Iowa Supreme Court extends argument time in major voting case and says amici can argue–if the parties let them

By: Ryan Koopmans on February 10th, 2016

As the Associated Press reported yesterday, the Iowa Supreme Court is again going to take up the question whether felons can vote. Or, more specifically, whether all felonies (or just certain kinds) are “infamous crimes” under the Iowa Constitution. The Court addressed the question two years ago, but Justice Appel recused himself in that case and the other six justices split 3-3 on the issue.  (Background here.)

So the justices are going to try again.  And this time with more help.  To start, Justice Appel will likely be on the bench, which means that the justices will get the benefit of his insight and the tie-breaking vote.  But others are volunteering to help, too.  Seven groups–the Iowa County Attorneys Association, the Iowa State Association of Counties, the Polk County Auditor, the Iowa League of Women VotersCitizens United for Rehabilitation of Errants (known as CURE), Iowa Veterans, and the NAACP Legal Defense & Educational Fund–have weighed in by filing an amicus curiae (friend of the court) brief.

Amicus briefs aren’t unusual, but they’ve become more prevalent in Iowa Supreme Court cases over the past five years.  And the justices don’t seem to mind.  In fact, they seem to be welcoming them.

Last week, Chief Justice Cady entered  an order setting oral argument in this case (Griffin v. Pate) for March 30 (which, by itself, is significant, since it will allow the justices to decide the case before the end of the 2015 term and thus before the 2016 elections).  In a rare (maybe unprecedented) move, the Chief also increased the oral argument time (from 15 minutes per side to 30 minutes per side) and alerted the parties that “the court will permit a counsel for amici curiae to argue within the time frame allotted for each side with which they align.”  So Secretary of State Paul Pate can, if he chooses, allow the Iowa County Attorneys Association and the Iowa State Association of Counties to use some of his 30-minute argument time.  And the plaintiff (who is being represented by the ACLU) can give some of her time to the Polk County Auditor, the League of Women Voters,  CURE, Iowa Veterans, and the NAACP.

It’s unlikely that all of those groups will speak.  And it may be that none of them do; it’s up to the parties.  But some of the briefs offer unique perspectives that may be valuable to the Court.  The Iowa Association of Counties, for instance, represents the various county auditors who have to administer elections.  They’re not concerned as much with whether felons can vote as they are with making sure that whatever the rule is, it’s easy to apply.  Polk County Auditor Jamie Fitzgerald has nevertheless taken the opposite position (he thinks the infamous-crimes provision should be interpreted narrowly, and on a crime-by-crime basis, despite the administrative problems that would create), and thus his input might also be valuable.

This is something of a test case, it seems.  If it goes well, we might see more amicus participation at oral argument.  And since the Iowa Supreme Court’s rulings apply in all future cases (not just to the parties before the court), that’s probably a good thing.

Eighth Circuit to honor the late Judge George G. Fagg

By: Ryan Koopmans on January 26th, 2016

The Eighth Circuit announced today that it will hold a special session to honor the late Judge George G. Fagg on March 4, 2016, at 1:30 p.m. at the United States Courthouse in Des Moines.  The public is invited to attend.

Judge Fagg served on the Eighth Circuit from 1982 until 2006 (having taken senior status in 1999).  Before his appointment to the federal bench, Judge Fagg practiced law in  Marshalltown for 14 years and served on the state district court for 10 years.  Judge Fagg died on July 14, 2015.

When is a court order electronically filed?

By: Ryan Koopmans on December 11th, 2015

*Disclaimer: This is boring stuff if you’re not a lawyer.  If you’re a lawyer, it’s still boring but really important

Today, the Iowa Supreme Court ruled that a court order is “filed” when the judge submits it to the court’s electronic document management system (and thus when the system stamps it with the date), and not when the clerk approves and notifies the parties of that order.  That ruling clarifies an ambiguity in the Iowa rules that govern electronic filing.  And it’s one that every Iowa lawyer must commit to memory, because it can have significant consequences. 

In 2009, the Iowa Judicial Branch started the process of creating an electronic filing system for court records.  The project started in Plymouth County and has moved across the state over the last six years.  This summer, this electronic document management system (what we lawyers call “EDMS”) went statewide.

The process of going from paper to electronic records, while important, hasn’t been seamless.  Lawyers as a class are probably more habitual than others.  And for some, the word “electronic” is synonymous with “foreign.”  Most of the problems with EDMS have been or are being worked out.  And when lawyers make mistakes in filing their documents, the court system has usually been forgiving.  If you tell the system that you’re filing a document as a “proposed exhibit” when it should be filed as an “attachment” (those are two different things under the rules), then clerk’s office will either kindly tell you to refile or to do it correctly next time.

But there are some mistakes that the court system deems unforgivable.  (Judges and lawyers call them “jurisdictional” mistakes.)  And filing an appeal too late is one of them.   The Iowa Rules of Appellate Procedure state that if a party wants to appeal, it must do so “within 30 days after the filing of the final order or judgment.”  If you file an appeal just one day late, then there is no appeal. 

So it’s  important for lawyers to know when that 30 days runs.  And that depends, of course, on when the final order was “filed.”

In the paper world, a document was filed when the clerk stamped it and entered it in the docket.  But what about in the electronic world?

The EDMS rules (which are in the process of being revised) seem to say two different things on the subject.  Rule 16.307(2) says that the “filing” of a document constitutes the “electronic transmission of a document to the electronic document management system”–i.e., when the judge submits the order–“together with the production and transmission of a notice of electronic filing.”  Under that definition, it would seem that a document is not filed until both steps are completed–(1) the judge submits the order, and (2) there is a transmission of a notice to the parties of that order.  

But rule 16.311 says something different.  That rule–titled “Date and time of filing, deadlines”–states that “[w]hen a document is filed using the electronic document management system, the system will generate a notice of electronic filing” that “will record the date and time of the filing of the document in the local time for the State of Iowa.”  “This,” the Rule states, “will be the official filing date and time of the document regardless of when the filer actually transmitted the document.”  

So the second rule says that a document is filed when the judge submits the order to the system, and the first rule  says that an order is filed when the judge submits it and there is a transmission of a notice to the parties.

Sometimes those two things happen on the same day.  But only sometimes.  The system doesn’t generate the notice until the clerk’s office approves the order.  And that often happens a day or two later (and sometimes more).   

And that sets up the problem: Does a party have 30 days from the date the judge submits the order into the system (which is denoted by the electronic file stamp on the order) or when the notification is sent out to the parties?

In Concerned Citizens of Southeast Polk School District v. City Development Board of the State of Iowa, the district court judge submitted a final order into the electronic system on July 11, but the notice didn’t go out until July 15.  The losing party appealed on August 12 (32 days after the judge submitted the order, but 28 days after the parties received the notice).

Today, the Iowa Supreme Court ruled, by a 5-2 vote, that the 30 days began running on July 11, when the judge submitted the order.  Chief Justice Cady, writing for the majority, ruled that all pleadings (not just court orders) are filed when they are submitted to into the electronic system and (instantaneously) receive a file stamp.  The date that the notice goes out is of no consequence.

Justice Mansfield, joined by Justice Waterman, dissented.  He acknowledged that the “probable intent” of the electronic rules is to state that a document is filed when it’s submitted into the system, rather than when the clerk approves it and sends out the notification.  But “in light of some internal inconsistency in those EDMS rules, as well as doubts about their legal status and consistency with Iowa Code,” Justices Mansfield  believed that the appeal was timely. 

The opinion is here, if you want further explanation.  But regardless of the explanation, the rule is now clear.  And lawyers–you are on notice. 

Iowa Supreme Court takes up unemployment case involving jailed employee

By: Administrator on November 18th, 2015

Have you in effect quit your job if you spend nearly a month in jail on charges that are later dismissed?

That’s the question that the Iowa Supreme Court will face when it it convenes for oral arguments on Thursday.   The answer could reverse 40 years of Iowa unemployment insurance policy decisions and affect future cases where employees miss work for reasons that are not of their own making.

Police can’t detain a car’s occupants simply because there was “movement inside the vehicle with moisture on the windows.”

By: Ryan Koopmans on November 15th, 2015

Oskaloosa, Saturday, December 14.  The time? 1:45 a.m.  Closing time.

Officer Blaine Shutts is on patrol.  The location? V.F.W. Post #2237. Shutts sees two cars in a nearby lot with lights on.  He circles the block.  Now there’s only one set of headlights; but still the same two cars.  Why turn off the lights, Shutts wonders.

He approaches; notices “movement inside” and “moisture on the windows.”  What could possibly be going on inside the car? At this time of night? On a weekend? Outside a bar?

Officer Shutts is unsure.  He illuminates his red lights.  The situation needs further investigation.

Inside the car is a man and a woman.  They were “just talking,” they tell him.  But the man was talking (in a running vehicle, in the driver’s seat) with a blood alcohol level above the legal limit.  So Officer Shutts takes him into custody.

*         *          *

Those were the facts that were presented in State v. Elder.  And the legal question was whether those facts justified Officer Shutts’s “detention” of the car’s occupants.

Last week, the Iowa Court of Appeals said no.  According to the three-judge panel, “movement” inside a car with fogged-up windows does not give an officer reasonable suspicion that criminal activity is afoot.  Indeed, even Officer Shutts admitted, on cross-examination, that those facts do not indicate  that “somebody was doing something wrong inside” the car (wrong meaning criminal).  The Court of Appeals also ruled that, because nothing seemed to be amiss with the car (flat tire, engine trouble, etc.), the officer could not investigate the situation under the “community caretaker” doctrine.

Iowa teenagers are breathing a sigh of relief.

The U.S. Supreme Court could decide Friday whether to (indirectly) review the Iowa Supreme Court’s telemed abortion decision

By: Ryan Koopmans on November 10th, 2015

When the nine justices of the U.S. Supreme Court meet for conference this Friday, an Iowa Supreme Court case will be on their agenda (kind of).

In June, the Iowa Supreme Court ruled that Iowa’s ban on telemed abortion violates both the U.S. and Iowa constitutions because it places “undue burden on a woman’s right to terminate a pregnancy.”  The operative phrase of that quote–“undue burden” — comes from the U.S Supreme Court’s opinion in Planned Parenthood v. Casey, and it has become the definitive test of whether a law that restricts abortion is constitutional.

Lower courts are now disagreeing, however, on how the undue-burden test should be applied, and in the Iowa telemed abortion case (Planned Parenthood v. Iowa Board of Medicine) the Iowa Supreme Court took sides.

Adopting language from the Seventh Circuit, the Iowa Supreme Court, in an opinion by Justice Wiggins, wrote that the application of the undue-burden test differs depending upon the state’s reason for regulating abortion. If the law’s purpose is to “advance fetal life,” then the law is constitutional unless “its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”  If, however, the law’s purpose is  to “further the health or interest of a woman seeking to terminate her pregnancy,” then the court must scrutinize the state’s medical justifications and weigh them against the burden that the law places on a woman’s ability to terminate her pregnancy.  The more “feebler” the medical justifications, Justice Wiggins wrote (again, borrowing from the Seventh Circuit), the more likely that any burden (even a slight one) will be an undue one.

The Iowa Board of Medicine’s stated purpose in banning telemed abortion was to protect the mother’s health, but the Iowa Supreme Court thought that the health benefits were “very limited.”  In weighing those “very limited” benefits against the burden on the mother (having to travel a greater distance to receive in-person treatment), the justices came to the conclusion that the law violated both the Iowa and U.S. constitutions (though the plaintiffs’ case was based solely on a violation of the state constitution).

But just 10 days earlier, the United States Court of Appeals for the Fifth Circuit came to the opposite conclusion.

In 2013, Texas enacted a statute that, one, requires abortion clinics to comply with standards for ambulatory surgical centers, and, two, prohibits a physician from performing an abortion unless that physician has admitting privileges at a hospital within thirty miles of the location where the abortion will be performed.  The justification for the law — like the justification for Iowa’s telemed regulation — was to protect the health of the mother.  And the burden that the law placed on women choosing to have an abortion — like the burden placed on Iowa women under the telemed abortion regulation — was having to travel greater distances to receive an abortion at a clinic that could meet the new, stricter standards.

Unlike the Iowa Supreme Court, though, the Fifth Circuit concluded that it did not need to closely scrutinize and weigh the state’s medical justifications.  As long as the justifications are rational, the Fifth Circuit concluded, then the focal point of the analysis is on whether the burden (traveling greater distances to receive an abortion) is an undue one.

The Fifth Circuit said that it is not — at least not in most cases.  The court did rule that one clinic could stay open, despite not meeting the admitting privileges and ambulatory surgical center standards, because the next closest clinic that performed abortions (and met the statute) is 235 miles away.  That, the court concluded, is too far.  But lesser distances (specifically, those under 150 miles) do not amount to an undue burden, the court ruled.

The plaintiffs in that case are now asking the U.S. Supreme Court to review the Fifth Circuit’s decision.  They argue that it’s wrong, and (importantly for getting the Supreme Court’s attention) they argue that the Fifth Circuit’s version of the undue-burden test is at odds with the version that other courts, including the Iowa Supreme Court, apply.  The Fifth Circuit’s standard, plaintiffs argue, “stands in direct conflict with decisions of the Seventh and Ninth Circuits and the Iowa Supreme Court, which hold that courts must examine the extent to which laws regulating abortion actually further a valid state interest in assessing whether the burdens they impose on abortion access are undue.”

In response, Texas says that the Fifth Circuit got it right, and that the split among the lower courts isn’t as deep as the plaintiffs advertise.  According to Texas, the Seventh and Ninth Circuit opinions that the plaintiffs point to are in conflict with precedent in those Circuits, and the Iowa Supreme Court decision is an “outlier.”  As a result, Texas says that this case is not Supreme Court material.

So the justices must now decide whether this is indeed an issue worthy of their review.  The Texas case was listed on the Supreme Court’s conference calendar for last Friday (November 6), but the Court relisted it for this week’s conference.  Thus, we might know as early as this Friday whether the justices will take up this issue, and thus whether it will (indirectly) review the Iowa Supreme Court’s decision in Planned Parenthood v. Iowa Board of Medicine. 


Eighth Circuit tees up the ACA contraception mandate (and accommodation) for another SCOTUS review

By: Administrator on September 18th, 2015

By Frank Harty

The stage is set for the United States Supreme Court to rule on the contraception opt-out of the Affordable Care Act.  Yesterday, the Eight Circuit Court of Appeals in Sharpe Holdings, Inc. v. U.S. Dept. of Health and Human Services ruled that the district court was correct to enjoin the government from enforcing the law’s contraceptive provision against a number of religiously affiliated employers. 

The Affordable Care Act requires private health insurance plans to provide coverage for preventive care and screenings for women.  The Administration’s regulatory mandate implementing that provision required health plans to fully cover, without copay, all drugs and devices labeled by the Food and Drug Administration as “contraception.”  The FDA’s definition of contraception is broad enough to include “emergency contraception” drugs and devices with post-fertilization or life ending mechanisms. 

The plaintiffs in Sharpe (and the companion case, Dort College v. Burwell) argued that forcing employers to provide coverage of life ending drugs violates their conscientious belief.  The regulations do allow religiously affiliated organizations to opt-out of that requirement, but the insurers must still provide the coverage, and the plaintiffs argued that this process still makes them complicit in providing contraceptives.  Thus, the plaintiffs argued that the opt-out provision violates the Religious Freedom Restoration Act. 

Judge Roger Wollman, joined by Judges Benton and Colloton, wrote that the court had to defer to the plaintiffs’ “sincere religious belief that their participation in the accommodation process makes them morally and spiritually complicit in providing abortifacient coverage.” Relying upon the substantial burden test set forth in the Supreme Court’s Hobby Lobby decision, the Eighth Circuit ruled that the plaintiffs established they were likely to succeed on the merits of the Religious Freedom Restoration Act argument and, therefore, affirmed the issuance of orders enjoining the government from imposing the mandate and opt out on the plaintiffs pending the final outcome of the litigation. 

There is now a clear split in Circuit court decisions, which substantially increases the likelihood that the Supreme Court will take the matter up in the term that begins in October.

Eighth Circuit reverses “novel” limitation on a defendant’s procreation

By: Ryan Leemkuil on July 21st, 2015

Today, the Eighth Circuit ruled that a district court goes too far when it attempts to limit a defendant’s ability to procreate.  

Christopher Harris, a convicted felon, fathered ten children out of wedlock with seven different women.  After Harris was caught illegally possessing firearms, the district court took it upon itself to curtail Harris’s procreation, which the court viewed as a “very serious social problem.”  So the court crafted a special condition of supervised release that the Eighth Circuit accurately described as “novel.”  The court ordered that Harris not engage in “unprotected sex activities without probation office approval.”  Harris, apparently not wanting to run these things by his probation officer when he’s released in 2029 (he got a fifteen year sentence), appealed.

The Eighth Circuit, Judge Colloton writing, held that the district court lacked authority to impose the special condition:

For one thing, the special condition as pronounced is even broader than the novel restriction on fathering children that the court seemed to contemplate during the hearing.  By restricting “unprotected sex activities,” without limitation, the condition purports to regulate conduct that could not result in pregnancy.  The condition is not even reasonably related to the purposes that motivated the condition.

There were other problems with the restriction.  There was no showing, for example, that Harris’s sexual activity was “related to his unlawful possession of a firearm.”  The restriction also involved a greater deprivation of liberty than was necessary to provide deterrence and protect the public from future crimes.  In short, the district court “sought to address a perceived social problem that does not have the required nexus to factors that guide sentencing in a federal criminal case.”

Deja Deja Vu at the Iowa Supreme Court

By: Ryan Koopmans on June 24th, 2015

The Iowa Supreme Court’s 2014-2015 term ends on June 30, meaning that the justices will issue decisions in all remaining cases by that date or shortly after.  Of the 105 cases submitted this year, two were dismissed (one voluntarily and one by the Supreme Court) and ten remain outstanding (and really only nine, as two cases involve the same criminal case).  Of those ten, two involve the Iowa Constitution’s search-and-seizure clause (King and Gaskins) and two involve the constitutionality of  juvenile sentencing (Louisell and Seats).  That means that this year will end a lot like the last two years.  And it probably won’t be harmonious.  Those two issues–search and seizure and juvenile sentencing–have sharply divided the Cady Court and will almost surely do so again this year.

A list of the outstanding cases, prepared by Nyemaster Goode summer associates Amella Viso and Brad Novreske, is below the jump. 

Can the US Supreme Court hear the telemed-abortion case? [UPDATE: No!]

By: Ryan Koopmans on June 19th, 2015

UPDATE:  I was wrong! In a footnote in their appeal brief, Planned Parenthood dropped its US Constitution claim and stated that it was now, on appeal, “rely[ing] solely on the Iowa Constitution.”  The Iowa Supreme Court’s decision does not mention the withdrawal of the federal claim, and thus I assumed that the case had proceeded as it did in the district court–under both the Iowa and US Constitutions.  But upon rereading the Court’s decision, there is no mention of a federal claim (as opposed to the federal standards).

That changes everything.  The Iowa Supreme Court did conclude that the telemed-abortion ban violates the US Constitution  (and thus violates the Iowa Constitution), but since there is no federal claim, the US Supreme Court would not have jurisdiction to hear the case.  And that may have been the point of dismissing the federal claim. 

So what’s said below about cases that involve federal and state constitutional claims is correct, but it doesn’t apply to this case.  


The Iowa Supreme Court ruled today that the Iowa Board of Medicine’s ban on so-called telemed-abortion violates the United States and Iowa Constitutions.  According to this Des Moines Register article by Tony Leys, there are “conflicting theories” over over whether the State can appeal that ruling to the United States Supreme Court.  It can, but the reason is complicated. 

The conflict comes up because the US Supreme Court has jurisdiction over federal questions (Does the law violate the US Constitution?), but not state questions (Does the law violate the Iowa Constitution?), and the Iowa Supreme Court’s decision includes both. That is, the Court ruled that the Board of Medicine’s rules violate the US Constitution and the Iowa Constitution.  In cases where the the state issue is an “adequate and independent” basis for the state supreme court’s decision, the US Supreme Court can’t take the case.  And why would it?  The outcome  won’t change; even if the US Supreme Court says that the state supreme court got it wrong–that there was no violation of the US Constitution–the state constitutional ruling would remain the same.

In this case, though, the state ruling (that the telemed-abortion ban violated the Iowa Constitution) was completely dependent on the federal ruling.  Planned Parenthood asked the Iowa Supreme Court to rule that the right to an abortion is broader under the Iowa Constitution than it is under the US Constitution.  The Court declined to decide that issue–saving it for another day–and thus assumed that the Iowa Constitution and the US Constitution are exactly the same on the subject. As a result, the justices only analyzed the telemed-abortion ban under the federal “undue burden” standard “as defined by the United States Supreme Court in its federal constitutional precedents.”  In other words, the only reason that the telemed-abortion ban violates the Iowa Constitution is because the Iowa Supreme Court believes that it violates the US Constitution.  If it doesn’t–if the Iowa Supreme Court is wrong–then the Iowa Supreme Court would have to face the question whether the Iowa Constitution and the US Constitution differ on the subject.

For that reason, the US Supreme Court can take the case.  (Of course, it doesn’t have to, and the chance of getting the Supreme Court to take any case is slim.)

Iowa has been here before.   In 2002, the Iowa Supreme Court ruled in Fitzgerald v. Racing Association of Central Iowa that Iowa’s differing tax treatment of racetracks and riverboat casinos violated the equal protection clause of the US Constitution and the Iowa Constitution.  The State asked the US Supreme Court to take the case–and it did. 

Once it got there, the casinos argued that Supreme Court didn’t have jurisdiction, because the Iowa Supreme Court decided the case under both the state and federal constitution.  The US Supreme Court didn’t buy it: because the Iowa Supreme Court treated the state constitutional claim as dependent upon the federal constitutional claim, the justices ruled that there was no adequate and independent state ground.  So they had jurisdiction. 

The Supreme Court ultimately reversed the Iowa Supreme Court, unanimously holding that Iowa’s tax scheme did not violate the US Constitution. 

But that wasn’t the end of the matter.  The Iowa Supreme Court reconsidered the issue under the Iowa Constitution and decided, after all, that it wasn’t going to follow the US Supreme Court.  

This case is no different than Fitzgerald.  The US Supreme Court could take the case; it could reverse the Iowa Supreme Court; and the Iowa Supreme Court could decide that the Iowa Constitution is indeed more broad on the subject of abortion.  

Or the Supreme Court won’t take the case at all. But it certainly can.  And it has before.

On Brief

About Us

On Brief is devoted to appellate litigation, with a focus on the Iowa Supreme Court, the Iowa Court of Appeals, and the United States Court of Appeals for the Eighth Circuit.