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.

Prior to joining Senator Rounds’ staff, Kobes was counsel for the Sioux Falls, S.D., biofuels company POET, senior regulatory counsel for DuPont Pioneer and then director of corporate compliance for Raven Industries.

If confirmed, Kobes will be President Trump’s fourth appointment to the 11-member Eighth Circuit, following David Stras of Minnesota, Ralph Erickson of North Dakota, and Steven Grasz of Nebraska.

The president could fill at least two more seats on the Eighth Circuit. Judges James Loken of Minnesota and Duane Benton of Missouri are eligible to take senior status.

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.

A three-judge panel of the Eighth Circuit upheld Wolle’s ruling on the federal pre-emption question but sent the case back for more fact-finding on the state law question. The decision was written by Judge Jane Kelly of Cedar Rapids and joined by Judges Duane Benton of Kansas City and David Stras of Minneapolis.

The statutory question is whether the city’s “management costs” may include construction expenses related to engineering and working around the utilities’ presence in the rights of way. Kelly wrote that “management fees are limited to costs actually incurred by municipalities in managing the rights-of-way,” and those limits are prescribed by the statute.

The panel remanded the case to resolve that fact question, saying the complex factual disputes in this case are not amenable to summary disposition.

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.

Assessing fault: The designated driver? Or a drunken passenger who fell off the trunk of the car?

By: Rox Laird on September 11th, 2017

The U.S. Court of Appeals for the Eighth Circuit ruled this past Tuesday that a designated driver should not be held to a greater degree of fault for a passenger’s injuries than the passenger. (Amy Hiltner v. Owners Insurance Company.)

The panel decision by Judge Steven Colloton of Des Moines joined by Judges Roger Wollman of Sioux Falls, South Dakota, and Bobby Shepherd of El Dorado, Arkansas, reversed a North Dakota trial court ruling that assigned the majority of fault to Samantha Denault, who drove six friends home. Hiltner and another member of the group insisted on riding on the trunk of the car, despite Denault’s repeated pleas to get inside the car. Hiltner fell off and sued to recover damages for her injuries.

The trial court ruled that Hiltner’s fault was greater than any other passenger because, among other things, she volunteered to be the designated driver and as the only sober person had the greatest ability to assess the danger.

The Court of Appeals disagreed, saying the findings of fact do not support assigning greater fault to Denault and pointed out that Denault twice told Hiltner to get off the trunk and that she twice refused. Nor did the district court find that Hiltner was “helpless.”

“None of this is to say that the district court erred in concluding that Denault was ‘at fault’ in the accident,” Colloton wrote.  “But we cannot escape the conclusion that the apportionment of fault among the participants was influenced materially by Denault’s status as the sober designated driver.  This allocation of increased responsibility to Denault was either infected by legal error or unsupported by findings of fact that are necessary to justify it.”

Eighth Circuit rules for union worker who hurled racist comments at strike breakers

By: Rox Laird on August 14th, 2017

“No employer in America is or can be required to employ a racial bigot.”

So begins Judge C. Arlen Beam’s dissent from a ruling Tuesday by the U.S. Court of Appeals for the Eighth Circuit upholding the reinstatement of a union worker fired for hurling racist insults at strike breakers.

Beam parted company with two other judges who upheld a National Labor Relations Board decision reinstating the union worker fired for making the racist remarks on a picket line. The majority, in an opinion by Judge Duane Benton of Kansas City joined by Judge Diana Murphy of Minneapolis, held that the firing violated federal labor law that protects union workers’ right to strike.

Cooper Tire & Rubber Co. locked union members out of its Findley, Ohio, plant after it had reached an impasse over the collective bargaining agreement. Strike breakers – many of them African American – were brought in from the company’s non-union plant in Tupelo, Mississippi.

At one point, a locked-out Cooper employee – Anthony Runion – shouted racist comments as the replacement workers were escorted into the plant in company vans: “Hey, did you bring enough KFC for everybody?” and “Hey anybody smell that? I smell fried chicken and watermelon.”

When union workers were later recalled, Runion was not among them: The company fired him for making the racist statements. The National Labor Relations Board reinstated him with back pay. The company appealed to the Eighth Circuit, which has jurisdiction in Iowa and six other Midwestern states, including and Arkansas where Cooper has a tire plant.

The NLRB ruled that Runion’s abusive language was not uncommon on picket lines where tensions between strikers and replacement workers often lead to obscene gestures and vulgar language. But it said that behavior, by itself and without threats or violence, does not mean those workers forfeit their rights under the National Labor Relations Act.

In upholding the NLRB decision, the Eighth Circuit panel followed a 1980 Ninth Circuit decision that a firing for picket-line misconduct constitutes an unfair labor practice unless the alleged misconduct “may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act.”

“One of the necessary conditions of picketing is a confrontation in some form between union members and employees,” Judge Benton wrote. “Impulsive behavior on the picket line is to be expected especially when directed against nonstriking employees or strike breakers.”

Cooper Tire argued that the NLRB decision conflicted with federal law that protects workers from workplace harassment. But the Eighth Circuit said that, unlike cases where racial slurs and threats of violence extend over several days, “Runion’s comments — even if they had been made in the workplace instead of on the picket line—did not create a hostile work environment.”

In his dissent, Judge Beam of Lincoln said the case presents two issues: “(1) whether Anthony Runion exhibited racial bigotry directed toward African American employees of Cooper Tire and (2) whether the exercise of such bigotry is protected by the terms and conditions of the National Labor Relations Act (NLRA). The answer to question one is clearly yes and the answer to query two is undoubtedly no!”

While he agreed that federal labor law gives locked-out employees the right to picket, “perhaps, in a rough and tumble manner due to disagreeable labor circumstances,” but, the law does not permit “outright racial insult and bigotry as expressed by Runion.”

“The racial epithets expelled by Runion were not simply tolerated, impulsive behavior,” he added. “They were expressions that tended to coerce and intimidate African American employees in the exercise of rights protected under the Act. . . . Discriminatory and degrading stereotypes are not legitimate weapons in economic disputes carried out on the picket line.”

Des Moines will host 2018 Eighth Circuit Judicial Conference

By: Rox Laird on August 1st, 2017

Federal court practitioners and court observers may want to keep their schedules flexible next summer: The 2018 Eighth Circuit Judicial Conference is scheduled to be held in Des Moines Aug. 15-17.

The conference could feature an appearance by U.S. Supreme Court Justice Neil Gorsuch, who was assigned last month by Chief Justice John Roberts to be the circuit justice for the Eighth Circuit, which is made up of Iowa, Minnesota, North and South Dakota, Nebraska, Missouri and Arkansas.

Gorsuch replaces Justice Samuel Alito Jr., who was assigned to the Third Circuit. Previously, Justice Clarence Thomas was the circuit justice for the Eighth Circuit. For many years, Justice Harry Blackmun, a Minnesota native, had that assignment.

Among other duties, the circuit justice typically attends the judicial conference held in one of the states in the circuit. It’s too early to say for certain whether Gorsuch will attend the Des Moines conference, however.

While attendance at judicial conferences is limited to judges in odd-numbered years, it is open to members of the bar in even-numbered years. Those sessions typically include speeches and panel discussions on court-related topics that regularly draw lawyers who practice in the federal courts.

The 2016 circuit conference, held in Rogers, Arkansas, in May included a speech by Chief Justice Roberts. The circuit conference was last held in Des Moines in July 1995.

The 2018 event will be held at the Community Choice Credit Union Convention Center. The Hilton Hotel, which is under construction adjacent to the convention center, is expected to open next spring.

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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.