Telemed abortion case could have broad implications

By: Ryan Koopmans on March 10th, 2015

Tomorrow, the Iowa Supreme Court will hear argument in one of the most closely watched cases of the term: Planned Parenthood of the Heartland v. Iowa Board of Medicine.  The case involves the Board of Medicine’s 2013 rule that bans so-called “telemed abortions,” a process in which a doctor talks with a patient by video conference and then dispenses an abortion-inducing medication through a remote-controlled drawer.  Planned Parenthood claims that the Board’s rule doesn’t comply with Iowa’s Administrative Procedures Act (a statute that governs the process under which an agency can enact regulations) or the Iowa Constitution. Both legal issues–administrative and constitutional–could have effects beyond this case.

Yesterday, Tony Leys of the Des Moines Register reported on the constitutional issue.  Planned Parenthood claims that a ban on telemed abortion violates the right to due process and equal protection.  That’s a common argument in cases involving abortion restrictions, but this argument differs from the norm in that Planned Parenthood is making its claim under the Iowa Constitution as opposed to the U.S. Constitution.  The U.S. Supreme Court ruled in Roe v. Wade  that the U.S. Constitution places certain restrictions on the government’s ability to restrict abortion procedures, but the Court later clarified in Planned Parenthood v. Casey that such restrictions are okay as long as they don’t place an “undue burden” on a woman’s ability to get an abortion. Planned Parenthood is making its claim under the Iowa Constitution in hopes that the justices will adopt a more stringent standard known as “strict scrutiny.”  That strategy–of asking the Iowa Supreme Court to interpret rights under the Iowa Constitution more broadly than the U.S. Supreme Court interprets similar rights under the U.S. Constitution–has succeeded several times in the last four years, most notably in the areas of search and seizure and the cruel-and-unusual-punishment clause.  This column by the Gazette’s Todd Dorman provides a good summary of the ongoing debate.

Planned Parenthood’s administrative-law arguments aren’t as attention-grabbing (even most lawyers find administrative law to be a bore), but they could have significant repercussions because of the increasing role that agencies play in our government.  Planned Parenthood is asking the Supreme Court to overturn the Board of Medicine’s telemed-abortion rule because, according to Planned Parenthood, the Board’s decision to adopt the rule was “rushed and inadequate,” the Board overlooked evidence that suggests requiring in-person visits could create greater health concerns, and the Board was motivated by an improper purpose (disagreement with abortion rather than concern over medical safety).  These types of arguments aren’t usually successful because courts are hesitant to second guess administrative agencies when they’re exercising rule-making power.  When it comes to the question of “what’s good policy?,” for instance, courts (including the Iowa Supreme Court) generally defer to the agency, so long as there is some factual support for the agency’s decision; it doesn’t matter that the justices would have come to a different decision if they were the head of the agency.   And when it comes to a claim that an agency’s purported reasons aren’t the real reasons, courts generally won’t infer wrongful motives and they won’t attempt to get inside the decision-makers’ minds.

The Iowa Supreme Court touched on some of these general administrative-law principles last year in Iowa Farm Bureau Federation v. Environmental Protection Commission.  The specific issue in that case–whether one of the Commission members should have abstained from voting on a water-quality rule–is different from the issues in this case.  But the Court’s broader statements on the deference that the Judicial Branch should give to agencies could be telling of the outcome here.  “The subjects of regulation are justifiably numerous and complex,” Chief Justice Cady wrote, “and the importance of an administrator’s legal, technical, and scientific expertise cannot be understated.”

For the (relatively) few lawyers who pay attention to administrative-law matters, that will be the big issue come Wednesday morning: How much deference do agencies get in setting public policy, and how much is the Court willing to second guess those policy decisions?  That issue goes well beyond abortion and the Board of Medicine.

The Court’s argument session begins at 9:00 a.m., and this case is second on the schedule (which means a start time of about 9:35).  As always, you can watch the argument live on the Court’s website.  And if you’re really paying attention, the briefs are linked below.  (Note the high number of amicus (“friend-of-the-court”) briefs.)

Planned Parenthood’s opening brief

Board of Medicine’s brief

Planned Parenthood’s reply brief

Brief of amicus curiae American College of Obstetricians and Gynecologists

Brief of amici curiae Iowa Coalition Against Sexual Assault, Iowa Coalition Against Domestic Violence, and National Women’s Law Center

Brief of amicus curiae American Civil Liberties Union of Iowa

Brief of amici curiae Physicians for Life, National Association of Pro Life Nurses, Christian Medical Association, National Association of Catholic Nurses, and The National Catholic Bioethics Center

Brief of amici curiae American Association of Pro-Life Obstetricians & Gynecologists, Donna Harrison, M.D., Iowa Right to Life, and Susan Thayer

Brief of amici curiae Catholic Medical Association, Catholic Medical Association—Des Moines Guild, Catholic Medical Association—St. Thomas Aquinas Guild of the Quad Cities, Iowans for Life, and Women’s Choice Center of the Quad Cities


Traffic cameras are constitutional–at least if you don’t deny that you were driving

By: Ryan Leemkuil on February 20th, 2015

This morning, the Iowa Supreme Court joined a number of courts around the country in rejecting constitutional challenges to a city’s use of traffic cameras (commonly referred to as “automated traffic enforcement,” or “ATE”). The case, City of Sioux City v. Jacobsma, involved a challenge to Sioux City’s use of speed cameras. Justice Appel, writing for a unanimous Court, rejected arguments that the ATE system violated due process or the “inalienable rights” clause of the Iowa Constitution.

But the case might not be last word on ATE systems in Iowa. That’s because the owner of the car, Michael Jacobsma, admitted that he owned the vehicle and that it was caught speeding by a camera.  Jacobsma didn’t deny that he was driving at the time, and he offered no evidence that someone else was behind the wheel.  That factual basis limited the scope of the constitutional issues before the Court.  As Justice Appel explained:

[B]ecause Jacobsma offered no evidence beyond the stipulations that he was the owner of the vehicle and that the vehicle was involved in an infraction, the questions of whether and how a defendant may rebut a city’s case and whether the ordinance comports with due process when faced with evidence that someone other than the registered owner was operating the vehicle at the time of the infraction, pose purely academic questions that are not before the court.

What’s that mean? It means the outcome might be different if a vehicle owner comes forward with evidence that they weren’t driving at the time of the violation.  The Court didn’t say the outcome would be different, but we’ll have to wait for another case to find out.

In the meantime, we know that it doesn’t violate due process for a city to impose liability on the owner of a vehicle who presents no evidence that someone else was driving.  After all, cities have a clear public interest in safety, and imposing liability based on vehicle ownership and photographic evidence is not an irrational way of furthering that interest.


The Tinkers go back to the Supreme Court

By: Ryan Koopmans on January 28th, 2015

Forty-five years after their free-speech victory over the Des Moines public schools, John and Mary Beth Tinker are going back to the Supreme Court.

In 1965, the Tinkers were among a group of Des Moines students who were suspended from school for wearing black armbands in protest of the Vietnam war. They sued the school on First Amendment grounds, and after the Iowa federal district court and the Eighth Circuit ruled against them, they took their case to the Supreme Court–which ruled in their favor.  The case, Tinker v. Des Moines Independent Community School District,  is a First Amendment icon, which stands for the proposition that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

The Tinkers are back at it. Today, they filed an amicus curiae (friend of the court) brief in support of several students in Northern California whose school forbid them from wearing American flag T-shirts on Cinco de Mayo out of concern that the shirts would incite racial violence. The Ninth Circuit ruled against the flag-wearing students and cited the Tinker case as support.

The Tinkers think the Ninth Circuit got it wrong, and they’ve enlisted several lawyers, including UCLA professor Eugene Volokh, to urge the Supreme Court to take the case.  Their brief, which is available here, also contains a brief summary of the Tinkers’ free-speech advocacy since their high-school days in Des Moines:

John Tinker is the general manager of KPIP, a low-power community FM radio station in Fayette, Missouri. He is also the editor of Schema-Root.org, a web-based encyclopedia of current events. Each year, he corresponds with dozens of students who are working on school projects related to Tinker v. Des Moines, and several times each year, he speaks publicly in academic settings about the case. Mary Beth Tinker has also been active, and in 2013-14 participated in a nationwide campaign to promote student rights known as the “Tinker Tour.” She traveled more than 25,000 miles by bus and spoke to more than 20,000 students and teachers at over 100 stops that included schools, colleges, churches, youth detention facilities, courts, and several national conventions. See http://tinkertourusa.org/about/tinkertour/. The armband she wore in 1965 is on permanent display at the Newseum in Washington, D.C. See http://www1.newseum.org/news/2013/04/mary-beth-tinker.html. 


Iowa Supreme Court to weigh in on Workers’ Compensation battle over surveillance video

By: Ryan Koopmans on January 27th, 2015

The Iowa Supreme Court announced yesterday that it will decide whether and when an employer in a workers’ compensation case must turn over a surveillance video of an allegedly injured employee.  The case, which pits business groups against the plaintiffs’ bar, has been something of a big deal for anyone in the workers’ compensation industry.

The issue arises when an employer videotapes  an employee who claims he was injured on the job. Sometimes those videos show nothing; sometimes they show an employee doing things he couldn’t possibly do–if the injury is as he says it is.  Either way, the Core Group of the Iowa Association for Justice, a group of claimants’ lawyers, says that the employee should get to see that video before he testifies in a deposition.  

Until 2012, the various Workers’ Compensation Commissioners had ruled otherwise.  But upon the Core Group’s request, former Commissioner Christopher Godfrey reversed that practice, ruling that employers must produce the video when they’re asked.  Several employer and insurance groups–the Iowa Association of Business and Industry, the Iowa Self Insurers’ Association, and the Property Casualty Insurers Association of America, among others–appealed that ruling to the Polk County District Court and (after the court affirmed the Commissioner) to the Iowa Court of Appeals.  In October of last year, a three-judge panel of that court also ruled in favor of the Core Group.  Judge Christopher McDonald dissented.

The Court of Appeals’ decision is here.  The Iowa Supreme Court has not scheduled oral argument, though the justices will likely hear the case before their arguments wrap up in April. 


The case of the fainting juror and the doctor who did not tend to her

By: Ryan Koopmans on January 23rd, 2015

Two doctors are sued for separate acts of alleged negligence against the same patient.  During trial, a juror faints and one of the doctors tends to her.  Assuming that’s cause for a mistrial in the case against the juror-treating doctor, is it also cause for a mistrial in the case against the doctor who didn’t treat the juror? 

No, ruled the Iowa Supreme Court this morning.  The plaintiff argued that the treating doctor’s “humanitarian efforts benefit everyone in his profession,” including the other doctor-defendant, and thus the judge should have ordered a mistrial on all counts. The Supreme Court wasn’t buying that one-for-all, all-for-one approach. “Normally, we judge people as individuals, not as members of a group,” Justice Mansfield wrote for the unanimous Court.  And since the individuals’ actions were different, so is the outcome.  Justice Mansfield explained:  

Dr. Sweetman was the only person who actually helped the ailing juror. The district court, which witnessed the entire scene, found “nothing in Dr. Booth’s behavior during the incident that could have engendered any particular good will in her favor”. . . . It is just as possible that Dr. Booth’s failure to render care would be held against her as that Dr. Sweetman’s acts would transfer sympathy to Dr. Booth. And what about the physician who testified as an expert witness against Dr. Booth? By plaintiffs’ logic, the jury’s warm feelings would have extended to him as well. For all these reasons, we cannot find the district court abused its discretion in denying the plaintiffs a new trial on their claims against Dr. Booth.

You can read the entire opinion here.


Beard Update

By: Ryan Leemkuil on January 21st, 2015

Last month, the Eighth Circuit rejected Arkansas inmate Christopher Deaton’s request to grow a full-length beard for religious reasons.  As we noted then, Judge Colloton dissented, arguing that the panel should wait for the Supreme Court’s decision in Holt v. Hobbs, another beard case out of the Eighth Circuit.  Although Holt is a bit different (it involves an inmate’s “compromise” request for just a half-inch beard), Judge Colloton noted that the Supreme Court’s soon-to-come decision might give the Eighth Circuit some guidance in approaching the more robust beard at issue in Deaton.  And, as Judge Colloton noted, awaiting the outcome in Holt could save Mr. Deaton the burden of filing a cert. petition and waiting for the Supreme Court to vacate the Eighth Circuit’s decision and remand for further consideration in light of Holt.

Yesterday, just over a month after the Eighth Circuit rejected the beard request in Deaton, the Supreme Court held that Gregory Holt is entitled to grow a half-inch beard consistent with his religious beliefs.  It’d be tough, the Court thought, to stash contraband in such a short beard.  Wouldn’t the stuff just fall out?  And the prison lets inmates have hair on their heads; can’t they hide contraband there, too? The state’s concerns with the well-kept beard seemed overblown, so the no-beard policy had to give way to Holt’s religious exercise under the Religious Land Use and Institutionalized Person Act (RLUIPA). 

But as Deaton teaches, beards come in all shapes and sizes.  Do the security concerns grow with the beard?  That’s the question now facing the Eighth Circuit after Holt.  And fortunately for Mr. Deaton, it doesn’t look like he’ll have to go to the Supreme Court (at least not yet) to pursue his case.   Late last month, he asked for more time to file a petition for rehearing.  The Court granted that request, so the Eighth Circuit should be able to reconsider Deaton (in light of Holt), without the rigmarole of a cert. petition and remand order. 


State of the Judiciary

By: Ryan Koopmans on January 14th, 2015

At 10:00 this morning, Chief Justice Mark Cady will give the annual State of the Judiciary address. According to the Judicial Branch press release, the Chief “will report on progress in the past year toward making the Iowa Judicial Branch the best, most advanced, and most responsive court system in the nation. The chief justice will highlight daily efforts he has seen toward reaching this goal in family treatment courts, juvenile courts, innovations in the civil justice system, courthouse security, improvements in technology, and efforts to find solutions to end disparities in the criminal justice system.”

You can watch the speech live at the legislature’s website.


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.

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.


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