City of Des Moines v. Cassandra Webster, and James Loveland, Jeanne Zeitler, and Eric Randall, Intervenors-Appellees.

                    IN THE COURT OF APPEALS OF IOWA

                                    No. 13-1802
                             Filed December 24, 2014

CITY OF DES MOINES,
      Plaintiff-Appellant,

vs.

CASSANDRA WEBSTER,
    Defendant-Appellee,

and

JAMES LOVELAND, JEANNE
ZEITLER, and ERIC RANDALL,
     Intervenors-Appellees.
________________________________________________________________

       Appeal from the Iowa District Court for Polk County, Karen A. Romano,

Judge.



       The City of Des Moines appeals the district court’s denial of its petition for

writ of certiorari concerning the defense of necessity.          REVERSED AND

REMANDED WITH DIRECTION.



       Mark Godwin, Deputy City Attorney, Des Moines, for appellant.

       Charles A.D. Hill of Iowa Legal Aid, Des Moines, for intervenors-appellees.



       Heard by Danilson, C.J., and Vogel and Bower, JJ
                                         2



BOWER, J.

       The City of Des Moines (City) appeals the district court’s ruling denying its

petition for a writ of certiorari and upholding the ruling for the intervenors-

appellees, James Loveland, Jeanne Zeitler, and Eric Randall (appellees). The

City claims the district court erred in finding the defense of necessity applicable

to the homeless individuals’ situation. We find the district court erred in finding

substantial evidence existed to support the defense of necessity. Accordingly,

we reverse the judgment of the district court and remand for entry of an order

sustaining the writ of certiorari.

I.     BACKGROUND FACTS AND PROCEEDINGS.

       Homeless people in Des Moines often resort to living under bridges in the

metro area. The homeless have created campsites from a collection of canvas

tents and makeshift lean-tos made from discarded wood and other materials.

These dwellings serve as a place to sleep and store their possessions. The

campsite at issue is located on the southwestern bank of the Raccoon River,

underneath the Martin Luther King Jr. bridge and near the West Martin Luther

King Jr. Parkway/Fleur Drive intersection. The appellees began living at the

campsite in March 2012.

       On January 17, 2013, the City posted notices addressed to the occupants

under the Martin Luther King Jr. bridge. The notice stated they were in violation

of section 102-615 of the Municipal Code of the City of Des Moines “by

encroaching (living/residing and storage of personal property) on City of Des
                                             3



Moines property.”1 The notice advised the occupants to leave by January 29,

2013, or be “subject to immediate forcible removal and/or arrest.” The occupants

were given until January 28, 2013, to file an appeal with the City clerk. A timely

appeal was filed.

       On January 31, 2013, an administrative hearing was held before

Administrative Hearing Officer Cassandra Webster. Attorney Charles Hill from

Iowa Legal Aid represented the appellees. Appearing for the City were SuAnn

Donovan, Zoning Enforcement Neighborhood Inspection Administrator with the

City of Des Moines Community Development Department, and Roger Brown,

Des Moines Deputy City Attorney.

       At the hearing the City discussed the history of homeless people living

under the bridges in Des Moines. The City acknowledged it last pursued legal

action in November 2008. The City explained the 2008 action was prompted by

the construction of “hooches” or small structures made out of plywood, one of

which had caught fire. As a result, the City removed eight individuals from a

campsite. In the spring and summer of 2011 the City removed two structures

and three individuals from the levee north of Gray’s Lake. That year the City

spent $25,000 in the removal of twenty abandoned campsites and contributed

$165,000 in an effort to secure housing for the homeless.



1
  The Des Moines municipal code defines “encroachment” as: “Encroachment, in
addition to its usual meaning, means any tent or other material configured or used for
habitation or shelter, architectural projection, chimney, stairway, platform, step, railing,
door, grate, vault, sign, banner, canopy, marquee, awning, newsrack, trash container,
bench, areaway, obstruction, opening or structure.” Des Moines Municipal Code, Art.
VIII., § 102-596.
                                          4



       The City stated it had received several complaints about the individuals

living under the bridge. A recreational trail passes under the bridge. Users of the

trail reported verbal assaults, being frightened by the homeless, instances of

panhandling, the unsightliness of the camps, and the accumulation of junk under

the bridge. The City inspected the camps and found unsanitary conditions and

unsafe heating methods creating a fire hazard. The location of the camps would

also make it difficult for first responders to provide prompt services.

       Des Moines Fire Marshall, Tom Patava, was called as a witness. He

discussed the safety concerns caused by homeless persons using propane,

camp fires/fire pits, or homemade wood burners for heat.              Patava voiced

concerns about the close proximity of the heat sources to the flammable heating

materials the individuals use for shelter and bedding. He also noted, because of

these problems, emergency responders are twenty times more likely to respond

to a fire at one of the campsites versus a single family home.

       Next, Cody Christensen, the deputy building official in the community

development department, testified about the safety concerns unique to the

camps. Christensen stated the city code sets a minimum standard of living for

residents of the city and Christensen opined that since the homeless individuals

inhabited the camps on a long-term basis, the city housing codes should also

apply to their structures. However, these structures do not meet the housing

standards set by the City. In addition to creating a fire hazard, the camps fail to

provide adequate cooking, bathing, or restroom facilities.
                                         5



       Iowa Legal Aid attorney Charles Hill offered general information about

homelessness. Hill argued the City did not give proper notice, the City’s action

was ultra vires, and the homeless persons he represented acted out of necessity

due to the lack of suitable housing. Hill noted the local homeless shelter, which

has a 150-bed capacity, exceeded its capacity during the January 2013 cold

snap while providing shelter for 180 individuals.       Hill faults the City for not

providing a homeless shelter of sufficient size, and also for the general lack of

affordable housing in Des Moines. Hill based his necessity argument on the

Restatement (Second) of Torts, section 197, which states an individual is

privileged to enter and remain on the land of another if it is reasonably necessary

to prevent serious harm to the individual or his chattel. Finally, Hill remarked that

the City’s officials had visited the campsite on numerous occasions since the

appellees began living there.       Other than the City’s officials advising the

appellees about the safety hazards, the officials did not ask the appellees to

leave the campsite until the notice was posted in January 2013.

       Hill also presented the testimony of Eric Randall, one of the appellees and

a resident at the campsite. Randall testified the local homeless shelter was over

its capacity, and he did not view the shelter as a viable living space. He stated

that if he went to the shelter, given the over-capacity, he may have to sleep on a

hard bench or in a chair. Randall believes his campsite is more comfortable than

the shelter, the campsite is tidy, and the residents have implemented a system

for trash disposal. Randall highlighted an additional problem—he would have to

leave his possessions if he went to the shelter as the shelter does not provide
                                        6



storage space. Randall testified further, if he and the others had to leave within

the ten days mandated by the City, they would not have sufficient time to remove

their possessions, leaving them with no choice but to stay under the bridge.

Finally, Randall stated that he could not think of any injury caused to the City by

his presence under the bridge.

      Deidre Henriquez, the Program Manager for the Advocacy Department at

Primary Health Care Outreach, testified on behalf of the appellees. She provided

a brief overview of homeless camps in Des Moines, stating camps have existed

dating back to at least 1983 when Drake University Professor Dean Wright began

keeping records on the homeless population in Des Moines.               Henriquez

personally began observing homeless camps in 2001. She confirmed the City

does have a homeless shelter with fifty beds for women and 100 beds for men.

During the week the City posted the notice, about 170 people were staying at the

shelter. The shelter did accommodate the over-capacity individuals by allowing

them to sleep on chairs or benches.         Henriquez opined that increasing the

number of individuals at the shelter would lower the quality of services provided

to the homeless.

      The hearing concluded with closing statements by counsel.          The City

discussed the homeless problem in the United States, but emphasized the

present hearing was about individuals living in a dangerous situation.         The

present situation placed the City in the position of an unwilling landlord to the

homeless. The City claimed the defense of necessity does not apply as there

was no imminent threat of bodily harm. Finally, the City indicated it had been
                                         7



more than fair, and with the winter conditions, the chance of harm to the

appellees and first responders is so apparent it prompted the City to take action.

       The appellees reasserted the necessity defense, claiming the cold

weather created imminent harm if they were forced to relocate and faulted the

City for a decade-long policy of acquiescing and allowing people to live under the

bridges while failing to provide other suitable housing.

       The hearing officer entered an order on February 11, 2013, ruling against

the City. In the ruling, the hearing officer discussed the applicable city code

provision dealing with encroachments and the December 7, 2012 amendment to

the code. The amendment added “tent or other material configured or used for

habitation or shelter” to the definition of items constituting an “encroachment”

under code section 102-596. Also amended was section 102-615, which acted

to limit the scope of a hearing on appeal from an encroachment removal action

by the City, or to allow for immediate removal without notice if the encroachment

“unreasonably endangers the safety of persons or property.”

       In analyzing the appellees’ necessity argument and the applicable case

law, the hearing officer relied on State v. Walton, 311 N.W. 2d 113 (Iowa 1981),

for guidance on the defense of necessity, as well as several California criminal

cases: Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006), vacated 505

F.3d 1006 (9th Cir. 2007); Tobe v. City of Santa Anna, 892 P.2d 1145 (Cal.

1995); In re Eichorn, 81 Cal. Rptr. 2d 535 (Cal. Ct. App. 1998). These cases

generally dealt with homeless persons who raised the defense of necessity after

being charged with criminal trespass. In allowing the necessity defense herein,
                                                8



the officer concluded the lack of available beds in the shelter and the cold

weather created a necessity for the appellees to continue residing under the

bridge.

          The City petitioned the district court for a writ of certiorari.            The City

requested the court sustain the writ, annul the defense of necessity, and allow

the City to remove the encroachments. A hearing on the writ was held on August

30, 2013. At the hearing, the City again claimed the appellees failed to prove the

defense of necessity since there was no emergency when the appellees first built

their encroachments in the warmer months. The appellees claimed the elements

of a necessity defense, as set out in Walton and the Restatement (Second), were

satisfied. They noted the City amended the encroachment ordinance four weeks

before the City posted the notices, which occurred during the cold winter months.

The appellees also discussed the lack of reasonable alternative living

arrangements. Finally, the appellees claimed their right to survive outweighed

the City’s property rights, claiming because there was no other place to stay the

defense of necessity was satisfied.

          In upholding the decision of the hearing officer, the district court relied on

Walton and the Restatement (Second) of Torts to find the appellees satisfied the

defense of necessity. Given the limited jurisdiction granted to the district court by

Iowa Rule of Civil Procedure 1.1411,2 annulling or sustaining the writ, the district



2
    Iowa Rule of Civil Procedure 1.411 provides:
                 Unless otherwise provided by statute, the judgment on certiorari
         shall be limited to annulling the writ or to sustaining it, in whole or in part,
         to the extent the proceedings below were illegal or in excess of
                                          9



court declined to offer a time frame or circumstance that could act to end the

appellees’ defense of necessity.

       The City appealed, claiming the district court erred in upholding the

hearing officer’s allowance of the defense of necessity. The City asks this court

to remand to the trial court with instructions to sustain the petition for writ of

certiorari and to order the removal of appellees’ encroachments.

II.    STANDARD OF REVIEW

       This case comes to us from the district court’s ruling on the City’s petition

for writ of certiorari from the hearing officer’s order. We review a certiorari action

for the correction of errors at law. Meyer v. Jones, 696 N.W.2d 611, 613–14

(Iowa 2005). A certiorari action may be asserted by a party when authorized by

a statute or when an “inferior tribunal, board, or officer” exceeded its jurisdiction

or otherwise acted illegally in executing judicial functions.       Iowa R. Civ. P.

1.1401; Meyer, 696 N.W.2d at 614. An inferior tribunal commits an illegality if the

decision violates a statute, is not supported by substantial evidence, or is

unreasonable, arbitrary, or capricious.       Bowman v. City of Des Moines Mun.

Housing Agency, 805 N.W.2d 790, 796 (Iowa 2011). Evidence is substantial

“when a reasonable mind could accept it as adequate to reach the same

findings.” City of Cedar Rapids v. Mun. Fire & Police Ret. Sys., 526 N.W.2d 284,

287 (Iowa 1995). “‘If the district court’s findings of fact leave the reasonableness

of the [hearing officer’s] action open to a fair difference of opinion, the court may


       jurisdiction. The judgment shall prescribe the manner in which either
       party may proceed, and shall not substitute a different or amended
       decree or order for that being reviewed.
                                         10



not substitute its decision for that of the [hearing officer].’” Helmke v. Bd. of

Adjustment, 418 N.W.2d 346, 347 (Iowa 1988) (quoting Weldon v. Zoning Bd.,

250 N.W.2d 396, 401 (Iowa 1977)).

       Our rules of civil procedure provide that “[u]nless 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.” Iowa R. Civ. P. 1.1411. Illegality exists

within the meaning of the rule when the findings upon which the hearing officer

based her conclusions of law do not have evidentiary support or when the court

has incorrectly applied the proper rule of law. Fisher v. Chickasaw Cnty, 553

N.W.2d 331, 334 (Iowa 1996).          We presume the hearing officer properly

performed her duty under the law, unless clear evidence to the contrary appears.

Petersen v. Harrison Cnty. Bd. of Supervisors, 580 N.W.2d 790, 793 (Iowa

1998). The burden of showing illegality rests upon the asserting party. Id.

III.   ANALYSIS

       The City claims the district court erred in allowing the defense of

necessity.   The modern construction of the necessity defense has not been

applied in the civil context in Iowa.3 In Walton our supreme court discussed the

criminal defense of necessity:



3
   The appellees claim Bradshaw v. Frazier, 85 N.W. 752 (Iowa 1901), was the first
instance of the necessity defense in Iowa. Bradshaw concerned an appeal to recover
damages for an abuse of process. 85 N.W. at 753. The case centered on a dispute
between a landlord and tenant resulting in an eviction action. Id. at 752–53. The
tenant’s daughter had the measles; the evidence showed the landlord was aware of her
illness. Id. After the tenant and his family were evicted they waited in the cold
                                             11



       The rationale of the necessity defense lies in defendant being
       required to choose the lesser of two evils and thus avoiding a
       greater harm by bringing about a lesser harm. At least one
       commentator has suggested the following factors as a framework
       for analysis where the defendant is not personally at fault in
       creating the situation calling for the necessity to make a selection:
       (1) the harm avoided, (2) the harm done, (3) the defendant’s
       intention to avoid the greater harm, (4) the relative value of the
       harm avoided and the harm done, and (5) optional courses of
       action and the imminence of disaster.

Walton, 311 N.W.2d at 115 (citation omitted).

       In Walton, the court found the defense of necessity inapplicable for a

defendant, Walton, who shot a woman after she threatened him.                     Id.   The

defense failed because the threat to the defendant did not create an imminent

necessity for the shooting. Id. “The necessity defense does not apply except in

emergency situations where the threatened harm is immediate and the

threatened disaster imminent. The defendant must be stripped of options by

which he or she might avoid both evils.” Id. Further, the criminal defense of

necessity has been raised in only a few other cases in Iowa.4 See e.g., State v.



September weather for an hour before they could take a carriage ride five miles to a
relative’s house. Id. at 753. The daughter died nine days after the move. Id. The court
concluded the exposure to the cold caused the daughter’s subsequent death. Id. The
court ruled an abuse of process had occurred and held against the landlord. Id. “It is an
abuse of lawful process ‘if, after arrest upon civil or criminal process, the party arrested
is subjected to unwarrantable insult or indignities, is treated with cruelty, is deprived of
proper food, or is otherwise treated with oppression and undue hardship.’” Id. (citation
omitted). We find this case unpersuasive in the present controversy. Bradshaw is an
abuse-of-process case and inapplicable here.
4
  The appellees also cite to In re Eichorn, 69 Cal. App. 4th 382 (Cal. Ct. App. 1998). In
Eichhorn, a homeless individual was convicted of a misdemeanor under a city ordinance
banning sleeping in public areas. 69 Cal. App. 4th at 385. The homeless shelters were
above capacity the night the individual received the citation for sleeping in a public area.
Id. At the lower court level, the court did not allow an instruction on the necessity
defense. Id. On appeal, the appellate court cited the following considerations for a
criminal necessity defense: “to prevent a significant evil, (2) with no adequate alternative,
                                            12



Bonjour, 694 N.W.2d 511, 514–15 (Iowa 2005) (holding a medical necessity

defense is not available as a defense to manufacturing marijuana); Planned

Parenthood of Mid-Iowa v. Maki, 478 N.W.2d 637, 640 (Iowa 1991) (stating “[t]he

necessity defense is generally not available to excuse criminal activity by those

who disagree with the policies of the government”); State v. Reese, 272 N.W.2d

863, 865 (Iowa 1978) (holding the defense of necessity inapplicable for an

inmate who escaped from prison to avoid possible attack or death); State v.

Ward, 152 N.W. 501, 502–03 (Iowa 1915) (holding the defense of necessity

applicable to defendant who unlawfully killed a deer as it ate his crops).

       Section 197 of the Restatement (Second) of Torts provides guidance on

the defense of necessity. That section describes “Private Necessity” as:

       (1) One is privileged to enter or remain on land in the possession of
       another if it is or reasonably appears to be necessary to prevent
       serious harm to
               (a) the actor, or his land or chattels, or
               (b) the other or a third person, or the land or chattels of
               either, unless the actor knows or has reason to know that the
               one for whose benefit he enters is unwilling that he shall take
               such action.
       (2) Where the entry is for the benefit of the actor or a third person,
       he is subject to liability for any harm done in the exercise of the
       privilege stated in Subsection (1) to any legally protected interest of
       the possessor in the land or connected with it, except where the
       threat of harm to avert which the entry is made is caused by the
       tortious conduct or contributory negligence of the possessor.



(3) without creating a greater danger than the one avoided, (4) with a good faith belief in
the necessity, (5) with such belief being objectively reasonable, and (6) under
circumstances in which he did not substantially contribute to the emergency.” Id. at 389.
The court held the lower court should have allowed the jury to receive an instruction on
the defense of necessity. Id. at 390–91. The California court did not state if the defense
of necessity applied to the individual’s situation, though it did note “reasonable minds
could differ whether defendant acted to prevent a ‘significant evil’” by sleeping in public
and avoiding the “ill effects” that could arise from sleep deprivation. Id. at 389–90.
                                         13




Restatement (Second) of Torts § 197 (1965).            Section 197 is followed by

comments and illustrations used to clarify the rule. Most relevant to this appeal

are comments (a) and (b) of subsection 1:

              a. The privilege stated in this Subsection exists only where in
       an emergency the actor enters land for the purpose of protecting
       himself or the possessor of the land or a third person or the land or
       chattels of any such persons. Furthermore, the privilege must be
       exercised at a reasonable time and in a reasonable manner.
       Although the actor is subject to liability for harm done in the
       unreasonable exercise of the privilege stated in this Section (see
       § 214), in so far as his original entry was privileged, he is not liable
       for such entry, or for acts done prior to such unreasonable conduct,
       except as stated in Comment i.
              b. Acts done for self-protection. Where the actor is acting for
       the protection of himself or his belongings, the privilege stated in
       this Subsection permits him to enter another’s land to save himself
       or his property, or to remove his chattel which is lawfully there, in
       order to save it from a threatened danger. It also permits one
       already on the land to remain there to avoid a threatened danger to
       himself or to leave his chattel there under like circumstances.

Id. The following illustration, from comment 1(b)(4), demonstrates the right of

private necessity for self-protection:

       On a very cold winter night A, visiting at B’s dwelling, is overcome
       by an attack of illness which leaves him helpless and unable to take
       care of himself. A is privileged without liability to remain in B’s
       house until arrangements can be made to take him to a place
       where he will not be exposed to danger from the weather.

       While there are no Iowa cases addressing section 197, other states have

addressed this section in a somewhat similar context. In Benamon v. Soo Line

Railroad Co., 689 N.E.2d 366, 370 (Ill. App. Ct. 1997), the plaintiff claimed he hid

on a railroad overpass out of necessity to escape a gang of boys who had been

chasing him. The court held the defense of necessity inapplicable. Benamon,

689 N.E.2d at 370. Echoing section 197, the court found the plaintiff’s actions
                                           14



were not exercised at a reasonable time or in a reasonable manner in light of all

the circumstances. Id. The court noted the potential threat of harm posed by

hiding on the railway was not outweighed by the threat posed by the boys. Id. at

371.   Further, the court noted the plaintiff had other less dangerous options

available to him: “[G]iven the existence of less dangerous options, and given the

known risks associated with the railroad tracks, that [the Plaintiff’s] presence on

or near those tracks was not reasonable and thus his presence on those tracks

was not a private necessity . . . .” Id.

       Although Iowa courts have not addressed the defense of necessity in a

civil action, we adopt section 197 of the Restatement (Second) of Torts, while

also considering the factors articulated by our supreme court in Walton. The

defense of necessity allows an individual to enter and remain on another’s

property without permission in an emergency situation when such entry is

reasonably necessary to prevent serious harm. See Restatement (Second) of

Torts § 197. The privilege must be “exercised at a reasonable time and in a

reasonable manner.”      Id.   With these considerations in mind, we review the

appellees’ circumstances.

       The appellees began living under the Martin Luther King Jr. bridge in

March 2012. The Des Moines municipal code was then amended in December

2012, and the appellees were given notice to move their encroachments a few

weeks after the change. The record shows a typical Iowa winter occurred in

2013—meaning below-freezing temperatures.          That winter, the Des Moines

homeless shelter remained at or above capacity, especially during the cold snap
                                         15



when the appellees were ordered to vacate.          While the shelter was above

capacity, evidence shows the appellees would not have been turned away had

they sought shelter. In their reasoning not to go to the shelter, the appellees

cited the potential uncomfortable nature of the shelter and the fact they did not

want to leave their possessions behind.         They claimed they needed their

possessions to keep warm and they also claimed their campsite was more

comfortable than the shelter.

       The City dedicated much of its case to demonstrating the potential

dangers associated with living under the bridge.          The City presented the

testimony of the Des Moines fire marshal who noted the fire department was

twenty times more likely to respond to an emergency at a homeless encampment

due to the homeless individuals’ methods for heating their camps than to a

residence. Homeless individuals’ heating sources use an open flame fueled by

wood or propane, and the individuals use highly flammable materials like canvas

and wood to create their shelters. The City submitted evidence of a different

homeless camp that had burned due to an unsafe heating source.

       With these facts in mind, we ask whether substantial evidence supports

the defense of necessity. Factors weighing against the necessity defense are

the dangers associated with the individuals’ choice of heating sources, the threat

to the individuals’ lives in the event of a fire, and the threat to first responders’

lives in responding to a fire under the bridge. Factors supporting the necessity

defense are the individuals’ desire not to attend the crowded homeless shelter,

the desire to sleep in a familiar place and not on a hard plastic bench, and the
                                        16



desire to keep their possessions.       Listing these factors reveals a lack of

substantial evidence to prove the defense of necessity. In good conscience, we

cannot hold the appellees’ decision to remain in their encroachments under the

bridge—endangering their lives and the lives of first responders—was reasonably

necessary to prevent the harm of staying in a crowded shelter and leaving their

possessions unattended. Moreover, the cold weather is not an emergency as

anticipated under section 197. Section 197 illustrates emergency situations as a

“violent storm” suddenly overtaking a ship forcing it to moor at another’s dock, an

airplane pilot forced to land in a field under a reasonable belief he must land to

protect himself, or an individual who must take refuge at another’s home due to

“an attack of illness.” See Restatement Second § 197 cmt. b (1–4). The factual

scenario presented by the appellees is not sufficient evidence of a situation

demonstrating     an   emergency    creating   a   risk   of   serious   harm—the

encroachments were constructed in the warmer months, and in the cold months

a warm and safe shelter was available. The appellees’ decision to build the

encroachments and remain under the bridge was not reasonably necessary in

light of all the circumstances.5

       We are sensitive to the public policy arguments raised by Iowa Legal Aid.

Homelessness is both a local and a national problem. However, it is not our role

to rewrite the law and substitute our views of public policy. State v. Wagner, 596



5
  We limit our ruling to only apply to the homeless individuals’ encroachments, as
defined by 102-615 of the Municipal Code of the City of Des Moines. The City has not
proven it has the right, pursuant to 102-615, to remove the homeless individuals and
their personal belongings.
                                          17



N.W.2d 83, 88 (Iowa 1999). The Iowa judicial system is not the proper place, in

this instance, to change the City of Des Moines’ policy concerning the

encroachments of the homeless persons residing within its borders.

       We conclude, under the specific circumstances of this case, the district

court erred in ruling substantial record evidence supported the hearing officer’s

finding the defense of necessity applied to the homeless individuals’ situation.

Accordingly, we reverse the judgment of the district court and remand for entry of

an order sustaining the writ of certiorari.

       REVERSED AND REMANDED WITH DIRECTION.