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IN THE COURT OF APPEALS OF IOWA No. 2-305 / 11-1442 Filed June 13, 2012

GEORGIA NITSOS, Plaintiff-Appellant, vs. EMPLOYMENT APPEAL BOARD, Defendant-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Michael J. Shubatt, Judge.

Georgia Nitsos appeals the district court's order granting her employer's and the Employment Appeal Board's pre-answer motion to dismiss. AFFIRMED.

Bradley T. Boffeli of Kurt Law Office, P.C., Dubuque, for appellant. David Pillers of Pillers Law Offices, DeWitt, and Richard Autry of the Employment Appeal Board, Des Moines, for appellee.

Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ.

2 DOYLE, J. Wisconsin resident Georgia Nitsos filed a petition for judicial review in the Iowa District Court for Dubuque County, following an adverse decision by the Employment Appeal Board (EAB) concerning her claim for unemployment benefits. Her petition was dismissed for lack of jurisdiction because she failed to comply with Iowa Code section 10A.601(7) (2011), which requires nonresidents to file petitions for judicial review in the Iowa District Court for Polk County. On appeal, Nitsos asserts this requirement violates the Privileges and Immunities Clauses of the Iowa and United States Constitutions. We affirm. I. Background Facts and Proceedings. Georgia Nitsos, a Wisconsin resident, applied for unemployment insurance benefits with the Iowa Workforce Development after her employment with Frontier Dubuque Hotels (Frontier), located in Dubuque, Iowa, was terminated. Nitsos followed the applicable administrative remedies in pursuing her claim before the agency. Ultimately, the EAB affirmed the administrative law judge's decision limiting Nitsos's right to collect unemployment benefits. Nitsos then filed a petition for judicial review of her claim in the Iowa District Court for Dubuque County. Shortly thereafter, Frontier, as intervener, filed a pre-answer motion to dismiss. Frontier argued the Dubuque County

District Court lacked jurisdiction to hear her claim pursuant to Iowa Code section 10A.601(7), which requires out-of-state residents to file judicial review petitions in the Iowa District Court for Polk County. The EAB filed an answer and later joined in Frontier's motion to dismiss.

3 Not disputing she failed to comply with the statute, Nitsos resisted Frontier's argument, asserting section 10A.601(7) was unconstitutional under the Privileges and Immunities Clauses of the Iowa and United States Constitutions. She argued her access to the courts is a fundamental right and restricting her to filing a petition in Polk County violated that right, particularly in light of the fact that had she been an Iowa resident, she could have filed in Dubuque County. She maintained that the nonresident filing requirement would not meet either the strict scrutiny or rational basis tests, and she requested that part of the statute be ruled unconstitutional and struck down. Following an unreported hearing, the district court found section 10A.601(7) was not unconstitutional. The court then determined it lacked

jurisdiction under that section and dismissed Nitsos's petition. See Anderson v. W. Hodgeman & Sons, Inc., 524 N.W.2d 418, 421 (Iowa 1994). Nitsos appeals. She contends the district court erred in dismissing her petition, asserting the same arguments she made before the district court. II. Scope and Standards of Review. "The grant or denial of a motion to dismiss is reviewed for errors at law." McGill v. Fish, 790 N.W.2d 113, 116 (Iowa 2010). However, "[t]o the extent that we review constitutional claims, our review is de novo." Id. at 116-17. III. Discussion. Iowa Code section 10A.601(7) provides, in relevant part: Notwithstanding the petitioner's residency requirement in section 17A.19, subsection 2, a petition for judicial review may be filed in the district court of the county in which the petitioner was last employed or resides, provided that if the petitioner does not reside

4 in this state, the action shall be brought in the district court of Polk county, Iowa . . . . (Emphasis added.) Because the statute allows a resident to file a petition for judicial review in "the district court of the county in which the petitioner was last employed or resides," but restricts a nonresident to filing only in Polk County, Nitsos asserts the section denies her fundamental right to access to the courts, thereby violating the Privileges and Immunities Clauses of the Iowa and United States Constitutions. Before discussing the merits of Nitsos argument, we note that "statutes are cloaked with a presumption of constitutionality." State v. Tripp, 776 N.W.2d 855, 857 (Iowa 2010) (internal quotation marks omitted). A. United States Constitution Claim. The Privileges and Immunities Clause of the U.S. Constitution provides: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." U.S. Const. art. IV,

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