U.S. Supreme Court to consider an appeal from an Iowa surrogate mother seeking custody of the child

By: Rox Laird on September 20th, 2018

On Monday, the U.S. Supreme Court is scheduled to consider whether to accept the appeal of an Iowa Supreme Court ruling on the enforceability of a contract signed by a woman who acted as a surrogate mother for an Iowa couple unable to conceive a child of their own.

The surrogate mother, identified as T.B. in court documents, was impregnated with embryos fertilized with the intended biological father’s sperm and ova from an anonymous donor. She changed her mind after the child was born, and sued the Cedar Rapids couple in Linn County District Court, arguing that the surrogacy contract was unconstitutional and that her parental rights should not have been terminated.

The Iowa Supreme Court ruled on Feb. 16 that the contract was valid, that the surrogate mother and her husband are not the child’s genetic parents and that the District Court correctly awarded custody of the child to the biological father.

The surrogate mother appealed that ruling to the U.S. Supreme Court. In a brief filed with the Court, lawyers for T.B. argue that surrogate mother’s interest in the child, and her right to be free of state-enforced exploitation, are protected by the 14th Amendment, and that she did not waive those rights by signing the surrogacy contract.

At Monday’s conference, the U.S. Supreme Court has a long list of appeals to consider adding to its docket for the term that begins Oct. 1. The Court is expected to announce later next week which of those cases it will hear this term.

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

By: Rox Laird on August 20th, 2018

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

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

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

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

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

He said he worries it is eroding, however.

“Sometimes I do worry that the right to an independent judge who will tell you what the law is – and a jury, for goodness sakes, deciding what the facts are – are slipping away. We’re becoming comfortable with allowing other people to decide cases and controversy, comfortable losing our juries. I’m not. I’m not comfortable with those things at all.

“The temptation for judges to sometimes let these things slide, to let somebody else decide the case, defer to some other some other point of view, some, maybe political, decision-maker. Isn’t that an incursion on the rule of law?

“When you think about the rule of law, you have to think about the least among us, the most vulnerable. The big guys, they can take care of themselves. What about the little guy, the little person? It seems to me the least amongst us are the most dependent on independent judges.”

Gorsuch also offered some advice for a group of University of Iowa law school students in the room:

“Try to remember why you went to law school. I think within a few years it’s very easy to get caught up in how much money you make, how many hours you bill, what your book of business looks like, how many partnership points you have, what kind of car you drive and the house you live in. It’s interesting how those conversations predominate and suck you over time.

“I suspect the reason you went to law school has nothing to do with any of those things. I suspect your story is very similar to mine, and for some reason you wanted to help people with their problems: So I’d say find some way to be useful, don’t forget that, because at the end of the day, when you sum it all up and you reach the destination and you are sitting in that house telling your grandchildren the story of your life, what is that story? I doubt very much it will be about the houses and the cars. You will talk about the things that matter.”

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 denies DeCosters’ prison sentence appeals

By: Rox Laird on May 22nd, 2017

Two executives of an Iowa-based egg production company apparently will serve time in federal prison for their part in the 2010 salmonella outbreak that resulted in nearly 2,000 reported illnesses and the recall of a half-million eggs.

The U.S. Supreme Court on Monday denied appeals of their federal prison sentences by Austin (“Jack”) DeCoster, the owner of Quality Egg, and his son Peter, the company’s chief operating officer.

Both DeCosters were sentenced to three months in federal prison and ordered to pay a $100,000 fine after they pleaded guilty in U.S. District Court in Sioux City to misdemeanor violations as “responsible corporate officers” under the federal Food, Drug & Cosmetic Act.

The DeCosters appealed their sentences to the U.S. Court of Appeals for the Eighth Circuit, arguing it would violate due process and be cruel and unusual to send them to prison.

While they acknowledged the company’s criminal violations for wrongdoing by employees, including falsifying inspection records, mislabeling expiration dates, and bribing a USDA inspector, the DeCosters argued that prison sentences were unconstitutional without evidence that they personally participated in the criminal violations or intended to violate the law.

A three-judge panel of the St. Louis-based Court of Appeals rejected those arguments. The panel (with one dissent) held that as responsible corporate officers the DeCosters were liable, not for the acts or omissions of other company employees, but rather for their own failure to act to prevent or remedy violations of the federal food-safety law.

On Monday the U.S. Supreme Court upheld the Eighth Circuit without comment.

Amicus curiae (friend of the court) briefs were filed with the Supreme Court in support of the DeCosters by the National Association of Criminal Defense Lawyers, the National Association of Manufacturers, and the Washington Legal Foundation.

(See our earlier posts for more background on the DeCosters appeal.)

U.S. Supreme Court denies appeal in Iowa City murder case

By: Rox Laird on January 23rd, 2017

The U.S. Supreme Court Monday denied an appeal of an Iowa Supreme Court ruling that ordered a new trial for Justin Alexander Marshall who was convicted of first-degree murder for the 2009 shooting of an Iowa City landlord.

The Iowa Supreme Court in June ruled that the trial court erred in allowing testimony of a jailhouse informant. The Court concluded that the informant, acting as an agent of the State, “plainly deliberately elicited information from Marshall.” Thus, that testimony cannot be used against Marshall without violating his right to counsel under the Sixth Amendment.

The decision, which was handed down June 30, on the Court’s final day of the 2015-16 term, covered nearly 100 pages. That included the majority opinion by Justice Brent Appel (joined by Chief Justice Mark Cady and Justices David Wiggins and Daryl Hecht) and a dissent by Justice Edward Mansfield (joined by Justices Thomas Waterman and Bruce Zager).

Iowa Attorney General Tom Miller petitioned the U.S. Supreme Court to review the ruling of the Iowa Supreme Court. The Court, without comment, denied the appeal Monday.

That presumably means Alexander will be retried, as Johnson County Attorney Janet Lyness earlier told the Cedar Rapids Gazette that was her intent.

SCOTUS ruling on blood-alcohol tests leads Iowa Supreme Court to delay boating-while-intoxicated case until next term

By: Administrator on June 24th, 2016

By Ryan Koopmans

As Rox wrote yesterday, the Iowa Supreme Court is (or at least was) expected to release a decision next week in State v. Pettijohn, a case about (among other things) whether Iowa’s implied-consent law–the law that punishes drivers who refuse to take a blood-alcohol test–is constitutional.  The case was argued in September, which makes it the Court’s longest outstanding case.  And because the Iowa Supreme Court has been sharply divided over search-and-seizure issues, it is also one of the most anticipated rulings of the term.  

Or at least it was.  Yesterday, the U.S. Supreme Court ruled in Birchfield v. North Dakota that these so-called implied-consent statutes don’t violate the Fourth Amendment when it comes to breathalyzer tests, but that they do violate the Fourth Amendment when it comes to blood tests, unless the police get a warrant.  So you can be punished for refusing to take a breath test; but you can’t be punished for refusing a blood test.

In light of that ruling, the Iowa Supreme Court has put its decision in Pettijohn on hold.  Yesterday afternoon, Chief Justice Mark Cady issued an order stating that the parties (Dale Pettijohn and the State of Iowa) must submit additional briefs to the Court that “address the impact of the Birchfield decision on the issues in this case.”  And they have until August 1 to do so. 

Pettijohn took a breath test; not a blood test.  So if anything, Birchfield is likely to cut against him.  But the Iowa Supreme Court could decide the case differently under the Iowa Constitution; and they’ve done that very thing several times the past five years.  But Birchfield could have just switched the vote from “reverse” (Pettijohn wins) to “affirm” (Pettijohn loses). So it might be a case of bad timing for Pettijohn, who thought he was going to get a decision next week.

Pettijohn’s case is different than Birchfield, though, in that he was boating while drinking rather than driving while drinking.  And he says that matters, because (in his view) driving is a privilege and using public waterways is a right.  We’ll see if that makes a difference.

In any event, we won’t likely know until sometime next fall when the justices return for the 2016-2017 term.

Get back in here! U.S. Supreme Court rejects Eighth Circuit’s “no recalling a jury” rule.

By: Administrator on June 9th, 2016

By Ryan Leemkuil

This blog has previously covered the long-running dispute between former Iowa law school dean Carolyn Jones and Teresa Wagner, a former law school employee who claims she was passed over for a job due to political bias. Most recently, we covered the Eighth Circuit’s 2014 ruling that the district court did not have the power to recall the jurors to render a verdict minutes after they had been discharged. Noting the risk of outside influence, the Eighth Circuit thought a bright line rule was best: Once a court discharges the jury and they leave the courtroom, a jury can no longer render a verdict. In today’s world of “instant individualized electronic communication,” the Eighth Circuit explained, a clear rule “offers better guidance than an amorphous rule that turns on whether jurors in fact became available for or were susceptible to outside influences or remained within total control of the court.” Jones, who was on the losing end of that ruling, asked the Supreme Court to review the case, but the Court declined early last year.

Today, however, the Supreme Court addressed the issue in another case and rejected the Eighth Circuit’s bright line rule. In Dietz v. Bouldin, the Court adopted a multi-factor test to determine whether a discharged jury may be recalled to do further work on a case. Those factors include the delay between discharge and recall, whether the jurors interacted with any non-jurors, and the nature of any courtroom reaction to the initial verdict. Rather than impose any “categorical bar” to recalling a jury, the Supreme Court directed district courts to “cautiously” and “carefully” apply these factors to decide whether a jury may be recalled.

Two dissenting justices—Justice Thomas, joined by Justice Kennedy—preferred the Eighth Circuit’s bright line rule. Echoing the Eighth Circuit’s concerns in Wagner, the dissent reasoned that a clear rule was preferable in “today’s world of cellphones, wireless Internet, and 24/7 news coverage,” where jurors may easily come across prejudicial information after discharge. The majority’s various factors, on the other hand, will only produce more litigation: “Is one hour too long? How about two hours or two days? Does a single Internet search by a juror preclude recalling the entire jury?” An occasional unnecessary “redo,” in the dissent’s view, is preferable to repeated litigation trying to answer these questions.

Dietz won’t matter for the Wagner case—the case was ultimately retried and Wagner lost. But litigators should be on notice: A jury’s discharge might just be temporary.

*Ryan Leemkuil is legal counsel at Fareway  Stores and before that was an attorney at Nyemaster Goode. 

Iowa trucking company gets unanimous U.S. Supreme Court victory

By: Rox Laird on May 20th, 2016

A sexual harassment lawsuit against Cedar Rapids trucking company CRST that has bounced around the federal courts for more than a decade took yet another bounce at the U.S. Supreme Court Thursday.

The history of this case is so contorted that the Supreme Court devoted 11 pages of the 16-page opinion to a recitation of the background. The court’s legal discussion was much more succinct, however: The result was in favor of the trucking company, which now stands to gain more than $4 million in lawyer’s fees after emerging victorious in its protracted legal battle with the federal government.

The case began in 2005 when driver trainee Monika Starke filed an employment discrimination complaint with the U.S. Equal Employment Opportunity Commission (EEOC), alleging she was sexually harassed by two CRST drivers during training.

The EEOC filed suit against CRST not only on Starke’s behalf, but on behalf of more than 270 women claiming to have suffered similar harassment.

That suit was ultimately pared back down to just Starke’s complaint by U.S. District Judge Linda Reade, in the Northern District of Iowa, who ruled that the federal employment commission had taken unwarranted shortcuts to bootstrap one case into a larger class action.

Although CRST resolved Starke’s complaint in a $50,000 settlement, the Cedar Rapids trucking company sought to recover legal fees it had accumulated during the years it had successfully fought to eliminate the other EEOC complaints. Judge Reade agreed and awarded the company more than $4.5 million in legal fees and expenses.

The Court of Appeals for the Eighth Circuit, which has jurisdiction over Iowa and six other Midwest states, reversed Reade’s ruling. The appeals court determined that federal law provides for fee recovery only by the party that wins a federal civil rights case on the legal merits. The appeals court held that the trucking company had prevailed not on the merits but on procedural issues.

The U.S. Supreme Court, in a decision handed down Thursday, disagreed.

Writing for the unanimous court, Justice Anthony Kennedy said “common sense” dictates legal fees be awarded to the prevailing party whether it wins on merits or other grounds. A win is a win.

“There is no indication that Congress intended that defendants should be eligible to recover attorney’s fees only when courts dispose of claims on the merits,” Kennedy wrote. “The congressional policy regarding the exercise of district court discretion in the ultimate decision whether to award fees does not distinguish between merits-based and nonmerits-based judgments.”

Alas, that does not mean the end of this case.

Although Kennedy noted that it has been 10 years since Starke originally filed her complaint, and the case has already produced “protracted and expensive litigation on the fee issue,” a number of questions remain unresolved.

Thus, the justices sent the case back to the Eighth Circuit, once again.

Update: Chief Justice Roberts denies states’ request to stay the EPA’s mercury rule

By: Rox Laird on March 3rd, 2016

Chief Justice John Roberts issued a brief order today denying a petition by 20 states, including Iowa, seeking an order blocking the Environmental Protection Agency from enforcing a challenged air pollution regulation. (See Wednesday’s post below for more background.) Chief Justice Roberts’s order does not affect the underlying issue in the case, which is currently before the U.S. Court of Appeals for the District of Columbia Circuit.

The U.S. Supreme Court could decide Friday whether to (indirectly) review the Iowa Supreme Court’s telemed abortion decision

By: Administrator on November 10th, 2015

By Ryan Koopmans

When the nine justices of the U.S. Supreme Court meet for conference this Friday, an Iowa Supreme Court case will be on their agenda (kind of).

In June, the Iowa Supreme Court ruled that Iowa’s ban on telemed abortion violates both the U.S. and Iowa constitutions because it places “undue burden on a woman’s right to terminate a pregnancy.”  The operative phrase of that quote–“undue burden” — comes from the U.S Supreme Court’s opinion in Planned Parenthood v. Casey, and it has become the definitive test of whether a law that restricts abortion is constitutional.

Lower courts are now disagreeing, however, on how the undue-burden test should be applied, and in the Iowa telemed abortion case (Planned Parenthood v. Iowa Board of Medicine) the Iowa Supreme Court took sides.

Adopting language from the Seventh Circuit, the Iowa Supreme Court, in an opinion by Justice Wiggins, wrote that the application of the undue-burden test differs depending upon the state’s reason for regulating abortion. If the law’s purpose is to “advance fetal life,” then the law is constitutional unless “its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”  If, however, the law’s purpose is  to “further the health or interest of a woman seeking to terminate her pregnancy,” then the court must scrutinize the state’s medical justifications and weigh them against the burden that the law places on a woman’s ability to terminate her pregnancy.  The more “feebler” the medical justifications, Justice Wiggins wrote (again, borrowing from the Seventh Circuit), the more likely that any burden (even a slight one) will be an undue one.

The Iowa Board of Medicine’s stated purpose in banning telemed abortion was to protect the mother’s health, but the Iowa Supreme Court thought that the health benefits were “very limited.”  In weighing those “very limited” benefits against the burden on the mother (having to travel a greater distance to receive in-person treatment), the justices came to the conclusion that the law violated both the Iowa and U.S. constitutions (though the plaintiffs’ case was based solely on a violation of the state constitution).

But just 10 days earlier, the United States Court of Appeals for the Fifth Circuit came to the opposite conclusion.

In 2013, Texas enacted a statute that, one, requires abortion clinics to comply with standards for ambulatory surgical centers, and, two, prohibits a physician from performing an abortion unless that physician has admitting privileges at a hospital within thirty miles of the location where the abortion will be performed.  The justification for the law — like the justification for Iowa’s telemed regulation — was to protect the health of the mother.  And the burden that the law placed on women choosing to have an abortion — like the burden placed on Iowa women under the telemed abortion regulation — was having to travel greater distances to receive an abortion at a clinic that could meet the new, stricter standards.

Unlike the Iowa Supreme Court, though, the Fifth Circuit concluded that it did not need to closely scrutinize and weigh the state’s medical justifications.  As long as the justifications are rational, the Fifth Circuit concluded, then the focal point of the analysis is on whether the burden (traveling greater distances to receive an abortion) is an undue one.

The Fifth Circuit said that it is not — at least not in most cases.  The court did rule that one clinic could stay open, despite not meeting the admitting privileges and ambulatory surgical center standards, because the next closest clinic that performed abortions (and met the statute) is 235 miles away.  That, the court concluded, is too far.  But lesser distances (specifically, those under 150 miles) do not amount to an undue burden, the court ruled.

The plaintiffs in that case are now asking the U.S. Supreme Court to review the Fifth Circuit’s decision.  They argue that it’s wrong, and (importantly for getting the Supreme Court’s attention) they argue that the Fifth Circuit’s version of the undue-burden test is at odds with the version that other courts, including the Iowa Supreme Court, apply.  The Fifth Circuit’s standard, plaintiffs argue, “stands in direct conflict with decisions of the Seventh and Ninth Circuits and the Iowa Supreme Court, which hold that courts must examine the extent to which laws regulating abortion actually further a valid state interest in assessing whether the burdens they impose on abortion access are undue.”

In response, Texas says that the Fifth Circuit got it right, and that the split among the lower courts isn’t as deep as the plaintiffs advertise.  According to Texas, the Seventh and Ninth Circuit opinions that the plaintiffs point to are in conflict with precedent in those Circuits, and the Iowa Supreme Court decision is an “outlier.”  As a result, Texas says that this case is not Supreme Court material.

So the justices must now decide whether this is indeed an issue worthy of their review.  The Texas case was listed on the Supreme Court’s conference calendar for last Friday (November 6), but the Court relisted it for this week’s conference.  Thus, we might know as early as this Friday whether the justices will take up this issue, and thus whether it will (indirectly) review the Iowa Supreme Court’s decision in Planned Parenthood v. Iowa Board of Medicine. 


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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.