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IN THE IOWA DISTRICT COURT IN AND FOR MUSCATINE COUNTY

DIANA L. BRODERSON,
Plaintiff,
v.
CITY OF MUSCATINE, IOWA, and
CITY COUNCIL OF THE CITY OF
MUSCATINE, IOWA,
Defendants.

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Case No. EQCV023989

RULING ON PLAINTIFF’S
WRIT OF CERTIORARI

The Writ of Certiorari now comes before the Court for consideration. After having
considered the evidence presented, the written arguments of counsel, and the applicable law, the
Court enters the following ruling.
BACKGROUND FACTS
In November 2015, Plaintiff, Diana Broderson, was elected Mayor of the City of
Muscatine, Iowa. She took office in January 2016, and began to serve a two-year term which
expires in January 2018. Throughout 2016, a number of issues arose with regard to the Mayor’s
actions while in office. The Defendants allege that the Mayor exceeded her authority, repeatedly
violated the City Code and Code of Ethics, and asserted false and baseless allegations exposing
the City to potential liability.
Between February 18, 2016, and January 5, 2017, the City Council held seven closed
meetings to discuss its frustration with the Mayor and what, if anything, the City Council could
do to fix the problems it was having with the Mayor. The Mayor was present for the first three
meetings, but was excluded from the remaining four after a change in Iowa’s closed meeting law

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that permitted the Council to exclude her. See Iowa Code § 21.5(4) (2017). The City
Administrator, Gregg Mandsager, was present for all seven closed City Council meetings.
Eventually, on January 12, 2017, the City Council held a vote in public, upon which they
instructed the City Attorney, Matthew Brick, to file written charges of removal with the Council.
The City Attorney filed the written charges of removal on February 17, 2017, accusing the
Mayor of willful misconduct and/or maladministration and willful or habitual neglect or refusal
to perform duties of office under Muscatine City Code § 1-7-6, which was enacted pursuant to
Iowa Code chapter 66. The Mayor was served with the charges and a Notice of Hearing on
March 9, 2017.
The City hired John Nahra to serve as its independent prosecutor. It is unclear from the
record exactly when the City hired Nahra, but it appears he was retained sometime after January
5, 2017. The Defendants assert that prior to filing the written charges of removal, Nahra
reviewed the charges to ensure that there was sufficient evidence to bring each charge, which led
to the omission of some of the charges. Nahra looked over various documents, including emails,
City Council minutes, reports, and mayoral press releases. After the charges were filed, he took
sworn statements of witnesses who would be testifying at the removal hearing. Nahra then
served as the prosecutor at the removal hearing.
The Mayor retained counsel to represent her at the removal hearing. Prior to the hearing,
the Mayor filed a Motion to Remove the Proceedings to District Court, arguing that the hearing
in front of the City Council would not protect her due process rights. The Council heard
argument on the motion at the outset of the removal hearing and voted 4–3 in favor of denying
the motion, thus allowing the proceedings to continue in front of the City Council.

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The removal hearing took place over the course of two days, on March 23, 2017, and
April 1, 2017, in front of the City Council. The hearing lasted over 20 hours. The City called 18
witnesses and the Mayor called 2 witnesses, including the Mayor herself. None of the City
Councilmembers testified during the removal hearing. During the hearing, the City Council was
advised by Douglas Fulton, an attorney at the City Attorney’s law firm, Brick Gentry P.C. The
City Attorney did not advise the Council as he was called as a witness during the hearing.
After the hearing, the City Council instructed the City and the Mayor to prepare briefs on
the relevant law and to submit proposed decisions. Both the City and the Mayor provided their
post-hearing briefs on May 2, 2017.
On May 11, 2017, the City Council held a three-minute public meeting, during which it
unanimously voted to adopt the City’s Proposed Findings of Fact in its entirety and issue an
order removing the Plaintiff as Mayor. No public deliberation occurred prior to the vote. There
do not appear to be any closed sessions that took place after the removal hearing but prior to the
removal vote.
On May 16, 2017, Plaintiff filed a Petition for Writ of Certiorari with this Court, asserting
that the City Council acted illegally and exceeded its jurisdiction when it removed her from
office. Following a hearing on June 14, 2017, Judge Mark Smith ordered that the Mayor be
reinstated during the pendency of the certiorari proceedings. Seventh Judicial District Chief
Judge Marlita Greve then specially appointed the undersigned to preside over all further
proceedings in this case. A writ of certiorari was issued by the Court directing the Defendants to
produce the record of the removal hearing before the City Council.
On July 14, 2017, Plaintiff filed a Motion to Compel Discovery seeking the audio
recording and transcripts of the closed meetings held prior to the filing of the charges of removal.

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A final hearing on the writ of certiorari was held on July 17, 2017, which led to both Parties
agreeing that the record was complete except for the resolution of the issues raised in the Motion
to Compel Discovery. The Court left the record open only to the extent of any additional
evidence that might come to light as a result of any later ruling on the Motion to Compel
Discovery.
On August 11, 2017, this Court granted the Plaintiff’s Motion to Compel and ordered the
Defendant to provide the Plaintiff with the transcripts and audio recordings of closed meetings
that took place prior to the Mayor’s removal. On August 16, 2017, City Administrator Gregg
Mandsager filed a Motion to Intervene in this proceeding. The following day, Mandsager filed a
Motion to Stay and a Motion to Reconsider the ruling on the Plaintiff’s Motion to Compel
Discovery. The Defendants filed a Joinder in Intervenor’s Motion to Stay as well as their own
Motion to Stay. The Plaintiff filed a Resistance to the Motion to Stay and Motion to Reconsider
and also filed two applications for further evidence.
On August 31, 2017, this Court granted the Intervenor’s Motion to Intervene, denied
Intervenor’s Motion to Stay and Motion to Reconsider, denied the Defendants’ Motion to Stay,
denied the Plaintiff’s First Application for Additional Evidence, and granted the Plaintiff’s
Second Application for Additional Evidence. The Court again ordered the Defendants to produce
the transcripts and recordings of the closed meetings.
On September 7, 2017, Defendants filed an application for Interlocutory Appeal and an
Application for Stay with the Iowa Supreme Court. On September 11, 2017, the Iowa Supreme
Court granted the stay pending resolution of the interlocutory appeal. On September 28, 2017,
the Iowa Supreme Court denied the Defendants’ application for interlocutory appeal and lifted
the stay, allowing the proceedings to resume in the District Court. The following day this Court

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entered an order giving the parties until October 20, 2017, to seek permission to submit
additional evidence. Neither party requested the presentation of additional evidence. The case is
now fully submitted, and the matter now comes before the Court for consideration.
ANALYSIS
When a party believes “an inferior tribunal, board, or officer, exercising judicial
functions, . . . exceeded proper jurisdiction or otherwise acted illegally,” the party may file a
petition for a writ of certiorari within 30 days of the allegedly illegal action. I. R. Civ. P. 1.1401,
1.1402(3). The relief the petitioner is entitled to is “strictly limited to questions of jurisdiction or
the legality of the challenged acts, unless otherwise provided by statute.” Id. 1.1403. Judgment
“shall be limited to annulling the writ or to sustaining it, in whole or in part, to the extent the
proceedings below were illegal or in excess of jurisdiction.” Id. 1.1411.
Certiorari proceedings are not for the correction of errors or to try the proceedings de
novo. Id. 1.1411 official comment. The Court is not permitted to substitute its judgment for the
lower tribunal, and should not examine the evidence in the lower tribunal except to determine the
legality of the lower proceedings. Id. The burden of showing illegality rests on the party that
alleges illegality. Fisher v. Chickasaw Cty., 553 N.W.2d 331, 334 (Iowa 1996).
“When the [certiorari] action alleges violations of basic constitutional safeguards . . . [the
Court] make[s its] own evaluation of the facts from the totality of the circumstances.” Scott v.
State, 517 N.W.2d 718, 722 (Iowa Ct. App. 1994). Here, Plaintiff asserts that the City Council
acted illegally and in excess of its jurisdiction and violated her state and federal due process
rights when it removed her from office.
The Court notes that in addition to the claimed due process violation, the Plaintiff asserts
there was not sufficient evidence to support her removal under Iowa Code chapter 66 because the

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allegations against her did not rise to the level of willful misconduct and maladministration of
office or to the level of willful or habitual neglect or refusal to perform her duties. The Plaintiff
also contends that she did not engage in campaign finance ethical violations and that the
statements of fact provided in the removal decision were inadequate. The City denies these
allegations and claims there was sufficient evidence to support the removal. Because the Court
finds that the resolution of the Plaintiff’s due process claim is dispositive of the pending action,
the Court will not address the Plaintiff’s remaining arguments.
With regard to an individual’s due process rights, the Iowa Supreme Court has stated:
The Fifth Amendment to the United States Constitution states that no person shall
“be deprived of life, liberty, or property, without due process of law,” and the
Fourteenth Amendment also states that no state shall “deprive any person of life,
liberty, or property, without due process of law.” Article I, section 9 of the Iowa
Constitution states that “no person shall be deprived of life, liberty, or property,
without due process of law.” “Due process requires fundamental fairness in a
judicial proceeding,” so a trial that is fundamentally unfair violates the guarantees
of due process in the United States and Iowa Constitutions.
More v. State, 880 N.W.2d 487, 499 (Iowa 2016).
Due process requires, at a minimum, “a fair trial in a fair tribunal.” Botsko v. Davenport
Civil Rights Comm’n, 774 N.W.2d 841, 848 (Iowa 2009). “[O]ur system of law has always
endeavored to prevent even the probability of unfairness.” In re Murchison, 349 U.S. 133, 136
(1955). Courts have recognized that “in some situations, such as those involving pecuniary
interest or demonstrated personal bias, ‘experience teaches that the probability of actual bias on
the part of the judge or decisionmaker is too high to be constitutionally tolerable.’” Botsko, 774
N.W.2d at 848 (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)). In other instances, the
plaintiff may be required to show actual bias or prejudice before the Court will find a due
process violation. Id.

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The Court concludes that the Defendants violated the Plaintiff’s right to due process in
two ways: 1) by intermingling investigatory, prosecutorial, and adjudicative functions during the
removal process; and 2) by having an interest in the outcome of the removal proceeding. The
Court will address these due process violations in turn.
1. Intermingling of Functions
One way an adjudicative body may violate an individual’s due process rights is by
intermingling investigative, prosecutorial, and adjudicative functions. In cases involving the
intermingling of functions, Plaintiff’s burden of proof to show a due process violation depends
on the functions that were intermingled.
Intermingling prosecutorial and adjudicative functions on its own is fundamentally unfair
and is sufficient to establish a due process violation without showing prejudice. See Burke v. City
Council of City of Lansing, No. 15-1797, 2017 WL 706214 at *5 (Iowa Ct. App. Feb. 22, 2017);
see also Botsko, 774 N.W.2d at 853 (“The combination of advocacy and adjudicative functions
has the appearance of fundamental unfairness . . . . Further, because of the risk of injecting bias
in the adjudicatory process, [the plaintiff] is not required to show actual prejudice.”).
“[T]he primary purpose of separating prosecutorial from adjudicative functions is to
screen the decisionmaker from those who have a ‘will to win’—‘a psychological commitment to
achieving a particular result because of involvement on the agency’s team.’” Botsko, 744
N.W.2d at 849 (quoting Michael Asimow, When the Curtain Falls: Separation of Functions in
the Federal Administrative Agencies, 81 Colum. L. Rev. 759, 773 (1981))1. The Court in Botsko
noted that “‘[i]t is difficult for anyone who has worked long and hard to prove a proposition . . .

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Although Botsko dealt with procedural due process and intermingling of functions in agency adjudications, the
Court finds its reasoning to be on point with regard to the City Council’s removal process in this case.

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to make the kind of dramatic change in psychological perspective necessary to assess that
proposition objectively.’” Id. (quoting 2 Richard J. Pierce, Jr., Administrative Law Treatise § 9.9,
at 681 (4th ed. 2002)).
When there is only a combination of investigative and adjudicative functions, however,
there is a much higher burden of persuasion to show a due process violation:
[The plaintiff] “must overcome a presumption of honesty and integrity in those
serving as adjudicators; and [she] must convince that, under a realistic appraisal
of psychological tendencies and human weakness, conferring investigative and
adjudicative powers on the same individuals poses such a risk of actual bias or
prejudgment that the practice must be forbidden if the guarantee of due process is
to be adequately implemented.”
Id. at 848 (quoting Withrow, 421 U.S. at 47).
There are certain functions that courts do not classify as prosecutorial. For example, “a
board must necessarily be exposed to facts or allegations” when it decides to make the initial
decision to consider removal, and “[i]n the absence of evidence that a board has prejudged the
facts of the case, we will not find a denial of due process by the combination of investigative and
adjudicative functions.” Wedergren v. Bd. of Directors, 307 N.W.2d 12, 17 (Iowa 1981) (finding
that a board of directors did not violate a superintendent’s due process rights when it voted to
consider termination and then later voted to terminate). Additionally, the adjudicator’s counsel
asking a question during an adjudicative hearing does not amount to a partisan activity. Botsko,
774 N.W.2d at 851. Adjudicators may also ask questions during an adjudicative proceeding “in
order to clarify the record” without taking on a prosecutorial function. Id. Further, “the mere
filing of a complaint by an executive director is considered ministerial in nature and does not
give rise to a due process issue in the event the executive director participates in the final agency
adjudication.” Id.

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However, “when a staff member becomes involved in the plaintiffs’ litigation strategy or
assumes a personal commitment to a particular result, he or she becomes an adversary with the
‘will to win.’” Id. at 852. The Court in Botsko noted that in determining what kind of
involvement constitutes a procedural due process violation, “the question is one of line-drawing
and balancing.” Id.
Here, in order to understand the functions the City Council undertook in the Mayor’s
removal, the Court must consider the transcripts of closed meetings the Council held prior to
initiating the removal process. The five closed meetings the Court considered in this certiorari
action were held on February 18, 2016; June 23, 2016; October 13, 2016; December 15, 2016;
and January 5, 2017.
At multiple closed meetings, the City Attorney and City Council discussed allegations
regarding the Mayor’s actions. At first, these concerns were addressed in conversations regarding
resolving conflict and moving forward. However, as time passed, the focus shifted from
resolving conflict to finding something they could do about what they believed was the Mayor’s
wrongful conduct. During multiple closed meetings, the City Attorney would discuss with the
City Council all of the Mayor’s alleged transgressions, and these allegations were eventually
used to form the factual basis for the charges of removal.
The Iowa Code chapter 66 removal process was first discussed at the meeting held June
23, 2016. At the end of this meeting, the City Council authorized the City Attorney to further
research the removal process. This research was presented to the Council at its October 13, 2016,
closed meeting. The City Attorney informed the Council that the removal proceedings could take
place in either the district court or in front of the City Council, but that the Council would have
more control if it presided over the hearing. The City Attorney noted that due process would not

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allow the Council or the City Attorney to actually prosecute the case, but the City Attorney
mentioned he would be able to provide the prosecutor with all of the information he had. The
City Attorney walked through the potential charges of removal and talked about strategy with the
Council regarding whether it should include certain allegations because some of the potential
witnesses might not be willing to testify at a removal hearing. The City Attorney, however,
assured the Council that most, if not all, of the allegations they had discussed during the closed
meetings would be included in the removal charges.
At the December 15, 2016, closed meeting, the City Attorney informed the Council that
he had spoken with a number of public relations experts about what the Council could do to
restore its image in the community. Based on the advice of the public relations experts, the City
Attorney told the Council that it needed to decide what the end goal was with regard to the
Mayor: whether it was to remove her or just to weaken her to ensure that she would lose the next
election. The Council discussed a number of options, which included filing an Iowa Public
Information Board complaint, filing the removal charges but never holding a hearing, or filing
charges and holding the removal hearing. The City Attorney noted that the next steps would vary
greatly depending on the Council’s end goal.
The Council then decided to take a straw poll to determine its end goal. The
Councilmembers went around the table, each stating his opinion with regard to the path forward.
After most of the Councilmembers had stated their opinion, the City Attorney clarified and asked
what the consensus was with regard to the end goal. The Council again decided to go around the
table for a vote. At the end of this vote on December 15, 2016, all but two Councilmembers had
voted in favor of removing the Mayor from office.

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During the January 5, 2017, meeting, the City Attorney presented the Council with a draft
of the charges of removal. The City Council discussed whether it should file all of the charges, or
if it should leave certain charges out until the Councilmembers were able to see what the
Mayor’s response was and then amend the charges to add more later if needed. During this
meeting, the City Attorney discussed the number of charges included in the removal document,
noting that the Mayor would have to disprove each and every charge and if she was unable to do
so, she would be removed. The City Attorney followed up by noting that they wanted to make
sure they won.
During the January 5, 2017, meeting, the City Attorney also again asked about the end
goal. In response, one of the two Councilmembers who had not voted in favor of removal during
the December 15th meeting stated that he was now in favor of removing the Mayor from office.
At that point, the vote by the City Councilmembers was at least 6–1 in favor of removing the
Mayor from office. It is important to note that this vote took place prior to the hiring of an
independent prosecutor, prior to filing the charges of removal, and prior to the removal hearing.
The Defendants contend that there was no intermingling of prosecutorial and adjudicative
functions because the City Council hired an independent prosecutor, made express findings of
fact and conclusions of law, gave the Mayor the ability to present evidence and a meaningful
opportunity to be heard, and only performed ministerial procedural actions to commence the
evidentiary hearing. The Defendants contend that to succeed in showing a due process violation,
the Plaintiff must overcome the presumption of honesty and integrity in the adjudicators.
The City relies heavily on the fact that it hired a special prosecutor for the Mayor’s
removal hearing. The City did in fact retain Mr. Nahra as a special prosecutor, and provided him
with all of the documents it had regarding the investigation into the Mayor’s actions. Mr. Nahra

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reviewed the charges of removal, interviewed witnesses the Council identified, and was the
prosecutor at the removal hearing. However, prior to hiring Mr. Nahra the City had already
completed a substantial amount of the investigation and essentially all of its strategizing. This is
clear from the City Attorney drafting removal charges prior to the January 5, 2017, closed
meeting and from the Council having already discussed which charges to include.
Moreover, the record clearly demonstrates that the Council had prejudged the issues. The
Council had voted at least 6–1 to remove the Mayor from office before the removal hearing had
even been scheduled. In sum, the record shows that the Council had a “will to win” the removal
hearing and that the Mayor’s removal was a foregone conclusion.
Due process requires a fair trial before a fair tribunal, not simply the empty appearance of
fairness. Upon review of the record in this case, and based on the totality of the circumstances,
the Court reaches the inescapable conclusion that the City Council impermissibly intermingled
investigative, prosecutorial, and adjudicative functions which rendered the Mayor’s removal
proceedings fundamentally unfair, and thus violated her due process rights.
2. City Council’s Interest in the Outcome
“[N]o man is permitted to try cases where he has an interest in the outcome. That interest
cannot be defined with precision. Circumstances and relationships must be considered.” In re
Murchison, 349 U.S. at 136; Turnis v. Bd. of Ed., 109 N.W.2d 198, 203 (Iowa 1961) (adopting In
re Murchison in Iowa).
In Turnis, a joint school board voted unanimously to create a new school system. The
plaintiffs in Turnis challenged the vote on due process grounds because two of the board
members who participated in the vote had also signed a petition in support of creating the new
school system. The Iowa Supreme Court in Turnis found no due process violation because the
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two interested members of the Board of Education “were not the sole judges of the plan and their
votes were not decisive. In addition, no special, personal, or pecuniary interest which would be
sufficient to disqualify them appears.” Turnis, 109 N.W.2d at 203.
In Burke v. City Council of City of Lansing, No. 15-1797, 2017 WL 706214 (Iowa Ct.
App. Feb. 22, 2017), the county attorney had filed a petition against the city council alleging two
violations of the open meetings law. The city attorney worked out a potential settlement that
would require councilmember Burke to resign in exchange for the county attorney dismissing the
petition against the council. The city council held a closed session and thereafter the mayor filed
a petition for Burke’s removal citing his violations of the open meetings law. After a special
council meeting, the other four councilmembers voted to remove Burke from office.
The Iowa Court of Appeals found a due process violation “because the four city council
members who voted to remove him understood they would have no financial exposure for
possible violations of the open meetings law if they removed Burke.” Id. at * 4. The Court of
Appeals found that “the four city council members’ statements that ‘the pending suit had no
bearing on their decision’ to remove Burke” were self-serving and unpersuasive, and further that
Burke was not required to show actual prejudice in order to establish a due process violation. Id.
The Court of Appeals held that the council members’ pecuniary interest in removing Burke
rendered the proceedings fundamentally unfair. Id. at *5.
The record in this case contains many examples of how both individual Councilmembers
and the Council as a whole had an interest in removing the Mayor from office. By the time the
Council held the June 23rd meeting, the City Attorney was aware that Gregg Mandsager was
considering bringing a defamation suit against the Mayor. The City Attorney also discussed how
the Mayor had allegedly defamed numerous people—including the City Councilmembers

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themselves—and that all of these individuals could bring defamation suits. The City Attorney
discussed his concern that the City’s insurance policy might not cover the Mayor if she were
sued, and that it could get to the point that the insurance provider might take the position that the
City Council was not acting within the scope of its duties, was not honoring its fiduciary
obligations, and should have done more. The City Attorney warned the Councilmembers that the
City’s insurance policy might not protect them from personal liability if the City or the City
Council were sued unless they took action, including initiating a removal proceeding. The City
Attorney mentioned multiple times during the closed meetings that the Councilmembers needed
to protect themselves in case there was a lawsuit.
In addition to possible personal liability, it is clear from the record that the City Council
believed that the Mayor had damaged the Council’s reputation in the community. The Mayor
publicly accused the City Council of being bullies and good ol’ boys, of not supporting her as
Mayor, of taking away her powers and not preserving democracy, and of sullying the names of
the individuals she selected for appointments. The Mayor alleged that the City Council had
discriminated against her based on gender, was against diversity, and was a “D.C. style closed
door, back-room government.” The Mayor also accused the Council of criminal activity. The
Mayor spoke to the City Attorney about one Councilmember allegedly breaking the law with
regard to certain city ordinances. Additionally, the Mayor filed complaints with the Iowa Public
Information Board accusing the Council of violating the open meetings law. The Mayor
contacted the County Attorney about pressing criminal charges against all of the
Councilmembers for violating the Civil Service Statute, and contacted the Iowa Attorney
General’s office for an opinion on that matter.

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The Defendants assert that no due process violation exists because there was no
pecuniary liability exposure at the time of the removal. The IPIB complaints had been dismissed
by the time of the removal, the City Attorney had already declined to file criminal charges
against any Councilmember, and neither the Attorney General, the EEOC, IPERS, or the State
Ombudsman’s office were pursuing claims against the Councilmembers at the time of the
removal. The Defendants contend all of these facts show that they had no pecuniary personal
interest in removing the Mayor from office, and that the Plaintiff is therefore unable to establish
a due process violation.
The Court makes no determination as to the accuracy and soundness of any or all of the
Mayor’s statements, allegations, or complaints, as they were known to the Defendants at the time
of the removal hearing. However, when the Council made the decision to remove the Mayor
from office the Councilmembers had a strong interest in shielding themselves from potential
personal liability, in preventing the Council from being the focus of further accusations, and in
restoring its image in the community while negatively impacting the Mayor’s image. Thus, the
City Council had a personal interest in the proceeding at the time it removed the Mayor from
office which rendered the removal proceedings fundamentally unfair. Moreover, the
Councilmembers’ vote on the Mayor’s removal was decisive in that the Councilmembers were
the sole judges who determined whether the Mayor would remain in office or be removed. The
Court therefore concludes that the City Council’s interest in removing the Mayor from office
constituted an additional due process violation.

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RULING
For all of the above-stated reasons, it is the ruling of the Court that the Plaintiff’s Writ of
Certiorari is SUSTAINED. The City Council’s May 11, 2017, decision removing Mayor Diana
Broderson from office is vacated. Costs are assessed to the Defendants.
All of the above is SO ORDERED.

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State of Iowa Courts
Type:

OTHER ORDER

Case Number
EQCV023989

Case Title
DIANA L. BRODERSON V. CITY OF MUSCATINE, ET.AL
So Ordered

Electronically signed on 2017-10-24 15:37:55

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