When should an inferior court just sit tight?

By: Ryan Koopmans on December 18th, 2014

That was the main question yesterday in Deaton v. Arkansas Department of Correction. Arkansas prisoner Christopher Deaton wants to grow a full-length beard for religious reasons, but prison policy doesn’t allow it because of safety concerns.  Deaton sued under the Religious Land Use and Institutionalized Person Act (RLUIPA), but a federal district court threw out the case and yesterday an Eighth Circuit panel summarily affirmed that ruling in a one-paragraph order.

One paragraph, because the Eighth Circuit has already decided this question.  In fact, the court ruled last year in Holt v. Hobbs that the no-beard policy doesn’t violate RLUIPA even if the prisoner agrees to keep his facial hair to a half inch.  And since one three-judge panel cannot overrule another, the panel in Deaton has no authority to say that a full-length beard is okay.

But it might soon.  Which is why Judge Colloton dissented.  The Supreme Court granted cert. in Holt and heard oral argument in October.  That means a decision could be coming out any day, and any day the law in the Eighth Circuit might be completely different.  So why not wait, Judge Colloton asks:

This case is factually distinguishable from Holt, because appellant Deaton—like the prisoner in Fegans v. Norris, 537 F.3d 897 (8th Cir. 2008)—claims a right based on RLUIPA to grow a full beard in accordance with his religious beliefs. But the Court’s reasoning in Holt will inform how Deaton’s claim should be analyzed and whether Fegans has continuing vitality. In the interest of judicial economy, I would hold this case briefly pending a decision in Holt rather than burden Mr. Deaton with the need to file a petition for writ of certiorari to secure an order granting certiorari,vacating this court’s decision, and remanding for further consideration in light of Holt.

That’s not the kind of dissent we usually get to see.  It’s not about the merits of the case (everyone agrees that Eighth Circuit precedent dictates the outcome, at least for now) but on how the court should conduct its business. Assuming he does not file for rehearing, Deaton will have to write and file a cert. petition and  file a motion to proceed in forma pauperis (i.e., ask the court to waive the filing fee).  He has 90 days to do that, so the Supreme Court may very well have decided Holt by then.  That, though, won’t alleviate the need for the filings, even if it’s clear that Deaton would win under the new Supreme Court decision. (And if oral argument is any indication, it seems likely that Deaton will get some help.)

But the extra burden isn’t just on Deaton.  The Supreme Court clerk’s office will have to docket the case, a law clerk in the Supreme Court clerk pool will have to review the cert. petition, verify that the Holt decision could possibly change the outcome, and draft a memo to the justices recommending that the court grant the petition and remand the case to the Eighth Circuit.  Once the Court enters the order, the Eighth Circuit clerk’s office will have to notify the panel that the case is back, thus putting the three judges back in the same position they would have been had they held the case (which was submitted just last month) a few more months.  Hence Judge Colloton’s dissent.

The Iowa Supreme Court wants to know what you think

By: Ryan Koopmans on November 5th, 2014

The Iowa Supreme Court doesn’t just decide cases; it also regulates lawyers, and like other regulatory bodies, the Iowa Supreme Court often solicits public comments on proposed rule changes.  The Court is currently asking for comments on two issues: In September, the Iowa Supreme Court requested public comments on the quality and usefulness of the so-called Basic Skills Course, a mandatory one-day CLE for newly admitted lawyers.  And in October, the Supreme Court asked for input on whether Iowa-licensed lawyers should pay a $100 yearly fee that would go to Iowa  legal aid organizations.

My unscientific, non-Selzer polling suggests that many lawyers have strong opinions about both topics, yet the Iowa Supreme Court hasn’t received many comments.  There’s still time, though.  The comment period for basic-skills course is open until November 10, and the comment period for the legal-aid fee is open  until January 5.  Comments can be emailed to rules.comments@iowacourts.gov.

More information is available on the Court’s website.  The order requesting comments on the basic-skills course is here, and the order for the legal-aid fee is here.  The Court’s staff also put together a report on the legal-aid fee, which is here.

The Iowa Supreme Court’s 2013-2014 Term: By the Numbers

By: Ryan Koopmans on August 18th, 2014

The Iowa Supreme Court’s 2013-2014 term is over  (with the exception of a few pending petitions for rehearing on late-decided cases), so it’s time for our annual statistical review.

The Basics. The court decided 107 cases this term, including those cases that were affirmed by operation of law when the court was evenly divided.  That is a slight increase from the 100 cases decided in the 2012-2013 term.  A majority of the cases, 58, were civil; 25 were criminal or related cases; 20 were attorney disciplinary cases; and 4 were juvenile or related cases.

Split Opinions. The vast majority of cases, 75, were unanimous; 69 of these cases were completely unanimous with no concurring opinions and 6 had a concurring opinion.   That leaves 32 opinions, or 29.9% of the cases, in which one or more justices dissented.  This is essentially the same percentage of dissents as last year when 30.0% of the cases had a dissent.  Seventeen of these cases were decided by one vote — with a split of 4-3, or when one justice was recused a split of 3-3 or 4-2.

Chief Justice Cady’s Court. Of the 32 non-unanimous opinions, Chief Justice Cady was in the majority the most often, 89% of the time, followed by Justice Appel at 81% of the time.  Justice Waterman was in the majority the least often, only 43% of the time, followed by Justice Mansfield, 46%.   Chief Justice Cady was only in the dissent in 3 cases all term, and only once in a case that was decided 4-3 or 3-3.  (That case was State v. Lukins, in which Justice Zager wrote the majority opinion joined by Justices Wiggins, Hecht, and Appel.)  That’s a change from two terms ago, when Justice Zager was the “decider,” having been in the majority in every case.

first table The Iowa Supreme Courts 2013 2014 Term: By the Numbers

Opinion Productivity. In the 107 decided cases, 169 separately signed opinions were written by the seven justices.  Justice Mansfield was the most prolific writer, authoring 37 opinions, followed by Justices Appel and Waterman, who each authored 27 opinions.  Justice Hecht and Chief Justice Cady wrote the fewest opinions with 18 opinions each.  A similar pattern held true with respect to the 101 signed majority opinions.  Justice Mansfield again wrote the most, authoring 20 majority opinions, followed by Justice Appel who wrote 16 majority opinions.  Justice Hecht wrote the fewest majority opinions, 11, followed by Justice Zager who wrote 12, and Chief Justice Cady who wrote 13 majority opinions.  In the most closely divided cases decided by one vote, Chief Justice Cady wrote the most majority opinions, 6, while Justice Zager wrote the fewest, 2.

Justice Agreement. For the third time in as many terms, there were two relatively consistent voting blocs, with  Justices Wiggins, Hecht, and Appel on one end, and Justices Waterman and Mansfield on the other.  The Chief Justice and Justice Zager continue to fall somewhere in between, agreeing with each of their colleagues between 40-70% of the time. The justices that agreed the least were Justice Mansfield and Justice Wiggins who agreed in 13% of the non-unanimous cases.  In the 17 cases that were most closely divided, all but two were split with Justices Wiggins, Appel and Hecht on one side, Justice Waterman, Mansfield, and Zager on the other, and Chief Justice Cady deciding which group was in the majority.

Here’s a complete breakdown of how often each justice agreed with his colleagues in the 32 non-unanimous decisions (putting aside disciplinary cases).  Note, however, that some of the justices recused themselves in one or two of these cases, so the denominator isn’t always 32.   Also, for comparison, the second and third charts show how often each justice agreed with his colleagues in the previous terms.

Tables234 The Iowa Supreme Courts 2013 2014 Term: By the Numbers

Iowa Supreme Court Affirms Defense Ruling in Disparate-Impact Employment Discrimination Case Against State

By: Amanda Atherton on July 25th, 2014

Last week, the Iowa Supreme Court affirmed the district court’s judgment in favor of the state in Pippen v. State of Iowa et al, a class-action employment-discrimination case brought under Title VII and the Iowa Civil Rights Act. The class of over 5,000 was represented by twenty-three African-American plaintiffs who claimed the state’s merit system of employment discriminated against African-Americans in hiring, promotion, and pay. The plaintiffs proceeded on a disparate-impact theory rather than a theory of intentional discrimination and introduced expert testimony about implicit bias. The case has been closely watched as a forerunner on the viability of disparate impact employment claims, particularly those brought under state law, and several amicus briefs were filed by national organizations.

To make a prima facie case of disparate impact under federal law, the plaintiffs needed to show that a particular employment practice had a statistically adverse impact on the protected class. Alternatively, they could have proved that the decision-making process was incapable of separation into discrete employment practices for statistical analysis and that the whole process had an adverse impact.

At trial, the plaintiffs’ expert testified the state’s merit system could be broken down, but rather than trying to do so, the plaintiffs rested on their argument that the process shouldn’t be “sliced and diced” because that would reduce the sample size, thereby lessening the aggregate statistical impact. The defense expert, on the other hand, actually did separate and analyze certain practices, undermining the plaintiffs’ incapable-of-separation argument. The plaintiffs also pointed to deficiencies in the state’s documentation of the hiring process and claimed the hiring files were therefore “inadequate to allow separation for analysis.” However, the plaintiffs did not attempt to review the data in these files; they simply relied on their incompleteness. They further claimed the presence of subjective decision-making elements rendered the entire process inseparable.

The district court, after a lengthy trial, found the plaintiffs had not met their prima facie burden and had also failed to prove causation. Accordingly, it granted judgment in favor of the state.

On appeal, all justices of the Iowa Supreme Court concurred in affirming the district court’s result. Justice Appel wrote for the majority, while Justices Mansfield and Zager joined Justice Waterman’s concurring opinion. The Court agreed the plaintiffs had not proved the state’s process was incapable of separation for analysis. It did not reach the causation issue.

The majority opinion provided a roadmap on the “incapable of separation for analysis” issue, explaining that may be the case when: (1) the substantive features of the decision-making process make it incapable of being separated, such as when the process is wholly subjective; (2) discrete employment practices are so intertwined that statistical analysis of them is no longer meaningful when they are separated; or (3) the employer does not keep sufficient records from which to discern separate practices. The Court also held that decision-making processes do not necessarily have to be broken down by job or by department if the process as a whole cannot be separated. For example, when all hiring decisions are made at the absolute discretion of department managers, the process is not capable of separation even though there are multiple departments at issue. The majority found none of these circumstances applicable to the record.

The concurrence agreed the plaintiffs had not met their burden to prove the employment process was incapable of separation. It also focused on the challenges associated with bringing such a broad class action, as the plaintiffs chose to do, rather than narrowing their focus. It even suggested there was evidence of adverse impact on African-Americans in certain departments and from certain practices, as pointed out by the NAACP in its amicus brief and as indicated in the testimony of the defense expert, but emphasized that those were not the theories advanced by the plaintiffs and the record was not developed with regard to them.

Though the Court ultimately rejected the plaintiffs’ arguments, its problem was not with the viability of disparate-impact claims or the implicit bias theory in general, but rather with the methods of proof chosen by the plaintiffs in this particular case. As the majority stated: “Disparate impact claims may be complex and complicated, but they are not disfavored.”

The majority suggested the analysis could have been different under the Iowa Civil Rights Act than under Title VII if the plaintiffs had argued that a different standard applied under state law—for example, that there was no requirement to identify separate employment practices in a disparate-impact case. However, because plaintiffs relied on the federal interpretations of Title VII, that is what the Court applied.

The majority opinion notably cast doubt on the persuasive value of federal precedent interpreting Title VII in cases brought under the ICRA. The Court ultimately concluded that courts should be skeptical of the reasoning in any federal case construing Title VII narrowly because such a construction is at odds with the ICRA’s statutory mandate that it should be construed broadly. The majority further opined that this is so even when the statutory language of the state law mirrors federal law. The concurrence criticized the majority for “gratuitously undermin[ing] our court’s long-standing practice of relying on federal decisions to interpret equivalent provisions of the Iowa Civil Rights Act,” explaining that such an approach undermines “the stability and predictability of our law.”

Eighth Circuit: Political discrimination case against Iowa law school must be retried

By: Ryan Koopmans, Ryan Leemkuil on July 15th, 2014

The political discrimination lawsuit against former Iowa law school dean Carolyn Jones is being sent back down for retrial.  The Eighth Circuit Court of Appeals ruled today that when the federal magistrate declared a mistrial because the jury was deadlocked, he could not recall the jury some two minutes later, re-poll them and enter judgment in Jones’s favor.

This is the second Eighth Circuit ruling in this five-year-old case.  In 2009, Teresa Wagner, a part-time employee in the law school’s writing center, filed a lawsuit against Jones for political discrimination.  According to Wagner, Jones failed to hire her for a full-time position because of her (Wagner’s) conservative political views and advocacy for socially conservative causes.

The district court originally threw out the case on summary judgment, but in 2011 the Eight Circuit reversed and sent the case back for trial.

Wagner presented two claims to the jury: (1) political discrimination, and (2) violation of her equal-protection rights.  The jury’s deliberations began on October 22, 2012, and two days later, on October 24, the jury asked the magistrate judge (who didn’t preside over the trial but was monitoring deliberations) “what happens if we cannot come to an agreement.”  The magistrate told the jury to continue deliberating, and two hours later–around 11:00–they sent out another note: “We are unable to come to a unanimous verdict” for either party.

At 1:00, the magistrate gave the jury an Allen charge (basically, told them to keep deliberating), and a a short time after 4:00 the jury sent the magistrate another note, this one a bit more emphatic: “I DO NOT SEE US EVER AGREEING.”

In response, the magistrate declared a mistrial at 4:35 and sent the jury packing.  But two minutes later, he called them back in and asked whether their note applied to both of Wagner’s claims (the political-discrimination claim and the equal-protection claim).  The foreperson said that they had found for Dean Jones on count I (the political-discrimination claim) and after polling each juror, the magistrate accepted the verdict in Jones’s favor and declared a mistrial only on Count II.

The district court later entered judgment as a matter of law on Count II and denied Wagner’s motion for a new trial. Wagner appealed.

Today, the Eight Circuit ruled that the case needs to be retried:

[W]e hold, in a case such as the present one, where a court declares a mistrial and discharges the jury which then disperses from the confines of the courtroom, the jury can no longer render, reconsider, amend, or clarify a verdict on the mistried counts. In this age of instant individualized electronic communication and widespread personal control and management of pocket-sized wireless devices, we think this bright line rule is more faithful to precedent and offers better guidance than an amorphous rule that turns on whether jurors in fact became available for or were susceptible to outside influences or remained within total control of the court.

There wasn’t any evidence in this case that the jury was mingling with non-jurors during the two-minute period (or had even gotten any further than packing up their belongings in the jury room), but the panel concluded that a bright-line rule is the best one: Once the jurors are discharged and they leave the courtroom, they shall never return (at least not in their official capacity).

Iowa Supreme Court Embraces the ADAAA

By: Administrator on June 30th, 2014

By Randy Armentrout

On Friday, the Iowa Supreme Court decided in Goodpaster v. Schwan’s Home Service, Inc that it will look to the 2008 amendments of the federal Americans with Disabilities Act (known in legal circles as the ADAAA) when interpreting the the meaning of “disability” under the Iowa Civil Rights Act (“ICRA”).

The ICRA contains a circular definition of “disability”: a disability is “the physical or mental condition of a person which constitutes a substantial disability.” Iowa Code § 216.2(5).  The Iowa legislature left it to the Iowa Civil Rights Commission (“ICRC”) to promulgate regulations.  In 1993, the ICRC basically adopted the ADA definition of “disability” in passing the regulations: a person has an actual disability under the ICRA if the person “has a physical or mental impairment which substantially limits one or more major life activities.”

Congress amended the ADA in 2008 to require courts to apply the “substantially limits a major life activity” test broadly to cases under the ADA.  The goal was to include more employees under the definition of “disabled.”  In particular, the ADAAA overturned Sutton v. United Air Lines, 527 U.S. 471 (1999) (holding courts must consider corrective measures to decide whether an impairment substantially limits a major life activity) and Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002) (holding “substantially limits a major life activity” should be interpreted strictly to preclude minor impairments).  The Iowa legislature has not amended the ICRA to include any language similar to the ADAAA.  However, the ICRC applies the ADAAA to disability cases under the ICRA.

This leads to the case at issue.  The plaintiff, John Goodpaster, has multiple sclerosis.  He suffers “flare ups” 5-10 times per year, during which times he experiences vision impairment and loss of control and strength in his arms and legs.  Schwan’s employed Goodpaster as a customer services manager, which requires Goodpaster to drive a delivery truck to the homes of customers.  Schwan’s terminated Goodpaster for poor sales.  Goodpaster sued Schwan’s alleging he was disabled under the ICRA and Schwan’s should have accommodated his occasional vision and limb impairments by having another employee ride along with him or picking him up when he had a flare-up. The district court granted summary judgment in favor of Schwan’s, holding Goodpaster was not “disabled” under the ICRA.

On appeal, Goodpaster argued that the ADAAA requires Iowa to interpret the ICRA to include multiple sclerosis as a disability.  In a 5-2 decision issued June 27, 2014, the Iowa Supreme Court stated it is not bound by the language of federal statutes when interpreting the ICRA.  Nevertheless, the Court held it was free to look at the ADAAA “to help establish the framework to analyze claims and otherwise apply our statute.”  The Court next examined multiple federal ADA decisions issued before Sutton and Toyota in which courts found various symptoms of multiple sclerosis to be substantially limiting of certain major life activities.   Broadly interpreting the ICRA, the Court held Goodpaster raised a fact issue on whether his condition substantially limited “one or more of his major life activities.” Curiously, the Court was able to come to this conclusion without actually analyzing which major life activities were impacted.  In a footnote, the Court states that Goodpaster raised a fact issue on the major life activities of walking and working without stating how his multiple sclerosis actually impacts those activities.  The Court reversed the summary judgment and remanded the case.

The dissent points out that this case is nearly identical to Brunker v. Schwan’s Home Service, 583 F.3d 1004 (7th Cir. 2009), decided after the amendments to the ADA became effective.  In Brunker, a customer services manager with multiple sclerosis involving sometimes daily dizziness episodes alleged Schwan’s terminated him in violation of the ADAAA.  The Seventh Circuit concluded Brunker was not disabled and affirmed the district court’s grant of summary judgment.  The Goodpaster dissent also argued that “working” is the only major life activity that should be used in the disability analysis.  Under previous ADA and Iowa case law, a person who is only unable to perform a particular job is not substantially limited in the major life activity of working.  See Probasco v. ICRC, 420 N.W.2d 432, 436 (Iowa 1988).  In this case, Goodpaster took another job as a laborer and has not shown that he is prohibited from working a broad range of jobs.

Chiropractic School Must Provide Blind Student a “Sighted Assistant” to Interpret X-Rays

By: Ryan Leemkuil on June 27th, 2014

Aaron Cannon has been blind since birth.  He enrolled at Palmer College of Chiropractic in 2004, despite warnings from a school representative that Cannon’s blindness would make it difficult, if not impossible, for him to meet the Palmer’s technical standards, which require “sufficient use of vision . . . necessary to perform chiropractic and general physical examination” and review radiographs.  After completing the undergraduate program, Cannon met with the school’s disability steering committee, which again warned him that it was doubtful he could satisfy the technical standards requiring radiology and diagnostic coursework.  But, Cannon suggested, perhaps a “sighted assistant” could be enlisted to relay visual information so Cannon could “analyze it and learn to make diagnoses accordingly.” In the committee’s judgment, however, this arrangement would “place too much responsibility on the assistant” and could run afoul of the standards set by the school’s accreditation body.  Cannon ultimately withdrew from the school after growing frustrated with Palmer’s response to his proposed accommodations.

Today, the Iowa Supreme Court agreed with Cannon that Palmer failed to provide reasonable accommodations for his blindness.  In doing so, the Court rejected Palmer’s arguments that the proposed accommodations would require a “fundamental alteration” of the school’s academic programs, and that the Court should defer to Palmer’s judgment on that point. Deference, the Court explained, is “inadequate in the disability discrimination context,” because courts “must go significantly further in their inquiries to insure inappropriate generalizations do not deny meaningful access to the benefits provided by educational institutions.”  So, the Court went “significantly further” and concluded that Cannon’s proposals wouldn’t require a fundamental alteration of Palmer’s program—plenty of chiropractors work without X-rays, and some just consult with radiology specialists as needed. And even some medical schools have admitted and accommodated blind students in recent years. In light of these facts, the Court held Palmer failed to show any fundamental alteration of its curriculum.

Justice Waterman, joined by Justice Mansfield, issued a sharply-worded dissent, describing the Court’s holding as a “ludicrous” and “unprecedented” intrusion into academic judgment.  That intrusion, Justice Waterman wrote, “elevates political correctness over common sense,” and allows a blind student to interpret X-rays based on what an “untrained reader” tells him—a scenario which could lead to misinterpreted X-rays and “lifelong paralysis.”  Instead of striking a “balance,” as the majority claimed it was, the Court’s opinion ran “roughshod over Palmer’s legitimate interests and the integrity of Palmer’s chiropractic program.”

The decision shows that the Iowa Supreme Court will not be quick to defer to a college’s judgment about the “fundamental” components of its curriculum.  In reviewing that judgment, the Court relied in part on cases from the employment context addressing “fundamental” or “essential” job functions, but it remains to be seen how the Court will apply the Palmer College decision outside of the academic arena.


Don’t forget about the appendix–we use that, you know

By: Ryan Koopmans on June 11th, 2014

This morning, Iowa Court of Appeals Judge Richard Doyle reminds us why the appendix shouldn’t be an afterthought:

I concur, but write separately to address a not uncommon appendix infirmity. Implicit in our rules of appellate procedure is that the parties include legible materials in the appendix. At best, the inclusion of illegible materials in the appendix is of little value to the reader, and at worst, the source of considerable frustration. We have previously stressed the importance of providing legible materials in the appendix. See Slycord v. Garrett, No. 13-1192, 2014 WL 1714955, at *3 n.3 (Iowa Ct. App. April 30, 2014). I reiterate what I said in Slycord. See id. Visualization of the subject matter of a land or property dispute is critical to a full understanding of the dispute. Plat maps, aerial photographs, photographs, and drawings are routinely used as trial exhibits to aid the finder of fact. Color is commonly employed in these exhibits to clearly delineate boundaries and ownership of lands, and witnesses testifying at trial typically refer to “this color parcel” or “that color line.” When appearing in an appendix on appeal, all too often these peacock-colored models of clarity have been transformed into illegible black-and-white head-scratchers. Such is the case here. It is frustrating to an appellate judge reading transcript testimony referring to colored exhibits while at the same time looking at black-and-white reproductions in the appendix. To be sure, the original trial exhibits are typically available to this court—but not readily available to those judges who office outside Des Moines. While we are cognizant of the fact that color reproductions in the appendix are more costly than black-and-white copies, it would be helpful to the court if litigants would at least include in the appendix color copies of those exhibits most critical to understanding the dispute.

This court’s mandate is to justly decide a high volume of appeals. See Iowa Ct. R. 21.11. The appendix is readily available to all. Clarity in the appendix promotes judicial efficiency, thus aiding this court in working toward meeting its mandate. With full implementation of EDMS and electronic appellate filing, the paper appendix will go the way of the dinosaur. But until then, all we suggest is that the parties exercise a little more care in producing their appendices.

That’s a good reminder for all of us on how important the appendix is to the judges and thus to the case. The briefs are key, of course. But it’s the appendix that the judges come back to again and again. That’s the document that’s tabbed, dog-eared, and tattered by the end of the appeal. And if it’s poorly organized or the documents are illegible, that frustrates the judge and reflects on the lawyers who signed it.

Iowa Supreme Court edits its opinion–and tells us about it

By: Ryan Koopmans on May 30th, 2014

Today, the Iowa Supreme Court announced that it has amended a decision that it filed two weeks ago. The edits are interesting, but it’s the announcement that’s notable.

Last weekend, New York Times reporter Adam Liptak wrote about the U.S. Supreme Court’s practice of quietly editing its opinions after they’ve been released.  That the Court makes minor corrections–typos and such–is no secret, at least among lawyers.  But as Liptak noted, the justices make substantive changes as well.  And they don’t tell us.  From Liptak’s article:

The only way the public can identify most changes is by painstaking comparison of early versions of decisions to ones published years later.

But there have been recent exceptions. Last month, Justice Scalia made a misstep in a dissent in a case involving the E.P.A. Under the heading “Plus Ça Change: E.P.A.’s Continuing Quest for Cost-Benefit Authority,” he criticized the agency for seeking such authority in a 2001 case. But he got its position backward. Worse, he was the author of the majority opinion in the 2001 decision.

Law professors pointed out the mistake, and Justice Scalia quickly altered his opinion, revising the text and substituting a bland heading: “Our Precedent.”

Even more recently, Justice Elena Kagan this month corrected her dissent in Town of Greece v. Galloway, modifying a categorical assertion about the location of the first community of American Jews.

The court did not draw attention to the changes, but they did not go unnoticed. Other revisions have. A sentence in a 2003 concurrence from Justice O’Connor in a gay rights decision, Lawrence v. Texas, has been deleted from the official record. She had said Justice Scalia “apparently agrees” that a Texas law making gay sex a crime could not be reconciled with the court’s equal protection principles.

Lower court judges debated the statement, and law professors used it in teaching the case. The statement continues to appear in Internet archives like Findlaw and Cornell Law School’s Legal Information Institute.

But it has vanished from the official version published in 2006 and from the one available on Lexis, a legal database.

As Liptak notes, the Supreme Court does warn us that this can happen.  When the opinions are published on the Court’s website, a small-print notice says that “this opinion is subject to formal revision before publication.”  But warned or not, the problem–especially in the area of legal blogs–is that the Court’s decisions are painstakingly analyzed by scholars and lawyers within hours of release. And without notice that a potentially significant change has been made, those articles and blog posts won’t be updated.

The Iowa Supreme Court seems to follow the same general procedure–or at least it did.  When the Iowa Supreme Court posts decisions to its website (usually at 8:30 on Friday morning), it warns readers that “all slip opinions are subject to modification or correction by the court” and are “not to be considered the final decisions of the court.”  No decision is “official,” the website tell us, until it’s  “published in the North Western Reporter published by West Group.”

A quick scan of Iowa Courts Online (the Judicial Branch’s online docket) shows that the justices routinely make corrections to their opinions, often months after they’ve posted to the court’s website. The docket doesn’t tell us what the justices changed; it just notes which page the change is on.  And that’s probably because the court is just correcting a typo or incorrect citation here and there.  But because the court doesn’t tell us what the edits are, it’s possible that some of those edits are substantive (and possibly significant).

If that was the Iowa Supreme Court’s practice–to make substantive changes without telling us–it’s not anymore.  Two weeks ago, the court issued a ruling in Bertrand v. Mullin, an interesting (and rare) political defamation case.  During the 2010 elections, the Iowa Democratic Party and state senate candidate Rick Mullin ran an ad against Mullin’s opponent, Rick Bertrand, which implied that Bertrand marketed a dangerous sleep drug to children.  Bertrand had been a sales agent for the drug manufacturer, but he hadn’t sold that particular drug. A jury returned a verdict in Bertrand’s favor, but the Iowa Supreme Court reversed.  The justices concluded that Bertrand hadn’t met his burden under the heightened “actual malice” defamation standard for public figures under New York Times v. Sullivan.

Within twelve hours of the opinion being released, First Amendment guru and ULCA Law professor Eugene Volokh noticed an inconsistency in the Iowa Supreme Court’s opinion, and he wrote about it on his blog, which is now hosted by the Washington Post.  In a footnote on pages 16 and 17, the court said that it was deciding the case based  “solely on the actual malice ground” and that it was  “express[ing] no opinion regarding whether Mullin or any staff of the Iowa Democratic Party subjectively endorsed or intended the implication that Bertrand personally sold or marketed rozerem.”

But in body of the opinion, and starting on the very next page, the  court wrote the following:

Additionally, defamation by implication arises, not from what is stated but, as in this case, from what can be implied when a statement juxtaposes a series of acts that imply a defamatory connection them.  Yet, when defamation is implied, the evidence must affirmatively show the author subjectively endorsed or intended the inference. Here, after Bertrand asserted at the public forum that a false implication had been made–that he personally sold the dangerous drug–Mullin and the Iowa Democratic Party staff responded that they did not intend that implication.  Thus, there was no direct evidence that Mullin and the Iowa Democratic Party endorsed the defamatory implication after it was revealed.

Later in the opinion, on page 25, the court wrote that “no evidence supported a conclusion that Mullin or the Iowa Democratic Party subjectively intended the defamatory implication as opposed to the legitimate implication.”

So the court said, in the footnote on pages 16 and 17, that it wasn’t considering the endorsement issue–either legally or factually.  And yet later it concluded that endorsement was a legal requirement and that Bertrand didn’t prove it.

Volokh posited that one possible explanation for the inconsistency “is that the footnote was added late in the writing, because one of the judges didn’t want the court to decide the legal question, and perhaps the plan was to revise the text to make clear that the subjective intent requirement is merely being assumed — given the procedural history of the case.”

Of course, we likely won’t ever know why the seemingly inconsistent passages got into the opinion, but it now seems that it was unintentional.  Today, the court announced, in an order posted to its website, that it was deleting the inconsistent statements on pages 18-19 and 25.  The footnote on pages 16-17 remains.

The court also added a long footnote to the opinion, which addresses another issue.

So Bertrand v. Mullin is different today than it was yesterday.  And, thanks to the court’s published order, we all know how different.

Iowa Supreme Court enforces Florida post-nuptial agreement that wouldn’t be okay under Iowa law

By: Administrator on May 23rd, 2014

[The following summary was written by Ethan Olson, a law clerk in Nyemaster Goode’s summer program.]

Is a post-nuptial agreement, entered into in Florida and with a Florida choice of law provision, enforceable in Iowa, even if it would normally be invalid as violating public policy? Yes, said the Iowa Supreme Court today.

Herbert Hussemann Sr. and Velma Hussemann were married in Florida in 1991. Both of them were Florida residents. Shortly after their marriage, they entered into a post-nuptial agreement in which Velma renounced all rights in and claims against the estate of her husband upon his death, including any elective share. The agreement contained a provision stating that all questions relating to the validity and construction of the agreement were to be decided under Florida law. That same day, Herbert Sr. transferred his assets into a trust, which contained no provision for Velma, and named his sons Herbert Jr. and Robert as successor trustees.

Herbert Sr. and Velma continued to reside in Florida until 2005, when they moved to Iowa. When Herbert Sr. died in 2012, Velma attempted to claim her elective share under Iowa law. The trustees asserted that Velma had waived her rights under the post-nuptial agreement entered into in Florida and, since Florida law applied, the waiver was valid and enforceable because such waivers were recognized in Florida. Velma disagreed, arguing that the entire post-nuptial agreement, including the waiver, was invalid as violating Iowa public policy. Both of the parties are correct in that Florida law recognizes post-nuptial agreements and Iowa law does not.

The District Court ruled in favor of the trustees, noting that the choice of law provision controlled and that, since Iowa law did not apply, neither did Iowa public policy. It reasoned that allowing Velma to prevail would invite parties validly entering into post-nuptial agreements to simply move to invalidate them. Velma appealed.

The Iowa Supreme Court affirmed the District Court’s ruling. The court noted that the case turned upon whether enforcing the choice of law provision in the contract would be contrary to a “fundamental policy” of Iowa, and whether Iowa had a “materially greater interest” than Florida in the determination of this issue. In this case, the fact that Herbert Sr. and Velma executed the agreement in Florida as Florida residents, and contemplated that the agreement would be performed in Florida was enough to find that Iowa’s interest in the dispute was not materially greater than Florida’s. Said Justice Mansfield, who wrote the Court’s opinion, “Florida has a significant interest in assuring that a Florida marriage, including any accompanying agreements, is recognized and carried out in a manner consistent with its own law.”

The Court held that Iowa’s public policy interest in refusing to enforce post-nuptial waivers was of a low order since the creation of one bears no criminal or civil penalties. Instead, the Court reasoned that the justified expectations of the parties entering into the agreement are critical and, in today’s mobile society, parties entering into a contract in one state generally do not expect that contract to become invalid simply by their moving. Finding that its determination on this issue was in accord with similar decisions across the country, the Court upheld the choice of law provision, applied Florida law and affirmed the decision of the District Court.

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