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.

Happy Friday: Iowa Supreme Court says that it’s not illegal to drink on your front steps.

By: Ryan Koopmans on June 12th, 2015

The Iowa Supreme Court ruled today that Iowa’s public-intoxication law does not cover the front porch or front steps of a single-family house.  You probably didn’t think that was subject to debate.  It was, but it’s now settled.  Let summer begin.

On June 22, 2013, just before midnight, Waterloo police officers were responding to a domestic-dispute call at a single-family residence and were met at the front steps by Patience Paye, the woman who had reported the incident.  After investigating, the officers decided that Paye was actually the aggressor, so they arrested her for domestic assault and public intoxication. (Paye had failed a breath test.) 

The State dropped the domestic-assuault charge, but Paye was convicted of public intoxication.  She appealed, arguing that Iowa’s public-intoxication law can’t cover front-step drunkenness, because the front steps aren’t “public.” 

The Iowa Supreme Court agreed.  Justice Hecht, writing for a unanimous court, summed it up this way:

[I]f the front stairs of a single-family residence are always a public place, it would be a crime to sit there calmly on a breezy summer day and sip a mojito, celebrate a professional achievement with a mixed drink of choice, or even baste meat on the grill with a bourbon-infused barbeque sauce—unless one first obtained a liquor license. We do not think the legislature intended Iowa law to be so heavy-handed.

Read the entire opinion here.

ISBA annual meeting will feature presentations by the Supreme Court and Court of Appeals

By: Ryan Koopmans on June 4th, 2015

On Thursday, June 18, the Iowa State Bar Association appellate practice committee will put on a morning CLE as part of the ISBA’s annual meeting.  For anyone who practices before Iowa’s appellate courts–or for anyone who wants an insight into how Iowa’s case law is made–it will be a program worth attending.

There are three one-hour sessions. First, a Court of Appeals panel consisting of Chief Judge Danilson and Judges Doyle, Tabor, McDonald, and Miller will talk about the size of the court’s docket (it’s big), how they select cases for oral argument, what persuades them, what doesn’t, and what mistakes attorneys frequently make (hint: see here).  

Next, Clerk of Court Donna Humpal will give an update on the appellate courts’ transition to EDMS and talk about how the Court operates behind the scenes.

The session will conclude with a Supreme Court panel consisting of Justices Hecht, Appel, and Mansfield.  Since 2011, the Court has made several significant changes, including the implementation of the term system and the amendments to the rules that govern further review.  The justices will talk about those changes, and others, and will tell the audience how the court operates.  For instance: What do the justices consider when reviewing applications for interlocutory appeal? How many votes are required to grant further review? How are opinions assigned?

All three panels will take questions, time permitting.  To register for the event, and the other activities at the annual meeting, go to the ISBA’s website.

Recent shave moots Eighth Circuit beard appeal

By: Ryan Leemkuil on April 8th, 2015

The beard saga brewing in Arkansas prisons may have drawn to a close. As we mentioned a couple months ago, the latest beard case, Deaton v. Arkansas Dep’t of Corrections, was headed for an Eighth Circuit RLUIPA showdown after the Supreme Court’s pro-beard ruling in Holt v. Hobbs. But it looks like Mr. Deaton and the prison officials have decided to let sleeping dogs lie. According to today’s Eighth Circuit decision, Arkansas has changed its grooming policy—presumably in response to Holt—to allow inmates to grow beards of any length. Mr. Deaton, for his part, is going beardless as spring settles in. He recently advised the Eighth Circuit that “he has shaved his beard and has no present intent to re-grow it.” As a result, the Eighth Circuit dismissed the appeal as moot.

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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.