"Big Brother" Reigned In

The United States Supreme Court reigned in "Big Brother" today with its decision in United States v. Jones, holding that the Government must first obtain a search warrant before installing and monitoring a G.P.S. device on a suspects vehicle.

In a day where increased unmanned observation of citizens seems to be an all but accepted way of life with traffic cameras, invasive airport scanners and other similar technology, today's decision by the Supreme Court is a refreshing reminder of the importance of the Fourth Amendment. The Supreme Court's ruling can best be summarized as follows: The Fourth Amendment to the United States Constitution protects the "right of the people to be secure in their person's houses, papers, and effects, against unreasonable searches and seizures." The Government's physical intrusion (installation of a tracking device) on an individual's "effect" (vehicle) for the purposes of obtaining information constitutes a "search." Consequently a search warrant is required prior to the intrusion. (See Your Rights).

The Fourth Amendment to the United States Constitution has long protected citizens from governmental intrusion into their private affairs. Although not as commonly discussed, the Fourth Amendment also stands as a stout protector of private property from governmental interference or intrusion. Justice Scalia, delivering the opinion of the Court, emphasized and reiterated the proud and longstanding tradition that the protection of private property, made possible through the Fourth Amendment, has in our country. He emphasized: "It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted." Justice Scalia then quoted the historical explanation by Lord Camden: "Our law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour's ground, he must justify it by law."

The Government argued that Jones it should not matter that they trespassed on Jone's private effects because he did not have a "reasonable expectation of privacy" in the area of the vehicle accessed by the Government agents (its underbody) and in the location of the vehicle on the public roads, and thus, no Fourth Amendment violation took place. They made this argument relying upon two prior cases decided by the Supreme Court where it held that placement of a "beeper" into a container that was subsequently transported by a defendant and tracked by law enforcement did not qualify as a "search." However, the Supreme Court rejected that argument, pointing out that those two cases (United States v. Knotts and United States v. Karo) involved placement of the tracking device on the property with the "then owner's" permission. Consequently, there was no "trespass" against the individual's property as was the case in Jones, where the agents installed the device on his private property, without his nor anyone else permission.

It is also notable that there was considerable debate between the Justices regarding what the proper approach should be for determining whether a "search occurs" in future cases not involving a physical trespass to a person's property. However, that debate is better left for the legal academics and future cases to ferret out. The key to this case is this: When the government physically invades personal property to gather information, a search occurs within the meaning of the Fourth Amendment to the United States Constitution. If no search warrant or exception to the warrant requirement exists at that time, then the search is illegal and all evidence obtained as a result of the illegal search must be suppressed (thrown out of court).

On an interesting side note, none of this would have been an issue had law enforcement did what they were supposed to do in the first place. Law enforcement initially obtained a search warrant to install the GPS unit on Jones' vehicle but did so a day late and a State short. The warrant required the installation of the device in the District of Columbia within 10 days from the date it was issued. Unfortunately, the agents installed the device in the State of Maryland on the 11th day. Consequently, the warrant did not authorize the installation and the Court had to analyze the case as if no warrant had been issued at all. This is a classic example of had law enforcement done their job correctly in the first place, we wouldn't even be talking about this.

OWI With Children In the Car

Operating While Intoxicated charges are bad but when children are in the vehicle, the situation goes from bad to worse; feloniously worse.

Operating a motor vehicle under the influence of alcohol can be charged as a Class C felony in the State of Iowa, even if nobody is injured as a result of the incident.

Iowa law makes it illegal for a parent or other person having custody or control over a child to "knowingly act in a manner that creates a substantial risk to a child's physical, mental or emotional health or safety." See Iowa Code 726.6. This offense is entitled "Child Endangerment." The gravity of a Child Endangerment offense depends upon the resulting harm to the child. If a serious bodily injury results, it is a Class C, Forcible Felony, punishable by a mandatory 10 year term of imprisonment. If only bodily injury occurs, than it is a non-forcible Class D Felony, punishable by up to 5 years imprisonment. If no bodily injury occurs, it is an aggravated misdemeanor punishable by up to 2 years in prison.

Ordinarily prosecutors file OWI charges that involve children in the car under the Child Endangerment theory as it best fits the offense and has a graduated severity based upon the resulting harm. In ordinary OWI situations, where there is no accident, it is charged as the Aggravated Misdemeanor offense. However, there has been a recent trend in the State for some prosecutors to file the more serious charge of Neglect or Abandonment of a Dependent Person, in order to get a strategic advantage over the defendant.

Neglect of a Dependent Person is committed when a parent, or some other person having custody of a child, "knowingly or recklessly exposes such person to a hazard or danger against which such person cannot reasonably be expected to protect such person's self." See Iowa Code 726.3. While these are in essence the same elements as required for Child Endangerment, the Iowa Supreme Court has held that a person can be charged with either offense when operating a motor vehicle while intoxicated with a child present in the vehicle. Neglect of a Dependent Person is a Class C Felony, punishable by up to 10 years in prison.

As you can see the prosecution obtains a significant greater deal of leverage over a defendant by charging the offense in this manner. After facing a Class C felony, an Aggravated Misdemeanor resolution looks much more agreeable to a defendant who often times had no prior record and no previous involvement with the criminal justice system. Avoiding the felony is their primary concern at that point in time.

There are certainly defenses and arguments to be made in defense of the charges but
as you can see, a fun night of celebrating the holidays with friends and family, can quickly turn into a nightmare. Rather than find yourself in this position, it is wise to ask yourself if that next drink is really needed or at the very least, coordinate with friends and family to ensure that the person driving the children home has not had too much to drink. Please take this as a sobering reminder that a simple, seemingly innocent celebration, can quickly turn into a feloniously terrible nightmare. Feel free to pass this on and share it with friends and family. This is one area where "taking a chance" should not even be an option.

Right to Private Consultation with Attorney

"Those holding custody of arrested persons should honor attorney requests for a private, barrier-free meeting room. Upon request, video and audio recordings should be turned off during the attorney consultation or the attorney should be allowed to temporarily block the camera. In any event, audio and video recording of the in-person attorney consultation shall not be admissible against the accused." Those are the words of Justice Waterman of the Iowa Supreme Court in their recent decision of State v. Walker.

Iowa law has long provided an arrested person the right to call, consult, or see a family member, an attorney, or both, upon arrival at the place of detention following their arrest. In the context of an arrest for operating while intoxicated, if a person requests such a consultation, the arresting officer must give them a "reasonable opportunity" to have such a consultation prior to making their decision regarding chemical testing. See "Your Rights." The question that arose recently, is what level of contact may an attorney have with an arrested person if they come down to the police station to have a personal consultation with the individual. In Walker, the attorney was forced to meet with his client over the phone with a glass partition separating them. The Iowa Supreme Court's answered the question by concluding that an attorney must be given face to face contact so long as there is no specific basis to believe there would be a safety concern. In other words, if the arrested person is behaving himself/herself, the attorney is allowed to meet with them face to face.

Face to face consultation with an attorney is an important right available to a person arrested for operating while intoxicated. Law enforcement has already subjected the individual to "standardized field sobriety tests" and has formed their own conclusion that the person is intoxicated. A competent and qualified attorney must be able to make their own independent evaluation of an individuals level of sobriety in order to provide proper legal advice. This is especially true since Iowa Court of Appeals cases have concluded that law enforcement is not required to share the results of their preliminary testing with the arrested individual. Thus, it is only fair that if an attorney asks, he must be given a "barrier-free" private meeting room to independently assess their client.

The next question that arises is what about video recording the consultation. Law enforcement has an interest in ensuring the safety of the attorney and is also required to keep the arrested person under observation for fifteen minutes prior to administering the breath sample. However, these interests must be balanced with the arrested individuals right to have a private and confidential consultation with his attorney where the attorney may wish to conduct an independent assessment of the persons intoxication prior to providing advice regarding chemical testing. Recognizing this as an important right, the Iowa Supreme Court also concluded that law enforcement may not video or audio record the private consultation. The recording devices must either be turned off or the attorney must be allowed to temporarily block the camera. Even if the consultation is somehow recorded, it cannot be used against the accused.

In conclusion, the Iowa Supreme Court continued in its long standing position in protecting arrested individuals statutory right pursuant to Iowa Code section 804.20 to consult with an attorney before making a decision regarding chemical testing. It is important to note however, that the private and confidential communication provision of section 804.20 does NOT apply to anyone but attorneys. Thus, it is imperative that non-attorneys consulting with an arrested person understand that everything they say or do is likely being recorded and may be admissible against the individual. This brings us back to the three keys to surviving an arrest for OWI: Shut up; Wise up; Lawyer up.

Multi-Million Dollar Verdict For Victims of Trucking Accident

A federal jury in the Southern District of Iowa returned a verdict of over four million dollars for GRL Law's clients who were victims of a semi-truck accident. The accident took place just outside of Mount Pleasant, Iowa, on Highway 218 Southbound, at exit 45.

The multi-million dollar verdict was a result of an accident caused by a negligent truck driver who failed to comply with Iowa and Federal Commercial Trucking Regulations. The truck driver was shown to have falsified her driving logs and also to have violated the hours of service regulations the day prior to the accident. More importantly, plaintiffs established at trial that the driver of the semi-truck had illegally stopped her semi on the shoulder of the highway just minutes prior to the accident. As the truck driver pulled back out into traffic from the shoulder, her clearance lights were not illuminated as required by Iowa law and consequently the plaintiffs, who were just cresting a hill and rounding a curve, were unable to see and ultimately avoid the slow moving semi in time. A reconstruction of the accident established that the semi was traveling anywhere from 18 - 35 mph at the time of the collision on a highway with a speed limit of 65 mph. The trucking company who owned the truck at the time of the accident was also held liable because in the State of Iowa, the owner of a vehicle is liable for the negligent acts of a driver using the vehicle with their consent. See Iowa Code section 321.493. The jury found the defendant truck driver and trucking company to be jointly responsible and 90% at fault while the driver of the plaintiffs vehicle was only found to be 10% at fault under Iowa's comparative fault law.

The results of the accident were tragic. A two-year old boy suffered an open parietal skull fracture resulting in brain injury. The front seat passenger, a 22 year old male was killed on impact. Finally, the driver, an 18 year old female, suffered a fractured C-6 vertebrae. The child continues to suffer from the effects of his traumatic brain injury to this day.

The jury's verdict broke down as follows: $400,915.76 to the driver of the plaintiffs' vehicle with a substantial portion being awarded for past and future pain and suffering; $3,190,852.40 to the brain injured child including compensating for loss of bodily function and past and future pain and suffering; $71,371.59 to the estate of the deceased passenger for his wrongful death; $400,000 to the deceased passenger's mother for loss of her relationship with her son known as consortium; and $25,000 to the father of the injured child for his loss of consortium. With the 10% fault reduction pursuant to Iowa's comparative fault law, the total judgment entered against the defendants was $3,679,325.77

Some people may find it interesting that the trucking company's insurance carrier, National American Insurance Company's final offer to settle ALL claims prior to trial was $350,000. It turned out they were $3,329,325.77 too low.

Smell of Marijuana and Probable Cause

It is not uncommon for police officers to claim that they "immediately detected a strong odor of marijuana" coming from the vehicle, apartment or house. They then use that in an attempt to justify a subsequent search of the car or residence. This begs the question: does the smell of marijuana, standing alone, create probable cause to search? The answer is "yes but ..."

According to the Iowa Supreme Court's recent decision in State v. Watts, the odor of marijuana, burnt or fresh, may create probable cause to search a particular location so long as a few requirements are met. First, the State is required to establish that the odor is sufficiently distinctive to identify a forbidden substance and second, the they must establish the training and qualifications supporting the officer's conclusion that the odor was indeed marijuana. In other words, they have to prove that the officer has sufficient training and knowledge to allow him to accurately and reliably detect and identify the odor as being from marijuana. Establishing prior experience in narcotics enforcement investigations is ordinarily sufficient.

These requirement are based upon the United States Supreme Court's decision from 1948 in Johnson v. United States where the Court stated: "If the presence of odors is testified to before a magistrate and he finds the affiant qualified to known the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant." Johnson v. United States, 333 U.S. 10, 13 (1948). The Iowa Supreme Court has followed that reasoning and in State v. Watts, reconfirmed those requirements.

If the State can establish the required foundation pertaining to the odor of marijuana, probable cause is shown to exist. The next question then becomes was a warrant obtained or was the search conducted without a warrant. If a search warrant was obtained, the application for the search warrant must contain sworn information regarding the officers qualification and experience in detecting the odor or the search warrant will not be valid. The prosecution is not allowed to add to the warrant application or present additional evidence that is not contained in the warrant application once the warrant is approved. What's written in the application at the time it is submitted to the judge or magistrate will determine whether or not probable cause has been established.

If the officers proceed to search without a warrant, they must be able to prove that an exception to the search warrant requirement existed. The most common exceptions are: 1) exigent (emergency) circumstances, such as the immediate threat of evidence destruction; 2) consent; 3) search incident to arrest; or 4) plain view. In most cases law enforcement will attempt to rely upon either emergency circumstances or consent. Remember, a person is NEVER required to consent to a search of their person or property. For more information on your rights pertaining to searches, click here.

Emergency circumstances automatically exist when the smell is coming from a vehicle. Right or wrong, the Supreme Court has held that the inherent mobility of a vehicle creates the danger that the evidence will be destroyed or otherwise dissapear if the vehicle is not searched. For apartments, houses or other residences, the State must establish particular facts that reasonably lead them to conclude evidence is in imminent danger of being destroyed before they may proceed to enter a house without a search warrant. In Watts, the prosecution attempted to argue that the officer was justified in entering the apartment without a warrant "because he didn't know if there were any other individuals inside the residence" that could attempt to destroy evidence. The Iowa Supreme Court said that it is not enough "not to know." Rather, there must be specific information that reasonably leads the officers to believe there are individuals inside the residence that pose an immediate threat of destroying the evidence. Hearing movement and scurrying around within the residence may be sufficient to meet that burden.

In conclusion, the smell of marijuana detected by a trained and qualified individual who is shown to be familiar with the odor, can create probable cause to search. However, it is important to ensure that the proper foundation for that evidence is established. It is equally important to ensure that those facts are sufficiently set forth in the search warrant application or if no search warrant was obtained, that the State can meet its burden of proving that an exception to the warrant requirement existed at the time of the search. It is the seemingly little details that can make a huge difference in search and seizure cases.

KNOW YOUR RIGHTS, EXERCISE YOUR RIGHTS, PRESERVE YOUR FREEDOM.

Can't Unrefuse a Refusal

You can't unrefuse a refusal the Iowa Supreme Court ruled.

Toby Welch was arrested for Operating While Intoxicated (OWI, DUI), in the early morning hours on August 1st, 2009. Following a relatively short investigation which included Mr. Welch consenting to a preliminary breath test, Mr. Welch was arrested for operating a motor vehicle while intoxicated. He was transported to the police station where implied consent proceedings were invoked and he was requested to submit to an evidentiary breath test. Being faced with the decision to consent or refuse the breath test, Mr. Welch requested to place phone calls in order to secure advice, as was his right. After unsuccessfully attempting to contact his attorney and a few family members, Mr. Welch advised the arresting officer that he did not want to take the breath test. Consequently, the arresting officer entered Mr. Welch's refusal into the computer and placed him in a temporary holding area. While in the holding area, Mr. Welch received a return call from this attorney and after speaking with his lawyer, requested an opportunity to take the breath test. The arresting officer most certainly could have permitted Mr. Welch to take the test at that time, however, he informed Mr. Welch that it was "too late" and he had already refused the breath test. As a result Mr. Welch's driving privileges were suspended for his test refusal instead of the lesser period for test failure, or not at all had he passed the test.

Mr. Welch appealed the suspension of his driving privileges for test refusal, alleging that he should be able to unrefuse his refusal. Unfortunately, the Iowa Supreme Court saw it differently. In Welch v. Iowa Department of Transportation, Justice Mansfield, writing for the Court, concluded that a person arrested for OWI is only entitled to "one refusal." This decision was reached based upon the plain language of Iowa's implied consent law which states if a person refuses to consent, a test shall not be given. The Court further justified this holding based upon the fact that a "clearcut 'one refusal' rule reduces the time and cost burdens on law enforcement."

Whether one agrees or disagrees with the Iowa Supreme Court's ruling on this case, there are a couple of important points that are worth repeating.

First, an individual arrested for operating while intoxicated has the legal right to contact an attorney, family member, or both before making a decision regarding chemical testing. While the individual does not have an absolute right to wait two-hours before making their decision, so long as the individual is making a good-faith effort to contact and attorney or family member for advice, the arresting officer cannot unreasonably interfere with those attempts. Don't make a decision without first obtaining the advice you need.

Second, anything less then an unqualified "consent" is a refusal. You have a "reasonable opportunity" to think about your decision and contact someone to assist with you but actions can amount to a refusal just as much as words. Saying "I consent" but not complying with the officer's instructions on how to take the test can still result in a refusal the same way saying "I refuse" will. If you consent, take the test correctly or run the risk of being marked as a "refusal" for non-compliance.

Finally, make sure you are comfortable with your decision to take or refuse testing before you make your decision. There are a number of important considerations to take into account before you make that decision. It never hurts to study up before you find yourself in that unfortunate predicament. Know your rights, exercise your rights, and preserve your freedom. Remember you can't unrefuse a refusal. You can however, refuse after con

Failure to Turn Over Evidence

David Flores has finally won his 15 year battle for a new trial on his conviction for the 1996 high-profile murder of bank executive, Phyllis Davis. (Des Moines Register Story) Mr. Flores has consistently maintained that he was wrongfully convicted since the jury returned its verdict some 15 years ago. His fight has taken him to the Iowa Court of Appeals twice and the Eighth Circuit Court of Appeals in federal court as well. His second trip to the Iowa Court of Appeals was the charm.

On April 13, 2011, the Iowa Court of Appeals affirmed Polk County District Court Judge, Don Nickerson's ruling that Mr. Flores was entitled to a new trial as a result of the Polk County Attorney's Office failing to provide his defense lawyer with a crucial piece of evidence pointing to another individual as a top suspect. The Court of Appeals' full decision can be found here. According to Judge Nickerson and the Iowa Court of Appeals, the Polk County Attorney's office failed to provide the defense with a police report documenting an interview with a witness that suggested an individual by the name of Rafael Robinson was actually responsible for the shooting of Ms. Davis. Obviously, the court concluded that this was important information for the defense to know about and failure to disclose it violated Mr. Flores' right to a fair trial and the prosecutors duty to timely disclose exculpatory evidence to the defense. The Polk County Attorney's Office claimed that they produced the disputed report and even obtained a receipt verifying that fact. However, interestingly enough, that alleged receipt was shredded by the Polk County Attorney's Office pursuant to "standard procedure." The Court of Appeals made a point to question why, if such a receipt existed, would the County Attorney have destroyed it when Mr. Flores was sentenced to life and postconviction proceedings were inevitable.

Mr. Flores' case highlights a problem of significant concern in our criminal justice system; defendant's access to evidence and the State's duty to timely and fully produce evidence within its possession. GRL Law has previously blogged about the destruction of evidence by the prosecution and the Flores case further demonstrates the danger of a prosecutor not turning over evidence in its possession. The scary thought is what would have happened to Mr. Flores had his family not been adamant advocates on his behalf and had he not been able to secure an attorney that was willing to fight for him? What if that report was never discovered? The blunt answer is that a potentially innocent man dies in prison.

Preventing the prosecution from "forgetting," altering, hiding or destroying evidence pertinent to a criminal prosecution can be challenging at times but all efforts should be made to protect a defendant's right to a fair trial. Defendants and defense lawyers can, should routinely make written requests and demands to preserve and produce evidence. However, any requests made through the courts will ultimately fall back into the lap of the prosecutor's office to ensure compliance. If the prosecution does not adequately communicate with the investigating law enforcement agencies, does not have the file in order, or simply does not want certain evidence to be disclosed, there is no realistic way for a criminal defendant to know about its existence. Every so often we are reminded of this fact when a high profile case surfaces where a prosecutor gets caught. Whether its the Duke Lacrosse prosecution, the lesser known Terry Harrington wrongful conviction in Council Bluffs or even Mr. Flores' case, evidence is altered, withheld, or simply "forgotten" by prosecutors more often than news stories could ever report.

What about those instances where the prosecution is not caught? What then? That is a risk that GRL Law is not willing to take. For years GRL Law has made it a practice to make specific requests directly to the investigating law enforcement agencies for the information important to the defense. Their goal is to ensure that ALL evidence relevant to a defense is not only preserved but produced in a timely manner. Experience has taught them that even in routine prosecutions, if they wait for a prosecutor to produce evidence or investigative materials, certain items will be missing or no longer available for one reason or another. This is simply not acceptable. Recently, GRL's "unconventional" approach to the problem has resulted in a heated legal battle with the Polk County Attorney's Office; the same prosecutor's office that was just found to not have turned over vital evidence of a defendant's possible innocence in Mr. Flores' murder prosecution.

Bottom line is that the only way to truly protect the rights of an accused and ensure that all evidence is properly disclosed and produced, is to hold publicly elected prosecutors accountable. A responsible prosecutor must ensure that their conduct and dealings with defendants is beyond reproach and that they always put justice first, even if it means that a case remains open or a conviction is delayed. They wear the "white hat" and should do everything possible to ensure it remains unblemished. Prosecutors have all taken an oath to abide by the prosecutorial standards which are above and beyond those of normal attorneys on opposite sides of litigation. Their role, which is often forgotten by some prosecutors eager to win the admiration of their superiors and peers, is best described by the Iowa Supreme Court in its decision in State v. Graves: "A prosecutor 'is not an advocate in the ordinary meaning of the term.' That is because a prosecutor owes a duty to the defendant as well as to the public. ... [W]hile a prosecutor is properly an advocate for the State within the bounds of the law, the prosecutor's primary interest should be to see that justice is done, not to obtain a conviction."

When prosecutor's forget their duty, it is the public's job to remind them of their oath and responsibilities. Accountability is key. As elected officials, prosecutors are sensitive to public opinion. This can be used for good just as much as it can be used for bad. Sometimes public outcry leads to over zealousness and a win at all costs approach because that is what the public demands. Consequently the duty falls both on the public and prosecutors to ensure that justice is done. Justice delayed is still justice, so long as the right person is convicted after receiving a fair trial. Justice is never accomplished by convicting the wrong person or even possibly the right person without a fair trial. When prosecutors forget this it is the public's duty to remind them that such actions will not be tolerated. Without such a reminder there is a chance that the next illegal conviction is a friend or family member, or worse yet, yours.

Know your rights; exercise your rights; preserve your freedom.

Effective Use of Driver's Rights Card

GRL Law has created the original Iowa Driver's Rights Card which is a tool that allows drivers in the State of Iowa to effectively and efficiently invoke their legal rights.

The Iowa Driver's Rights Card is a written notice to the officer that the individual under investigation is invoking the following rights: 1) Right to remain silent; 2) Right to withhold consent to a search of ones person, property or affects; 3) Right to refuse field sobriety exercises; and 4) Right to phone calls and to consult with an attorney before the breath test at the station. It is simple and succinct and all that needs to be done to invoke these rights is to hand the card to the officer.

Not everyone understands or appreciates the true purpose of GRL Law's Iowa Driver's Rights Card. Some criticize it as encouraging drunk drivers while others look at it as some sort of magic "get out of jail free" card. It is neither. The single most important thing to comprehend with regards to the driver's rights card is that it cannot and does not save someone from themselves. If the individual under investigation is visibly intoxicated and does not have their faculties about them, the card is useless. If the person cannot walk to their car without staggering; starts berating the officer with slurred speech and talks in a non sensible manner; elects to do field sobriety exercises and looks visibly intoxicated; or if the officer gives the person the opportunity to place calls and the person elects not to, the card is useless.

Here are a few tips to ensure that if you are in the unfortunate position where you need to invoke your rights under Iowa law, you will know exactly what to do. First, read the card and understand the rights you are invoking BEFORE you need it. Second, DO NOT hand the card to an officer until it is clear that you are being investigated. Third, remember the rights that are being invoked so if the officer asks if you still want to do what is clearly requested on the card, you can reaffirm the invocation of your legal rights. Finally, say as little as possible. Prisons and jails are full of people that could not hold their tongue. The less you say the better.

Hopefully you are never in the position to use GRL's Iowa Driver's Rights card but if you are, these tips will help you effectively invoke your legal rights in Iowa. Remember though, the only absolute defense to drunk driving is not to operate a motor vehicle while under the influence of alcohol. For more information regarding your rights, log onto www.IOWAOWIDEFENDERS.com.

Deferred Judgment and Gun Rights

If I receive a deferred judgment on a felony charge, does that take away my gun rights? The short answer is "yes."

Iowa Code section 724.26 prohibits a person convicted of certain offenses from possessing a firearm or ammunition. These individuals include convicted felons and individuals convicted of misdemeanor domestic assaults that are subject to a no contact order. Federal law has a similar prohibition which means these offenses can be charged in both State and Federal court. In State court, Felon in Possession of a Firearm is a Class D Felony, punishable by up to 5 years in prison.

The question that inevitably arises in these cases is what qualifies as a conviction? Iowa law gives individuals who have little or no prior criminal history an opportunity to receive a deferred judgment in certain circumstances. A deferred judgment is not a formal conviction, rather, judgment is withheld and the individual is placed on probation for a specified period of time and if probation is successfully completed no conviction is entered on their criminal record. This is a common resolution for a first offense domestic assault or even most first time felony crimes that do not involve violence. Are individuals with deferred judgments on these cases "convicted" for purposes of Iowa and the federal prohibition against felons being in possession of firearms and ammunition?

The answer provided recently by the Iowa Court of Appeals is, "yes." In it's recent decision of State v. Tong, the Court of Appeals concluded that an individual still on probation for a deferred judgment on a felony does qualify as a convicted felon under Iowa's Possession of a Firearm as a Felon statute. According to the Court, the purpose of Iowa's Felon in Possession of a Firearm statute is to protect the public at large which required it to apply the "broad definition of 'conviction.'" Under the "broad definition of 'conviction'" a person who has entered a plea of guilty qualifies as a "convicted person." In order to receive a deferred judgment, the individual must first enter a plea of guilty so according to the Court, they qualify as a "convicted person" even though judgment has technically not been entered against them. As of the date of this article being written, the Court of Appeals decision in Tong is not yet final as Further Review may be requested by the Iowa Supreme Court.

Federal courts in Iowa have adopted a similar approach to the Iowa Court of Appeals. In 2007, Judge Linda Reade of the Northern District of Iowa, concluded that an individual still on probation for a deferred judgment qualified as a convicted felon under 18 U.S. C. 922, the federal Felon in Possession of a Firearm statute. Judge Reade applied a similar approach as the Iowa Court of Appeals and used the broad definition of "conviction" to conclude that it included anyone who had entered a guilty plea to a felony charge. The 8th Circuit Court of Appeals, in its published case of United States v. Reth, accepted Judge Reade's reasoning and concluded that a person on probation for a deferred judgment did indeed qualify as a "convicted person."

What these cases do not address however, is what about an individual who has successfully completed probation on a deferred judgment? When a person successfully completes probation on a deferred judgment they are "discharged without entry of judgment." Under the four factors used by the court to determine if a conviction exists, there is an argument that one who has successfully completed a deferred judgment is not a "convicted person." A conviction under Iowa law exists if the following four factors are established: 1) a judge or jury has found the defendant guilty, or the defendant has entered a plea of guilty; 2) the court has ordered some form of punishment, penalty, or restraint on the person's liberty to be imposed; 3) a judgment of guilty may be entered if the person violates the terms of probation or fails to comply with the requirements of the court's order; and 4) the conviction has become final. A conviction is final if the defendant has exhausted or waived any postorder challenge.

Arguably factor number 3 is no longer satisfied if the person has successfully completed the probationary term on the deferred judgment. Likewise factor number 4 would not be met since the person is discharged without entry of judgment upon successful completion of probation. Needless to say, the question is not entirely clear. Unless one wishes to be the test subject for this issue on appeal after being convicted of being a felon in possession of a firearm, a person with a deferred judgment on a felony charge may be better advised to take up bow hunting instead of using firearms. This area of the law provides no certain answer and with what is at stake, the best approach would be better safe than sorry.

Dismissals - With or Without Prejudice

When a criminal charge is dismissed, an important question that should be asked is; is it with or without prejudice? The reason being is that a dismissal does not always end a prosecution for good. It depends upon the nature of the charge and the nature of the dismissal as well.

For simple and serious misdemeanors such as possession of controlled substances, operating while intoxicated, first offense, and other similar charges, once a charge is dismissed it is done. The defendant is forever discharged and can never be re-prosecuted for that specific charge. The same is not true for aggravated misdemeanors such as operating while intoxicated second offenses, possession of controlled substance, second offenses. In those cases, the nature of the dismissal determines whether or not the charge can be refiled by the prosecutor even after it has been dismissed.

A dismissal with prejudice means that a charge cannot and will not be refiled. This is obviously the best type of dismissal a criminal defendant could hope for. A dismissal without prejudice, however means that the charge can be refiled if the proper procedures are followed, so long as the charge is filed within the applicable statute of limitations. This is far and away the most common form of dismissal.

Just because a dismissal order says "without prejudice", does not mean that the case can be refiled. There are certain procedures that a prosecutor and judge must follow in order to be able to re-file a charge even if the dismissal order states that the charge is dismissed "without prejudice." In a recent Court of Appeals case of State v. Preston, argued by GRL Law attorney, Scott Michels, the Court of Appeals explained that a dismissal without prejudice must specifically state the reason why the dismissal is being requested and why a dismissal "without prejudice" would be in the "furtherance of justice." If the motion to dismiss filed by the prosecutor provides a legally sufficient basis for a dismissal, the trial court must still make a record and a specific finding that the dismissal without prejudice at that point in time is "in the furtherance of justice." If these procedures are not followed then any case that is dismissed is actually dismissed with prejudice and cannot be refiled. This is precisely what the court ruled in State v. Preston and concluded that the operating while intoxicated, second offense, charge should have been dismissed with prejudice.

Dismissals without prejudice are also not allowed to be made by prosecutors in order to gain a tactical advantage or to get around a defendant's exercise of its right to speedy trial. If a defendant can make a showing of an improper basis for a dismissal, the judge can order it dismissed with prejudice even if the prosecutor is asking to be allowed to refile the charge.

Reporting an Accident

Accidents are not uncommon but a person's legal responsibilities following an accident are not always clear. In Iowa, any accident involving property damage in excess of $1,500.00 must be reported to the Iowa Department of Transportation within 72 hours from the accident. A person's legal duty following an accident depends upon the results of the accident.

Injury or Death
If the accident results in injury or death to any person, the driver of a vehicle involved in the accident must, "by the quickest means of communication," provide notice of the accident to the sheriff of the county in which the accident occurred, or the nearest office of the state patrol or other local law enforcement agency. This duty is fulfilled usually by simply calling 9-1-1, to report the accident. The driver of the vehicle must also stop the vehicle at the scene or as close as possible and shall remain on the scene or return to it until law enforcement has had an opportunity to obtain the information necessary to complete an accident report. Failing to comply with these requirements in a death accident is a Class D Felony and failing to comply when injury results is an Aggravated Misdemeanor. In a Vehicular Homicide charge, leaving the scene of the accident can result in the the person being required to serve 70% of their sentence before being eligible for parole.

Property Damage to Another Vehicle
If another vehicle is involved in the accident and that vehicle is either being driven or is "attended" at the time of the collision, the driver must stop and remain on the scene until an accident report can be completed or the required driver information is exchanged. If the other vehicle involved in the accident is not attended and parked, the driver is required to immediately stop and shall either locate and notify the owner of the struck vehicle or must leave a written notice providing the name and address of the driver and owner of the vehicle that struck their car as well as a statement explaining what happened.

Single Vehicle Accident - No Injury or Death
A common occurrence in Iowa, especially during the winter, is a single vehicle accident where nobody is injured or killed and no property damage is done to another vehicle. These types of accidents are not uncommon, whether due to weather, deer or other circumstances. If a person is involved in a single vehicle accident that does not result in injury or death to another person, there is no requirement that they remain on the scene of the accident or even report the accident that same night. It must only be reported if the accident resulted in more than $1,500.00 in damage and in that event, it must be done within 72 hours. If law enforcement investigates the accident, they will file the report. However, the driver of the vehicle, may on their own, report the accident as well. (DOT Form)

A question that is frequently raised in single vehicle accidents is "What if I do not want to incriminate myself?" That is an excellent question to be asking following an accident and something that should be at the forefront of a person's mind especially if alcohol was consumed prior to the accident. A driver, NEVER has to admit to conduct that may result in criminal liability. In fact, Iowa law, in addition to the 5th Amendment to the United States Constitution, specifically states that a driver and/or owner of a vehicle involved in an accident is not required to supply information to a police officer if the owner believes the information may be self incriminating. Also, accident reports and the contents of those reports are by law, confidential and may not be used as evidence in any civil or criminal case arising out of the facts on which the report is based. Thus, a person may report an accident truthfully by submitting the required report and any statements made in that report cannot be used to prosecute them for a crime.

A common practice by law enforcement agencies that is being used more and more, is to impound a persons vehicle until the "driver comes in and claims the vehicle." This is merely a ploy by law enforcement to determine who was driving the vehicle when they have no other evidence to establish that fact. In these situations, the driver, or other concerned individual, is well-advised to involve an attorney to ensure that their legal rights are properly respected. A knowledgeable attorney can assist the individual in complying with the reporting requirements while still preventing them from incriminating themselves.

KNOW YOUR RIGHTS; EXERCISE YOUR RIGHTS; PRESERVE YOUR FREEDOM.

From Covert to Controversy: Committing a Crime for the Greater Good?

Long time conservative Republican representative, Clel Baudler, from Greenfield, has found himself in a bit of hot water recently surrounding his "covert" purchase of medical marijuana in California this past October.

Representative Baudler, a former State Trooper and staunch "law and order" presence in the Iowa House of Representatives, decided to take it upon himself to demonstrate the potential dangers of legalizing medicinal marijuana in the State of Iowa. In doing so, he may have broken the law. According to the Des Moines Register story, Representative Baudler, who understandably "hates illegal drugs" went to California and lied about having hemorrhoids and depression, to obtain a prescription. His purpose was to "prove how asinine it would be to legalize medical marijuana."

While it can be argued to be a noble endeavor by Representative Baudler, the problem arises due to the fact that under California law, it is illegal for a person to fraudulently represent a medical condition to a doctor. Likewise, Iowa law prohibits a person from engaging in "fraud, deceit, misrepresentation, or subterfuge" to "obtain or attempt to obtain a prescription drug." See Iowa Code 155A.23. A violation of this law as it pertains to marijuana would be a Class D Felony in the State of Iowa, punishable by up to 5 years in prison. There is no legal defense for "lying to obtain a controlled substance to prove a point" either.

Since Representative Baudler has for all intents and purposes, proudly admitted to committing a crime (in the event that the doctor was indeed a doctor, which Mr. Baudler doubts), there are some that believe he should be impeached. The irony over all of this debate really has two layers. First, there has been a concerted effort to impeach the remaining Iowa Supreme Court Justices over the "gay marriage" ruling when that faction is unable to point to an alleged crime that the justices committed (a prerequisite to impeachment) but we have a conservative Republican member of the House of Representatives that openly admits to potentially committing a criminal offense without similar repercussions. Second, the face of "law and order" in the House of Representatives now finds himself potentially on the others side of the law for allegedly illegally purchasing the drugs he "hates" so much.

A shot in the dark: Expansion of gun rights and civil liability

As you may have read, a Florida State Student was recently injured and another killed when a friend accidentally discharged a firearm in his apartment. According to Lindsay Peterson from the Tampa Tribune in Florida, Ashley Cownie of Orange Park, Florida died as a result of a rifle shot to the chest. The bullet passed through her completely and then struck fellow Florida State student Keith Savino, injuring him as well, although not critically. The shooting was purely accidental and resulted from a fellow student showing off his new flashlight attached to his rifle while he believed the gun to be unloaded.

Across the country, two students were injured when a gun that a classmate had brought to school accidentally discharged. According to the Associated Press article, the boy had the gun in his backpack. When he reached in to get something to eat, the gun accidentally fired. The bullet passed through a boy’s neck and struck a girl in the head. The girl remains in critical condition as of January 21, while the boy had been released from the hospital and is recovering from home.

While these unfortunate accidents took place in Florida and California, accidental shootings have become of much more interest to Iowans, especially in light of the new law regulating how gun permits will be issued. See the Des Moines Register article Gun law Q & A. Regardless of you position on the issue, most will agree that the new law has sparked a new and recently unrivaled surge in applications to carry and acquire. Approximately 1,500 applications have already been made this year for permits to carry and permits to acquire in Polk County alone, requiring the Sheriff's office to extend their hours. (1473 weapons permits received in 1 county)

Given the new interest in owning and carrying firearms, many Iowans are concerned about what responsibility a gun owner may have towards someone they harm while in possession of that firearm. The answer is relatively straight forward: an individual in possession of a gun, whether legally or not, must at least use ordinary care in handling the weapon. If he or she does not, that person can be held liable for injuries or damages caused to another person. The legal term for failure to use ordinary care is negligence. The "negligence standard" applies in civil causes of action regardless of whether the individual that hurts someone by his negligent actions is charged or convicted of a crime.

Under the United States and Iowa Constitutions and laws, citizens certainly have a right to possess and carry a firearm, subject to certain limitations. This does not however absolve them of their responsibility to handle those guns in a safe and appropriate manner. In fact, it can be argued that one in possession of a gun has a heightened responsibility to be careful and vigilant in its handling so as to ensure the safety of those around them. This is especially true in public where more people are present and could be potentially harmed or if an individual has been consuming alcohol.

While gun laws have not directly been expanded, the new law providing uniformity to the application process has certainly given rise to a surge in ownership. A citizen’s right to own and carry a weapon comes with a corresponding responsibility to ensure the safety of those around them. While the majority of gun owners are responsible and safe, those that aren’t may well find themselves responsible for any harm they cause by their lack of diligence.

Everson Found Not Guilty

At approximately 1:00 p.m. on Thursday afternoon, a Johnson County jury returned its verdict in the sexual abuse trial of Cedric Everson, a former University of Iowa football player. Mr. Everson was acquitted of the sexual abuse allegations but was convicted of simple assault, a simple misdemeanor. The verdict left many wondering how the case starts out as felony sexual assault but ends up simple assault.

Mr. Everson was initially charged with sexual abuse in the 2nd degree, a Class B forcible felony requiring 25 years in prison if he were convicted. After the State's evidence was concluded, the defense moved for Judgment of Acquittal on all charges but focused its attack on the most serious charge, sexual abuse in the 2nd degree. Sexual abuse in the second degree can occur in a number of different situations but the allegation against Mr. Everson was that he aided and abetted Abe Satterfield in the commission of a sex act on the victim using force against her will. The allegation in essence was one of "gang rape." The "aiding and abetting" allegation was the focus of the defense's request for that charge to be dismissed. Ultimately the judge concluded that even taking the evidence in the light most favorable to the prosecution as he is required to do at that stage of the proceeding, the evidence failed to establish the essential elements of sexual abuse in the 2nd degree. That being the case he was required to dismiss that charge.

The dismissal of the most serious charge was not the end of the case however. Anytime a defendant is charged with an offense such as sexual assault, there are multiple levels of that charge (1st, 2nd, 3rd degree). Charging a person with a higher level of an offense also charges them with all of what are called, lesser included offenses. In Mr. Everson's case the "lesser included" charges included sexual abuse in the third degree, assault with intent to commit sexual abuse and simple assault. With the sexual abuse in the second degree dismissed the case was then argued to the jury on the remaining sexual abuse in the third degree and lesser offenses of that. The allegation for this charge was then that Mr. Everson committed a sex act against the victim by force or against her will or that she was in a condition rendering her incapable of consenting, i.e. drunk.

The allegation that a defendant had sex with an intoxicated person who was incapable of consenting due to intoxication is a difficult one to disprove. See prior blog, "An Allegation Impossible to Disprove." However, Mr. Everson's defense attorney did an excellent job of reminding the jury and emphasizing the fact that just because someone claims not to remember, does not mean that they were incapable of consenting at the time. The jury obviously found the evidence insufficient to convict Mr. Everson of this charge as well.

Ultimately the jury concluded that the State proved that Mr. Everson committed simple assault. Simple assault is defined as: "Any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act." Given the allegations against Mr. Everson one is curious how the jury could return a verdict of guilty on an offense that did not include a sexual element to it but their verdict stands as given. Mr. Everson is now facing sentencing on a simple misdemeanor which carries the possibility of up to 30 days in jail and a fine of up to $625. Because the conviction was for a non-sexual offense, Mr. Everson will not be required to be placed on the sexual abuse registry.

Judicial Retention and Same-Sex Marriage: An Informed Vote on the Issue

Last year’s Iowa Supreme Court decision in Varnum v. Brien, sparked one of the most intense political storms that the State of Iowa has ever seen. The Twitter version of the ruling is that the equal protection clause of the Iowa Constitution prohibited the enforcement of a law that granted a privilege or right (civil marriage) to one group of citizens (opposite-sex partners) while specifically making it unavailable to another group of citizens (same-sex partners).

The decision has polarized many within the community. While there are a number of positions and arguments that have arisen throughout this intense debate, the spotlight is now focused squarely on the Iowa Supreme Court Justices that are up for retention. This election, Chief Justice Ternus, Justice Baker and Justice Streit are the members of the Iowa Supreme Court up for a retention vote. Groups have been formed with the sole purpose of campaigning to unseat the Justices, claiming that the decision amounted to “judicial activism” impeding on religious and moral values (See Iowa for Freedom). Other groups have been formed urging the retention of the Justices stressing that in order to be effective the courts must be free from political influence and must rule based upon the law and constitution of the State of Iowa and United States of America. (See Iowans for Fair and Impartial Courts).

The purpose of this article is not to take a position one way or the other on same-sex marriage. It is simply to explain the role of the courts in our system of government and to further clarify what the Iowa Supreme Court ruling said and did not say. An individual’s vote is personal based upon their beliefs and convictions but should also be informed. The purpose of this article is to inform.

Role of the Courts
The government of the State of Iowa, just like that of the United States of America, is divided into three separate branches, each one having a specific and vital role. This is commonly referred to as “separation of powers.” The purpose behind the separation of powers is to ensure that one branch of government does not overreach and ultimately violate the rights of the citizens of the state. The three branches are: legislative, executive and judicial. The legislative branch creates the laws; the executive branch enforces the laws; and the judicial branch is charged with the task of interpreting the laws. When interpreting the laws, the judicial branch is governed by the rule that the constitution is the supreme law of the land and no law may be passed that violates the constitution by infringing upon individual rights that are set forth in the constitution. Any law inconsistent or contrary to the Iowa Constitution is considered void and unenforceable.

All members of the judicial branch are charged with interpreting the laws and ultimately protecting the constitutional rights of all individuals in our state. Conflicts in opinions and interpretations of the laws and constitution are resolved in a court of law, presided over by members of the judicial branch. There is no other place for these issues to be legally resolved once and for all. The issue or conflict must be raised at the earliest possible opportunity, and the first judge to hear the issue must rule and decide the case by applying the legal principles and precedent available to that judge at that time. This means that the issues which often times ignite debate must always be first presented to a lower level judge, be it a magistrate, district associate judge or district court judge. That judge, when presented with the conflict has a legal obligation to make a final ruling on the issue so that if desired, the losing party may appeal that decision to a higher court. If the judge does not make a decision, the judge actually violates the constitution and our system of government fails under those circumstances.

Example: The general assembly (legislative branch) passes a law saying that it was illegal to practice or to be a member of a particular religion. A person affected by this law could raise the issue in court and request a judge to rule that the law prohibiting their practice of that religion violates the Iowa Constitution. Arguably, the constitutional provision violated in this example would be freedom of religion as protected by Article 1 Section 3 of the Iowa Constitution. The first judge to hear the case would have to make a ruling and the losing party would then have the right to appeal it to a higher court. Ultimately the case would come before the Iowa Supreme Court who would then be required to decide the issue, one way or the other. Their ruling would be final if the case involved an interpretation of the Iowa Constitution.

The Opinion
In Varnum v. Brien, the Iowa Supreme Court was squarely presented with the question of whether or not the Iowa law denying marriage licenses to same-sex couples, violated the equal protection clause of the Iowa Constitution. The lawsuit was brought by a group of same-sex couples who were denied a marriage license by the Polk County Recorder and Registrar’s Office. Due to the law in existence at the time, Iowa Code section 592.2(1), Polk County was prohibited from issuing the licenses. The same-sex couples argued that the law prohibiting them from obtaining a marriage license solely based upon the sex of the person they sought to marry violated the equal protection clause of the Iowa Constitution.

The case was assigned to Iowa District Court Judge Robert Hanson, who after being presented with all of the facts and legal arguments on both sides, ruled that the law’s denial of same-sex couples from obtaining a marriage license violated the Iowa Constitution. At that stage in the proceeding Polk County then had the right to appeal Judge Hanson’s ruling, which it did. The case was presented to the Iowa Supreme Court. Being squarely presented with the issue, the Iowa Supreme Court had no choice but to decide the issue presented which was: Does a law limiting civil marriage only to a man and woman violate the equal protection clause of the Iowa Constitution.

In an extensive (51 pages) opinion issued on April 3, 2009, the Iowa Supreme Court unanimously agreed that the law violated the Iowa Constitution. Iowa’s equal protection clause states in its entirety: “All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.”

The Court explained in detail what the equal protection clause of the Iowa Constitution means and the history behind it. It explained: “Iowa’s constitutional promise of equal protection is essentially a direction that all persons similarly situated should be treated alike.” Polk County argued that heterosexual and homosexual couples were not legally “similarly situated” because homosexual couples could not naturally procreate. However, the law dating back decades and even centuries required that the court not look to the categorization but rather to the purpose of the law to determine whether the people affected by the law were “similarly situated.” The reasoning for this is that no two people or groups of people are the same in every way; so if the Court were to merely look at the categorization there could never be an equal protection violation. Prior case law established that the purpose behind Iowa’s marriage laws was, and is, to bring a sense of order to the legal relationships of committed couples and their families in a number of different ways. In this sense, heterosexual and homosexual couples were “similarly situated” under the law according to the Supreme Court.

The next inquiry that the Court had to undertake was whether or not there was a sufficient reason to treat homosexual and heterosexual individuals differently under the law. The County argued that it was justified in treating same-sex couples differently for five different reasons: 1) Maintaining traditional marriage; 2) Promotion of optimal environment to raise children; 3) Promotion of procreation; 4) Promoting stability in opposite-sex relationships; and 5) Conservation of resources.

The Court quickly dispatched the first argument finding that while straightforward, it only had superficial appeal because when one really looked at it the County was attempting to use a “tradition” to justify the classification. The Court concluded that such an approach would “permit a classification to be maintained for its own sake.” It would be like arguing women could not vote because they traditionally have not been permitted to vote. Addressing the second argument, the Court concluded that the vast majority of available scientific research actually supported the conclusion that the best interests of children are served just as equally by same-sex parents as with opposite-sex parents. According to the Supreme Court, the County’s arguments to the contrary were “largely unsupported by reliable scientific studies.” For the “procreation” argument, the Court found that the true purpose behind the statute was not to promote procreation or it would have excluded civil marriage of other groups that do not procreate for reasons such as age, physical disability, or choice. The Court also found that prohibiting same sex civil marriages really did nothing to promote the stability of opposite-sex relationships and it further noted that the County offered no reason why it would do so. Finally, the Court addressed the argument that it was a legitimate government interest to ban same-sex civil marriages to conserve governmental resources. In essence, the County argued that the State would reap less tax benefits because an increasing number of people would be subject to the financial tax benefits of marriage. The Court also rejected this argument concluding that there was no evidence that same-sex couples would use more state resources than opposite-sex couples if given the opportunity. This was especially true considering that the estimated number of same-sex couples anticipated to take advantage of civil-marriage were significantly lower than other groups such as people marrying for a second or subsequent time.

While not argued by the County, the Iowa Supreme Court also addressed the religious opposition to same-sex marriage. The Court recognized that it was understandable that religiously motivated opposition to same-sex civil marriage shapes the basis for the majority of legal opposition to same-sex marriage. The Court stated: “Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrained-even fundamental-religious belief.” However, the Court recognized that other groups had equally sincere, strong religious views yielding the opposite conclusion. According to the Court: “This contrast of opinion in our society largely explains the absence of any religion-based rationale to test the constitutionality of Iowa’s same-sex marriage ban. Our constitution does not permit any branch of government to resolve these types of religious debates and entrusts to the courts the task of ensuring government avoids them.” Bottom line was that it would be a violation of Iowa’s freedom of religion clause for the Court to make a legal decision based upon a religious belief or view. To do so would be, in essence, to take one religious view over another which is what Article 1 Section 3 of the Iowa Constitution specifically prohibits. The Court concluded: “In the final analysis, we give respect to the views of all Iowans on the issue of same-sex marriage-religious or otherwise-by giving respect to our constitutional principles. These principles require that the state recognize both opposite-sex and same-sex civil marriage. Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views.”

The Iowa Supreme Court ultimately concluded that because the law treated “similarly situated” individuals (opposite-sex vs. same-sex couples) differently, and the government could not provide a valid justification for doing so, it violated the equal protection clause of the Iowa Constitution and was consequently void and unenforceable.

Politics and the Courts
Members of the judicial branch in the State of Iowa are not elected. They are appointed to their position by the executive branch after a selection committee makes its recommendation. When a position is open, a nonpartisan commission reviews the qualifications of applicants for the opening, conducts thorough background checks, interviews candidates and ultimately makes a recommendation to the governor. The governor, the head of the executive department, has the final say on which applicant receives the nomination and ultimately appoints the new judge. The judge then serves out his or her term on the bench and is put up for “retention” at the end of the term. The judge must receive a majority of the popular vote to be retained (“yes”) in order to keep the position for another term.

The reasoning behind appointment of judges as opposed to popular elections is to prevent “popular opinion” from determining the outcome of judicial decisions. It is the judiciary’s role to protect citizens from laws or governmental action that might be “popular” at the time, but nonetheless violate constitutional principles of this State and Country. “Popular opinion” many times can lead to a “mob mentality” where governmental action is taken without due consideration being given to the individual constitutional rights that are being affected. Members of the legislative branch are popularly elected and are thus, much more susceptible to being influenced by the wants and desires of the vocal “popular opinion.” In fact, it is the legislature’s job to listen to the pulse of the community opinion over all else. Judges on the other hand, when making their decision, must not listen to community opinion but must first and foremost respect and pay close attention to prior legal decisions, and most importantly, the individual rights set forth in the Iowa and United States Constitution. The law must dictate their decision not “popular opinion” or even their own individual beliefs.

Example: The community becomes outraged at the recent number of shootings and the legislature voted to prohibit anyone within the city limits of major Iowa cities from owning or possessing hand guns. The legislative branch would be listening to the “popular opinion” but obviously those responsible citizens that owned hand guns would not agree with the law. When presented with the case, the Iowa Supreme Court would have to turn a deaf ear to the “popular opinion” and even their own individual beliefs and would have to strike down the “popular” law because it violates those individual’s Second Amendment right to bear arms.

Whether the community necessarily agrees with a judicial decision or not, the judicial branch must remain free from outside influences and must always ensure that their decisions are based upon the law and the constitution. One does not need to look far in history to see how individual rights are violated when the judiciary heeds popular opinion over the inalienable rights bestowed upon all citizens through the Constitution. Listening to “popular opinion,” our country enslaved millions, prohibited women from voting, withheld fundamental basic human rights and privileges simply because of the color of a person's skin, and even detained thousands of U.S. citizens only on account of their race during a time of war. Many, if not all of these actions were sanctioned by the Courts of the day only to be determined to have been incorrect years later. This is why an independent judiciary must remain free from influence by “popular opinion” so that the correct legal decisions can be made at the earliest possible opportunity to remedy and prevent violations of individual’s constitutional rights at the earliest possible opportunity.

Conclusion
In conclusion, the Iowa Supreme Court was presented with a very specific dispute. There are strong opinions and views on both sides of the subject, all with legitimate points and arguments. However, the bottom line is that the courts in Iowa were required to resolve the legal conflict before them. It is understandable that many may be dissatisfied with the decision, but it was the Iowa Supreme Court’s constitutional duty to make a decision one way or the other. The Justices applied the law and the Constitution of the State of Iowa which is the supreme law of the land, and rendered their decision accordingly.

When you go to vote this November, cast your vote according to your own personal beliefs and interests. That is the purpose of popular elections and even our retention system for judges. When it comes to the retention of judges however, please make sure that you cast your vote after becoming informed to the fullest extent possible. If the same-sex marriage decision is important to your vote, we would encourage you to take the time to read the full decision which can be found by clicking this link, Varnum v. Brien. Remember, a vote for or against retention of a judge is not a vote for or against same-sex marriage. Rather it is vote to keep or replace a judge based upon the overall job he or she has done in interpreting the law and the constitution, in every case he or she has presided in up to this point. A valuable resource can also be found by accessing the Judicial Plebesite Results which are the results of a survey answered by attorneys who consistently practice in front of the respective judges. This election, vote your conscience, but vote informed.