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LIVING HISTORY FARMS (1985)(B)(ST)

Topic Code: E011Educational - Materials (ST), E016Educational Institution, N101Nonprofit Organization (ST)          Document Reference:

LIVING HISTORY FARMS, Petitioner, vs. IOWA DEPARTMENT OF REVENUE, Respondent.

Iowa District Court, Polk County

Polk

iowadist

LAW NO. CL61-35739

RULING ON MOTION TO DISMISS

On the 17th day of January, 1986, this case came before the Court for hearing on the petition of Living History Farms seeking Judicial Review of a Declaratory Ruling of the respondent, holding that the petitioner is not an "educational institution" for the purposes of Section 422.45(8) of the Code.

The petitioner appeared by its attorney, Robert L. Kane. The respondent appeared by Sherie Barnett.

Prior to the hearing, the respondent made a motion to dismiss, alleging that the Court lacked subject matter jurisdiction. An objection that the Court lacks subject matter jurisdiction may be made at any time.

On March 25, 1985, the respondent, Iowa Department of Revenue, issued its Declaratory Ruling. The petitioner herein filed its Petition for Judicial Review on the 22nd day of April, 1985, thirty-three days after the Declaratory Ruling was issued.

Judicial Review of administrative proceedings is a right conferred by statute. Where a right of Judicial Review is statutory, the procedure prescribed by the statute must be followed. Failure to satisfy the requirements of Section 17A.19 (of the Code) is a jurisdictional defect.

Ford Motor Co. v. Iowa Department of Transportation, 282 N.W.2d 701, 703 (Iowa 1979).

In this case the respondent urges that the failure of the petitioner to file the Petition for Judicial Review within thirty days after the date of "issuance" of the Declaratory Ruling is a jurisdictional defect.

In regard to Judicial Review, the IAPA at Section 17A.19(3) provides:

" x x x If a party does not file an application under Section 17A.16, Subsection 2, for rehearing, the petition must be filed within thirty days after the issuance of the agency's final decision in that contested case."

Section 17A.9 of the Iowa Code provides that rulings disposing of petitions (for declaratory rulings) have the same status as agency decisions or orders in contested cases.

Rule 730 - 7.25 I.A.P.A. provides that a Declaratory Ruling which is issued shall have the same status as an order rendered in a contested case and shall be final for purposes of appeal or Judicial Review.

Notwithstanding the wording in 17A.19(3) of "within 30 days after the issuance", the petitioner in this matter maintains that Iowa Rule of Civil Procedure 83(b) would allow three additional days for them to comply. Petitioner argues that Rule 331 Iowa Rules of Civil Procedure provides that the rules are applicable to proceedings brought under Iowa Code Chapter 17A, except to the extent they are inconsistent with any provision of that chapter and that there is no inconsistency between Section 17A.19 (3) and Rule 83(b) and thus petitioner was entitled to additional time for filing. And that with the additional time provided by the rule, the petition was due on or before the 33rd day following the date of mailing of the ruling and was timely.

Iowa Rule of Civil Procedure 331 provides as follows:

"Except to the extent that they are inconsistent with any provision of the Iowa Administrative Procedures Act, Chapter 17A, The Code, or with the rules specifically set forth in this division, the rules of civil procedure shall be applicable to proceedings for judicial review of agency action brought under that Act."

Iowa Rule of Civil Procedure 83, dealing with "Enlargement; Additional Time After Service by Mail," provides as follows:

"(b) Additional Time after Service by Mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three days shall be added to the prescribed period. Such additional time shall not be applicable where a court has prescribed the method of service of notice and the number of days to be given." (Emphasis added by the Court.)

Having reviewed the applicable statutes and Rules of Civil Procedure, the Court concludes that it is without subject matter jurisdiction in this case and respondent's motion to dismiss should be granted.

Section 17A.19(3) is a specific statute that clearly states the time limit is within thirty days after the issuance of the agency's final decision. The specific language of the statute referring to a time period beginning with the "issuance" is controlling. The Court concludes that applying I.R.C.P. 83(b) would be inconsistent with the language in 17A.19(3) of the Code. I.R.C.P. 83(b) speaks to a situation where a person has the right to do some act within a prescribed period "after the service" of a notice or other document upon him. Section 17A.19(3) does not speak to a right or act that must be performed within a time frame "after service" but rather after "issuance."

RULING

IT IS THEREFORE ORDERED that respondent's motion to dismiss is granted, this case is hereby dismissed and the costs are assessed against the petitioner.

Signed this 30th day of April, 1986.

JUDGE, FIFTH JUDICIAL DISTRICT OF IOWA