Parole and Consent Searches in Iowa

      The Iowa Supreme Court recently handed down a 116 page opinion (including concurrence and dissent) in State v. Baldon, addressing whether a parole agreement which contains a provision requiring the parolee to agree and consent to searches of him and his property at anytime constituted valid consent to search under Article 1, Section 8 of the Iowa Constitution.  In the lengthy but logical and well reasoned opinion, the Court found that such an agreement cannot be voluntary under Article 1, Section 8 of the Iowa Constitution to create a valid exception to the warrant requirement.   In reaching this conclusion the Court went through an extremely thorough analysis of the history of the Fourth Amendment of the United States Constitution and the cases addressing consent in that regard, as well as the historical underpinnings of Article 1, Section 8 and the cases addressing that constitutional provision.  The Court then ultimately decided that the parole agreements were to coercive in nature and therefore could not be used to excuse the warrant requirements of Article 1, Section 8 of the Iowa Constitution.
      In this authors opinion, the most interesting part of this opinion was the concurrence authored by Justice Apple wherein he reviews at depth the right, power, and duty of the Iowa Supreme Court to apply their own interpretation of the Iowa Constitution and depart from the holdings of the United States Supreme Court.  Justice Apple's position as it relates to interpreting the Iowa Constitution is best summarized when he stated "the notion that member of the United States Supreme Court have some kind of superior wisdom that we must show deference to when interpreting provisions of the Iowa Constitution is doubtful at best." After reading this concurrence, one becomes hard pressed to argue that this is not the correct decision.
      The Iowa Supreme Court needs to be applauded for this well thought out, researched, and reasoned opinion.  This opinion is so well written and contains so much history surrounding State and Federal Constitutions that it should be required reading for all attorneys, law students, and citizens of Iowa.  To read the full opinion click here.

Judicial Retention – The Only Bad Vote is an Uninformed Vote

With just over three months left until November’s general elections, the debate over retention of Iowa Supreme Court Justices is heating back up.  This year, four Justices are up for retention, but only one is being targeted in the retention vote: Justice David Wiggins

On August 1, 2012, Republican Party of Iowa Chairman A.J. Spiker issued a press release urging Iowa voters to vote “no” on the retention of Justice Wiggins.  Spiker’s press release alleged that Justice Wiggins and his fellow Justices in 2009 “disregarded years of legal precedent on the status of marriage and how it was to be defined.”  Spiker continued: “Instead of allowing the people of Iowa to decide this issue at the polls, these judges instead chose to impose their will upon the state and re-write history without weighing the merits of our laws and values.”  Current Justices Waterman, Mansfield and Zager are not drawing the fire of Mr. Spiker as they replaced unseated Justices Streit, Ternus and Baker in 2011.

While not specifically mentioned in his press release, Spiker’s campaign against the retention of Justice Wiggins clearly centers around the 2009 Iowa Supreme Court’s landmark decision in Varnum v. Brien.  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).  For a more thorough explanation of please see our prior article.

The Varnum 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 squarely focused on the retention of Justice Wiggins.  This article does not seek to take any particular position on same-sex marriage.  The purpose of this article is to explain the court system, the process by which the judiciary renders decisions and the role that Iowa citizens play in judicial retention.  An individual’s vote is personal based upon their beliefs and convictions but should also be informed because the only bad vote is an uninformed vote.

Role of Iowa 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 distinct 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 infringes upon the individual rights set forth in the Constitution.  Any law which is 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 his/her constitutional role and our judicial system fails. 

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 violates 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 perfect example of this is the Iowa Supreme Court’s 2012 decision in Mitchell County v. Zimmerman where the Iowa Supreme Court concluded that a Mitchell County Ordinance unconstitutionally interfered with the Mennonite communities’ free exercise of religion and was therefore unenforceable.

“Let the People Vote”

A popular complaint accompanying the Iowa Supreme Court’s decision in Varnum is that the Iowa Supreme Court should have let the people of Iowa vote on the issue.  In fact, Mr. Spiker appears to be of that opinion when he states in his press release: “Instead of allowing the people of Iowa to decide this issue at the polls, these judges instead chose to impose their will upon the state and re-write history without weighing the merits of our laws and values.”

It is imperative to understand that once a controversy is presented to a judge or appellate court such as the Iowa Supreme Court, the Court must resolve the conflict and enter a decision one way or another.  Contrary to the suggestion of Mr. Spiker, there is no mechanism for a judge or the Iowa Supreme Court to let the issue be “decided at the polls.” 

For the same-sex marriage issue to be “decided at the polls,” a constitutional amendment would have to be drafted, approved and then presented to the people of Iowa for a popular vote.  According to Article 10 of the Iowa Constitution, this process is controlled by the legislative branch: (Without Iowa the House and Senate approval, no constitutional amendment can even be presented to the public for a popular vote.  For a great explanation of this process, review the Des Moines Register article by Jason Clayworth.)  A court does not have the constitutional authority to submit a constitutional amendment nor is it involved in the process.  To say that the Iowa Supreme Court should have let the people decide this issue through a popular vote is to suggest that the Iowa Supreme Court exceed its constitutionally permitted authority.

Politics and the Courts

While some politicians are characterizing the Iowa Supreme Court’s decisions as political issues, politics and the courts must be kept separate for our system of government to be effective.  Our judicial branch is set up with the specific goal of minimizing political influence on judges.  Back in 1857, the people of the State of Iowa created and approved our system of government, including our judicial appointment and retention system, because they experience first-hand what happens when politics invade the judiciary.

Members of the judicial branch in the State of Iowa are not elected, but instead are appointed by the executive branch after being recommended by a selection committee.  When a position is open, a nonpartisan commission reviews the qualifications of applicants for the vacancy, conducts thorough background checks, interviews candidates and ultimately makes a recommendation to the governor.  The governor, the head of the executive department, makes the final decision appoints the new judge.  The judge then serves out his or her term on the bench and is subject to a “retention” vote at the end of the term.  The judge must receive a majority of the popular vote to be retained (“yes”) in order to serve another term.

The reasoning behind appointment of judges as opposed to popular elections is to prevent “popular opinion” (prevailing opinion of the majority) from determining the outcome of judicial decisions.  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.  It is a legislators’ job to listen to the pulse of the community opinion over all else.  Judges on the other hand, must not listen to community opinion but must respect and abide by prior legal decisions, constitutional principles and most importantly, the articulated individual rights set forth in the Constitution.  The law must dictate their decision, not popular opinion or even their own individual beliefs.  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.

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 disregard popular opinion and even their own individual beliefs and would have to strike down the law because it violates the Second Amendment right to bear arms.

The judicial branch must remain free from outside influences to ensure that decisions are based upon the law and the constitution without regard for public approval or popular opinion.  One does not need to look far in history to see how following popular opinion violated constitutional rights bestowed upon all citizens.  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 ethnicity during a time of war.  Many, if not all of these actions were initially 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 constitutional rights.

Conclusion

In conclusion, the Iowa Supreme Court was presented with a very specific dispute over individual constitutional rights in the context of same-sex marriage.  There are strong opinions 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, not a political dispute.  It is understandable that many may be dissatisfied with the decision but it was the Iowa Supreme Court Justice’s duty to resolve the conflict based on the Constitution of the State of Iowa. 

When you go to vote this November, cast your vote according to your own personal beliefs and interests.  However, when it comes to the retention of judges, please make sure that you cast your vote after becoming informed to the fullest extent possible.  A valuable resource is the Iowa Bar Association Judicial Plebesite Report which contains feedback from attorneys who appear before the respective judges.  Also, don’t hesitate to ask those who may have more experience with Iowa’s judicial system to give you their thoughts on the various judges that are up for retention. 

Remember, a vote for or against retention of a judge is not a vote for or against same-sex marriage or any other decision by the court.  Rather, it is a vote to keep or replace a judge based upon his or her overall performance.  If the same-sex marriage decision is important to your vote, I would encourage you to take the time to read the full decision which can be found by clicking this link, Varnum v. Brien.  If you feel you should have been allowed to vote on the issue, I would strongly encourage you to contact your representatives in the Iowa House and Senate and let them known your opinion.  Remember, they are elected to serve you but judges are appointed to interpret and enforce the Constitution.  This election, vote your conscience, but vote informed.  The only bad vote is an uninformed vote.

By: Robert G. Rehkemper, Attorney at Law, Gourley, Rehkemper & Lindholm, PLC, Des Moines, Iowa.  www.GRLLAW.com

Paternity Fraud

Have you ever wondered what happens if a mother falsely claims that another guy is the father of her child in order to receive monetary support for the child?  The answer in Iowa is now that the mother can be sued for fraudulent misrepresentation.  The cause of action is known as "paternity fraud."

In the Iowa Supreme Court decision of Dier v. Peters, released on June 1, 2012, the Iowa Supreme Court officially recognized a legal cause of action for paternity fraud.  The precise question presented to the Iowa Supreme Court was "whether an individual who made voluntary expenditures based on a mother's fraudulent representation that he had fathered her child has a cause of action against the mother for recovery of those payments."  Their answer was "yes."

Justice Mansfield writing for the Court explained that "paternity fraud" "occurs when a mother makes a representation to a man that the child is genetically his own even though she is aware that he is not, or may not be, the father of the child."  Their decision is based upon a sound application of the long-standing cause of action for fraud. 

In order to prevail on a fraud claim the plaintiff must prove all of the following: 1) the defendant made a representation to the plaintiff; 2) the representation was false; 3) the representation was material; 4) the defendant knew the representation was false; 5) the defendant intended to deceive the plaintiff; 6) the plaintiff acted in justified reliance on the truth of the representation; 7) the representation was a proximate cause of the plaintiff's damages; and 8) the amount of damages.  Since fraud has been a recognized cause of action in the State of Iowa for a very long time, it only made sense to apply it to a paternity fact pattern.  In all reality the Iowa Supreme Court broke no new ground, they simply applied a well-recognized cause of action to a fact pattern not traditionally found in fraud litigation.

The Court also pointed out that a strong public policy reason supported their decision.  In our society we want to encourage individuals such as Mr. Dier to voluntary make payments to support what they believe are their children.  It is the responsible thing to do.  It would be disingenuous to encourage that type of action but then to turn around and prevent recovery of those expenses if it is shown that they were defrauded into making those payments.

One word of caution arises from this decision however.  If a judicial order is already in place, establishing the putative (alleged) father to be the legal father of the child, the father cannot go back and recover the monetary payments made as a result of that court order.  The lesson then must be: GET A PATERNITY TEST BEFORE agreeing to any court ordered child support.  Lawyer up!

Community Caretaking and the 4th Amendment

In this day and age of increasing law enforcement presence, police interaction with citizens is at an all-time high. This isn’t always necessarily a bad thing as a strong police presence in our communities most certainly has a deterrent effect on crime.

Local law enforcement also has an expanded role, commonly referred to as “community caretaking.” As the United States Supreme Court has explained, when exercising the “community caretaking” role, law enforcement is presumably interacting with the public in a way that is “totally divorced from the detection, investigation or acquisition of evidence relating to the violation of a criminal statute.” Cady v. Dombrowski, 413 U.S. 433, 441 (1973). In other words, local law enforcement is not just designed to detect and apprehend criminals they are also responsible for providing the community at large with assistance when it may be needed.

There are three recognized types of “community caretaking” activities engaged in by law enforcement: 1) rendering emergency aid; 2) automobile impound/inventory; and 3) acting as a public servant. The most common two are the first and third; “emergency aid” and “public servant.”

The “emergency aid” activity means what it says. If an officer has specific information leading him to believe that a person is in need of emergency assistance, the officer may stop that individual in order to render that aid. This most often times arises in the context of individual’s suffering from medical problems while driving. Obviously, if there are objective facts pointing to a person being in need of legitimate emergency assistance we want to encourage officers to render that aid.

The “public servant” activity is a little more all-encompassing and involves situations were a citizen is in need of some other type of help. For example; a vehicle is on the side of the road with a flat tire. If a police officer were to just drive by us when we are broken down on the side of the road with a flat tire, we would complain that the officer isn’t doing his job which is often described as to “protect and to serve.” The conflict however, arises when a police officer “seizes” a person to execute one of those “community caretaking” functions.

Not all police interactions with citizens qualify as a “seizure” though. Police will routinely engage in “consensual encounters” where the person is free to go about his/her business if they so desire. During these encounters, any evidence obtained or observations made by the police officer, may be used against the individual. However, if the officer engages in conduct that turns the “consensual encounter” into a “seizure,” such as telling the person not to leave, there must be a legal basis for him to do so, i.e., suspicion of criminal activity.

A “seizure” occurs when law enforcement, through a show of authority, restrains a person of their freedom to move around and go about their business. When a “seizure” occurs, the privacy protections of the Fourth Amendment to the United States Constitution and Article 1 Section 8 of the Iowa Constitution are invoked. Law enforcement may not “seize” an individual without a valid legal basis because doing so violates the Constitution and all evidence obtained as a result of the police action may be suppressed or thrown out of court.

More and more, we are seeing law enforcement attempting to justify their “seizure” of an individual under the “public servant” function of the “community caretaking” exception to the Fourth Amendment. In these situations, the officers admit that the person did not violate any traffic laws nor did they have a reason to believe the citizen was engaged in criminal activity. However, the officer claims that he felt it necessary to stop the person to “see if everything was alright.”

The Constitution has never permitted a “stop and see” approach to law enforcement. It has always required a specific and articulable basis to believe the person has done something wrong or is genuinely in need of assistance. However, some district courts have been convinced by prosecutors to rule that “stop and see” vehicle stops qualify under the “public servant” function of the “community caretaking” exception to the warrant requirement.

The “public servant” function really has not been addressed or discussed in any great detail by Iowa Appellate Courts. What is and is not permitted under this function is far from clear. However, many States have already said that police officers may not “seize” a person in order to engage in the “public servant” function because no legitimate public interest is served in those situations and it would open it up for abuse through “bogus” stops under the guise of “just trying to help.” Recently, the attorneys at GRL Law raised the issue before the Iowa Supreme Court.

In State v. Kurth, the defendant was pulled over in a parking lot of a Perkin’s restaurant after running over debris that had been left in the roadway. The officer admitted that Mr. Kurth did not violate any traffic laws and that he did not have a basis to believe he was engaged in criminal activity at the time. However, the prosecutor argued and the district court agreed that the officer was acting as a “public servant” in checking on Mr. Kurth when he stopped the vehicle.

The fatal flaw to the justification of these types of stops is that there simply is no legitimate societal interest that is furthered by officers “seizing” a motorist in order to render assistance. In each and every case, the public interest can be just as well served by the officers engaging in a “consensual encounter” without needing to actually “seize” the individual. Nothing would prevent an officer from merely walking up to the person and asking if they need help. There is no restraint of their freedom at that point and thus, no concern with a potential violation of the 4^th Amendment. If the person does not need help they can go on about their business. If they want help, then they can accept the officer’s generous offer of assistance at that point in time. There simply is no legitimate public interest that is served by restraining someone of their freedom in order to “help” that person out. If this were the case, then every motorist who pulls over to the side of the road in order to send or receive a text message (which is the law) would be subject to being pulled over by law enforcement just to see if they are ok.

Ultimately, this question will finally be answered by the Iowa Supreme Court. The Kurth case is scheduled to be argued on April 4^th at 9:00. A decision will be issued by the Iowa Supreme Court in the months following.

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.

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.

Right to Phone Calls

Conflict within the Court of Appeals (see http://grllaw.blogspot.com/2008/10/court-in-conflict-iowa-court-of-appeals.html) regarding an arrested persons right to phone calls and the extent of an officers duty when a request is made was resolved today with the Iowa Supreme Court's decision in State v. Garrity http://www.iowacourts.gov/Supreme_Court/Recent_Opinions/20090515/08-0330.pdf.

Today, Justice Baker writing for the Court made it clear that anytime an arrested individual requests to make a phone call, the phone call statute (Iowa Code Section 804.20) is implicated and the officer must then advise the arrested person who he may call and for what purpose and they must then provide the individual with the opportunity to place those calls. Contrary to many Department of Transportation decisions and decisions from District Associate Judges across the State of Iowa, the purpose of the phone call is not limited merely to obtaining advice regarding whether or not to submit to chemical testing. According to Justice Baker: "One purpose of Iowa Code section804.20 is to allow the arrestee to call an attorney before making the decision to submit to chemical testing. . . The statute, however, doe snot limit the phone calls to that purpose. As long as the purpose of the phone call is a good faith purpose (e.g., not for ordering a pizza), the arrestee may chose to contact family or a legal representative for advice, or to have them inform his employer that he is not likely to be at work, pick up children from school, or arrange to have the dog let out." If the officer declines the arrested person's phone call request because it does not fall within the scope of the statute, he must then explain the scope of who the person can call and for what purpose.

It has been a long time coming but finally the Iowa Supreme Court has made it abundantly clear that regardless of the purpose, if an arrested person asks to place a call, the officer cannot simply ignore the request because it did not fall within the rights set forth by section 804.20 rather it is incumbent upon the arresting officer to provide the person the opportunity to make the call or the officer must explain to the individual who he can call if he has requested to call someone other than an attorney or family member. It is clear that a request to place a call, regardless of the purpose, triggers the statute and puts the obligation on the officer to ensure compliance.

Defendant catches break . . . finally!

Finally, a criminal defendant has caught a break as a result of a judges mistake.

In it's decision released this morning, the Iowa Supreme Court affirmed the dismissal of an operating while intoxicated case in the case of State v. John Kramer. The case against Mr. Kramer was weak, to say the least, and at the close of the State's evidence, the defense attorney moved for Judgment of Acquittal contending that even if the court took the evidence in the light most favorable to the state, there was insufficient evidence to sustain a conviction in the case. (For more on judgment of acquittal, see http://www.grllaw.com/CM/Custom/Criminal-Procedure-Timeline.asp). The defenses primary argument appeared to be that there was insufficient evidence to establish that the defendant was actually operating the vehicle. The trial judge initially agreed and granted the Judgment of Acquittal. Following the Judge's initial ruling the prosecutor then pointed out where in the record it was at least arguably established that the defendant admitted to have been driving. The Judge then flip-flopped and reversed his prior ruling and denied the defendant's motion for Judgment of Acquittal. It didn't end there though because clever defense counsel then objected to the change in the ruling, arguing that once the Judgment of Acquittal was made, double jeopardy attached and it could not be undone. Again, the Judge changed his position and agreed with the defense attorney stating "Good. Take it up. It's directed. Goodbye. We're done." The Judge followed up his ruling stating "Well mark this one up for me. My mistake. But I'm going to say the ruling stands." The charges were then dismissed.

The Supreme Court held that the Judge did have the authority and ability to correct his initial entry of Judgment of Acquittal had he so desired without violating the principals of Double Jeopardy. They reasoned that a ruling on Judgment of Acquittal is not final until it is actually entered of record with the Clerk of Court. Prior to that, the courts are permitted to correct or modify their rulings as they seem fit. According to the Supreme Court: "To the extent we have not done so previously, we now hold that a judge may amend an erroneous directed verdict of acquittal where the ruling is corrected immediately and prior to any further proceedings."

The fun part about this case is that while the Supreme Court ruled against the defendant regarding the issue surrounding the Judgment of Acquittal, the defendant ultimately prevailed because the Supreme Court ultimately concluded that the dismissal of the charge following the initial erroneous ruling by the Judge did cause Double Jeopardy to attach because that Order of Dismissal was filed with the Clerk of Court. As a result the second dismissal was final and the defendant could not be retried. Chalk one of for the good guys!

The full opinion can be found at:(http://www.judicial.state.ia.us/Supreme_Court/Recent_Opinions/20090130/07-1202.pdf)

Anfinson Conviction Reversed

This morning the Iowa Supreme Court reversed the conviction of Heidi Anfinson finding that her trial counsel provided ineffective assistance of counsel by failing to sufficiently inquire into the evidence of her postpartum depression. (http://www.iowacourts.gov/Supreme_Court/Recent_Opinions/20081017/06-0076.pdf)

The Anfinson case drew considerable media coverage and public outcry as it involved the death of Heidi Anfinson's 15 day old son who's body was found submerged under rocks in shallow water in Saylorville Lake. Anfinson contended all along that the death of her son Jacob was accidental and that she panicked when she found him submerged in bathwater and then took his body to Saylorville in an attempt to cover up the accident. The first trial resulted in a mistrial as the jury was unable to come to a unanimous verdict but the second trial resulted in a conviction for 2nd degree murder and child endangerment. It is this conviction that the Iowa Supreme Court reversed.

While the conviction was affirmed by the Iowa Court of Appeals on direct appeal, Ms. Anfinson and her family filed an Application for Post Conviction Relief which is another way by which a convicted individual can seek to have their conviction overturned. The primary basis for this Petition was the claim that Ms. Anfinson's trial counsel was ineffective to a point where her constitutional right to the assistance of counsel was violated. In other words, her attorney was alleged to have made a mistake so large that it violated her constitutional rights. In this case, the alleged mistake was refusing to consider and investigate a defense involving postpartum depression or diminished capacity as a result of that medical condition.

According to the Iowa Supreme Court's decision published this morning, Ms. Anfinson had a considerable history of medical and psychological ailments that were consistent with postpartum depression. The Court outlined numerous instances where she exhibited signs and symptoms consistent with postpartum depression. For example at her baby shower, Heidi was perceived by family members to be "exhausted, wooden and unjoyful"; she was hospitalized on 11 days after Jacob's birth and was medicated for depression, suicidal ideation and panic attacks; and she had experienced prior episodes of depression after giving birth and agreeing to the adoption of her first child in 1980 and again following an abortion in 1985. Despite family members insistence that her trial attorney have her mental status evaluated and voicing their concerns that she may have suffered from postpartum depression, trial counsel remained steadfast in his insistence that postpartum depression and diminished capacity defenses should not be pursued because in his opinion that meant that she would have deliberately killed the child which would obviously be contrary to the accidental death defense.

The Iowa Supreme Court agreed that Ms. Anfinson's potential postpartum depression would not have been useful in supporting an insanity or diminished responsibility defense. Neither the State's nor the defenses experts believed she was legally insane at the time of baby Jacob's death. With regards to the diminished capacity defense, Ms. Anfinson was only convicted of 2nd degree murder and in Iowa the defense of diminished capacity is only available in specific intent crimes which in this case would have been the first degree murder charge for which she was ultimately acquitted. Thus, the case came down to whether or not Ms. Anfinson's potential postpartum depression would have assisted in her accidental death defense. According to the Supreme Court, in order to successfully advance the accidental death theory Ms. Anfinosn needed to supply the jury with a plausible explanation of: (1) why Anfinson was so distracted an inattentive that she left her 2 week old baby unattended in bath water; (2) why she behaved irrationally in taking Jacob's body to the lake, burying it under rocks and then returning home to go to sleep; and (3) why she was emotionless later that day when she was questioned by investigators about her child's disappearance. The Supreme Court concluded that the evidence of her postpartum depression would have done so. In an unusually scathing admonishment, Justice Hecht who wrote the opinion stated: "There was ample evidence of Anfinson's postpartum depression available to trial counsel if he had chosen to undertake the most rudimentary inquiry. He chose instead to rebuff all attempts made by Anfinson's family members and her grief counselor to educate him. He closed not only his ears, but also his eyes as he neglected to obtain medical records evidencing Anfinson's mental state."

From a close reading of the Iowa Supreme Court's decision, it is apparent that Ms. Anfinson's trial counsel was found to be ineffective not just because he failed to use the postpartum depression as a defense at trial but primarily because he failed to so much as investigate her medical and psychological state surrounding the time of the child's death. Bottom line is that all defense attorneys, regardless of age, experience and notoriety have a continuing obligation to conduct a reasonable investigation into their client's defense. Sometimes clients and their family can offer valuable insight into a clients case even though many times, attorneys feel like their way is the only way. All it takes is a little extra time for a lawyer to sit and listen; nothing more, nothing less. We don't know it all and at times, the client knows best.

Lazy Officer Exception to the Warrant Requirement?

The Iowa Supreme Court recently created what some may call the "Lazy Officer Exception" to the search warrant requirements of the Fourth Amendment of the United States Constitution and Article 1, Section 8, of the Iowa Constitution. In the State of Iowa v. Christopher Leon Christopher, filed September 12, 2008, the Iowa Supreme Court determined that officer Butler from the Des Moines Police Department was justified in arresting Mr. Christopher without a warrant for the offense of driving while barred he witnessed Mr. Christopher commit some five weeks prior. Officer Butler witnessed Mr. Christopher driving while he was off duty believing him to have a barred driver's license and took no measures to stop him at that time for the violation. Officer Butler confirmed that Mr. Christopher was barred the next day while he was on duty and then saw Mr. Christopher five weeks later and decided to arrest him without a warrant for the offense of driving while barred. Following Mr. Christopher's arrest, he was searched and drugs were discovered.

Prior to trial, Mr. Christopher moved to exclude the use of the drugs at trial arguing that his arrest violated the Due Process Clause and the Fourth Amendment of the United States Constitution as well as the Iowa Constitution. Mr. Christopher argued that the warrantless arrest was not lawful because it was not done within a reasonable time following the commission of the crime.

The Iowa Supreme Court upheld the arrest concluding that a reasonable time requirement between the time the officer observed he offense and the warrantless arrest is not "necessary to protect the rights of the accused."

From a defense perspective, this poses a problem since officers are now allowed to apparently make a warrantless arrest at any time following the commission of a crime that they witnessed so long as it is within the statute of limitations and are free to conduct a warrantless "search incident to that arrest" of the person following the arrest. Some would argue that officers now can be an ostrich with their head in the sand for a crime that they witness until they believe that a person may have evidence of other crimes on their person in order to hurdle the confines of the Fourth Amendment protections against unreasonable searches and seizures.

The Iowa Supreme Court seemed to somewhat address this concern in the decision by cautioning that if the Police delay an arrest to gain a tactical advantage over the an accused, there may be a due process violation.

Does Topless = Indecent Exposure?

It has never been offensive or contrary to our public sense of morality for a male to be in public without a shirt. Woman on the other hand are subject to a double standard. However, one cannot help but wonder "what crime would be committed if a female were to sunbathe topless at a public beach?"

At first blush, the answer may seem logical that it would constitute the crime of indecent exposure. In the words of Lee Corso: "Not so fast my friend."

The recent Iowa Supreme Court decision of State v. Ronnie Isaac(http://www.judicial.state.ia.us/Supreme_Court/Recent_Opinions/20080905/06-2030.pdf) sheds some light on this provocative question. While the facts of Mr. Isaac's case are much more offensive and troubling than the question being posed here and will likely lead to some legislative changes, the decision does provide us with a thorough outline to be used in answering this question. According to the Iowa Supreme Court in Isaac, public exposure does not necessarily equal the crime of indecent exposure. In order to establish the crime of indecent exposure, the State must prove beyond a reasonable doubt the following four elements:

1. The exposure of genitals or pubes to someone other than a spouse;
2. That the act is done to arouse the sexual desires of either party;
3. The viewer was offended by the conduct; and
4. The actor knew, or under the circumstances should have known, the victim would be offended.

In the situation of our topless sunbather, clearly elements 3 and 4 may not be difficult for the State to establish, however, elements 1 and 2 could be problematic.

First, the human breasts do not qualify as "genitals" or "pubes" under Iowa law nor under any recognized medical definition. Therefore, the State would be unable to establish the first element and as a result, a judgment of acquittal or dismissal of the charge would be required on that fact alone.

Second, just assuming that somehow the female breast would qualify as "genitals" or "pubes" the State must prove beyond a reasonable doubt that at the time of the exposure, the person exposed himself/herself for the purpose of arousing or satisfying his/her sexual desires or those of the person making the observation. If there is an understandable alternative purpose to the act other than sexual gratification (who wants tan lines?), then the intent element behind this crime arguably could not be established either.

When we apply the rules of law set forth by the Iowa Supreme Court, it does not appear that topless sunbathing constitutes indecent exposure but a word of caution should be given. Many cities and townships have their own set of municipal ordinances that may have provisions outlawing this type of conduct. We can't begin to go through each and every municipal code section available but we can and do always enjoy providing a little food for thought.

Warrants Require Neutral and Detached Magistrate

"The magistrate approving the warrant must not be an eager (or sullen) police apparatchik or agent." Justice Appel - State v. Freemont citing Johnson v. United States, 333 U.s. 10 (1948).

On May 2, 2008, the Iowa Supreme Court reversed the felony drug and child endangerment convictions of Guy Fremont and Lacy Nelson because the part-time magistrate that issued the search warrant for their residence was not "neutral and detached" as required by the 4th and 14th Amendments to the United States Constitution.

In State v. Freemont the issuing magistrate, although presented with overwhelming evidence establishing probable cause to search the warrant, improperly authorized the search warrant because he was at the time, also representing the father of the child of Freemont's girlfriend who was living at the residence to be searched, in a pending custody and child support dispute. Obviously his client would benefit from drugs being found in his child's mother's residence and would benefit even more if charges were brought against her. The Court recognized that: "A successful search of the home, which sought to find evidence of drug offenses, could make the position of the mother more difficult in the child custody matter and advance the position of the father. . . . A drug charge in a child custody dispute is a very serious matter and goes to the core of the fundamental question in child custody matters -- the best interests of the child." The court concluded: "Under the unusual circumstances of this case, we conclude that the magistrate had a nonpecuniary personal interest in the matter that objectively cast doubt on his ability to hold the balance, nice, clear and true, between the state and the accused." "The magistrate's simultaneous and conflicting dual roles rendered him unable to meet the requirements of a neutral and detached magistrate under the Fourth Amendment."

While it would seem common sense that the magistrate in this case was not "neutral and detached", decades of prior case law did make the issue a little murky. Justice Appel writing for the Court did a great job of reviewing the prior precedent and clearly enunciating why the magistrate's conflict not only violated the requirement that he be "neutral and detached" but also resulted in a violation of the 4th Amendment and the Due Process Clause of the 14th Amendment. Finally, the Court concluded that the harmless error analysis was not appropriate in these situations because "an invalid warrant is the equivalent of no warrant at all" and thus, the harmless error analysis cannot and does not apply in these situations.

The entire decision can be obtained at: http://www.judicial.state.ia.us/Supreme_Court/Recent_Opinions/20080502/06-1443.pdf