Iowa Supreme Court splits, again, on a juvenile sentencing case

By: Rox Laird on June 22nd, 2018

Iowa’s mandatory sex-offender registry for juveniles who commit a sex offense by force is the equivalent of criminal punishment, a divided Iowa Supreme Court ruled June 15, but it’s not unconstitutional cruel and unusual punishment.

Thus, the Court continued its incremental approach to deciding juvenile sentencing cases that it has followed for the past several terms. These decisions come in the wake of U.S. Supreme Court rulings declaring that certain sentences are cruel and unusual punishment for offenders under age 18 based on the idea that juveniles are fundamentally different than adults.

The Iowa Supreme Court has taken a similar approach on juvenile sentencing, though the justices are typically split 4-3 with Chief Justice Mark Cady providing the deciding vote depending on the question. The Court followed that pattern in its ruling in In the Interest of T.H., Minor Child.

There were actually two majorities in this decision, both written by Cady, with the other six justices divided into separate camps on the punitive and constitutional questions of the sex-offender registry.

Justices Brent Appel, David Wiggins and Daryl Hecht joined the part of Cady’s opinion holding that mandatory registration for juveniles is punishment – thus making up a majority on that issue – but they dissented on the holding that it is not unconstitutionally cruel and unusual punishment.

The tables were turned by Justices Edward Mansfield, Thomas Waterman and Bruce Zager: They dissented from the majority holding that the registry amounts to punishment, but they joined the chief justice to create a majority to say the registration requirement is not unconstitutional.

T.H. was adjudicated as delinquent at the age of 14 for forcing a 16-year-old girl into oral sex against her will. He was placed in a residential sex-offender treatment program and required to register as a sex offender.

Juvenile sex offenders on the registry are generally barred from being near schools (except their own), libraries, child-care facilities, dependent-adult facilities, pools and playgrounds. Similar restrictions apply to working or volunteering around children. They must appear in person every three months to verify compliance with the requirements.

In deciding whether these requirements are cruel and unusual punishment, the Court first addressed the question of whether they amount to punishment. The Court weighed seven factors set out by the U.S. Supreme Court in determining whether a statute is punitive, and concluded that, on balance, Iowa’s registration requirement is punitive.

“The statute imposes an affirmative restraint akin to supervised probation,” Cady wrote. “It mandates the mass dissemination of offender records that are historically kept confidential to promote the juvenile’s potential for rehabilitation. And the sheer number of restrictions imposed on juveniles, given the demonstrated low juvenile recidivism rate, is excessive in light of the civil purpose of preventing multiple offenses.”

T.H. argued that the registration requirement for juveniles is the equivalent of an adult punishment, and therefore unconstitutional, but the Court disagreed, in part because the juvenile court has the authority to revoke the registration requirement when its dispositional order is terminated.

“We find it is not excessively severe for the Legislature to put additional constraints in place during the period when a juvenile adjudicated delinquent of an aggravated sexual offense is receiving reformative services, but has not yet been deemed rehabilitated,” Cady wrote.

Iowa’s mandatory sex-offender registry for juveniles who commit a sex offense by force is the equivalent of criminal punishment, a divided Iowa Supreme Court ruled June 15, but it’s not unconstitutional cruel and unusual punishment.

Thus, the Court continued its incremental approach to deciding juvenile sentencing cases that it has followed for the past several terms. These decisions come in the wake of U.S. Supreme Court rulings declaring that certain sentences are cruel and unusual punishment for offenders under age 18 based on the idea that juveniles are fundamentally different than adults.

The Iowa Supreme Court has taken a similar approach on juvenile sentencing, though the justices are typically split 4-3 with Chief Justice Mark Cady providing the deciding vote depending on the question. The Court followed that pattern in its ruling in In the Interest of T.H., Minor Child.

There were actually two majorities in this decision, both written by Cady, with the other six justices divided into separate camps on the punitive and constitutional questions of the sex-offender registry.

Justices Brent Appel, David Wiggins and Daryl Hecht joined the part of Cady’s opinion holding that mandatory registration for juveniles is punishment – thus making up a majority on that issue – but they dissented on the holding that it is not unconstitutionally cruel and unusual punishment.

The tables were turned by Justices Edward Mansfield, Thomas Waterman and Bruce Zager: They dissented from the majority holding that the registry amounts to punishment, but they joined the chief justice to create a majority to say the registration requirement is not unconstitutional.

T.H. was adjudicated as delinquent at the age of 14 for forcing a 16-year-old girl into oral sex against her will. He was placed in a residential sex-offender treatment program and required to register as a sex offender.

Juvenile sex offenders on the registry are generally barred from being near schools (except their own), libraries, child-care facilities, dependent-adult facilities, pools and playgrounds. Similar restrictions apply to working or volunteering around children. They must appear in person every three months to verify compliance with the requirements.

In deciding whether these requirements are cruel and unusual punishment, the Court first addressed the question of whether they amount to punishment. The Court weighed seven factors set out by the U.S. Supreme Court in determining whether a statute is punitive, and concluded that, on balance, Iowa’s registration requirement is punitive.

“The statute imposes an affirmative restraint akin to supervised probation,” Cady wrote. “It mandates the mass dissemination of offender records that are historically kept confidential to promote the juvenile’s potential for rehabilitation. And the sheer number of restrictions imposed on juveniles, given the demonstrated low juvenile recidivism rate, is excessive in light of the civil purpose of preventing multiple offenses.”

T.H. argued that the registration requirement for juveniles is the equivalent of an adult punishment, and therefore unconstitutional, but the Court disagreed, in part because the juvenile court has the authority to revoke the registration requirement when its dispositional order is terminated.

“We find it is not excessively severe for the Legislature to put additional constraints in place during the period when a juvenile adjudicated delinquent of an aggravated sexual offense is receiving reformative services, but has not yet been deemed rehabilitated,” Cady wrote.


Employees with employment contracts can sue for wrongful termination, the Iowa Supreme Court rules for the first time

By: Rox Laird on June 19th, 2018

The Iowa Supreme Court ruled that employees working under an employment contract can sue their employer for wrongful discharge in violation of public policy.

The ruling in Ackerman v. State of Iowa was one of two handed down June 15 by the Court involving former Workforce Development employees who say they were fired in retaliation for their criticism of the agency. In the second case, Walsh v. Wahlert and State of Iowa, the Court ruled unanimously that former Chief Administrative Law Judge Joseph Walsh can proceed in his wrongful-termination lawsuit under the State’s whistleblower statute but not under a common law claim for wrongful termination in violation of public policy.

Former Administrative Law Judge Susan Ackerman sued after she was fired by former Iowa Workforce Development Director Teresa Wahlert. Ackerman argued she was fired in retaliation for testifying under subpoena to an Iowa Senate committee about what she viewed as improper efforts by administrators to push for unemployment-benefits decisions favorable to businesses.

The issue on appeal was whether Ackerman could sue for wrongful discharge even though she was protected by a collective-bargaining agreement as well as by Iowa’s whistleblower statute. The Court, in a 5-2 decision written by Chief Justice Mark Cady joined by Justices Brent Appel, David Wiggins, Daryl Hecht and Bruce Zager, said those alternative paths do not preclude Ackerman from proceeding directly to district court.

Justice Thomas Waterman, joined by Justice Edward Mansfield, dissented. Waterman argued that since Ackerman was protected by both the collective-bargaining agreement and the whistleblower statute, this was not the case for the Court to consider extending the right to sue beyond at-will employees.

The Iowa Supreme Court 30 years ago recognized for the first time that at-will employees have a right to sue if they are fired in retaliation for actions that are considered to be in the public interest. For example, an at-will employee can contest a termination for exercising the right to pursue a workers’ compensation claim, or for testifying truthfully in a legal proceeding.

The Court has said this common-law principle not only protects at-will employees from being wrongfully terminated but it discourages employers from abusing their power in a way that undermines declared public policy and principles established in legislation.

The question in Ackerman was whether the option of suing for wrongful discharge in violation of public policy is open to an employee working under an employment contract, such as a collective-bargaining agreement that provides employees with a remedy for resolving grievances.

The State argued that option was never meant to be available to those other than at-will employees, but the Court disagreed, saying a right extended to one group does not necessarily exclude other groups from the right. Employees covered by an employment contract are entitled to the same right as at-will employees, the Court said, because claims under employment contracts are limited to the interests of the parties whereas tort claims for retaliatory discharge address larger public policy concerns.

“Nowhere in our law does a contractual employee surrender, by virtue of signing an employment contract, the right to bring a claim for tortious conduct that harms not only the employee, but also the state’s clear public policy,” Cady wrote.

Although the Court held that contract employees in general may bring retaliatory discharge claims, this ruling left open the question whether Ackerman, as a state employee protected by a whistleblower statute, is precluded from bringing her common-law claim. The Court left that question, which was not fully litigated or raised on appeal, for the trial court to resolve on remand.


Iowa Supreme Court reaffirms ‘public duty doctrine’ in rejecting claims against Humboldt County

By: Rox Laird on June 13th, 2018

An Iowa woman who was severely injured in a vehicle accident in Humboldt County cannot sue the county for negligence based on an exception to such liability suits long recognized in Iowa, a divided Iowa Supreme Court ruled June 8.

Kaitlyn Johnson suffered brain damage and paralysis in the accident when a pickup truck driven by her husband left the county road, when into the ditch and struck a concrete barrier.  The concrete barrier was constructed by a private landowner, and was on the private landowner’s land.   Humboldt County had a right-of-way easement where part of the barrier was located.  Johnson argued the county was negligent in not removing the barrier.

But the Court in Johnson v. Humboldt County said the claim is barred by the “public duty doctrine,” which says where there is a duty owed to the public in general there is no liability to an individual member of the public. The decision written by Edward Mansfield was joined by Chief Justice Mark Cady and Justices Thomas Waterman and Bruce Zager. Justice David Wiggins filed a dissenting opinion joined by Justices Brent Appel and Daryl Hecht.

This decision is a replay of the Court’s most recent discussion of the public-duty doctrine in the 2016 ruling in Estate of McFarlin v. State that said the State of Iowa was not liable for a boating death that occurred on the state-owned Storm Lake when a boat struck a submerged dredging pipe. The Court held that lawsuit was barred because the State owed a duty not to the fatally injured boater but to boaters at large who are able to use the lake.

The four justices in the majority in that decision reaffirmed it in the Humboldt County case. The three Humboldt County dissenters dissented in McFarlin as well.

The public-duty doctrine, as explained in a legal treatise cited by the Court, has been adopted by courts to limits government liability.

“The limitless potential liability that might be visited on government entities if affirmative duties were imposed on them for every undertaking has influenced courts in limiting the existence and scope of affirmative duties to which government entities are subject,” according to the Restatement (Third) of Torts. “Some courts insist on a ‘special relationship’ between the plaintiff and a public entity that distinguishes the plaintiff from the public at large before imposing an affirmative duty.”

The Iowa Supreme Court has long recognized the public-duty doctrine, saying it is “alive and well” in Iowa, according to a 2007 decision.

In the dissenting opinion, however, Justice Wiggins said the public-duty doctrine should not apply in this case, in part because the county had an affirmative duty to remove the concrete barrier under a State statute that mandates that government authorities remove all obstructions in highway right-of-ways within their jurisdiction.


Iowa Supreme Court: Plaintiff’s attorney crossed a line, so the defendant gets a new trial

By: Rox Laird on June 7th, 2018

The Iowa Supreme Court sent an asbestos case back for a new trial because the plaintiff’s attorney prejudiced the defendant in closing arguments. And the Court clarified its previous ruling on punitive damages in such cases.

The decision in Kinseth v. Weil-McLain handed down June 1 was written by Chief Justice Mark Cady and joined by all members of the Court.

A Wright County jury awarded the estate of Larry Kinseth $4 million in compensatory damages and $2.5 million in punitive damages against boiler manufacturer Weil-McLain. Kinseth worked for more than three decades assembling and installing boilers and in the process inhaled asbestos dust and fibers from products used to seal boiler components. He died in 2009 of a type of lung cancer caused by inhaling asbestos.

The trial judge ordered plaintiff’s counsel at the outset not to make certain prejudicial statements to the jurors, including how much the defendant spent on lawyers and expert witnesses, Weil-McLain’s wealth or power relative to the plaintiff, and that the jury should “send defendant a message” in its verdict. The defendant, in seeking a new trial, said Kinseth’s attorney violated that order in her closing argument, but the judge ruled Weil-McLain waived the objection by making it too late in the process.

The Supreme Court disagreed, saying that failing to make a contemporaneous objection does not necessarily waive the objection, and in this case the mistrial motion was timely because it was made before the case was submitted to the jury.

Some of the objections to plaintiff counsel’s statements were warranted, some were not, the Court held. It was fair, for example, to attack the credibility of defense witnesses informed by studies sponsored by Weil-McLain, whereas counsel crossed the line by comparing the requested compensatory damages to the amount of money made by a defendant’s expert witness.

Plaintiff’s counsel clearly went too far, “perhaps most jarringly” the Court said, in stating that a punitive damages award between $4 million and $20 million is within the realm of what Weil-McLain spent on this litigation. “The sole purpose of these statements is to alert the jury that Weil-McLain has deep pockets and can afford a substantial award,” Cady wrote.

“When attorneys approach the jury box to present their closing arguments, they carry with them an immense responsibility,” Cady wrote, and “we observe a heightened sensitivity to inflammatory rhetoric and improper statements, which may impress upon the jury that it can look beyond the facts and law to resolve the case. Attorneys have a duty to refrain from crossing the admittedly hazy line between zealous advocacy and misconduct.”

The Court held that plaintiff’s counsel prejudiced the defendant with the theme that Weil-McLain spent exorbitant sums defending against asbestos suits rather than on victims, which the jury could address in its verdict.

On the question of punitive damages, Weil-McLain asserted that it did not deviate from industry standards in its conduct regarding asbestos, citing the 1993 Iowa Supreme Court ruling in Beeman v. Manville Corp. Asbestos Fund. Based on that decision, Weil-McLain argued, Kinseth must show that the company deviated from its peers.

But the Court said that argument ignores a distinction made in Beeman between defendants with specific knowledge of asbestos harms and defendants with only general industry knowledge of those harms.

Beeman instructs that if a defendant lacked specific knowledge of a potential harm and its conduct did not set it apart from others with the same general knowledge, any failure to warn was no more than negligence,” Cady wrote. “However, if a defendant had specific knowledge of the potential harms of asbestos and failed to act, it will not be shielded from punitive damages simply because its peers, who may or may not have had specific knowledge, similarly failed to act.”

Thus, the Court directed the trial court on remand to consider punitive damages in light of this clarification of Beeman. The Court also ruled on a number of other issues that may arise on remand, including allocation of fault and admissibility of evidence.


As Iowa Supreme Court heads into last month of its term, 28 decisions are still in the pipeline

By: Rox Laird on May 31st, 2018

The Iowa Supreme Court is expected to release decisions in five cases Friday, which will bring to 82 the number of cases disposed of so far in the 2017-18 term.

The Court heard its final round of oral arguments on April 10, and all cases have now been submitted. With the release of Friday’s decisions, 23 submitted cases will remain to be decided between now and the end of the term in one month.

At that point, the Court will have disposed of 105 cases, including nine attorney-discipline cases, which is about normal for the Court, which typically decides about 105 cases each year.

One of the five cases expected to be handed down Friday is Bandstra v. Covenant Reformed Church, on whether church elders failed to adequately supervise a male pastor accused of sexually exploiting female congregants, or whether the church is shielded by the religious-freedom clauses of the U.S. and Iowa constitutions.

Among the cases of note that remain in the pipeline:

Honomichl v. Valley View Swine, on whether an Iowa statute that gives livestock operations limited immunity from nuisance liability violates the inalienable rights clause of the Iowa Constitution, and Planned Parenthood v. Kimberly Reynolds, on the constitutionality of Iowa’s statutory abortion restrictions.


A choice between giving up constitutional rights and personal property is no choice at all, the Iowa Supreme Court rules

By: Rox Laird on May 31st, 2018

A person who claims ownership of property seized by the State should not have to choose between invoking constitutional rights or forfeiting the property, the Iowa Supreme Court ruled May 25 (In the Matter of Property Seized From Jean Carlos Herrera and Ferndando Rodgriguez).

Jean Carlos Herrera argued that seizure of the vehicle he was driving, $44,900 in cash and other items was the product of an illegal traffic stop under the Fourth Amendment of the U.S. Constitution and Article I Sec. 8 of the Iowa Constitution.

But the Pottawattamie District Court ruled that Herrera did not have standing to bring the constitutional claim because Iowa’s forfeiture statute mandates that persons claiming possession of seized property explain how they acquired ownership of or interest in the property. Herrera asserted that doing so would violate his rights under the Fifth Amendment against self-incrimination, but the District Court also rejected that argument as well.

The Supreme Court, in a 6-0 decision said the District Court was wrong on both counts. Because Herrera invoked his Fifth Amendment privilege, the trial court must first rule on the Fourth Amendment search question to determine whether the property can be used as evidence in the civil forfeiture proceeding. On a separate question, the Court ruled that co-claimant Fernando Rodriquez is entitled to attorney fees for his efforts to retain possession of the seized vehicle.

The decision was written by Justice Thomas Waterman and joined by Chief Justice Mark Cady and Justices Edward Mansfield, Brent Appel, David Wiggins and Bruce Zager. Justice Daryl Hecht did not participate in the decision.

Iowa’s forfeiture statute allows the State to seize property used or obtained in a crime. A person who claims ownership of or an interest in seized property must – under penalty of perjury – state his or her interest in the property, including “the date, the identity of the transferor, and the circumstances of the claimant’s acquisition of the interest in the property.”

Because Herrera invoked his Fifth Amendment right to refuse to answer those questions to avoid self-incrimination, the Court said the trial court must first rule on Herrera’s motion to suppress the evidence obtained in the vehicle search.

Waterman cited a 1991 Iowa Supreme Court forfeiture decision that said the State cannot use evidence obtained in violation of the Fourth Amendment in a forfeiture proceeding.

“The outcome of the motion to suppress determines what evidence the state can rely on during the forfeiture proceeding,” Waterman wrote. “If Herrera ultimately succeeds on his motion to suppress, the State will be unable to rely on the suppressed evidence in proving the probable cause required for the forfeiture.”

The Court said Herrera has standing to challenge the forfeiture because his privilege claim under the Fifth Amendment “trumps” the mandate in the forfeiture statute that he testify as to how he came to have an interest in the seized property. Otherwise, Waterman wrote, Herrera faces a “difficult choice between asserting his privilege against self-incrimination or foregoing his claim for return of the contested property.”

Finally, the Court held that Fernandez, Herrera’s co-claimant who is the registered owner of the seized vehicle, is entitled to attorney fees for his efforts to reclaim the vehicle.

The State argued that since it voluntarily withdrew its objections to Fernandez’s claim to the vehicle he was not entitled to attorney fees because he was not the “prevailing party.” The Court disagreed, noting that the litigation over recovering the vehicle took place over five months. “The State’s acquiescence to the vehicle’s return after months of contested litigation is tantamount to a voluntary dismissal that in other contexts has been held sufficient to support a fee award,” Waterman wrote.


The Iowa Civil Rights Act doesn’t reach beyond the state’s borders, Iowa Supreme Court rules

By: Rox Laird on May 21st, 2018

An Iowan working for Deere & Co. in China cannot sue for employment discrimination because the Iowa Civil Rights Act does not reach beyond the borders of Iowa, the Iowa Supreme Court ruled May 18.

Matthew Jahnke was brought back to Iowa from his China assignment and demoted following an internal investigation that found his sexual relationships with two Chinese women under his span of control violated Deere’s code of conduct. Jahnke sued under the Iowa Civil Rights Act for disparate treatment arguing he was treated differently because of his age – 60 at the time of the demotion – and the fact that he is a Caucasian male while the two younger Chinese women were not similarly disciplined.

The Court, in a 5-0 decision written by Justice Bruce Zager joined by Chief Justice Mark Cady and Justices Brent Appel, David Wiggins and Thomas Waterman, rejected Jahnke’s arguments. The Court held that the Iowa Civil Rights Act does not apply extraterritorially; nor can Jahnke bring a claim under the Iowa statute because neither he nor Deere & Co. was located in Iowa for purposes of the alleged discriminatory act.

Justices Daryl Hecht and Edward Mansfield did not participate in the decision.

Jahnke, a Deere employee since 1998 last assigned to its Ankeny plant, was sent to China in 2011 as a project manager in Harbin, China, overseeing construction of a new plant and later as factory manager once production began.

In 2014 Deere officials based in China began an investigation into Jahnke’s relationships with the two Chinese women, one a financial controller assigned to assist him, and the other a contract employee hired as a language tutor. Following the investigation, Jahnke was removed from his position in China, demoted and reassigned to the company’s factory in Waterloo at a reduced salary grade.

The justices concluded that Jahnke does not have a disparate-action claim under the Iowa Civil Rights Act because, under its prior rulings, the Court presumes that a statute “lacks extraterritorial reach unless the Legislature clearly expresses otherwise.” Nothing in the Iowa Civil Rights Act expressly states or indicates that it applies outside of Iowa’s or the nation’s boundaries, the Court said.

When the Legislature intends that a statute operate extraterritorially, it has said so, as it did, for example, by extending the workers’ compensation law and the Tort Claims Act beyond the borders of Iowa, Zager wrote.

“It is telling that the Legislature has clearly indicated its intention for other Iowa statutes to apply extraterritorially by including specific language expressing this intent, yet declined to include comparable language in the ICRA,” Zager wrote. “The Iowa Legislature is aware of our presumption against extraterritoriality and has made this awareness clear in other Iowa statutes. Consequently, if the Iowa Legislature wanted the ICRA to apply extraterritorially, it would have expressly indicated this intent in the statutory text. Yet, the Iowa Legislature did not do so, and it is not for us to alter the ICRA by expanding it to apply extraterritorially.”

Moreover, the Court said applying the Iowa Civil Rights Act outside Iowa creates potential conflicts with the laws of other states and countries, and Iowa should respect the sovereignty of other states rather than impose its policy decision on the employment practices of those states. Because of such concerns for interstate harmony, Zager wrote, a majority of U.S. courts have declined to apply human-rights statutes beyond their own jurisdictions.

Jahnke argued that the Iowa Civil Rights Act nonetheless applies in his case because he is an Iowan who was working on a temporary assignment overseas, and the illegal discrimination he alleged was based on decisions made in Iowa by Iowans. The Court rejected that line of argument, as well, because all of the actions Jahnke cited occurred in either China or Illinois.

At the time of the alleged discrimination, Jahnke lived and worked in China for a Deere subsidiary that operated under the laws of that country. The investigation and recommendation that led to his disciplinary demotion and return to the U.S. was conducted by Deere employees in China and approved and carried out by Deere management based in Moline, Ill.

“Jahnke’s petition does not support his claim that Iowa, or more specifically Polk County, is the proper venue for his employment discrimination claim,” Zager wrote. “Iowa is not the principal place of business for Deere. The only connection with Polk County was that John Deere Des Moines Works was the last place that Jahnke worked prior to his expatriation to China. ”

This is not to say Jahnke had nowhere else to turn. He could have brought a federal employment-discrimination claim under Title VII and the Age Discrimination in Employment Act, Zager wrote, or he may have had a claim under the Illinois Human Rights Act, or the laws of China. But not the Iowa Civil Rights Act.

[Disclaimer: Deere & Co. was represented in this case by Nyemaster Goode attorneys Frank Harty and Debra Hulett.]


Legal malpractice claim tossed by the Iowa Supreme Court because the aggrieved client waited too long to sue

By: Rox Laird on May 15th, 2018

A client who accused her attorney of malpractice missed the deadline for filing a lawsuit against him, according to the Iowa Supreme Court.

Michelle Skadburg said she was acting on the advice of her attorney when she used her late mother’s $107,000 estate to pay the estate’s debts, which exceeded the assets. She sued the attorney, Gary Gately of Whitfield & Eddy, alleging he failed to advise her that proceeds from the estate’s life-insurance policy and a 401(K) account were exempt from any claims against the estate.

Gately denied Skadburg’s malpractice claim and the Cerro Gordo County District Court dismissed the suit on summary judgment because it fell outside the statute of limitations. The Iowa Supreme Court upheld that ruling in a 6-0 decision handed down May 11. (Justice Daryl Hecht did not participate in the case.)

The single issue, Justice David Wiggins wrote for the Court, is whether Skadburg filed the lawsuit within the statute of limitations. In this case, that is five years from when her cause of action accrued, or when she suffered an actual injury. Since that occurred in 2008, when she paid the creditors with exempt funds, allegedly on Gately’s advice, her suit filed in August 2015 missed the deadline by two years.

Skadburg asserted three exceptions to the statutory limit – the discovery rule, the continuous-representation rule and the doctrine of fraudulent concealment – but the Court held none of the three exceptions applied.

Under the discovery rule, the statute of limitations clock starts ticking when plaintiffs discovered or should have discovered their injury. In Skadburg’s case, that was March 2010, when she wrote an email to Gately that showed she was aware of potential negligence by Gately. Nor was her cause saved by the continuous-representation rule or the fraudulent-concealment doctrine, Wiggins wrote, also based on when she became aware of problems with Gately’s advice.


Iowa Supreme Court says convicted child abuser should get police reports that could help him win a new trial

By: Rox Laird on May 14th, 2018

A Black Hawk County man convicted of sexually abusing his granddaughter should have access to police reports that could undermine the credibility of his accuser, the Iowa Supreme Court ruled May 11.

David M. Powers was convicted of sex abuse based on allegations by his granddaughter, identified as K.P. in court records, who said the abuse occurred when she was age 13 and younger. Powers denied the accusations, and family members and a friend testified that she had told lies in the past.

In his petition for post-conviction relief, Powers sought to subpoena Waterloo police investigative reports about an incident that occurred after his trial in which K.P. reported that she had been sexually assaulted by gang members. Powers contended that police officers suspected K.P. had lied about that sexual assault, and he believed that would cast doubt on the truthfulness of her accusations against him.

After reviewing the police reports in camera, however, the District Court quashed the subpoena, saying K.P.’s accusations against the gang members had no relevance to the case against Powers.

The Iowa Supreme Court, in a 4-2 decision, disagreed and sent the case to the District Court and with instructions that Powers have access to the police reports. The majority opinion written by Justice Bruce Zager was joined by Chief Justice Mark Cady and Justices Brent Appel and David Wiggins. Justice Edward Mansfield filed a dissenting opinion joined by Justice Thomas Waterman. Justice Daryl Hecht did not participate in the case.

The Court noted that the issue was whether the police investigative reports should be made available to Powers, not whether they should be admissible in the post-conviction proceedings. That is for the trial judge to decide, but the Supreme Court said when evidence against a defendant relies almost exclusively on the complaining witness’ testimony, the witness’ credibility may be pivotal.

In Powers’ case, the State had no physical evidence or other witnesses and relied almost exclusively on the testimony of K.P.

“Though the jury did hear evidence from K.P.’s family and a friend that she had a reputation for lying,” Zager wrote, “evidence that K.P. had also made false allegations of sexual abuse against others would likely further undermine her credibility in Powers’s favor.”

In his dissent, Justice Mansfield said K.P.’s alleged false claim – which occurred after Powers’ trial – does not constitute newly discovered material evidence because it would at best be used to impeach her testimony. “Criminal trials have an endpoint, and events that occur after trial – as opposed to new evidence about pretrial events – aren’t a basis for reopening the proceedings,” he wrote.

The majority did concede that evidence of another lie may not have affected Powers’ jury had it been presented at trial, but Zager said Powers is entitled to the police reports now because “a significant argument could be made that evidence showing K.P. made false allegations of sexual abuse against others, at or around the time that the motion for new trial was pending, may have had an impact on the sentencing judge when he or she was considering and deciding the motion for new trial.”

An amicus curiae (friend of the court) brief was 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. The brief argued that equal access to exculpatory evidence reduces the imbalance of power between the state and criminal defendants.


Iowa Supreme Court’s sex-by-fraud decision comes down to the meaning of ‘consent’

By: Rox Laird on May 7th, 2018

The Iowa Supreme Court’s May 4 ruling upholding the sex-abuse conviction of a man who faked his identity turns on the question of consent. The question is not whether the woman consented to having sex, however, but the question is with whom.

Michael Kelso-Christy created a phony Facebook account to arrange a sexual encounter with a woman identified in the case as S.G. by impersonating her former high school classmate. Kelso-Christy enticed S.G. into meeting him at her home and to being blindfolded when he arrived. She discovered Kelso-Christy’s deception after he quickly exited the house without revealing his identity and she contacted the real classmate she thought she was meeting.

The Court, in a 4-2 decision written by Justice Mark Cady joined by Justices Edward Mansfield, Thomas Waterman and Bruce Zager, rejected Kelso-Christy’s argument that his conviction should be overturned because the sex was consensual. Deceptions such as Kelso-Christy perpetrated on his victim do not establish consent, the Court held. (Justice Daryl Hecht did not participate in the case.)

Kelso-Christy was convicted of burglary with intent to commit sexual abuse, which is defined in Iowa law as a sex act “done by force or against the will of another.” The “against the will” standard protects individuals from nonconsensual acts, the Court said, and the question becomes whether consent is meaningful.

Kelso-Christy argued that it could not be proved that he intended to commit sexual abuse because S.G. consented to sex. But the majority disagreed, saying that because of Kelso-Christy’s deception she did not give meaningful consent. The Court cited an earlier ruling that said consent may be negated “if an act is done that is different from the act the defendant said he would perform.”

Kelso-Christy knew his victim intended to have a sexual encounter with another man, but not with him, Cady wrote. “Rather, Kelso-Christy knew S.G. wished to have sex with someone else and simply decided that fact gave him license to proceed, regardless of S.G.’s actual feelings or preferences. Because it has long been the law in Iowa that consent to sex with one man cannot imply consent to sex with another, Kelso-Christy could not have believed S.G. consented to a sexual encounter with him.”

Justice David Wiggins filed a dissenting opinion joined by Justice Brent Appel.

Wiggins disagreed with the majority’s conclusion that Kelso-Christy’s intent to commit sexual abuse was proved, but his primary reason for departing from the majority is that, in his view, the statute under which Kelso-Christy was convicted does not address sexual abuse by fraud or deception.

“As a caveat, I emphasize that I am not saying the defendant did not commit a wrongful act,” Wiggins wrote. “Rather, because the allegations of fact do not contain all the necessary elements to find Kelso-Christy guilty of sexual abuse, the State could have charged the defendant with another crime.”


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