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RENDA v. CIVIL RIGHTS COMM

Supreme Court of Iowa.

Jul 14, 2010

Judgment

Subsequent
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Factual and Procedural Background

A jury in Milwaukee, Wisconsin, found Darin Bowie guilty on multiple counts of trafficking cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Bowie was sentenced to 235 months' imprisonment followed by 5 years' supervised release. He filed a notice of appeal, but his appointed counsel moved to withdraw, concluding the appeal was frivolous under Anders v. California. The court reviewed the potential issues identified in counsel's brief and Bowie's response.

Separately, the Iowa Supreme Court reviewed a case involving Renda, an inmate alleging employment discrimination under the Iowa Civil Rights Act. The Iowa Civil Rights Commission (ICRC) had dismissed her complaint, concluding that a prison is not a "dwelling" and an inmate is not an "employee" under the Act. The court reviewed the statutory definitions, agency interpretations, and relevant caselaw to determine the scope of the Act's application to inmates.

Legal Issues Presented

Whether the delay in bringing Bowie to trial violated the Speedy Trial Act and if the issue was waived.
Whether the evidence supported the jury's verdict on the conspiracy count against Bowie.
Whether the sentencing court erred in drug quantity determination and application of sentencing enhancements for possession of a firearm and obstruction of justice.
Whether Bowie was entitled under Melendez-Diaz v. Massachusetts to cross-examine chemists regarding drug analysis.
Whether a prison constitutes a "dwelling" under the Iowa Civil Rights Act for purposes of housing discrimination claims.
Whether an inmate may be considered an "employee" under the Iowa Civil Rights Act and thus protected from employment discrimination.
Whether the Iowa Civil Rights Commission erred in refusing jurisdiction over Renda's complaint based on its interpretation of "employee" and "dwelling."

Arguments of the Parties

Appellate Counsel for Bowie

Argued that any claim under the Speedy Trial Act was waived due to failure to raise it in the district court and thus frivolous.
Concluded that the evidence was sufficient to support the conspiracy conviction based on testimony of credit sales and ongoing drug transactions.
Asserted that challenges to drug quantity findings were frivolous because Bowie confessed to selling half a kilogram weekly for 18 months.
Maintained that sentencing enhancements for gun possession and obstruction of justice were supported by the record and any challenge would be frivolous.
Contended that Apprendi did not require the jury to find drug quantity because Bowie was sentenced below the statutory maximum for any amount.
Argued that Melendez-Diaz did not entitle Bowie to cross-examine chemists since he stipulated to drug type and quantity.

Bowie (Pro Se) in Rule 51(b) Response

Proposed to argue a Speedy Trial Act violation, drug quantity error, and Apprendi issues, but counsel found these frivolous.
Denied knowledge or ownership of the firearm found in his home, suggesting a defense witness placed it there.
Argued the letter to a codefendant was a request to exercise constitutional rights, not unlawful influence.

Iowa Civil Rights Commission (ICRC) and Renda

ICRC held that a prison is not a "dwelling" under the Iowa Civil Rights Act and thus no housing discrimination claim existed.
ICRC and Attorney General opined that inmates are not "employees" under the Act when employed by the State or its subdivisions, but may be employees if employed by outside employers through work release or prison industry programs.
Renda argued that a prison should be considered a dwelling because inmates intend to reside there for extended periods and that she was an employee under the Act.
Renda asserted that the ICRC erred in refusing jurisdiction over her employment discrimination claim.

Iowa Supreme Court Majority

Concluded the legislature did not clearly vest interpretive authority over "employee" and "dwelling" definitions in the ICRC; thus, no deference was owed to the agency's interpretation.
Determined that a prison is not a dwelling for purposes of the Act due to the lack of freedom of housing choice and the penal nature of the facility.
Found that inmates may be employees under the Act, absent explicit statutory exclusion, and that the ICRC erred in concluding otherwise.
Adopted a case-by-case approach to determine employee status, considering factors such as voluntariness, application process, and control over work.

Iowa Supreme Court Dissent (Justice Cady)

Disagreed that inmates are employees under the Act, emphasizing statutory interpretation principles and common-law definitions.
Argued that the majority ignored legislative intent and precedent excluding inmates from employment statutes.
Emphasized that incarceration entails ultimate control, negating an employment relationship.
Criticized reliance on minority federal cases and multifactor tests inappropriate for mandatory prison labor.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Anders v. California, 386 U.S. 738 (1967)	Procedure for counsel to withdraw when appeal is frivolous.	Applied to allow counsel to withdraw and court to review potential issues.
United States v. Gearhart, 576 F.3d 459 (7th Cir. 2009)	Waiver of Speedy Trial Act claims by failure to move for dismissal in district court.	Held Bowie's Speedy Trial Act claim waived and frivolous on appeal.
Jackson v. Virginia, 443 U.S. 307 (1979)	Standard for reviewing sufficiency of evidence.	Applied to uphold jury verdict if any rational jury could find guilt beyond reasonable doubt.
United States v. Taylor, 600 F.3d 863 (7th Cir. 2010)	Elements of conspiracy under 21 U.S.C. § 846.	Used to analyze sufficiency of evidence for conspiracy conviction.
United States v. Johnson, 342 F.3d 731 (7th Cir. 2003)	Reliability of post-arrest statements in drug quantity determination.	Supported drug quantity finding based on Bowie's confession.
Apprendi v. New Jersey, 530 U.S. 466 (2000)	Requirement that jury find facts increasing sentence beyond statutory maximum.	Held no violation because Bowie was sentenced below statutory maximum.
United States v. Are, 590 F.3d 499 (7th Cir. 2009)	Sentencing enhancement for possession of a firearm.	Applied to reject Bowie's challenge to gun possession sentencing enhancement.
United States v. Richards, 198 F.3d 1029 (7th Cir. 2000)	Upward adjustment for obstruction of justice by influencing codefendant.	Applied to uphold district court's obstruction of justice enhancement.
Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009)	Right to confront forensic analysts.	Held argument frivolous because Bowie stipulated to drug type and quantity.
United States v. Moon, 512 F.3d 359 (7th Cir. 2008)	Concurrent sentence doctrine and conspiracy analysis.	Referenced in relation to conspiracy count review.
United States v. Fouse, 578 F.3d 643 (7th Cir. 2009)	Evidence supporting conspiracy conviction based on credit sales and coordination.	Used to support finding of conspiracy based on Bowie's credit purchases.
United States v. Fuller, 532 F.3d 656 (7th Cir. 2008)	Sustaining conspiracy convictions based on ongoing credit purchases and coded communications.	Analogous to Bowie's repeated credit transactions.
Vanskike v. Peters, 974 F.2d 806 (7th Cir. 1992)	Applicability of Title VII protections to inmates.	Cited by Iowa Supreme Court to support that discrimination protections may extend to inmates.
Baker v. McNeil Island Corrections Center, 859 F.2d 124 (9th Cir. 1988)	Potential for inmates to be employees under Title VII.	Referenced for case-by-case approach to inmate employee status.
Williams v. Meese, 926 F.2d 994 (10th Cir. 1991)	Inmates not employees under Title VII due to incarceration relationship.	Cited by ICRC and dissenting opinion.
McCaslin v. Cornhusker State Indus., 952 F.Supp. 652 (D.Neb. 1996)	Inmates not employees under Fair Labor Standards Act.	Relied upon by dissent to support exclusion of inmates from employee status.
Estabrook v. Iowa Civil Rights Comm'n, 283 N.W.2d 306 (Iowa 1979)	Purpose of the Iowa Civil Rights Act to address broad patterns of discriminatory behavior.	Used to frame the Act's remedial purpose.
Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963)	Factors determining employer-employee relationship in workers' compensation context.	Referenced for analogous factors in determining employee status of inmates.
PanDa Eng'g v. Eng'g Land Surveying Examining Bd., 621 N.W.2d 196 (Iowa 2001)	Deference to agency statutory interpretations within agency expertise.	Discussed regarding deference owed to ICRC.
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992)	Common law definition of "employee" controls statutory interpretation absent clear definition.	Cited by dissent to emphasize statutory interpretation rules.
Frederick v. Men's Reformatory, 203 N.W.2d 797 (Iowa 1973)	Inmates not employees under workers' compensation statute.	Used by dissent to argue legislative intent excludes inmates from employee status.

Court's Reasoning and Analysis

Regarding Bowie's appeal, the court applied well-established procedural and substantive legal principles. It held that Bowie waived any Speedy Trial Act claim by failing to raise it in district court, barring even plain-error review. The sufficiency of evidence for conspiracy was evaluated under the Jackson v. Virginia standard, finding that testimony of repeated credit sales and ongoing drug transactions supported the jury's verdict. Sentencing enhancements for drug quantity, firearm possession, and obstruction of justice were upheld based on Bowie's confession and trial evidence, and Apprendi was found inapplicable because the sentence did not exceed the statutory maximum. The right to confront chemists under Melendez-Diaz was foreclosed by Bowie's stipulation to drug facts.

In the Iowa case, the court first determined that the legislature did not clearly delegate interpretive authority over "employee" and "dwelling" to the ICRC, so the court independently reviewed the agency's legal conclusions. The court found that a prison is not a "dwelling" because the penal nature and lack of freedom of housing choice negate the protections intended by the Act and analogous federal laws.

Conversely, the court rejected the ICRC's conclusion that inmates cannot be employees. Considering the broad statutory definitions and absence of explicit exclusions, as well as the remedial purposes of the Act, the court held that inmates may be employees under certain circumstances. It adopted a case-by-case analysis considering factors such as voluntariness, application process, and employer control, drawing analogies to Title VII and workers’ compensation standards. The court emphasized that not all inmate labor constitutes employment, but the ICRC erred in refusing jurisdiction outright.

The dissent argued the majority misapplied statutory interpretation rules by broadly construing “employee” to include inmates, contrary to common law and legislative intent. It stressed that incarceration entails ultimate control, negating employment relationships, and criticized reliance on minority federal cases and multifactor tests unsuitable for mandatory prison labor.

Holding and Implications

For Darin Bowie: The court GRANTED counsel's motion to withdraw and DISMISSED the appeal, concluding that all potential appellate issues were frivolous. This ends Bowie's direct appellate review without setting new precedent.

For Renda and the Iowa Civil Rights Act case: The Iowa Supreme Court AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. It affirmed the determination that a prison is not a "dwelling" under the Act but reversed the ICRC's refusal to consider whether an inmate may be an employee. The matter was remanded for further proceedings consistent with the court's guidance on employee status. This decision clarifies that inmates may have employment discrimination protections under the Act, subject to case-specific factual inquiry, but does not extend housing protections to inmates in prisons.

Show all summary ...

ORDER

A jury in Milwaukee, Wisconsin, found Darin Bowie guilty on multiple counts of trafficking cocaine. See 21 U.S.C. §§ 841(a)(1), 846. Bowie was sentenced to a total of 235 months' imprisonment and 5 years' supervised release. He filed a notice of appeal, but his appointed lawyer has concluded that the case is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We review only the potential issues identified in counsel's facially adequate brief, see United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002), and in Bowie's response, see CIR. R. 51(b).

In his Anders submission, counsel first evaluates whether Bowie could argue that the delay in bringing him to trial violated the Speedy Trial Act, 18 U.S.C. §§ 3161-74. But by failing to seek dismissal on this ground in the district court, Bowie waived his right to enforce the Act's time limit. See id. § 3162(a)(2); United States v. Gearhart, 576 F.3d 459, 462 (7th Cir. 2009). His waiver precludes us from applying even plain-error review, see United States v. Broadnax, 536 F.3d 695, 699 (7th Cir.), cert. denied, ___ U.S. ___, 129 S.Ct. 665, 172 L.Ed.2d 638 (2008), so any argument under the Speedy Trial Act would be frivolous.

Counsel next questions whether Bowie could challenge the jury's verdict on the one conspiracy count as lacking evidentiary support. (Bowie received fully concurrent sentences on all counts, but after Ray v. United States, 481 U.S. 736, 107 S.Ct. 2093, 95 L.Ed.2d 693 (1987), a court of appeals cannot use the concurrent-sentence doctrine to bypass this question, see United States v. Moon, 512 F.3d 359, 363 (7th Cir. 2008).) The government charged that Bowie conspired with five others to distribute cocaine. One of the five, Calvin Coleman, testified that he sold Bowie four-and-a-half ounces of cocaine on a weekly basis for about a year. Coleman said he occasionally "fronted" the drugs, which he defined as making delivery without demanding immediate payment. Coleman acknowledged, however, that he did not advise or supervise Bowie, nor did he impose quotas on the amounts of cocaine that Bowie could or must move. Coleman emphasized that he viewed Bowie as a mid-level customer and "his own man." Several other witnesses testified that Bowie had sold them cocaine using coded language and knew that they resold the drugs. All of them conceded, though, that Bowie demanded payment up front and was not their only source of supply.

We would view the evidence in the light most favorable to the government and up-hold the verdict if any rational jury could have found the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Mitten, 592 F.3d 767, 776 (7th Cir. 2010). To convict Bowie on the § 846 count, the government was required to establish that he knowingly agreed with at least one other person to possess cocaine for distribution. See United States v. Taylor, 600 F.3d 863, 868 (7th Cir. 2010); United States v. Avila, 557 F.3d 809, 814 (7th Cir. 2009). Hallmarks of a conspiracy include, among other things, sales on consignment or credit. E.g., United States v. Dean, 574 F.3d 836, 843 (7th Cir. 2009); United States v. Colon, 549 F.3d 565, 569 (7th Cir. 2008); United States v. Bender, 539 F.3d 449, 454 (7th Cir. 2008), cert. denied, ___ U.S. ___, 129 S.Ct. 2415, 173 L.Ed.2d 1320 (2009); Moon, 512 F.3d at 364. Here, the "fronting" described by Coleman was a sale on credit. (Consignment sales permit the middleman to return unused drugs and are quintessential evidence of a conspiracy, see United States v. Johnson, 592 F.3d 749, 755 n. 5 (7th Cir. 2010), but there is no evidence that Bowie could return the drugs.) Not all credit sales will support an inference that seller and buyer have reached an agreement to distribute drugs. Johnson, 592 F.3d at 756 n. 5. But evidence of credit sales "coupled with certain characteristics inherent in an ongoing wholesale buyer-seller relationship," e.g., large quantities of drugs or repetitive transactions, is sufficient to distinguish a conspiracy from a nonconspiratorial buyer-seller relationship. Id. Coleman testified that he sold a specific amount of cocaine to Bowie on credit every week for almost a year, and thus we agree with appellate counsel that it would be frivolous to argue that no rational jury could have found that the two men were conspirators. See United States v. Fouse, 578 F.3d 643, 649-50 (7th Cir. 2009) (upholding jury's verdict that he engaged in conspiracy where defendant bought on credit, worked with others to sell drugs, and coordinated prices); United States v. Fuller, 532 F.3d 656, 662-63 (7th Cir. 2008) (upholding conspiracy conviction where defendant bought from dealer on steady basis every week or two over five-month relationship, used code words to discuss types and amounts of drugs, and bought on credit).

As far as sentencing, counsel and Bowie (in his Rule 51(b) response) consider arguing that it was clear error to assign a drug quantity of 15 to 50 kilograms of cocaine. See, e.g., United States v. Vaughn, 585 F.3d 1024, 1031 (7th Cir. 2009), cert. denied, ___ U.S. ___, 130 S.Ct. 3385, 177 L.Ed.2d 306 (2010). But any argument about the quantity finding would be frivolous because after he was arrested, Bowie confessed to selling half a kilogram per week for 18 months. See United States v. Johnson, 342 F.3d 731, 734 (7th Cir. 2003) (explaining that drug dealer's post-arrest statements are especially reliable in establishing the extent of trafficking).

In his Rule 51(b) response, Bowie proposes to argue that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), required the jury to decide the amounts of cocaine involved. But this argument would be frivolous because Bowie was sentenced below the 20-year default maximum that applies for any amount of cocaine. See United States v. Clark, 538 F.3d 803, 811-12 (7th Cir. 2008), cert. denied ___ U.S. ___, 129 S.Ct. 1613, 173 L.Ed.2d 994 (2009); United States v. Gilmer, 534 F.3d 696, 704 (7th Cir. 2008).

Counsel also considers whether Bowie could challenge the increase in offense level for possessing a gun, see U.S.S.G. § 2Dl.l(b)(1), or the upward adjustment for obstructing justice, see id. § 3C1.1. Bowie's counsel did not object to either adjustment at sentencing, so our review would be for plain error. See, e.g., United States v. Jumah, 599 F.3d 799, 811 (7th Cir. 2010). Bowie asserts in his Rule 51(b) response that he didn't own or even know about the gun police found in his living-room closet. He points to the trial testimony of Melvin Barnes, a defense witness who said he put the gun in the closet while temporarily living with Bowie. Ownership is irrelevant, though, and Barnes conceded that he never saw the gun again after placing it in the closet. On the other hand, two police officers who searched Bowie's house with his consent testified at trial that he alerted them he had a gun in the living-room closet. The officers found the gun (with an obliterated serial number) in that closet along with 148 grams of cocaine, $20,000 in currency, and a scale. Thus, an appellate challenge to the upward adjustment for the gun would be frivolous. See United States v. Are, 590 F.3d 499, 526 (7th Cir. 2009), petition for cert. filed, 78 U.S.L.W. 3590 (Mar. 30, 2010) (No. 09-1191); United States v. Perez, 581 F.3d 539, 546-47 (7th Cir. 2009); United States v. Rollins, 544 F.3d 820, 837-58 (7th Cir. 2008), cert. denied, ___ U.S. ___, 130 S.Ct. 3343, 176 L.Ed.2d 1236 (2010).

Further, among the nonexhaustive list of conduct constituting obstruction of justice is "threatening, intimidating, or otherwise unlawfully influencing a codefendant." U.S.S.G. § 3C1.1, cmt. n. 4(a). The district court applied the upward adjustment because Bowie sent a letter to a codefendant warning him not to cooperate. (Bowie insists in his Rule 51(b) response that he was simply "telling or asking" his codefendant to exercise his constitutional right to trial by jury.) We agree with counsel that it would be frivolous to argue that the district court's conclusion that Bowie unlawfully attempted to influence his codefendant was clearly erroneous. See United States v. Richards, 198 F.3d 1029, 1032-53 (7th Cir. 2000) (upholding application of § 3C1.1 adjustment where defendant warned codefendant to keep quiet).

Last, in his Rule 51(b) response, Bowie argues that under Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), he was entitled to cross-examine the chemists who analyzed the cocaine recovered from his home. But this argument is frivolous because Bowie stipulated at trial to the drug type and quantity. See id. at 2534 n. 3, 2541, 129 S.Ct. 2527; see also United States v. Wingate, 128 F.3d 1157, 1160-61 (7th Cir. 1997).

Accordingly, we GRANT counsel's motion to withdraw and DISMISS the appeal.

744 N.W.2d at 359-60 ("willful" and "non-willful"); Doe, 733 N.W.2d at 708 ("confidential"); Insituform, 728 N.W.2d at 800 ("willful").

Turning to the case at hand, we first note that the Act does not explicitly grant the agency the authority to interpret the terms "employee" and "dwelling." We must then determine, after reviewing "the precise language of the statute, its context, the purpose of the statute, and the practical considerations involved," if we are firmly convinced that "the legislature actually intended (or would have intended had it thought about the question) to delegate to the agency interpretive power with the binding force of law over the elaboration" of the terms. Bonfield at 63.

We are not convinced the legislature intended to vest the ICRC with authority to interpret the terms at issue here. Both terms have specialized legal meaning and are widely used in areas of law other than the civil rights arena. The fact that the parties rely on definitions of these terms from various other substantive areas of law indicates the interpretation of these terms is not within the special expertise of the ICRC. The commission itself, when defining the terms and rejecting Renda's claims, relied on definitions of the terms gleaned from other areas of law, including Iowa workers' compensation statutes, Iowa unemployment compensation statutes, statutes pertaining to the department of corrections, the Federal Fair Housing Act, Federal Cable Communications Act, and Colorado penal statutes. Given the commission's need to examine such far-ranging legal sources to interpret these terms, we are not convinced that "employee" and "dwelling" are specialized terms within the expertise of the agency. Rather, these terms have specialized legal definitions that extend beyond the civil rights context and are more appropriately interpreted by the courts. Accordingly, we do not give deference to the agency's interpretation and will substitute our judgment for that of the commission if we conclude the ICRC made an error of law. Iowa Code § 17A.19(10)( c).

We think it appropriate to note at this juncture the maxim occasionally expressed in this court's prior decisions that we give deference to an agency's statutory interpretation "in areas of the agency's expertise." See PanDa Eng'g v. Eng'g Land Surveying Examining Bd., 621 N.W.2d 196, 198 (Iowa 2001) (citing a 1995 case for the proposition that "we will give careful consideration to an agency's determination of a question of law in areas of the agency's expertise."). This maxim was derived from our understanding of the Iowa Administrative Procedure Act prevailing prior to the 1998 amendments. We conclude the 1998 amendments were calculated in relevant part to clarify the circumstances in which deference is owed by courts to agency decisions. See Bonfield at 59-60 (noting that the amendments to the scope of review provisions "may mildly increase the intensity of judicial review of agency action" by "providing much greater specificity" and "stating explicitly the exact circumstances in which the [court] is or is not required to give deference to an agency's view of a matter"). The 1998 amendments more clearly circumscribe the circumstances in which deference is owed by courts, substituting the specific inquiry whether a matter has been clearly vested in the agency in place of the more nebulous inquiry of whether the matter is within the agency's expertise. See Locate.Plus.Com, Inc. v. Iowa Dep't of Transp., 650 N.W.2d 609, 613 (Iowa 2002); Iowa Code § 17A.19(10). Our analysis of the extent to which this court owes deference to the ICRC's definition of "employee" cannot be driven by the former standard of whether the agency has expertise in deciding who should be treated as an employee within the penal system. Locate.Plus.Com., 650 N.W.2d at 613. The limits of our deference to the agency's definition must instead, consistent with the 1998 amendments, be determined by whether the legislature has clearly vested such authority in the ICRC. Id. As we conclude a clear vesting of such authority has not occurred, we do not give deference to the ICRC's definition of "employee."

III. Discussion.

The ICRC concluded it did not have jurisdiction over Renda's complaint because it did "not allege a `discriminatory practice' as defined by Iowa Code Chapter 216." Specifically the commission determined that a prison is not a "dwelling" and an inmate is not an "employee" for purposes of the Act. Renda claims both of these conclusions constitute errors of law, and we will review each in turn.

A. Is a Prison a "Dwelling"? The Act prohibits discrimination on the basis of a person's sex with respect to housing. Iowa Code §§ 216.8, 216.8A. The terms "real property," "housing," "housing accommodation," and "dwelling" are used in the various statutory provisions to describe the type of facilities to which the prohibition applies. Id. These terms, however, are not defined in the statute. When interpreting statutory provisions, we utilize our well-established rules of statutory construction. We "`avoid strained, impractical or absurd results.'" Sommers, 337 N.W.2d at 472 (quoting Franklin Mfg. Co. v. Iowa Civil Rights Comm'n, 270 N.W.2d 829, 831-32 (Iowa 1978)). Usually, we will give an ordinary meaning to the language, "`but the manifest intent of the legislature will prevail over the literal import of the words used.'" Id. at 472-73. If the language is clear and plain, we will not utilize construction. Id. at 473. We "`look to the object to be accomplished and the evils and mischiefs sought to be remedied in reaching a reasonable or liberal construction which will best effect its purpose rather than one which will defeat it.'" Id. All parts of the statute will be considered together, and we will not give undue importance to any single portion. Id.

The ICRC determined that a prison is not a dwelling by relying on a decision from a federal district court case which determined that a jail was not a dwelling for purposes of the Fair Housing Act. While interpretations of the Fair Housing Act are instructive when interpreting the housing provisions of the Iowa Civil Rights Act, they are not controlling. State v. Keding, 553 N.W.2d 305, 307 (Iowa 1996).

Renda directs us to various federal cases which interpret what constitutes a dwelling for purposes of the Fair Housing Act. She argues the term "dwelling" has been interpreted broadly to include a wide range of nontypical residences. The types of facilities that have been determined to constitute dwellings for purposes of the Fair Housing Act range from substance abuse treatment facilities to nursing homes, homeless shelters, hospices, and residential schools. See, e.g., Lakeside Resort Enters. v. Bd. of Supervisors, 455 F.3d 154, 160 (3d Cir. 2006) (substance abuse treatment facility); Hovsons, Inc. v. Twp. of Brick, 89 F.3d 1096, 1102 (3d Cir. 1996) (nursing home for disabled elderly people); Turning Point, Inc. v. City of Caldwell, 74 F.3d 941, 945 (9th Cir. 1996) (homeless shelter); United States v. Columbus Country Club, 915 F.2d 877, 881 (3d Cir. 1990) (summer bungalows run by a country club); Lauer Farms, Inc. v. Waushara County Bd. of Adjustment, 986 F.Supp. 544, 559 (E.D.Wis. 1997) (migrant workers' trailers); La. Acorn Fair Hous. v. Quarter House, 952 F.Supp. 352, 359-60 (E.D.La. 1997) (units in a time-share resort); United States v. Mass. Indus. Fin. Agency, 910 F.Supp. 21, 26 n. 2 (D.Mass. 1996) (residential school for emotionally disturbed adolescents); Baxter v. City of Belleville, 720 F.Supp. 720, 731 (S.D.Ill. 1989) (AIDS hospice).

Renda argues the key to determining whether a facility is a dwelling under the Act is whether the person intends to remain at the facility for more than a brief period of time and whether the person considers the facility a residence to which he or she will return. She argues her residence at the prison is analogous to other residential facilities in that she considers her cell her residence, she returns to it each night, and her stay at the prison is for more than a brief period of time. She claims that facilities that have been found not to constitute dwellings under the Fair Housing Act, such as motels and bed and breakfasts, are distinguishable from the prison on these same grounds. See Schneider v. County of Will, 190 F.Supp.2d 1082, 1087 (N.D.Ill. 2002); Patel v. Holley House Motels, 483 F.Supp. 374, 381 (S.D.Ala. 1979). A person does not usually intend to stay at a motel or bed and breakfast for an extended period, and a person does not generally consider a motel a residence or home.

Although an inmate such as Renda may consider her cell, and the prison as a whole, her indefinite residence and expect to remain in the prison for an extended length of time, we do not believe those considerations are determinative of whether a prison is a dwelling for purposes of the Act. We agree with the conclusion reached by the court in Garcia v. Condarco, 114 F.Supp.2d 1158, 1161 (D.N.M. 2000): "[T]here is fundamentally a distinction between a home on the one hand, and a detention facility on the other." Some facilities are designed and intended to be residential, but a prison "is designed and intended to be a penal facility." Garcia, 114 F.Supp.2d at 1161. Our determination of this issue is strongly influenced by the fact that Renda has no choice in her placement at the Mt. Pleasant Correctional Facility, and freedom of choice is crucial to the purposes of the Iowa Civil Rights Act and the Fair Housing Act. Each of these Acts was intended to promote freedom of choice in housing and prohibit discrimination. Id. at 1162; see also Keding, 553 N.W.2d at 307 (noting that the housing provisions of the Iowa Civil Rights Act were patterned on the Fair Housing Act). "The element of freedom of choice is . . . paramount" and the primary purpose of the Act "has no application in the prison context." Garcia, 114 F.Supp.2d at 1162. Accordingly, the purposes of eliminating discrimination in housing and promoting freedom of choice in housing are not furthered by applying the Act to inmates in a prison context, and we conclude that the ICRC correctly determined that a prison is not a "dwelling" for purposes of the Act.

B. May an Inmate Be an "Employee"? The Act prohibits discrimination on the basis of sex in employment. Iowa Code § 216.6. An employee is defined broadly as "any person employed by an employer." Id. § 216.2(6). Employer is defined as "the state of Iowa or any political subdivision, board, commission, department, institution, or school district thereof, and every other person employing employees within the state." Id. § 216.2(7). Several categories of employers and employees are exempted from the discrimination prohibitions, including employers of fewer than four employees, employees who work within the employer's home, employees hired to perform personal services for the employer's family members, and bona fide religious institutions in certain situations. Id. § 216.6(6)( a)-( d). No explicit exception exists for inmates of correctional facilities — in fact, inmates are not mentioned at all in the statute. Given the sheer breadth of the definitions of "employee" and "employer" and the fact that the few exclusions that are identified are extremely narrow, we are inclined to start from the premise that inmates may be considered employees unless some compelling reason exists to convince us that the legislature meant to exclude them despite utilizing such expansive language.

The ICRC, relying on a 1990 opinion of the Attorney General, concluded that

[a]n inmate is not an "employee" within the meaning of the Iowa Civil Rights Act if employed by the State or subdivision of the State but may be an "employee" within the meaning of the statute if employed through the work release or prison industry programs by employers who are otherwise subject to the Iowa Civil Rights Act.

The ICRC and the Attorney General's opinion noted that in other worker-related contexts inmates are treated differently and concluded that they should also be treated differently in the civil rights context. See 1990 Iowa Op. Att'y Gen. 93 (Opinion No. 90-10-3); Iowa Code § 85.59 (explicitly addressing modified workers' compensation coverage for inmates); Iowa Code § 96.19(18)( g)(10) (providing explicit exception to unemployment compensation coverage for inmates of correctional institutions). The ICRC contends that these explicit exceptions to other worker-related programs demonstrate that inmates are considered differently from other groups. We, however, believe these explicit exceptions for inmates demonstrate the legislature is well aware that many inmates work within correctional settings and that certain worker-related provisions may apply to them unless they are expressly excluded or exempted. The fact that the legislature did not provide an explicit exception for inmates within the Act leads us to believe that the legislature did not intend one.

The ICRC also points to certain provisions of chapter 904 which indicate an employee-employer relationship is not created when an inmate performs work for the prison. Section 904.701 provides inmates shall be required to perform hard labor while incarcerated. Iowa Code § 904.701(1). When practicable, the director may pay the inmate "an allowance" deemed "proper in view of the circumstances, and in view of the cost attending the maintenance of the inmate. The allowance is a gratuitous payment and is not a wage arising out of an employment relationship." Id. § 904.701(2). Section 904.901 requires the department of corrections to establish a work release program in which inmates may be granted the privilege of leaving the correctional facility and working at gainful employment. Id. § 904.901. When working in such a program,

This provision might be relevant to a determination of whether inmates may be considered employees entitled to fair wages under Iowa minimum wage laws or the Federal Fair Labor Standards Act. However, because Renda's claim alleges employment discrimination in violation of the Civil Rights Act, not unfair pay, we do not find this provision applicable to our analysis.

[a]n inmate employed in the community under this chapter is not an agent, employee, or involuntary servant of the department of corrections, the board of parole, or the judicial district department of correctional services while released from confinement under the terms of a work release plan. If an inmate suffers an injury arising out of or in the course of the inmate's employment under this chapter, the inmate's recovery shall be from the insurance carrier of the employer of the project and no proceedings for compensation shall be maintained against the insurance carrier of the state institution, the state, the insurance carrier of the judicial district department of correctional services or the judicial district department of correctional services, and there is no employer-employee relationship between the inmate and the state institution, the board of parole, or the judicial district department of correctional services.

Id. § 904.906.

The ICRC contends these provisions demonstrate the legislature's intent to exclude inmates from the definition of "employee." We disagree because we do not believe the cited provisions in chapter 904 are determinative of the issue. We think the focus of section 904.701(2) is pay-related, intended to clarify the discretionary nature of the payment — that it need only be made at the director's discretion when "practicable" and should take into account the cost of the maintenance of the inmate. Id. § 904.701(2). In other words, an inmate working at hard labor is not entitled to earn "a fair and reasonable wage" as that concept might be defined outside the prison context. The provisions explaining that an inmate employed in the community through the work release program is not an employee of the state is not inconsistent with a conclusion that an inmate employed by the prison inside the prison is an employee for purposes of the Act. Section 904.906 simply says that an inmate working outside the prison is an employee of that outside employer, particularly for workers' compensation purposes. It has no bearing on whether Renda may have been an employee of the prison.

Compare the provisions regarding payment for hard labor with the provisions addressing payment to inmates participating in the work release program. The inmate employed in the community pursuant to the work release program shall be paid a fair and reasonable wage for his work. Iowa Code § 904.905. After certain deductions are taken from the wages (for obligations such as child support, restitution, the cost of food and lodging), the balance of the wages will be held for the inmate until his release. Id.

Both parties cite various federal decisions interpreting Title VII, including several cases involving inmates at federal correctional facilities. Because the Act was modeled after Title VII, we find these decisions instructive, but not controlling. Annear v. State, 419 N.W.2d 377, 379 (Iowa 1988). The ICRC directs our attention to several federal cases concluding that an inmate is not considered an employee for Title VII purposes. See Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991) (concluding an inmate is not an employee because his relationship with the Bureau of Prisons arises out of his status as an inmate and the primary purpose of their association is incarceration, not employment); McCaslin v. Cornhusker State Indus., 952 F.Supp. 652, 657 (D.Neb. 1996) (concluding that an inmate is not an employee because the "prisoner does not enter into a bargain with the prison to become a prisoner in order to be able to work in prison industries, as might a private individual who contracts with an employer").

However, the court in Baker v. McNeil Island Corrections Center, 859 F.2d 124, 128 (9th Cir. 1988), reached the opposite conclusion and determined the fact that the prison has so much control over its inmates actually weighs in favor of considering inmates employees for Title VII purposes. In that case, an inmate alleged he applied for and was denied a job in the prison library because the head librarian did not want "to work with a black man." Baker, 859 F.2d at 127. The court concluded Baker's claim should not have been dismissed on a motion to dismiss because "the court could not be convinced beyond doubt that no set of facts could be proven to entitle Baker to relief." Id. at 128. While the court did not reach the issue of whether Baker was an employee, it remanded the case for further proceedings because it was possible that an employment relationship could be established on remand. Id. at 129. Other courts have followed the reasoning of Baker, concluding the determination of whether an inmate is an employee must be made on a case-by-case basis rather than with a per se rule. See Moyo v. Gomez, 32 F.3d 1382, 1385 (9th Cir. 1994) (relying on Baker to conclude that inmates may be considered employees if their work can be distinguished from the obligatory on-site prison labor); Walker v. City of Elba, 874 F.Supp. 361, 365-66 (M.D.Ala. 1994) (relying on Baker to conclude that a work-release inmate was entitled to Title VII protections).

The Act was adopted "to eliminate unfair and discriminatory practices in . . . employment." 1965 Iowa Acts ch. 121 (title of act). It was designed to "correct a broad pattern of behavior rather than merely affording a procedure to settle a specific dispute." Estabrook v. Iowa Civil Rights Comm'n, 283 N.W.2d 306, 308 (Iowa 1979). When we consider the purposes of the Act and whether they might be achieved when applied to inmates working within a prison, we reach the same conclusion as the Seventh Circuit Court of Appeals did when explaining why Title VII might apply in the prison context, even if the Fair Labor Standards Act did not.

Prison is in many ways a society separate from the outside world. Discrimination, however, maintains the same invidious character within the world of the prison and outside of it. Given the broad policies behind Title VII, there would appear to be no reason to withhold Title VII's protections from extending inside the prison walls.

Vanskike v. Peters, 974 F.2d 806, 810 n. 5 (7th Cir. 1992). Accordingly, given the broad definition of "employee" utilized in the Act, and the lack of an explicit exception for inmates from the classification of "employee," along with the evils of employment discrimination the Act seeks to remedy, we conclude the legislature did not intend to exclude inmates from protection against discrimination in employment within the prison.

Our conclusion does not mean that all work performed by an inmate will constitute employment. We agree with the Baker court's implicit holding that the determination of whether an inmate is an employee will need to be reached on a case-by-case basis, with a consideration of various factors, including the voluntariness of the position, whether the inmate went through an application process, and the nature and extent of similarities between the circumstances of the inmate's job in the prison and jobs outside the penal context.

To assist in determining the similarities between jobs inside and outside the prison, we think it may also be useful to consider how other courts have distinguished between employees and independent contractors for purposes of Title VII. The Eighth Circuit Court of Appeals has explained that when confronted with the issue, "nearly every appellate court has applied a test described as a hybrid of the common-law test and economic realities test." Wilde v. County of Kandiyohi, 15 F.3d 103, 105 (8th Cir. 1994). "Under the hybrid test, the term `employee' is construed in light of general common-law concepts, taking into account the economic realities of the situation." Id. The hybrid test has been described as an

The common-law test was first set forth in Community for Creative Non-Violence v. Reid, 490 U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989), and the economic realities test was developed in a Fair Labor Standards Act case, Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 81 S.Ct. 933, 6 L.Ed.2d 100 (1961). See Moland v. Bil-Mar Foods, 994 F.Supp. 1061, 1068 (N.D.Iowa 1998).

application of general principles of the law of agency to undisputed or established facts. Consideration of all the circumstances surrounding the work relationship is essential, and no one factor is determinative. Nevertheless, the extent of the employer's right to control the "means and manner" of the worker's performance is the most important factor to review here, as it is at common law. . . . If an employer has the right to control and direct the work of an individual, not only as to the result to be achieved, but also as to the details by which that result is achieved, an employer/employee relationship is likely to exist.

Spirides v. Reinhardt, 613 F.2d 826, 831-32 (D.C. Cir. 1979) (footnotes omitted).

Additional factors relevant for consideration include

(1) The kind occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) whether the "employer" or the individual in question furnishes the equipment used and the place of work; (4) the length of time during which the individual has worked; (5) the method of payment, whether by time or by job; (6) the manner in which the work relationship is terminated, i.e., by one or both parties, with or without notice and explanation; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business of the "employer"; (9) whether the worker accumulates retirement benefits; (10) whether the "employer" pays social security taxes; and (11) the intention of the parties.

Id. at 832.

Although Renda has not asserted a workers' compensation claim in this case, this court has addressed the standard for determining whether a worker is employed for purposes of chapter 85 of the Iowa Code. We have concluded the major factors considered in determining whether an employer-employee relationship exists in the workers' compensation context are whether the party alleged to be the employer (1) is the "responsible authority in charge of the work or for whose benefit the work is performed," (2) has the right to select, "or to employ at will," (3) has a responsibility for payment of wages, (4) has "the right to discharge or terminate the relationship," and (5) has "the right to control the work." Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 851-52, 124 N.W.2d 548, 551 (1963); see also Henderson v. Jennie Edmundson Hosp., 178 N.W.2d 429, 431 (Iowa 1970).

As Renda has not made a claim based on Iowa Code chapter 85, we do not address the provisions of Iowa Code section 85.59 detailing the circumstances in which inmates may receive workers' compensation benefits. We cite our decisions detailing the standard for determining whether an employer-employee relationship exists in the workers' compensation context not because that standard is controlling in this case, but to emphasize its similarity with the standard applied in the Title VII cases cited above.

Although a few of the factors considered in determining whether an employer-employee relationship exists in the Title VII and workers' compensation contexts may not be applicable in the prison setting, we think most of them are useful and relevant in assessing the similarities between jobs inside and outside the prison, and in determining whether an inmate claiming a violation of chapter 216 is an employee protected under the Act.

Although Renda asserts on appeal that the circumstances of her prison job bring her comfortably within the definition of "employee," because the ICRC refused to entertain jurisdiction over her claim, the record does not contain evidence sufficient to allow us to address the issue on appeal. Accordingly, we conclude that inmates may be employees for purposes of the Act and the ICRC committed legal error in concluding it had no jurisdiction over Renda's complaint.

Renda's complaint merely states that she "started working as a RD (Receiving Discharge) Clerk" and does not provide any background on her application process or whether she was required to work in that position. Later, after she was terminated from the RD position, she states she "was denied a job at the Recreation Department because of the [property sheet forging] incident." This allegation implies she may have gone through an application process for the second job, but we still believe the record must be developed.

IV. Conclusion.

We affirm the determination of the district court that the ICRC did not err in determining that the housing provisions of the Act do not apply to inmates housed in a correctional facility. We conclude the ICRC erred in deciding as a matter of law that an inmate could not be considered an employee for purposes of the Act. We therefore affirm in part and reverse in part the district court's judgment and remand to the district court for remand to the ICRC for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED.

All justices concur except CADY, J., who dissents, and APPEL, J., who takes no part.

CADY, Justice (dissenting).

I respectfully dissent from that portion of the holding of the majority declaring a prison inmate is an employee of the State of Iowa entitled to seek relief under the Iowa Civil Rights Act from discriminatory practices while performing a regularly assigned prison job when various factors used to distinguish employees from independent contractors militates in favor of a finding that the inmate is an employee. This holding is contrary to the position of the Iowa Civil Rights Commission, as well as the interpretation of related federal laws by the Equal Employment Opportunity Commission, the Department of Labor, and nearly every court in the nation that has addressed the application of the Fair Labor Standards Act to prisoners who work in state prison industries. See McCaslin v. Cornhusker State Indus., 952 F.Supp. 652, 656-58 (D.Neb. 1996) (noting that a majority of jurisdictions, along with the EEOC and Department of Labor, do not consider prisoners employees). Moreover, the majority's holding is unfaithful to the principles of statutory interpretation we are obligated to apply when we declare the statutory intent of our legislature. See Teamsters Local Union No. 421 v. City of Dubuque, 706 N.W.2d 709, 713 (Iowa 2005) (recognizing we apply the rules of statutory construction to attain our goal of interpreting statutes according to the intent of the legislature). I would affirm the decision of the district court and conclude the legislature did not intend for prison inmates who, like Renda, perform regular prison labor to be included within the provisions of Iowa's civil rights act relating to unfair or discriminatory practices in the workplace.

At the outset, I acknowledge discrimination exists in prisons as it still does in society in general. Moreover, a prison setting in no way excuses the presence of discrimination. Yet, the question is not whether the overarching policies behind the enactment of Iowa's civil rights act pertaining to employment discrimination apply to prisons, but whether the legislature intended for the provisions to apply to prisoners engaged in regularly assigned labor. The majority has failed to properly analyze this question and, accordingly, has answered it incorrectly.

The majority first rejects the Iowa Civil Rights Commission's interpretation by finding the legislature did not give the commission the power to interpret the meaning of an "employee" under the act. Yet, this conclusion simply aligns the standard of judicial review on appeal. The majority may not be required to give the commission's interpretation deference, but courts may nevertheless utilize all agency interpretations as a helpful tool in conducting independent analysis. See PanDa Eng'g v. Eng'g Land Surveying Examining Bd., 621 N.W.2d 196, 198 (Iowa 2001) (recognizing we give weight to an agency's statutory interpretation "in areas of the agency's expertise"). The majority proceeded to substitute its judgment for that of the commission without pausing to give any thought to the commission's interpretation.

More importantly, the majority builds its decision on two false premises that have no foundation in law or logic. These false premises are responsible for the majority's faulty conclusion. The majority begins its analysis with the premise that the word "employee" is a broad term and, therefore, must include prison inmates unless there is a "compelling reason" to the contrary. This homespun principle has no support in the law and is totally contrary to our long-standing rule of statutory interpretation that, when a statute does not provide a helpful definition of a disputed term, courts should not imply a meaning that is broader than the common-law definition. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23, 112 S.Ct. 1344, 1348, 117 L.Ed.2d 581, 588-89 (1992) (applying test to the term "employee"); see also Harvey v. Care Initiatives, Inc., 634 N.W.2d 681, 685 (Iowa 2001) ("[W]e construe statutory language consistent with our case law and the common law. . . . Words that have a well-defined meaning in the common law have the same meaning in statutes dealing with similar subject matter." (Citations omitted).). Furthermore, this approach reveals our legislature did not intend to include prison inmates as employees under Iowa Code chapter 216. See Frederick v. Men's Reformatory, 203 N.W.2d 797, 798 (Iowa 1973) (holding inmates are not "employees" under the workers' compensation statute). The majority totally ignores the common-law context and, from that point, sets course on its misguided path of a "compelling reason" to exclude.

The majority next declares, again, without any authority, that the absence of a statutory exception for prison inmates in chapter 216 signals that the legislature intended to include prison inmates within the parameters of chapter 216. This premise totally misses the point of our applicable rules of interpretation and sinks an already distressed analysis.

Under our principles of statutory interpretation, an exception to a statute created by the legislature normally indicates the matter excepted would have been included in the statute absent the exception. River Bend Farms, Inc. v. M P Mo. River Levee Dist., 324 N.W.2d 460, 462 (Iowa 1982); see also 2A Norman J. Singer J.D. Shambie Singer, Statutes and Statutory Construction § 47:11, at 333 (7th ed. 2007) (stating the general rule that "statutory exceptions exist only to exempt something which would otherwise be covered"). However, the absence of an exception for a particular matter in a statute, as in this case, does not present the same inference. The absence of an exception may simply signal that the legislature never considered the matter to be covered under the statute in the first place. For example, in 1973, we held the workers' compensation statute applicable to employees in this state did not include prison inmates working in prison industries, even though they were not specifically excluded from the statute. Frederick, 203 N.W.2d at 798. We found the relationship between the state and its prisoners were, in fact, "the antithesis of voluntary employment," and inmates were not included in the statute because they were not employees. Id. Subsequently, the legislature amended the workers' compensation statute to provide for limited workers' compensation coverage for inmates engaged in special work such as services rendered under a chapter 28E agreement, services rendered for private industry maintained in the prison or under section 904.809, and certain other special work assignments and projects. See generally Iowa Code § 85.59 (2009) (providing benefits for certain specified inmates). Thus, the special statutory inclusion of inmates performing certain jobs confirmed our legislature's intent not to generally include inmates in the statute.

Under our accepted rules of interpretation, we must accept that our legislature does not include inmates in matters relating to employment without special rules for inclusion. The approach of the majority is contrary to the weight of our rules of interpretation and the clear intent of our legislature.

Lastly, the majority places a great amount of emphasis on the Baker case. Baker v. McNeil Island Corr. Ctr., 859 F.2d 124 (9th Cir. 1988). The holding is a minority position, and the case can be distinguished from this case because it dealt with a voluntary work assignment.

Notwithstanding, the multifactor test ultimately adopted by the majority is misplaced as a means to decide if inmates performing mandated labor within the walls of a prison for no wage are employees. See Iowa Code § 904.701 (indicating all inmates are required to perform labor and providing rules for paying inmates "gratuitous allowances" for services rendered to prison). The test focuses primarily on control, which is the very point of incarceration. Incarceration provides the ultimate control. In fact, incarceration provides so much control that an inmate performing regular work, like Renda, could never become an employee. See Vanskike v. Peters, 974 F.2d 806, 810 (7th Cir. 1992) ("In those cases the question is essentially whether there is enough control over the individual to classify him as an employee. But here . . . there is obviously enough control over the prisoner; the problematic point is that there is too much control to classify the relationship as one of employment."). As we recognized in Frederick, an inmate is the antithesis of a voluntary employee. Frederick, 203 N.W.2d at 798.

The majority has analyzed the issue in this case without following our rules of interpretation and has reached a conclusion that is clearly contrary to the intent of our legislature. For that reason, I respectfully dissent. Our role of interpreting statutes is too important to take the approach followed by the majority.