Iowa Supreme Court splits over what kinds of criminals can vote

By: Ryan Koopmans on April 16th, 2014

We didn’t have to wait long for the Supreme Court to decide its most important case of the term.  Last Tuesday, the justices heard arguments over whether a second OWI offense is an “infamous crime” under the Iowa Constitution.  Yesterday–one week after the oral argument–the Iowa Supreme Court ruled, by a 5-1 vote, that it’s not.

That might not seem that important.  It is.

For starters, it means that Tony Bisignano can run for State Senate.  Article II, section 5 of the Iowa Constitution says that a person who’s been convicted of an “infamous crime” can’t be an “elector” (which means they can’t run for office), and one of Bisignano’s primary opponents (Ned Chiodo) argued that a second OWI (which Bisignano has been convicted of) is an infamous crime.  Five of the six sitting justices disagreed with that. (The seventh, Justice Appel, was recused.)

But the case is much bigger than one Senate race.  And that’s where it gets interesting.

To vote you also have to be an eligible “elector,” meaning that people who’ve been convicted of an infamous crime can’t vote–at least not unless their voting rights have been restored.  So the line between an infamous crime and a run-of-the-mill crime can affect everything from school boards to the presidency.  (Iowa’s a swing state, after all.)

So where is the line?  We don’t know yet. The justices split three ways and no opinion garnered a majority.  In addition, Chief Justice Cady’s plurality opinion (that’s what they call the opinion with the most votes) doesn’t say where the line is, though it does say that the crime must at least be a felony to be infamous.

Chief Justice Cady, joined by Justices Hecht and Zager, recognized that the Iowa Supreme Court ruled in 1916 (and again in 1957) that an infamous crime is one that could result in prison time.  But he brushed those cases aside because the Court had “never engaged in a textual analysis of the meaning of ‘infamous crime.’” Article II, section 5 refers to convictions for infamous crimes, not the sentences, so the Chief concluded that the framers couldn’t have been referring to potential prison sentences; instead, they must have been referring to the type of crime.

But the Chief also concluded that it’s not as simple as labeling all felonies infamous and all misdemeanors not infamous, which was the Attorney General’s position. The word felony appears in other parts of the Iowa Constitution, so the Chief concluded that infamous crime can’t be synonymous with felony; it has to mean something different.  Relying heavily on an Indiana Supreme Court decision, and tracking the ACLU’s amicus brief, Chief Justice Cady concluded that “the meaning of an ‘infamous crime’ under article II, section 5 looks not only at the classification”– felony vs. misdemeanor–but also on “how a voter’s conviction of that crime might compromise the integrity of our process of democratic governance through the ballot box.”  The crime must at least rise to the felony level to be infamous, Chief Justice Cady concluded, but beyond that he wasn’t willing to say what kinds of felonies “compromise the integrity of our democratic governance” and which kinds of felonies don’t.  That question, he said, would be left for another day because the crime at issue in this case–an OWI 2nd–is not a felony, so it doesn’t pass the first prong of his test.

Justice Mansfield wrote a concurring opinion, which Justice Waterman joined.  He agreed that misdemeanors aren’t infamous crimes, even if they carry a potential prison sentence.  But he disagreed with the second prong of Chief Justice Cady’s test–that only those felonies that, in the Court’s view, affect the integrity of elections are infamous–saying that it is an “odd mix of half-hearted originalism and excessive fealty to a court decision from Indiana” that “offers[s] no guidance at all” and leaves “the door wide open for future litigation.”

Unlike Chief Justice Cady, Justice Mansfield found it significant that the constitutional provision that the Court was dealing with (article II, section 5) was ratified in 2008, not 1857.  The 1857 provision said that “No idiot, or insane person, or person convicted of any infamous crime” can be an elector.  In 2006, the Iowa legislature proposed to repeal that provision and replace it with the one we have now, which says that “A person adjudged mentally incompetent to vote or a person convicted of any infamous crime” can’t be an elector.  That proposal passed the legislature in 2006 and 2007 (constitutional amendments must pass through two consecutive legislative sessions) and the Iowa voters ratified it in 2008.

Chief Justice Cady disregarded that amendment because the purpose was to merely delete the offensive language (“idiot” and “insane person”) and thus he believed that the legislature wasn’t focusing on the “infamous crime” phrase.  But as Justice Mansfield noted, when the legislature voted twice to repeal the old provision and replace it , there was a 1994 statute on the books (which remains there today) that defined an infamous crime as a felony.  So when the legislature approved the new amendment, Justice Mansfield reasoned, it must have believed that an “infamous crime” was a felony, and it’s the belief of those legislators that governs–though their belief may be informed by what they thought the framers intended. “It would be absurd,” Justice Mansfield wrote, “to suggest the legislature intended to approve a constitutional amendment that struck down its own law” that defined infamous crimes as felonies.

There’s also evidence that the voters who ratified the new amendment had the same understanding  of infamous crime (if they had any understanding at all).  In October 2008, the Des Moines Register published an editorial that urged voters to pass the amendment but suggested that that infamous-crime phrase provision should also be changed in the future because “the right to vote is denied to convicted felons, even those who have served their sentences.”  The implication was that the editorial board believed, as most everyone did until now, that at the very least all felonies are engulfed by the infamous-crime provision.  And with that understanding, the voters reinserted it back into the Constitution.

Justice Wiggins dissented, meaning that he would rule that aggravated misdemeanors (like an OWI 2nd) are indeed infamous crimes, and thus Bisignano shouldn’t be on the ballot.  He expressed frustration that Chief Justice Cady’s plurality opinion “is rewriting nearly one hundred years of caselaw,” which ruled that any crime that carries a potential sentence of imprisonment is infamous.  (Justice Mansfield, for his part, wouldn’t overrule those cases either; but because felonies were the only crimes subject to imprisonment in 1916 and 1957, the years those cases were decided, he didn’t take those older Supreme Court opinions to mean that nonfelonies might be infamous.)

In addition to being “unnecessary,” Justice Wiggins warned that erasing the bright-line rule is “dangerous” because “we can no longer look to the crime’s penalty to determine who can vote and who cannot vote.” “The uncertainty” of the plurality opinion, Justice Wiggins wrote, “will keep many qualified voters from the polls for fear of prosecution for voter fraud” and “will lead to greater election day problems and the casting of an inordinate amount of provisional ballots.”

So uncertainty is one of the big takeaway’s from the Chiodo decision.  No opinion got a majority, so no opinion, at least in total, is the law.  And even if Chief Justice Cady’s opinion ultimately becomes the lodestar, the Court will probably have to decide several cases before it becomes clear which felonies are infamous and which ones aren’t.  Finally, Justice Appel’s recusal leaves one vote still on the table.  If he sits for the next case, which may come very soon, then his vote could be the deciding one.  If he join’s the Chief Justice’s position, then there will be a majority.  If he joins Justice Mansfield or Justice Wiggins, then the uncertainty will continue.

Of course, the justices’ positions could change.  The Court got the final brief in this case on April 7, heard oral argument on April 9, and issued its decision on April 15.  The justices needed to move that quickly so that ballots can be printed, and considering the timeline, the opinions are incredibly thorough.  But this is a significant issue that the Iowa Supreme Court hasn’t addressed since 1957, and hasn’t addressed in detail ever.  So it’s possible that at least one justice could change his mind.  And it’s possible that Justice Appel’s thoughts will do some mind changing.

But we do know one thing: No misdemeanor is an infamous crime.  Five justices (all but Justice Wiggins) agreed on that point.  We’ll find out more in the next decision–and more in the decision after that.

Iowa Supreme Court reverses high school coach’s conviction for sexual exploitation

By: Ryan Koopmans on April 14th, 2014

It’s a crime in Iowa for a “school employee”–defined as “an administrator, teacher, or other licensed professional”–to have sexual contact with a student.  On Friday, the Iowa Supreme Court ruled that a high school basketball coach who holds a coaching authorization, but not a teaching license, isn’t a “licensed professional” and is thus not a school employee for purposes of the sexual-exploitation statute.

While coaching high school girls basketball for Davis County School, Patrick Nicoletto developed a sexual relationship with one of his players that lasted several months.  When that came to light, Nicoletto was charged and convicted of sexual exploitation and sentenced to five years in prison.

Nicoletto appealed, arguing that he doesn’t fit within the technical definition of school employee because he’s not an administrator, a teacher, or a licensed professional; he’s just a part-time coach.  But Nicoletto does have a coaching authorization–a designation that requires a total of five credit hours of coursework in physiology, child development, injury care and prevention, and coaching theory–and so the State argued that this authorization makes him a “licensed professional.”

A majority of the Iowa Supreme Court agreed with Nicoletto.  Justice Appel writing (joined by Chief Justice Cady and Justices Wiggins, Hecht, and Zager), the majority of the Court concluded that “the ordinary meaning of the term ‘licensed professional’” does not include “a person who merely holds a coaching authorization.”  A professional, Justice Appel explained, is someone who’s gone through extensive schooling, not a mere weekend’s worth of classes.

The Court also concluded that a coaching authorization isn’t a license, because it doesn’t give the holder the power to do something that others can’t.  Those who have a license to practice law, can practice law; those who don’t, can’t.  Those who have a license to drive, can drive; those who don’t, can’t.  On the other hand, Iowa law doesn’t require that all coaches have a coach’s authorization; those who volunteer their time can coach all they want, so long as the school district is happy to have them.  Since the relevant code chapter defines license as the “exclusive authority to perform [the listed] functions,” and a coaching authorization doesn’t bestow exclusivity–at least if you include volunteers–the majority ruled Nicoletto wasn’t licensed.

Justice Appel seemed to concede that excluding coaches like Nicoletto might not be what the legislature intended, but channeling (and citing) Justice Scalia, Justice Appel emphasized that the Court cannot “speculate about probable legislative intent without regard to the wording of the statute”; instead, “any determination must be based upon what the legislature actually said rather than on what it might have said or should have said.”

Justice Waterman dissented and Justice Mansfield joined him. For them, the majority’s interpretation of “licensed professional” was too “hypertechnical”: “A ‘coaching authorization’ is simply a form of ‘license’” and “[c]ommon definitions of ‘professional’ plainly include trained coaches paid to do their job.”  By limiting the professional label to those “learned professions requiring advanced degrees,” Justice Waterman argued that the majority wasn’t applying the common usage of the term: “You can hire a professional painter to touch up your living room ceiling or do it yourself. The painter does not need a doctorate to be a professional” and “[t]here is no contextual indication the legislature intended a narrow definition for ‘licensed professional’” in the sexual exploitation statute.

The Court’s decision, Justice Waterman said, “will surprise school officials, parents, and coaches who had assumed the [sexual exploitation] law that made it illegal for a teacher to engage in sexual activity with students also applies to coaches.”  And with an idiom fitting for the case, Justice Waterman declared that the “ball is now in the legislature’s court to amend section 709.15 to close this new loophole.”

Iowa Supreme Court Hears Oral Arguments in High-Profile Ballot Access Dispute

By: Colin Smith on April 10th, 2014

Does pleading guilty to a second-offense OWI result in an individual being barred from running for office under the “infamous crime” clause of the Iowa Constitution?  That’s the question the Iowa Supreme Court was confronted with yesterday during oral arguments in Chiodo v. The Section 43.24 Panel.  The answer could determine the outcome of an upcoming Iowa State Senate race, but it could also have a far reaching impact on Iowa’s ballot access and voter eligibility rules in the 2014 election and beyond.

U.S. Supreme Court Allows Iowa’s Corporate Contribution Ban To Survive, For Now

By: Colin Smith on April 7th, 2014

Iowa Right to Life v. Tooker, an Iowa-based campaign finance case that has been heavily covered by On Brief (see here, here, here, and here) had its cert. petition challenging Iowa’s corporate political contribution ban denied by the U.S. Supreme Court this morning.  As you may recall, the Tooker case was a multifaceted legal challenge to various parts of Iowa’s state campaign finance statute.  Among the issues raised by the plaintiff were: (1) whether Iowa’s political disclosure laws were overly burdensome, (2) whether Iowa could constitutionally prohibit corporations from contributing to candidates while simultaneously allowing unions to do so, and (3) whether Iowa’s requirement that a corporation’s board of directors approve, ahead of time, any corporate political independent expenditure was constitutional.

After having prevailed in part before the Eighth Circuit Court of Appeals when a three-judge panel declared a portion of Iowa’s independent expenditure reporting rules unconstitutional (at least as applied to politically active nonprofits), the plaintiff in Tooker asked the United States Supreme Court to determine whether or not Iowa’s law permitting union contributions, but prohibiting corporate contributions, was constitutional.

There had been some interesting speculation that the High Court might decide to hear the plaintiff’s arguments regarding the constitutionality of Iowa corporate contribution law on the merits, especially since the U.S. Supreme Court just handed down another blockbuster election law case this month.  But, unfortunately for the plaintiffs, the Court turned down their petition.

The Supreme Court’s refusal to hear the Tooker challenge to Iowa’s corporate contribution ban effectively means that Iowa’s law will remain in place for now, although the Court’s order today does not necessarily foreclose the possibility that another enterprising plaintiff might try another challenge in the future.

As for the Tooker case, it technically is not over yet.   The plaintiff’s claims against the constitutionality of Iowa’s corporate board of director approval law are still pending before the district court on remand from the Eighth Circuit. On Brief will have more coverage of the remainder of the Tooker case as it develops.

Iowa Supreme Court: An Estate’s Lawyer Is Not Automatically An Executor’s Personal Counsel

By: Colin Smith on March 28th, 2014

Does an attorney designated by an executor or administrator of an estate to assist in the distribution of property under a will owe an independent duty to represent the personal interests of the executor or administrator that hired the attorney?  No, according to the Iowa Supreme Court in an opinion released today in the case of Sabin v. Ackerman.

This Week at the Iowa Supreme Court

By: Ryan Koopmans on March 10th, 2014

It’s a busy two days for the Iowa Supreme Court.  Today, the justices will hear argument in eight cases, and tomorrow they’ll travel to Clarinda where they’ll take in two more cases and visit several Southwest Iowa schools.

A few cases to highlight:

(1) In Shumate v. Drake University, the Court will decide whether a public accommodation or public facility (in this case, Drake law school) can be sued in a civil action for violating a statute that makes it a misdemeanor to deny access to service dogs and service dogs in training.  The district court said no, the Court of Appeals said yes.  Our earlier coverage is here.

(2) In Freeman v. Grain Processing Corporation, the Court will decide whether the federal Clean Air Act preempts state common-law nuisance claims.  The case has generated several amicus briefs (law professors, the National Association of Manufacturers, and the Environmental Law & Policy Center, among others) and will be closely watched nationally, since two federal courts of appeals (the Third and Fourth Circuits) have split on the issue.  The district court ruled in favor of Grain Processors based on preemption.  Grain Processors and the National Association of Manufacturers also argue that the lawsuit is barred under the political-question doctrine.

(3) In Smith v. Iowa State University, the Court is being asked to decide whether claims for emotional distress are barred by the Iowa Workers’ Compensation Act.  The Court will also decide whether the plaintiff, Dennis Smith, proved that ISU retaliated against him after he reported  discrepancies in the College of Engineering’s billing practices. Our earlier coverage is here.

(4) In Rhoades v. State, the Court is interpreting Iowa’s HIV-transmission statute, which makes it a crime for an HIV-positive person  to intentionally expose someone to their bodily fluid in a manner that can transmit the disease.  Nick Rhoades pled guilty after having sexual contact without disclosing his HIV status.  He’s now arguing, in post-conviction proceedings, that his attorney was constitutionally ineffective for failing to tell him that statute requires intent.  Rhoades  used protection, so he argues that there was no intent. The Court of Appeals denied Rhoades’s claim. The Court of Appeals’ decision is here; Rhoades’s briefs are here; and the State’s resistance to further review is here. Last month, I spoke to  Ben Kieffer about this case and others on Iowa Public Radio’s River to River. The segment is available here.

(5) In State v. Short, the Court will decide whether police must get a warrant to search a probationer’s house if he’s already signed a consent-to-search agreement as part of his probation.  The U.S. Supreme Court has ruled, under the U.S. Constitution, that the waiver negates the need for a warrant, but the Iowa Supreme Court can come to the opposite outcome under the Iowa Constitution, which it has done several times the last ten years in search-and-seizure cases.

(6) Finally, in In re Guardianship and Conservatorship of Stuart Kennedy, the Court must decide whether a 21-year old mentally handicapped man was “denied due process when his mother, who is also his guardian and conservator, arranged for a vasectomy without a hearing.”  The ACLU filed an amicus brief, which is available online here.

The Iowa Supreme Court in Primetime

By: Ryan Koopmans on March 4th, 2014

Tonight, at 7:00 p.m., the Iowa Supreme Court will hear arguments in Godfrey v. Branstad. The case is interesting, and since the Iowa Supreme Court normally holds its arguments during the day, this  nighttime session gives Central Iowa the rare opportunity to see the justices in action.

There’s also a reception after the arguments that will be attended by the lawyers, the justices, and the law clerks.  So come; bring a date.  And if you have time to spare between now and 7:00, you can peruse the parties’ briefs.

Godfrey’s Opening Brief
Branstad’s Opening Brief
Godfrey’s Reply Brief
National Governors Association, as amicus curiae (“friend of the court”)

(Disclosure: Nyemaster Goode submitted an amicus brief on behalf of the National Governors Association)

Supreme Court Takes Up Two Cases from the Eighth Circuit

By: Administrator on March 3rd, 2014

By Ryan Leemkuil

This morning, the United States Supreme Court agreed to review two cases from the Eighth Circuit Court of Appeals.

In Holt v. Hobbs, the Court will consider the legality of the Arkansas Department of Corrections’ no-beard growing policy.  Gregory Holt (a/k/a Abdul Maalik Muhammad) challenged the ban, seeking permission to grow a half-inch beard consistent with his Muslim beliefs.  The state denied Holt’s request, citing security concerns (inmates might hide contraband in their beards or quickly change their appearance with a shave).  Last June, the Eighth Circuit upheld the policy as the least restrictive means of furthering prison security interests.  Holt, in a handwritten pro se petition, convinced the Supreme Court to take up his challenge to the beard-ban.

In the other case, Warger v. Shauers, the Court will consider whether juror testimony is admissible to show alleged juror dishonesty as the basis for a new trial.  Last year, the Eighth Circuit held the evidence was inadmissible under Federal Rule of Evidence 606, reasoning that “occasional inappropriate jury deliberations” are preferable to “relentless post-verdict scrutiny and second guessing.”  The panel did, however, acknowledge a circuit split on the issue, and the Supreme Court appears poised to resolve that conflict.


Iowa Supreme Court Stays District Court Decision on the Juvenile Home

By: Ryan Koopmans on February 21st, 2014

The juvenile home in Toledo won’t be reopening in the near future.  Today, the Iowa Supreme Court (per Justices Wiggins, Waterman, and Mansfield) granted Governor Branstad’s request for interlocutory appeal and stayed the district court’s preliminary injunction.

The decision isn’t surprising, since the Court had already expedited briefing on the issue.  The Governor’s brief is here; the plaintiffs’ brief is here.  Check back  later for more discussion on the issues that the Court will consider.

The Eighth Circuit Bar Association’s Winter Newsletter is Out

By: Ryan Koopmans on February 13th, 2014

The Eighth Circuit Bar Association’s winter newsletter is now available here.  It covers Eighth Circuit decisions on topics from NFL collective bargaining to the Truth in Lending Act, and it contains another profile of the Eighth Circuit’s newest member, Judge Jane Kelly.

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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.