Chiodo v. Bisignano: What happens now?

By: Ryan Koopmans on April 16th, 2014

The debate over the meaning and effect of yesterday’s Iowa Supreme Court’s decision on “infamous crimes” has begun.  This story by Associated Press reporter Ryan Foley gives a taste.

The  confusion is the result of the three-way split on the Court:

(1) Chief Justice Cady, joined by Justices Hecht and Zager ruled that a crime is not infamous unless it’s a felony that “would tend to undermine the process of democratic governance.”

(2) Justice Mansfield, joined by Justice Waterman, ruled that all felonies, but no misdemeanors, are infamous crimes.

(3) Justice Wiggins ruled that all crimes that carry a potential prison sentence are infamous–which means that all felonies and aggravated misdemeanors are infamous crimes.

The result of that split means three things.  First, because no opinion received a majority of the vote, none of the legal tests are “the law” in the sense that they bind lower courts and the State of Iowa.  Second, because five justices ruled that misdemeanors aren’t infamous crimes, that is now the law. Third, it’s up in the air whether all felonies are infamous crimes or whether that phrase is limited to felonies that “would tend to undermine the process of democratic governance.”   And unless one of the justices changes his mind or Justice Appel joins in on the next case, that issue might be up in the air for a while.

Here’s an unlikely but possible scenario that illustrates the point.  If tomorrow a plaintiff asks the Polk County district court to declare that his OWI 3rd conviction  isn’t an infamous crime (even though it’s a felony), the judge could rule in his favor.  Or the judge could rule against him. The Chiodo decision doesn’t dictate the result because the Court split 3-3 on whether all felonies are infamous crimes.

If the judge rules for the OWI convict and the State appeals to the Iowa Supreme Court, the case would likely end in a tie if Justice Appel is still recused. Assuming that Chief Justice Cady and Justices Hecht and Zager agree that an OWI 3rd doesn’t undermine the democratic process, then those three justices would vote to affirm.  But Justices Mansfield, Waterman, and Wiggins would vote to reverse, assuming they stick with their current positions.  Mansfield and Waterman would conclude that an OWI 3rd is an infamous crime because it’s a felony.  And Justice Wiggins would reach the same result because the crime is punishable by prison time.  Since the vote would be tied–3 to affirm, 3 to reverse–the district court decision would automatically be affirmed and the convict would be free to vote, assuming no other impediments. It doesn’t matter that Justices Mansfield, Waterman, and Wiggins come to the same conclusion for different reasons; it just matters that all three vote to reverse.

Because the Supreme Court would remain evenly split, the issue would still be open.  A Scott County judge could come to the opposite conclusion the  next day.  And when that case went up to the Supreme Court, the justices would, again, split 3-3, meaning that the district court judge’s decision  would be affirmed by operation of law and the Scott County resident wouldn’t be able to vote.  Yet the Polk County resident would.

That’s a lot of ifs. And, again, it’s unlikely to happen.  But it does demonstrate what the Iowa Supreme Court didn’t decide yesterday.  And it shows what could remain undecided until Justice Appel weighs in.

[Note: this post was edited for clarity]


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.


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)


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.


Robert Bork v. Antonin Scalia, Tom Harkin, and the Iowa Supreme Court’s upcoming decision in Bertrand v. Mullin

By: Ryan Koopmans on January 28th, 2014

Last Thursday, the Iowa Supreme Court heard oral argument in Bertrand v. Mullin and the Iowa Democratic Party, a defamation case that stems from a state senate race out of Sioux City.  Shortly before the November 2010 elections, Republican Rick Bertrand sued  in response to an ad that his opponent, Rick Mullin, and the Iowa Democratic Party ran against him.

An ominous-sounding voice (you know the one) told the audience that “Bertrand doesn’t want you to know he puts his profits ahead of children’s health.”  “Bertrand,” the voice said, “was a sales agent for a big drug company that was rated the most unethical company in the world.”  And the “FDA singled out Bertrand’s company for marketing a dangerous sleep drug to children.”


Palo tells the Iowa Supreme Court that he should remain on the team

By: Ryan Koopmans on January 23rd, 2014

Late this afternoon, former (current?) Iowa State basketball player Bubu Palo filed a resistance to the Board of Regents’ emergency motion to stay the district court’s order that he be reinstated to the team.  The Iowa Supreme Court could rule any time.  Here’s Palo’s resistance.


Iowa Supreme Court suspends lawyer who was duped by Nigerian email scam

By: Colin Smith on December 6th, 2013

Today, the Iowa Supreme Court suspended an attorney’s license for twelve months for getting his clients to invest thousands of dollars in a Nigerian email scam.

In 2011, Iowa attorney Robert Wright was representing Floyd Lee Madison in a criminal matter when Wright “was presented documents purporting to evidence that Madison was the beneficiary of a large bequest from his long-lost cousin in Nigeria.”  Those documents instructed Madison and Wright to forward over $170,000 in funds to cover “taxes owed” in Nigeria in order to release an inheritance worth over $18 million.   Believing (hoping?) for this to be true, Wright cut a deal with Madison: Wright would help Madison come up with the money to cover the Nigerian back taxes in exchange for Wright receiving ten percent of the funds recovered from the inheritance money.  If the deal worked, Madison would find himself exponentially richer, while Wright would earn $1.8 million in fees for his efforts.

In order to secure the funds necessary to appease the “Nigerian government,” Wright convinced five of his other clients to contribute thousands of dollars to the plan in exchange for their own small share of the soon-to-arrive bequest.  Wright pooled just shy of $120,000 and deposited the funds in his attorney-client trust account.  From there, he transferred the funds to people who were purportedly working on behalf of “Nigerian authorities” to help Wright and Madison obtain the inheritance money:

In the Course of his work on behalf of Madison in pursuit of the Nigerian inheritance, Wright communicated with persons he believed were representatives of the “Central Bank of Nigeria,” the “African Union,” and the President of Nigeria.  Wright also communicated with Okey Okafor, a person who claimed to be the Nigerian lawyer who had witnessed the decedent’s will.  Wright also had communications with a person who claimed to be a lawyer in England named Johnson Walkers.  Walkers claimed that he had, on Madison’s behalf, traveled to Nigeria and investigated the legitimacy of the inheritance.

After wiring the funds, Wright and Madison were informed that the bequest money would be released by Nigerian authorities via a transfer of funds to the Royal Bank of Canada.

The plan hit a snag.  For some reason, the funds could not be sent to the Canadian banking authorities, instead “Wright and Madison were told the inheritance — in the form of U.S. currency — has been shipped (for reasons not detailed in the record) in two trunks to Spain where the trunks supposedly came into the possession of a ‘diplomat’ in Madrid.”  This “diplomat” then demanded a payment of 25,600 Euros to relinquish possession of the trunks.  What happened next is a bit unclear, but it appears that following the instructions of the diplomat in possession of their fortune, Wright apparently assisted Madison in concealing the foreign currency in some luggage and sent Madison to Spain to meet the diplomat to secure the inheritance money.  Then came an event that neither Wright nor Madison had apparently thought would occur

Madison traveled to Spain . . . . but failed—for reasons not explained in the record—to obtain possession [of the inheritance money].  Madison recovered no funds from the supposed Nigerian inheritance.  As no funds were received by Madison, Wright received no compensation for his professional services in the matter.  The loans made to [Wright and Madison] by [Wright’s other clients] have not been repaid.

Upset at being unable to reap their promised portion of the Nigerian inheritance in exchange for their loans, Wright’s clients filed several attorney ethics complaints against Wright.  Wright was accused of violating Iowa’s attorney ethics rules requiring that a lawyer be competent in providing his services, failing to obtain client conflict of interest waivers in connection with the loans, entering into business relationships with clients that posed conflicts of interest, helping a client further conduct known to be illegal or fraudulent, and engaging in conduct involving fraud and deceit, among others.  At the time of the disciplinary proceedings against Wright, Wright appeared to have been still unaware that he might have fallen victim to a Nigerian scam.  The Grievance Commission wrote at the time:  “Wright appears to have honestly believed — and  continues to believe — that one day a trunk full of . . . one hundred dollar bills is going  to appear upon his office doorstep.”

The Iowa Supreme Court agreed with the prosecutors from the Attorney Disciplinary Board that Wright had violated the Iowa Rules of Professional Conduct’s prohibitions against representing clients in ways that exhibit professional incompetency, that Wright improperly engaged in business transactions with current clients, and that Wright represented his clients in a manner that perpetuated professional misconduct involving dishonesty, fraud, deceit, or misrepresentation. The Court accordingly suspended Wright’s license to practice law for twelve months.  The opinion is here.


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