Iowa Supreme Court preview: Seven cases set for argument March 6 and 7

By: Rox Laird on March 3rd, 2018

The Iowa Supreme Court will hear arguments in seven cases March 6 and 7. Following are summaries of five of those cases. Three more cases will be submitted to the Court without oral argument.

Bandstra v. Covenant Reformed Church

Set for argument at 9 a.m. on March 6.

The Bandstras appeal a Marion County District Court’s dismissal on summary judgment of their civil lawsuit against their former church for negligent supervision of a pastor accused of sexual exploitation.

After Valerie and Anne Bandstra reported to the Board of Elders of the Covenant Reformed Church in Pella that both of them had been sexual abused by Pastor Patrick Edouard, the pastor resigned and he was subsequently convicted on four counts of sexual exploitation by a counselor.

The Bandstras sued the church’s 16-member board for negligence in supervising the pastor and for defamation. The defamation claim is based on letters and statements by the elders to the congregation regarding the pastor’s removal that the women contend accused them of adultery for their parts in the sexual encounters with the pastor.

A key issue in this case is whether the church is shielded by the religious-freedom clauses of the U.S. and Iowa constitutions.

The church argues that a judicial inquiry into how they believe the bible viewed the women’s conduct and into the selection and supervision of clergy, which involves matters of religious doctrine, would infringe its First Amendment rights. And, on a related First Amendment issue, the elders argue that church documents sought by the plaintiffs are protected by clergy privilege.

The Bandstras argue in a brief submitted to the Supreme Court that the church can’t “hide behind the First Amendment” to shield itself from negligence, and that the lay members of the Board of Elders do not qualify as “clergy.”

Two amicus curiae (friend of the court) briefs were filed in the case – one by the Becket Fund for Religious Liberty and another by the International Society for Krishna Consciousness – focusing on religious freedom. Both briefs support the church, arguing the Court should give deference to the church’s right under the First Amendment to make moral judgments about adultery.

[Disclosure: Nyemaster Goode attorneys Michael Thrall and Frances Haas represent the defendant-appellees in this appeal.]

State v. Coffman

Set to be argued at 1:30 p.m. on March 6.

Terry Lee Coffman appeals his OWI conviction from Story County District Court on grounds the trial court should have suppressed evidence obtained in violation of his constitutional rights. The appeal is heard on further review of a ruling by the Iowa Court of Appeals against Coffman.

A Story County deputy sheriff pulled behind Coffman’s vehicle stopped on the shoulder of a deserted county gravel road in the early morning hours. The officer switched on his flashing lights, approached the vehicle to see if the occupants needed assistance and initiated the arrest after smelling alcohol in the car.

The State cites what is called a “community caretaking” exception to the Fourth Amendment, which allows a warrantless seizure based on an officer’s reasonable belief that an emergency exists or an individual needs assistance. Coffman argues the deputy had no grounds to make the stop because nothing under the circumstances in his case suggested there was any reason for concern about the welfare of the vehicle’s occupants.

State v. Kenyon Harrison

Set to be argued at 1:30 p.m. on March 6.

Kenyon Harrison invites the Iowa Supreme Court to expand its growing body of decisions shielding juvenile defendants from harsh sentences on grounds that juvenile mental development lags that of adults.

Harrison appeals his conviction in Polk County District Court for first-degree murder and sentence to life in prison with the possibility of parole. The felony-murder conviction stems from Harrison’s participation in a robbery in which the victim was murdered.

Harrison argues that the felony murder rule – which makes murder in the commission of a forcible felony murder in the first degree – is unconstitutional as applied to juveniles.

An amicus curiae brief was filed with the Court in support of Harrison by the Juvenile Law Center, the Center on Wrongful Convictions of Youth and the Center for Law, Brain and Behavior.

Nolan Deeds v. City of Marion

Set to be argued at 9 a.m. on March 7.

Nolan Deeds appeals a decision of the Linn County District Court summary-judgment dismissal of his disability discrimination claim against the City of Marion, which withdrew a job offer for a firefighter position on the basis of a consulting doctor’s conclusion that he was not medically qualified for the job.

Deeds argues the doctor wrongly based her conclusion on an earlier diagnosis that he had had symptoms of muscular sclerosis. This appeal is heard on further review of a ruling by the Iowa Court of Appeals against Deeds.

A companion case, Nolan Deeds v. the City of Cedar Rapids, which involves similar issues, will be submitted to the Court the same day but without oral argument.

Powers v. State of Iowa

Set to be argued March 7 at 1:30 p.m.

In this appeal from Black Hawk County District Court David Powers challenges a decision by the trial judge to quash Powers’ subpoena for evidence in police records he believes would aid his post-conviction appeal.

In his appeal of his conviction of sexual abuse of his 7-year-old grand-daughter, Powers sought police records he believes would undermine her credibility by showing she may have made false rape accusations against other persons. After reviewing the police records, the trial judge denied Powers access to the evidence because he did not believe the grand-daughter made a false accusation.

An amicus curiae brief submitted to the Court in this case by the Innocence Network, the Innocence Project of Iowa and the Midwest Innocence Project in support of Powers, argues that equal access to exculpatory evidence reduces the imbalance of power between the state and criminal defendants. The brief argues that at least Powers’ attorney should have access to the reports to independently weigh their relevance, even if the trial court ultimately rules them inadmissible.

Iowa Supreme Court preview: Justices will hear arguments this week on abortion, immunity for public officials, and municipal zoning

By: Rox Laird on February 12th, 2018

The Iowa Supreme Court will hear arguments in seven cases this week. Following are summaries of three cases set for argument Tuesday and Wednesday. [See our earlier preview of in Honomichl v. Valley View Swine, which will be argued Monday during an evening session of the Court.]

City of Des Moines v. Ogden

Set for argument 9 a.m. Feb. 13.

Mark Ogden appeals from a Polk County District Court ruling, upheld by the Iowa Court of Appeals, that enjoined him from operating a mobile-home park in violation of the city’s zoning ordinance. (The Supreme Court hears this case on further review from the Court of Appeals.)

The District Court agreed with the city that the park no longer is entitled to its legal, nonconforming status because zoning and health-and-safety violations have intensified since it was first granted more than 60 years ago. Additions to trailers within the park, such as decks and out-buildings, pose a danger to health and safety of residents by increasing fire risk and blocking access by firefighting apparatus.

Ogden argues that his Oak Hill Mobile Home Park on the south side of Des Moines is substantially configured as it has been since 1939, and there is no evidence in the record of intensification or safety issues. Ogden contends the city’s underlying goal is gentrification by removing what some might see as an eyesore. Eight park residents echo that argument in an amicus curiae (friend of the court) brief filed by lawyers for Iowa Legal Aid, saying the city’s efforts to shutter the mobile-home park will work a hardship on low-income, largely Hispanic residents.

Planned Parenthood of the Heartland v. Kimberly K. Reynolds ex rel. State of Iowa

Set for argument 9 a.m. Feb. 14.

Planned Parenthood of the Heartland appeals a decision from Polk County District Court denying an injunction against enforcement of a statute enacted in April 2017 that requires that a woman seeking an abortion be given the opportunity to see an ultrasound and hear the fetal heartbeat at least 72 hours before the procedure.

Planned Parenthood argues that many Iowa women would have to travel great distances, some making two trips, due to the limited number of Iowa abortion providers, which it says especially endangers abused women and victims of sexual assault. The appellant argues the statute fails the “undue burden” test set by the U.S. Supreme Court and violates the equal-protection clause of the Iowa Constitution by placing “burdensome restrictions” on women seeking abortions not imposed on other medical procedures.

The State argues that the act does not violate the Iowa Constitution nor pose an undue burden on women, and there is no evidence on the record that women would be prevented from obtaining abortions under the statute. The State argues that abortion is not a fundamental right under the Iowa Constitution – that is, a right that is explicitly or implicitly enumerated in the constitution or “deeply rooted in our history and tradition.”

Six outside groups filed amicus curiae briefs in this case.

Briefs in support of Planned Parenthood were filed by the American College of Obstetricians and Gynecologists; a group of biomedical ethicists; the Iowa Coalition Against Domestic Violence; four constitutional law scholars and teachers; and, the National Abortion Federation.

A brief in support of the State was filed by the Iowa Catholic Conference. [Disclosure: The Catholic Conference brief was written in part by Nyemaster Goode attorney Frank Harty.]

Gregory Baldwin v. City of Estherville

Set for argument 1:30 p.m. Feb. 14.

The Iowa Supreme Court is asked in this case to answer a certified question from the U.S. District Court for the Northern District of Iowa on whether government officials have qualified immunity from liability in suits brought under the Iowa Constitution’s Bill of Rights.

Gregory Baldwin sued the City of Estherville, also naming two city police officers personally, for illegal search and seizure under the Iowa and U.S. constitutions. The case was removed from Emmet County District Court to federal court, which ruled the officers had qualified immunity for violating Baldwin’s rights under the U.S. Constitution.

But the federal court stayed a decision on immunity under the Iowa Constitution pending an answer from the Iowa Supreme Court to this question: “Can a defendant raise a defense of qualified immunity to an individual’s claim for damages for violation of Article I, Section 1 and Section 8 of the Iowa Constitution?”

The city urges the Iowa Supreme Court to adopt a qualified-immunity defense for violations in such cases, which will protect the government’s ability to “provide traditional services while ensuring that talented candidates are not deterred from service by the threat of litigation.”

Baldwin argues that a qualified-immunity defense is incompatible with a violation of the Iowa Constitution’s Bill of Rights, which is “the ultimate and principal expression of public policy in Iowa,” whereas qualified immunity is “wholly underpinned by lesser public policy considerations.”

Three amicus curiae briefs were filed in this case. Two were submitted in support of the city and the officers, one by Attorney General Tom Miller on behalf of the State and the other by the Iowa Communities Assurance Pool, a self-insurance program for Iowa public bodies. A brief supporting Baldwin was filed by the Iowa Association for Justice, an organization of Iowa trial lawyers.

Iowa Supreme Court preview: Is Iowa’s law protecting hog confinements from lawsuits unconstitutional?

By: Rox Laird on February 9th, 2018

The Iowa Supreme Court will hear arguments Feb. 12 in a case that could dramatically affect all legal disputes between rural residents and livestock confinement operators. The session is scheduled for 7 p.m. Monday at the Judicial Branch Building in Des Moines to accommodate members of the public.

The justices will hear oral arguments in one case – Honomichl v. Valley View Swine – on whether an Iowa statute that gives livestock operations limited immunity from nuisance liability violates the inalienable rights clause in Article I, Section 1 of the Iowa Constitution.

A ruling striking down the statute could open the door to more lawsuits against confined-animal feeding operations (CAFOs) across the state. The pork industry already faces numerous suits, according to the defendant-appellants, who say there have been as many as 15 individual nuisance suits pending at one time in nine Iowa counties involving hundreds of plaintiffs.

The lawsuit that led to this appeal was initially filed by 70 individual plaintiffs, subsequently divided into three groups by the trial court with designated “bellwether” plaintiffs representing each group. The plaintiff-appellees testified in depositions that odors from the nearly 10,000 hogs confined nearby prevent outdoor activities, such as cookouts or hanging out laundry, and cause headaches and nose and throat irritations.

The parties’ arguments are bolstered by two amicus curiae (friend of the court) briefs filed with the Iowa Supreme Court, one in support of the defendant-appellants by the Iowa Pork Producers Association and the Iowa Farm Bureau Federation, and one in support of the plaintiff-appellees by the Iowa Association for Justice, a trial lawyers group.

At the heart of the case is Iowa Code section 657.11, which says an animal-feeding operation “shall not be found to be a public or private nuisance” so long as it complies with State and federal laws and regulations. An exception is made for a confinement facility that both “unreasonably and for substantial periods of time” interferes with a person’s “comfortable use and enjoyment of the person’s life or property” and that fails to use “existing prudent generally accepted management practices reasonable for the operation.”

The defendants, who built hog-confinement buildings on two sites in Wapello County in 2013, appeal a ruling on pre-trial motions by Wapello County District Judge Annette Scieszinski that the immunity statute is unconstitutional as applied to the plaintiffs, who have lived in their homes since before the hog-confinement buildings were erected.

The Wapello County trial court’s ruling is based on a 2004 Iowa Supreme Court ruling, Gacke v. Pork Xtra, which found the immunity statute unconstitutional under the takings clause of the Iowa Constitution because it amounted to taking private property for the benefit of confinement operators without just compensation.

The Court in Gacke limited the holding as it applied to the plaintiffs in that suit based on their proximity to the hog facility, how long they had lived there, how much they had invested in their property and whether they received any direct benefits from the confinement facility.

The hog-confinement operators argue that the Wapello County District Court wrongly ruled that the statute likewise violated the constitutional rights of the plaintiffs in this case because the trial court did not base its ruling on a factual analysis specific to the Wapello County plaintiffs.

“The ruling purports to follow in the footsteps of the Gacke Court in holding the statute unconstitutional ‘as applied’ to plaintiffs,” they argue in a brief submitted to the Iowa Supreme Court. “However, unlike Gacke, the ruling is devoid of facts and analysis necessary to establish an ‘as applied’ challenge sufficient to overcome the presumption of validity afforded to section 657.11 and all statutes enacted by the General Assembly.”

The confinement operators urge the Court to affirm the constitutionality of section 657.11, which they argue strikes a proper balance between the rights of neighbors and farmers and is an appropriate use of the Legislature’s powers to protect a vital Iowa industry from being assaulted by lawsuits.

The neighboring residents, in a brief submitted to the Court, say the trial court reached the correct conclusion and they urge the Iowa Supreme Court to uphold it. But they urge the Court to go further and declare the statute unconstitutional on its face “because it unduly oppresses an individual’s right to use and enjoy property by denying her right to recover for an injury to the same.”

The Pork Producers and Iowa Farm Bureau, in their amicus brief, urge the Court to clarify Gacke to take into account more stringent regulations of animal-confinement operations that have been enacted since that decision was handed down 14 years ago.

“Because of the drastic changes in statutory and regulatory requirements for livestock facilities since the Gacke case,” the brief argues, “it is no longer workable or effective to compare plaintiffs in today’s nuisance cases to the Gackes in determining constitutionality of the statute because the Gacke facts would be impossible to repeat under the current statutory and regulatory requirements.”

Indecent-exposure conviction required physical presence, Iowa Supreme Court rules

By: Rox Laird on February 6th, 2018

The Iowa Legislature did not make clear that the crime of indecent exposure could be committed by sending a text message, the Iowa Supreme Court said in a Feb. 2 decision.

The Court overturned the indecent-exposure conviction of Jose Lopez in Buchanan County District Court for sending a text message containing an image of his genitals to a woman he had been romantically pursuing against her wishes.

The question before the Court:  Does Iowa’s indecent-exposure statute make it illegal to send an electronic image of one’s genitals to a person who does not welcome the message, or must the person doing the exposing be in the physical presence of the victim?

The Court, in the unanimous decision written by Justice Daryl Hecht, said a physical presence is required.

The decision turned on the meaning of “exposes,” and the Court concluded that the term, for purposes of interpreting the statute, does not mean an image sent by electronic means, such as a cell phone text.

Since the statute does not define the term “exposes,” the Court turned to the dictionary, which defines the word as “to lay open to view,” “lay bare,” “make known,” “set forth.”

“However, nothing in the dictionary definition or our prior caselaw explicitly addresses whether causing one’s genitals to be visible or open to view is limited to only in-person scenarios or if it can be done through electronic communication,” Hecht wrote.

The State argued that “one exposes one’s genitals by transmitting an image of them via text message because the image is made visible for a recipient,” while Lopez argued that transmitting an image of one’s genitals to another person does not equate to exposure.

The Court, finding both views plausible, concluded the statute is ambiguous and turned to the process of statutory interpretation.

In a 1983 decision, State v. Bauer, the Court said the Legislature’s purpose in drafting the indecent-exposure statute was to render indecent exposure “essentially a visual assault crime.”

Thus, Hecht wrote, “Because the offense of indecent exposure constitutes a crime of visual assault, we conclude the meaning of the word exposes in [the indecent-exposure statute] must be understood as having features of temporal and physical proximity.”

The Court, however said in a footnote that its decision is “narrow and limited to the electronic transmission of a still image of the sender’s genitals or pubes. Our conclusion in this case does not address a situation in which the sender’s genitals or pubes are viewed via a real-time electronic transmission, such as through Skype, FaceTime, or similar technology.”

Eighth Circuit Court of Appeals now at full strength

By: Rox Laird on February 1st, 2018

The U.S. Court of Appeals for the Eighth Circuit is up to full strength with the Senate confirmation on Jan. 30 of David Stras of Minnesota.

Stras was a justice of the Minnesota Supreme Court prior to his appointment by President Donald Trump in May. He joins two other Trump nominees – Ralph Erickson of North Dakota and Steven Grasz of Nebraska – who were confirmed last year.

The Eighth Circuit has jurisdiction for federal court appeals in Iowa and six other Midwest states.

Two of 11 active judges on the Court are Iowans: Jane Kelly of Cedar Rapids and Steven Colloton of Des Moines.

See our Oct. 5 post for more background on the Eighth Circuit nominations.

Iowa Supreme Court reduces frivolous litigation penalty assessed against a party.

By: Rox Laird on January 29th, 2018

A trial court’s sanction for frivolous litigation in a protracted legal battle over a Johnson County land development was reduced by the Iowa Supreme Court. The sanction was levied against the party pressing the litigation, not his lawyer. And the bill for tying up the courts with the case for seven years will cost him $30,000.

Ordinarily a frivolous litigation sanction goes against the lawyer, but in some cases the party bringing the litigation can be made to bear the cost. This is one such case.

Carl Fobian, president of Fobian Farms Inc., pursued the lengthy and complex litigation after it was discovered that, because of a surveyor’s error, a restaurant was built 1 foot over property line onto land in which he had a mortgage interest.

The faulty survey ultimately was corrected and Fobian was compensated for the encroachment, but not before the case was twice reviewed by the Iowa Court of Appeals and twice remanded to the trial court.

Along the way there was a steady stream of claims, counter-claims, cross-claims, motions, resistances, pleadings and re-pleadings that stretched over seven years. An aggravating factor was that the trial court saw Fobian’s actions as a scheme to get title to the restaurant, and the scheme included a lawsuit characterized as “bullying” the surveyors into retracting an affidavit correcting the survey error.

The lengthy litigation so tried the patience of the trial judge that he assessed $145,000 in legal fees and expenses against Fobian personally.

The Iowa Supreme Court, in a 5-2 ruling handed down Jan. 26, reduced the amount of the sanction against Fobian. Writing for the Court, Justice Thomas Waterman said the Court of Appeals settled the question of whether the sanction against the party was appropriate, so the question before the justices was how much.

In the opinion for the majority joined by Chief Justice Mark Cady and Justices Edward Mansfield, Daryl Hecht and Bruce Zager, Waterman said the sanction needed to be high enough to deter the party from abusing the system but not the full $145,000, which included legitimate legal fees expended in the case. Thus, the Court settled on $30,000.

“The misconduct in this case was willful and not a mere isolated event,” Waterman wrote. Iowa court rules allow a trial judge “to sanction a represented party instead of or in addition to the lawyer who signed the pleading,” he said, adding that “a monetary sanction imposed on a represented party sends a message that can assist lawyers counseling other clients to refrain from filing improper or frivolous pleadings.”

Justice David Wiggins filed a dissenting opinion, joined by Justice Brent Appel, in which he objected to the idea of sanctioning the party rather than his lawyer.

“Courts should hold attorneys, not their clients, accountable for filing frivolous lawsuits.” Wiggins wrote. “The only exception to this general rule is where clients have knowledge of their attorneys’ wrongdoing.”

Iowa Supreme Court makes a call for the State in ‘Field of Dreams’ film case

By: Rox Laird on January 22nd, 2018

The Iowa Economic Development Authority had the authority to claw back tax credits approved for a documentary film about Iowa’s mystical Field of Dreams baseball story, the Iowa Supreme Court said in a ruling handed down Jan. 19.

The Economic Development Authority revoked economic-development tax credits it had approved for Ghost Player, a film company making a documentary called “Field of Dreams Ghost Players,” after a State investigation concluded that financial support for the project had been fabricated to inflate the value of credits by $250,000.

Ghost Player sued, and the Polk County District Court ruled in its favor, saying the State was precluded from revoking the tax credits because the Economic Development Authority’s initial approval of the credits was a final agency decision.

The Supreme Court, in a unanimous decision by Justice Brent Appel, disagreed and overturned the lower court.

The issue is a matter of administrative procedure: Was the Economic Development Authority precluded, as a matter of law, from reversing its earlier approval and clawing back the tax credits? Ghost Player argued it was, because the original approval of tax credits was a final agency decision. The State argued that its action approving the credits was an administrative, not an adjudicative, process, and thus subject to reconsideration.

In siding with the State, the Supreme Court cited two of its own precedents – Bennett v. MC and George v. Zinser – which tied the legal doctrine of claim preclusion to judicial-style actions that have procedural rights for applicants and an adversarial process, as opposed to administrative actions that have neither.

Justice Appel said the Iowa Supreme Court has not used a bright-line rule in these cases, but the Iowa statute and the administrative rules regulating the film tax credits in this case clearly show the agency’s original action was an administrative, not adjudicative, proceeding.

“Adjudications are ordinarily a three-cornered proposition, with contesting parties jousting before a passive third-party tribunal,” Appel wrote. “Here, the parties were binary. There were no adversaries making arguments and proving their cases before a third party as is generally required for adjudication. The IDED staff were acting more like tax accountants than adjudicators.”

Thus, in this case, the umpire’s call goes to the State.

Iowa Supreme Court Preview: Justices will hear arguments in 10 cases this week

By: Rox Laird on January 15th, 2018

The Iowa Supreme Court will hear arguments in 10 cases Jan. 17 and 18 that raise an array of issues ranging from whether a father must pay his daughter’s sorority dues to a question of a county’s liability for a traffic accident. Two other cases will be submitted to the Court without oral argument.

Following are previews of four of the cases set for argument.

State v. Michael Kelso-Christy

(Set for argument Jan. 17.)

Michael Kelso-Christy appeals his conviction of burglary with intent to commit sexual abuse because, he argues, the sex was consensual. The question, however, is not what was consented to but with whom.

Kelso-Christy used a fake Facebook account to arrange a sexual encounter by impersonating the alleged victim’s former high school classmate. She agreed to meet the “classmate” at her home and to be blindfolded. She discovered Kelso-Christy’s fraud after the encounter when she contacted the classmate she intended to meet.

Kelso-Christy argues that Iowa law defines sex abuse as sex committed “by force or against the will” of the victim, not as sex where consent is obtained through the sort of fraud he perpetrated.

The State responds that the woman consented to sex but not with Kelso-Christy. “Whether the impersonation of another is accomplished by use of social media and a blindfold or simply a darkened room in the middle of the night,” the state argues, “the fact remains that a person deceived as to the very identity of her sexual partner has not actually consented to that sexual encounter.”

Banwart v. 50th Street Sports

(Set for argument Jan. 17.)

Rhonda Banwart appeals a Polk County District Court’s dismissal on summary judgment of her dram shop liability suit against a bar that served alcohol to a woman who rear-ended her car shortly after leaving the bar.

The driver was clearly intoxicated at the time of the accident based on a police officer’s observations and a breath-test reading. The question is whether servers at the bar “knew or should have known” she was or was likely to become intoxicated when serving her. The District Court ruled there was insufficient evidence in the record to reach that conclusion.

Banwart says the case should be remanded to let a jury decide. It was uncontested that the woman was intoxicated at the time of the accident, she argues, and a reasonable person working in the bar should have made that observation.

The bar owner responds that Banwart fell short of meeting the burden of showing that it knew the woman was intoxicated. The bar staff saw nothing in her behavior to suggest she was intoxicated, and it argues the Court should distinguish between what the bar staff observed when she was in the bar versus what the officer observed at the accident scene.

Larsen v. Larsen

(Set for argument Jan. 17.)

Lynn and Roger Larsen agreed when they divorced to split the cost of sending their daughter to college, but Roger objected when bills were presented for their daughter’s expenses at Iowa State University. Roger argues that if his daughter contributed more toward her education with scholarships, student loans and part-time jobs, his contribution could be cut to zero (in fact, she’d have money left over).

Roger specifically argues he shouldn’t have to pay for his daughter’s sorority dues. Although the Iowa Supreme Court ruled in 2004 that a divorced couple were required to pay for their child’s sorority dues, Roger argues that doesn’t apply to his case because the sorority dues were stipulated in that couple’s divorce settlement but not in his.

Lynn argues in response that sorority life can be an important part of the college experience.

Indeed, the Iowa Court of Appeals, which upheld the Story County District Court’s decision on the Larsens’ college fees, said “reasonable expenses associated with the social side of college may be included in the total costs of attendance,” which may be a sorority for some, a science club or intramural sports for others.

Johnson v. Humboldt County

(Set for argument Jan. 18.)

The Court in this appeal is invited to revisit the continuing validity of a legal doctrine the justices just addressed in 2016.

Kaitlyn Johnson was severely injured in 2013 when the pickup truck she was riding in left a paved county road, entered a ditch and collided with a concrete barrier erected within the county’s right-of-way 40 years earlier by a private land owner. The Humboldt County District Court ruled on summary judgment that Johnson’s suit was barred by the “public-duty doctrine,” which means the county is not liable because it owes a duty to the public at large, not to a specific individual.

The Iowa Supreme Court in 2007 said the public-duty doctrine “protects municipalities from liability for failure to adequately enforce general laws and regulations, which were intended to benefit the community as a whole. The public duty rule is not technically grounded in government immunity, through it achieves the same results. Unlike immunity, which protects a municipality from liability for breach of an otherwise enforceable duty to the plaintiff, the public duty rule asks whether there was any enforceable duty to the plaintiff in the first place.”

The Court last dealt with this issue in Estate of McFarlin v. State two years ago in which Justice Daryl Hecht argued in a dissent (joined by Justices Brent Appel and David Wiggins) that the rule is an anachronism that should be discarded or narrowed. The question is whether any of the four justices who signed on to the majority opinion in that case have had a change of heart.

Two amicus curiae (friend of the court) briefs were filed with the court in this case: Five groups representing Iowa cities and counties, among others, argue in support of the county; a trial lawyers organization argues in support of Johnson.

Jahnke v. Deere & Company

(Set for argument Jan. 18.)

Matthew Jahnke sued Deere & Company for discrimination on the basis of age, national origin, and sex under the Iowa Civil Rights Act when he was demoted from his position as manager of a John Deere factory in China. The Polk County District Court denied Deere’s motion for summary judgment, and the company now appeals that ruling.

The core issue in this case is whether the Iowa Civil Rights Act applies to an employer’s decision regarding an employee who is working on assignment overseas.

[Disclosure: Nyemaster Goode represents Deere & Company in this appeal.]

Search ends at personal belongings in a targeted-warrant case, the Iowa Supreme Court rules

By: Rox Laird on January 11th, 2018

Danielle Brown was one of five people in the bedroom of a house when a Des Moines police SWAT team swarmed in to execute a warrant naming a male occupant of the house to be searched for drugs and weapons. Brown was not named in the warrant but police searched her purse and found a small amount of marijuana inside.

She was subsequently convicted of possession of marijuana.

The Iowa Supreme Court Jan. 5 reversed a ruling of the Polk County District Court admitting evidence from the search of Brown’s purse, however, saying it violated the Iowa Constitution’s equivalent of the Fourth Amendment protection against unreasonable searches and seizures.

In an opinion written by Justice Brent Appel joined by Chief Justice Mark Cady and Justices David Wiggins and Daryl Hecht, the Court ruled that a person not named in a search warrant has an expectation of privacy for personal effects – such as a purse – that they effectively have in their possession.

Justice Thomas Waterman disagreed with the majority in a dissenting opinion joined by Justices Edward Mansfield and Bruce Zager that argued for a clear rule giving police officers flexibility in executing search warrants in such situations.

The U.S. Supreme Court has ruled that police with a valid search warrant may search entire premises, including containers. But they may not search a person who is not named in the warrant who happens to be present during the search. Federal and states courts are divided, however, on the question of whether a visitor’s personal effects, such as a purse, may be searched.

Courts have used several tests to assess the legality of searches of visitors’ personal belongings, including whether the person has actual possession, say by wearing a coat or holding a briefcase or clutching a purse.

The Iowa Supreme Court majority rejected such a strict approach in this situation, however.

“A holding of this court that a visitor loses all reasonable expectations of privacy when visiting a premises by hanging a coat on a rack or placing a purse on a chair or on the floor, simply does not comport with reality,” Appel wrote. “A visitor who placed her purse on a sofa would be shocked to learn that her host, let alone government agents, was free to rummage around the purse looking for interesting or entertaining items while the visitor was in the other room.”

When Des Moines police were conducting the search, Brown was kneeling with her arms handcuffed behind her back, and her purse was on the floor nearby.

The majority said the legal theory of “constructive possession” should be applied in this case, which means that even though Brown was not holding the purse in her hands she was in “constructive, if not actual possession of the purse.” Thus, it was off limits to the police.

Writing for the three justices in dissent, however, Waterman said there were good reasons why Brown should have been covered by the search warrant.

When Des Moines police entered the bedroom at 5:45 a.m. Brown was smoking methamphetamine, Waterman pointed out, and she was “participating in an illegal activity directly related to the sale of methamphetamine, which was the reason for searching the house.”

Other courts, he said, rely on visitors’ perceived connection to the activity targeted by a warrant to uphold a search of the visitors’ personal effects.

He said the Iowa Supreme Court has traditionally preferred bright-line rules when police officers have to make quick decisions in balancing public safety and individual rights. “Such clarity and ease of application is especially important during chaotic police raids on a drug den,” he said.

In short, Waterman wrote: “In my view, the search of Brown’s purse was constitutional.”

Question to Iowa Supreme Court: Who are the legal parents of a child born of a surrogate mother?

By: Rox Laird on December 19th, 2017

A case before the Iowa Supreme Court this term poses profound questions of law, biology, genetics and human rights:

Who are the legal parents of a child produced from donated genetic material and born of a surrogate mother?

The parties characterize the case as a choice between enforcing a straightforward legal contract and legalizing the sale of children as commodities.

P.M. and C.M., as they are identified in the court documents, are a married couple who entered into a gestational surrogacy contract with a woman, T.B., using anonymously donated ova fertilized by P.M.’s sperm. T.B. gave birth to twins 13 weeks prematurely, and one twin died eight days later. T.B did not inform the Ms of the births and, after bonding with the surviving infant, she changed her mind about giving up the child, identified as Baby H.

The Ms sued to enforce the contract and to terminate T.B.’s parental rights, arguing that P.M. is the biological father as confirmed by genetic test results that ruled out T.B. as the mother. The Linn County District Court ruled in their favor on summary judgment.

In her appeal, T.B. argues that she is legally the mother of the child – as a matter of biological and scientific fact – that the contract with the Ms is unenforceable absent an Iowa statute recognizing such gestational surrogacy contracts. She further argues that enforcing the contract would violate her constitutional rights of due process and equal protection and those of the child.

The Court heard oral arguments in the case on Dec. 13, and the exchanges between the justices and the appellate lawyers revealed the complex legal and scientific challenges involved in defining motherhood in the age of in vitro fertilization.

In fact, four parties named in this appeal have a legal, genetic, biological or emotional interest in the child:

  • The man, who donated the sperm, who with his wife had a contract to take possession of the child at birth.
  • The woman who carried the baby to term, nursed and cared for her for three-and-a-half months, and her husband.

A fifth person arguably may have an interest, as well: the anonymous woman who donated the ova.

The justices came prepared with questions:

If the surrogate mother wins, does the genetic father have a right to visitation? Does he pay child support? Do ordinary contract principles apply to an agreement regarding the birth and parentage of a child? What right did the Ms have to enter into this contract? What right did the surrogate mother have to break it? What about artificial insemination and birth outside the womb, should the science permit?

What legal principles should guide the Court in the absence of a clear judicial precedent or statutory law regarding gestational surrogacy? Should the Court establish those principles, or leave that to the Legislature?

Early the oral argument, Justice Thomas Waterman posed a question to Harold Cassidy, the surrogate mother’s lawyer: Is this a case of buying and selling individuals?

That issue emerged throughout the argument, as Cassidy repeated the assertion that the surrogacy contract is the equivalent of selling a child: “This is a case of manufacturing a child in exchange for money,” he said at one point. “If that is not the exchange of a child for money, I don’t know what is.”

Justice David Wiggins posed several questions about the legal basis for the surrogacy contract: Where, he asked, does the law say that just because you carried the child that makes you the mother?

Cassidy: The Iowa Legislature has not addressed that question, but the science says the fact that she carries the child, she is the mother. That has always been considered the core of civilized society.

Wiggins: This is the first case that has come to the Court where the mother is not genetically related to the child. “Are you telling me genetic material doesn’t mean anything?”

Cassidy: We have scientific evidence that she is the mother.

Philip DeKoster, the attorney representing P.M. and C.M., rejected the idea that the surrogacy contract amounted to selling a child. There is no genetic connection between surrogate mother and the child, he said. There is no criminality; this is not selling children. The genetic materials were the Ms’ to sell and then the child would come back to them.

Justice Edward Mansfield, noting the elaborate law of adoption in Iowa, said he found the lack of due process in surrogacy contract curious: “Here, you had a contract.” He said. “That’s it, no due process. Isn’t that one-sided? Isn’t that kind of a strange way for the law to work?”

Justice Brent Appel dug into the idea of children as commodities: “My problem with this case is that we all agree that you can’t sell children,” he said. “On the other hand, we agree you can sell corn as a commodity. This is not the sale of a child. It is not the sale of corn. It is somewhere in between. What I’m struggling with is that the law hasn’t anticipated, and the Iowa Code hasn’t anticipated, this sort of case.”

Cassidy urged the court not to fill in the blanks left by the Legislature, however. The legal rules for surrogacy should be based careful consideration by a legislative body after years of study. “This Court should not write it for them,” he said.”

Cassidy made a similar argument in his brief submitted to the Court:

“The terms of the surrogacy contract has as one of its principle aims the destruction and elimination of the mother-child relationship,” he wrote. “It is intended to deprive the child of the mother who carried the child in utero, with whom the child bonded, and learned to know, and love. The cherished role of a mother and her relationship with her child, at every moment of life, has intrinsic worth and beauty. This relationship, its unselfish nature and its role in the survival of the race, is the touchstone and core of all civilized society. Its denigration is the denigration of the human race. The decision of the State of Iowa to set on any irreversible course that deprives children of their mother is not one for the court.”

In response, DeKoster in his appellate brief argued the District Court got it right:

“The District Court correctly recognized that Iowa Law — both statutory and case law — treats the genetic (or biological) connection as the defining factor for parentage…. Parentage in Iowa turns solely on genetics. The Iowa legislature defines a ‘parent’ as ‘a biological or adoptive mother or father of a child….’ Black’s Law Dictionary defines ‘biological father’ as ‘the man whose sperm impregnated the child’s biological mother.’ It defines ‘biological mother’ as ‘[t]he woman who provides the egg that develops into an embryo. With today’s genetic-engineering techniques, the biological mother may not be the birth mother, but she is usually the legal mother.’ These definitions, again, indicate genetics, not gestation, is key.”

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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.