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.  

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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.


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.


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 Iowa Supreme Court wants to know what you think

By: Ryan Koopmans on November 5th, 2014

The Iowa Supreme Court doesn’t just decide cases; it also regulates lawyers, and like other regulatory bodies, the Iowa Supreme Court often solicits public comments on proposed rule changes.  The Court is currently asking for comments on two issues: In September, the Iowa Supreme Court requested public comments on the quality and usefulness of the so-called Basic Skills Course, a mandatory one-day CLE for newly admitted lawyers.  And in October, the Supreme Court asked for input on whether Iowa-licensed lawyers should pay a $100 yearly fee that would go to Iowa  legal aid organizations.

My unscientific, non-Selzer polling suggests that many lawyers have strong opinions about both topics, yet the Iowa Supreme Court hasn’t received many comments.  There’s still time, though.  The comment period for basic-skills course is open until November 10, and the comment period for the legal-aid fee is open  until January 5.  Comments can be emailed to rules.comments@iowacourts.gov.

More information is available on the Court’s website.  The order requesting comments on the basic-skills course is here, and the order for the legal-aid fee is here.  The Court’s staff also put together a report on the legal-aid fee, which is here.


The Iowa Supreme Court’s 2013-2014 Term: By the Numbers

By: Ryan Koopmans on August 18th, 2014

The Iowa Supreme Court’s 2013-2014 term is over  (with the exception of a few pending petitions for rehearing on late-decided cases), so it’s time for our annual statistical review.

The Basics. The court decided 107 cases this term, including those cases that were affirmed by operation of law when the court was evenly divided.  That is a slight increase from the 100 cases decided in the 2012-2013 term.  A majority of the cases, 58, were civil; 25 were criminal or related cases; 20 were attorney disciplinary cases; and 4 were juvenile or related cases.

Split Opinions. The vast majority of cases, 75, were unanimous; 69 of these cases were completely unanimous with no concurring opinions and 6 had a concurring opinion.   That leaves 32 opinions, or 29.9% of the cases, in which one or more justices dissented.  This is essentially the same percentage of dissents as last year when 30.0% of the cases had a dissent.  Seventeen of these cases were decided by one vote — with a split of 4-3, or when one justice was recused a split of 3-3 or 4-2.

Chief Justice Cady’s Court. Of the 32 non-unanimous opinions, Chief Justice Cady was in the majority the most often, 89% of the time, followed by Justice Appel at 81% of the time.  Justice Waterman was in the majority the least often, only 43% of the time, followed by Justice Mansfield, 46%.   Chief Justice Cady was only in the dissent in 3 cases all term, and only once in a case that was decided 4-3 or 3-3.  (That case was State v. Lukins, in which Justice Zager wrote the majority opinion joined by Justices Wiggins, Hecht, and Appel.)  That’s a change from two terms ago, when Justice Zager was the “decider,” having been in the majority in every case.

Opinion Productivity. In the 107 decided cases, 169 separately signed opinions were written by the seven justices.  Justice Mansfield was the most prolific writer, authoring 37 opinions, followed by Justices Appel and Waterman, who each authored 27 opinions.  Justice Hecht and Chief Justice Cady wrote the fewest opinions with 18 opinions each.  A similar pattern held true with respect to the 101 signed majority opinions.  Justice Mansfield again wrote the most, authoring 20 majority opinions, followed by Justice Appel who wrote 16 majority opinions.  Justice Hecht wrote the fewest majority opinions, 11, followed by Justice Zager who wrote 12, and Chief Justice Cady who wrote 13 majority opinions.  In the most closely divided cases decided by one vote, Chief Justice Cady wrote the most majority opinions, 6, while Justice Zager wrote the fewest, 2.

Justice Agreement. For the third time in as many terms, there were two relatively consistent voting blocs, with  Justices Wiggins, Hecht, and Appel on one end, and Justices Waterman and Mansfield on the other.  The Chief Justice and Justice Zager continue to fall somewhere in between, agreeing with each of their colleagues between 40-70% of the time. The justices that agreed the least were Justice Mansfield and Justice Wiggins who agreed in 13% of the non-unanimous cases.  In the 17 cases that were most closely divided, all but two were split with Justices Wiggins, Appel and Hecht on one side, Justice Waterman, Mansfield, and Zager on the other, and Chief Justice Cady deciding which group was in the majority.

Here’s a complete breakdown of how often each justice agreed with his colleagues in the 32 non-unanimous decisions (putting aside disciplinary cases).  Note, however, that some of the justices recused themselves in one or two of these cases, so the denominator isn’t always 32.   Also, for comparison, the second and third charts show how often each justice agreed with his colleagues in the previous terms.


Iowa Supreme Court Embraces the ADAAA

By: Administrator on June 30th, 2014

By Randy Armentrout

On Friday, the Iowa Supreme Court decided in Goodpaster v. Schwan’s Home Service, Inc that it will look to the 2008 amendments of the federal Americans with Disabilities Act (known in legal circles as the ADAAA) when interpreting the the meaning of “disability” under the Iowa Civil Rights Act (“ICRA”).

The ICRA contains a circular definition of “disability”: a disability is “the physical or mental condition of a person which constitutes a substantial disability.” Iowa Code § 216.2(5).  The Iowa legislature left it to the Iowa Civil Rights Commission (“ICRC”) to promulgate regulations.  In 1993, the ICRC basically adopted the ADA definition of “disability” in passing the regulations: a person has an actual disability under the ICRA if the person “has a physical or mental impairment which substantially limits one or more major life activities.”

Congress amended the ADA in 2008 to require courts to apply the “substantially limits a major life activity” test broadly to cases under the ADA.  The goal was to include more employees under the definition of “disabled.”  In particular, the ADAAA overturned Sutton v. United Air Lines, 527 U.S. 471 (1999) (holding courts must consider corrective measures to decide whether an impairment substantially limits a major life activity) and Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002) (holding “substantially limits a major life activity” should be interpreted strictly to preclude minor impairments).  The Iowa legislature has not amended the ICRA to include any language similar to the ADAAA.  However, the ICRC applies the ADAAA to disability cases under the ICRA.

This leads to the case at issue.  The plaintiff, John Goodpaster, has multiple sclerosis.  He suffers “flare ups” 5-10 times per year, during which times he experiences vision impairment and loss of control and strength in his arms and legs.  Schwan’s employed Goodpaster as a customer services manager, which requires Goodpaster to drive a delivery truck to the homes of customers.  Schwan’s terminated Goodpaster for poor sales.  Goodpaster sued Schwan’s alleging he was disabled under the ICRA and Schwan’s should have accommodated his occasional vision and limb impairments by having another employee ride along with him or picking him up when he had a flare-up. The district court granted summary judgment in favor of Schwan’s, holding Goodpaster was not “disabled” under the ICRA.

On appeal, Goodpaster argued that the ADAAA requires Iowa to interpret the ICRA to include multiple sclerosis as a disability.  In a 5-2 decision issued June 27, 2014, the Iowa Supreme Court stated it is not bound by the language of federal statutes when interpreting the ICRA.  Nevertheless, the Court held it was free to look at the ADAAA “to help establish the framework to analyze claims and otherwise apply our statute.”  The Court next examined multiple federal ADA decisions issued before Sutton and Toyota in which courts found various symptoms of multiple sclerosis to be substantially limiting of certain major life activities.   Broadly interpreting the ICRA, the Court held Goodpaster raised a fact issue on whether his condition substantially limited “one or more of his major life activities.” Curiously, the Court was able to come to this conclusion without actually analyzing which major life activities were impacted.  In a footnote, the Court states that Goodpaster raised a fact issue on the major life activities of walking and working without stating how his multiple sclerosis actually impacts those activities.  The Court reversed the summary judgment and remanded the case.

The dissent points out that this case is nearly identical to Brunker v. Schwan’s Home Service, 583 F.3d 1004 (7th Cir. 2009), decided after the amendments to the ADA became effective.  In Brunker, a customer services manager with multiple sclerosis involving sometimes daily dizziness episodes alleged Schwan’s terminated him in violation of the ADAAA.  The Seventh Circuit concluded Brunker was not disabled and affirmed the district court’s grant of summary judgment.  The Goodpaster dissent also argued that “working” is the only major life activity that should be used in the disability analysis.  Under previous ADA and Iowa case law, a person who is only unable to perform a particular job is not substantially limited in the major life activity of working.  See Probasco v. ICRC, 420 N.W.2d 432, 436 (Iowa 1988).  In this case, Goodpaster took another job as a laborer and has not shown that he is prohibited from working a broad range of jobs.


Iowa Supreme Court: Student can’t sue Drake Law School for allegedly keeping out service dog trainee

By: Amanda Atherton on May 10th, 2014

On Friday, the Iowa Supreme Court reversed the Iowa Court of Appeals and affirmed the trial court’s decision in Shumate v. Drake University.

Nicole Shumate, a Drake University Law School student who trains service dogs but is not herself disabled, claims the school prohibited her from bringing her service dog trainee into a classroom and to an off-campus event. She sued Drake for civil damages, claiming she was denied access under Iowa Code chapter 216C, entitled “Rights of Persons with Physical Disabilities.”

Drake moved to dismiss on the ground that Chapter 216C does not provide for a private right of action. The trial court granted the motion and Shumate appealed. The Iowa Court of Appeals reversed, finding that the statute implicitly allowed for a private cause of action. Drake appealed.

The Iowa Supreme Court reversed. It first acknowledged that Shumate, as a trainer of service animals, belongs to the class of persons Chapter 216C was intended to protect. The Court also agreed that permitting Shumate to file a civil suit would further the overall purpose of the chapter to help those with physical disabilities live fulfilling and productive lives. But the Court concluded that the Legislature did not intend for a service animal trainer (or anyone else, including a disabled person) to have a private remedy under the statute. The Legislature provided for private causes of action for persons with disabilities in nearby Chapters 216 (the Iowa Civil Rights Act) and 216E (addressing assistive devices for those with disabilities). The Court, Justice Waterman writing, reasoned that if the Legislature wanted to provide a similar right under Chapter 216C, it would have done so. The Court also noted that upholding a private cause of action would interfere with the Iowa Civil Rights Commission’s exclusive jurisdiction over disability discrimination claims.

All justices concurred except Justice Mansfield, who took no part. Justice Appel also wrote a special concurrence noting he did not believe allowing Shumate a private cause of action under 216C would offend the statute, but agreeing the Legislature did not intend to imply a private cause of action.


U.S. Supreme Court denies review in Iowa drunk driving case

By: Ryan Leemkuil on April 28th, 2014

The Iowa Supreme Court won’t have to reconsider its ruling in State v. Kooima after all.

Kooima held by a 4-3 vote that police may not stop a vehicle based solely on an anonymous tip that the driver is drunk. That conclusion seemed very much in doubt after the U.S. Supreme Court’s ruling last week in Navarette v. California, which held that officers lawfully stopped a vehicle based on an anonymous tipster’s claim that the car had run her off the road. As we noted then, the Iowa Supreme Court decided Kooima under the Federal Constitution, so Navarette’s contrary ruling on similar facts suggested a remand was on the horizon.

Not so. This morning, the U.S. Supreme Court denied the State’s request to review Kooima. The Court didn’t say why (which is the norm), but it probably came down to a distinction between the tips in each case. In Kooima, the tipster didn’t report any reckless or dangerous driving; he claimed that he was watching a group of guys leaving a bar and “[e]verybody in the damn vehicle” is drunk. In Navarette, on the other hand, the tipster reported she was run off the road by the suspect’s dangerous driving.

That’s about the only meaningful distinction between the two cases (see our comparison here), but details matter under the Fourth Amendment. And the cops will have to keep those details in mind the next time they get an anonymous tip about a possible drunk driver.


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