U.S. Supreme Court to consider an appeal from an Iowa surrogate mother seeking custody of the child

By: Rox Laird on September 20th, 2018

On Monday, the U.S. Supreme Court is scheduled to consider whether to accept the appeal of an Iowa Supreme Court ruling on the enforceability of a contract signed by a woman who acted as a surrogate mother for an Iowa couple unable to conceive a child of their own.

The surrogate mother, identified as T.B. in court documents, was impregnated with embryos fertilized with the intended biological father’s sperm and ova from an anonymous donor. She changed her mind after the child was born, and sued the Cedar Rapids couple in Linn County District Court, arguing that the surrogacy contract was unconstitutional and that her parental rights should not have been terminated.

The Iowa Supreme Court ruled on Feb. 16 that the contract was valid, that the surrogate mother and her husband are not the child’s genetic parents and that the District Court correctly awarded custody of the child to the biological father.

The surrogate mother appealed that ruling to the U.S. Supreme Court. In a brief filed with the Court, lawyers for T.B. argue that surrogate mother’s interest in the child, and her right to be free of state-enforced exploitation, are protected by the 14th Amendment, and that she did not waive those rights by signing the surrogacy contract.

At Monday’s conference, the U.S. Supreme Court has a long list of appeals to consider adding to its docket for the term that begins Oct. 1. The Court is expected to announce later next week which of those cases it will hear this term.


The 2017-18 term marked the end of an era for the Iowa Supreme Court

By: Rox Laird on September 19th, 2018

The Iowa Supreme Court’s 2018-19 term that began Sept. 4 marks the first change in court personnel in nearly a decade, with the retirement of Justice Bruce Zager and the appointment of former District Judge Susan Christensen to take his place.

The Court’s 2017-18 term was the final chapter of the era that began after the removal by voters of three justices, the appointment of Zager, Edward Mansfield and Thomas Waterman to replace them, and the elevation of Mark Cady to Chief Justice.

In the term that ended in June, the Court decided 102 cases, although three additional cases were resubmitted for consideration this term, and one case was dismissed.

The largest percentage of cases (44 percent) the Court heard were further review of Court of Appeals decisions, and 36 percent were direct appeals from the District Courts.

The Supreme Court reversed the trial courts in 45 percent of the cases heard on appeal, and affirmed in 37 percent, with 15 percent yielding in mixed results (i.e., partially affirmed, partially reversed).

The Supreme Court reversed the Court of Appeals in 64 percent of the cases and affirmed the lower court in 25 percent of the cases. That reversal rate is not surprising, since the Supreme Court typically accepts appeals of only a small fraction of the 1,200 cases decided by the Court of Appeals each year, and the justices accept appeals on further review only in those cases where they believe reconsideration is warranted.

The justices individually wrote 155 opinions, which include majority opinions, dissents and special concurrences. Justice Brent Appel wrote the most opinion (30) followed by Justice David Wiggins and Justice Waterman (26 each). The total number of opinions was down 27 from the previous year. (These numbers were skewed in part by the absence of Justice Daryl Hecht, who did not participate in all cases in the last term when he was being treated for melanoma.)

Wiggins and Mansfield – who are often at opposite ends of the Court’s spectrum – were tied in the number of majority opinions at 18 each. Mansfield wrote 10 dissents, and Waterman and Appel each wrote nine. Cady wrote just two dissents, Zager one and Hecht none.

The Court was unanimous in 67 of the 102 of the cases decided, or about two-thirds of the time.

The Court was split 4-3 in 14 cases (or 4-2 in nine cases, when a seventh justice did not participate), where one vote dictated the outcome.

Looking at the cases decided by a non-unanimous vote, the seven-member Court followed its consistent pattern of splitting into two camps: Appel, Wiggins and Hecht typically were in one camp; Mansfield, Waterman and Zager were in another camp; and Chief Justice Cady typically cast the deciding vote.

In the non-unanimous cases, Appel and Hecht were the most likely to agree (in 93 percent of the cases), followed by Waterman and Mansfield (89 percent). Waterman and Wiggins were the least likely to agree, voting the same way in only 11 percent of the cases where the Court was not unanimous. The Chief Justice had the highest rate of agreement with each of his six colleagues on the Court.

The Court is back to full strength in the current term with the return of Justice Hecht, and with the addition of Justice Christensen, who joined the Court on Sept. 4. A formal investiture ceremony for Christensen is scheduled for 3:30 p.m., Sept. 21, in the Supreme Court courtroom.

Statistics compiled by Holly Mitchell, Nyemaster Goode.

 

Overall Opinion Authoriship:

 

 

4-3 and 4-2 Decisions Opinion Authorship:

 

 

Justice Agreement: Non-Unanimous Cases:

 

 


Iowa Supreme Court to hear oral argument at Johnston High School Monday night, and at the Judicial Branch Building Tuesday

By: Rox Laird on September 14th, 2018

The Iowa Supreme Court will hear oral arguments at 7 p.m. Sept. 17 at Johnston High School in a drunk-driving appeal that raises constitutional issues. The justices will be back at the Judicial Branch Building Tuesday to hear arguments in three cases on Sept. 18. A fourth case will be submitted to the Court that day without oral argument. Following are brief summaries of those cases (go to On Brief’s Cases in the Pipeline page for links to briefs).

State v. Timothy Newton

Scheduled for oral argument at 7 p.m. Sept. 17 at Johnston High School

Newton seeks further review of a Court of Appeals ruling affirming his conviction for Operating While Intoxicated. Newton argues that Iowa’s law that provides for an OWI conviction if any controlled substance is present in urine violates the right to due process under the U.S. and Iowa Constitutions.

State v. Peter Veal

Scheduled for oral argument at 9 a.m. Sept. 18

Veal appeals his conviction on two counts of first-degree murder and one count of attempt to commit murder. Among the issues appealed, Veal, who is African-American, argues that his right to a fair trial under the U.S. and Iowa Constitutions was violated. The first of two jury pools drawn from Webster County, which is 5.5 percent African-American, included no African-Americans while 2.5 percent of a second pool of 157 potential jurors were African-Americans.

State v. Kenneth Lilly

Scheduled for oral argument at 9 a.m. Sept. 18

Lilly appeals his conviction for aiding and abetting robbery in the first degree in part because he argues he was denied the constitutional right to an impartial jury of his peers. There were no African-Americans in the pool of potential jurors, while roughly 3 percent of the residents of Lee County are African-American.

State v. Scottize Danyelle Brown

Scheduled for oral argument at 1:30 p.m. Sept. 18

Brown appeals her conviction for second-offense Operating While Intoxicated (OWI), arguing that the traffic stop by a Waterloo police officer for a moving violation and a license-plate lamp violation was a pretextual stop – that is, a stop made for a valid reason although the officer has a different purpose for making the stop. Brown argues that pretextual stops are illegal under the Iowa Constitution’s equivalent of the Fourth Amendment. Two Amicus curiae (friend of the court) briefs have been filed with the Court in this case. A brief in support of Brown was filed by the American Civil Liberties Union of Iowa, the NAACP, the League of United Latin American Citizens of Iowa, and 1000 Kids for Iowa. A brief in support of the State was filed by the Iowa County Attorneys Association.

State v. Terran Roache

Will be submitted to the Court Sept. 18 without oral argument

Roache seeks further review of a Court of Appeals ruling affirming a trial court order that he pay $3,557.08 in restitution to victims following his pleading guilty to charges related to a string of automobile burglaries.


Eight oral arguments on tap for the Iowa Supreme Court this week

By: Rox Laird on September 11th, 2018

The Iowa Supreme Court will hear oral arguments in eight cases Wednesday and Thursday, and six cases will be submitted to the Court without oral argument. Following are brief summaries of the cases.

Puntenny, et al. v. Iowa Utilities Board

Scheduled for argument Sept. 12, 9 a.m.

Appellants, landowners in the path of the Dakota Access oil pipeline, appeal a Polk County District Court ruling upholding a decision of the Iowa Utilities Board granting a permit to Dakota Access for construction of the pipeline. They argue that the board wrongly based its decision on the pipeline’s safety and economic benefits, that taking farmland for a private purpose is unconstitutional, and that the pipeline is not a “public use.”

Natalie Slaughter v. Des Moines University College of Osteopathic Medicine

Scheduled for argument Sept. 12, 9 a.m.

Slaughter, a student at Des Moines University appeals a Polk County District Court ruling dismissing her claim that she was wrongly dismissed from the medical school for failing grades. Slaughter argues the university failed to accommodate her disability due to depression.

State v. Cody Tyler Smith

Will be submitted to the court Sept. 12 without oral argument

Smith argues that evidence used in his drunken-driving conviction should have been suppressed because it violates the U.S. and Iowa Constitutions and it does not fit under the community caretaking exception.

State v. Owen Benson

Will be submitted to the Court Sept. 12 without oral argument

Benson seeks reversal of his convictions or a new trial for assault causing bodily injury and child endangerment.

Michael Jefferson v. Scott County District Court

Scheduled for oral argument Sept. 12, 1:30 p.m.

Jefferson argues his sentence of lifetime placement on the sex-offender registry for sex abuse in the second degree is unconstitutional cruel and unusual punishment, and that legal counsel should have been appointed to assist him in post-conviction proceedings. 

Rickie Rilea, Timothy Riley v. Iowa Department of Transportation

Scheduled for argument Sept. 12, 1:30 p.m.

The Iowa Department of Transportation appeals a Polk County District Court ruling that, with certain exceptions, DOT Motor Vehicle Enforcement officers lack statutory authority to stop drivers or issue citations for violations of law unrelated to vehicle operating authority, registration, size, weight, and load. The DOT argues that in addition to enforcing vehicle operating violations, Motor Vehicle Enforcement officers have the legal authority to issue citations and make arrests for drunken driving, school bus safety and any public offense under the “citizen’s arrest” doctrine.

State v. Jeremy Werner

Will be submitted to the Court Sept. 12, without oral argument

This appeal from the Iowa County District Court raises the same issues as Rilea and Riley v. Iowa Department of Transportation, except that the roles are reversed. The District Court ruled that a DOT Motor Vehicle Enforcement officer had authority to take enforcement action for a public offense committed in the officer’s presence.

State v. Darryl Shears Jr.

Scheduled for oral argument Sept. 13, 9 a.m.

Shears appeals a Scott County District Court order that he pay $7,093.83 in restitution for three patrol vehicles damaged when Davenport officers used their vehicles to block Shears from eluding officers. Shears argues the vehicles were damaged in the normal course of duty, not because of criminal conduct on his part.

Susan Cox and Edward Cox v. Iowa Department of Human Services

Scheduled for oral argument Sept. 13, 9 a.m.

The Coxes appeal from a Polk County District Court ruling upholding a decision of the Iowa Department of Human Services delaying the Coxes’ Medicaid eligibility as a penalty for transferring assets into a special-needs trust at less than fair market value. An amicus curiae (friend of the court) brief in support of appellants was filed by the Special Needs Alliance and the National Academy of Elder Law Attorneys Inc.

State v. Quinten Brice McMurry

Will be submitted to the Court Sept. 13 without oral argument

McMurry seeks review of an Iowa Court of Appeals ruling upholding his sentences following guilty pleas for child endangerment and false report of an incendiary device.

State v. Tyson Ruth

Will be submitted to the Court Sept. 13 without oral argument

Ruth seeks review of an Iowa Court of Appeals ruling upholding a District Court order that he pay court costs.

Richard Eugene Noll v. Iowa District Court for Muscatine County

Scheduled  for argument Sept. 13, 1:30 p.m.

Noll appeals his sentence of up to 15 years in prison as a habitual offender with two prior felony drunken-driving convictions, arguing his habitual-offender sentence is illegal.

Deandre Goode v. State of Iowa

Scheduled for argument Sept. 13, 1:30 p.m.

Goode seeks review of an Iowa Court of Appeals upholding a District Court decision denying his application for post-conviction relief following a conviction for robbery in the third degree, citing ineffective assistance of post-conviction counsel.

Ronald Dwight Kunde v. Estate of Arthur Bowman and Diane Engelkins

Will be submitted to the Court Sept. 13 without oral argument.

Appellant seeks review of an Iowa Court of Appeals ruling regarding a farm lease and sale agreement.


Question to be argued before the Iowa Supreme Court: Games of skill or chance?

By: Rox Laird on September 6th, 2018

The Iowa Supreme Court will hear arguments Friday in Iowa City in a case that could determine whether gaming devices that resemble slot machines could be placed in Iowa businesses other than bars.

The Court will hear oral arguments at 10:30 a.m. Friday in Banilla Games Inc. v. Iowa Department of Inspections and Appeals at the Levitt Auditorium at the University of Iowa College of Law. The case presents a question of interpreting the gaming statute on which the Court has not ruled before.

Banilla Games, a North Carolina company, manufactures and sells electronic games that resemble touch-screen slot machines. Players purchase credits, with one cent equaling one credit, and are challenged to match or complete sets of images on the screen. Winners receive a ticket or voucher worth up to $50 that can be redeemed for merchandise within the commercial establishment where the game is played.

At issue is whether Banilla’s Superior Skill game machines must be registered with the State under the gambling regulations in Iowa Code Chapter 99B. Gaming devices that require registration are limited by the statute to businesses holding liquor licenses, whereas non-registered devices can be placed in other locations, such as convenience stores.

The Iowa Department of Inspections and Appeals ruled that Banilla’s Superior Skill machines are subject to the registration requirement, and the agency’s ruling was upheld in a July 2017 decision by Polk County District Judge Mary Pat Gunderson.

Banilla argues in its appeal of the District Court decision that its machines are games of skill, not chance, and thus do not have to be registered.

Iowa Code Section 99B.53 provides that “an electrical or mechanical amusement device in operation or distributed in this state that awards a prize where the outcome is not primarily determined by skill or knowledge of the operator shall be registered by the department as provided in this section.”

Banilla said in a brief submitted to the Court that the heart of the issue is the statute’s phrase “where the outcome is not primarily determined by skill or knowledge of the operator,” and the company argued that “the player’s use of knowledge and skill completely controls the outcome of game play. Chance plays no role in the outcome of game play.”

The Department of Inspections and Appeals disagrees. The most significant word in that part of the statute, the department argues in its brief, is “primarily,” because the outcome of the game is determined more by chance than the player’s skill or knowledge.

“The fate of all Superior Skill players, no matter their experience and skill level, is dependent on the unpredictable (and highly infrequent) appearance of high value play screens,” the department argued. “A skillful player is not guaranteed a prize, but a novice player can blindly strike it rich.”


Eighth Circuit rules ‘In God We Trust’ on U.S. currency is constitutional

By: Rox Laird on September 4th, 2018

The motto “In God We Trust” has been printed on U.S. currency since the Civil War, but the U.S. Court of Appeals for the Eighth Circuit confronted the question of whether it violates the Constitution for the first time in an Aug. 28 ruling.

The answer? The motto does not violate the Constitution.

A three-judge panel of the St. Louis-based court, which has jurisdiction over Iowa and six other Midwest states, rejected arguments raised in an appeal of a Minnesota District Court decision by 27 atheists or children of atheists and two atheist organizations.

The plaintiffs argued that government-issued bills and coins bearing a “purely religious” message amount to an explicit endorsement of Christianity and monotheism. They contend that violates the Establishment Clause, the Free Speech Clause and the free-exercise clause of the First Amendment, equal protection under the Fifth Amendment and the Religious Freedom Restoration Act.

Each of these claims was rejected by the panel – consisting of Judges Raymond Gruender of St. Louis, Arlen Beam of Lincoln, and Jane Kelly of Cedar Rapids. Kelly, however, filed a separate opinion concurring with the judgment, but she disagreed with the majority’s discussion of the Establishment Clause question.

Writing for the majority, Gruender pointed out that the other federal circuit appeals courts that have considered this question have held that the motto does not violate the Establishment Clause, and the U.S. Supreme Court has repeatedly said as much (although in dicta, or passing references in related cases).

“Thus, we are not writing on a blank slate,” Gruender wrote.

“We do, however, address this issue for the first time today under the guidance of new Supreme Court precedent, not yet considered in this circuit,” Gruender wrote, referring to the 2014 decision of the U.S. Supreme Court in Town of Greece v. Galloway.

In Galloway the Supreme Court said the Town of Greece town council’s practice of opening meetings with a prayer did not offend the Establishment Clause, which the Court said “must be interpreted in reference to historical practices and understandings.”

While printing “In God We Trust” on currency did not begin until 1864, Gruender said the practice is in keeping with early understandings of the Establishment Clause. Religion has been a part of government since the nation’s founding, the Supreme Court has observed, and “the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him.”

The plaintiffs argued that, based on statements of public officials at the time, the intent of Congress in mandating a motto referring to one God on currency was “to suffuse our nation with (Christian) Monotheistic religion.”

But Gruender said “historical practices confirm that the Establishment Clause does not require courts to purge the Government of all religious reflection or to ‘evince a hostility to religion by disabling the government from in some ways recognizing our religious heritage.’ Precluding general references to God would do exactly that.”

Judge Kelly departed from the panel majority’s analysis of the Supreme Court’s Galloway decision, which she said “seeks to remake Establishment Clause jurisprudence in this circuit based on analysis that is overly broad and unnecessary to the resolution of this case.”

Galloway clarifies that the Establishment Clause is to be interpreted ‘by reference to historical practices and understandings,’ ” Kelly wrote. “But it also clarifies that Supreme Court precedent ‘must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation.’ In other words, even when history indicates that a practice does not offend the Establishment Clause, but the Court’s other Establishment Clause tests suggest that it does, history alone cannot carry the day.”

Galloway “does not make clear what history we should consider in this case,” Kelly wrote, pointing out that putting “In God We Trust” on currency happened 72 years after the ratification of the Bill of Rights, and it was not put on all currency until 1955.

The Founders proposed several mottos for the new nation, she wrote, including “E Pluribus Unum,” and the original legend on continental coins minted in 1787 was “Mind Your Business.” Thus, “the motto’s history of inclusion on the currency tells us nothing about what the Framers thought, and does not say much of anything about what the Establishment Clause means.”

Rather than try to parse Galloway, Kelly said, “the better approach is to resort to what the Supreme Court has already told us. The Court has expressed a view that — irrespective of the Establishment Clause test applied — printing the motto on currency is permissible.”


U.S. Supreme Court Justice Gorsuch shares his views on preserving the rule of law at Des Moines conference

By: Rox Laird on August 20th, 2018

Neil Gorsuch, associate justice of the U.S. Supreme Court, made a case for defending the rule of law in a conversation a Q-and-A-format conversation with Lavenski Smith, Chief Judge of the Eighth Circuit Court of Appeals, at the Eighth Circuit conference in Des Moines Friday.

Justice Gorsuch said he worries about preserving the roles of independent judges and juries.

“The rule of law here is really one of the wonders of the world,” he said, and it “separates this country from almost any other on Earth. Go to some other countries and see the judges and the pressures they face, and the challenges the face – their safety, their security, their ability to make independent decisions.”

“I think the right to have an independent judge tell you what the law is, no matter who you are, is one of the great liberties and the genius of the Constitution.”

Gorsuch said the rule of law in this country means that a defendant who is unpopular, a member of a minority group or a person holding a minority religious belief “can go before a judge who is not going to defer, delegate, or lower the law to someone else, who is going to enforce your rights as equally as anyone else’s. That’s a powerful guarantee. And I hope we never lose that.”

He said he worries it is eroding, however.

“Sometimes I do worry that the right to an independent judge who will tell you what the law is – and a jury, for goodness sakes, deciding what the facts are – are slipping away. We’re becoming comfortable with allowing other people to decide cases and controversy, comfortable losing our juries. I’m not. I’m not comfortable with those things at all.

“The temptation for judges to sometimes let these things slide, to let somebody else decide the case, defer to some other some other point of view, some, maybe political, decision-maker. Isn’t that an incursion on the rule of law?

“When you think about the rule of law, you have to think about the least among us, the most vulnerable. The big guys, they can take care of themselves. What about the little guy, the little person? It seems to me the least amongst us are the most dependent on independent judges.”

Gorsuch also offered some advice for a group of University of Iowa law school students in the room:

“Try to remember why you went to law school. I think within a few years it’s very easy to get caught up in how much money you make, how many hours you bill, what your book of business looks like, how many partnership points you have, what kind of car you drive and the house you live in. It’s interesting how those conversations predominate and suck you over time.

“I suspect the reason you went to law school has nothing to do with any of those things. I suspect your story is very similar to mine, and for some reason you wanted to help people with their problems: So I’d say find some way to be useful, don’t forget that, because at the end of the day, when you sum it all up and you reach the destination and you are sitting in that house telling your grandchildren the story of your life, what is that story? I doubt very much it will be about the houses and the cars. You will talk about the things that matter.”


District Judge Susan Christensen named to the Iowa Supreme Court

By: Rox Laird on August 2nd, 2018

Susan Christensen told her husband some years ago that she wanted to be a judge, and she reached that goal when she became a District Associate Judge in 2007 and a District Judge in 2015. But her climb up the judiciary ladder did not end there: On Wednesday, Christensen was appointed as an Associate Justice on Iowa’s highest court.

Gov. Kim Reynolds announced Christensen’s appointment to the Iowa Supreme Court at a press conference Wednesday afternoon. She replaces Justice Bruce Zager, who will retire in September.

Christensen, 56, a Harlan native who worked in private practice and as an assistant county attorney before being appointed to the District Court in 2015, was among 21 applicants for the Court and three finalists forwarded to the governor by the State Judicial Nominating Commission. (For more information on the applicants, the Iowa Judicial Branch has posted all 21 applications and videos of their interviews with the commission.)

Christensen’s judicial aspirations were no doubt inspired by her father, the late Iowa Supreme Justice Jerry Larson, Iowa’s longest-serving justice (1978-2008), who died in April.

In announcing the appointment Wednesday, Governor Reynolds said Christensen did not take a conventional path to the bench. “She attended law school later than most, working for years as a legal secretary to support her family” – which now includes five children and four grandchildren – and to pay for her education, the governor said. “She understands the challenges of everyday Iowans.”

Iowa’s first female governor pointed out, “there will once again be a woman’s voice the Iowa Supreme Court.”

Before Christensen, the first woman to serve on the Court was Linda Neuman (1986-2003). The last female to serve on the Iowa Supreme Court was Justice Marcia Ternus, who was also Iowa’s first female chief justice. Ternus served on the Court from 1993 to 2010, before being voted off the bench largely in part to groups opposed to the court’s unanimous decision in Varnum v. Brien, which recognized same-sex marriage in Iowa.

 


Iowa native tapped for vacancy on the Eighth Circuit Court of Appeals

By: Rox Laird on July 25th, 2018

A Sioux City native has been nominated to fill a vacancy on the U.S. Court of Appeals for the Eighth Circuit to replace Judge Roger Wollman, who has announced he will take senior status.

Jonathan Kobes, now serving as general counsel to U.S. Sen. Mike Rounds of South Dakota, was appointed by President Donald Trump to replace Wollman, who has announced he will assume senior status as soon as his replacement is confirmed.

Judge Wollman, who was appointed to the Eighth Circuit in 1985 by President Ronald Reagan, will turn 84 this year.

Kobes, 43, graduated from Dordt College in Sioux Center in 1996, Harvard Law School in 2000 and clerked for Judge Wollman after graduation.

Kobes has had a varied legal career: He worked for the Central Intelligence Agency in Washington, D.C., for the U.S. Attorney for the District of South Dakota and the Sioux Falls office of Murphy, Goldammer and Prendergast where he was a litigation associate.

Prior to joining Senator Rounds’ staff, Kobes was counsel for the Sioux Falls, S.D., biofuels company POET, senior regulatory counsel for DuPont Pioneer and then director of corporate compliance for Raven Industries.

If confirmed, Kobes will be President Trump’s fourth appointment to the 11-member Eighth Circuit, following David Stras of Minnesota, Ralph Erickson of North Dakota, and Steven Grasz of Nebraska.

The president could fill at least two more seats on the Eighth Circuit. Judges James Loken of Minnesota and Duane Benton of Missouri are eligible to take senior status.


Eighth Circuit Court of Appeals issues a split decision on the legality of Des Moines’ utility fee

By: Rox Laird on July 18th, 2018

The U.S. Court of Appeals for the Eighth Circuit in St. Louis handed down a split decision Tuesday on a City of Des Moines utility fee, holding that the fee is not pre-empted by federal law while remanding to the trial court the question of its legality under Iowa law.

Des Moines charges a fee to telecommunications carriers for the use of the city’s rights of way for their cables and wires. After the city increased the fee, it was sued in federal court by Century Link, Windstream Communications and McLeod USA Telecommunications Services.

The carriers argued the fee structure is pre-empted by federal law and that the city exceeded its powers under state law. U.S. District Judge Charles Wolle in Des Moines ruled against the carriers on both counts in December 2016 following a bench trial.

A three-judge panel of the Eighth Circuit upheld Wolle’s ruling on the federal pre-emption question but sent the case back for more fact-finding on the state law question. The decision was written by Judge Jane Kelly of Cedar Rapids and joined by Judges Duane Benton of Kansas City and David Stras of Minneapolis.

The statutory question is whether the city’s “management costs” may include construction expenses related to engineering and working around the utilities’ presence in the rights of way. Kelly wrote that “management fees are limited to costs actually incurred by municipalities in managing the rights-of-way,” and those limits are prescribed by the statute.

The panel remanded the case to resolve that fact question, saying the complex factual disputes in this case are not amenable to summary disposition.


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