                     IN THE COURT OF APPEALS OF IOWA

                                     No. 15-1691
                              Filed December 21, 2016


WALMART STORES, INC. and
CITY OF DAVENPORT,
      Petitioners-Appellants,

vs.

IOWA CIVIL RIGHTS COMMISSION,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Scott County, Nancy S. Tabor,

Judge.



       Petitioners appeal from the district court’s denial of their petition for writ of

certiorari. AFFIRMED.




       Heidi A. Guttau-Fox of Baird Holm LLP, Omaha, Nebraska, for appellant

Walmart Stores Inc.

       Christopher S. Jackson, Davenport, for appellant City of Davenport.

       Thomas J. Miller, Attorney General, and Katie Fiala, Assistant Attorney

General, for appellee.



       Heard by Danilson, C.J., and Doyle and McDonald, JJ. Tabor, J., takes

no part.
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MCDONALD, Judge.

       Iowa Code section 17A.19 (2015) provides “the judicial review provisions

of this chapter shall be the exclusive means by which a person or party who is

aggrieved or adversely affected by agency action may seek judicial review of

such agency action.”     Despite the plain language of the statute, the City of

Davenport (“Davenport”) and Wal-Mart Stores, Inc. (“Wal-Mart”) filed a petition

for writ of certiorari in the district court seeking judicial review of an intermediate

decision of the Iowa Civil Rights Commission (ICRC). The challenged decision

remanded a pending case to an administrative law judge for additional

proceedings.    The district court dismissed the petition for writ of certiorari.

Davenport and Wal-Mart now appeal.

       The appellants contend the district court erred in finding chapter 17A

provides the exclusive means to challenge agency action in this case. Plainly

stated, “no exception exists to section 17A.19’s exclusivity for a writ of certiorari.”

Tindal v. Norman, 427 N.W.2d 871, 873 (Iowa 1988); see also Iowa Indus.

Comm’r v. Davis, 286 N.W.2d 658, 661 (Iowa 1979); Salsbury Labs. v. Iowa

Dep’t of Envtl. Quality, 276 N.W.2d 830, 835 (Iowa 1979). Cases suggesting the

contrary   concern    themselves     with       collateral   questions   and   are   thus

distinguishable. See, e.g., Denison Mun. Utils. v. Iowa Workers’ Comp. Comm’r,

857 N.W.2d 230, 233–34 (Iowa 2014) (considering challenge to agency

procedure); Maghee v. State, 773 N.W.2d 228, 238–39 (Iowa 2009) (considering

whether chapter 17A applied to postconviction-relief action); Jew v. Univ. of Iowa,

398 N.W.2d 861, 864–65 (Iowa 1987) (considering whether chapter 17A applied

to civil-rights action). This case squarely presents substantive matters decidedly
                                          3

within the purview of the ICRC. Cf. Jew, 398 N.W.2d at 865 (“In both [Kerr v.

Iowa Public Service Co., 274 N.W.2d 283 (Iowa 1979)] and [Dougherty v. State,

323 N.W.2d 249 (Iowa 1982)], the action challenged was the very decision which

the agency’s mandate directed it to make.         In the present case, the action

challenged (sexual harassment) has little connection with the mandate of the

University or the Regents.”).     Davenport and Wal-Mart have given us “no basis

on which to conclude the ‘exclusive means’ language in section 17A.19 is

mitigated by an exception for . . . certiorari.” Salsbury Labs., 276 N.W.2d at 835.

The question was jurisdictional and properly resolved by motion to dismiss.

       Although we find a petition for writ of certiorari is improper here, we may

treat this case as a proper chapter 17A appeal if the situation merits. See id.

(looking “beyond the labels of Salsbury’s petition” to “effectuate justice”); Denison

Mun. Utils., 857 N.W.2d at 234 (stating lower court “should have treated DMU’s

appeal as a writ of certiorari”). A party seeking judicial review of non-final agency

action, as here, must show that (1) adequate administrative remedies have been

exhausted and (2) review of the final agency action would not provide an

adequate remedy.       Because “both requirements must be satisfied before

intermediate judicial review is permitted, the failure to meet one requirement

disposes of the issue.” Richards v. Iowa State Commerce Comm’n, 270 N.W.2d

616, 620 (Iowa 1978).           Clearly, administrative remedies have not been

exhausted here: the ICRC remanded the case for further proceedings before

Davenport and Wal-Mart appealed. Second, review of the final agency action

would provide an adequate remedy. It would allow for review of the decision on

the merits. This case, no matter how it is labeled, cannot proceed.
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       Additionally, Davenport challenges the process afforded it in two ways.

First, the city argues it was denied procedural due process because the agency

decision was arbitrary and capricious. This argument was not raised below. We

do not decide issues presented to us on appeal that a party did not present to the

district court.    See City of Postville v. Upper Explorerland Reg’l Planning

Comm’n, 834 N.W.2d 1, 8 (Iowa 2013). We decline to consider this claim.

       Second, Davenport contends the scheme whereby an agency may appeal

an adverse proposed decision to itself is unfair.     This would appear to be a

constitutional claim based on due process, so our review is de novo. See State

v. Shanahan, 712 N.W.2d 121, 131 (Iowa 2006). We disagree with Davenport.

The challenged procedure is provided for by statute. See Iowa Code § 17A.15(3)

(“When the presiding officer makes a proposed decision, that decision then

becomes the final decision of the agency without further proceedings unless

there is an appeal to, or review on motion of, the agency within the time provided

by rule.”).       The ICRC has adopted the process through administrative

rulemaking. See Iowa Admin. Code r. 161-4.22 (“After a review of the transcript,

the evidence, and the briefs, the presiding officer shall set forth . . . a proposed

decision and order. The proposed decision becomes the final decision of the

commission without further proceedings unless there is an appeal to, or review

on motion of, the [ICRC] within the time provided in rule 4.23.”), 4.23 (“Any

adversely affected party may appeal a proposed decision to the commission

within thirty days after issuance of the proposed decision.”). Our supreme court

has implicitly approved the scheme.          See, e.g., Chauffeurs, Teamsters &

Helpers, Local Union No. 238 v. Iowa Civil Rights Comm’n, 394 N.W.2d 375, 377
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(Iowa 1986) (noting party appealed hearing officer’s decision to ICRC).   We

decline to discard this well-established procedure on this record.

      AFFIRMED.
