Quit horsin’ around! Your 38-year-old horse doesn’t make you a farmer.

By: Administrator on March 10th, 2017

By Ryan Leemkuil

Does a single horse grazing on your property make you a farmer? 

Not so, said a majority of the Iowa Supreme Court in Porter v. Harden.  The case arose from an eviction dispute.  Richard and Janice Harden lived for many years on a rural property in Wayne County.  They weren’t alone.  The Hardens’ 38-year-old horse lived there too.  (In case you’re wondering, that’s a pretty old horse.  According to Wikipedia, the oldest horse ever, Old Billy, lived to be 62. In more modern times, Sugar Puff holds the crown at 56. But the typical life expectancy is around 25 to 30 years, so it’s fair to say the Hardens’ horse—whose name the opinion does not provide—was a resilient creature.)

But back to the case.  The Porters, who owned the property, sought to evict the Hardens.  The Hardens responded by claiming they had a farm tenancy, which requires additional hurdles to terminate.  And what was the basis for this claim?  You guessed it—the old gray mare.  The law, you see, defines a farm tenancy as one that involves livestock,  and livestock is defined as “an animal.”  “An” animal, the Hardens claimed, is one animal–or one old horse.

The Supreme Court didn’t buy it. Despite the “an animal” language, the Court read the statute to include a kind of “primary purpose” test, meaning that the land must be “mostly or primarily devoted to crops or livestock.”  If such a test weren’t imposed, the Court explained, a city dweller with chicken or a small garden could proclaim their property a “farm” and invoke the law’s more stringent lease termination procedures. 

Justice Wiggins dissented.  He thought the statute was clear.  It says “an animal” and a horse—even a 38-year-old one—is “an animal.”  In his view, the Court’s primary purpose test simply created uncertainty.  What about hobby farmers or people who farm but nonetheless work jobs in the city?  Are those farm properties?  For now, we just know one old horse isn’t enough.

*Ryan Leemkuil is legal counsel at Fareway  Stores and before that was an attorney at Nyemaster Goode.

Police lights = Fourth Amendment seizure? Maybe

By: Administrator on November 22nd, 2016

By Ryan Leemkuil

Would you feel free to drive away if a police officer pulled behind your parked car and turned on his cruiser’s emergency lights?  Variants of this question were recently before the Iowa Supreme Court, the Eighth Circuit, and the U.S. Supreme Court.  So what’d they say?  Does an officer’s use of emergency lights constitute a seizure under the Fourth Amendment?

– Iowa Supreme Court: Yes! At least when coupled with other authoritative acts.  Emergency lights aren’t “per se coercive,” but they at least “imply a police command to stop and remain.”  So when you use the lights, block an exit, and tell someone to “step down here and talk to me,” that’s a seizure

– Eighth Circuit: No! At least if the officer keeps the lights turned down to the “wig wag” setting and doesn’t crank it up to 11 with the “full light bar.”

– U.S. Supreme Court: We don’t know. It denied this cert petition, which noted a split of authority on the issue.

Next time you see those wig-wag lights behind you, keep driving at your own risk. 

*Ryan Leemkuil is legal counsel at Fareway  Stores and before that was an attorney at Nyemaster Goode.

Eighth Circuit: Your Facebook post could get you kicked out of school

By: Administrator on October 26th, 2016

By Ryan Leemkuil

Can a public college kick you out of school for stuff you post on Facebook?  Yes, according to the Eighth Circuit’s decision today in Keefe v. Adams, a case that drew interest from numerous free speech and anti-censorship groups. 

Craig Keefe was a student in the nursing program at Central Lakes College.  He was also, like millions of college students, a Facebook user.  But Keefe didn’t just post cat pics and news stories.  No, Keefe posted about his anger problems, called another student a “stupid bitch,” and said he was going to give someone a hemopneumothorax—a puncturing of the lung that allows air and blood to flood the lung cavity (yikes!).  Perhaps unsurprisingly, a couple students complained to faculty that Keefe’s posts made them “uncomfortable and nervous,” and the school ultimately expelled Keefe for violating school policies on professionalism.

Keefe responded with a lawsuit, claiming that his expulsion violated his free speech rights under the First Amendment.  Keefe framed his argument broadly and focused on the fact that his speech was made in online, off-campus Facebook posts.  According to Keefe, a college student may not be punished for off-campus speech unless it is speech that is unprotected by the First Amendment, such as obscenity.

The Eighth Circuit, describing Keefe’s position as “extreme,” sided with the school.  The Court began by noting that courts have long upheld academic requirements of professionalism, especially for programs training medical professionals.  The Court then rejected Keefe’s distinction between online and on-campus speech.  “A student may demonstrate an unacceptable lack of professionalism off campus,” Judge Loken explained, “as well as in the classroom, and by speech as well as conduct.”  Thus, a college may require compliance with professional standards off campus so long as the school’s restrictions are “reasonably related to legitimate pedagogical concerns.”  That was met here, the Court explained, because Keefe’s Facebook posts, coupled with his lack of remorse, demonstrated to the school that he was “unable to meet the professional demands of being a nurse.”

Judge Kelly dissented.  In her view, the school’s academic concerns were beside the point, because Keefe’s speech was “off-campus, was not school-sponsored, and cannot be reasonably attributed to the school.”  Judge Kelly also expressed concern for invoking generic codes of conduct—“respect and compassion”—as the basis to restrict speech.  Echoing the broader critiques of “safe spaces” and campus speech codes, Judge Kelly warned that these vague standards“could easily be used to restrict protected speech” and may not give students enough notice of what is or is not allowed. 

*Ryan Leemkuil is legal counsel at Fareway  Stores and before that was an attorney at Nyemaster Goode. 

A conversation with the Court: Three Iowa Supreme Court justices sit down with Rox Laird to talk about life on and off the bench

By: Administrator on October 26th, 2016

When he needs a diversion from the job, Chief Justice Mark Cady loses himself in home improvement projects. Justice Daryl Hecht sings and plays an acoustic guitar. Justice Brent Appel plants trees on the family’s acreage.

The three justices, who are standing for retention in the Nov. 8 election, recently sat down with On Brief contributor Rox Laird to share these insights about their lives and to talk about their careers and work on the court. The interviews were published this week in the Iowa State Bar Association’s monthly magazine, The Iowa Lawyer.  They are also posted at judicialfacts.org, the association’s website that contains information about the statewide judicial-retention election.

Iowa Supreme Court Water Works Argument: Will the Iowa Supreme Court reverse precedent through a certified question?

By: Administrator on September 13th, 2016

By Ryan Koopmans

When the Des Moines Water Works attorney steps up to argue tomorrow, he’ll likely be swimming up stream–if for no other reason than the fact that the justices are not hearing a case but instead are being asked to decide a “certified question” from a federal court.  That procedural posture could dictate the outcome of the appeal. 

Normally, when the seven justices of the Iowa Supreme Court sit down to hear oral arguments, they have a case in front of them. The entire case. There has been a lawsuit filed in a state court, the state district court has entered a ruling that one party doesn’t like, and then the case goes up to the Supreme Court for its review. 

That is not the situation here.  The Des Moines Water Works filed its lawsuit against the ten drainage districts in federal (not state) court, so that is where the case sits.  The Iowa Supreme Court doesn’t hear appeals from federal district courts, of course, but federal courts can refer, or “certify,” questions of state law to a state’s highest court.  And that’s what’s happened here.  To assist him in deciding the federal lawsuit, Federal District Court Judge Mark  Bennett certified several questions to the Iowa Supreme Court, with the main one being whether the Iowa drainage districts have immunity from all lawsuits for damages.  (For more on that, see Rox’s earlier post.)

The Iowa Supreme Court has ruled, on several occasions, that they do.  So if Judge Bennett were to follow those cases, he would likely have had to dismiss most of Des Moines Water Work’s claims.  But, in response to the arguments made by Water Works, Judge Bennett has essentially asked the Iowa Supreme Court whether it would like to reconsider (i.e., reverse) those precedents.  

That’s why the Water Works is swimming upstream.  Getting the Iowa Supreme Court to reverse a prior decision is always tough, but the posture in which Water Works is trying to accomplish that reversal makes it even more difficult.  

The Iowa Supreme Court has said, as recently as 2004, that it will not generally use the certified question process to reconsider precedent. And Justice Wiggins has put it more starkly than that.  His view, which is taken from another court, is that “the purpose of certification is to ascertain what the state law is, not when the state court has already said what it is, to afford a party an opportunity to persuade the court to say something else.”  

So while some justices might be open to reconsidering whether drainage districts should have immunity for all actions for damages, it may be that they’re not willing to do so under these circumstances–where they don’t have a case in front of them but instead are simply answering generic legal questions that were referred by a federal court.

It’s still Cady’s Court: Our statistical review of the Iowa Supreme Court’s 2015-16 term

By: Administrator on August 25th, 2016

By Ryan Koopmans

Here’s a look at the Iowa Supreme Court’s 2015-16 term, by the numbers.  If there’s a theme this year, it’s what we put in the title: It’s still Cady’s Court. In addition to being the Chief–which, by itself, is enough to give the Court it’s name–Chief Justice Cady was in the majority in all but three cases and in every case but one in which the justices split 4-3.  So where Cady goes, the Court goes.

Basic Case Stats: The Iowa Supreme Court issued opinions in 96 cases this term; three additional cases were dismissed, and one case (State v. Pettijohn) was held over for the 2016-17 term.  (See our previous post: SCOTUS ruling on blood-alcohol tests leads Iowa Supreme Court to delay boating-while-intoxicated case until next term.)

Of those 96 cases, 13 were disciplinary orders (10 of them related to attorneys and 3 related to judges), so that leaves 83 appeals (the type of cases that we normally think of when discussing Iowa Supreme Court decisions). That’s consistent with the caseload for past terms: 83 appeals in the 2012-13 term, 87 in 2013-14, and 86 in 2014-15.

As far as subject-matter goes, the 83 appeals break down into these (sometimes rough) categories: 45 civil; 35 criminal; and 3 juvenile.

Direct Appeal vs. Further Review: Iowa has a deflective appellate system, which means that even though we have an intermediate appellate court (the Court of Appeals), all trial-court appeals go to the Supreme Court, which then decides whether to keep the case or transfer it to the Court of Appeals. Most cases (over 95%) are transferred, but the losing party at the Court of Appeals can ask the Supreme Court to grant “further review” of the Court of Appeals’ decision.

This term, 55% of the Supreme Court’s cases (46 of the 83) took that path: they were transferred to the Court of Appeals and then reviewed by the Supreme Court. That’s a slight change from past terms.  Since the Iowa Supreme Court started the term system (and until this year) the Supreme Court’s further-review docket has represented less than half of its appeals: 43% in 2012-13; 43.6% in 2013-14; and 46.5% in 2014-15.

The Supreme Court’s criminal docket this term was almost entirely a further review docket.  Of this term’s 35 criminal cases, seven were screened for direct Supreme Court review, but two of those case were certiorari proceedings (meaning that it wasn’t the typical criminal appeal) and one was an interlocutory ruling (again, not typical).  Of the four standard appeals, one (State v. Walden) was a review of a district court’s order dismissing a criminal charge as time barred (another usual order), and another case (State v. Querrey) was just a tag-along to the Supreme Court’s decision last term in State v. Louisell.  So that leaves just two criminal cases that were heard directly by the Supreme Court–State v. Seats and State v. Senn.  Both were decided on 4-3 vote and both involved constitutional issues.  So the takeaway, it seems, is that if the Supreme Court doesn’t transfer a criminal case to the Court of Appeals, it’s either an unusual ruling or a hotly contested issue.  (In Senn, the justices split 4-3 on the outcome but 3-1-3 on the legal reason for the outcome.)

Dissent: The Cady Court continues to disagree more than its predecessors.  This term, a third of the Court’s decisions (28 of 83) were non-unanimous.  That’s in line with the three previous terms but comparatively high if we look back before Chief Justice Cady took the helm and Justices Waterman, Mansfield, and Zager joined the Court in 2011.  From 2006-2010, the justices disagreed in just 7% of their cases (excluding disciplinary cases).  That equates to about eight non-unanimous decisions per year.  Since the 2012 term, the Court has been  issuing an average of 30 non-unanimous decisions per year.

Because the Iowa Supreme Court generally hears the most important–and often most difficult appeals–it’s not surprising that the justices are disagreeing as much as they are.  It’s perhaps more surprising that they used to agree as much as they did.  So the fact that the justices continue to disagree more often isn’t a bad thing.  In fact, the opposite is probably true–dissenting opinions keep the justices on their toes and keep the majority opinions tighter.  (On that subject, here’s what Justice Ginsburg said after Justice Scalia’s passing: “We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation.”)

Justice Agreement: The justices continue to break down into fairly consistent voting blocs, with Justices Wiggins, Hecht, and Appel agreeing with each other most of time; Justices Waterman and Mansfield agreeing with each other most of the time; and Chief Justice Cady and Justice Zager usually going back and forth between the two groups–and thus usually deciding which group is in the majority. The chart below shows how often each justice agreed with his colleagues in the non-unanimous cases.

2015-2016 Term: Justice Agreement – Non-Unanimous Cases
Wiggins Appel Hecht Waterman Mansfield Zager
Cady 50% 61% 61% 46% 46% 54%
Wiggins 89% 82% 18% 18% 32%
Appel 93% 21% 14% 36%
Hecht 21% 14% 29%
Waterman 86% 64%
Mansfield 64%

Chief Justice Cady’s numbers, in particular, are the mark of a swing justice.  All of them fall around the 50% mark–meaning that he agreed with each one of his colleagues about half the time when the vote was split.  And when he did agree with his colleagues, they almost always found themselves in the majority.  As noted in the opening, Chief Justice Cady was in the dissent just three times this term.  And in the 19 cases that were decided on a 4-3 vote, the Chief was in the majority every time but one.  An 18-1 record. (The Cady Court, indeed.)

Here’s how often the other justices found themselves in the majority this term when the vote was spit:

2015-2016 Term: Percentage in the Majority – Non-Unanimous Cases
 Cady Wiggins Appel Hecht Waterman Mansfield Zager
 89% 61% 71% 71% 50% 43% 57%

Opinion Authorship: As he often is, Justice Mansfield was the most frequent opinion writer this term, authoring a total of 26 opinions.  Justice Wiggins (who was the most prolific writer last year) wrote 25 opinions, while Justice Appel garnered the most majority opinions (16) and Chief Justice Cady wrote the most concurring opinions (5).  The full list for opinions authored by each justice is below.  Combined–and including three per curiam opinions–the justices authored 147 opinions in 96 cases.  Taking out the disciplinary decisions, the justices wrote 135 opinions in 83 cases, for an average of 1.6 opinions per case.

2015-2016 Term: Opinion Authorship – All Cases
  Majority Concurring Dissent Total
Cady 10  5 1 16
Wiggins  14  2 9  25
Hecht  13  1  4  18
 Appel  16  2  4  21
Waterman  15  2  6  23
 Mansfield  14  2  10  26
 Zager  10  2  3  15

Looking ahead, looking back, and On Brief news

By: Administrator on August 3rd, 2016

By Ryan Koopmans

The 2016-2017 Iowa Supreme Court term begins in just a little over a month, so over the next few weeks we’re going to preview some of the cases that will be argued in September.  The first of the series–Can Dyersville rezone heaven?is posted below.  September is always the Court’s busiest month as far as arguments go, and this September is shaping up to be an interesting one.

But the fact that we’re previewing 2016-2017 doesn’t mean that we’re done with 2015-2016.  Next week, we’ll be posting our annual statistical review of the last term, where we answer such questions as: How many decisions did the Iowa Supreme Court issue last year? Who wrote the most opinions?  The most dissents? Who agreed with whom?  So check back.

Finally, some On Brief news.  As those who attended our panel discussion last month heard, there seems to be record-level interest in the Iowa Supreme Court, and that’s translating in to ever-increasing demand for access to the briefs that parties file.  As one panelist noted, U.S.  Supreme Court briefs are readily available (from private sources like SCOTUSblog and the ABA), and it would be nice if Iowa Supreme Court briefs were available too.

We agree, and so we’re making it happen. Starting soon (before the September term begins), we’ll be creating a case page that will contain links to the briefs for cases that are actively pending before the Iowa Supreme Court (meaning that the Court has agreed to take the case).  In addition to providing access to the briefs, the case page will allow readers to see what issues the Court will be addressing in the months to come.  We think it will be a useful tool for lawyers, judges, the press, and the general public.  And we also hope that it will be somewhat interactive: If the Iowa Supreme Court alerts you that it’s keeping your case (as opposed to transferring it to the Court of Appeals), we’d like to hear about it.  The same goes for further review orders–please tell us.   You can send email to me (rkoopmans@nyemaster.com) and we’ll update the case page.

So check back often in August.  There’s a lot happening.

Nyemaster Goode and The Des Moines Register Present The Cady Court at Five

By: Administrator on July 14th, 2016

Today, July 14, Nyemaster Goode and The Des Moines Register will be hosting a panel discussion regarding Iowa Supreme Court.  The panel discussion starts at 4:30 and a reception will follow. Additional details are below.

WHEN: Today!
WHERE: Third Floor of the EMC Building at 700 Walnut Street
WHAT: Panel discussion from 4:30 to 6:00 p.m. with reception to follow on Nyemaster Goode terrace. Click here to meet the panelists.
RSVP: DesMoinesRegister.com/CadyCourt (admission is free, but RSVP is required)

Street and skywalk closures around the EMC Building may limit your parking and access options.  Please use the public parking garage at 8th and Mulberry and access the building through the attached skywalk.  Nyemaster Goode will validate your parking at the event.  We look forward to seeing you this afternoon.

SCOTUS ruling on blood-alcohol tests leads Iowa Supreme Court to delay boating-while-intoxicated case until next term

By: Administrator on June 24th, 2016

By Ryan Koopmans

As Rox wrote yesterday, the Iowa Supreme Court is (or at least was) expected to release a decision next week in State v. Pettijohn, a case about (among other things) whether Iowa’s implied-consent law–the law that punishes drivers who refuse to take a blood-alcohol test–is constitutional.  The case was argued in September, which makes it the Court’s longest outstanding case.  And because the Iowa Supreme Court has been sharply divided over search-and-seizure issues, it is also one of the most anticipated rulings of the term.  

Or at least it was.  Yesterday, the U.S. Supreme Court ruled in Birchfield v. North Dakota that these so-called implied-consent statutes don’t violate the Fourth Amendment when it comes to breathalyzer tests, but that they do violate the Fourth Amendment when it comes to blood tests, unless the police get a warrant.  So you can be punished for refusing to take a breath test; but you can’t be punished for refusing a blood test.

In light of that ruling, the Iowa Supreme Court has put its decision in Pettijohn on hold.  Yesterday afternoon, Chief Justice Mark Cady issued an order stating that the parties (Dale Pettijohn and the State of Iowa) must submit additional briefs to the Court that “address the impact of the Birchfield decision on the issues in this case.”  And they have until August 1 to do so. 

Pettijohn took a breath test; not a blood test.  So if anything, Birchfield is likely to cut against him.  But the Iowa Supreme Court could decide the case differently under the Iowa Constitution; and they’ve done that very thing several times the past five years.  But Birchfield could have just switched the vote from “reverse” (Pettijohn wins) to “affirm” (Pettijohn loses). So it might be a case of bad timing for Pettijohn, who thought he was going to get a decision next week.

Pettijohn’s case is different than Birchfield, though, in that he was boating while drinking rather than driving while drinking.  And he says that matters, because (in his view) driving is a privilege and using public waterways is a right.  We’ll see if that makes a difference.

In any event, we won’t likely know until sometime next fall when the justices return for the 2016-2017 term.

Get back in here! U.S. Supreme Court rejects Eighth Circuit’s “no recalling a jury” rule.

By: Administrator on June 9th, 2016

By Ryan Leemkuil

This blog has previously covered the long-running dispute between former Iowa law school dean Carolyn Jones and Teresa Wagner, a former law school employee who claims she was passed over for a job due to political bias. Most recently, we covered the Eighth Circuit’s 2014 ruling that the district court did not have the power to recall the jurors to render a verdict minutes after they had been discharged. Noting the risk of outside influence, the Eighth Circuit thought a bright line rule was best: Once a court discharges the jury and they leave the courtroom, a jury can no longer render a verdict. In today’s world of “instant individualized electronic communication,” the Eighth Circuit explained, a clear rule “offers better guidance than an amorphous rule that turns on whether jurors in fact became available for or were susceptible to outside influences or remained within total control of the court.” Jones, who was on the losing end of that ruling, asked the Supreme Court to review the case, but the Court declined early last year.

Today, however, the Supreme Court addressed the issue in another case and rejected the Eighth Circuit’s bright line rule. In Dietz v. Bouldin, the Court adopted a multi-factor test to determine whether a discharged jury may be recalled to do further work on a case. Those factors include the delay between discharge and recall, whether the jurors interacted with any non-jurors, and the nature of any courtroom reaction to the initial verdict. Rather than impose any “categorical bar” to recalling a jury, the Supreme Court directed district courts to “cautiously” and “carefully” apply these factors to decide whether a jury may be recalled.

Two dissenting justices—Justice Thomas, joined by Justice Kennedy—preferred the Eighth Circuit’s bright line rule. Echoing the Eighth Circuit’s concerns in Wagner, the dissent reasoned that a clear rule was preferable in “today’s world of cellphones, wireless Internet, and 24/7 news coverage,” where jurors may easily come across prejudicial information after discharge. The majority’s various factors, on the other hand, will only produce more litigation: “Is one hour too long? How about two hours or two days? Does a single Internet search by a juror preclude recalling the entire jury?” An occasional unnecessary “redo,” in the dissent’s view, is preferable to repeated litigation trying to answer these questions.

Dietz won’t matter for the Wagner case—the case was ultimately retried and Wagner lost. But litigators should be on notice: A jury’s discharge might just be temporary.

*Ryan Leemkuil is legal counsel at Fareway  Stores and before that was an attorney at Nyemaster Goode. 

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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.