Opinion
No. 2-580 / 01-1471.
Filed August 14, 2002.
Appeal from the Iowa District Court for Scott County, DAVID H. SIVRIGHT, Jr., Judge.
Richard Schaefer appeals his driver's license revocation resulting from his conviction for operating while intoxicated, first offense. AFFIRMED.
Catherine Zamora Cartee and Garth Carlson of Gomez, May, Cartee Schultz, Davenport, for appellant.
Thomas J. Miller, Attorney General, and Kerry Anderson, Assistant Attorney General, for appellee.
Considered by HAYDEN, HABHAB, and PETERSON, Senior Judges.
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
Richard Bernard Schaefer was arrested on September 2, 2000, on a charge of operating while intoxicated as a first offense. He submitted to a breath test, which indicated he had a .154 BAC. Schaefer was given notice pursuant to Iowa Code section 321J.12 that his driving privilege was to be revoked for one year under the provisions of the implied consent laws. Schaefer contested the revocation, and an evidentiary hearing was held before an administrative law judge on October 11, 2000. The length of the revocation, rather than the circumstances of the arrest and breath test, was the only issue presented. The administrative law judge issued a decision October 13, 2000, upholding the one-year revocation concluding that under the provisions of section 321J.13, "[t]he issue of whether the enhanced period of revocation is correct is not one of the issues . . . for the undersigned judge to decide." Attached to the decision was a notification to Schaefer that the decision would be final unless an appeal was submitted within ten days of the receipt of the order. On October 27, 2000, Schaefer filed a document entitled "Re[s]ponse to Respondent's Administrative Appeal." The document stated it was responding to the respondent's administrative appeal and requested that the decision of the administrative law judge be reversed and appellant's license be revoked for a period of 180 days, as is consistent with operating a motor vehicle while intoxicated, first offense.
On November 22, 2000, the Iowa Department of Transportation compliance officer notified Schaeffer by letter through his attorney that the request to reopen Schaefer's case was denied.
On January 3, 2001, Schaefer filed a petition for judicial review. The petition came on for hearing on April 10, 2001. On June 29, 2001, the court issued its ruling, finding that the appeal was untimely and the court was without jurisdiction to review the agency action.
Standard of Review. The district court sits in its appellate capacity to correct errors at law when reviewing a final agency decision. The appellate court reviews the judicial review ruling by the district court of the actions of the agency to determine whether its conclusions are the same as those of the district court, applying the standards of Iowa Code section 17A.19(10). Organic Techs. Corp. v. State ex rel. Iowa Dep't of Natural Res., 609 N.W.2d 809, 815 (Iowa 2000) (citing IBP. Inc. v. Al-Gharib, 604 N.W.2d 621, 627 (Iowa 2000)).
Issue. The basic issue in this appeal is the nature and purpose of the document filed by Schaefer on October 27, 2000, captioned "Re[s]ponse to Respondent's Administrative Appeal." A "model of clarity" would not be a phrase assigned to this document. The title must be disregarded. It is obviously not applicable as the decision of the administrative law judge had been favorable to the DOT and no appeal had been taken by the respondent, Iowa Department of Transportation, Motor Vehicle Division. The district court in its ruling in the judicial review proceedings determined that Schaefer was "seeking review of the administrative law judge's decision by the director, pursuant to Iowa Code sec. 321J.13(3)."
Schaefer contends the document was intended as an appeal from the decision of the administrative law judge under Iowa Code section 17A.15 and not a request for rehearing or review.
It is not necessary that we adopt a conclusion about the exact nature of the document. The outcome is no different whether it is an appeal under section 17A.15, an application for rehearing under section 17A.16, or a request for review under section 321J.13. The requirements for the timely filing of a petition for judicial review are essential in each instance.
If the document was an appeal under section 17A.15, the petition for judicial review must be filed within thirty days after the issuance of the agency's final decision in that contested case. Iowa Code § 17A.19(3) (1999). A failure of the director to provide an opportunity to file exceptions, or present briefs might have been a premise for judicial review, but it does not excuse the requirements of timely filing of a petition for judicial review.
If the document was an application for rehearing under section 17A.16, the petition for judicial review must be filed within thirty days after the application has been denied or deemed denied. Iowa Code § 17A.19(3). An application for rehearing is deemed to have been denied unless the agency grants the application within twenty days after its filing. Iowa Code § 17A.16(2).
If the document was a request for review under section 321J.13, the filing of the petition for judicial review must be filed in accordance with chapter 17A. Iowa Code § 321J.14.
Jurisdiction. In Kerr v. Iowa Public Service Co., 274 N.W.2d 283, 287 (Iowa 1979), the supreme court stated:
Judicial review of the administrative proceedings is a right conferred by statute [authorities].
We have said that where a right of judicial review is statutory, the procedure prescribed, by the statute [authorities] must be followed. . . . [F]ailure to satisfy the requirements of § 17A.19 [is] a jurisdictional defect . . . .
Timely appeal is a jurisdictional prerequisite for judicial review. Sharp v. Iowa Dep't of Job Serv., 492 N.W.2d 668, 669 (Iowa 1992); Sioux City Brick Tile Co. v. Employment Appeal Bd., 449 N.W.2d 634, 638 (Iowa 1989); Foley v. Iowa Dep't of Transp., 362 N.W.2d 208, 209 (Iowa 1985).
Schaefer seeks to discount the significance of the notification by the agency dated November 22, 2000, indicating the final decision of the agency on the premise it was confusing. While the same failure to be a "model of clarity" by the intermixing of the terms "appeal," "rescission of the revocation," and "petition to be reopened," can be applied to this document, the notification is clearly in response to the document filed by Schaefer dated October 27, 2000, and represents the final action by the agency. We are satisfied that Schaefer was adequately informed of the final action of the agency by this notification. The filing of the petition for judicial review was required to be filed, at the latest, within thirty days of this notice. The petition for judicial review was not timely filed. The district court correctly concluded that the court lacked jurisdiction to consider the petition for judicial review.
Due Process. Schaefer contends for the first time in this appeal that he was denied due process of law as guaranteed by article I, section 9 of the Iowa Constitution. "Issues not raised before the district court, including constitutional issues, cannot be raised for the first time on appeal. Garwick v. Iowa Dep't of Transp., 611 N.W.2d 286, 288 (Iowa 2000) (quoting State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997)). In addition, in those cases seeking review of agency action "[c]onstitutional issues must be raised at the agency level to be preserved for judicial review." Garwick, 611 N.W.2d at 288 (quoting Soo Lines R.R. v. Iowa Dep't of Transp., 521 N.W.2d 685, 688 (Iowa 1994)). Schaefer has failed to preserve error on this issue.
AFFIRMED.