Iowa Supreme Court opens door to ‘actual innocence’ claims following guilty pleas

By: Rox Laird on March 27th, 2018

The Iowa Supreme Court ruled that a person who pleaded guilty to a crime has a right under the Iowa Constitution to later claim that he or she is, in fact, innocent based on newly discovered evidence.

The Court, in a 4-3 ruling handed down March 23, overturned prior Iowa decisions that limited actual-innocence claims following a guilty plea to only those that attack the constitutional or procedural validity of the guilty plea. With this ruling, a defendant may assert actual innocence based on evidence unrelated to the validity of the plea itself.

The decision in Schmidt v. State of Iowa written by Justice David Wiggins was joined by Chief Justice Mark Cady and Justices Daryl Hecht and Brent Appel.

The chief justice filed a separate opinion concurring with the judgment. “The process of justice must always be fair,” Cady wrote. “This case stands tall as the embodiment of this fundamental principle of law. It is a substantial step forward in our constitutional march to become better. Innocent people should always have a forum to prove their innocence. I fully concur in the opinion of the Court.”

Justices Thomas Waterman, Edward Mansfield and Bruce Zager dissented. “Today’s decision will have bad consequences,” Waterman wrote in his dissenting opinion, “including fewer plea bargains, renewed turmoil for victims and their families years after the crime, and a flood of [post-conviction relief] applications.”

Jacob Schmidt pleaded guilty to assault with intent to commit sexual abuse, in part on the basis of the testimony of the victim, his younger half-brother. Seven years later, the half-brother recanted his testimony, saying Schmidt had not attempted to sexually abuse him. The Woodbury County District Court dismissed Schmidt’s post-conviction appeal, citing Iowa Supreme Court precedent.

The Iowa Supreme Court’s decision in Schmidt’s appeal has been in the making for more than a year. It was first argued in February 2017 but held over to be reargued this term. Meanwhile, the Court asked the parties to submit additional briefs focusing on several questions, including what standard should apply if a guilty plea does not always bar an actual-innocence claim.

The Iowa Supreme Court has historically stressed the finality of a criminal conviction based on a guilty plea that is made knowingly and intelligently and with assistance of counsel. In a 1990 decision, the Court said “notions of newly discovered evidence simply have no bearing on a knowing and voluntary admission of guilt.”

But the Court pointed to recent evidence that innocent people do, in fact, plead guilty to crimes they did not commit, citing a National Registry of Exonerations report that, in 2016, 74 convicted criminals who had pleaded guilty were subsequently exonerated.

“Pleading guilty does not automatically mean the defendant is actually guilty,” Wiggins wrote. “Sometimes, an innocent defendant is choosing the lesser of two evils: pleading guilty despite his or her actual innocence because the odds are stacked up against him or her, or going to trial with the risk of losing and the prospect of receiving a harsher sentence.”

With that in mind, the Court said it was time to open the door to allow those who plead guilty to appeal their convictions based on new evidence. “It is time that we refuse to perpetuate a system of justice that allows actually innocent people to remain in prison,” Wiggins wrote, “even those who profess guilt despite their actual innocence.”

To do that, the Court looked to the Iowa Constitution, which in Article 1 Section 9 says “no person shall be deprived of life, liberty, or property, without due process of law,” and in Article 1 Section 17 prohibits cruel and unusual punishments.

“Holding a person who has committed no crime in prison strikes the very essence of the constitutional guarantee of substantive due process,” Wiggins wrote, and punishing a person who is actually innocent is cruel and unusual.

In order to succeed on a claim of actual innocence, the Court said the applicant must show by “clear and convincing evidence that, despite the evidence of guilt supporting the conviction, no reasonable fact finder could convict the applicant of the crimes for which the sentencing court found the applicant guilty in light of all the evidence, including the newly discovered evidence.”

In Schmidt’s case, the Iowa Supreme Court did not take a position on his claim of innocence based on the recanted witness testimony. Rather, it sent the case back to the District Court for further proceedings, as “both parties are entitled to their day in court to litigate their positions under the new standard we have adopted today.”

“Only after the parties develop a record in a summary proceeding can the court decide if a genuine issue of material fact exists,” Wiggins wrote. “If it does, then a trial may be necessary to resolve Schmidt’s claim.”

Iowa Supreme Court: Changes within trailer park did not affect its zoning status

By: Rox Laird on March 21st, 2018

Does the “detritus of life” change a Des Moines trailer park’s legal nonconforming zoning status it has enjoyed for 63 years?

Not in the eyes of the Iowa Supreme Court.

The Oak Hill Mobile Home Park on Des Moines’ south side has been a legal nonconforming use since 1955, and the Court, in a unanimous March 16 ruling by Justice Bruce Zager, said the City of Des Moines failed to prove that had changed to the point where the City was warranted in shutting it down.

A legal nonconforming use, Zager wrote, is the use of a property that existed before a zoning ordinance is enacted or changed and continues unless the nonconforming use is “legally abandoned, enlarged or extended.”

Oak Hill existed before the city rezoned the area in 1955, and the overall configuration of the park has not changed, nor has the number of trailers increased. But the city argued in 2014 that the use of the property had “intensified” over the years with the addition of porches, decks, outbuildings and other structures that put the park in violation of city zoning regulations.

The Polk County District Court ruled that the City could revoke Oak Hill’s occupancy permit because the mobile home park had “intensified” its use of the property. The park had become “filled with the detritus of life: vehicles, outdoor recreational equipment, garbage bins, makeshift gardens, fencing, and crudely constructed additions to the mobile homes,” the trial judge wrote, which pose a threat to safety and property.

The Supreme Court, however, said the City failed to demonstrate a safety threat. “Remarkably, the record is largely bereft of evidence demonstrating the existence of a significant safety issue,” Zager wrote. “Although the fire marshal testified about the fire hazards specific to all mobile homes in general, he acknowledged that Oak Hill has not been cited for any fire safety code violations.”

The Court also said the City failed to demonstrate that Oak Hill had so changed the character and intensity of the mobile home park that it should lose its legal nonconforming status.

Zager said property owners legally have some latitude to change the original nonconforming use, provided the changes are not substantial and do not have an adverse impact on the neighborhood. But the Court had not before addressed the question of “whether the intensification of a mobile home park due to the addition of structures or the expansion of homes within the park amounts to an illegal expansion of the authorized nonconforming use.”

In this case, the addition of structures to the mobile homes as well as the “detritus of life” the District Court noted, “have not substantially changed the nature and character of [the] use of the property as a mobile home park,” Zager wrote. “Rather, this steady increase in the additions to the mobile home structures and other objects found on the property represents a marginal change that falls within the degree of latitude that the law affords to property owners in their nonconforming use.”

“Supermajority” Bill Could Change the Outcome of State Constitutional Questions before the Iowa Supreme Court

By: Rox Laird on March 20th, 2018

A bill passed by the Iowa Senate (S.F. 2282) would block the Iowa Supreme Court from declaring a State statute unconstitutional if the decision is not supported by at least five justices of the seven-member Court.

Although the bill failed to make it out of committee in the House by Friday’s deadline, legislative leaders could still bring it to the floor for consideration this session.

A proponent of the bill, Sen. Julian Garrett, an Indianola Republican, says it is wrong that under the current majority requirement a state law approved by majorities of the House and Senate and signed by the governor can be overturned by four justices of the Iowa Supreme Court.

“This is a bill that tries to make a small step to address that issue,” he said during the Senate debate. “You have to persuade five judges instead of four that a law is unconstitutional.”

The “supermajority” requirement, however, raises constitutional questions regarding the boundary between the legislative and judicial branches of government, according to two constitutional scholars.

“It seems like a constitutional non-starter to me,” University of Iowa law professor Todd Pettys told On Brief last week. The U.S. Supreme Court would not honor a bill from Congress that required a supermajority, Pettys said, and the same separation-of-powers principles apply to state and federal courts.

Mark Kende, director of the Constitutional Law Center and at Drake Law School and who holds the James Madison Chair in Constitutional Law, agreed:  “I believe this is a dangerous step to undermine the role of the judiciary interpreting the Constitution,” Kende said.

Article III Section 1 of the Iowa Constitution addresses the separation of powers:

“The powers of the government of Iowa shall be divided into three separate departments — the legislative, the executive, and the judicial: and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining to either of the others, except in cases hereinafter expressly directed or permitted.”

But Garrett said in an interview with On Brief he does not see the proposed legislation violating separation of powers.

“Our Iowa Constitution specifically says the Supreme Court can correct errors of law ‘under such restrictions as the General Assembly may, by law, prescribe’,” Garrett said, referring to Article V Section 4. Garrett said that provision enables the Legislature to require the votes of five justices of the Supreme Court to overturn a state statute. “The Constitution says we can pass the rules and regulations of the Court, so I don’t see why we can’t.”

Article V Section 10 authorizes the Legislature to increase or reduce the overall number of justices, suggesting that lawmakers also may dictate the number of justices required to strike down state statutes. But Pettys argues there is a qualitative difference between legislators establishing the size and jurisdiction of an appellate court and dictating the court’s internal rules for how it makes decisions.

Pettys likened the latter to legislators going into the chambers with the justices – where no one else is allowed – and saying, “We want you to have one more justice” in the majority or you can’t speak on this subject. “That’s just a pure naked power grab by the Legislature. It totally drains the judicial branch of government of its most important job, which is to decide what is structurally permissible” in writing state laws.

Constitutional amendment or legislation?

Two states – Nebraska and North Dakota – currently require supermajorities to strike down state statutes, but both were done by constitutional amendment during the progressive era a century ago, not by statute.

 “We could do it either way,” Garrett said, but he pointed out that amending the Iowa Constitutional is a lengthy process.

“The courts are not bashful about changing the Constitution, rather than allowing the people to do it through a constitutional amendment,” he said.

“I’m just trying to put a little bit of a damper on their propensity to change the meaning of the Constitution. You’ve heard this ‘living, breathing Constitution concept.’ It gives the Court the power to do whatever it wants. It’s a very clever theory that enables them to make the changes they want in the Constitution.”

What if a supermajority were already required in Iowa?

Though it does not happen often, the Iowa Supreme Court has held state statutes unconstitutional with a one-vote majority. What would have been the outcome of some recent decisions had a supermajority requirement been on the books?

For one, riverboat casinos might be taxed at a significantly lower rate than racetracks. The Iowa Supreme Court in Racing Association v. Fitzgerald (2002) struck down the statutory tax scheme that set different rates for different casinos. The Court, by a vote of 4-3, ruled unequal tax treatments violated the U.S. and Iowa Constitutions. (On appeal, the U.S. Supreme Court reversed regarding the federal Constitution but the Iowa Supreme Court subsequently stuck by its position based on its reading of the Iowa Constitution, this time with five justices in the majority.)

Juvenile offenders could face longer prison sentences in Iowa. Perhaps the most persistent 4-3 split on the current Iowa Supreme Court involves juvenile criminal sentences the Iowa Court has handed down in the wake of U.S. Supreme Court decisions based on evidence that juvenile mental and emotional development is not the same as adults.

The Iowa Supreme Court ruled 4-3 in 2014 State v. Lyle (2014) that, in the case of juveniles, one-size-fits-all mandatory minimum prison sentences prescribed by the Legislature violate the Iowa Constitution’s equivalent of the Eighth Amendment. The Court in Lyle said a juvenile could be sentenced to a minimum prison term before being eligible for parole, but there must be a finding by a trial court that weighs a number of mitigating factors, including the offender’s age, family and home life, the nature of the crime and his or her potential for reform.

Additionally, undocumented immigrants living in Iowa could be prosecuted by the State for using forged documents to obtain employment. The Court, in State v. Martinez (2017), ruled 4-3 that such prosecutions by the State violate the Supremacy Clause of the U.S. Constitution because the State statute is pre-empted by federal immigration law.

“Court packing” in Iowa?

The size of the Iowa Supreme Court has changed a number of times over the past 180 years, beginning with three judges in the Territorial era and growing to nine before it was shrunk to seven by a 1998 statute at the same time the Iowa Court of Appeals was enlarged.

Thus, State legislators could increase the size of the Supreme Court in an effort to dilute the votes of justices whose opinions they dislike. That is what President Franklin Roosevelt sought to do in the famous, though short-lived, “court packing” scheme in 1937, which was roundly criticized by both parties.

“And to be clear,” Drake’s Kende noted in commenting to On Brief about the Iowa supermajority proposal, “I would have opposed FDR’s court packing scheme as well so my position is not partisan.”

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.

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