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.

Eighth Circuit Court of Appeals rules twice in one week upholding Arkansas death penalty process

By: Rox Laird on April 21st, 2017

The U.S. Court of Appeals for the Eighth Circuit issued two rulings this week, clearing the way for Arkansas to carry out its plan to execute eight convicted murderers. That is assuming there are no more emergency appeals to state and federal courts.

Late Thursday, the St. Louis-based Court of Appeals, which has jurisdiction over seven Midwest states including Iowa, upheld an Arkansas trial court’s rejection of an appeal by four prisoners challenging the application of the state’s clemency procedure. On Monday, the court struck down an order by another Arkansas trial judge that temporarily halted executions of death row inmates that had been scheduled to begin Monday.

Eight active members of the Court of Appeals participated in both cases. Judge Jane Kelly, based in Cedar Rapids, filed dissenting opinions in both.

In Thursday’s ruling on Arkansas’s clemency procedures, the majority ruled that “the district court was correct in determining that, despite the procedural shortcomings in the clemency process, the inmates received the minimal due process guaranteed by the Fourteenth Amendment.”

Kelly wrote in dissent that she would have granted the motion to stay the executions because the prisoners showed a “significant possibility that they were denied due process.”

On the question of the constitutionality of Arkansas’s application of the death penalty, the majority on Monday held that the prisoners were unlikely to succeed in showing a violation of their constitutional rights under the cruel-and-unusual-punishment provision of the Eighth Amendment.

First, the prisoners failed to bring their federal claim early enough in the process, which created a presumption against granting a stay of execution; second, the prisoners were unlikely to succeed in showing the state’s method of execution created an “objectively intolerable risk” of severe pain; and, third, even assuming a risk of pain, the availability of alternative methods cited by the district court are “too uncertain to satisfy the rigorous standard under the Eighth Amendment.”

Judge Kelly, however, said the trial judge was correct in finding that the petitioners had demonstrated that the lethal-injection drug procedure “presents a substantial risk of serious harm” in violation of the Eighth Amendment.

But Kelly said the death row inmates’ core constitutional claim was Arkansas’s plan to carry out eight executions – two a day over 11 days. The rapid pace of executions would create stress for prison staff, reduce preparation time, and eliminate opportunity for “debriefing” to make corrections if something went wrong.

“The state’s expedited execution schedule is troubling on a more fundamental level,” Kelly wrote, quoting an earlier U.S. Supreme Court opinion saying that throughout history society has “steadily moved to more humane methods of carrying out capital punishment.” Arkansas’s plan to execute two men per night on four nights over an 11-day period, however, “represents a step backward,” she wrote.

The Eighth Circuit Bar Association’s Winter Newsletter is Out

By: Administrator on February 13th, 2014

By Ryan Koopmans

The Eighth Circuit Bar Association’s winter newsletter is now available here.  It covers Eighth Circuit decisions on topics from NFL collective bargaining to the Truth in Lending Act, and it contains another profile of the Eighth Circuit’s newest member, Judge Jane Kelly.

Eighth Circuit Newsletter: Intra-Circuit Splits, the Twenty-First Amendment, and Judge Jane Kelly

By: Administrator on June 27th, 2013

The Eighth Circuit Bar Association’s summer newsletter is out, and  it contains two articles by Nyemaster Goode attorney and On Brief contributor Ryan Koopmans. The first article discusses the Eighth Circuit’s conflicting, same-day decisions in United States v. Bruguier and United States v. Rouillard.  (Our earlier coverage of those decisions is here and here.)

The second article analyzes a pending Eighth Circuit case that will decide the meaning of the Twenty-first Amendment.  (Yeah, the one that says we can drink booze.)  The three-judge panel includes two Iowans: Judge Steven Colloton and Judge Stephanie Rose, a newly confirmed district court judge who is sitting on the Eighth Circuit by designation.

The newsletter, which is edited by Briggs & Morgan attorney Scott Flaherty, also contains a profile of our newest Eighth Circuit judge, Jane Kelly (who also hails from Iowa). Read the the whole thing here.

Iowa: Where the potential SCOTUS nominees roam

By: Administrator on May 23rd, 2013

By Ryan Koopmans

ThinkProgress editor Ian Millhiser speculates today on whom President Obama might select as his next Supreme Court nominee.  On the list: Cedar Rapids resident and newly confirmed Eighth Circuit Judge Jane Kelly.

So Iowa is now 2 for 2 on Eighth Circuit judges and potential Supreme Court shortlisters.  Two active Eighth Circuit judges call Iowa home: Steve Colloton and Jane Kelly.  And before the election last fall, Judge Colloton was listed as a potential Romney nominee.  (See here and here.)

We must be doing something right in the Hawkeye State.

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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.