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

By: Rox Laird on September 11th, 2018

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


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

By: Rox Laird on September 6th, 2018

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

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

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

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

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

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


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

By: Rox Laird on September 4th, 2018

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

The answer? The motto does not violate the Constitution.

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

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

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

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


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

By: Rox Laird on August 20th, 2018

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

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

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

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

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


District Judge Susan Christensen named to the Iowa Supreme Court

By: Rox Laird on August 2nd, 2018

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

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

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


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

By: Rox Laird on July 25th, 2018

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

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

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

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

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


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

By: Rox Laird on July 18th, 2018

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

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

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


Iowa Supreme Court, citing the Iowa Constitution, limits warrantless searches of containers in impounded vehicles

By: Rox Laird on July 17th, 2018

The Iowa Supreme Court added another category of police searches where it invoked the Iowa Constitution to extend broader protection than the U.S. Supreme Court has granted under the Fourth Amendment to the U.S. Constitution.

For drivers whose vehicles are impounded and searched by law enforcement, the ruling in State v. Ingram handed down June 29 means closed containers may not be opened as part of an inventory of the contents of the vehicle without a warrant or consent. For law-enforcement authorities, it means jumping through more hoops before searching and inventorying contents of impounded vehicles.

Bion Ingram was stopped by a police officer in Newton for a traffic violation and the borrowed car he was driving was impounded because the plates and registration sticker did not match. As part of the inventory search, officers opened a small cloth bag on the floor and found a glass pipe containing methamphetamine.

The seven-member Court unanimously agreed that the search was unconstitutional, but the justices split 4-3 on whether to apply the U.S. or the Iowa Constitution.

The majority cited Article I Section 8 of the Iowa Constitution in an opinion written by Justice Brent Appel joined by Chief Justice Mark Cady and Justices David Wiggins and Daryl Hecht.

Justice Edward Mansfield filed a special concurring opinion, joined by Justices Thomas Waterman and Bruce Zager, which argued that opening and searching the bag violated the Fourth Amendment because the Newton police did not follow a “standardized local policy” in searching the bag, as required by the U.S. Supreme Court. Mansfield said there was no reason to go beyond that and decide this case based on the Iowa Constitution.

Chief Justice Cady, in a separate concurrence, pointed out that inventory searches give law enforcement officers “free rein to conduct a warrantless investigatory search and to seize incriminating property, despite the doctrine’s genesis as a means of protecting private property, guarding against false theft claims, and protecting officers from potential harm.”

Article I Section 8 of the Iowa Constitution’s says “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable seizures and searches shall not be violated,” which is nearly identical to the wording of the federal Fourth Amendment.

But the Iowa Supreme Court has increasingly parted company with the U.S. Supreme Court’s Fourth Amendment holdings where the Iowa justices believe Fourth Amendment protections have been eroded. That is especially true, Appel wrote, where the federal court has moved away from requiring a warrant and toward a “reasonableness” standard.

Appel traced the U.S. Supreme Court’s evolution on inventory searches since 1973 where the Court has found inventory searches to be reasonable under the Fourth Amendment. The Court rejected a case-by-case analysis and instead requires that law-enforcement authorities have a local policy for inventory searches. Thus, the search of a backpack found in a vehicle was upheld because police in that case had such a policy, while in a subsequent ruling the search of a suitcase in the trunk of a car was rejected because police lacked a policy.

Appel wrote that empowering local law enforcement to determine the extent of Fourth Amendment protections in inventory searches is “rich with irony, as the Fourth Amendment was explicitly designed as a bulwark to restrain law enforcement in the context of searches and seizures.”

The Iowa Supreme Court, he said, took the opportunity in this case to “stake out higher constitutional ground” and “to restore the balance between citizens and law enforcement by adopting a tighter legal framework for warrantless inventory searches and seizures of automobiles under Article I, Section 8 of the Iowa Constitution than provided under the recent precedents of the United States Supreme Court.”

Appel said the Iowa Supreme Court’s holding does not mean warrantless impoundments are never appropriate, but he suggested that police explore alternatives when the goal is not investigative but to protect property, such as allowing the vehicle to be parked and locked by the driver or calling a friend to pick up the vehicle. “Impoundment of a vehicle should be permitted only if these options have been adequately explored.”


Divided Iowa Supreme Court keeps county attorney on the job, despite sexual harassment complaints

By: Rox Laird on July 12th, 2018

Van Buren County Attorney Abraham Watkins was removed from office by a District Court judge who ruled that Watkins “engaged in misconduct or maladministration by regularly committing sexual harassment” of female employees.

The court record reciting Watkins’ sexually explicit behavior included asking a female employee about her vagina, complaining that her breasts were distracting, showing her nude photos of his wife, discussing his marital sex life and on more than one occasion appearing in the office in boxer briefs.

Reviewing the case on appeal, the Iowa Supreme Court agreed that sexual harassment is unacceptable, but it concluded in a 4-3 decision that Watkins’ behavior did not warrant a court order removing a public official elected by the people.

The justices on June 29 issued three separate opinions covering nearly 70 pages that reveal how the Court was torn between respecting the role of the electorate, not judges, to say who is fit for office while not seeming to minimize sexual harassment in the workplace.

Three justices – Bruce Zager, writing for himself, Edward Mansfield and Thomas Waterman – concluded that despite Watkins’ “morally reprehensible” behavior it was not enough to remove him from office.

Three justices – Chief Justice Mark Cady, writing in a dissent joined by Daryl Hecht, and David Wiggins writing in a separate dissent – concluded that Watkins willfully created a sexually hostile work environment for female employees on his staff and that he deserved to be removed from office.

Justice Brent Appel supplied the deciding vote in a separate opinion in which he disagreed with Zager’s reasoning while concurring that, however repulsive, Watkins’ actions fell short of clearing the high hurdle for a judicial decision removing a public official from office.

The Legislature gave the courts authority to remove a public official from office for, among other things, “willful misconduct,” and the pivotal question before the Court in this case was whether Watkins’ misconduct was “willful.”

The Iowa Supreme Court in a 1913 case defined “willfully” for purposes of removal to mean a public official who acts “intentionally, deliberately, with a bad or evil purpose, contrary to known duty.”

Zager wrote that it is not a question of whether a “reasonable person would find that the public official acted contrary to his or her duties or even unlawfully” but a question of the public official’s “subjective intent to act with a bad or evil purpose” in committing wrongdoing.

“As morally reprehensible as we find Watkins’s behavior,” Zager wrote, “this is not the standard by which we need to analyze whether the State has met its high burden to establish whether Watkins committed willful misconduct or maladministration in office by creating a sexually hostile work environment. We are a court of law, not a court of public opinion.”

Chief Justice Cady disagreed, faulting the plurality opinion for looking at the case from Watkins’ perspective, not the employee’s: “Today’s decision is intimately tied to a bygone era of law that shielded men who knew better, at the expense of their female employees, who were required to abandon their jobs or forced to accept harassment as a condition of employment.”

Justice Appel wrote in his concurring opinion that while he agreed with much of Cady’s opinion, he concluded that Watkins’ behavior did not meet the “extraordinarily demanding standard” for removing an elected official from office.

“We have required what amounts to ‘specific intent’ to do wrong in a criminal or quasi-criminal way and the need for heroic action by the court to save the day,” Appel wrote. “In the end, I conclude that Watkins’s behavior approaches, but does not cross, the heroic and stringent penal or quasi-criminal standard for removal articulated in our historic caselaw.”


Felony-murder rule can be applied to juveniles, Iowa Supreme Court rules

By: Rox Laird on June 29th, 2018

The Iowa Supreme Court ruled that the felony-murder rule may be applied to juvenile offenders in a decision upholding the sentence of life in prison with the possibility of parole for a defendant who was 16 at the time of the crime.

Keyon Harrison was found guilty by a Polk County jury of first-degree murder for his role in the robbery and murder of a marijuana dealer. Prosecutors conceded at trial that the evidence suggested it was Harrison’s 17-year-old companion, not Harrison, who fatally shot the victim. But Harrison was found guilty of aiding and abetting the robbery and murder, and that is the equivalent of first-degree murder under the felony-murder rule.

The Court, in a 4-2 decision, ruled that using the felony-murder rule against a juvenile violates neither the U.S. nor the Iowa Constitution. The majority opinion was written by Justice Bruce Zager joined by Chief Justice Mark Cady and Justices Edward Mansfield and Thomas Waterman.  Justice Brent Appel filed a dissenting opinion, joined by Justice David Wiggins. Justice Daryl Hecht did not participate in the case.

The felony-murder rule, which has ancient roots in common law, is codified in Chapter 707 of the Iowa Code and transforms forcible felonies such as robbery into first-degree murder if a person is killed in the course of the felony, regardless of intent or premeditation.

By arguing the felony-murder rule is unconstitutional for juveniles, the Court said Harrison is asking for greater due-process rights for juvenile offenders than adult offenders. But the justices drew a distinction between criminal offenses and criminal sentences applied to juveniles.

While the Iowa Supreme Court has recognized that juveniles are “constitutionally different from adults,” the Court has never held that the elements of criminal offenses should be transformed to account for that difference, Zager wrote. Quoting from an earlier decision, he said the Court’s “constitutional analysis is not about excusing juvenile behavior, but imposing punishment in a way that is consistent with our understanding of humanity today.” This is achieved with individualized sentencing, Zager wrote.

While Harrison argues that life in prison is “grossly disproportionate” in his case, he was immediately eligible for parole, thus benefitting from the Court’s 2016 decision in State v. Sweet that held that juvenile offenders may not be sentenced to life without the possibility of parole.

The Parole Board provides juvenile offenders individualized analysis of the conditions of their past lives and their progress toward rehabilitation in deciding whether to approve early release, which Zager said is consistent with the Court’s approach to juvenile sentencing.

In his dissent, Justice Appel framed the Harrison case stark terms:

“The question in this case is whether an unarmed child may be subject to life in prison with the possibility of parole for participating in a marijuana robbery where a coparticipant brought a gun to the crime and killed the robbery victim.”


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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.



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