowa section 216.19(6)
should bar Petro’s October 2014 complaint to the DCRC in addition to that same
complaint as cross-filed with the ICRC.
                                     28

Spychalsky v. Sullivan, No. CV010958DRHETB, 2003 WL 22071602, at

*14 (E.D.N.Y. Aug. 29, 2003) (holding that a disabled student alleging

discrimination did not have a viable claim against the law school for breach

of “the promise in its admissions materials and handbooks regarding

compliance with ‘all federal, state and local laws’ ”), aff’d, 96 F. App’x 790

(2d Cir. 2004); Harris v. Adler Sch. of Prof’l Psychology, 723 N.E.2d 717,

722 (Ill. App. Ct. 1999) (“The Adler School’s nondiscrimination policy was

a statement of adherence to existing law and did not constitute, and was

not, an independent contractual obligation.”).
      Petro directs our attention to Harvey v. Palmer College of

Chiropractic, 363 N.W.2d 443, 445–56 (Iowa Ct. App. 1984). In that case

our court of appeals found that an expelled student raised a potentially

viable claim against Palmer for breach of contract.        Id.   The student

presented evidence that Palmer had failed to substantially comply with

procedures set forth in the student handbook and the student council

constitution and by-laws. Id. at 445.

      But Petro is not claiming here that Palmer failed to follow its

processes and procedures.        Notably, the specific equal opportunity

statement on which Petro relies was accompanied by information on

Palmer’s procedures. These procedures included instructions on “filing a

report of discrimination/harassment” with specific contact persons

identified and links to other procedures, as well as a link to an “equal

opportunity complaint form.” Petro does not allege that he pursued any

of these avenues for relief or that Palmer failed to comply with them.

      A party cannot pluck a single statement out of context and feather

it into a contract. If the student handbook amounts to a binding contract,
an issue we do not decide today, at most Palmer’s contractual commitment

in the area of nondiscrimination was to follow the identified processes and
                                     29

procedures for addressing discrimination complaints. See Nungesser v.

Columbia Univ., 244 F. Supp. 3d 345, 373–74 (S.D.N.Y. 2017) (dismissing

a student’s breach of contract claim based on gender-based misconduct

where the student did not utilize the available mechanisms for seeking

redress). As the district court noted, “Petro’s claim is entirely predicated

not on a separate cause of action for breach of established rules and

procedures for student grievance, but on the substantive discrimination

and retaliation against him.” Summary judgment was properly granted on

this issue.
         VI. Conclusion.

         For the foregoing reasons, we affirm the judgment of the district

court.

         AFFIRMED.

         All justices concur except Appel, J., who concurs in part and

dissents in part, and Waterman, J., who takes no part.
                                       30

                             #18–2201, Petro v. Palmer Coll. of Chiropractic

APPEL, Justice (concurring in part and dissenting in part).

      I respectfully dissent on division III of the majority opinion. Here,

the majority rewrites the Iowa Civil Rights Act (ICRA) to deprive local civil

rights commissions of the same remedial powers held by the Iowa Civil

Rights Commission (ICRC) by prohibiting local civil rights commissions of

the power to issue to complainants a right-to-sue letter.       Such letters

permit victims of discrimination to sue in state court to enforce local civil

rights ordinances. The majority adopts a tight-fisted, highly restrictive
approach to remedies for civil rights violations, but in my view, it does not

reflect the best reading of the language of the ICRA or further the important

underlying purpose of providing effective remedies for civil rights

violations.

      First, the ICRA provides that local commissions should have “the

same rights and remedies as provided in this chapter.”           Iowa Code

§ 216.19(4) (2017). “This chapter,” Iowa Code chapter 216, provides that

a party may obtain the remedy of an administrative release and launch an

action in district court.   Id. § 216.16.   Yet, the majority interprets the

ability of a complainant to obtain an administrative release and right-to-

sue letter under the ICRA as eliminated for local civil rights commissions

under local civil rights ordinances.

      Second, the legislature anticipated such judicial gymnastics could

occur in the guise of statutory interpretation to narrow the remedies

available under local civil rights ordinances.     After all, although Iowa

courts have often been remarkably advanced in the protection of civil

rights, there have also been occasions where civil rights statutes have been
narrowly construed to defeat their underlying purpose. See Coger v. Nw.

Union Packet Co., 37 Iowa 145, 159–60 (1873) (ruling that segregated
                                      31

dining practices in public accommodations are unreasonable and

unenforceable); Clark v. Bd. of Dirs., 24 Iowa 266, 277 (1868) (finding that

people of color cannot be denied access to public education or relegated to

segregated schools). But see Brown v. J.H. Bell Co., 146 Iowa 89, 95, 101–

02, 123 N.W. 231, 233, 236 (1909) (construing rental space at a food fair

where coffee was served to patrons was not a location “where refreshments

[were] served” under an early Iowa civil rights statute dealing with public

accommodations).     In order to prevent a narrow interpretation in the

context of remedies available under local civil rights ordinances, the
legislature expressly provided that

      [n]othing in this chapter shall be construed as indicating any
      of the following:

            . . . An intent to prohibit an agency or commission of
      local government . . . from developing procedures and
      remedies necessary to insure the protection of rights secured
      by this chapter.

Iowa Code § 216.19(1).

      So, local commissions are to provide “the same rights and remedies”

as the ICRC and “nothing” in the chapter shall be construed as indicating

an intent to prohibit an agency or commission of local government from

developing procedures to insure the protection of rights.      Yet, that is

exactly what the majority does. The majority uses analysis of the statute

“as a whole” to prohibit a local civil rights ordinance from providing the

“same rights and remedies” as those afforded the ICRC.         That is not

permitted by Iowa Code section 216.19(1).

      Third, there is yet another statutory provision that the legislature

included in the ICRA to prevent the interpretation by the majority. To the

extent there is ambiguity in the above provisions of the ICRA, Iowa Code
section 216.18(1) provides that they are to be “construed broadly to
                                     32

effectuate its purposes.” Id. § 216.18(1). The purpose of the ICRA is to

provide robust remedies for violations of the antidiscrimination laws and

ordinances. Is there anyone who, after reading the opinion in this case,

thinks the majority has construed the statute “broadly to effectuate its

purposes”?

      In addition, the majority does not consider the larger history of the

development of civil rights statutes and their remedial provisions. As will

be shown below, the right to sue is an important aspect of civil rights

enforcement. It is not some kind of accidental provision or outmoded relic
that can be regarded as an inconsequential statutory appendix. A review

of the history of the development of civil rights statutes reinforces my view

that proper interpretation of the ICRA provides for robust remedies for

state and local civil rights commissions, which includes a right to sue in

district court.

      Finally, the majority relies on a conclusory federal district court

authority in the interpretation of the distinctive provisions of the ICRA.

The federal district court, like the majority, engages in a trifecta of error

by ignoring the “same rights and remedies” language of Iowa Code section

216.19(4), the “nothing shall be construed” language of Iowa Code section

216.19(1), and the “construed broadly” language of Iowa Code section

216.18. And the federal court makes no effort to understand the function

of a right to sue in civil rights law, both generally and under the ICRA in

particular. The majority of this court is once again influenced by a flawed,

federal rights-restricting precedent that should have no persuasive power

on a state court.
                                    33
     I. Overview of the Problem of Remedies in Civil Rights
Enforcement.

      A. Introduction. The battle over enforcement of civil rights after

the civil war has always included a fight over remedies. See Pippen v.

State, 854 N.W.2d 1, 8–19 (Iowa 2014). Early civil rights acts were enacted

in a number of states, including Iowa, but enforcement mechanisms

proved ineffective. See Robert E. Goostree, The Iowa Civil Rights Statute: A

Problem of Enforcement, 37 Iowa L. Rev. 242, 242–44 (1951) (noting

difficulties in enforcing criminal provision of Iowa’s historic civil rights

statutes).

      It is important to recognize that questions regarding the scope of

available remedies are not mere afterthoughts secondary to substantive

statutory considerations. As Justice Harlan trenchantly declared many

years ago, there is a 1:1 relationship between the substance of a right and

the available remedy. See Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388, 400 n.3, 91 S. Ct. 1999, 2007 n.3 (1971)

(Harlan, J., concurring in the judgment). When a remedy is judicially

diminished, the substance of the statutory or constitutional right is also

reduced. See Baldwin v. City of Estherville, 915 N.W.2d 259, 284 (Iowa

2018) (Appel, J., dissenting).
      B. The    Problem     of   Remedies    in   Federal    Civil   Rights

Enforcement.

      1. Lack of remedies: the fair employment practices committee.

During World War II, President Roosevelt issued executive orders

establishing a Fair Employment Practices Committee (FEPC) to receive and

investigate complaints of discrimination in connection with entities

contracting with the government. See generally Arthur Earl Bonfield, The
Origin and Development of American Fair Employment Legislation, 52 Iowa
                                     34

L. Rev. 1043, 1062–63 (1967). The FERC, however, had no enforcement

mechanism. Id. at 1063–64. Although many cases before the FEPC were

ultimately adjudicated, without reliable and clearly defined enforcement

powers, the policy of nondiscrimination, according to Professor Bonfield,

became “ineffective.” Id. at 1067. Although other attempts to advance civil

rights without enforcement mechanisms were attempted prior to 1963, “[a]

consensus [emerged] that the FEPC approach [was] incapable of coping

with the complex problems of employment discrimination.” Robert Belton,

Comparative Review of Public and Private Enforcement of Title VII of the Civil
Rights Act of 1964, 31 Vand. L. Rev. 905, 910 (1978).

      2. Dual remedies under the Civil Rights Act of 1964. When Congress

considered its groundbreaking Civil Rights Act of 1964, it confronted the

question of how the legislation would be enforced. The original version of

the bill contained a strong administrative agency along the model of the

National Labor Relations Board (NLRB). See Steven B. Burbank et al.,

Private Enforcement, 17 Lewis & Clark L. Rev. 637, 691–96 (2014)

[hereinafter Burbank et al., Private Enforcement]. Members of Congress,

particularly those from Southern states, feared creation of a state agency

with strong enforcement powers. Id. at 691–92. And others believed that

the statute should rely primarily on private enforcement. Id. at 692.

      Initially, in what was seen as a defeat for the civil rights community,

Congress created an Equal Employment Opportunity Commission (EEOC)

with very limited investigatory power and no enforcement power, instead

leaving enforcement to private litigation. Id. at 688–92. It did provide,

however, that a complainant could file a complaint with the EEOC and,

after satisfying certain procedural requirements, could obtain an
administrative release and file a direct action in federal court. Id. at 688–

89. Over time, Congress expanded the powers of the EEOC to include the
                                     35

ability to bring certain administrative actions, while the provisions related

to private actions remained intact. Id. at 697.

      There can be little doubt that Congress regarded direct private

actions as a central component in an effective approach to enforcement of

the Civil Rights Act. As the Supreme Court noted in Alexander v. Gardner-

Denver Co., the private litigant is “an essential means of obtaining judicial

enforcement of Title VII.” 415 U.S. 36, 45, 94 S. Ct. 1011, 1018 (1974).

According to a Senate Report, the provisions of the Civil Rights Act of 1964

“depend heavily upon private enforcement.” S. Rep. No. 94-1011, at 1
(1976), as reprinted in 1976 U.S.C.C.A.N. 5908, 5910. Further, when a

private litigant brings an action pursuant to Title VII, “the private litigant

not only redresses his own injury but also vindicates the important . . .

policy against discriminatory employment practices.” Alexander, 415 U.S.

at 45, 94 S. Ct. at 1108. As noted by Justice Ginsburg, “[C]ivil rights

statutes vindicate public policies ‘of the highest priority,’ yet ‘depend

heavily upon private enforcement.’ Persons who bring meritorious civil

rights claims, in this light, serve as ‘private attorneys general.’ ”

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res.,

532 U.S. 598, 635–36, 121 S. Ct. 1835, 1857 (2001) (Ginsburg, J.,

dissenting) (quoting S. Rep. No. 94-1011, at 2, 3, 5, as reprinted in 1976

U.S.C.C.A.N. at 5910, 5912). Private enforcement of the Civil Rights Act

of 1964 was not an afterthought or a mere appendage mysteriously latched

onto the statute in some obscure subcommittee. It was an essential part

of the remedial scheme. See George Rutherglen, Private Rights and Private

Actions: The Legacy of Civil Rights in the Enforcement of Title VII, 95 B.U.

L. Rev. 733, 757 (2015) (finding that private actions play crucial role in
enforcement of Title VII).
                                      36

         Scholars have explored the potential advantages of private

enforcement. Among other things, private enforcement tends to multiply

resources devoted to enforcement actions, shift costs of regulation off of

government budgets, encourages legal and policy innovation, promotes

efficient detection, provides insurance against the risk that a system of

administrative implementation will be subverted, and limits the need for

visible intervention by a bureaucracy in the economy and society.

Burbank et al., Private Enforcement, 17 Lewis & Clark L. Rev. at 662.

         C. Evolution of Iowa Law Leading to Adoption of Dual Remedies
Under the Iowa Civil Rights Act. Although Iowa enacted a limited civil

rights      statute   prohibiting   discrimination    in   certain   public

accommodations in 1884, the statute provided only a criminal remedy

which required a prosecution by a district attorney. See Robert Benjamin

Stone, The Legislative Struggle for Civil Rights in Iowa, 1947–1965, 18–19

(1990) (M.A. Thesis on file with Theses and Dissertations at Iowa State

University Digital Repository) [hereinafter Stone, Civil Rights in Iowa].

Most district attorneys were reluctant to bring such charges. Id. Further,

convictions were difficult to obtain from Iowa juries. Out of twenty-two

criminal prosecutions brought under the Iowa Civil Rights Act of 1884

against eleven defendants in the 1939 to June 1950 period, only four

convictions were secured. Id. at 20–21; see also John Charles Lufkin, The

Founding and Early Years of the National Association for the Advancement

of Colored People in Des Moines, 1915–1930, 45 Annals of Iowa 439, 456–

57 (1980).

         In the post-WWII period, proposals surfaced for enactment of a fair

employment practices act in Iowa. After more than a decade of advocacy,
the Iowa General Assembly enacted such a measure in 1963. 1963 Iowa

Acts ch. 330 (codified at Iowa Code ch. 735 (1966)). The measure, as
                                     37

proposed over the years, was originally relatively robust. See Stone, Civil

Rights in Iowa at 88–93. The measure ultimately enacted by the legislature

was, however, watered down and the resultant law declared that

discrimination in employment was illegal but did not create a separate

government commission with enforcement powers.                   Id.   Rather,

enforcement was provided for only through criminal actions brought by a

county attorney, which is in essence the same remedial scheme under the

Iowa Civil Rights Act of 1884 that had proved ineffectual. Id. The measure

prohibited   discrimination   in    employment,      but   the    enforcement
mechanisms were restricted to criminal actions brought by a county

attorney. Id.

      In 1965, however, the Iowa legislature enacted a more robust civil

rights statute. 1965 Iowa Acts ch. 21 (codified at Iowa Code ch. 105A

(1966)). In a seminal piece in the Iowa Law Review, former ICRC Chair

Merle Fleming explored the addition of the remedy of a private cause of

action to the ICRA. See Merle Wilna Fleming, Implications of the Right-to-

Sue Amendment to Iowa’s Civil Rights Law, 65 Iowa L. Rev. 720, 738–46

(1980) [hereinafter Fleming, Right to Sue]. Fleming recognized the benefit

of administrative remedies.        She noted that a complainant in an

administrative enforcement context obtained the benefit of the expertise of

the commission in the investigation and enforcement of the claim. Id. at

744. Further, Fleming noted that the administrative process is also likely

to be less costly for the complainant. Id. at 745.

      At first, the ICRA did not follow the dual remedy approach of federal

law and only provided for administrative remedies by the ICRC. Id. at 755–

56. If the legislature expected that the agency would develop a strong
enforcement profile adequate to address the problem of discrimination,

those expectations were not met. By the late 1970s, dissatisfaction with
                                     38

the performance of the ICRC led to an amendment to the ICRA that

provided a complainant could obtain an administrative release and to

bring a direct action in district court. Id. at 760–61.

      Yet, Fleming maintained there were downsides to reliance on

administrative enforcement. She noted that the resources available to the

agency may be limited. Indeed, as was noted in a case decided by this

court shortly after the legislature provided for private enforcement of the

ICRA, it had long been assumed that the agency would be selective and

concentrate its energy and resources on those cases to which it assigns a
high priority. See Estabrook v. Iowa Civil Rights Comm’n, 283 N.W.2d 306,

311 (Iowa 1979) (en banc). As a result, the agency may assign a low

priority to a meritorious case.

      Even for meritorious cases, inordinate delay may be part of the

bureaucratic landscape. As noted by Fleming, in the struggle for adequate

funding, the agency must gain sufficient political support in the battle for

the marginal public dollar. According to Fleming, “The institutional goals

and maneuvers to elicit support may or may not be in conflict with the

Commission’s purpose of eradicating discriminatory behavior.” Fleming,

Right to Sue, 65 Iowa L. Rev. at 726. In other words, the need for political

support may directly or indirectly impact the operations of the agency.

      As an alternative to administrative action, a complainant may now

request from the ICRC an administrative release and obtain a right-to-sue

letter. See Iowa Code § 216.16 (2017). By obtaining the administrative

release and right-to-sue letter, the complainant in effect, bypasses the

commission process and obtains the right to directly file an action in

district court alleging violation of the ICRA. There is no prior final agency
determination, however, and the district court proceeding is de novo. With
                                      39

a right-to-sue letter, the complainant controls the enforcement of the claim

but ordinarily must hire a lawyer to represent them in the litigation.

      There are a number of distinct advantages to obtaining an

administrative release and right-to-sue letter.           As noted by Fleming,

“characteristics of administrative agencies that interfere with achieving the

agency purpose emerged almost immediately after the [ICRC] began to

function.” Fleming, Right to Sue, 65 Iowa L. Rev. at 726. Fleming further

observed that the agency depends upon support from the executive and

legislative branches and others while at the same time is vulnerable to
attack from groups opposing regulation.             Id.    Fleming noted that

commission members may be engaged in “protracted controversies [that]

obscure the purpose of the agency, damage its credibility, and lead to the

loss of staff members and reduction in the productivity of the agency.” Id.

at 727.   Historically, “[t]he combination of expanded jurisdiction, low

budgets, and administrative and staffing difficulties produced a large

[agency] backlog . . . .” Id. (footnote omitted).

      According to Fleming, by adopting the provisions relating to

administrative release, “the vigor with which the fact finding is pursued

and the speed with which it proceeds will depend mainly on the plaintiff

and his or her counsel,” which in some cases may well be seen as a distinct

advantage. Id. at 739. The role played by the option of a direct right of

action was echoed by Professor Arthur Bonfield, who noted that a private

right of action “could ensure the vindication of the injured party’s rights

where the administrative agency charged was unable or unwilling to act

on the merits of an alleged violation of the Act.” Arthur Earl Bonfield, Allan

Vestal Distinguished Chair, Univ. of Iowa Law Sch., Address at State
Historical Building, The Origin and Rationale of the Iowa Civil Rights Act 14

(May 20, 2015).
                                     40

      This case, with its lengthy delay in processing and ultimate failure

of the local commission to pursue the matter, suggests that the

observations of Fleming and Bonfield regarding the advantages of a direct

action option for complainants apply to the operations of local

commissions today as much as to the ICRC in the late 1960s. While the

ICRC and local commissions have greater statutory enforcement powers

than the original EEOC and have generally proven more capable in

resolving complaints, the ability to obtain an administrative release and

the right to sue remain an important backstop for when the administrative
process breaks down or when private counsel has the ability to more

aggressively pursue a claim through litigation than a slower paced and

less intense administrative process.

      D. Role of Private Enforcement in American Legal Tradition.

Private enforcement of public policy, which is central to the Federal Civil

Rights Act of 1964 and ICRA, is consistent with American legal tradition.

Unlike Europe, where regulation is ordinarily accomplished by government

bureaucracies, we have tended to rely more on private common law style

litigation to achieve regulatory goals. See J. Maria Glover, The Structural

Role of Private Enforcement Mechanisms in Public Law, 53 Wm. & Mary L.

Rev. 1137, 1146–55 (2012) [hereinafter Glover, Private Enforcement].

      In the American legal tradition, private enforcement of statutory law

is a public good. As noted by the United States Supreme Court,

      [A] civil rights plaintiff seeks to vindicate important civil and
      constitutional rights that cannot be valued solely in monetary
      terms. . . . [A] successful civil rights plaintiff often secures
      important social benefits that are not reflected in nominal or
      relatively small damages awards.

City of Riverside v. Rivera, 477 U.S. 561, 574, 106 S. Ct. 2686, 2694 (1986)
(citations omitted).
                                      41

      And, of course, for the harmed individual, the availability of judicial

process is important to ensure an avenue for vindication of public rights.

The notion that a harm deserves a remedy is as old as the nation. All

lawyers and many citizens are familiar with the stirring words of Marbury

v. Madison, 5 U.S. (1 Cranch) 137 (1803), where Chief Justice John

Marshall declared that “[t]he very essence of civil liberty certainly consists

in the right of every individual to claim the protection of the laws, whenever

he receives an injury.”    Id. at 163.     And that is exactly what private

litigation under the ICRA provides.
      Further, private litigation has a different substantive character than

actions brought by government bureaucracies. Not only are government

bureaucracies capable of bringing only a small number of claims due to

limited resources, the claims the government does bring tend to be small,

easy, and uncontroversial cases.      See Michael Selmi, Public vs. Private

Enforcement of Civil Rights: The Case of Housing and Employment, 45

UCLA L. Rev. 1401, 1438–39 (1998).

      With respect to the ICRA, private enforcement is a consequence of

“deliberate statutory design” and is “integral to our larger system of public

regulation.” Glover, Private Enforcement, 53 Wm. & Mary L. Rev. at 1146,

1176. Private actions are an important part of the regulatory scheme in

light of the limitations of public bureaucracies, including perennial lack of

resources, the inherent limitations of a government bureaucracy, the risk

of lax bureaucratic enforcement, and, as public choice scholars have

noted, the risk of regulatory capture. Id. at 1153–60. The ICRA is no

exception. The availability of an administrative release and a right to sue

is not a supplementary add-on, but is an indispensable part of the
institutional enforcement architecture under the ICRA.
                                     42

      The majority emphasizes that only a few right-to-sue letters have

been obtained in several recent years from three local civil rights

commissions. First, the data presented provides an incomplete picture.

The majority cites to the Davenport Civil Rights Commission’s (DCRC’s)

most recent annual reports, asserting that it “has issued only one or two

right-to-sue letters a year, representing approximately 1% or, at most,

1.5% of its caseload.” See Davenport Civil Rights Comm’n, 2017 Annual

Report 22, 2016 Annual Report 16, https://cityofdavenportiowa.com/

cms/one.aspx?portalId=6481456&pageId=10025497.          This same report
cited by the majority, however, shows that the right-to-sue letter

comprised one of five of its probable-cause resolutions in 2017.

      Further, some commissions break down how probable-cause cases

were concluded (such as issuance of a right-to-sue letter, among other

results), and others do not. By way of example, the Des Moines Civil and

Human Rights Commission 2019 annual report states that eighteen of

their adjudications were probable-cause resolutions but does not break

those number down further.      See Des Moines Civil & Human Rights

Comm’n, Annual Report 2019 8, https://www.dsm.city/departments/

civil_and_human_rights/forms_and_documents.php#outer-594.

      And in other municipalities that do break out right to sue as a

separate category, usage may be more widespread than the municipalities

highlighted in the majority opinion. For example, in Dubuque in 2017,

right-to-sue letters were obtained in 11% of the cases.     See Dubuque

Human     Rights   Dep’t,   Annual    Report—Fiscal    Year    2017   13,

https://cityofdubuque.org/DocumentCenter/View/35323.

      More to the point, alternative dispute resolution determinations—
such as mediation settlement, outside settlement, or conciliation

settlement, which may or may not be reflected in annual report numbers
                                     43

since they may be categorized as withdrawals, transfers, or satisfactory

resolutions—may also be a result of the mere possibility of a right-to-sue

letter arising from a probable-cause determination.              During the

investigatory process, it may also become clear to the offending party that

their position is much weaker than they initially perceived, and they may

take lengths to avoid the lawsuit.     We know this from our own court

statistics too, since most cases end in settlement, even of those going to

trial. See John Barkai et al., A Profile of Settlement, 42 Ct. Rev.: J. of Am.

Judges Ass’n 22, 34 (2006) (finding that roughly ninety-seven percent of
civil cases settle). But this limited data does not mean that the right to

sue is unimportant for local civil rights commissions and complainants.

      Second, even assuming that there were a couple of cases from each

local civil rights commission where a right-to-sue letter was desired, there

would be dozens of cases in recent years across the state that could not

be brought under the majority approach. Third, while the number of right-

to-sue letters sought from local civil rights commissions may be relatively

low in percentage terms, the potential of claims where a right-to-sue letter

has been sought is likely higher than in most cases, as an attorney has

ordinarily evaluated the case and determined to bring a court action

notwithstanding the difficulty of prevailing in civil rights cases generally.

The cases where a claimant seeks an administrative release and right-to-

sue letter are, therefore, not a very good place to winnow claims based

upon an absolute prohibition. Fourth, the need for an alternate remedy

in the event of a bureaucratic dead end, like that suggested by Fleming

and experienced by Petro, remains an important escape valve. Finally, the

presence of a right-to-sue remedy has an important impact on the
mediation and conciliation process.       All parties should know that if
                                       44

mediation or conciliation before a local civil rights commission is

unsuccessful, a complainant has a right to have their day in court.

      Finally, the issue before the court is whether the right to sue is

available in proceedings before local commissions, not whether and to

what extent it has been utilized previously. The point of the right-to-sue

letter issuance is to provide an alternate remedy for individuals because

of the capacity limitations of local commissions and also because it is the

complainant’s choice. Further, the framework provides for the right to sue

as a backstop for cases just like Petro’s, where the local commission proves
to be a bottleneck and prevents a complainant from obtaining a remedy

for a potentially meritorious claim.

      E. Summary. There is no question that both administrative and

private avenues of enforcement are available for claims brought under the

ICRA. And, there is no doubt that the private remedy is an important part

of the remedial scheme and is designed not merely to vindicate private

rights but to promote the public interest in civil rights enforcement. But,

in this case, there is a question of whether the second path—the crucial

remedy of obtaining an administrative release and proceeding with a direct

action in district court—is available to a complainant who has brought a

claim under a local civil rights ordinance.

      II. Proper Interpretation of Distinctive Provisions of the Iowa
Civil Rights Act.

      Iowa Code section 216.19(1) provides that “[a]ll cities shall, to the

extent possible, protect the rights of the citizens of this state secured by

the Iowa civil rights Act.”   Although this section does not answer our

specific question about the power of a local commission, it plainly suggests
that the legislature does not want a cramped interpretation of local power

to protect civil rights.
                                     45

      There is, however, more specific language dealing with the question

of the scope of remedies available under local civil rights ordinances. Iowa

Code section 219.19(4) provides,

      The Iowa civil rights commission may designate an unfunded
      local agency or commission as a referral agency. A local
      agency or commission shall not be designated a referral
      agency unless the ordinance creating it provides the same
      rights and remedies as are provided in this chapter. The Iowa
      civil rights commission shall establish by rules the procedures
      for designating a referral agency and the qualifications to be
      met by a referral agency.

(Emphasis added.)       The statute requires that the local civil rights

ordinances of referral agencies like the DCRC provide “the same rights and

remedies,” or in other words, rights and remedies that are parallel to those

provided in the ICRC. Id. The ICRA provides that ICRC complainants may

obtain an administrative release and a right-to-sue letter. Id. § 216.16.

As a result, Iowa Code section 219.19(4) requires that local referral

agencies like the DCRC must have the authority to provide claimants the

alternate remedy of an administrative release with the concomitant right

to sue in district court.

      The rules promulgated by the ICRC as required by Iowa Code section

219.19(4) declare that, with respect to local referral agencies, “[t]he

ordinance or enabling legislation under which the agency is established
must provide at a minimum the same rights and remedies to discrimination

available under the Act.” Iowa Admin. Code r. 161—1.6(3)(a)(2). The rule

is unqualified. It does not selectively tiptoe through the statutory tulips to

arrive at a narrow formulation of available remedies from local

commissions. The rules have been in place in some form since 1975, with

no legislative action to disturb them. Over time, the agency has found the
approach in the rules satisfactory and the legislature has not objected.

See City of Sioux City v. Iowa Dep’t of Revenue & Fin., 666 N.W.2d 587,
                                     46

592 (Iowa 2003) (“We consider the legislature’s inaction as tacit approval

of the department’s action.”).

      Further, local civil rights ordinances authorizing administrative

release and right to sue have been part of Iowa’s legal landscape for

decades.   Such a remedy is expressly provided in local civil rights

ordinances not only in Davenport, but also in Cedar Rapids, Des Moines,

Fort Dodge, Iowa City, Marion, and Sioux City. See Cedar Rapids, Iowa,

Municipal Code § 69.15 (2020); Des Moines, Iowa, Municipal Code § 62-

16; Fort Dodge, Iowa, Municipal Code § 2.16.180 (2020); Iowa City, Iowa,
Code § 2-4-10 (2019); Marion, Iowa, Code of Ordinances § 31.17 (2019);

Sioux City, Iowa, Municipal Code § 4.04.290 (2020).        In addition, the

remedy of administrative relief and right to sue is part of other local civil

rights ordinances as a result of wholesale incorporation of Iowa Code

section 216.   See Clinton, Iowa, Code of Ordinances § 32.136 (2020);

Mason City, Iowa, City Code § 2-10-2 (2019). The landscape for such

remedies seemed relatively well settled as a matter of law by Iowa Code

section 216.19(4) and as a matter of practice by the cited ordinances until

the boiling boulders of the majority surfaced today.

      The question in this case boils down to this: is an administrative

release with the related right to sue in district court established in Iowa

Code section 216.16 a part of “the same rights and remedies . . . provided

in this chapter” that local commissions must embrace under Iowa Code

section 216.19(4)? It is hard to argue that it is not. Certainly Iowa Code

chapter 216.16 creates a “right or remedy,” namely, the right to obtain a

right-to-sue letter and to file a claim in district court. Indeed, Iowa Code

section 216.16(3)(a) notes that when the commission grants the
complainant a release, the release should state that “the complainant has

a right to commence an action in the district court.” (Emphasis added.) The
                                     47

statutory notices required by the ICRA thus expressly recognize that the

ability to obtain an administrative release and right-to-sue letter involves

“a right” to commence an action in district court. The notices issued by

the ICRC and the DCRC in this case refer to the “right to commence an

action” in state court. Id. The majority does not and cannot claim that

the ability to obtain an administrative release and subsequent right to sue

in district court is not a “right or remedy” under the ICRA. Any other result

would be contrary to the statutory command and would not allow cities to

protect the rights of citizens of the state “to the extent possible.”     Id.
§ 216.19(1).

      The Houdini majority attempts to escape the “same rights and

remedies” language through analysis of statutory terms that do not

directly relate to whether a complainant may obtain an administrative

release and right-to-sue letter from a local civil rights commission. But

the ICRA declares that “nothing” in the Act can be construed to prohibit

local civil rights commissions from developing “procedures and remedies

necessary” to implement the Act. Id. § 216.19(1)(b). My view is “nothing”

means “nothing.”      But the majority thinks it may apply rules of

construction to escape the “nothing” provision. I don’t see how. In my

view, the majority’s reasoning is exactly what the legislature sought to

prevent in Iowa Code section 216.19(1).

      Further, a narrow interpretation would be contrary to Iowa Code

section 216.18(1) which provides that the chapter shall be “construed

broadly to effectuate its purposes.” The majority finds the terms of the

statute vague and less than clear, even though the legislature had directly

and clearly stated that when faced with interpretive choices, the statute
should be “construed broadly to effectuate [the Act’s] purposes.”
                                      48

      In Pippen, we observed that “[i]n making choices under the Iowa Civil

Rights Act, we must be mindful of the legislative direction that the Act be

broadly interpreted to effectuate its purposes.” 854 N.W.2d. at 30. Cases

from other jurisdictions have emphasized that similar statutory language

in state civil rights acts requires the “widest constitutional application” of

the statute. Id. (quoting Fair Emp’t Practices Comm’n v. Rush-Presbyterian-

St. Luke’s Med. Ctr., 354 N.E.2d 596, 600 (Ill. App. Ct. 1976)); see also

Wondzell v. Alaska Wood Prod., Inc., 601 P.2d 584, 585 (Alaska 1979)

(finding Alaska’s civil rights statute evinced the “legislature’s intent ‘to put
as many “teeth” into the statute as possible’ ” (quoting McLean v. State,

583 P.2d 867, 869 (Alaska 1978))). But this broad, widest constitutional

application, as-many-teeth-as-possible approach to the ICRA is something

that the majority steadfastly refuses to apply.

      Further, as the history of the development of remedies to civil rights

statutes   demonstrates,    the   availability   of   a   private    enforcement

mechanism can be extremely important. Without it, a local ordinance

would provide a second-class remedial scheme, a result the legislature

expressly sought to avoid. But the legislature plainly intended local civil

rights ordinances to provide local commissions with the same set of

remedies that are available to the ICRC.

      The majority also suggests that because local ordinances may

include substantive protections beyond that in the ICRA, as expressly

permitted by the ICRA in Iowa Code section 216.19(1)(c), allowing a person

seeking to enforce such expanded protection would allow for “greater

rights and remedies” than allowed under the ICRA.                   But such an

interpretation would undercut enforcement of local civil rights ordinances.
      There is nothing in the statute that suggests an intent to limit such

rights and remedies available under local civil rights ordinances. Our
                                     49

recent caselaw recognizes this. See Simon Seeding & Sod, Inc. v. Dubuque

Human Rights Comm’n, 895 N.W.2d 446, 474 (Iowa 2017) (Appel, J.,

concurring) (“[T]he Iowa legislature has directed us to broadly construe the

Iowa Civil Rights Act to accomplish its remedial purposes. The majority

opinion is consistent with that legislative direction.” (Citation omitted.)).

Further, under the majority’s “greater rights and remedies” interpretation,

a two-tier enforcement system for local ordinances would be established.

A local ordinance could permit administrative releases and right-to-sue

letters for complainants who raise discrimination claims protected under
the ICRA, but not for substantive discrimination claims protected by local

ordinances but not the ICRA.        That makes no sense. In context, a

permissible interpretation, and a better interpretation in light of the

command to construe the terms of the ICRA broadly, is to read the “same

rights and remedies” language in Iowa Code section 216.19(4) as

applicable to all substantive protections in local ordinances.      In other

words, under local ordinances, all affected persons have a right to file a

complaint with the local commission and a right to an administrative

release and right-to-sue letter after filing such a complaint. That is the

approach taken by the city solons in Davenport, Cedar Rapids, Des

Moines, Fort Dodge, Iowa City, Marion, and Sioux City. We should make

the same call here today.

      The notion that a local civil rights ordinance has the same remedies

as those available under the ICRA makes structural sense as well. The

creation of local civil rights commissions was designed to enhance and

extend the mechanisms of enforcement of civil rights.         Denying local

agencies the ability to issue right-to-sue letters would significantly
undercut the value of local civil rights agencies to complainants who would

assume the risk of undue administrative delay, lack of local commission
                                      50

resources,     and   unwillingness   of    local   commissions    to   prosecute

complaints.

      Indeed, in this case, it took the staff of the DCRC almost three years

to issue its probable-cause findings. And, although probable cause was

found, the DCRC refused to advance the matter to hearing. This case is

an exemplar of why a private right of action is an important part of civil

rights law.

      Finally, there is nothing in the federal district court case of Toppert

v. Northwest Mechanical, Inc., 968 F.Supp 2d 1001 (S.D. Iowa 2013), to
persuade me to the contrary. Toppert has the same trifecta of errors which

the majority incorporates in its opinion.          First, Toppert does not even

consider the “same rights and remedies” language of Iowa Code section

216.19(4) and its implementing administrative rule. Second, Toppert does

not even apply the rule of construction in Iowa Code section 216.19(4) that

“nothing” in the ICRA could be construed to prohibit local agencies from

developing adequate remedies. Third, Toppert does not mention Iowa Code

section 216.18(1), which instructs courts that the ICRA should be

“construed broadly to effectuate its purpose.”            Indeed, there is little

persuasive reasoning in the opinion. An appeal to such flawed federal

authority betrays the weakness of the majority’s position. To paraphrase

what has been attributed to Thomas Acquinas, proof based upon mere

authority of the speaker is the weakest kind of proof. Thomas Aquinas,

Summa         Theologiæ,   Question        1,      Art.   8,    Objection     2.,

http://www.u.arizona.edu/~aversa/scholastic/st_q1.html.

      III. Conclusion.

      In sum, by ignoring the historic challenges of providing adequate
remedies in civil rights legislation, and ignoring important statutory

language in Iowa Code sections 216.18(1), 216.19(1), and (4), the majority
                                    51

rewrites the statute and truncates the enforcement mechanisms of local

civil rights ordinances.

        Further, under the majority approach, a local civil rights

complainant would risk being locked in a bureaucratic closet by a local

commission. Indeed, the private enforcement option is designed in part to

avoid precisely the kind of result that happened here: after three years of

delay, the local agency finds probable cause and then the agency refuses

to launch an enforcement action. This case is exhibit A for showing why

the legislature added a private cause of action to the ICRA and insisted
that local agencies provide the same rights and remedies as the ICRC,

including a right to sue. By incorporating a private right of action, the

local Davenport ordinance fulfilled the legislature’s purpose and ensured

the principle in Marbury that a person who suffers a legal wrong is not left

without a remedy. Here, Petro has a claim which the staff of the DCRC

believed established probable cause, but Petro’s claim is left high and dry

by the majority, withering away based on a narrow interpretation of the

ICRA.

        For the above reasons, I would therefore conclude that while Petro

must show that district court jurisdiction was authorized by state law,

Iowa Code section 216.19(4) provides the necessary statutory foundation

for district court jurisdiction of claims arising out of local civil rights

commissions where an administrative release and a right-to-sue letter

have been obtained. The district court thus erred in dismissing Petro’s

claims based on alleged violations of the Davenport Municipal Code. I

therefore dissent to division III of the majority opinion and would reverse

and remand for further proceedings.
