IN THE SUPREME COURT OF IOWA No. 99 / 05–1833
Filed May 30, 2008
JOHN BAKER,
Appellant,
vs.
CITY OF IOWA CITY, IOWA, and IOWA CITY HUMAN RIGHTS COMMISSION,
Appellees.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Johnson County, L. Vern
Robinson (subpoena) and William L. Thomas (summary judgment), Judges.
Plaintiff appeals district court’s summary judgment for city and its
civil rights commission and court’s quashing of plaintiff’s subpoena seeking
records of assistant city attorney. DECISION OF COURT OF APPEALS
VACATED. JUDGMENT OF DISTRICT COURT REVERSED IN PART AND
AFFIRMED IN PART; CASE REMANDED.
Michael J. Pitton of Martinek & Pitton, Iowa City, for appellant.
Susan M. Dulek, Assistant City Attorney, Iowa City, for appellees. 2
TERNUS, Chief Justice.
The plaintiff, John Baker, appeals the district court’s entry of
summary judgment for the appellees, City of Iowa City, Iowa, and Iowa City
Human Rights Commission, based on the court’s conclusion the plaintiff’s
claims were moot. In addition, Baker contends the court erred in failing to
rule as a matter of law that the City’s ordinances exceed its home rule
powers in two particulars: (1) the prohibition of discrimination by small
employers; and (2) the prohibition of discrimination on the basis of marital
status. Baker also challenges the district court’s quashing of his subpoena
seeking production of the assistant city attorney’s records.
On appeal, the Iowa Court of Appeals affirmed the rulings of the
district court. Upon our further review, we conclude two of the plaintiff’s
claims are not moot, that the district court should have entered summary
judgment for the plaintiff on his constitutional challenge to the Iowa City
ordinance prohibiting employment discrimination by small employers, and
that the plaintiff has waived his challenge to the district court’s ruling on the
defendants’ motion to quash. Accordingly, we vacate the court of appeals’
decision, reverse in part and affirm in part the district court’s judgment, and
remand the case for further proceedings.
I. Background Facts and Proceedings.
The plaintiff owns a home located in Iowa City. Because he lives out of
state, he employs a resident manager for the property. In 2003 Baker
advertised for a new manager and later rejected a female applicant because
she failed to provide the requested references and because she indicated she
intended to have her eleven-year-old son perform outside property
maintenance, which Baker believed was unsafe and might also violate child
labor laws. The applicant later filed a complaint with the Iowa City Human 3
Rights Commission, claiming discrimination in employment and housing on
the basis of marital status, race, and sex.
The Commission is a municipal civil rights commission, established by
ordinance of the City of Iowa City, in part, to protect persons aggrieved by
discrimination within the corporate limits of Iowa City. After investigating
the woman’s complaint, the Commission’s staff found probable cause existed
that discrimination had occurred based upon race and marital status, both
in the area of employment and housing. This finding of probable cause was
based on an alleged violation of city ordinances, not state law. See Iowa City
City Code §§ 2–3–1, 2–5–1. Efforts at conciliation were unsuccessful, so the
matter was set for hearing.
Prior to the hearing scheduled on the discrimination complaint, Baker
filed this action against the City and the Commission. Baker’s petition
consisted of four counts: (1) count I requested a declaratory judgment that
the city ordinances were inconsistent with and in conflict with state law and
therefore unconstitutional; (2) count II sought damages under 42 U.S.C.
§ 1983 based on the City’s enforcement of the ordinances, the investigation
undertaken, and the commencement of the administrative proceedings; (3)
count III sought a writ of certiorari on the ground the defendants exceeded
their proper authority and acted illegally in conducting the investigation and
commencing the administrative proceeding; and (4) count IV requested a
stay of the administrative proceeding until a determination of the validity of
the ordinances was made.
Baker’s constitutional claim focused on two aspects of the city
ordinances: (1) the City’s employment discrimination ordinance includes all
employers within its prohibitions, whereas state law exempts employers
having fewer than four employees from its prohibition of unfair employment
practices; and (2) the City’s ordinance prohibits discrimination on the basis 4
of marital status, a prohibition not found in state law. Compare Iowa City
City Code § 2–1–1 (defining “employer” in part as “all entities, wherever
situated, who employ one or more employees within the City”), with Iowa
Code § 216.6(6)(a) (2003) (excluding from employment discrimination
prohibition “[a]ny employer who regularly employs less than four
individuals”); compare Iowa City City Code § 2–3–1 (prohibiting employment
discrimination on the basis of marital status), with Iowa Code § 216.6(1)(a)
(prohibiting employment discrimination on several bases, but not mentioning
marital status); compare Iowa City City Code § 2–5–1 (prohibiting
discrimination in housing on the basis of marital status), with Iowa Code
§ 216.8 (prohibiting discriminatory housing practices on several bases, but
not including marital status). Based on these differences, Baker claimed the
City’s ordinances are beyond the City’s constitutional home rule authority
because they conflict with state law.
After bringing this action, Baker served subpoenas duces tecum on
several city employees, including the assistant city attorney Susan Dulek.
The defendants filed a motion to quash, which the district court sustained as
to Dulek based on the attorney-client privilege.
Before the administrative hearing on the civil rights complaint was
held, Baker settled with the complainant. As a result, the discrimination
complaint was dismissed with prejudice.
Subsequently, Baker filed a motion for partial summary judgment on
count I in the present case, claiming the city ordinances were facially
unconstitutional because they conflicted with state law. The defendants
resisted Baker’s motion for partial summary judgment and filed a cross-
motion for summary judgment as to counts I and II. In his resistance, Baker
agreed count I should be determined as a matter of law, but contended
count II—his § 1983 claim—rested on issues of disputed fact and was not 5
suitable for summary resolution. The defendants then filed a second motion
for summary judgment, asserting that, because the discrimination complaint
had been dismissed, with the exception of an “as-applied” procedural due
process claim asserted in count II, all of the plaintiff’s claims were moot.
After hearing, the district court ruled all the issues raised by the
plaintiff were rendered moot by settlement of the underlying discrimination
claim. The court granted the defendants’ motions for summary judgment
and dismissed the plaintiff’s action in its entirety.
The plaintiff appealed the district court’s dismissal of counts I, II, and
III, as well as the district court’s quashing of the subpoena seeking records
from assistant city attorney Dulek. The appeal was transferred to the court
of appeals. That court held that, “[w]ith the dismissal of the discrimination
complaint, the controversy that precipitated the [plaintiff’s] lawsuit was
eliminated.” For this reason, the court of appeals concluded the district
court was correct in dismissing this case as moot; it did not reach the
propriety of the district court’s ruling with respect to the subpoena. We
granted the plaintiff’s application for further review.
II. Scope of Review.
Summary judgment rulings are reviewed for correction of errors of law.
Hallett Constr. Co. v. Meister, 713 N.W.2d 225, 229 (Iowa 2006). “To obtain a
grant of summary judgment on some issue in an action, the moving party
must affirmatively establish the existence of undisputed facts entitling that
party to a particular result under controlling law.” Interstate Power Co. v.
Ins. Co. of N. Am., 603 N.W.2d 751, 756 (Iowa 1999).
District court rulings regarding the discovery process are reviewed for
an abuse of discretion. Exotica Botanicals, Inc. v. Terra Int’l Inc., 612 N.W.2d
801, 804 (Iowa 2000); State ex rel. Miller v. Nat’l Dietary Research, Inc., 454
N.W.2d 820, 822 (Iowa 1990). An abuse of discretion will be found when the 6
district court exercises its discretion on grounds or for reasons that are
clearly untenable or to an extent that is clearly unreasonable. Nat’l Dietary
Research, 454 N.W.2d at 822.
III. Mootness.
On occasion a claim will become moot when facts or governing laws
change after an action is commenced. “A case is moot if it no longer
presents a justiciable controversy because the issues involved are academic
or nonexistent.” Perkins v. Bd. of Supervisors, 636 N.W.2d 58, 64 (Iowa
2001). Issues are academic when an opinion would be of no force or effect in
the underlying dispute. Id. A second aspect of the mootness doctrine is
known as the “personal stake requirement.” U.S. Parole Comm’n v. Geraghty,
445 U.S. 388, 396, 100 S. Ct. 1202, 1208, 63 L. Ed. 2d 479, 490 (1980).
The “personal stake” aspect of mootness doctrine also serves primarily the purpose of assuring that . . . courts are presented with disputes they are capable of resolving. One commentator has defined mootness as “the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).”
Id. at 397, 100 S. Ct. at 1209, 63 L. Ed. 2d at 491 (quoting Henry P.
Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973)); accord Iowa Civil Liberties Union v. Critelli, 244 N.W.2d
564, 567–68 (Iowa 1976) (“Standing may, of course, be lost if the claim on
which it is based becomes moot.”).
The district court believed Baker’s settlement with the complainant
rendered the issues in this case academic. Baker does not disagree with this
assessment as to count IV in which he sought to stay the administrative
proceeding. Given the dismissal of the administrative proceeding, any
dispute with respect to whether that proceeding should be stayed is
nonexistent. 7
We think the same is true with respect to count III, in which Baker
sought a writ of certiorari pursuant to Iowa Rule of Civil Procedure 1.1404.
In that count he claimed the defendants exceeded their proper authority and
acted illegally by investigating and pursuing the complaint under the
challenged city ordinances. If the plaintiff were ultimately successful in
establishing the defendants acted illegally, the scope of any relief would be
circumscribed by Iowa Rule of Civil Procedure 1.1411, which provides:
Unless otherwise specially provided by statute, the judgment on certiorari shall be limited to sustaining the proceedings below, or annulling the same wholly or in part, to the extent that they were illegal or in excess of jurisdiction, and prescribing the manner in which either party may proceed further, nor shall such judgment substitute a different or amended decree or order for that being reviewed.
Iowa R. Civ. P. 1.1411. The potential relief—annulling the proceedings below
and prescribing the manner in which to proceed further—could have no
practical effect because the proceeding that would be impacted by any such
relief is no longer pending. Therefore, we agree with the district court that
Baker’s settlement of the underlying discrimination claim has rendered his
request for a judgment on certiorari moot.
We do not, however, concur that Baker’s claim under count II of his petition is moot. In count II, Baker alleges a § 1983 claim for damages based
on the defendants’ enforcement of the city ordinances, their investigation of
the complaint, and the commencement of administrative proceedings. He
claims their actions violated his due process rights and the equal protection
guarantee of the United States Constitution. In response, the defendants
make the conclusory argument that, because there is no discrimination
complaint pending against Baker, these issues are moot. While Baker’s
voluntary settlement of the discrimination complaint may have eliminated
the controversy that precipitated this lawsuit, that settlement clearly did not 8
encompass Baker’s claim that his civil rights had been violated by the City.
Count II is not moot, and the district court erred in dismissing count II on
this basis.
We also conclude count I remained viable after dismissal of the
administrative proceeding. In count I, Baker seeks a declaratory judgment
that the city ordinances are unconstitutional to the extent the City attempts
to prohibit employment discrimination by employers having fewer than four
employees and to prohibit employment and housing discrimination on the
basis of marital status. The defendants claim, in essence, that Baker has
lost his standing to challenge the ordinances because he is no longer being
sued under these laws.
Standing has been defined to mean that a party must have “ ‘sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of the controversy.’ ” We have held that in order to have standing a party must (1) have a specific personal or legal interest in the litigation and (2) be injuriously affected.
Berent v. City of Iowa City, 738 N.W.2d 193, 202 (Iowa 2007) (quoting
Birkhofer ex rel. Johannsen v. Brammeier, 610 N.W.2d 844, 847 (Iowa 2000)).
Under circumstances analogous to those present here, the
Massachusetts Supreme Judicial Court has held that a plaintiff continued to
have standing to challenge the validity of a municipal ordinance prohibiting
public begging even though his prosecution under the ordinance was no
longer pending. Benefit v. City of Cambridge, 679 N.E.2d 184, 187 (Mass.
1997). Relying in part on the existence of a continuing threat of prosecution
under the ordinance, the court concluded “the plaintiff [had] a sufficient
personal interest in the rights and relief at stake to meet standing
requirements.” Id. Similarly, in Ramos v. Town of Vernon, 761 A.2d 705
(Conn. 2000), the Connecticut Supreme Court held a minor subject to a
juvenile curfew ordinance did not have to risk the consequences of violating 9
the ordinance in order to have standing to test the constitutionality of the
law. 761 A.2d at 714.
We reach the same conclusion here. Notwithstanding the dismissal of
the underlying discrimination complaint, as an Iowa City housing owner and
employer, Baker remains constrained by restrictions imposed by the city
ordinances. Therefore, he continues to have a specific personal interest in
whether the city ordinances are valid and to be injuriously affected by these
ordinances. Thus, Baker has a sufficient stake in the resolution of the
controversy to satisfy our standing requirements. Cf. Ames Rental Prop.
Ass’n v. City of Ames, 736 N.W.2d 255, 259 n.3 (Iowa 2007) (holding
association of landlords had standing to challenge city zoning ordinance,
noting association’s members “have a legitimate interest in Ames’s ordinance
because they are being fined for violating the ordinance and presumably the
ordinance makes the homes more difficult to rent”). We conclude the district
court erred in dismissing count I on the ground of mootness.
IV. Constitutionality of Ordinances.
In addition to seeking a reversal of the district court’s summary
judgment for the defendants, the plaintiff also raises on appeal the district
court’s failure to grant his motion for summary judgment on count I of the
petition, in which he claims the Iowa City ordinances are unconstitutional.
As noted earlier, Baker’s challenge to the ordinances is twofold: he contends
the inclusion of small employers, as well as the prohibition of discrimination
based on marital status, are inconsistent with chapter 216. Therefore, he
argues, the ordinances exceed the City’s home rule power.
A. Governing Legal Principles. The Iowa Constitution gives
municipalities authority to regulate matters of local concern, subject to the
superior power of the legislature: “Municipal corporations are granted home
rule power and authority, not inconsistent with the laws of the general 10
assembly, to determine their local affairs . . . .” Iowa Const. art. III, § 38A;
see also Iowa Code § 364.1 (allowing cities to exercise powers and perform
functions “if not inconsistent with the laws of the general assembly”). This
type of home rule is “sometimes referred to as legislative home rule” because
the legislature retains the power “to trump or preempt local law.” Berent,
738 N.W.2d at 196.
“An exercise of a city power is not inconsistent with a state law unless
it is irreconcilable with the state law.” Iowa Code § 364.2(3). A municipal
ordinance is irreconcilable with a law of the General Assembly and,
therefore, preempted by it, when the ordinance “ ‘prohibits an act permitted
by statute, or permits an act prohibited by a statute.’ ” City of Des Moines v.
Gruen, 457 N.W.2d 340, 342 (Iowa 1990) (quoting City of Council Bluffs v.
Cain, 342 N.W.2d 810, 812 (Iowa 1983)); accord Goodenow v. City Council of
Maquoketa, 574 N.W.2d 18, 26 (Iowa 1998); cf. Goodell v. Humboldt County,
575 N.W.2d 486, 500 (Iowa 1998) (applying same analysis to identical
provisions governing county home rule authority).
In determining what the legislature has permitted and prohibited, we look to the legislative intent in enacting the state statutes and we require that any local ordinance remain faithful to this legislative intent, as well as to the legislative scheme established in the relevant state statutes.
Goodell, 575 N.W.2d at 500.
B. Constitutionality of Ordinance Applying Prohibition of Unfair
Employment Practices to Small Employers. With regard to unfair
employment practices, the Iowa City City Code makes it unlawful for
any employer to refuse to hire, accept, register, classify, upgrade or refer for employment, or to otherwise discriminate in employment against any other person or to discharge any employee because of age, color, creed, disability, gender identity, marital status, national origin, race, religion, sex or sexual orientation. 11
Iowa City City Code § 2–3–1 (emphasis added). As noted earlier, section 2–1–
1 of the city code defines “employer” in relevant part as “all entities, wherever
situated, who employ one or more employees within the City.” (Emphasis
added.) In contrast, Iowa Code section 216.6 states in pertinent part:
1. It shall be an unfair or discriminatory practice for any: a. Person to refuse to hire, accept, register, classify, or refer for employment, to discharge any employee, or to otherwise discriminate in employment against any applicant for employment or any employee because of the age, race, creed, color, sex, national origin, religion, or disability of such applicant or employee, unless based upon the nature of the occupation. . . . .... 6. This section shall not apply to: a. Any employer who regularly employs less than four individuals. For purposes of this subsection, individuals who are members of the employer’s family shall not be counted as employees.
Iowa Code § 216.6(1)(a), (6)(a) (emphasis added). The issue before us for
decision is whether the City’s application of its prohibition against unfair
employment practices to employers who would be excluded under state law
prohibiting unfair and discriminatory employment practices creates an
irreconcilable conflict between the ordinance and the state statute.
We first address the City’s assertion that chapter 216 expressly
permits variations between local and state discrimination laws such as the
difference at issue here. Iowa Code section 216.19 provides that “[n]othing
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 and discriminatory practices.” Id. § 216.19 para. 2. The
defendants contend their prohibition of discrimination by employers with
less than four employees is the prohibition of discrimination by a “broader or
different category.” This argument ignores the statutory language qualifying 12
the noun “categories”: “of unfair and discriminatory practices.” When read
in its entirety, section 216.19 expressly allows cities latitude only with
respect to discriminatory practices. See Webster’s Third New International
Dictionary 1780 (unabr. ed. 2002) (defining a “practice” as “a mode of acting
or proceeding”). The class of small employers added to the City’s ordinance
is not a different category of “practices.” We conclude, therefore, that section
216.19 does not authorize the defendants to apply the city’s prohibition of
discriminatory employment practices to a broader category of employers.
Having concluded the legislature did not expressly authorize the
difference under consideration, we return to an evaluation of whether the
city ordinance is otherwise inconsistent with section 216.6. We think the
answer to this question lies in the legislative intent underlying the exemption
of small employers from the state employment discrimination statute. The
exclusion of small employers from employment discrimination prohibitions
was enacted as part of revisions made to Iowa’s civil rights statute in 1965.
See 1965 Iowa Acts ch. 121, § 7. Those revisions, including the small-
employer exemption, were substantially based on changes advocated in a
1964 law review article. See U.S. Jaycees v. Iowa Civil Rights Comm’n, 427
N.W.2d 450, 454 (Iowa 1988) (citing Arthur Bonfield, State Civil Rights
Statutes: Some Proposals, 49 Iowa L. Rev. 1067 (1964) [hereinafter “Bonfield
Article”]). In United States Jaycees, this court relied on statements in this
law review article as an expression of the rationale underlying the
legislature’s adoption of the suggested revisions, id., and we do so again
here.
In the article, the author urged enactment of an employment
discrimination statute that included a small-employer exemption. Bonfield
Article, 49 Iowa L. Rev. at 1108. In advocating for the adoption of this
exemption, the author explained: 13 Almost all fair employment practices acts exempt small employers, which are defined as employers with less than a specified number of employees. The general consensus seems to be that notions of freedom of association should preponderate over concepts of equal opportunity in these situations because the smallness of the employer’s staff is usually likely to mean for him a rather close, intimate, personal, and constant association with his employees.
Id. at 1109 (footnotes omitted); see also Thibodeau v. Design Group One
Architects, LLC, 802 A.2d 731, 741 (Conn. 2002) (stating one reason for
small-employer exemption was legislature’s desire to protect the “ ‘intimate
and personal relations existing in small businesses’ ” (quoting Tomka v.
Seiler Corp, 66 F.3d 1295, 1314 (2d Cir. 1995))). The exemption suggested
in this article was subsequently adopted nearly verbatim by the Iowa
legislature. We think, therefore, that the legislature made the policy decision
that “freedom of association should preponderate over concepts of equal
opportunity” in situations involving small employers.
As noted above, “[i]n determining what the legislature has permitted
and prohibited, we look to the legislative intent in enacting the state statutes
and we require that any local ordinance remain faithful to this legislative
intent . . . .” Goodell, 575 N.W.2d at 500. Iowa Code section 216.6(6)(a)
reflects the legislature’s intent to recognize and protect small employers’
associational interests. To allow local communities to bar employment
discrimination by these same small employers would thwart this legislative
intent. Therefore, we conclude the Iowa City ordinance subjecting small
employers to its prohibition of unfair employment practices conflicts with
state law and exceeds the City’s home rule authority. The district court
erred in failing to rule the ordinance was unconstitutional in this respect.
C. Constitutionality of Ordinances Prohibiting Discrimination on
the Basis of Marital Status. As previously discussed, the Iowa City City
Code prohibits discrimination in employment and housing on the basis of 14
marital status, a class not mentioned in the state civil rights statute.
Compare Iowa City City Code § 2–3–1 (prohibiting employment
discrimination on the basis of marital status), and id. § 2–5–1 (prohibiting
discrimination in housing on the basis of marital status), with Iowa Code
§ 216.6(1)(a) (prohibiting employment discrimination on several bases, but
not mentioning marital status), and id. § 216.8 (prohibiting discriminatory
housing practices on several bases, but not including marital status). Unlike
the small-employer exemption, there is no express indication in chapter 216
that the legislature made a policy decision to allow employment and housing
decisions to turn on a person’s marital status. To the contrary, this
variation between local law and state statute falls within the regulatory
latitude the legislature bestowed on cities in section 216.19 to enact
ordinances that prohibit “broader or different categories of unfair or
discriminatory practices.” Discrimination on the basis of marital status is a
class of discriminatory practices. Therefore, the City has authority under
section 216.19 to prohibit such conduct. Because the City’s enactment of
ordinances prohibiting discrimination in employment and housing on the
basis of marital status is not inconsistent with state law, such ordinances
are within the City’s home rule authority. The district court did not err in
failing to rule the City’s ordinances were unconstitutional in this respect.
V. Ruling on Defendants’ Motion to Quash Subpoena.
Because this matter must be remanded for trial on Baker’s § 1983
claim, we will address his challenge to the district court’s quashing of the
subpoena seeking the records of assistant city attorney Dulek. The district
court ruled “the information sought from Ms. Dulek is protected by the
attorney/client privilege.” Baker contends the attorney-client privilege
should not shield the assistant city attorney’s file from discovery because 15
“the city attorney’s office participates administratively in a human rights
contested case.”
Pursuant to Iowa City City Code section 2–4–2, the city attorney
receives an investigative summary and recommendation from the
commission investigator and must then issue a written opinion to the
Commission on “whether probable cause exists to believe a discriminatory
practice occurred as alleged by the complainant.” Iowa City City Code § 2–4–
2(F), (G). Other than a conclusory statement that such “opinions and
information by the city attorney’s office should not be deemed privileged,”
Baker advances no argument in his brief and cites no authority to support a
conclusion that the city attorney’s opinion is not attorney work product or
that these communications are not protected by the attorney-client privilege
as found by the district court. In order to address this issue under these
circumstances, we would be obliged “to assume a partisan role and
undertake the appellant’s research and advocacy.” Inghram v. Dairyland
Mut. Ins. Co., 215 N.W.2d 239, 240 (Iowa 1974) (dismissing an appeal based
on appellant’s failure to cite any authority); accord Hyler v. Garner, 548
N.W.2d 864, 876 (Iowa 1996) (stating “we will not speculate on the
arguments [the defendant] might have made and then search for legal
authority and comb the record for facts to support such arguments”);
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 184 (Iowa 1980) (noting
party failed to give supportive authority for general allegations of error and
concluding party’s “argument is so indefinite as to preclude our
consideration”). We decline to do so. Consequently, we deem the plaintiff’s
challenge to the district court’s ruling waived. See City of Marquette v.
Gaede, 672 N.W.2d 829, 835 (Iowa 2003) (holding party’s failure to cite any
authority resulted in waiver of issue); Iowa R. App. P. 6.14(1)(c) (stating 16
“[f]ailure in the brief to state, to argue or to cite authority in support of an
issue may be deemed waiver of that issue”).
VI. Summary and Disposition.
We hold the plaintiff’s settlement of the underlying discrimination
complaint did not render moot his request for declaratory relief made in
count I or his claim for damages under 42 U.S.C. § 1983 made in count II.
On the other hand, that settlement did make moot the plaintiff’s claims for
certiorari relief and for injunctive relief as sought in counts III and IV,
respectively. Based on these conclusions, we reverse the grant of summary
judgment to the defendants on counts I and II, and affirm the grant of
summary judgment to the defendants on counts III and IV.
The City’s inclusion of small employers in its prohibition of unfair
employment practices conflicts with state law exempting small employers
from such constraints under state law. Because the city ordinance exceeds
the City’s home rule authority in this regard, the district court erred in
failing to issue a declaratory judgment to the plaintiff declaring the
employment discrimination ordinance unconstitutional insofar as it is
applied to employers exempted under the state civil rights statute. The
City’s prohibition of discriminatory employment and housing practices based
on marital status is not inconsistent with state law. Rather, such an
expansion of state prohibitions is expressly authorized by section 216.19.
Accordingly, the district court did not err in failing to issue a declaratory
judgment that the ordinances were unconstitutional in this respect.
The plaintiff has failed to support with legal authorities and argument
his conclusory contention that the assistant city attorney’s file does not
constitute attorney work product and is not protected by the attorney-client
privilege. Therefore, we deem this issue waived. 17
We remand this case to the district court for entry of a judgment on
count I declaring the employment discrimination ordinance unconstitutional
in its application to employers having fewer than four employees and for
further proceedings on the plaintiff’s § 1983 claim as alleged in count II.
DECISION OF COURT OF APPEALS VACATED. JUDGMENT OF
DISTRICT COURT REVERSED IN PART AND AFFIRMED IN PART; CASE
REMANDED.
All justices concur except Baker, J., who takes no part.