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.

Does Iowa’s public-intox law apply to your front steps?

By: Ryan Koopmans on April 7th, 2015

Tomorrow night in Decorah, the Iowa Supreme Court will hear competing arguments over whether Iowa’s public-intoxication statute applies to the front steps of a house.  

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.) 

Paye was convicted of both charges, but is now arguing on appeal that she can’t be punished for being drunk on the front steps, because the front steps aren’t “public.”

The State disagrees.  Iowa law says that it’s illegal to be “intoxicated in a public place,” and it defines “public place” as “any place, building or conveyance to which the public has or is permitted access.”  Because the public is generally given access to a house’s front steps (think salesmen), the State says that those steps must be dry. 

The issue isn’t totally new for the Iowa Supreme Court.  In 2003, the justices decided, on a 5-2 vote, that the front steps of an apartment complex were “public” for purposes of the public-intoxication statute.  But the justices also recognized that the steps of a single-family home might be different.  “While the the front steps of a single-family home permit regular access for the homeowners and their guests,” then-Justice Cady wrote, “the front steps of the apartment house are a common thoroughfare through which each tenant and their guests must pass.”  “Moreover,” Justice Cady continued, “while a single individual or family may bar access to the front steps of a single-family home, no single tenant holds the right to bar access to the apartment house.”

Because of these differences, the Court left “for another day any other questions related to the character of the front steps of a single-family home.”

That day is tomorrow.  The argument will take place at the Decorah High School auditorium at 7:00 p.m.  The public is encouraged to attend.

What does it mean when a justice concurs “in result only”?

By: Ryan Koopmans on April 3rd, 2015

That’s the question that many lawyers and district court judges will be asking themselves after the Iowa Supreme Court’s decision today in Fagen v. Iddingswhere no opinion received a majority of votes and Justice Zager concurred “in result only.” 

A patient’s medical records are privileged under Iowa law, but the patient waives that privilege if he files a lawsuit and puts his medical condition at issue. The plaintiff in this case, Cameron Fagen, filed a lawsuit against his college dormmates for injuries that Fagen suffered when he fell to the ground while wrapped in carpet. (Fagen’s dormmates did the wrapping.)  Because Fagen alleged that he suffers from mental pain and mental disability as a result of the accident, the defendants asked Fagen for his mental health records.   Fagen resisted, saying that his allegations of mental pain and disability were just “garden variety” emotional distress, and thus he had not waived the patient-physician privilege by bringing the lawsuit.

The district court disagreed, ruling that there is no “garden-variety” exception under Iowa law, and thus the defendants could have access to the medical records.  Fagen asked the Iowa Supreme Court to review that decision on interlocutory appeal, and the Supreme Court granted that request.

This morning, the Iowa Supreme Court issued its decision.  At first glance, it looks like Fagen won.  But that’s not clear, and it’s less clear what the law is going forward.

Justice Wiggins, joined by Justices Hecht and Appel, reversed the district court’s decision (which required Fagen to sign the patient waiver).  The three justices didn’t adopt the garden-variety exception, but instead adopted a new “protocol,” under which a party does not waive the patient-physician privilege unless the person requesting the records makes a “showing that he or she has a reasonable basis to believe the specific records are likely to contain information relevant to an element or factor of the claim or defense of the person or of any party claiming through or under the privilege.”  The defendants had not made that showing in the district court (because the standard didn’t exist at the time), so Justices Wiggins, Hecht, and Appel voted to send the case back for a redo.  The concluding paragraph of Justice Wiggins’s opinion states in full:

We reverse the district court’s order requiring Fagen to sign a patient’s waiver for his mental health records concerning his anger-management counseling and remand this case to the district court to follow the protocol contained in this opinion pertaining to the release of a party’s mental health records in a civil action.

Three other justices–Chief Justice Cady and Justices Waterman and Mansfield–dissented.  They disagree with the new protocol and don’t think it should be applied in this case.  The dissenters, through an opinion by Justice Mansfield, accused the plurality of “disregarding the question we are supposed to answer”–i.e., whether there is a garden-variety exception under Iowa law–“and instead answering a question nobody asked us to answer.”  This new protocol, Justice Mansfield wrote, “may force a defendant to spend time on extra depositions trying to find indirect evidence of the plaintiff’s mental health condition ” and “may cause trial dates to be postponed because the district court will be unable to rule on whether mental health records should be produced until fact discovery is largely complete—i.e., on the eve of trial.”  Because Fagen pleaded that he suffered damages for mental anguish and mental disability, they voted to affirm the district court.

That left Justice Zager.  He concurred with the first three justices (Wiggins, Hecht, and Appel), but “in result only. ”  And he didn’t say anything else. He didn’t explain what part of Justice Wiggins’s opinion he disagreed with.  And he didn’t say what test he would apply.  

So three justices voted in favor of using Justice Wiggins’s protocol; three justices voted against using Justice Wiggins’s protocol; and one justice concurred in result only.  What’s the law?

That depends, it seems, on what the “result” is–since that’s what Justice Zager is concurring in.  At its highest level, the result is that the court is reversing the district court’s decision and remanding the case.  But what happens on remand?  What test is the district court supposed to apply? If Justice Zager isn’t signing onto Justice Wiggins’s protocol, then that protocol didn’t get a majority vote.  It’s not the law.  Of course, neither is the dissent’s position, and we don’t know what Justice Zager thinks, so we have no majority rule. Just a 3-3 split. 

At the same time, the “result”–as framed by Justice Wiggins–was to reverse and “remand this case to the district court to follow the protocol contained in this opinion pertaining to the release of a party’s mental health records.” But if that’s the result that Justice Zager was concurring in–meaning that Justice Zager is on board with Justice Wiggins’s new test–then what part of the opinion does he disagree with? 

Those are the questions that district court judges will have to answer in dozens of cases to come.  It’ll be interesting to see if the answers are consistent. 

[Disclosure: I submitted an amicus brief in this case on behalf of the Iowa Association of Business and Industry and the Iowa Defense Counsel.  The brief is here.]

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, 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 The armband she wore in 1965 is on permanent display at the Newseum in Washington, D.C. See 

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.

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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.