Eighth Circuit case on food-stamp records to be argued at U.S. Supreme Court April 22

By: Rox Laird on April 19th, 2019

The U.S. Supreme Court will hear oral arguments Monday in a case from the U.S. Court of Appeals for the Eighth Circuit that likely will decide whether a Sioux Falls, S.D., newspaper should have access to food-stamp spending at specific retail stores.

Considerable interest has been generated by this case. More than a dozen organizations – representing the retail industry, public interest groups and First Amendment advocates – have filed friend-of-the-court briefs in the case. (Go to the U.S. Supreme Court’s docket page to read the briefs and lower court rulings in the case.)

The U.S. Solicitor General, who represents the government in cases before the Supreme Court, filed a brief in support of the Food Marketing Institute and the retailers. The Solicitor General will also participate in Monday’s oral arguments.

The Sioux Falls Argus Leader asked the U.S. Department of Agriculture for records that show how much federal money was paid to reimburse individual food retailers for purchases made by participants in the department’s Supplemental Nutrition Assistance Program, or SNAP, the new name for what was known as the food-stamp program.

U.S. Senate confirms Iowa native for seat on the Eighth Circuit Court of Appeals

By: Rox Laird on December 17th, 2018

President Donald Trump’s appointment of Sioux City native Jonathan Kobes to the U.S. Court of Appeals for the Eighth Circuit was confirmed by the U.S. Senate Dec. 11. The vote was split 50-50 with Vice President Mike Pence supplying the tie-breaking vote.

Kobes will replace Judge Roger Wollman, who has taken senior status. Wollman, who was appointed to the Eighth Circuit in 1985 by President Ronald Reagan, turned 84 this year.

Kobes, 44, 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 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).

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.

U.S. Supreme Court denies reduced criminal sentences in appeal from Iowa

By: Rox Laird on June 5th, 2018

The U.S. Supreme Court denied an appeal from five Iowa criminal defendants who argued for shortened prison terms based on a recent change in federal sentencing guidelines.

The five defendants pleaded guilty to drug conspiracy charges that carried mandatory-minimum sentences of 20 years each. But because they provided “substantial assistance” to the criminal investigation, the government recommended sentence reductions, and U.S. District Judge Mark Bennett of Sioux City imposed prison terms ranging from 84 months to 264 months for the five.

Three years later the defendants sought reductions of their prison sentences following changes in sentencing guidelines approved by the U.S. Sentencing Commission, which were made retroactive.

Bennett denied the reductions, however, because the sentences he imposed below the 20-year mandatory minimum were based on a calculation factoring in the value of each defendant’s assistance to the government’s criminal investigation, not on the original U.S. Sentencing Commission guidelines.

The U.S. Court of Appeals for the Eighth Circuit upheld Bennett’s decision on appeal, and the U.S. Supreme Court in a unanimous ruling handed down Monday agreed with both.

“In each of petitioners’ cases, the top end of the [Sentencing Commission guidelines range] fell below the applicable mandatory minimum sentence, and so the court concluded that the mandatory minimum superseded the guidelines range,” Justice Samuel Alito Jr. wrote for the Supreme Court. “Thus, in all five cases, the court discarded the advisory ranges in favor of the mandatory minimum” to calculate the sentences.

U.S. Supreme Court Justice Neil Gorsuch and U.S. Attorney General Sessions on the program for Eighth Circuit Judicial Conference in Des Moines

By: Rox Laird on May 2nd, 2018

Iowa lawyers and judges attending the Eighth Circuit Judicial Conference in Des Moines Aug. 15-17 will have an opportunity to hear from three major newsmakers in the legal world.

  • U.S. Supreme Court Justice Neil Gorsuch, who was assigned by Chief Justice John Roberts as the circuit justice for the Eighth Circuit, will speak to the conference Aug. 17.
  • U.S. Attorney General Jeff Sessions will speak Aug. 17. 
  • Former U.S. Solicitor General Theodore Olson will appear on a panel discussion on legal issues surrounding sports gambling Aug. 16.

Other speakers will include former Iowan Stephen Rapp, visiting fellow at the United States Holocaust Memorial Museum, and former Assistant Iowa Attorney General Theresa O’Connell Weeg. They will appear on a panel on the prosecution of international war crimes.

U.S. Senators Charles Grassley of Iowa and U.S. Representative Robert Goodlatte of Virginia, chairmen of the Senate and House Judiciary Committees have been invited.

The Eighth Circuit Conference rotates among the seven states in the circuit. This year’s conference is the first to be in Des Moines since 1995. It will be held at the Community Choice Credit Union Convention Center and the new Hilton hotel, which recently opened adjacent to the convention center.

Go to the Eighth Circuit website for more details on the conference and registration.

Eighth Circuit upholds Sorenson prison sentence for lying about taking money for political endorsements

By: Rox Laird on December 13th, 2017

Former Iowa State Sen. Kent Sorenson’s 15-month sentence in federal prison for lying about taking payments for political endorsements was upheld by the U.S. Court of Appeals for the Eighth Circuit in St. Louis Tuesday.

Federal prosecutors had recommended probation, but U.S. District Judge Robert W. Pratt of Des Moines said Sorenson should do time in prison because accepting “dollars for political favors . . . is the antithesis of civic virtue.”

Sorenson appealed the sentence to the Court of Appeals, but a panel composed of Eighth Circuit Judges James Loken, Raymond Gruender and Duane Benton upheld the sentence in a four-page per curiam ruling.

Sorenson was serving in the Iowa Senate in 2012 when he switched his presidential primary endorsement from Michele Bachmann to Ron Paul a matter of days ahead of the Iowa caucuses. He had been paid a total of $132,915.47 from the Bachmann and Paul campaigns, none of which was reported to the Federal Election Commission (FEC), and he lied about the payments in a sworn deposition.

Sorenson pleaded guilty to “willfully causing false expenditure reports to the FEC” and “falsifying records in contemplation of or relation to a federal investigation intending to obstruct justice.”

Based on the U.S. Sentencing Guidelines, that translated into a sentence of 24 to 30 months, but Pratt settled on 15 months, which was still harsher than the government prosecutors’ recommendation of two years’ probation and fines.

Pratt explained his reasoning in a January in a 25-page sentencing memorandum.

“The offending conduct in this case — the sale of one’s political influence as an elected official and proactive concealment of the transactions from the public and from regulators — can only be described in one way: corruption,” Pratt wrote.

“When it comes to political corruption, the community — historically and presently — requires that real, tangible, and severe consequences meet those who gain a position of public trust and then abuse that trust for personal gain,” he wrote.  “Unless that traditional principle is honored, political corruption will slowly corrode the foundations of our democracy until it collapses under its own weight.”

One down, two to go: Senate Confirms Erickson to the Eighth Circuit Court of Appeals

By: Rox Laird on October 5th, 2017

The Senate on September 28, 2017, confirmed U.S. District Judge Ralph Erickson to replace Kermit Bye of North Dakota, filling one of three vacancies on the U.S. Court of Appeals for the Eight Circuit.

Omaha lawyer Steven Grasz seems likely to sail through the Senate to replace former Chief Judge William Jay Riley.

Minnesota Senator Al Franken, however, has thrown up a road block on the nomination of Minnesota Supreme Court Justice David Stras to replace Judge Diana Murphy, who has taken senior status.

Franken announced recently that he would not return his “blue slip” on the nominee to the Judiciary Committee, saying Stras would be too conservative.

The blue slip is a senatorial courtesy extended to home-state senators of federal court nominees, and it would mean the end of Stras’ hopes of joining the court. That is if Iowa Senator Chuck Grassley sticks with the tradition of not moving judicial nominees until both home-state senators have signed off.

Grassley said recently the blue slip tradition is intended for district judges, whose jurisdiction is limited to their home states, not to circuit courts of appeals that have jurisdiction over several states. Other Senate Republicans say the tradition is meant to delay, not permanently block, nominations, although both parties have used it to that end.

In any case, the battle over the Minnesota nominee could have implications for the federal judicial confirmation process far beyond the Eighth Circuit.

For more background on recent appointments to the Eighth Circuit, see the previous article Trump Administration has three vacancies to fill on the Eighth Circuit.

Trump Administration has three vacancies to fill on the Eighth Circuit

By: Rox Laird on October 5th, 2017

This article was original published in the Summer 2017 edition of the Bar Association of the United States Court of Appeals for the Eighth Circuit Newsletter, and is reprinted here with permission.  

President Donald Trump is positioned to shape the federal circuit courts with 108 federal trial and appellate judgeships to fill when he entered office in January, twice the number when Barack Obama took office. And he shows every sign of moving aggressively to take advantage of this opportunity.

The president had as of Aug. 3 announced 44 nominations, including U.S. District Judge Ralph Erickson of the District of North Dakota, who would replace Judge Kermit Bye of North Dakota, and Minnesota Supreme Court Justice David Stras of the Minnesota Supreme Court, who would fill the vacancy created when Judge Diana Murphy of Minnesota took senior status last November. The White House on Aug. 3 announced the nomination of Omaha lawyer Steven Grasz to replace former Chief Judge William Jay Riley of Nebraska, who took senior status in June.

Presuming these three nominees are confirmed, President Trump will have appointed a third of the Eighth Circuit in his first six months in office. And, there could be three more vacancies during his first term, with Judges Roger Wollman and James Loken both already eligible to take senior status and with Duane Benton becoming eligible this year.

President Trump’s current and potential first-term appointment opportunities will not change the makeup of the court based on the party of the appointing presidents, however: Seven of the eight active judges on the circuit were appointed by GOP presidents, and six of those were appointed by either George H.W. Bush or George W. Bush. The court has just one Democratic appointee—Judge Jane Kelly of Cedar Rapids.

When the court was last at full strength, three of the eleven judges were appointed by Democrats. Comparing the active circuit-court judges by the appointing president’s party affiliation, the Eighth Circuit is the least balanced of all the circuit courts.

Chief Judge Lavenski Smith of Arkansas, appointed by President George W. Bush in 2002, is the court’s only African-American member, and Judge Kelly is the only woman member.

There was a chance that Kelly might have been joined on the court by another female Democratic appointee: Jennifer Klemetsrud Puhl of North Dakota was nominated by President Obama in 2016 to fill Judge Bye’s seat, but she never got a confirmation vote in the Senate and her nomination died in December at the close of the 114th Congress.

President Trump, on the other hand, is in the rare position to run the table with federal judicial appointments, at least early in this term.

First, the Republican-controlled Senate slowed the pace of judicial confirmations in Obama’s last year in office, which left the new president with those vacancies to fill along with new ones that have opened up since his inauguration. And, while Obama was criticized for being slow to make judicial appointments, Trump has in his first six months sent nominees to the Senate at three times the rate of the Obama White House.

Second, Republicans hold 52 seats in the Senate, which is enough to confirm federal circuit and district court judges without a single Democratic vote, thanks to a rules change by the Democrats in 2013 eliminating the 60 vote threshold for district- and circuit-court nominees.

For the Eighth Circuit, especially, there would seem to be no worries, what with Iowa’s Senator Chuck Grassley in the Senate Judiciary Committee chairman’s seat.

All of which should mean smooth sailing for Judge Erickson’s nomination in North Dakota, where both senators have issued supportive public statements about Trump’s nominee from that state.

Senator John Hoeven, in announcing his support for Erickson’s nomination, said “Judge Erickson has tremendous experience having served for 23 years in various judicial positions from his start as a Magistrate judge to his current position on the U.S. District Court. Throughout his career, he has upheld the rule of law and shown deep respect for the Constitution. We look forward to moving his nomination through the Senate.”

Senator Heidi Heitkamp said she, too, supports Erickson’s confirmation. “Judge Erickson has proven through his decades of experience, record of impartiality, and devotion to his work that he is a judicious and thoughtful lawyer who continues to follow the rule of law,” Heitkamp said in a June press release.

The same holds true for Grasz in Nebraska, where Senators Ben Sasse and Deb Fischer, who recommended Grasz for the Eighth Circuit vacancy, had high praise for his credentials and experience.

That is not the case in Minnesota, where Senators Amy Klobuchar and Al Franken—both Democrats and both members of the Senate Judiciary Committee—had solicited applications for the opening before the president announced Stras as his pick. Neither has so far committed, at least publicly, to supporting or opposing Stras.

Senator Franken said in a May press release: “Justice David Stras is a committed public servant whose tenure as a professor at the University of Minnesota underscores how much he cares about the law. I am concerned, however, by the fact that Judge Stras’ nomination is the product of a process that relied heavily on guidance from far-right Washington, DC-based special interest groups—rather than through a committee made up of a cross-section of Minnesota’s legal community. As President Trump’s nominee to the U.S. Court of Appeals for the Eighth Circuit, I will be taking a close look at his record and his writings in the coming weeks to better understand how he thinks about the important matters before the federal courts today.”

Following Senate tradition, either Franken or Klobuchar could gum up the works for Stras if they were to refuse to submit a “blue slip” to the Judiciary Committee, a tradition in which senators indicate support for a nominee from their state by submitting a blue slip of paper to the committee. In the past, that gave home-state senators veto power over a president’s nominee, but Senator Grassley has hinted he may dispense with the blue-slip tradition for circuit-court nominees.

That would be a departure for Grassley, who has long defended the blue-slip tradition, and it would surprise University of Richmond Law Professor Carl Tobias, an expert on the federal judicial appointment process, who said “senators see that as the last piece of patronage.”

Justice David Stras

Stras is an associate justice on the Minnesota Supreme Court. He was appointed to the court by Gov. Tim Pawlenty in May 2010 and elected to a full six-year term in 2012.

Justice Stras is a graduate of the University of Kansas where he received his bachelor’s degree and a master of business administration. He received his law degree from the University of Kansas School of Law in 1999.

Stras clerked for Judge Melvin Brunetti of the U.S. Court of Appeals for the Ninth Circuit, for Judge J. Michael Luttig of the U.S. Court of Appeals for the Fourth Circuit, and for U.S. Supreme Court Justice Clarence Thomas.

Judge Ralph Erickson

Judge Ralph Erickson was appointed U.S. District Judge for the District of North Dakota by President George W. Bush in 2003. He was chief judge from 2009 to 2016.

Erickson earned a bachelor’s degree from Jamestown College in 1980 and a law degree from the University of North Dakota School of Law in 1984. He was in private practice for a decade, served as a magistrate, county, and state-court judge before joining the Eighth Circuit.

Steven Grasz

Grasz is senior counsel in the Omaha firm of Husch Blackwell, where he focuses on real estate, development and construction law. Before joining Husch Blackwell he was Nebraska’s chief deputy attorney general for 12 years. His appellate experience includes litigation before the U.S. Supreme Court, the Eighth Circuit, and the Nebraska Supreme Court.

Grasz earned a bachelor’s degree from the University of Nebraska-Lincoln in 1984 and a law degree from the University of Nebraska College of Law in 1989.

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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.