Coverpages Updated 2017

Bridge the Gap Seminar

September 14-15, 2017

The Iowa State Bar Association's Young Lawyers Division presents SCHEDULE - THURSDAY, SEPTEMBER 14 7:30 Registration 8:00 - 8:30 Legislative Update Speaker: Senator Rob Hogg 8:30 - 9:30 Going to Trial Speaker: Timothy Semelroth, RSH Legal 9:30 - 10:00 Gift Tax Return Speaker: Robert Hodges, Brown Winick PLC 10:00 - 10:15 Break 10:15 - 11:00 Mechanics' Liens and Public Bonds Speaker: Robert Gainer, Cutler Law Firm PC 11:00 - 12:00 Juvenile Appeals Sara Strain Linder, Bray & Klockau PLC 12:00 - 1:00 Lunch (not provided with registration) 1:00 - 2:00 State Case Law Update Speaker: Hon. Paul Ahlers, District Associate Judge, District 2B 2:00 - 2:45 Avoiding Probate Like the Plague Speaker: Christine Halbrook, Bradshaw, Fowler, Proctor & Fairgrave, PC 2:45 - 3:00 Break 3:00 - 3:30 Labor and Employment Issues (Employee Angle) Speaker: Whitney Judkins, Fielder & Timmer P.L.L.C. 3:30 - 4:00 Labor and Employment Issues (Employer Angle) Speaker: Bridget Penick, Fredrikson & Byron, P.A. 4:00 - 5:00 Law Practice Management Ethics Speaker: Nick Critelli, Critelli Law PC

SCHEDULE - FRIDAY, SEPTEMBER 15 7:30 Registration 8:00 - 8:30 Turning Judgment Day Into a Pay Day: An Overview on the Execution of Judgments in Iowa Speaker: Kristina Stanger, Nyemaster Goode PC 8:30 - 9:30 Mental Health and the Profession Speaker: Hope Wood, Hope Wood JD 9:30 - 10:00 Forensic Evidence Speaker: Dennis Klein MD, State Medical Examiner 10:00 - 10:15 Break

10:15 - 11:00 Child Support Guidelines Speaker: Wayne Bergman, Iowa Attorney General's Office

11:00 - 12:00 Motions to Suppress Speaker: Matthew Lindholm, Gourley, Rehkemper & Lindholm PLC 12:00 - 1:00 Lunch (not provided with registration) 1:00 - 2:00 Hon. Helen Adams United States Magistrate Judge for Southern District of Iowa 2:00 - 2:45 Effective Mediation Practices Speaker: Kim Stamatelos, Stamatelos & Tollakson 2:45 - 3:00 Break 3:00 - 3:30 Workers' Compensation (Plaintiff Angle) Speaker: Janece Valentine, Valentine Law Office, P.C. 3:30 - 4:00 Workers' Compensation (Defense Angle) Speaker: Julie Gray, Patterson Law Firm LLP 4:00 - 5:00 Succession Planning/Classification Changes Speaker: Tre Critelli, Office of Professional Regulation

Bridge the Gap Seminar

Thursday September 14, 2017

The Iowa State Bar Association's Young Lawyers Division presents

Legislative Update

8:00 a.m. - 8:30 a.m.

Presented by: Senator Rob Hogg Elderkin & Pirnie PLC PO Box 1968 Cedar Rapids, IA 52406 Phone: 319-286-2336

Thursday, September 14, 2017

2017 LEGISLATIVE UPDATE

I. LEGISLATORS AND COMMITTEE INFORMATION

A. Political Composition of the Iowa General Assembly

SENATE

1. 20 Democrats, 29 Republicans, 1 Independent 2. Senate Leadership: a. Jack Whitver (R-Ankeny), President b. Bill Dix (R- Shell Rock), Majority Leader c. Rob Hogg (D-Cedar Rapids), Minority Leader

HOUSE OF REPRESENTATIVES

1. 59 Republicans, 41 Democrats 2. House Leadership: a. Linda Upmeyer (R-Clear Lake), Speaker b. Matt Windschitl (R- Missouri Valley), Speaker Pro Tempore c. Chris Hagenow (R-Windsor Heights), Majority Leader d. Mark Smith (D-Marshall), Minority Leader

B. 2016 Lawyer Legislators

House:

HD47 R Rep. Chip Baltimore HD25 R Rep. Stan Gustafson HD43 R Rep. Chris Hagenow HD02 R Rep. Megan Jones HD33 D Rep. Brian Meyer HD09 D Rep. Helen Miller HD41 D Rep. Jo Oldson HD31 D Rep. Rick Olson HD52 D Rep. Todd Prichard HD98 D Rep. Mary Wolfe HD06 R Rep. Jim Carlin* HD58 R Rep. Andy McKean*

Senate:

SD33 D Sen. Rob Hogg SD13 R Sen. Julian Garrett SD22 R Sen. Charles Schneider SD19 R Sen. Jack Whitver SD16 D Sen. Nate Boulton*

*Newly Elected 3

C. Judiciary Committee Members

SENATE

Brad Zaun, Chair Julian Garrett Tom Shipley Dan Dawson, Vice Chair Kevin Kinney Amy Sinclair Rich Taylor, Ranking Member Janet Petersen Tony Bisignano Charles Schneider Nate Boulton Jason Schultz

HOUSE OF REPRESENTATIVES

Chip Baltimore, Chair Megan Jones Rick Olson Jim Carlin, Vice Chair Kevin Koester Ross Paustian Mary Wolfe, Ranking Member Vicki Lensing Ken Rizer Liz Bennett Andy McKean Ras Smith Stan Gustafson Brian Meyer Beth Wessel-Kroeschell Greg Heartsill Zach Nunn Matt Windschitl Lee Hein Jo Oldson Ashley Hinson

D. Justice Systems Appropriations Subcommittee Members

SENATE Mark Chelgren, Chair Dan Dawson, Vice Chair Bob Dvorsky, Ranking Member Nate Boulton Julian Garret

HOUSE OF REPRESENTATIVES Gary Worthan, Chair David Sieck, Vice Chair Todd Taylor, Ranking Member Marti Anderson Jim Carlin Ashley Hinson Chuck Holz Tim Kacena Jerry Kearns

II. IOWA STATE BAR ASSOCIATION 2017 Affirmative Legislative Program

Bill Subject Bill Description Bill Status No. SF 221 Benefit Corporations Amends IA Business Corporation Act (Chapter Did not advance this HF 62 490) to authorize formation of “Benefit session. Corporations”, which are formed not only for the purpose of shareholder profitability but also for a social purpose or public benefit. HF 639 Calculation of Probate Relates to how the clerk of probate court Passed out of Ways and Court Costs determines and collects charges in connection with Means Committee. Did services provided in probate matters. Excludes not advance. from the determination of court costs property over which the court lacks probate jurisdiction and for which the clerk renders no services. Specifies that for purposes of calculating the costs for other services performed by the court in the settlement of the estate of any decedent, minor, person with mental illness, or other persons laboring under legal disability, the value of such a person’s personal property and real estate is equal to the gross assets of the estate listed in the probate inventory minus, unless the proceeds of the gross assets are payable to the estate, joint tenancy property, transfers made during such person’s lifetime such as to a revocable trust, and assets payable to beneficiaries.

SF 333 Revised Uniform Adopted by the Uniform Law Commissioners in Signed by Governor Fiduciary Access to July 2014, the Act ensures that legally appointed 4/20/17. Digital Assets Act fiduciaries can access, delete, preserve, and pass (RUFADAA) along a person’s digital assets (i.e., documents, photographs, e-mail, and social media accounts) as appropriate.

Probate Iowa Department of Provides for mandatory withholding of Iowa Did not advance this 3 Revenue Inheritance inheritance tax from joint tenancy, payable on session. Tax Withholding death, transfer on death and other assets transferable to non-exempt persons through use of a withholding form developed with the Iowa Department of Revenue.

HF 135 Waiver of Spousal Amends the Iowa Uniform Power of Attorney Act Did not advance this Share by adding a new subsection (10) to 633B.204 to session. clarify that an agent under a power of attorney may waive or relinquish a spousal right, homestead, and elective share if the principal has granted the agent Gen. Powers under the real property section 204 to 633B. HF 183 Emergency Orders – Amends Iowa Code section 235B.19(3)(a) Signed by Governor Clarification of the regarding notice requirements where an emergency 4/12/17. Priority of Notice order has been issued for protective services. The proposed amendment would clarify the priority of notice in such situations.

HF 184 Information to File a The Petition to open a small probate estate (less Signed by Governor on Small Probate Estate than $100,000) currently requires more information 5/11/17. under section 635.2 than is required for a Petition to open a regular estate (above $100,000). This legislation amends section 635.2 to keep the Petition information requirements for small estates consistent with those of a regular estate. HF 195 Requests for Notice Amends Iowa Code section 633.42 to allow for Signed by Governor on electronic notice to be provided in response to a 5/11/17. request for notice filed and clarifies that no standing is granted. HF 371 Attorney Fees and Updates Code Section 649.5, which relates to Signed by Governor on Court Costs in Action attorney fees and court costs for a party who 5/11/17. to Quiet Title After succeeds in an action to quiet title and who Request for a requested a quitclaim deed from the party holding Quitclaim Deed. an apparent adverse interest prior to bringing the action to quiet title. Brings the dollar amounts closer to current market rates and maintains the moving party’s ability to request attorney fees. HSB 63 Forcible Entry & Makes changes to procedures for eviction after Did not advance this Detainer Actions After forfeiture of a real estate contract. Grants statutory session. Forfeiture of Real authority under Code Chapter 648 for a vendor in a Estate Contracts real estate installment contract to seek Forcible Entry & Detainer action against holdover vendee who fails to vacate after forfeiture proceedings are complete, while affording holdover vendees proper due process. Allows small claims magistrates to hold preliminary hearings in forfeiture cases and to enter judgments of removal only if the defendant defaults or appears and does not raise facts which would constitute a defense to eviction.

Real Redemption from Tax Remedies issues arising from Iowa Court of Did not advance this Estate Sale of Property Appeals decision Firestone v. FT13 (Filed 4-30-14) session. 3 Owned by Persons relating to redemption issues arising from with Disabilities ownership of property by minors or persons of unsound mind.

Real Requirements for Remedies ambiguities and inconsistencies in Did not advance this Estate Timely Filing of existing statutes & provides remedies for failure of session. 4 Releases or mortgagees to issue releases of mortgages. Satisfactions of Mortgages HF 133 Clarification of Roles Amends Code Section 598.12 to clarify roles of Signed by Governor in Child child’s attorney, guardian ad litem, and custody 4/12/17. Representation investigator. Existing 598.12 provisions for child representation are not compliant with ABA standards for child representation.

SSB 90-Day Waiting Period Amends Code Section 589.19 to add that a court Pulled for further work. 1102 in Dissolutions may grant a divorce 90 days after the parties involving execute an agreement to participate in collaborative Collaborative Law law. Currently, 598.19 requires a 90-day waiting period from the time of service of an original notice or acceptance of service is filed with the court before the court can grant a decree dissolving a marriage. Parties participating in collaborative divorce often do not file a petition or execute an acceptance of service until a final agreement has been reached.

HF 253 Updates to Chapter A recent appellate court decision determined that Signed by Governor 600B – Children in the the trial court could not award attorney fees in a 4/21/17. Middle & Attorney’s contempt action pertaining to a chapter 600B Fees in Contempt contempt, but it would be allowed if the parties had Cases Uniformity been divorced under chapter 598. The legislation adds attorney fees to actions for contempt under chapter 600B. The other bill requires parents who were never married to each other but are involved in a child custody lawsuit to take the children in the middle class.

In addition to the above legislative proposals, the Iowa State Bar Association supported the following positions as a part of its 2017 Affirmative Legislative Program:

 Full funding of indigent defense and adoption of legislation providing for an automatic, periodic increase in indigent defense fees. o SF 509 $3.84 million increase in indigent defense fund appropriation  Full Funding of the Judicial Branch. o SF 508 $175.7 million plus $3,100 for jury and witness revolving fund 7

 Full funding for Legal Services. o HF 644 Reduces funding from $2.4 million from FY 17 to $2.3 million for FY 18.  Full funding of the IA Secretary of State’s Office as requested by IA Secretary of State Paul Pate including the creation of a revolving fund provided that the ISOS fees are increased to hold the general fund harmless. o HF 640 allocates $2,125, 518 for administration and elections; $1,371,292 for business services; $120,400 for the Address Confidentiality Program and Revolving Fund Appropriation for the FY 18.  Full funding for the Office of Substitute Decision Maker to protect the interests of Iowans who have no one else to manage their financial and health care needs. o HF 653 allocation to this office remains at $350,000 for FY 18  Support child abuse prevention and treatment efforts and funding for child abuse prevention and treatment.  Oppose the legalization of title insurance. o Monitored issues regarding lawyer abstracting under Iowa Title Guaranty.  Oppose absolute immunity legislation.

III. BILLS OF INTEREST PASSED DURING 2017 LEGISLATIVE SESSION

AGRICULTURAL LAW

SF 447 Agricultural Operations and Nuisance. Allows for affirmative defense to be raised in certain causes of action where an animal feeding operation is alleged to be a public or private nuisance or alleged to interfere with a person’s use and enjoyment of life or property. Affirmative defenses are not available where the feeding operation failed to comply with federal or state regulations, the operation failed to use reasonable practices, the person is a habitual violator of environmental regulations (3 or more violations), or the cause of action arose before the bill’s effective date. Signed by Governor and Effective on 3/29/17.

COMMERCIAL LAW & BANKRUPTCY

SF 501 FEES COLLECTED BY COUNTY SHERIFF. This bill increases various fees collected by a county sheriff. Raises fees related to personal service and return of notice from $15 per person to $30 per person and the fee for serving an additional individual within the same household from $10 to $20. It also raised the fee for service of warrants from $20 to $35. It raises the fee for summoning a jury to assess damages in a condemnation proceeding from $100 per day to $200 per day and does not require that the sheriff attend the jury. Raises fee for serving an execution, attachment, order for delivery of personal property, or other court order from $15 to $30. Establishes a separate fee for execution of a deed or certificate for lands sold and sets the fee at $50. Raises the fee for inventorying personal property from $10 per hour to $20 per hour. Changes current law by establishing a fee for setting the sale of property, as opposed to 8

attending the sale of the property and raised the fee from $50 to $75. Increases the fee for conveyance of persons by order of the court or for transporting defendants from $15 to $20 per hour. Signed on 5/11/17. Effective Date 7/1/17.

CRIMINAL LAW

HF 263 Domestic Abuse and Stalking with GPS Device. Amends Iowa Code Section 708.11, pertaining to stalking, expanding the definition of stalking to include the repeated use of a technological device to locate, listen to, or watch a person without legitimate purpose, and when the person engages in the conduct purposefully when would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened, or to fear that the person intends to cause bodily harm or injury to the person or a member of their immediate family. Adds a new section establishing a minimum sentence for third or subsequent domestic abuse offenses, denies those individuals work release or parole until one-fifth of the maximum sentence has been served. Establishes that unauthorized placement of a GPS device is a serious misdemeanor. Adds a new section defining unauthorized placement of a global position device as “when the person, without the consent of the other person, places a global positioning device on the other person or an object in order to track the movements of the other person without a legitimate purpose.” Signed by Governor on 4/20/17. Effective Date 7/1/17.

HF 69 Trespass and Penalties. Amends Iowa Code Section 716.8 to modify penalties for trespasses that do not involved damages of more than $200, the intent to commit a hate crime, public property, or intentional viewing or recording of another person without a legitimate purpose. Establishes such trespass as a scheduled violation and sets fines at $200 for the first violation, $500 for second violation, and $1,000 for third or subsequent violations. Signed on 5/1/17. Effective Date 7/1/17.

HF 296 Controlled Substances, Temporary Designation, Penalties. This bill modifies procedures relating to the temporary designation of substances as controlled substances. Currently, the board of pharmacy designates a new substance as a controlled substance by an administrative rule and without amending Iowa Code Chapter 124, if the substance is a controlled substance under federal law. The bill states that such a designation will be considered a temporary amendment to the scheduled of controlled substance in Chapter 124. The temporary amendment will be repealed by operation of law if the legislature does not, within two years of the effective date of the temporary designation, enact legislation amending Chapter 124. It also adds a new section to Chapter 124, relating to imitation controlled substances, sets forth factors for determining whether a substance is an imitation controlled substance, and 9

modifies penalties for imitation controlled substances. Signed by Governor on 5/11/17. Effective Date 7/1/17.

HF 526 Invasion of Privacy. Amends Iowa Code Section 708.7, to expand the definition of harassment to include on who disseminates, publishes, distributes, posts, or caused to be disseminated, published, or distributed, or posted a photograph or film showing another person in a state of full or partial nudity or engage in a sex act, knowing that the other person has not consented to the dissemination, publication, distribution, or posting. Provides that the fact finder is to make a determination as to whether the perpetrator should register as a sex offender based on the provisions of 629A.126. Provides that juveniles found in violation of the section shall not be required to register as a sex offender. Signed by Governor 5/9/17. Effective Date 7/1/17.

SF 238 Sexual Exploitation By School Employees. Amends Iowa Code Section 709.15, regarding sexual exploitation by a school employee, to expand the definition of school employee to include a person who holds a license, certificate, authorization, or statement of professional recognition issued by the board of educational examiners; a person employed by a school district on a part-time or full-time basis or as a substitute, and a person who performs services as a volunteer or contract employee for the school district if that volunteer or contract employee has direct supervisory authority over the student with whom the school employee engages in prohibited conduct. School employee does not include a student enrolled in the school district and it also does not apply to a person employed by the school district if the student with whom the person engages in prohibited conduct is not enrolled in the same school district attendance center. Signed 5/11/17. Effective Date 7/1/17.

SF 332 Changes to Controlled Substance Schedules. Makes changes to controlled substance schedules and modifies regulation of precursor substances. It classifies four synthetic opioids as schedule I controlled substances consistent with federal actions regarding the substances. It classifies thiafentanil as a schedule II substance. It classifies all hydrocodone-containing substances as schedule II substances, and removes naloxegol, a derivative of naloxone, from the list of schedule III substances due to FDA approval for treatment of certain conditions. It removes ioflupane as a schedule II controlled substance. It classifies tramadol as a schedule IV controlled substance. IT classifies alfaxalone as a schedule IV substance, which is FDA approved for use in veterinary medicine. It classifies suvorexant, which is FDA approved for treatment of insomnia, as a schedule IV controlled substance. It classifies eluxadoline, approved by the FDA for treatment of IBS, as a schedule IV controlled substance. It classifies brivaracetam/briviact, which is FDA approved as treatment for seizures, as a schedule V controlled substance. It establishes that violations of Iowa Code section 124.401(1)(c) (8) involving scheduled I, II, or III 10

controlled substances is a class “C” felony punishable by no more than 10 years and a fine of at least $1,000 but not more than $50,000. It establishes that violations of section 1243.401(1)(d)scheduled substances classified as schedule IV, it is an aggravated misdemeanor punishable by no more than two years, and a minimum fine of $625 but not more than $6,250. For first offenses under 124.401(5), are serious misdemeanors punishable by confinement of no more than one year and a minimum fine of $315 and maximum fine of $1,875. Signed and Effective 4/7/17.

SF358 Electronic Search Warrants. Permits the issuance of search warrants by electronic means. Permits a magistrate to whom an application for a search warrant is submitted, to use electronic means to confirm the identity of the individual requesting the warrant. The magistrate may also use electronic means to administer the person’s oath or affirmation and accept the person’s sworn testimony. Signed by Governor 4/12/17. Effective Date 7/1/7.

SF 401 Sexual Abuse Civil Protective Orders. Changes current law related to sexual abuse protective orders, which requires that an individual accused of sexual abuse must be arrested for sexual abuse before the victim can apply for a protective order. A new Chapter is added, 236A, permitting a victim of sexual abuse (where there is not a domestic relationship) to seek relief from domestic abuse by petitioning the court for a civil protective order before the defendant is arrested. The petitioning party must present a prima facie case of sexual abuse and the court shall enter an order based on a preponderance of evidence. A hearing is held not less than five and not more than fifteen days after the notice is provided to defendant. The protective order is to be issued for a fixed period of time not to exceed one year, though it can be extended or amended following a hearing if the defendant is found to pose a continued threat to the victim. Signed by Governor 5/10/17. Effective Date 7/1/7.

SF 446 Civil Asset Forfeiture. Establishes a minimum civil forfeiture amount at $5,000. Changes current law so that if the forfeiture is for property valued at less than $5,000, the owner or interest holder must be convicted of the criminal offense for the conduct giving rise to the forfeiture. Raises the standard of proof for civil asset forfeiture from preponderance of the evidence to clear and convincing evidence, and requires law enforcement agencies to retain certain records related to forfeiture. Signed by Governor 5/9/17. Effective Date 7/1/17.

ECONOMIC DEVELOPMENT

SF 488 Workforce Housing Tax Incentives. Modifies how tax credits are allocated under the Workforce Housing Tax Incentive Program but maintains the aggregate limit for all tax credits under the program to $170 million. Requires that $5 million of tax credits under this program be allocated to housing 11

projects in small cities as defined in section 15.352. Defines “Greenfield Site” as a property that was previously undeveloped or used for agriculture, and provides that such projects located in small cities may receive tax incentives under the program equaling up to 20 percent of the qualifying investment. Signed 5/11/17. Effective Date 7/1/17.

ELDER LAW

HF 544 Personal Degradation as Dependent Adult Abuse. Amends Iowa Code Section 235E.1 to expand dependent adult abuse to include personal degradation. Defines personal degradation as a willful act or statement by a caretaker intended to shame, degrade, humiliate, or otherwise harm the personal dignity of the dependent adult, or where the person knew or should have known that would be the effect of the act or statement. It includes taking, transmitting, or displaying an electronic image of a dependent adult where the caretaker’s actions constitute a willful act or statement with the purpose of shaming, degrading, or humiliating the dependent adult. Signed and Effective 3/30/17.

SF 410 Disposition of Remains. Amends Iowa Code Section 144B.1 to provide that a written declaration executed by a person naming a designated adult to make decisions concerning the final disposition of a person’s remains and the ceremonies planned following the person’s death is not required to be contained in, or attached to, a durable power of attorney for health care. Applies only to declarations executed on or after the effective date of this legislation. Signed 4/7/17. Effective Date 7/1/17.

SF 333 Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). Adopted by the Uniform Law Commissioners in July 2014, the Act ensures that legally appointed fiduciaries can access, delete, preserve, and pass along a person’s digital assets (i.e., documents, photographs, e-mail, and social media accounts) as appropriate. The revised Act allows a framework clarifies the application of federal privacy laws and defines the rights and duties of the parties involved, and permits individuals to instruct fiduciaries and control access to digital assets. Signed 4/20/17. Effective Date 7/1/17.

FAMILY AND JUVENILE LAW

HF 133 Guardians Ad Litem. Amends Iowa Code 598.10 to clarify roles of those involved in child custody determinations under 598.10. Defines roles for guardian ad litem, child custody investigators, attorneys for children, and child and family reporters. Requires that a guardian ad litem be an attorney and is responsible for determining what is in the best interests of the child. Specifies duties of a guardian ad litem and prohibits the guardian ad litem from filing a written report, testifying during a hearing, or serving as a witness. Prohibits an attorney appointed as attorney for a child from filing a written 12

report, testifying, or serving as a witness. States that the same person may not serve as both guardian ad litem and attorney for child. Directs the Supreme Court of Iowa to prescribe and maintain standards for child custody investigators and child and family reporters. Does not impact juvenile court matters. Signed on 4/12/17. Effective Date 7/1/17.

HF 253 Changes to 600B. Amends Iowa Code 600B to require parties involved in child custody cases to complete an approved parenting or “children in the middle” course, which is currently required only for divorcing parents. It also permits the recovery of attorney fees and court costs against a party against whom a contempt proceeding is brought for failure to pay support. Replaces the term “father” with “party”. Signed on 4/21/17. Effective Date 7/1/17.

HF 543 CINA Cases Involving Certain Drugs. Amends the definition of child in need of assistance to include a child whose parent, guardian, custodian, or other adult member of the household unlawfully uses, possesses, manufactures, cultivates, or distributes, a dangerous substance in the presence of a child, or knowingly allows such activities by another person in the presence of the child. Further adds the presence of precursors or intermediary to a dangerous substance in the presence of a child, and adds methamphetamine or amphetamines, and chemicals that pose a reasonable risk of causing a fire or explosion in the child’s home, on the premises, or in a motor vehicle located on the premises. Amends the definition of “in the presence of a child” to include in the physical presence or occurring under other circumstances in which a reasonably prudent person who know that the use, possession, manufacture, cultivation, or distribution may be seen, smelled, ingested, or heard by the child. It includes “dangerous substances” to include cocaine, heroin, and opium or opiates. Requires a health practitioner involved in the delivery or care of a newborn or infant displaying signs of prenatal drug exposure or fetal alcohol disorder to report information as prescribed by DHS. Signed on 4/20/17. Effective Date 7/1/17.

SF 433 Termination of Parental Rights in Adoption Proceedings. Relates to adoption and termination of parental rights and restricts the definition of “adoption services provider” to limit it to a licensed child-placing agency or a licensed attorney. Only permits adoption service providers and DHS to make placements of minor children for the purposes of adoption. It limits payment of only allowable expenditures relating to termination of parental rights. It prohibits a biological parent from receiving anything of value in exchange for agreeing to termination of their parental rights, unless the thing of value is an allowable expenses. It caps expenditures to the biological parents at $2,000, but permits the court to award additional costs. Requires that all payments for adoption expenses be paid through the adoption service provider, and the adoption service provider is to deposit funds into an escrow account. Any unused funds shall be returned to the adoptive parents with an accounting of 13

funds disbursed. Directs the juvenile court to review expenditures prior to any termination hearing. Increases the criminal penalty for prohibited acts in connection with adoption or termination procedures from a simple misdemeanor to serious misdemeanor. Amends fraudulent practice under Iowa Code 714.8 to include fraudulent adoption practices. Signed on 3/30/17. Effective Date 7/1/17.

GOVERNMENT PRACTICE

HF 134 Regulation of Occupancy of Residential Rental Properties. This bill prohibits a city, after January 1, 2018, from adopting or enforcing any regulation or restriction relating to occupancy of rental property that is based on the existence of familial or nonfamilial relationships between the occupants of the property. Signed on 4/21/17. Effective Date 7/1/17.

HF 203 Use of Primary Road Fund Monies. Amends Iowa Code Section 313.4 to permit the commission, after consultation with planning organizations and other stakeholders, to periodically allocate moneys from the fund to projects related to construction and maintenance of secondary road systems and municipal street systems in exchange for a portion of federal funds. Signed on 3/23/17. Effective Date 7/1/17.

HF 2363 Member Attendance at Closed Session Meeting. Adds a new subsection to Iowa Code Section 21.5 which states that a governmental body shall not exclude a member of that body from a closed session meeting unless that individual’s presence at the meeting would create a conflict of interest. Signed on 4/6/16. Effective Date 7/1/16. 14

HF 291 Collective Bargaining. Rewrites collective bargaining rights under Iowa Code Chapter 20. Limits public sector union contract negotiations to wages. Bans unions from negotiating with employers over health insurance, evaluations, and staff reductions. Public safety employees (e.g. police, firefighters) are not as severely limited. Bars unions from collecting union dues from public employees’ paychecks. Requires unions to be recertified prior to every contract negotiation. Modifies arbitration processes when contract negotiations are unsuccessful so that an arbitrator must consider financial ability of the employer to increase wages. Signed and Effective 2/17/17.

JUDICIAL ADMINISTRATION

SF 466 Master Jury Lists. Requires master list of jurors to be updated annually using an electronic jury management system. Provides that if a person’s certification as a shorthand reporter is placed in exempt status, the person may still transcribe or certify a proceeding the person reported while they were certified as a shorthand reporter. Eliminates jury commissions. Signed by Governor on 5/11/17. Effective 7/1/17.

HF 52 Interference with Judicial Acts. Extends 719.1, pertaining to interference with official acts, to include persons performing bailiff duties pursuant to Iowa Code 602.1303. Signed by Governor on 4/12/17. Effective 7/1/17.

LITIGATION

SF 362 Claims Against Fairs. Requires fairs to post a warning sign in a conspicuous place on any premises containing domesticated animals within the fairgrounds and sets forth requirements and the required form related to the warning sign. Bars fair participants or spectators from bringing claims against the fair for injuries or death caused by domesticated animal pathogen transmissions unless the participant or spectator can demonstrate that the fair failed to comply with the posting requirements. Signed on 4/20/17. Effective Date 7/1/17.

SF 413 Statute of Repose. Reduces the statute of repose for actions arising from unsafe or defective construction from 15 years to 8 years. For actions arising from nuclear power plants, the statue of repose remains at 15 years. For residential properties, the statute of repose is reduced to ten years. For actions related to intentional misconduct or fraudulent concealment of an unsafe or defective condition, the action must be brought not more than 15 years after the date on which the act or omission of the defendant occurred. An unsafe or defective condition discovered within one year prior to the expiration of the statute of

repose, the statue of repose is extended by one year. Signed 4/13/17. Effective Date 7/1/17.

SF 465 Medical Malpractice Claims. Implements a $250,000 cap on noneconomic damages in medical malpractice cases. The cap does not apply if the injured party suffered a substantial impairment of bodily function, substantial disfigurement, or death. Signed on 4/6/16. Effective Date 7/1/16.

PROBATE & TRUST LAW

HF 183 Emergency Protective Orders in Cases of Dependent Adult Abuse. Amends Iowa Code Section 235B.19(3)(a) regarding notice requirements where an emergency order has been issued for protective services. It adds parents and grandparents to the class of persons who receive notice and amends the priority order for those who should receive notice. Amends the requirement that spouses be notified to remove the requirement where parties are legally separated. Signed 4/12/17. Effective Date 7/1/17.

HF 184 Petitions in Small Estates. Amends Iowa Code Section 635.2 related to the requirements for filing small and large estates. The Petition to open a small probate estate (less than $100,000) currently requires more information under section 635.2 than is required for a Petition to open a regular estate (above $100,000). Under this new law, section 635.2 is amended to keep the petition information requirements for small estates consistent with those of a regular estate. Signed by Governor 5/11/17. Effective Date 7/1/17.

HF 195 Requests for Notice in Probate Proceedings. Amends Iowa Code 633.42 to permit an individual interested in probate proceedings to request notice via an electronic filing using EDMS rather than providing written notice in triplicate. Permits electronic notice to parties and counsel of such notice. Requires an individual requesting notice to provide an email address and the nature of their interest in the proceedings, in addition to the current requirement of including their name and address. Signed by Governor 5/11/17. Effective Date 7/1/17.

SF 333 Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). Adopted by the Uniform Law Commissioners in July 2014, the Act ensures that legally 16

appointed fiduciaries can access, delete, preserve, and pass along a person’s digital assets (i.e., documents, photographs, e-mail, and social media accounts) as appropriate. The revised Act allows a framework clarifies the application of federal privacy laws and defines the rights and duties of the parties involved, and permits individuals to instruct fiduciaries and control access to digital assets. Signed 4/20/17. Effective Date 7/1/17.

REAL ESTATE & TITLE LAW

HF 146 Notice Requirements in Forcible Entry and Detainer Actions. Amends current law, which requires that a defendant in a forcible entry and detainer action must be served with notice at least three days prior to the hearing and does not permit a default to be entered against the defendant unless notice requirements have been met. This amendment provides that notice requirements will be deemed to have been met if the defendant or the defendant’s attorney appears at a hearing. If the hearing is held fewer than three days after service of the original notice or the notice requirements have been deemed to have been satisfied, the court is required to inform the defendant of the right to request a continuance. If requested, the court is required to grant a continuance. Signed on 4/21/17. Effective Date 7/1/17.

HF 371 Attorney Fees and Court Costs in Actions to Quiet Title. Amends Iowa Code Section 649.5 governing quitclaim deeds to real property to account for current market rates and amends the Section to make it more effective in practice. Under current law, if a plaintiff requests that a party with an apparent adverse interest executes a quitclaim deed at least twenty days before filing suit, and the adverse party does not execute the quitclaim deed and the plaintiff prevails at the hearing on the matter, the plaintiff may recover attorney fees. This increases the attorney fees from the current limits of $25 for a single tract of land not exceeding 40 acres and $40 for a single tract not exceeding 80 acres, to a “reasonable” fee, permitting the court to evaluate the circumstances and award a fee that is reasonable based on the particular case. It also increases the quitclaim deed fee from $1.15 to $50 and requires that a request for execution of a quitclaim deed be in writing and that a copy be provided to the adverse party. Signed by Governor on 5/11/17. Effective Date 7/1/17.

HF 478 Property Assessment Appeal Board. This legislation repeals the PAAB’s future repeal provisions. It modifies requirements for filing appeals by no longer

requiring the separate notice of appeal and a petition and instead only requires that the appeal include the contents currently required in the petition. Requires electronic recording of testimony rather than transcription of testimony. It specifies that judicial review of board decisions are governed by Iowa Code Chapter 17A. Requires petitions for judicial review to be filed in the county where the subject property is located, removes the option to file in district court in Polk County. Applies to assessment years beginning on or after January 1, 2018. Signed by Governor on 5/11/2017. Effective Date 7/1/17.

WORKERS’ COMPENSATION

HF 518 Amendments to Workers’ Compensation Laws. Changes shoulder injuries to a scheduled injury of 400 weeks based upon the functional impairment rating as determined by a doctor. Changes compensation for “body as a whole” injuries resulting in permanent partial disability so that compensation is paid during the number of weeks in relation to 500 weeks as the reduction in the employee’s earning capacity caused by the disability bears in relation to the earning capacity that the employee had at the time the injury occurred. Creates a presumption of intoxication if a worker tests positive for any amount of drugs or alcohol at the time of injury, and creates a presumption that the intoxication was a substantial factor in causing the injury. Limits when a temporarily disabled worker can raise an objection to offered work based suitability and requires that any objection made be in writing. Signed by Governor 3/30/17. Effective Date 7/1/17.

IV. AFFIRMATIVE LEGISLATION AND BILLS OF INTEREST THAT DID NOT PASS DURING 2017 LEGISLATIVE SESSION

HF 639 Probate Court Costs. Relates to how the clerk of probate court determines and collects charges in connection with services provided in probate matters. Excludes from the determination of court costs property over which the court lacks probate jurisdiction and for which the clerk renders no services. Specifies that for purposes of calculating the costs for other services performed by the court in the settlement of the estate of any decedent, minor, person with mental illness, or other persons laboring under legal disability, the value of such a person’s personal property and real estate is equal to the gross assets of the estate listed in the probate inventory minus, unless the proceeds of 18

the gross assets are payable to the estate, joint tenancy property, transfers made during such person’s lifetime such as to a revocable trust, and assets payable to beneficiaries. This bill passed out of the Ways and Means Committee, a fiscal note was issued, but ultimately it did not advance.

Probate 3 Inheritance Tax Withholding. Provides for mandatory withholding of Iowa inheritance tax from joint tenancy, payable on death, transfer on death, and other assets transferable to non-exempt persons through use of a withholding form developed by the Iowa Department of Revenue. This proposal was not drafted or assigned a bill number and did not advance this session.

HF 135 Waiver of Spousal Share. Amends the Iowa Uniform Power of Attorney Act by adding a new subsection (10) to 633B.204 to clarify that an agent under a power of attorney may waive or relinquish a spousal right, homestead, and elective share if the principal has granted the agent Gen. Powers under the real property section 204 to 633B. This proposal was not drafted or assigned a bill number and did not advance this session.

SF 221 Benefit Corporations. Amends the Iowa Business Corporations Act in Chapter 490 to authorize the formation of Benefit Corporations which are formed for both the purpose of shareholder profitability but also for a social purpose or public benefit. Drafted but did not advance this legislative session.

HSB 63 Forcible Entry and Detainer Actions. This bill makes changes to procedures for eviction after forfeiture of a real estate contract. Grants statutory authority under Code Chapter 648 for a vendor in a real estate installment contract to seek Forcible Entry & Detainer action against holdover vendee who fails to vacate after forfeiture proceedings are complete, while affording holdover vendees proper due process. Allows small claims magistrates to hold preliminary hearings in forfeiture cases and to enter judgments of removal only if the defendant defaults or appears and does not raise facts which would constitute a defense to eviction. Provides that a judgment of eviction also operates against persons holding under the defendant, such as subtenants, the defendant’s children, and persons living on the premises by permission of the defendant. The Senate deferred on this bill and it did not advance.

Real Estate 3 Redemption from Tax Sale of Property Owned by Persons with Disabilities. Remedies issues arising from Iowa Court of Appeals decision Firestone v. FT13 (Filed 4-30-14) relating to redemption issues arising from ownership of property by minors or persons of unsound mind. Bill was not drafted and assigned a bill number.

Real Estate 4 Requirements for Timely Filing of Releases or Satisfactions of Mortgages. Remedies ambiguities and inconsistencies in existing statutes and provides remedies for failure of mortgagees to issue releases of mortgages. Bill was not drafted and assigned a bill number.

HF 638 Secretary of State’s Bill. An Act relating to the powers and duties of the secretary of state, including requirements for filing documents, promulgation of filing forms, payment of filing fees, and appropriations to the secretary of state’s office.

HF 335 Death Penalty. Establishes the penalty of death for the commission of the multiple offense of murder in the first degree, kidnapping, and sexual abuse against the same minor, providing penalties, and including effective date and applicability provisions.

SF 414 Simulated Firearms. Establishes enhanced penalties relating to the use of a simulated firearm or simulated explosive when committing a robbery, the criminal offense of intimidation, or other crimes, and providing penalties.

HF 173 Judicial Nominating Commissions. A bill for an act requiring that elective members of the state and district judicial nominating commissions, and the county magistrate nominating commissions, be elected by the registered voters of the state.

HF 71 Joint Legal Custody and Physical Care. This bill changes current law to require rather than permit, a judge to order joint physical custody in instances where the court award joint legal custody, with the exception of when the court makes a finding that joint physical custody is not in the best interests of the child.

HF 539 Release from Iowa Civil Rights Commission. Modifies procedures and required and timelines for obtaining a release from the Iowa Civil Rights Commission prior to filing a lawsuit for unfair or discriminatory practices under the Iowa Civil Rights Act.

SF 226 Transfer on Death Deeds. This bill allows an individual to execute a transfer on death deed outside of probate to one or more beneficiaries, effective upon the death of the transferor. Certain requirements must be met for the deed to be valid, including that it must contain all the essential elements of a properly recordable inter vivos deed. It must state that the transfer to the designated beneficiary is to occur at the time of the transferor’s death and must be recorded in the county recorder’s office prior to the death of the transferor. The transfer on death deed is revocable, even if the deed states that it is irrevocable. During the course of the transferor’s lifetime, the transfer on death deed does not affect the transferor’s interest in the property.

HF 530 Mitigation of Damages for Failure to Wear Seat Belt. Increases the amount that damages can be reduced in litigation where the defense claims that failure to wear a seat belt contributed to injuries from 5% to 25%.

SSB 1090 Rule Against Perpetuities. This bill creates an exception to the statutory rule against perpetuities and makes related changes to Iowa Code Sections 557 and 558.

Mechanics' Liens and Public Improvement Bonds

10:15 a.m. - 11:00 a.m.

Presented by: Robert Gainer Cutler Law Firm PC 1307 50th St West Des Moines, Iowa 50266-1782 Phone: 515-223-6600

Thursday, September 14, 2017 8/26/2017

IOWA MECHANIC’S LIENS Robert C. Gainer Cutler Law Firm, P.C. 1307 50th Street West Des Moines, IA 50266 Phone: 515‐223‐6600 Email: [email protected]

PREFACE

• The 2012 legislature enacted 84 G.A. ch 1104 (H.F. 675), a major revision of the mechanics lien law, effective January 1, 2013. The new law moves the filing of most pre‐foreclosure mechanics lien documentation from the clerk of the court to a new online state construction registry administered by the secretary of state. • Today’s Presentation tracks Iowa Code Chapter 572 (2016), and case authority to‐ date. If using the referenced authority in the future, user is advised to consult the most recent Iowa Code and shepardize referenced cases.

Fundamentals on Iowa Mechanic’s Lien Law

• Iowa Code Section 572‐ Statutory framework. • Mechanic’s Lien Notice and Registry (Iowa Secretary or State‐ “MNLR”): • https://sos.iowa.gov/mnlr/search/search.aspx • Concepts on Lien • Commercial projects • Residential Projects (single‐ or two‐family dwellings occupied or used, or intended to be occupied or used primarily for residential purposes) • Definitions: §572.1

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§572.2: Persons Entitled to a (Mechanic’s) Lien

• (1) Every person who furnishes any material or labor for… • (2) “Materials” rented and/or used in the build out… • (3) BUT NOT “owner‐builder” (see §572.1) for work performed prior to transfer of title.

§572.3: Collateral Security

• Should you take collateral security on any contract (think personal guarantees, separate security/encumbrance filings), you are not entitled to a mechanic’s lien. See Builders Kitchen Supply v. Pautvein, 601 N.W.2d 72 (Iowa 1999). • Practice: Cross‐collateralization risk/reward • Completion of project and new security (§572.4) not affect right to lien property

What Kind of Property Can be Encumbered by a Lien?

• Property of the Owner • Leased Premises • Public Property (remedies under Iowa Code §573, or Federally, under the Miller Act‐ 40 U.S.C. §3131‐3134).

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Filing Requirements

• Important Dates: • §572.8: Perfection requirements: Lien filing required within ninety days of last furnishing • Not punch‐list items; • Transit: delivery or receipt? • §572.9: Time to foreclose lien: Within two years and ninety days after the date of last furnishing (materials / labor) • §572.10 & 11: Perfection after lapse of ninety days (Trappings Lien) , and Extent • Requires service of written Notice after filing on MNLR upon Owner in manner original notices required to be served • Only to extent of balance due from Owner to GC or owner‐builder’s buyer to owner‐builder; but, if bond in place, full extent of amount found due

Where and How to File a Lien

• MNLR: https://sos.iowa.gov/mnlr/search/search.aspx • Cover sheet information: Next Slide • Lien itself: Iowa Docs, Form, SOS (https://sos.iowa.gov/business/pdf/MLTemplate.pdf) • Requirements under §572 generally, §572.8

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Residential Construction‐ special requirements

• §572.13: GC to provide Owner Notice • §572.13A‐ GC/Owner‐Builder Requirements: Post a Notice of Commencement of Work to the MNLR within ten days after the commencement of work. See §572.13A for what must be included. • §572.13B:Requirements of subcontractor on posting preliminary notice. See §572.13B for what must be included. Importantly, a subcontractor’s failure to post a preliminary will preclude entitlement to a lien / remedy.

Residential, Cont’d

• Residential Projects: (single‐ or two‐family dwellings occupied or used, or intended to be occupied or used primarily for residential purposes) (Also includes condominium projects, but see §572.31) • Prime Contractors who are subcontracting for labor materials: • Serve notice to owner, and • Prime Contractors and Owner/Builders who are subcontracting for labor or materials: • Post a Notice of Commencement on the State Construction Registry within 10 days from the commencement of the project. The administrator (Secretary of State) will serve a copy of the Notice of Commencement upon the owner. • Send a Notice of Commencement to the owner’s address, and to the owner at the project address if the owner’s address is different than the project address. • Subcontractors (including those who contract directly with an owner‐builder): • Post a preliminary notice on the State Construction Registry as soon as possible to trap funds, and serve a copy upon the owner. • A lien, when later filed, may only include labor or materials provided after the preliminary notice is posted and served. • If not posted by the prime contractor or owner‐builder, a subcontractor may post a Notice of Commencement, after which they may post their preliminary notice.

Commercial Projects‐ Requirements

• When furnishing Labor/Materials to a sub‐contractor, Claimant must: • Notify General Contractor with a written Notice within 30 days from first furnishing materials or services. See §572.33(a) for content of written Notice. • Lien Claim be supported by certified statement that the General Contractor received notice required, supra. §572.33(b) • No notice is required when contracting directly with the owner or prime contractor.

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Foreclosure of the Lien

• Suit must be filed in County of real property (§572.25). See Form. • Within two years from the expiration of ninety days after the date on which the last of the material was furnished or last of labor performed (§572.27), • If Owner provides written demand for suit, Claimant must file suit within 30 days (§572.28) • Court will establish priorities of Claimants, and other parties, subject to issues; Counter‐Claims and related claims must be added (§572.17, 572.24)

Attorney Fees

• Prevailing party may be awarded reasonable attorney fees • Challenge to incorrect residential posting may be awarded reasonable attorneys fees • If bonded off pursuant to §572.15, persuasive authority in Dallas County stating prevailing party may be awarded reasonable attorney fees

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Prompt Payment Provisions for Subcontractors

• §572.30 • GC or Owner‐Builder needs to pay subs within 30 days of receipt of “full” payment from owner. If no “due cause” for failure to pay subs, requirements of subs to provide written Notice, and if certain requirements not met, subs entitled to exemplary damages of between 1‐15% of amount owed.

PUBLIC PROJECTS

• Iowa Code Section 573 • Preliminary Notice to General Contractor detailing “Amount, Kind, and Value” within 30 days of first furnishing. See: §573.15, Accurate Controls, Inc. v. Cerro Gordo Cty. Bd. of Sup'rs, 627 F. Supp. 2d 976, 997 (N.D. Iowa 2009). • Suit Deadlines: Needs to be filed not sooner than 30, nor later than 60, days after from completion and final acceptance of the project; or within 30 days from a demand to commence suit. • The Miller Act: 40 U.S.C. §3131‐3134)

Questions?? Bob Gainer [email protected] // 515‐223‐6600

6 MECHANIC'S NOTICE AND LIEN REGISTRY

Paul D. Pate POSTED Iowa Secretary of State 321 East 12th Street MNLR #012358-0 Des Moines, IA 50319 sos.iowa.gov 4/11/2017 2:26:29 PM Mechanic's Lien

CLAIMANT POSTING THE MECHANIC'S LIEN KONE, Inc. Name 4225 Naperville Road, Ste. 400 Mailing address Lisle IL 60532 City State Postal code Country

CURRENT PROPERTY OWNER(S) Siegeworks Lodging LLC Name 4220 210th Street NE Mailing address Solon IA 52333 City State Postal code Country

INFORMATION FOR PROPERTY TO BE CHARGED WITH MECHANIC'S LIEN Polk County 201 East Locust Street Street address or location of the property if the street address cannot be reasonably identified Des Moines IA 50309 City or nearest city if no street address State Postal code 03892-002-002 Tax parcel identification number The North 73.2 feet of Block “G” of Scott & Dean’s Addition to East Fort Des Moines, an official plat, now included in and forming a part of the City of Des Moines, Polk County, Iowa. Being more particularly described as Parcel “A” on the plat of survey filed August 21, 2014 in Book 15297, Page 507 in the Office of the Polk County Recorder, Polk County, Iowa. Legal description

MECHANIC'S LIEN INFORMATION 2/18/2016 Date materials were first furnished or labor was first performed 10/20/2016 Date materials were last furnished or labor was last performed $ 10,443.65 Amount owed to Claimant

ADDITIONAL INFORMATION Hansen Company Inc. General Contractor / Owner Builder name 5665 Greendale Rd., Ste. A Mailing address Johnston IA 50131 City State Postal code Country 515-270-1117 Telephone

ATTACHMENTS Mechanic's Lien is appended to the Posted PDF Document. Statement of Account is appended to the Posted PDF Document.

CERTIFICATION

I certify under penalty of perjury and pursuant to the laws of the state of Iowa that the preceding is true and correct. Further, I agree to use an electronic signature in lieu of a handwritten signature, and the Secretary of State agrees to accept the electronic signature. Robert Gainer 4/11/2017 Electronic Signature Date

POSTED BY Cutler Law Firm (Robert Gainer) Posted by

IN THE IOWA DISTRICT COURT FOR ______COUNTY

CONTRACTOR.

Plaintiff, Case No. ______

vs. PETITION TO FORECLOSE LAND OWNER & GENERAL CONTRACTOR MECHANIC’S LIEN

Defendants.

COMES NOW Plaintiff, ______, and for its Petition to Foreclose

Mechanic’s Lien, avers as follows:

1. From and after January 5, 2001 Defendant ______, holds the title

to the following described real estate in ______County, Iowa:

A parcel of land located in the SE1/4 of Section 35….. feet to the point of beginning. Said parcel contains 102.93 Acres, more or less, and is subject to all easements of record.

2. At all times material hereto, ______was the owner of the subject

property. On or about December 16, 2013, Defendant ______ordered certain labor

and/or materials from the Plaintiff to undertake work on the property described above and said

Defendant agreed to pay therefore.

3. Pursuant to said agreement, beginning on or about March 1, 2014 and ending on

or about May 2, 2014 Plaintiff furnished $255,897.36 in material and/or labor to improve said real estate. A true account of the labor and/or materials which Plaintiff furnished for said

improvements and the fair and reasonable prices of each is attached hereto with the Mechanic’s

Lien filed in this case. A copy of said lien is attached hereto as Exhibit “A”. 4. On June 19, 2014 ______filed its mechanic’s lien with the State of

Iowa Secretary of State and paid costs of $50.00 in so doing. See Exhibit A.

5. Plaintiff was not, and is not, paid on the invoices provided in the filed Mechanic’s

Lien, and was precluded from continuing work on the project subsequent to May 2, 2014.

6. Plaintiff has incurred attorney’s fees in filing of the lien, and will continue to

incur attorney’s fees in the prosecution of this action. Plaintiff is entitled to tax all of its

attorney’s fees and cost pursuant to the terms of the contract and/or Iowa Code § 572.32. An

Affidavit of Attorney Fees has been filed simultaneously with this Petition and incorporated

herein by reference.

WHEREFORE, Plaintiff prays judgment against the Defendants, in rem, for the sum of

$255,897.36, for the costs of filing the mechanic’s lien, and all attorney’s fee, including interest

at the legal rate from May 2, 2014. Plaintiff further prays that the lien of said mechanic’s line

and said judgment be established and confirmed as a first and paramount lien upon the real estate

described in paragraph 1 hereof, senior and superior to the rights, title interests, liens, or claims

of each and every defendant to this suit, and be foreclosed against all defendants, who be forever

barred and estopped from having any right, title, or interest in said lands save only such statutory

rights of redemption from the sheriff’s sale as are given by law; that a special execution issue for

the sale of the premises accordingly, and unless statutory redemption be made, a sheriff’s deed

issued to the purchasers or his assigns, conveying the absolute title thereto against all defendants

and all persons claiming by, through, or under any of them; and that a writ of possession then

issue forthwith to put such grantee in immediate possession of the entire premises and that

plaintiff have such other and further relief as may be just and equitable in the premises.

Respectfully submitted,

_/s/ Robert C. Gainer Robert C. Gainer AT0000305 CUTLER LAW FIRM, P.C. 1307 50th Street West Des Moines, Iowa 50266 Telephone: 515-223-6600 Facsimile: 515-223-6787 E-mail: [email protected]

ATTORNEYS FOR PLAINTIFF

Original filed.

Copy to:

DEFENDANTS

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing instrument was served upon all parties to the above cause to each of the attorneys of record or an unrepresented party herein at their respective addresses disclosed on this pleading this _____ day of ______, 2015.

□ U.S. Mail □ Facsimile □ Hand Delivery

Signature______Case 4:14-cv-00315-REL-CFB Document 1 Filed 08/11/14 Page 1 of 6

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF IOWA ______In re: ) ) UNITED STATES OF AMERICA for ) the use of WESCO DISTRIBUTION, ) CASE NO. ______INC., ) Plaintiff, ) ) v. ) ) GREENLEAF CONSTRUCTION ) COMPANY, INC., INTERNATIONAL ) ELECTRIC, INC., LIBERTY ) MUTUAL INSURANCE COMPANY, ) and INTERNATIONAL FIDELITY ) INSURANCE COMPANY, ) Defendants. ) ) ) ) ) ______

COMPLAINT

Plaintiff UNITED STATES OF AMERICA for the use of WESCO DISTRIBUTION, INC. (hereafter, “Plaintiff”), by and through counsel, and for its Complaint against the Defendants states:

JURISDICTION

1. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and the provisions of the Miller Act, 40 U.S.C. § 3131-3134. The Court has pendent jurisdiction and supplemental jurisdiction over the state law claims alleged in this Complaint pursuant to 28 U.S.C. § 1367.

VENUE

2. The contract at issue was to be performed and executed in Polk County, Iowa. Venue therefore lies in the United States District Court for the Southern District of Iowa pursuant to 40 U.S.C. § 3133(b)(3)(B) and 28 U.S.C. § 1391(b)(2).

Case 4:14-cv-00315-REL-CFB Document 1 Filed 08/11/14 Page 2 of 6

PARTIES

3. Plaintiff WESCO Distribution, Inc., is a Pennsylvania corporation, organized and existing under the laws of the state of Pennsylvania, with its principal place of business in Pittsburgh, Pennsylvania.

4. Defendant Greenleaf Construction Company, Inc. (hereafter, Greenleaf), is a Missouri corporation authorized to do business in Iowa that maintains its principal office at 1734 East 63rd Street, Ste. 502, Kansas City, Missouri 64110.

5. Defendant International Electric Company, Inc. (hereafter, IEC), is a Kansas corporation authorized to do business in Iowa that maintains its principal office at 21973 W 83rd Street, Shawnee, Kansas 66227.

6. Defendant Liberty Mutual Insurance Company (hereafter, Liberty Mutual), is a Massachusetts corporation that maintains its principal place of business at 175 Berkley Street, Boston, Massachusetts, 02116. Liberty Mutual is a licensed Iowa Insurance Company by the Iowa Insurance Division.

7. Defendant International Fidelity Insurance Company (hereafter, IFIC), is a New Jersey corporation that maintains its principal place of business at One Newark Center, 20th Floor, Newark, New Jersey 07102-5207. IFIC is a licensed Iowa Insurance Company by the Iowa Insurance Division.

STATEMENT OF FACTS

8. On or before November 15, 2011, Defendant Greenleaf contracted with the U.S. Army Engineer District, Louisville, on the federal project known as the Army Reserve Center (ARC) Organizational Maintenance Shop in Des Moines, Iowa (hereafter, ARC-Des Moines). The contract number for the ARC-Des Moines project was Contract No. W912QR-12-C-0014 (hereafter, Prime Contract). The Prime Contract required labor and materials for which Greenleaf required a sub-contractor, IEC, to perform.

9. On or about March 14, 2012, Greenleaf obtained a Miller Act payment bond from Defendant Liberty Mutual Insurance Company in the amount of $9,013,152.00, as required by the United States of America, Corps of Engineers (Louisville, KY).

10. In the Miller Act payment bond, Liberty Mutual agreed to be bound “jointly and severally with” Greenleaf to make payment to all persons having a direct contractual relationship with Greenleaf or to any sub-contractor of Greenleaf who furnished labor, material or both in the prosecution of the work provided for in the Prime Contract, in the event that Greenleaf Construction Company failed to make prompt payment to such persons. A copy of said Bond is attached to this Complaint, marked as Exhibit “A” and made a part hereof.

11. At some point on or before April 30, 2012, Greenleaf contracted with Defendant IEC., to furnish labor, materials, equipment, and other facilities required to complete the work contracted to be performed on the ARC-Des Moines project. Case 4:14-cv-00315-REL-CFB Document 1 Filed 08/11/14 Page 3 of 6

12. At all relevant times, IEC was a sub-contractor per written contract to Greenleaf on the ARC-Des Moines project. IEC was at all relevant times a direct party to contract with Greenleaf for the ARC-Des Moines project.

13. On April 30, 2012, IEC obtained a Sub-Contract Labor and Material Payment Bond from Defendant IFIC in the amount of $1,020,000.00, as required by the sub-contract IEC entered into with Greenleaf.

14. In the Sub-Contract Labor and Material Payment Bond, IFIC agreed to be bound “jointly and severally” with IEC to make payment to all claimants for all labor and material used or reasonably required for use in the performance of the sub-contract, in the event that IEC, failed to make prompt payment to such claimant.

15. At all relevant times during the course of the ARC-Des Moines project, WESCO was a direct sub-contractor of IEC, and IEC was contractually obligated to Plaintiff WESCO for service and materials necessary to prosecute and reasonably fulfill the obligations of IEC and Greenleaf for the ARC-Des Moines project under the Primary Contract. A copy of those agreements are attached to this Complaint, marked as Exhibits “C-1” and “C-2” and made a part hereof.

16. The agreement as between IEC and WESCO required payment to WESCO for materials and services provided “net 30 days and that past due balances are subject to service charges at the rate of 1.5% per month”. The contract further provides that IEC would be “liable for all collection costs incurred by WESCO, including without limitation, attorneys and collection agencies fees and the related disbursements.”

17. WESCO provided original Fixtures and Consignment Inventory to IEC/Army Corps at the ARC-Des Moines project location beginning in June 2013, and through and into November 22, 2013, all of which materials were furnished in the prosecution of the work provided for in the Prime Contract and specifications.

18. IEC, and Greenleaf, have failed to pay WESCO the $159,461.52 due under the sub-contract within 30 days of WESCO’s final invoice, dated April 4, 2014. As of August 7, 2014, WESCO was owed $159,461.52, plus applicable interest, costs, attorneys fees, and damages, pursuant to the terms of the contract as between IEC and WESCO. A copy of the Aggregate Claim and invoices are attached to this Complaint, marked as Exhibit “D” and made a part hereof.

19. WESCO Distribution has submitted a claim for payment to both Liberty Mutual Insurance Company, and International Fidelity Insurance Company under each respective Payment Bond, but both sureties have failed to pay WESCO Distribution the amount due.

20. WESCO submitted a demand for payment to IFIC, received by IFIC on March 31, 2014. A copy of this correspondence is provided in Exhibit “E” and made a part hereof. In follow up correspondence with IFIC, at no point could IFIC substantiate denial of the entire claim made by WESCO.

21. IFIC requested information from IEC for reasons to deny payment of $94,172.32 that WESCO asserted was due and owing on June 3, 2014. On information and belief, IFIC did not Case 4:14-cv-00315-REL-CFB Document 1 Filed 08/11/14 Page 4 of 6

receive any supporting information from IEC to preclude payment to WESCO. Despite repeat demands by WESCO, no payment was made by IFIC.

22. Demand was made upon IFIC for payment of $94,172.32 was made on July 24, 2014. IFIC provided no correspondence or any other information that could support a defense that at least $94,172.32 was properly owed to WESCO by IEC/IFIC. The refusal was wilful and persistent and without reasonable cause, as no information was provided by IFIC to support that the above referenced liquidate amount was in anyway fairly debatable as owing to WESCO.

FIRST CLAIM (BREACH OF CONTRACT)

23. WESCO repeats and re-alleges paragraphs 1-22 as though fully set forth in this claim.

24. WESCO had a direct contractual relationship with IEC for services and materials reasonably necessary for the prosecution of the work required under the Prime Contract.

25. WESCO has performed all of its obligations under its contract with IEC on the ARC-Des Moines project.

26. IEC has breached its agreement with WESCO in that it has failed and refused to pay WESCO in full for labor, services and materials furnished in the prosecution of the work reasonably required under the Prime Contract.

27. Plaintiff WESCO has suffered damages as a direct and proximate result of International Electric’s breach of contract.

SECOND CLAIM (QUANTUM MERUIT)

28. WESCO repeats and re-alleges paragraphs 1-26 as though fully set forth in this claim.

29. WESCO provided valuable services and materials that were necessary for IEC and Greenleaf to perform and complete the obligation under the Prime Contract.

30. IEC and Greenleaf benefited from WESCO’s services and materials, including but not limited to the fact that IEC and Greenleaf have received payment from the United States, and could not have fully performed and completed its obligations under the Prime Contract in the absences of the services and materials that WESCO provided.

31. Greenleaf and IEC have failed and refuse to pay WESCO for the services and materials referenced herein.

32. Plaintiff WESCO has suffered damages and both IEC and Greenleaf have been unjustly enriched as a result of IEC’s failure to pay WESCO for the materials and services provided on the ARC-Des Moines project.

Case 4:14-cv-00315-REL-CFB Document 1 Filed 08/11/14 Page 5 of 6

THIRD CLAIM (MILLER ACT PAYMENT BOND)

33. WESCO repeats and re-alleges paragraphs 1-31 as though fully set forth in this claim.

34. Liberty Mutual is obligated, pursuant to the Bond, to pay WESCO for the labor, materials and services it furnished in the prosecution of the work provided for in the Prime Contract, and for which IEC and Greenleaf have failed to make payment.

35. IFIC is obligated, pursuant to the Bond, to pay WESCO, for the labor, materials and services it furnished in the prosecution of the work provided for in the Prime Contract, and for which IEC and Greenleaf have failed to make payment.

36. Plaintiff WESCO is entitled to payment from Liberty Mutual pursuant to the Miller Act, 40 U.S.C. § 3133.

37. Plaintiff WESCO is entitled to payment from IFIC pursuant to the Miller Act, 40 U.S.C. § 3133.

FOURTH CLAIM (IOWA BAD FAITH DAMAGES as against IFIC ONLY)

38. WESCO repeats and re-alleges paragraphs 1-37 as though fully set forth in this claim.

39. WESCO provided materials and services directly to IEC for the prosecution of the work required of IEC in fulfillment of its obligation to Greenleaf, pursuant to the Prime Contract.

40. WESCO submitted a proof of claim, received by IFIC, on March 31, 2014.

41. IFIC could not reasonably contest, and provided no information as to why it was withholding, the sum of $94,172.32 that WESCO asserted due and owing.

42. By the time of the July 24, 2014, payment demand by WESCO, IFIC had no reasonable basis to deny payment.

43. Defendant IFIC has unreasonably delayed or denied payments owing WESCO under the Subcontract Labor and Material Payment Bond for which IFIC is bound as Surety on the ARC-Des Moines project.

44. WESCO has suffered damages as a direct and proximate result of IFIC’s wilful refusal to advance benefits owed under the Subcontract Labor and Material Payment Bond.

45. Plaintiff WESCO is entitled to recovery of damages

Case 4:14-cv-00315-REL-CFB Document 1 Filed 08/11/14 Page 6 of 6

WHEREFORE, the Plaintiff requests this Court grant it:

1. Damages in the amount to be proven at trial;

2. Cost of suit incurred herein, inclusive of interest;

3. Reasonable attorneys fees;

4. Bad Faith damages as against IFIC; and

5. Such other and further relief as the Court may deem just and proper.

Respectfully Submitted,

_/s/ Robert C. Gainer____ Robert C. Gainer CUTLER LAW FIRM, P.C. 1307 50th Street West Des Moines, Iowa 50266 Phone: 515-223-6600 Facsimile: 515-223-6787 [email protected]

ATTORNEYS FOR WESCO DISTRIBUTION

CERTIFICATE OF SERVICE

I hereby certify that on August 11, 2014, I filed the foregoing with the Clerk of Court by using the ECF system, and I will send notification of such filing to the following by email:

Carol Z. Smith ([email protected]) Gilliland & Hayes, LLC 9225 Indian Creek Parkway, Suite 1070 Overland Park, KS 66210 Counsel for Defendant Liberty Mutual Insurance Company

George Rettig ([email protected]) International Fidelity Insurance Company Assistant Vice President, Claims Counsel One Newark Center, 20th floor Newark, New Jersey 07102 Counsel for Defendant International Fidelity Insurance Company

/s/ Robert C. Gainer

Juvenile Appeals

11:00 a.m. - 12:00 p.m.

Presented by: Sara Strain Linder Bray & Klockau PLC 402 S Linn St Iowa City, IA 52240 Phone: 319-338-7968

Thursday, September 14, 2017

Juvenile Appeals

I. When to file: a. Final judgments i. Disposition ii. Review hearings iii. Termination b. Interlocutory i. Removal 1. Ex parte removals which are later confirmed are not appealable 2. In re A.M.H., 516 N.W.2d 867, 871 (Iowa 1994). ii. Adjudication 1. Must wait until disposition, as adjudication is not a final judgment 2. In Interest of Long, 313 N.W.2d 473 (Iowa 1981). iii. Motion to Dismiss and other “pretrial motions”

II. Notice of Appeal (Attachment 1) i. 15 days from decision ii. Need client signature 1. What if you can’t get it? 2. File anyway and then correct the record when you get notice iii. Associated Filings 1. Combined Certificate (Attachment 2) 2. Request to transmit Record (Attachment 3) 3. Waiver of Filing Fee (Attachment 4)

III. Petition on Appeal (Attachment 5) a. 15 days from Notice of Appeal i. This is a quick process ii. The Iowa Supreme Court and Court of Appeals has said this is okay. In re T.S. 2015 WL 791698 (Iowa Ct. App. 2015) iii. This is prepared by the attorney who represented the party at the TPR. Iowa R. App. P. 6.201(1)(a) 1. Can only get out for a showing of “extraordinary circumstances” 2. Example: Lack of competency and resources b. Format Rule: Iowa R. App. P. 6.201(1)(c) i. Some requirements are outdated now that we have EDMS ii. 20 page limit (excluding attachments) 1. Friendly note: use initials for the parties, especially children iii. Attachments Iowa R. App. P. 6.201(1)(e) 1. Petition 2. Orders 3. Any other Ruling c. Filed in the CINA and the Appeal d. Each party who appeals, must do a Petition. You can’t do a joinder e. What record does the appeals court get? i. The file, including exhibits ii. In TPRs they get any part of the CINA file that was judicially noticed iii. Transcript 1. Usually not ready for your Petition on Appeal 2. Practice Pointer: take good notes, especially to exhibits

IV. Response to Petition on Appeal (Attachment 6) a. 15 days from the Petition on Appeal b. Format Rule Iowa R. App. P. 6.202 i. Similar cover page as Petition on Appeal ii. Same page limit iii. Same contents and attachments c. File in appeal and CINA d. Sometimes you have the transcript at this point. Use it to make your argument stronger

V. Reply a. You can do one if there is a cross-appeal b. Must be done within 7 days

VI. Application for Re-hearing Iowa R. App. 6.1204 (Attachment 7) a. Asking the Court of Appeals for a do-over b. Must be within 7 days of the Court of Appeals’ decision c. Content: i. Be specific about what you disagree with ii. You are limited to 1/5 the size of a brief in Iowa R. App. P. 6.903(1)(g) d. No Response, unless the Court of Appeals asks for it e. No Oral Argument

VII. Application for Further Review (Attachment 8) a. Asking the Supreme Court to review the Court of Appeals b. Must be within 10 days of the Court of Appeals’ decision c. Grounds i. Not granted in “normal circumstances” ii. Court of Appeals’ decision conflicts with the Supreme Court’s decisions iii. The question presented is a “substantial question of constitutional law” or an “important question of law” the Supreme Court should look at iv. The case presents an important question of changing legal principles v. The case presents an issue of broad public importance d. Content: Iowa Rule App. P. 1103.(1) e. No Response, unless the Court of Appeals asks for it f. No Oral Argument

VIII. Interlocutory Appeal (Attachment 9) a. Must be within 15 days of the Ruling you want to appeal b. Content: Iowa R. App. P. 6.104(1)(d) c. Resistances and responses are allowed d. Interlocutory Appeal does not stay the proceedings, you must ask a court i. Juvenile Court ii. Supreme Court (Attachment 10)

IX. Substantive Arguments a. CINA i. Standard of review: de novo; Juvenile Court gets to make credibility determinations ii. Guiding interest is the best interest of the child/ren iii. Clear and Convincing Evidence 232.96 b. TPR i. Standard of review: de novo; Juvenile Court gets to make credibility determinations ii. The Legal Framework: In re P.L.,778 N.W.2d 33(Iowa2010). 1. Grounds for Termination: Iowa Code Section 232.116(1) 2. Decision making framework for the Court: Iowa Code Section 232.116(2) 3. Grounds to deny termination if a ground is proven: Iowa Code Section 232.116(3) 4. Practice Pointers: a. You should always argue against TPR if there is a relative involved b. You should always argue there is a bond between the c. Important Things to Know About 232.116(1) i. Make sure the Petition is correct 1. Day of changes are not okay In re B.B., 2015 WL 1332004 (Iowa Ct. App. March 25, 2015) 2. Has everyone been properly served? ii. 232.116(1)(a) Consent 1. On the record 2. Or signed 3. Does not have the 96 hour provision of Iowa Code Chapter 600A. iii. 232.116(1)(d). Abuse and Neglect 1. Requires an adjudication under Iowa Code Section 232.2(6)(b) 2. Requires an actual injury - cannot be imminently likely. In re A.R., 2015 WL 800075 (Iowa Ct. App. February 25, 2015). iv. 232.116(1)(e). Significant and Meaningful Contact 1. Parents in prison In the Interest of E.K. and L.M., 568 N.W.2d 829 (Iowa App. 1997) 2. Failure to participate In re M.S., 2015 WL 791816 (Iowa Ct. App. February 25, 2015). v. 232.116(1)(f) and 232.116(1)(h): The Most Common 1. Usually the fight is over paragraph 4: Return to Parents' Care TODAY 2. Removed from Parents’ care a. In re C.F.-H., 889 N.W.2d 201 (Iowa 2016). What does removal mean? i. Mom had custody, but child was never in Dad’s care; State tried to terminate Dad ii. Court has held that “removed” as used in Iowa Code § 232.116(1)(f) and (e) “involves a dynamic change of circumstance, not stasis.” iii. In this case, there was no removal from Dad or Mom, therefore no TPR b. What about a child removed from one parent, but placed in state custody? i. Court of Appeals says that is a removal for this section 3. Reasonable Efforts Iowa Code Section 232.100(10) a. Did DHS do what it was supposed to? b. Parent must have asked for services in the past, cannot ask for the first time at a TPR hearing c. Helpful document: the Case Plan d. Asking for an additional 6 months 4. Iowa Code Section 232.117(5) and 232.104(2)(b), a court may grant the parents an additional 6 months to work toward reunification. vi. 232.116(1)(g). Prior Termination 1. Practice point: was due process present in the prior termination? 2. Proper Notice 3. Represented by Counsel 4. Half-siblings count a. In re C.W., 522 N.W.2d 113 (Iowa Ct. App. 1994) vii. 232.116(1)(l): Substance Abuse 1. It is no longer sufficient for the court to assess in lay terms whether the parent suffers from “a severe, chronic substance problem.” The definition of substance-related disorder requires consideration of diagnostic criteria from the DSM–5. In re G.B., 860 N.W.2d 342 (Iowa Ct. App. 2014).

X. Contact Information Sara Strain Linder Bray & Klockau, P.L.C. 402 S. Linn Street Iowa City, IA 52240 Ph: (319)338-7968 Fax: (319)354-4871 Email: [email protected] Attachment 1

) IN THE INTEREST OF ) Case No: JVJV000000 ) JVJV000000 CHILD, ) JVJV000000 CHILD, ) JVJV000000 CHILD, and ) CHILD ) NOTICE OF APPEAL ) CHILDREN. ) ______

TO: The Department of Human Services, and its counsel of record, Assistant County Attorney Oubonh White, 420 E. Third Street, Muscatine IA 52761

FATHER and his counsel of record, Steve Newport, 2117 State Street, Suite 250, Bettendorf, IA 52722

FATHER and his counsel of record, Brian Metcalf, 126 West Second St., Muscatine, IA 52761

The children’s attorney and guardian ad litem, Kathy Salazar, 112 South Avenue B, Washington, IA 52353

The Attorney General’s office, 1305 E Walnut St, Des Moines, IA 50319 NOTICE IS HEREBY GIVEN that the Mother, NAME, hereby appeals to the Supreme Court of Iowa from the Order entered on or about November 6, 2015. You are hereby further notified that said appeal will come on for hearing before the Supreme Court of

Iowa at the State Capitol in Des Moines, Iowa, as provided by the law and rules of said Supreme Court of Iowa.

______Sara Strain Linder, AT0009286 Attorney for Mother BRAY & KLOCKAU, P.L.C. 402 South Linn Street Iowa City, Iowa 52240-4929 Telephone:(319) 338-7968 Facsimile:(319) 354-4871

______CLIENT, Mother

PROOF OF SERVICE AND CERTIFICATE OF FILING

I certify that on November,_____, 2015, I served this document by mailing a copy to all parties in this matter as listed above at their respective addresses as shown above and I further certify that on November _____, 2015, I did file this document with the Clerk of the District Court in and for Muscatine County, Muscatine, Iowa. I further certify that on November ____, 2015, I did file this document by mailing a copy to the Clerk of the Supreme Court of Iowa, Statehouse, Des Moines, Iowa, 50319.

______Sara Strain Linder, AT0009286 Attachment 2

IN THE SUPREME COURT OF IOWA No.______Muscatine County Nos. JVJV0000-00; JVJV00000-00 IN THE INTEREST OF ) ) CHILD and ) CHILD., ) ) COMBINED CERTIFICATE Minor Children, ) ) MOM., Mother, ) Appellant. ) )

1. Notice of Appeal was filed in district court on June 23, 2016, from an Order Re:

Termination of Parental Rights filed on June 10, 2016, by the Honorable Gary P. Strausser.

2. I hereby certify that I now order on this 23rd day of June, 2016, a transcript from:

Karla Lester, Muscatine County Courthouse

No arrangements have been made or suggested to delay the preparation thereof.

Application has been made for the transcript to be paid at State’s expense.

Financial arrangements have been made with the reporter in accordance with the Iowa R.

App. P. 6.803(5). Payment will be made by court-ordered funds.

The following proceedings are ordered:

Termination of Parental Rights Trial on Cause No. JVJV00000-00 before the Honorable

Gary P. Strausser held on November 25, 2015, December 2, 2015, December 16, 2015, and

January 21, 2016.

3. Iowa Rule of Appellate Procedure 6.902(1) applies to this case in the event full briefing is granted.

__X__ A termination of a parent-child relationship.

4. I assert in good faith that this appeal meets jurisdictional requirements and is from: __X__ a final judgment, order, or decree and a timely notice of appeal have been filed.

5. The names of the parties involved in this appeal and their designations in district court are shown below under column A. Their respective attorneys’ names, law firms, addresses and telephone numbers are shown below under column B:

Column A Column B

Appellants: Mother Sara Strain Linder BRAY & KLOCKAU, P.L.C. 402 South Linn Street Iowa City, Iowa 52240 Telephone:(319) 338-7968 Facsimile:(319) 354-4871

Appellee: State of Iowa Attorney General’s Office 2nd Fl. Hoover Building Des Moines, IA 50319 (515) 281-8330 (515) 281-7219 (fax)

Oubonh White Assistant County Attorney 420 E. Third Street Muscatine IA 52761 (563) 263-0382

Guardian Kathryn Salazar 112 South Avenue B Ad Litem: Washington, IA 52353 (319) 653-2147

Father’s Brian Metcalf 126 West Second Street Attorney: Muscatine, Iowa 52761 (563) 263-9494 (phone) (563) 263-7824 (fax)

Mother, Appellant

By: /s/ ______

Sara Strain Linder, AT0009286 BRAY & KLOCKAU, P.L.C. 402 South Linn Street Iowa City, Iowa 52240-4929 Telephone:(319) 338-7968 Facsimile:(319) 354-4871 ATTORNEY FOR APPELLANT

PROOF OF SERVICE AND CERTIFICATE OF FILING

I certify that on ______, 2016, I served this document by mailing a copy to the court reporter at the address as shown below:

Karla Lester Court Reporter Muscatine County Courthouse 401 E. 3rd St. Muscatine Iowa 52761

______Sara Strain Linder, AT0009286 Attachment 3

IN THE SUPREME COURT OF IOWA No.16-1075 Muscatine County Nos. JVJV005931-32; JVJV005884-85 IN THE INTEREST OF ) ) Y.G. and ) E.G., ) ) REQUEST FOR TRANSMISSION Minor Children, ) OF THE RECORD ) M.G., Mother, ) Appellant. ) )

To: Clerk of District Court for Muscatine County

COMES NOW the undersigned and in accord with Iowa Rule of Appellate

Procedure 6.802(2), hereby requests that the record in this matter be transmitted to the

Clerk of the Supreme Court.

/s/ ______Sara Strain Linder, AT0009286 BRAY & KLOCKAU, P.L.C. 402 South Linn Street Iowa City, Iowa 52240-4929 Telephone:(319) 338-7968 Facsimile:(319) 354-4871 ATTORNEY FOR APPELLANT ELECTRONICALLY FILED AUG 11, 2016 CLERK OF SUPREME COURT Attachment 4

IN THE SUPREME COURT OF IOWA

IN THE INTEREST OF ) ) SUPREME CT. NO. ______CHILD. and ) Muscatine County No. JVJV00000 CHILD, ) and JVJV00000; JVJV00000; ) JVJV00000 Minor Children, ) ) MOTHER-APPELLANT’S M.G., Mother, ) REQUEST TO WAIVE FILING Appellant. ) FEE FOR PETITION ON APPEAL )

COMES NOW, Mother-Appellant, pursuant to Iowa Rule of Appellate Procedure

6.702(2), and hereby requests that the Court waive the filing fee for her Petition on Appeal based

on the District Court’s finding the mother, MOTHER, is indigent. A copy of the District Court’s

Orders from the underlying Child in Need of Assistance Proceedings finding the mother qualifies

for court appointed counsel is attached.

______Sara Strain Linder, AT0009286 BRAY & KLOCKAU, P.L.C. 402 South Linn Street Iowa City, Iowa 52240-4929 Telephone:(319) 338-7968 Facsimile:(319) 354-4871 ATTORNEY FOR APPELLANT Attachment 5

IN THE SUPREME COURT OF IOWA ) Supreme Court IN THE INTEREST OF No. 16-1237 ) Muscatine County Juvenile No. JV00000-00 CHILD, and ) JV00000-00 CHILD, Petition on Appeal Minor Children. ) (CINA and TPR Case) ______APPEAL FROM THE IOWA DISTRICT COURT IN AND FOR MUSCATINE COUNTY The Honorable Nancy Tabor, JUDGE

______

PETITION ON APPEAL PURSUANT TO IOWA R. APP. P. 6.6(4) THE APPELLANT CERTIFIES THAT THE MATERIAL CONTAINED IN THIS PETITION ON APPEAL IS CONFIDENTAIL PURSUANT TO IOWA CODE SECTION 232.147(2016)

______

______Sara Strain Linder AT0009286 Bray and Klockau 402 S. Linn Street Iowa City, IA 52240 (319)338-7968 [email protected] Fax: (319) 653-5435 Attorney for Appellant IN THE SUPREME COURT OF IOWA ) Supreme Court IN THE INTEREST OF No. 16-1237 ) Muscatine County Juvenile No. JV00000-00 CHILD, and ) JV00000-00 CHILD, Petition on Appeal Minor Children. ) (CINA and TPR Case) ______County: Muscatine Judge: Nancy Tabor

The names of the parties involved in this appeal and their designations in Juvenile Court are shown below in Column

A. Their respective attorneys’ names, law firms, addresses, and telephone numbers are shown below in Column B.

Column A Column B

Appellant: Mother, Sara Strain Linder Bray and Klockau 402 S. Linn Street Iowa City, IA (319)338-7968

Appellees: State of Iowa Assistant Attorney General Hoover State Office Bldg,2nd Fl 1305 E. Walnut St. Des Moines, IA 50319 (515)242-6189

Muscatine County Attorney Alan Ostergren Muscatine County DHS Muscatine County Attorney 401 E. Third Street Muscatine, Iowa 52761 (563)263-0382

C.B. and J.C.,(children) Christine Boyer 132 ½ E. Washington Street Iowa City, IA 52244 (319) 321-4778 Father (A.K.)’s Jennifer Olsen Attorney: 2322 E. Kimberly Road, Ste. 100E Davenport, IA (563) 383-6090

Father (T.S.): 1435 Prairie Du Chien Rd. Iowa City, IA 52244

Father (L.C.)’s Elizabeth Araguas Attorney 209 E. Washington St. Ste. 203 Iowa City, IA 52240

1. This Petition on Appeal is filed on behalf of C.C., the mother in the above-identified Child in Need of Assistance proceedings, with respect to the children:

Child’s name Date of Birth

C.B. 06/11/2011 J.C. 02/14/2013

2. The children were adjudicated Children in Need of

Assistance by the Juvenile Court pursuant to Iowa Code section

232.2(6)(c)(2) and Iowa Code section 232.2(6)(n). An order terminating the mother’s parental rights pursuant to Iowa Code

Section 232.116(1)(f), 232.116(1)(l) and 232.117 was filed July

11, 2016.

3. Appellant’s attorney, Sara Strain Linder, is the attorney who represented Appellant in the underlying proceedings. 4. There are no other pending appeals involving these children.

5. The relevant dates regarding this appeal are the following:

a. Date of adjudication: June 26, 2015

b. Date of last removal: May 9, 2015

c. Date of disposition: August 20, 2015

d. Dates of Permanency January 28, 2016

Hearings: June 30, 2016

e. Date of Termination Hearing: June 30, 2016

f. Date Termination Petition filed: May 18, 2016

g. Date of Termination Ruling: July 11, 2016

h. Date notice of appeal filed: July 21, 2016

6. Nature of case and relief sought: The Appellant seeks a reversal of the Juvenile Court Order terminating the parental rights of the mother to the children, C.B. and J.C.

7. The material facts as they relate to the issue presented for appeal are:

C.C. is the mother of C.B. and J.C. At the time of trial

C.B. was 5 and J.C. was 3.

The children were removed from C.C.’s care on May 9, 2015, after the Department received reports that the children were not supervised and that C.C. was using illegal substances. Law enforcement found drug paraphernalia in the home when they came to investigate that the children were left alone. The children also tested positive for marijuana exposure.

As a result of the circumstances leading to the removal,

C.C. was charged with child endangerment. She was found to be in violation of her conditions of pretrial release and was incarcerated from December 3, 2015, until February 22, 2016.

C.C. pled guilty to child endangerment and was sentenced to complete the residential correctional facility program. On

February 22, 2016, she began the residential correctional facility in Davenport. She remained there until May 10, 2016, when she was arrested for a probation revocation. At the time of the termination trial, C.C. was awaiting her hearing on the revocation. On July 15, 2016, she was found in contempt and ordered to serve 90 days in jail. She was released from jail on

July 22, 2016.

During her time at the residential correctional facility,

C.C. completed a substance abuse evaluation. She was recommended to outpatient treatment and was in treatment at the time of her arrest on May 10, 2016. C.C. was also participating in mental health counseling while at the residential correctional facility. C.C. also had employment. Prior to her incarceration in December 2015, C.C. had maintained an apartment that would accommodate her and the children. Testimony at the trial indicated that C.C. and the children were bonded. Testimony also indicated that when sober, C.C. could be a very good parent. Importantly, testimony also indicated that the children were going to be moved from their current placement in the imminent future. Their new placement would be a foster family unknown to the children.

8. The legal issue presented for appeal, including a statement of how the issue arose and how it was preserved for appeal is:

Issue 1:

The Court erred in finding that an additional period of time would not correct the situation. Was error preserved? Yes. If yes, state how: Error was preserved by raising this issue at the permanency and termination hearing and the timely filing of this appeal.

The biggest barrier to C.C.’s success was her incarceration at the time of trial. C.C. testified to the circumstances of her probation revocation. Another resident at the residential correctional facility physically attacked C.C. and she was held accountable for that because she was considered “involved.”

Importantly, C.C. was not subject to revocation because of substance abuse problems.

C.C. testified that at the hearing on her probation revocation on July 15, 2016, she would be requesting a contempt sentence and continued probation or placement at a residential treatment program. If released after a contempt finding, C.C. could re-engage in outpatient substance abuse and mental health counseling. C.C. was able to obtain work while at the residential correctional facility and expected to be able to find work again. It would be feasible that C.C. could be in a position to resume care of her children within 6 months. If

C.C. were sentenced to a residential treatment program, she could complete the program within 60 to 70 days. Following that, she could continue outpatient treatment. It is also likely that she would have access to transitional housing for herself and the children. With this sentencing outcome, C.C. could still resume care of the children within 6 months.

In its order, the juvenile court determined that it would be months before C.C. would be in a position to seek housing or employment if she were given straight probation. (Ruling, p.

11). There is no support for this proposition in the record.

In contrast, testimony showed that C.C. had maintained several jobs while at the residential correctional facility. Testimony also showed that C.C. had maintained an apartment that was suitable for her and the children prior to her incarceration in

December 2015. The more likely outcome is that C.C. would be able to achieve stability in relatively short order while she worked on her substance abuse and mental health.

Testimony at the trial also indicated that C.C. could complete substance abuse treatment within 6 months. She had not used since Fall of 2015, including during her time in the community at the residential correctional facility. Given this, she would not need inpatient treatment. Most outpatient programs can be completed within 6 months or less.

Additionally, C.C. was addressing her mental health. Testimony revealed that C.C. had attended 7 sessions with a counselor while at the residential correctional facility. C.C. was committed to continuing this important service once released from jail.

In short, C.C. was engaged in and committed to participating in the services needed to be sober and stable.

She had a history of being able to do these things when her prior case was closed in 2014. There is every reason to believe that C.C.’s commitment would continue and C.B. and J.C. could be returned to her care within 6 months and the Department could close its case.

Legal Authorities: Iowa Code Section 232.117(5) (2016)

Iowa Code Section 232.104(2) (b) (2016)

Issue 2:

The Court erred in finding that the Mother’s rights should

be terminated pursuant to Iowa Code Section 232.116(1)(l). Was error preserved? Yes. If yes, state how: Error was

preserved by raising this issue at the termination hearing and

the timely filing of this appeal.

The court erred in finding that C.C.’s parental rights

should be terminated pursuant to Iowa Code Section

232.116(1)(l). Specifically, the state failed to prove by clear

and convincing evidence that C.C. has a severe substance related

disorder and the children could not be returned to her in a

reasonable time. See Iowa Code Section 232.116(1)(l)(2016).

C.C. had participated in several substance abuse

evaluations throughout the case. In September 2015, an

evaluator at Prelude determined that C.C. met the requirements for a diagnosis of amphetamine, alcohol, and marijuana dependence pursuant to the Diagnostic and Statistical Manual,

Fifth Edition. (State’s Exhibit 48). The evaluator further recommended in-patient treatment. C.C. began this treatment, but was unsuccessfully discharged in October 2015. On March 30,

2016, C.C. participated in another substance abuse evaluation while at the residential correctional facility. This evaluation recommended that C.C. participate in extended outpatient treatment. C.C. was participating at the time of her arrest on

May 10, 2016.

There is no doubt that C.C. suffers from a substance related disorder. However, her prognosis is not as grim as the

State alleged. A valid evaluation determined that C.C. should participate in outpatient treatment. C.C. could complete treatment on this course within 6 months. The juvenile court found it significant that this evaluation took place after C.C. was incarcerated. (Ruling, p. 10). However, it is also significant that C.C. was in the community and still had not used prior to the evaluation or during the course of her treatment. Undoubtedly, opportunity and the urge to use presented itself to C.C. while at the residential correctional facility. Yet, C.C. did not use. Additionally, C.C. was engaged in mental health treatment. The case worker from the Department testified that C.C.’s mental health was a key component to her sobriety. The fact that C.C. was addressing both while at the residential correctional facility suggests that she would be successful and the children could be returned to her within reasonable time.

Legal Authorities: Iowa Code Section 232.116(1) (l) (2016)

Issue 3: The Court erred in finding that termination of Mother’s parental rights was in the best interest of the children pursuant to Iowa Code Section 232.116(2). Was error preserved? Yes. If yes, state how: Error was preserved by raising this issue at the permanency and termination hearing and the timely filing of this appeal.

Termination of C.C.’s parental rights is not in the best interest of C.B. and J.C. Testimony showed that the children were bonded to their mother. The children looked forward to visits and enjoyed them. The family care coordinator testified that many visits went well. Furthermore, it is undisputed that when sober, C.C. is a good parent. It would be detrimental to

C.B. and J.C. to terminate this close and positive relationship. See Iowa Code Section 232.116(2)(c) (2016).

Furthermore, C.B. and J.C. are not in a permanent placement currently. See Iowa Code Section 232.116(2)(b)(2016). The children’s current placement had given notice and the Department planned to move the children to a new foster home and it was unclear whether this would be a permanent placement for the children. There is no dispute that this would be emotionally difficult for the children. It is possible that the children would need significant time to create bonds with the new family.

Given this, it is in the children’s best interest to give

C.C. the time to work toward reunification. The children are bonded to C.C. and she can be a very loving parent. As stated

above, C.C. could be in a position to parent these children

without the assistance of the Department in the near future. It

makes sense to continue the bond the children have with C.C.

while they undergo the upheaval of a new placement. This would

be in their best interest.

Legal Authorities: Iowa Code Section 232.116(2)(c) (2016)

Iowa Code Section 232.116(2)(b) (2016)

9. I hereby certify that within 30 days of the filing of

the Notice of Appeal, I will request that the clerk of the trial

court transmit immediately to the clerk of the Supreme Court:

X the child in need of assistance court files, including

all exhibits;

X those portions of the child in need of assistance court

file, either received as exhibits or judicially noticed

in the termination of parental rights proceeding;

The undersigned requests that the Appellate Court issue an opinion reversing the Order of the Juvenile Court in this matter, or, in the alternative, enter an Order setting this case for full briefing.

______Sara Strain Linder AT0009286 Bray and Klockau 402 S. Linn Street Iowa City, IA 52240 (319)338-7968 [email protected] Fax: (319) 653-5435 Attorney for Appellant

ATTACHMENTS: - Petition to terminate parental rights and any amendments - Order, Judgment or Decree terminating parental rights Attachment 6

IN THE SUPREME COURT OF IOWA

Supreme Court No.17-0920

IN THE INTEREST OF L.H., Minor Child.

APPEAL FROM THE IOWA DISTRICT COURT IN AND FOR MUSCATINE COUNTY THE HONORABLE GARY P. STRAUSSER, JUDGE

RESPONSE TO THE FATHER’S PETITION ON APPEAL

THE APPELLEE CERTIFIES THAT THE MATERIAL CONTAINED IN THIS RESPONSE TO PETITION ON APPEAL IS CONFIDENTIAL PURSUANT TO IOWA CODE SECTION 232.147 (2015).

Sara Strain Linder AT0009286 Bray and Klockau 402 S. Linn Street Iowa City, IA 52246 (319)338-7968 [email protected] Fax: (319) 653-5435

Attorney for Appellee – Guardian ad Litem IN THE SUPREME COURT OF IOWA

) Supreme Court No. 17-0920 IN THE INTEREST OF ) Muscatine County Juvenile No. JVJV006132 L.H., ) Response to Petition Child. ) on Appeal

1. This Response to Petitions on Appeal is filed on behalf of the minor child, by the Guardian ad Litem, Sara Strain Linder in the above-identified proceeding.

2. The Appellee’s attorney, Sara Strain Linder, is the attorney who represented the child at trial.

3. The relevant dates regarding this appeal are correctly stated in the

Petition on Appeal.

4 . The statement of material facts as they relate to the issues presented for appeal are as follows:

L.H. is the two-year-old son of Danielle and Ryan. L.H. has two older half- brothers; G.G. who is five and A.D. who is ten. G.G. and A.D. have different fathers than L.H.

Danielle and Ryan have been in a relationship for 3 years. They resided continuously with each other and the children in various homes until February

2016. After February 2016, Danielle and the children reside with Ryan on weekends and additional overnights depending on the school schedule. However,

Danielle reported to law enforcement that she resided in Ryan’s home full-time until June 19, 2016. (Ex. 5: Police Report).

On June 26, 2016, A.D. locked himself in the bathroom of the residence.

(Ex. 7: Abuse Report). Ryan became upset (Id.). After A.D. unlocked the door,

Ryan came into the bathroom and assaulted A.D. by pushing him into a wall. (Id.).

A.D. received a bump on his head and received medical treatment. (Ex. 6: Medical

Reports). Danielle and A.D. reported to both the Department of Human Services investigator and the responding officer from the Davenport Police Department that this was not the first time Ryan assaulted A.D. (Ex. 7: Abuse Report, Ex. 5:

Police Report). Ryan has a history of domestic violence across several relationships. (Ex. 12: Updated Social History). Furthermore, Danielle reported domestic violence in their relationship (Ex. 7: Abuse Report). In December 2016, the provider observed that Danielle had two black eyes. (Ex. 4: Families First

Report 12/13). Danielle provided an explanation that was not credible. (Id.).

Ryan did not participate in the investigation. (Id.) Shortly after the

Department began its investigation, Danielle became less cooperative. (Id.) It appears that Danielle’s lack of cooperation was influenced by Ryan. For example,

Danielle called the Child Protective Worker to “soften” her earlier statements within 30 minutes of Ryan’s contact with the Child Protective Worker. (Id.; Testimony of Suzy Good). The parents’ cooperation with the Department and juvenile court proceedings continued to be poor through the dispositional hearing.

Ryan refused to participate in the social history process. (Dispositional Order).

Danielle refused to allow the Department to meet with the children alone. (Id.)

5. Appellee’s response to the legal issues presented for appeal are as follows:

a. Issue I:

Whether the Whether L.H. meets the statutory definition of a “Child In

Need of Assistance” under subsections 232.2(6)(b) or 232.2(6)(c)(2).

Appellee states that error was preserved as alleged in the Father’s petition on appeal.

L.H. meets the definition of a Child in Need of Assistance pursuant to Iowa

Code Section. 232.2(6)(b). Ryan and L.H. are family members as Ryan is L.H.’s father. Iowa Code Section 232.2(6)(b); In the Interest of J.C. , 857 N.W.2d. 495

(Iowa 2014). Secondly, L.H. is at risk for physical abuse as described below.

To the extent that Ryan has standing to contest the issue as it relates to A.D. and G.G., the juvenile court correctly determined that Ryan is a member of A.D. and G.G.’s household. As the court stated, the children have multiple residences.

(Adjudicatory Order, p. 2-3). Danielle reported that she had belongings at both

Ryan’s residence and her father’s home. (Ex. 6: Abuse Report). The children frequently spent the night at Ryan’s residence and had belongings in that home.

(Testimony of Danielle Grimm). Legally, the concept of multiple homes matches the realities of many families. Due to financial or social considerations, family members may live in different homes at different times. Additionally, children of divorce or separated parents reside in different homes. A limitation on the number of residences that a child has would leave many children at risk of harm because it would create a loophole. If a parent wanted to avoid adjudication, he or she would just move out of the family home during the assessment and then return.

Furthermore, A.D. and G.G. were members of Ryan’s household in the past.

(Testimony of Danielle Grimm). The Iowa Court of Appeals found that being household members in the past was sufficient for an adjudication pursuant to Iowa

Code Section 232.2(6)(b). See In the Interest of C.K., 807 N.W.2d 157

(Table)(Iowa App. 2007). More on point to this case, the Iowa Court of Appeals found that children who were abused by their stepfather, who did not reside with them full-time, met the definition of Children in Need of Assistance pursuant to

Iowa Code Sections 232.2(6)(b) and 232.2(6)(c)(2). In the Interest of A.H., 720

N.W.2d 194 (Table)(Iowa App. 2006). Therefore, Ryan was a household member even if he did not reside with A.D. and G.G. full-time. As such, all three children were properly adjudicated as Children in Need of Assistance pursuant to Iowa

Code Section 232.2(6)(b) and 232.2(6)(c)(2). Legal Authorities:

Iowa Code Section 232.2(6)(b)

Iowa Code Section 232.2(6)(c)(2)

In the Interest of J.C. , 857 N.W.2d. 495 (Iowa 2014)

In the Interest of C.K., 807 N.W.2d 157 (Table)(Iowa App. 2007)

In the Interest of A.H., 720 N.W.2d 194 (Table)(Iowa App. 2006) b. Issue II.

Whether L.H. is in “imminent” harm under subsection 232.2(6)(b) even if there was an assault of A.D. by Ryan. Appellee states that error was preserved as alleged in the Father’s petition on appeal.

The juvenile court found by clear and convincing evidence that L.H.’s brother, A.D., suffered physical abuse at the hands of Ryan on June 26, 2016.

(Adjudicatory Order, p. 2). This finding is supported by the testimony of Suzy

Good, the statements of A.D., the fact Danielle sought medical treatment for A.D., and Danielle’s statements that she intended to end her relationship with Ryan as a result of Ryan’s actions.

The record shows that L.H. is at risk of imminent harm. The phrase

“imminently likely” is to be construed liberally. In the Interest of J.S., 855 N.W.2d

202 (Table)(Iowa App. 2016). Even under a strict interpretation of the phrase, the record reflects that L.H. is at imminent risk. First, the June 26. 2016, assault on

A.D. was not an isolated incident (Ex. 7: Abuse Report, Ex. 5: Police Report).

Second, Ryan has unaddressed anger issues. (Adjudicatory Order, p. 3, Ex. 7:

Abuse Report). Finally, Danielle’s behavior during the investigation shows that she will not protect her children from further abuse. (Testimony of Suzy Good during cross-examination by Sara Strain Linder; Ex. 7: Abuse Report). L.H. and his brothers are at risk to another event like that which occurred on June 26, 2016.

Legal Authorities:

Iowa Code Section 232.2(6)(b)

In the Interest of J.S., 855 N.W.2d 202 (Table)(Iowa App. 2016). c. Issue III.

Whether there was sufficient evidence to indicate that L.H. was at risk

due to a lack of supervision. Appellee states that error was preserved as alleged in the Father’s petition on appeal.

L.H. also meets the definition of a Child in Need of Assistance pursuant to

Iowa Code Section 232.2(6)(c)(2). L.H.’s parents are in a domestically violent relationship. (Ex.4: Families First Report 12/13; Ex. 5: Police Report; Ex. 6: Abuse

Report). Ryan has a history of committing domestic violence in front of children.

(Ex. 12: Updated Social History). Danielle has shown by her actions that she will not limit the children’s exposure to Ryan and can be controlled by him. (Ex. 6:

Abuse Report). Children who are exposed to domestically violent relationships meet the definition of Children in Need of Assistance. In the Interest of J.G., 829

N.W.2d 192 (Table)(Iowa App. 2013); In the Interest of H.P., 741 N.W.2d

821(Table)(Iowa App. 2007); In the Interest of H.S., 873 N.W.2d 302(Table)

(Iowa App. 2015). As such, L.H. is a Child in Need of Assistance pursuant to Iowa

Code Section 232.2(6)(c)(2).

Legal Authorities:

Iowa Code Section 232.2(6)(c)(2)

In the Interest of J.G., 829 N.W.2d 192 (Table)(Iowa App. 2013)

In the Interest of H.P., 741 N.W.2d 821(Table)(Iowa App. 2007)

In the Interest of H.S., 873 N.W.2d 302(Table) (Iowa App. 2015).

6. The undersigned requests the Appellate Court issue an opinion affirming the Order of the Juvenile Court in this matter.

__/s/ Sara Strain Linder______Sara Strain Linder AT0009286 Bray and Klockau 402 S. Linn Street Iowa City, IA 52246 (319)338-7968 [email protected] Fax: (319) 653-5435 Attorney for Appellee – Guardian ad Litem

Original e-filed.

Copies served electronically on parties of record.

PROOF OF SERVICE The undersigned certifies that a copy of the foregoing instrument was served upon all parties to the above cause to each of the attorneys of record herein at their respective address, on the ______day of ______, 20_____. By: [ ] U.S. Mail [ ] FAX [ ] Hand Delivered [ ] UPS [ ] Federal Express [ ] Other

By:______

Attachment 7

IN THE SUPREME COURT OF IOWA ______

SUPREME COURT NO. 17-0920 ______

IN THE INTEREST OF L.H. Minor Child. ______

APPEALED FROM THE IOWA DISTRICT COURT IN AND FOR MUSCATINE COUNTY Hon. Gary P. Strausser, District Associate Judge

______

APPELLEE-STATE'S APPLICATION FOR FURTHER REVIEW AND BRIEF ______

THOMAS J. MILLER Attorney General of Iowa

KATHRYN K. LANG Assistant Attorney General Second Floor Hoover State Office Building Des Moines, IA 50319 ATTORNEYS FOR APPELLEE-STATE

Joan Black (Trial Counsel) Assistant Muscatine County Attorney

OPINION, COURT OF APPEALS (July 19, 2017) ELECTRONICALLY FILED JUL 27, 2017 CLERK OF SUPREME COURT ISSUES PRESENTED FOR REVIEW

I. WHETHER THE COURT OF APPEALS ERRED BY REVERSING THE JUVENILE COURT’S ADJUDICATION OF L.H. AS A CHILD IN NEED OF ASSISTANCE WHERE THE FATHER HAS A DOCUMENTED HISTORY OF DOMESTIC VIOLENCE AND HAS PHYSICALLY ABUSED L.H.’S SIBLING.

ii TABLE OF CONTENTS Page

ISSUES PRESENTED FOR REVIEW ...... ii TABLE OF CONTENTS ...... iii TABLE OF AUTHORITIES ...... iv STATEMENT SUPPORTING FURTHER REVIEW ...... 1 STATEMENT OF THE FACTS ...... 2 STANDARD OF REVIEW ...... 5 ARGUMENT ...... 5

I. THE DECISION OVERLOOKED THE FACT THAT THE MOTHER AND THE FATHER ARE STILL IN A RELATIONSHIP AND RESIDING TOGETHER ON THE WEEKENDS WITH L.H...... 6

II. THE DECISION FOUND THAT “PROTECTIVE MEASURES WERE PUT IN EFFECT,” BUT OVERLOOKED THE FACT THAT THE MOTHER AND FATHER WERE NOT COOPERATING WITH THE DEPARTMENT ...... 8

CONCLUSION ...... 10 CERTIFICATE OF COMPLIANCE ...... 10 OPINION, COURT OF APPEALS (Dated, July 19, 2017) ADJUDICATION ORDER (Dated, February 23, 2017) STATE’S EX. 12

iii TABLE OF AUTHORITIES Page Cases In re A.C., No. 08-1215, 2008 WL 4531458, at *2 (Iowa Ct. App. Oct. 1, 2008) ...... 8, 9 In re B.E., 824 N.W.2d 562 (Table), 2012 WL 535617, at *2 (Iowa Ct. App. Oct. 31, 2012) ...... 6

In re C.C., 538 N.W.2d 664 (Iowa Ct. App. 1995) ...... 2

In re C.H., 652 N.W.2d 144 (Iowa 2002) ...... 6

In re D.D., 653 N.W.2d 359 (Iowa 2002) ...... 5, 6 In re D.H., No. 13-1693, 2014 WL 250256, at *2 (Iowa Ct. App. Jan. 23, 2014) ...... 2 In re D.R., No. 15-1968, 2016 WL 1129385, at *5 (Iowa Ct. App. Mar. 23, 2016) ...... 1, 8

In re H.R.K., 433 N.W.2d 46 (Iowa Ct. App. 1988) ...... 6 In re J.F., No. 13-1956, 2014 WL 667789, at *2 (Iowa Ct. App. Feb. 19, 2014) ...... 1 In re J.G., 829 N.W.2d 192 (Table), 2013 WL 541890, at *3 (Iowa Ct. App. Feb. 13, 2013) ...... 7

In re J.S., 846 N.W.2d 36 (Iowa 2014) ...... 5

In re L.B., 530 N.W.2d 465 (Iowa Ct. App. 1995) ...... 6 In re S.C., No. 15-0262, 2015 WL 2089743, at *2 (Iowa Ct. App. May 6, 2015) ...... 1 In re Z.W., No. 04-0383, 2004 WL 1075063, at *4 (Iowa Ct. App. May 14, 2004) ...... 8, 9 Statutes Iowa Code section 232.2(6)(b)(2014) ...... 3

Iowa Code section 232.2(6)(c)(2) ...... 3

Iowa Code section 232.116(1)(d) ...... 6 Rules Iowa R. App. P. 6.903(1)(e) ...... 10

iv STATEMENT SUPPORTING FURTHER REVIEW

In this case, the decision by the Court of Appeals does nothing to prevent the father from continuing to assault his family members. The decision ignores the father’s refusal to cooperate with the Department of Human Services and obey the orders of the juvenile court. The Court of Appeals found that the father has demonstrated violent behavior towards his family, both by the physical abuse of

L.H.’s half-sibling and domestic violence against the mother. Although not living with him full-time, the mother and L.H. reside with the father on the weekends.

The mother and the father are in a romantic relationship. The father and the mother have not been cooperative with the Department of Human Services since the filing of the child-in-need-of-assistance petition. However, the Court of Appeals found that the father does not pose a risk of imminent harm to L.H.

This decision is in conflict with the substantial history of cases finding that exposure to domestic violence poses a risk of harm to children. See, e.g., In re

D.R., No. 15-1968, 2016 WL 1129385, at *5 (Iowa Ct. App. Mar. 23, 2016)

(“[D]omestic violence does have an adverse effect on children.”); In re S.C., No.

15-0262, 2015 WL 2089743, at *2 (Iowa Ct. App. May 6, 2015) (affirming termination of rights where the mother failed to attend classes to address domestic violence and continued to maintain “regular, inappropriate, and harmful contact” with the abusive father); In re J.F., No. 13-1956, 2014 WL 667789, at *2 (Iowa Ct.

1 App. Feb. 19, 2014) (affirming termination of rights pursuant to paragraph (h) where the mother exposed the child to domestic violence and unstable relationships); In re D.H., No. 13-1693, 2014 WL 250256, at *2 (Iowa Ct. App.

Jan. 23, 2014) (affirming termination of rights where mother was involved in violent relationships); In re C.C., 538 N.W.2d 664, 667 (Iowa Ct. App. 1995)

(affirming termination where the mother’s relationship with abusive boyfriend created a risk of harm to the children). L.H. is need of the juvenile court’s assistance and protection from the risk of domestic violence by the father.

STATEMENT OF THE FACTS

The Court of Appeals made the following findings of fact:

L.H. came to the attention of the Iowa Department of Human Services (DHS) in June 2016 due to concerns of physical abuse by the father. It was alleged the father assaulted L.H.’s older half-sibling, A.D., when he grabbed A.D.’s neck and pushed him into a doorframe. L.H. did not witness the event. After the incident, the mother called 911 and took A.D. to the hospital. A.D. was diagnosed with a subdural hematoma on the head. Hospital, DHS, and police reports indicate the mother intended to take the children to her father’s house after the incident; the mother later testified that she was already residing with her father at the time of the assault on A.D.

In December 2016, during a Family Safety, Risk, and Permanency visit with the mother, the social worker observed “extreme bruising” on the mother’s face, including broken blood vessels in her right eye, two black eyes, and bruises along the mother’s forehead and cheeks. The mother claimed a snowball caused the black eyes, and she tripped over a toy and hit a door, which caused the facial bruising. The social worker noted “severe concerns for the presence of domestic violence in the home.”

2 On January 13, 2017, a contested adjudicatory hearing was held. A DHS representative testified about the June 2016 incident with A.D. and the lack of participation by the father in DHS processes. Another DHS worker testified that since the June 2016 incident, the agency has been unable to meet with the father because he does not respond to phone calls or letters from DHS. The mother testified that A.D. might have exaggerated the June incident with the father. On February 23, the court issued an order finding the father assaulted A.D. in June and adjudicating L.H. and the half-siblings CINA pursuant to Iowa Code section 232.2(6)(b) and (c)(2). The order left L.H. and the half-siblings in the care of their mother.

On April 20, a contested dispositional hearing was held. At the time of the hearing, testimony confirmed the father remained uncooperative with DHS. He refused to submit social history information to the department, and he refused to answer questions asked by the department at the hearing. DHS representatives also testified the father refused to cooperate with paternity testing. The district court issued an order confirming L.H. as CINA, explaining, “[The father] has unaddressed anger issues that present a danger to the children if not addressed.”

(Decision at 1–3).

In the adjudication order for L.H., the juvenile court found the following:

The evidence is clear and convincing that [the father] assaulted [A.D.] in June of 2016. [A.D.] credibly reports being grabbed by [the father] and slammed up against a wall resulting in an injury to his head. [A.D.]’s report of assault is confirmed by the injury he received and [the mother’s] observations. She could hear yelling within the residence. She observed [A.D.] on the floor holding his head.

(Adjudication Order at 2). A.D. is ten years old and the half-brother of L.H.

(Adjudication Tr. 52:4–6). The father does not appeal this finding that he assaulted

A.D. (Petition on Appeal).

3 The father has a history of domestic violence. (State’s Ex. 12; Updated

Social History, Apr. 12, 2017). On May 7, 2015, the mother reported that the father kicked her in the head and she had to go to the hospital. (Id. at 4). The father has had protective orders with two other paramours. He was named as the perpetrator of abuse of his other child in 2007 when he knocked the child’s mother to the ground while she was holding him. It was reported he was drinking and driving with his child in the car. He kicked in the door to assault the child’s mother. It was reported he threw the child across the room. (Id.)1

The mother testified that she and the father have been in a relationship for three years. (Adjudication Tr. 36:18–23, Jan. 13, 2017). She unequivocally stated that she is currently in a relationship with the father and spends time at his home with the children. (Tr. 39:5–16; 47:22–24). She also stated that she visits the father at his home on the weekends and that L.H. has property and clothing at the home.

(Tr. 46:20–47:2). Furthermore, the mother acknowledged that she has reported domestic violence in her relationship with the father both in 2015 and 2016. (Tr.

48:3–11).

The service provider who was assigned to work with the family testified that she has not been able to make any contact with the father despite her attempts. (Tr.

61:11–14). She also testified that the mother told her that the initial reports of the

1 The father refused to participate in the social history so it is unknown whether there is other relevant information. 4 father physically abusing her other son were “exaggerated,” and that she felt like maybe what had happened was that her son had “fallen backwards into the door.”

(Tr. 62:20–25).

Three months after the adjudication hearing, at the dispositional hearing, the mother and the father had not demonstrated any cooperation with DHS.

(Disposition Tr. 11:21–13:6, Apr. 24, 2017). The assistant county attorney stated that DHS could not assure the safety of L.H. because of the complete lack of cooperation with services by the mother and the father and that she was considering asking for a removal of the children. (Id.)

STANDARD OF REVIEW This Court’s review is to be de novo. In re J.S., 846 N.W.2d 36, 40 (Iowa

2014). In engaging in such a review, this Court is to give weight to the juvenile court’s findings of fact. Id. “The most important consideration in any CINA case is the best interests of the child.” In re D.D., 653 N.W.2d 359, 362 (Iowa 2002).

ARGUMENT

Abuse may be “imminently likely” even if it is not “on the verge of happening” because “child protection statutes are designed to prevent probable harm to the child and do not require delay until after harm has occurred.” In re J.S.,

846 N.W.2d 36, 43 (Iowa 2014) (internal citation omitted). For example, the Iowa

Supreme Court has noted that it is “common sense” that when one child in a family

5 is sexually abuses, all siblings are at risk and can be adjudicated children in need of assistance. In re D.D., 653 N.W.2d 359, 362 (Iowa 2002). This common sense notion, that abuse of one child places siblings at risk sufficiently to justify court supervision, is also clearly reflected elsewhere in Iowa’s statutory scheme.

Specifically, the Iowa legislature has found it appropriate to allow the parent-child relationship to be wholly severed through termination of parental rights if any child in the subject child’s family has been adjudicated CINA based on a finding of physical abuse and the parents have been offered services to correct the situation but the abusive circumstances continue to exist. See Iowa Code § 232.116(1)(d).

It is vital in a juvenile matter that a parent recognizes abuse has occurred.

The parent must acknowledge and recognize the abuse before any meaningful change can occur. In re H.R.K., 433 N.W.2d 46, 50 (Iowa Ct. App. 1988); In re

L.B., 530 N.W.2d 465, 468 (Iowa Ct. App. 1995); In re B.E., 824 N.W.2d 562

(Table), 2012 WL 535617, at *2 (Iowa Ct. App. Oct. 31, 2012). “A parent’s failure to address his or her role in the abuse may hurt the parents’ chances of regaining custody and care of their children.” In re C.H., 652 N.W.2d 144, 150 (Iowa 2002).

I. THE DECISION OVERLOOKED THE FACT THAT THE MOTHER AND THE FATHER ARE STILL IN A RELATIONSHIP AND RESIDING TOGETHER ON THE WEEKENDS WITH L.H.

The Decision contained the following findings:

The father has demonstrated aggressive behavior towards his family. The father has a documented child-abuse report against L.H.’s half- 6 sibling, and the record suggests another incident of abuse occurred since it was discovered L.H.’s mother had two black eyes.

(Decision at 5). Yet, the Decision still did not find that the father posed an imminent risk of harm to his own son, who lived with him on the weekends. If the father is physically abusive to a ten-year-old child, what is preventing him from acting the same way to L.H. when they are together? If the father is abusing L.H.’s mother, what is preventing him from continuing to do so in L.H.’s presence when the three of them are residing together on the weekends?

The Decision asserts that the State’s argument “relies on the assumption the mother will place L.H. under the supervision of the father, whose anger issues make abuse imminently likely.” (Decision at 4). The mother unequivocally stated that she and L.H. reside with the father on the weekends and that some of L.H.’s belonging are at the father’s home. (Adjudication Tr. 39:5–16; 47:22–24). The father is L.H.’s parent and there is no custody order dictating when he may or may not have L.H. in his care. Therefore, it is absolutely reasonable to assume that L.H. would be in the unsupervised care of his father, whom the Decision acknowledges has documented anger issues. A CINA adjudication is necessary to protect L.H. from the threat of domestic violence and physical abuse. See In re J.G., 829

N.W.2d 192 (Table), 2013 WL 541890, at *3 (Iowa Ct. App. Feb. 13, 2013)

(stating that the child was adjudicated CINA “because his parents failed to provide him with a home safe from domestic abuse”); In re D.R., No. 15-1968, 2016 WL 7 1129385, at *5 (Iowa Ct. App. Mar. 23, 2016) (“[D]omestic violence does have an adverse effect on children.”).

II. THE DECISION FOUND THAT “PROTECTIVE MEASURES WERE PUT IN EFFECT,” BUT OVERLOOKED THE FACT THAT THE MOTHER AND THE FATHER WERE NOT COOPERATING WITH THE DEPARTMENT.

The Decision further states that “[p]rotective measures were put in effect, including the mother’s care of the children in a different residence.” (Decision at

5). The Decision cites to two cases in support of the finding that there was not clear and convincing evidence that L.H. was at a risk of imminent harm: In re A.C., No.

08-1215, 2008 WL 4531458, at *2 (Iowa Ct. App. Oct. 1, 2008) and In re Z.W.,

No. 04-0383, 2004 WL 1075063, at *4 (Iowa Ct. App. May 14, 2004).

The mother testified that she and L.H. live with the father on the weekends.

(Adjudication Tr. 46:20–47:2). Although she may have lived elsewhere during the week, this was not done because she was being “protective.” In fact, she testified that the father lived in Davenport so that he could be close to his school and she and the children lived with her father because there was not room for them in the house in Davenport, and it was “kind of hard for [the father] to want to focus on schooling with kids around.” (Adjudication Tr. 38:1–6). She and the children moved out of the father’s house in February 2016 before the incident where the father assaulted L.H.’s sibling, not because of the incident. (Tr. 38:13–14).

8 In In re A.C. there was no evidence that the father had ever harmed the mother or any of the children. 2008 WL 453114558, at *2. Furthermore, the father was incarcerated and the mother had initiated the CINA proceedings because of her own protective concerns. Id. Those facts are directly contrary to the facts here.

Here, the father has harmed the mother and her child, the father is free to have L.H. in his custody without supervision, and the mother has not proven to be protective.

In re Z.W. is distinguishable because that case involved the mother’s sex offender boyfriend who was allegedly briefly in the home with the children on one occasion. 2004 WL 1075063, at *3–4. Here, L.H. resides with the father regularly on the weekends. The father has custodial rights to L.H., unlike a boyfriend.

The mother and the father have refused to cooperate with DHS since the incident that precipitated DHS’s involvement in 2016. There is nothing preventing

L.H. from residing with the father full-time without the father first addressing his issues with physical aggression. The Decision gives the father permission to continue assaulting his family members without any intervention from the State and without full consideration of the harmful effects that domestic violence can have on a child. Therefore, there are no protective measures currently in place for

L.H., contrary to the conclusion of the Court of Appeals.

9 CONCLUSION

The State respectfully requests that the Application for Further Review be granted, decision of the Court of Appeals be vacated, and the decision of the juvenile court be affirmed.

THOMAS J. MILLER Attorney General of Iowa

/s/ Kathryn K. Lang______KATHRYN K. LANG Assistant Attorney General Second Floor Hoover State Office Building Des Moines, IA 50319 Tel. (515) 281-8330 ATTORNEYS FOR APPELLEE-STATE

CERTIFICATE OF COMPLIANCE

The undersigned certifies that the Application for Further Review complies with the typeface requirements of Iowa R. App. P. 6.903(1)(e). This brief has been prepared in a proportionally spaced typeface and created in Windows 2010 in font

Times New Roman 14. The number of words is

/s/ Kathryn K. Lang______KATHRYN K. LANG Assistant Attorney General

Original E-Filed.

Copies electronically served on parties of record.

10 PROOF OF SERVICE

The undersigned certifies that the foregoing instrument was served upon each of the persons identified as receiving a copy by delivery in the following manner on July 27, 2017.

U.S. Mail FAX Hand Delivery Overnight Courier Federal Express Other ECF System Participant (Electronic Service)

Signature: /s/Wendi M. Danitz-Hart

11 Attachment 8

IN THE SUPREME COURT OF IOWA ) Supreme Court IN THE INTEREST OF No. 16-1237 ) Muscatine County Juvenile No. JV005910-11 C.B., and ) JV006079-80 J.C., Petition on Appeal Minor Children. ) (CINA and TPR Case) ______APPEAL FROM THE IOWA DISTRICT COURT IN AND FOR MUSCATINE COUNTY The Honorable Nancy Tabor, JUDGE

______

APPLICATION FOR FUTTHER REVIEW OF COURT OF APPEALS DECISION FILED NOVEMBER 9, 2016 BY APPELLANT, MOTHER, C.C. THE APPELLANT CERTIFIES THAT THE MATERIAL CONTAINED IN THIS PETITION ON APPEAL IS CONFIDENTAIL PURSUANT TO IOWA CODE SECTION 232.147(2016)

______

______Sara Strain Linder AT0009286 Bray and Klockau 402 S. Linn Street Iowa City, IA 52240 (319)338-7968 [email protected] Fax: (319) 653-5435 Attorney for Appellant PROOF OF ELECTRONIC SERVICE AND CERTIFICATE OF ELECTRONIC FILING I certify that on November ____, 2016, I electronically filed this document with Clerk of the Supreme Court using the Iowa Electronic Document Management System, which will send notification of electronic filing to the following opposing counsel. Per Iowa Rule 16.317(1)(a)(2), this constitutes service of the document for the purposes of the Iowa Court Rules.

______Sara Strain Linder AT0009286 Bray and Klockau 402 S. Linn Street Iowa City, IA 52240 (319)338-7968 [email protected] Fax: (319) 653-5435 Attorney for Appellant QUESTION PRESENTED FOR REVIEW

DID THE COURT OF APPEALS ERR IN ITS DETERMINATION THAT ADDITIONAL TIME FOR THE MOTHER TO WORK TOWARD REUNIFICATION WAS NOT WARRANTED? TABLE OF CONTENTS

Page

CERTIFICATE OF SERVICE ...... 2

QUESTION PRESENTED FOR REVIEW ...... 3

TABLE OF CONTENTS...... 4

STATEMENT SUPPORTING FURTHER REVIEW...... 5

BRIEF STATEMENT OF THE CASE ...... 6

ARGUMENT

THE COURT OF APPEALS ERRED IN FINDING THAT AN ADDITIONAL PERIOD OF TIME WOULD NOT CORRECT THE SITUATION AND LEAD TO REUNIFICATION...... 8

CONCLUSION...... 11

NOTICE OF ORAL ARGUMENT...... 11

COST CERTIFICATE...... 11

CERTIFICATE OF COMPLIANCE...... 13 STATEMENT SUPPORTING FURTHER REVIEW

COMES NOW, the Appellant pursuant to Iowa Rule of Appellate

Procedure 6.1103, seeking further review of the Court of Appeals decision in In the Interest of C.B. and J.C., No. 16-1237 (filed

November 9, 2016). For the following reasons, the Mother requests further review:

The case presents an issue of broad public importance that the Iowa Supreme Court should determine. This matter involves a parents’ rights to her children. The United States Supreme

Court has repeatedly ruled that the interest of parents in the care, custody, and control of their children is a fundamental liberty right. See Troxel v. Granville, 530 U.S. 57, 65-66

(2000). Furthermore, proceedings affecting this right require more than “fair process.” Id. at 65.

WHEREFORE, the Appellant respectfully asks this Court to grant further review, reverse the Court of Appeals, and reverse the judgment of the District Court and grant her an additional time period to work toward reunification pursuant to Iowa Code

Section 232.104(2)(b).

BRIEF

STATEMENT OF THE CASE

Nature of the Case: The appellant, Mother, requests further review from the decision by the Court of Appeals. The

Court of Appeals found that additional time to work toward reunification was not warranted pursuant to Iowa Code Section

232.104(2)(b).

Course of Proceedings and Disposition Below: On June 26,

2015, the children were adjudicated Children in Need of

Assistance by the Juvenile Court pursuant to Iowa Code section

232.2(6)(c)(2) and Iowa Code section 232.2(6)(n). On July 11,

2016, an order terminating the mother’s parental rights pursuant to Iowa Code Section 232.116(1)(f), 232.116(1)(l) and 232.117.

At the hearing on the State’s Petition to Terminate Parental

Rights, the Appellant specifically requested additional time to work toward reunification. In its termination order, the

District Court denied this request.

Facts: C.C. is the mother of C.B. and J.C. At the time of trial C.B. was 5 and J.C. was 3.

As a result of the circumstances leading to the removal,

C.C. was charged with child endangerment. She was found to be in violation of her conditions of pretrial release and was incarcerated from December 3, 2015, until February 22, 2016.

C.C. pled guilty to child endangerment and was sentenced to complete the residential correctional facility program. On

July 22, 2016.

During her time at the residential correctional facility,

ARGUMENT

THE COURT OF APPEALS ERRED IN FINDING THAT AN ADDITIONAL

PERIOD OF TIME WOULD NOT CORRECT THE SITUATION AND LEAD TO

REUNIFICATION.

Scope and Standard of Review: The proper standard of review for termination decisions is de novo review. In re P.L.,

778 N.W.2d 33, 40 (Iowa 2010).

Preservation of Error: The Court of Appeals holding addressed whether to grant an additional period of time to work toward reunification, which was specifically addressed by the

District Court. Court of Appeals Ruling at *3. Error was preserved.

Discussion:

Under Iowa Code Section 232.117(5) and 232.104(2)(b), a court may grant parents an additional six months to work toward reunification. In this case, C.C. requested additional time. It was an error for the Court of Appeals and the juvenile court to deny this request. The biggest barrier to C.C.’s success was her incarceration at the time of trial. C.C. testified to the circumstances of her probation revocation. Another resident at the residential correctional facility physically attacked C.C. and she was held accountable for that because she was considered “involved.”

Importantly, C.C. was not subject to revocation because of substance abuse problems.

In its order, the juvenile court determined that it would be months before C.C. would be in a position to seek housing or employment if she were given straight probation. (District

Court Ruling, p. 11). There is no support for this proposition in the record. In contrast, testimony showed that C.C. had maintained several jobs while at the residential correctional facility. Testimony also showed that C.C. had maintained an apartment that was suitable for her and the children prior to her incarceration in December 2015. The more likely outcome is that C.C. would be able to achieve stability in relatively short order while she worked on her substance abuse and mental health.

In short, C.C. was engaged in and committed to participating in the services needed to be sober and stable.

CONCLUSION

For the reasons stated above, the Appellant request that this Court reverse the Court of Appeals decision and reverse the

District Court’s decision.

NOTICE OF ORAL ARGUMENT

Counsel requests to submit the case without oral argument.

CERTIFICATE OF COST

I certify that the cost of printing Appellant’s Application for Further review was $0.00, as it was submitted electronically.

______

Sara Strain Linder AT0009286 Bray and Klockau 402 S. Linn Street Iowa City, IA 52240 (319)338-7968 [email protected] Fax: (319) 653-5435 Attorney for Appellant

CERTIFICATE OF COMPLIANCE

1. This Application for Further Review complies with the type-

volume limitation of Iowa R. App. P. 6.903(1)(g)(1)or (2)

because:

a. This Application for Further Review contains 1,292 words,

excluding the parts of the brief exempted by Iowa R. App.

P. 6.903(1)(g)(1)

2. This Application for Further Review complies with the typeface

requirements of Iowa R. App. P. 6.903(1)(e) and the type-style

requirements of Iowa R. App. P. 6.903(1)(f) because:

a. This Application has been prepared in monospaced typeface

using Microsoft Courier 12 point font.

______Sara Strain Linder Date

Attachment 9

IN THE SUPREME COURT OF IOWA NO.______

IN THE INTEREST OF ) MUSCATINE COUNTY N.J., ) Case No: JVJV005882 J.J. Jr., ) JVJV005883 Y.G., and ) JVJV005884 E.G. ) JVJV005885 ) CHILDREN. ) ) IN THE INTEREST OF ) Y.G., and ) Case No: JVJV005931 E.G. ) JVJV005932 ) CHILDREN. ) APPLICATION FOR ) INTERLOCUTORY APPEAL ) (Trial date 11/25/15) )

COMES NOW, Mother and pursuant to Iowa R. App. P. 6.104(1) makes the following application for permission to appeal in advance of final judgment.

SUMMARY OF APPEAL The Mother seeks to appeal the district court’s Order dated

November 5, 2015, which denied the Mother’s Motion to Dismiss.

FACTUAL AND PROCEDURAL BACKGROUND In 2010, the Mother hired attorney Lawyer to represent her in her divorce. On November 22, 2010, Mr. Lawyer filed a

Petition for divorce in Washington County case CDCV004212 on the

Mother’s behalf. The Respondent in that case was Jose J., the father of the eldest two children in these matters. At the time, the Mother was in a relationship with Jose G., the father of the youngest two children in these matters. On January 19, 2011, Mr. Lawyer filed a Motion to Withdraw as the Mother’s attorney because he was elected Washington County Attorney and took office on January 1, 2011. On January 21, 2011, the Court granted Mr. Lawyer’s Motion to Withdraw.

On May 5, 2010, Mr. Lawyer filed an Answer on behalf of

Jose G., the father of the younger two children, in the dissolution of his prior marriage in Muscatine County. On

October 23, 2010, Mr. Lawyer appeared at a Settlement Conference on behalf of Jose G. On October 29, 2010, Mr. Lawyer presented a proposed Decree and Stipulation of Settlement to the Court on behalf of Jose G. On October 29, 2010, the Court entered the decree and dissolved Jose G.’s prior marriage. There were no children born to that marriage.

On June 6, 2014, as Washington County Attorney, Mr. Lawyer filed an Application for Temporary Removal in these matters. On

June 9, 2014, as the Washington County Attorney, Mr. Lawyer filed a Petition to adjudicate the minor children as Children in

Need of Assistance. No affidavit was included with the Petition, therefore, Mr. Lawyer served as the affiant. On June 16 and 17,

2014, Mr. Lawyer appeared in court on behalf of the Department of Human Services for the Temporary Removal hearings. On June

24, July 29, August 7, and September 23, 2014, the Department was represented by another attorney in the Washington County

Attorney’s office. Mr. Lawyer remained as Washington County Attorney until December 31, 2014. On March 12, 2015, the

Washington County juvenile court ordered venue of these cases

moved to Muscatine County. Thereafter, all hearings in these

matters were held in Muscatine County and the Department of

Human Services was represented by the Muscatine County Attorney.

On July 15, 2015, the Muscatine County Attorney filed a

Petition to terminate the Mother’s rights to her younger children. The Petition alleges that the Mother’s rights should be terminated pursuant to Iowa Code Sections 232.116(1)(f) and

232.116(1)(h). Both of these grounds require a finding that the children were adjudicated as Children in Need of Assistance.

Hearing on the Mother’s motion and a similar motion filed by Jose G. was held on October 15, 2015. Following testimony and argument, the district court entered an Order finding that

Mr. Lawyer’s representation of the State violated the Mother’s due process rights; however, she waived those rights by not bringing the matter before the court sooner. The court further found that Mr. Lawyer’s representation of the State did not violate Jose G.’s due process rights.

SUBSTANTIAL RIGHTS AFECTED BY THE RULING The Mother’s rights were substantially affected when her former attorney represented the Department of Human Services against her in a substantially related matter. Like all attorneys, county attorneys are governed by the Iowa Rules of Professional Conduct. According to those rules, an attorney may not represent another person or entity against a former client in the same or a substantially related matter if the interests of the former and current clients are materially adverse, unless the former client consents in writing. Iowa R. Prof’l Conduct

32:1.9(a); Iowa R. Prof’l Conduct 32:1.11(d). Applying this rule to the instant matters, the Washington County Attorney had a conflict in pursuing the Petitions.

The Mother’s divorce is substantially related to the Child in Need of Assistance (CINA) actions. Both actions related to her rights and responsibilities to her children. Her fitness and appropriateness as a parent was a key consideration in both cases. Her ability as a parent is the very point of a CINA

Petition. Additionally, a court is within its duties to presume that the Mother shared confidential information with her former attorney regarding her abilities as a parent. See Hoffman v.

Internal Medicine, P.C. of Ottumwa, 533 N.W.2d 834, at 836-7

(Iowa App. 1995).

Parents in Chapter 232 actions have due process rights and are entitled to protection of these rights. In re K.M., 653

N.W.2d 602, 607 (Iowa 2002); In re A.M.H., 516 N.W.2d 867 (Iowa

1994). The procedural due process rights of the Mother in the instant matters are substantially impacted by the Order of the district court. The district court found that “the fact that the mother’s former attorney represented the Department of Human

Services violated her right to due process.” (Order dated

November 5, 2015).

WHY THE COURT’S RULING WILL MATERIALLY AFFECT THE FINAL DECISION On July 15, 2015, the Muscatine County Attorney filed a

Petition to terminate the Mother’s rights to her younger children. The Petition alleges that the Mother’s rights should be terminated pursuant to Iowa Code Sections 232.116(1)(f) and

232.116(1)(h). Both of these grounds require a finding that the children were adjudicated as Children in Need of Assistance. If the adjudication is invalid due to the violation of the Mother’s due process rights, then the termination Petition cannot stand.

However, if the adjudication is valid despite the violation of the Mother’s due process rights, then a hearing on the State’s

Petition must be held.

A DETERMINATION OF THE CORRECTNESS OF THE RULING BEFORE TRIAL WILL BETTER SERVE THE INTERESTS OF JUSTICE The Child in Need of Assistance cases are ongoing matters before the juvenile court. By order of the juvenile court, the children are placed outside of the home. If the adjudication is invalid, the juvenile court has no authority to issue further orders regarding these children, including their placement.

Furthermore, the guiding polestar for all Child in Need of Assistance and Termination of Parental Rights cases is the best interest of the children. In re J.P.B., 419 N.W.2d 387, at 390 (Iowa 1988). Children are impacted by the legal proceedings, both positively and negatively. If a Petition to Terminate

Parental Rights were granted by the district court, then reversed by an appellate court, there would be a period of time between the rulings where the parents and children would have no contact. To then resume contact and potentially go through the process again would impact the children. It is in the best interest of the children that cessation in contact happen only once, rather than putting the children through the process multiple times. The best interest of children is served by a legal proceeding in which all can have confidence.

Lastly, it is judicially efficient for this matter to be heard now rather an on a potential appeal of the termination of parental rights. The facts are ripe for review at this time.

As stated above, the an appellate decision regarding this matter may determine whether a hearing is even held regarding the

State’s Petition to Terminate Parental Rights.

CONCLUSION For all the reasons stated in this application, the

Mother/Appellant requests that this court grants her Application and permit the Mother to appeal the district court’s Order dated

November 5, 2015.

______Sara Strain Linder, AT0009286 BRAY & KLOCKAU, P.L.C. Attorney for Mother 402 South Linn Street Iowa City, Iowa 52240 Telephone:(319) 338-7968 Facsimile:(319) 354-4871

______CLIENT, Mother/Appellant

Attachment 10

IN THE SUPREME COURT OF IOWA NO.______

IN THE INTEREST OF ) MUSCATINE COUNTY N.J., ) Case No: JVJV005882 J.J. Jr., ) JVJV005883 Y.G., and ) JVJV005884 E.G. ) JVJV005885 ) CHILDREN. ) ) IN THE INTEREST OF ) Y.G., and ) Case No: JVJV005931 E.G. ) JVJV005932 ) CHILDREN. ) MOTION TO STAY ) PROCEEDINGS ) (Trial date 11/25/15) )

COMES NOW, Mother, by and through her attorney, and states to the Court:

1. On this date, Mother, by and through counsel filed an

Application for Interlocutory Appeal of the Court’s November 5,

2015, Ruling regarding her Motion to Dismiss.

2. A hearing regarding the termination of parental rights toward her younger children is scheduled for November 25, 2015.

3. The issues involved in the Application for

Interlocutory Appeal directly affect those in the State’s

Petition to Terminate Parental Rights.

4. It is in the best interests of the children and in the interest of justice that the proceedings be stayed until the

Iowa Supreme Court rules upon the Mother’s Application for

Interlocutory Appeal. WHEREFORE the Mother requests the Court issue an order staying the proceedings in these matters until the Iowa Supreme

Court has ruled upon the Mother’s Application for Interlocutory

Appeal.

______Sara Strain Linder, AT0009286 BRAY & KLOCKAU, P.L.C. Attorney for Mother 402 South Linn Street Iowa City, Iowa 52240 Telephone:(319) 338-7968 Facsimile:(319) 354-4871

State Case Law Update

1:00 p.m. - 2:00 p.m.

Presented by: Hon. Paul Ahlers Hamilton County Courthouse 2300 Superior Street Webster City, IA 50595

Thursday, September 14, 2017 IOWA CASE LAW UPDATE

PAUL B. AHLERS District Associate Judge Webster City, Iowa (515)832-9600 [email protected]

(Covering volumes 875 to 893 of the Northwestern Reporter, Second Series)

TABLE OF CONTENTS

ADMINISTRATIVE LAW ...... 2 APPELLATE PROCEDURE ...... 3 ATTORNEY DISCIPLINE ...... 4 CIVIL PROCEDURE ...... 12 COMMERCIAL LAW ...... 15 CONSTITUTIONAL LAW ...... 16 CONTRACTS ...... 17 CORPORATIONS ...... 19 CRIMINAL LAW ...... 19 CRIMINAL PROCEDURE ...... 21 DEBTOR / CREDITOR ...... 32 DIVORCE / FAMILY LAW ...... 33 EMPLOYMENT ...... 35 EVIDENCE ...... 36 INSURANCE ...... 38 JUVENILE ...... 39 MISCELLANEOUS ...... 42 MOTOR VEHICLES / OWI ...... 42 MUNICIPAL CORPORATIONS ...... 44 PROBATE / GUARDIANSHIP / CONSERVATORSHIP ...... 46 REAL PROPERTY ...... 48 SEARCH AND SEIZURE ...... 51 TAXATION ...... 54 TORTS ...... 55 WORKER’S COMPENSATION ...... 59

AHLERS - 1 ADMINISTRATIVE LAW Rule-Making Mistakes in Implementing Statute Exceptional Persons, Inc. v. Iowa DHS, 878 N.W.2d 247 (Iowa 2016) When a statute directly conflicts with an administrative rule, the statute controls. Although the IDHS failed to promulgate rules effectuating all Medicaid reimbursement rate reductions required by statute, the agency properly implemented all of the mandated reductions in calculating the rates actually paid to the claimant. The claimant was not allowed to use the rule-making mistake, which conflicted with the statute, to avoid the reduction.

Insurance Dispute Moot After Acceptance of Refund Check Auto-Owners Ins. Co. v. Iowa Insurance Division, 887 N.W.2d 600 (Iowa 2016) After insured accepted a refund check from workers’ compensation insurer, the insurer’s appeal from district court’s dismissal of the insurer’s petition for judicial review of a decision of the Insurance Commissioner declining to consider the merits of the insured’s complaint challenging the insurer’s termination of workers’ compensation insurance was moot.

Review of Sex Offender Treatment Program Classification in Prison Pettit v. Iowa Dept. of Corrections, 891 N.W.2d 189 (Iowa 2017) The sex offender treatment program (SOTP) classification process within the prison system is part of the disciplinary procedure because such classification would lead to a loss of the accrual of earned time if the inmate does not comply. As part of the disciplinary process, the SOTP classification is not a contested case subject to Chapter 17A. A SOTP classification hearing is not “other agency action.” Accordingly, an inmate must file a postconviction relief action to obtain review by the courts of a SOTP classification.

Scope of Authority in Issuing New Gaming License Kopecky v. Iowa Racing and Gaming Commission, 891 N.W.2d 439 (Iowa 2017) The Commission has the power to issue a license following an affirmative gambling games referendum, but is not required to do so. Rule allowing the Commission to consider the economic effect of a new gaming operation on existing gaming facilities when deciding whether to issue a new gaming license is not “beyond the authority delegated to the agency by any provision of law or in violation of any provision of law” under Iowa Code Section 17A.19(10)(b).

AHLERS - 2 APPELLATE PROCEDURE

Rule 1.904(2) – Tolling of Appeal Period After Ruling on Motion to Dismiss Hedlund v. State, 875 N.W.2d 720 (Iowa 2016) Rule 1.904(2) is a tool for correcting factual error or preserving legal error, not a device for rearguing the law. Thus, it is seldom available to challenge a ruling on a motion to dismiss because there are no disputed facts. Plaintiff’s Rule 1.904(2) motion following the granting of a motion to dismiss did not address any actual or possible factual misconceptions by the trial court and was not necessary to preserve error for appeal. It simply cited more authority in support of the same arguments. Therefore, the motion was not a proper Rule 1.904(2) motion, so the appeal period was not tolled and plaintiff’s interlocutory appeal was untimely.

Standard of Review – Jury Instructions Tamco Pork II, LLC v. Heartland Co-op, 876 N.W.2d 226 (Iowa App. 2015) Noting that there is a “lurking inconsistency” that has developed in the law regarding the scrutiny applied to a trial court’s refusal to give a requested jury instruction, the Court holds that appellate courts review the trial court’s refusal to give a requested instruction for an abuse of discretion, recognizing that the abuse of discretion standard is a subcategory of legal error and that an erroneous application of the law constitutes an abuse of discretion.

Standard of Review – Refusal to Give Jury Instruction Alcala v. Marriott International, Inc., 880 N.W.2d 699 (Iowa 2016) Clarifying an area of confusion, the Court holds that the standard of review on refusal to give a requested jury instruction is for correction of errors at law and not for an abuse of discretion. This is because Iowa law requires a court to give a requested instruction if it correctly states the applicable law and is not embodied in other instructions. Since giving the instruction is “required,” there is no discretion involved, so the standard of review is for correction of errors at law.

Proper Rule 1.904(2) Tolls Appeal Period Homan v. Branstad, 887 N.W.2d 153 (Iowa 2016) After a summary judgment ruling dismissed their claims, Plaintiffs filed a Rule 1.904(2) motion. Since the motion sought legal conclusions on issues presented to but not ruled upon by the district court, the filing of the motion tolled the appeal period.

AHLERS - 3 Appeals From Committal Proceedings In the Matter of L.H., 890 N.W.2d 333 (Iowa App. 2016) When a DAJ exercises original jurisdiction in a committal proceeding, whether making an initial finding of serious mental impairment or resolving a challenge to continued placement, a District Judge does not have jurisdiction to consider an appeal. An appeal from the DAJ’s decision goes to the Supreme Court just as any appeal from final orders of the district court. District Judge’s order ruling on appeal from a DAJ ruling was void and Respondent could not appeal from that order. However, Respondent could still appeal from the DAJ’s ruling.

Supreme Court Ruling Trumps Court of Appeals In re Marriage of Hoffman, 891 N.W.2d 849 (Iowa App. 2016) On appeal, Court of Appeals remanded for the trial court to set child support on “the date of the decree from which appeal was taken” (i.e., retroactive to time of trial). On further review, the Supreme Court directed remand with child support to be set “based on the present financial circumstances of the parties and the child support guidelines.” Since the Supreme Court addressed the same issue as the Court of Appeals, when the directions on remand conflicted, the Supreme Court’s remand direction controlled.

ATTORNEY DISCIPLINE

Trespass and Domestic Assault Sup. Ct. Atty. Disciplinary Bd. v. Deremiah, 875 N.W.2d 728 (Iowa 2016) Criminal trespass and violent injurious domestic assault showed a disrespect for the law that reflected adversely on fitness to practice law, so such conduct constituted an ethical violation. Three-month suspension was imposed.

Magistrate Accessing Expunged Files for Non-Judicial Purposes In re Sevcik, 877 N.W.2d 707 (Iowa 2016) Magistrate was given a public reprimand for accessing expunged criminal court files and using information in them in his private practice. Acquiring the confidential files for purposes unrelated to judicial duties and intentionally disclosing information in them for purposes unrelated to judicial duties constituted violations of the Iowa Code of Judicial Conduct.

AHLERS - 4 Unprofessional Personal E-Mail to Judge Sup. Ct. Atty. Disciplinary Bd. v. Atty. Doe No. 792, 878 N.W.2d 189 (Iowa 2016) Lawyer representing himself in an arbitration appeal proceeding sent an email to the presiding judge accusing the judge of ethical violations, cover-ups, and abuse of judicial power. The email was not entitled to First Amendment protection. Although the email was described as “unprofessional,” because it was sent privately to the judge rather than publicly disseminated, the email did not violate Rule 32:8.2(a)(false statement concerning the qualifications or integrity of a judge). The email did violate rules prohibiting ex parte communication. Based on that limited violation, a private admonition was imposed. In reaching its ruling, the Court noted that the attorney may have violated other ethical rules and if those violations had been pled and proved, the sanction may have been harsher. However, based on the violations actually pled and proved, private admonition was the proper sanction.

Conflict of Interest and Dishonesty Sup. Ct. Atty. Disciplinary Bd. v. Stoller, 879 N.W.2d 199 (Iowa 2016) Sixty-day suspension for engaging in conduct that was a conflict of interest by representing parties with competing interests in two separate matters and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation in one of the matters. Harm to clients was an aggravating factor and attorney’s efforts in counseling others struggling with depression and mental health issues was a mitigating factor.

Standards Related to Judges and Representation by Attorneys In re Howes, 880 N.W.2d 184 (Iowa 2016) Judge was publicly admonished, which is lighter than a public reprimand, for signing ex parte order in a child custody matter when the order was presented by a lawyer that had recently represented the judge. Since there was a reasonable basis for questioning the judge’s impartiality in signing the order for her former attorney, the judge was required to disqualify herself or disclose all relevant facts related to the representation to the parties and obtain a waiver of disqualification. Since this was not done, the judge violated the judicial canons. The “rule of necessity” did not excuse the judge’s behavior. Although the emergency nature of the order may have triggered the rule of necessity, the fact that there were up to six other judges at the courthouse at the time the order was signed and there was no evidence that any significant effort was made to utilize one of those other judges negated the applicability of the rule. Judge did not violate judicial rules by accepting free legal services from attorneys. However, failure to disqualify herself or disclose acceptance of free legal services from an attorney who appeared before her to obtain the emergency order was a violation. While judge may have been dishonest in her letter to her ex-spouse (the legal matter for which the judge was receiving

AHLERS - 5 representation), there was insufficient proof that the judge was dishonest to the commission to warrant a finding of a violation for dishonesty.

Magistrate Advertising After-Hour Wedding Services In re Martinek, 881 N.W.2d 85 (Iowa 2016) Magistrate’s advertising of availability to perform weddings is not a per se violation of Code of Judicial Conduct, because there is no abuse of the prestige of judicial office for advertising a service that judicial officers are authorized to provide. However, advertising that service on the magistrate’s private law firm website was a violation, as was including photos of the magistrate in his judicial robes on the website. Additionally, the fact that the website did not disclose that weddings would be performed for free at the courthouse did not actually mislead anyone because the magistrate’s unrebutted testimony established that anyone who called for wedding services was told that the services were free at the courthouse. However, the Court found a violation because, to avoid undermining public confidence in the integrity of the judiciary, the proper course would have been to reference both wedding alternatives on the website. Although violations were established, no discipline was imposed because the magistrate had resigned prior to the hearing and such resignation was not to avoid discipline.

Reinstatement After Revocation Sup. Ct. Atty. Disciplinary Bd. v. Reilly, 884 N.W.2d 761 (Iowa 2016) Attorney whose license had been revoked for misappropriation of client funds applied for reinstatement approximately 10 years later. Attorney proved that he has good moral character, is fit to practice law, and is in all respects worthy of readmission to the bar. Consequently, his license was conditionally reinstated.

Sexual Relationship With Client & Withdrawal From Cases Sup. Ct. Atty. Disciplinary Bd. v. Johnson, 884 N.W.2d 772 (Iowa 2016) Thirty-day suspension for developing sexual relationship with a client after representation began in various criminal and civil matters. Attorney did not engage in conduct prejudicial to the administration of justice by the manner in which she withdrew from the clients’ cases, as her withdrawal and the substitution of counsel was done quickly, the attorney herself recruited replacement counsel to serve pro bono in the civil matters, and there was no indication that additional court proceedings were necessitated by the attorney’s actions.

Trust Account Violations Sup. Ct. Atty. Disciplinary Bd. v. Smith, 885 N.W.2d 185 (Iowa 2016) Sixty-day suspension for several violations surrounding handling of trust account.

AHLERS - 6 Violations included failing to preserve trust account records for six years, failing to produce sufficient records for the trust account auditor, depositing personal funds (including fees received for court-appointed work) into the trust account, making cash withdrawals from the trust account, failing to provide written notice to client of withdrawals from the trust account, and failing to respond to letters from the Board seeking records. The Board failed to prove that attorney withdrew fees prior to earning them and failed to prove that attorney did not promptly returned unearned funds, as attorney’s claim that the client’s retainer had been exhausted was unrefuted. Aggravating factors included three prior private admonitions and persistent failure to keep records (which prevented review of attorney’s accounting practices). The Court rejected the attorney’s argument that because prior audits occurred without a disciplinary referral, her trust account practices were presumptively permissible. A mitigating factor was the attorney’s work on behalf of clients with modest means.

Diligence & Trust Account Issues Sup. Ct. Atty. Disciplinary Bd. v. Weiland, 885 N.W.2d 198 (Iowa 2016) Sixty-day suspension for multiple rule violations. Violations included failing to promptly return funds after client terminated relationship and requested the return of the funds, lack of diligence (including failing to respond to client’s calls and misleading the client as to the status of filing her divorce action), failing to keep client informed, failing to respond to reasonable requests for information, failing to protect client’s interest after client terminated representation by failing to inform client of scheduled court proceedings and failing to return unearned funds, failing to expedite litigation by failing to file divorce petition in a timely manner and failing to communicate with client so scheduled court proceedings were missed, and misleading the client about the filing of the divorce action. Mitigating factors included the attorney’s remorse and his representation of low-income individuals. Aggravating factors included prior discipline (consisting of a series of private admonitions, public reprimands, and suspensions), harm to the client, amount of experience (over 20 years in practice), and the fact that there were multiple violations.

Frivolous Claims, False Statements, & Discovery Violations Sup. Ct. Atty. Disciplinary Bd. v. Barnhill, 885 N.W.2d 408 (Iowa 2016) Six-month suspension for asserting frivolous claims, making false statements, and engaging in discovery misconduct. Following an arbitration proceeding over a fee dispute, attorney was ordered to return a significant amount of fees the client had paid. When the attorney did not pay the amount awarded in arbitration, suit was brought against the attorney. Attorney’s counterclaims and cross-claims against her former client and his new attorney for abuse of process were meritless and

AHLERS - 7 constituted ethical violations. Attorney also engaged in making false statements to a tribunal, both orally and in writing. In what appears to be a case of first impression, the Court held that opposing counsel is a “third person” within the meaning of the rule prohibiting false statements to third persons. Attorney violated this rule by falsely telling opposing counsel in the collection matter against her that she had sent payment. Attorney also engaged in conduct prejudicial to the administration of justice by causing unnecessary proceedings in the collection matter and engaging in discovery misconduct in another. Failure to comply with federal court discovery orders was also an ethical violation. Aggravating factors included prior suspension for similar misconduct, continued insistence that she had made payment despite a total lack of proof, and having over 20 years of experience. Mitigating factors included volunteerism and pro bono work.

Keeping Money Earmarked for Court Reporter on Appeal Sup. Ct. Atty. Disciplinary Bd. v. Morse, 887 N.W.2d 131 (Iowa 2016) Attorney’s client paid the attorney money for the purpose of paying the court reporter for a transcript for appeal purposes. The attorney kept the money to apply toward outstanding fees instead of using it to pay the reporter for the transcript, resulting in the appeal being dismissed. Attorney was given 30-day suspension.

Extraordinary Fees in Probate Without Court Approval Sup. Ct. Atty. Disciplinary Bd. v. Arzberger, 887 N.W.2d 353 (Iowa 2016) Thirty-day suspension for collecting extraordinary fees in probate without proper court approval. Although noting that other ethical issues were “lurking in this case,” the pleadings and stipulations of the parties limited the issue to the extraordinary fee collection impropriety. An aggravating factor in terms of the sanction was the determination that the attorney’s impropriety was not a simple inadvertent mistake, as there was a pattern of mistakes and misrepresentations regarding fees, including providing information to the client that ordinary fees were “set” by the Iowa Code as opposed to “capped” by the Iowa Code. Mitigating factors included commendable record of volunteer community service and instituting new office procedures in probate matters.

Failure to File Tax Returns Sup. Ct. Atty. Disciplinary Bd. v. Taylor, 887 N.W.2d 369 (Iowa 2016) Six-month suspension for intentionally failing to file personal state and federal income tax returns from 2003 through 2013 when attorney knew she had a legal duty to do so. Aggravating factors included a prior disciplinary record, the extended period of non-filing, and the fact that the attorney had a substantial income over the period in question that would have allowed her to pay her taxes. Mitigating factors included the attorney’s acknowledgment of her misconduct, remorse, history of

AHLERS - 8 providing substantial pro bono work, and cooperation with the process and the fact that there was no harm to clients. Two dissenters called for a longer suspension based largely on the extended period of non-filing and her extensive income over that time.

Communicating With Represented Party & Business Transactions With Client Sup. Ct. Atty. Disciplinary Bd. v. Pederson, 887 N.W.2d 387 (Iowa 2016) Sixty-day suspension for violations. Violations included communicating with represented beneficiaries of an estate while attorney was acting as attorney for the estate, taking the second half of a probate fee prior to the filing of the final report, improper business transaction with a client by obtaining a personal loan from the executor after the executor and attorney were removed from their roles in the estate, depositing a flat fee in a custody case in the attorney’s office account rather than in the trust account, failing to obtain custody client’s written and informed consent to limited representation, and failing to promptly respond to requests for information. Aggravating factor was attorney’s prior public reprimand for similar conduct. Mitigating factors included personal hardships during the relevant time period and attorney’s cooperation with the board.

Failure to File Timely Answer to Complaint Sup. Ct. Atty. Disciplinary Bd. v. Atty. Doe No. 819, 888 N.W.2d 248 (Iowa 2016) Iowa Court Rule 36.7 states that allegations in a disciplinary complaint are deemed admitted if the attorney fails to file an answer within 20 days. The consequence of the allegations being admitted is mandatory and not directory. These consequences occur without the requirement that the Board file a motion to enforce the rule. The Board is not authorized to waive enforcement of this mandatory rule. Only the Commission, upon filing of a proper motion by the attorney, may determine that the mandatory rule should not be enforced “for good cause.” Based on the facts in this case, which included the attorney believing the attorney had an informal agreement with the Board not to enforce Rule 36.7, the attorney cooperating with the Board in providing information, the Board’s practice of acquiescing in failure of attorneys to file timely answers, and the attorney’s active participation in the proceedings, good cause was shown. However, the Court made it clear that compliance with Rule 36.7 was not merely a good idea or an aspirational goal and, now that any ambiguities regarding the nature of enforcement of the rule had been cleared up, good cause will not be routinely found in future cases.

Issue Preclusion & Revocation for Business Dishonesty Sup. Ct. Atty. Disciplinary Bd. v. Green, 888 N.W.2d 398 (Iowa 2016) The difference in the burden of proof required in an ordinary civil case and that required in an attorney disciplinary action results in civil actions not having

AHLERS - 9 preclusive effect in disciplinary cases. Further the civil judgment against this attorney was entered by default, so the judgment cannot be given preclusive effect. Attorney was found to be in violation of rules prohibiting dishonesty, fraud, deceit, or misrepresentation. Violations included misrepresentations to clients, with whom the attorney was engaged in a business venture, by misleading them into believing the attorney had created a business entity and the clients would share in the profits. In reality, the attorney had created a separate business entity that only named the attorney and his wife as members with rights to share in profits. Attorney then misappropriated the revenue under the fraudulent entity for his own use. Revocation was imposed, as the attorney converted client funds without colorable future claim.

Representing Both Sides in Business Transaction Sup. Ct. Atty. Disciplinary Bd. v. Willey, 889 N.W.2d 647 (Iowa 2017) Sixty-day suspension for representing two clients on opposite sides of a business transaction. Violations included representing a client who loaned money to another client (in violation of concurrent conflict of interest rule) and failing to get informed consent from the clients. Mitigating factors included cooperation with the investigation, remorse, admission of wrongdoing, and extensive community service. Aggravating factors included harm to the client (loss of money by the client loaning money to the other client), the extensive experience of the attorney, and the persistence in perpetuating a falsehood to the harmed client.

False Statements to Client & Tribunal & Other Violations Sup. Ct. Atty. Disciplinary Bd. v. Vandel, 889 N.W.2d 659 (Iowa 2017) Six-month suspension for a number of violations. Violations included: (1) failing to communicate with client by threatening to withdraw if client did not pay more money without informing the client of the procedure that would be required for the attorney to withdraw; (2) knowingly making multiple false statements by telling opposing counsel, the trial judge, and the Court of Appeals that attorney was incapable of attending a hearing due to the need for a blood transfusion and for telling the trial judge that the attorney had never presented the client with documents to sign regarding attorney liens, mortgages, and other documents pertaining to collecting her fees; (3) causing delay in the form of a continuance by making false statements about the inability to attend a hearing; (4) informing a client to disobey a visitation order; (5) failing to have a written fee contract coupled with a failure to adequately explain the scope of representation; (6) failing to deposit retainers in the trust account, failing to withdraw fees and expenses only as they are earned, and failing to provide a contemporaneous accounting; and (7) making false statements on client security questionnaires. Aggravating factors included prior discipline, including prior discipline for similar conduct, the attorney’s

AHLERS - 10 substantial experience, the harm to which the client was exposed, and failure to appreciate the wrongfulness of the misconduct. Mitigating factors included medical issues at the time of the wrongdoing and a history of pro bono work.

Sex With Client – Self-Reported Sup. Ct. Atty. Disciplinary Bd. v. Waterman, 890 N.W.2d 327 (Iowa 2017) Thirty-day suspension for engaging in sexual relationship with a client. An aggravating factor was that the relationship occurred during the course of a domestic relations representation. Mitigating factors included lack of prior disciplinary record, self-reporting and acceptance of responsibility, pro bono work, and lack of actual harm to the client.

Suspension for Criminal Acts Sup. Ct. Atty. Disciplinary Bd. v. Khowassah, 890 N.W.2d 647 (Iowa 2017) Six-month suspension for committing crimes of Public Intoxication and Operating While Intoxicated (third offense pled down to second). The commission of a crime does not alone establish an ethical violation. Here, however, the pattern of criminal behavior consisting of two prior OWIs, which resulted in disciplinary action, coupled with the two new charges established a pattern of criminal conduct that reflected adversely on the lawyer’s fitness to practice law, resulting in an ethical violation being established. Mitigating factors included the attorney’s treatment efforts, acceptance of responsibility, cooperation with the investigation, and fulfillment of the attorney’s responsibilities in the criminal proceedings. Aggravating factors included prior alcohol-related misconduct that resulted in discipline and the attorney’s delays in seeking treatment.

Premature Probate Fees & Practicing While Suspended Sup. Ct. Atty. Disciplinary Bd. v. Crotty, 891 N.W.2d 455 (Iowa 2017) Sixty-day suspension for conduct in handling estate and workers compensation case. Violations included taking ordinary fees in an estate proceeding before an inventory was filed, collecting an ordinary fee without justifying the reasonableness of the claim through an itemized statement, taking a contingency fee on a settlement owed to the estate without requesting a hearing or filing waivers signed by the heirs, and continuing to perform legal services after suspension of law license for failing to satisfy continuing legal education requirements. No violations were found surrounding the lawyer’s submission of forged documents in the estate proceeding because lawyer did not know they were forged and disclosed the forgeries when he found out. While it would have been better to make such disclosures in written documents filed in the estate, rather than merely verbally informing the judge, no violation was found. Aggravating factors included prior

AHLERS - 11 discipline and substantial experience. Forthrightly admitting performing legal services while suspended was a mitigating factor.

Unauthorized Practice Via Assignment & Drafting Documents Sup. Ct. Comm’n on Unauthorized Practice v. Sullins, 893 N.W.2d 864 (Iowa 2017) Disbarred attorney engaged in the unauthorized practice of law when he took an assignment of portions of a friend’s judgment for past due child support and both pursued collection. Attorney practiced law by representing the friend because the Court found that any amounts collected beyond the amounts the friend owed the attorney would be given to the friend (i.e., the attorney was collecting money on the friend’s behalf). Even if the friend would not receive the extra money, the interests of the two were so intertwined that the attorney was practicing law by allowing the friend to piggyback on his efforts. Even though the attorney did not physically draft the documents filed by the friend, the attorney guided the friend through the attorney’s own motions, which the attorney suggested that the friend join, and advised the friend with respect to her filings. This also constituted the practice of law.

CIVIL PROCEDURE

Attorney Fees Do Not Apply Toward Small Claims Cap De Stefano v. Apartments Downtown, Inc., 879 N.W.2d 155 (Iowa 2016) In a case of first impression, the majority in a 4-3 decision holds that attorney fees claimed under the Iowa Uniform Residential Landlord and Tenant Act do not count toward the jurisdictional limit of small claims court. So, suit can be brought for up to $5000.00, plus attorney fees of any amount.

Change of Venue – No Implied Place of Performance of Contract Abernathy v. Schmitt, 879 N.W.2d 866 (Iowa App. 2016) In this collection suit, fact that payments were to be made to Plaintiff in Johnson County (where the suit was brought) was not enough to establish venue in Johnson County. A contract to pay at a particular place arising from implication of law is not sufficient to confer venue pursuant to Iowa Code Section 616.7 (venue where contract is to be performed). For a suit to be brought in the venue in which the contract was to be performed, the contract must expressly state where the performance of the contract was to occur. Since this contract did not expressly state where the contract was to be performed, venue was only proper in Defendant’s county of residence. Trial court erred by refusing to change venue. On remand, venue must be changed and the trial court must determine the appropriate amount of attorney fees to award, including attorney fees incurred on appeal.

AHLERS - 12

Disqualification of Attorney for Conflict of Interest Nustar Farms, LLC v. Zylstra, 880 N.W.2d 478 (Iowa 2016) In this case, which is the lawsuit at center stage in the Stoller disciplinary decision referenced above in this outline, Defendant sought to disqualify Plaintiff’s counsel (Stoller) because (1) the attorney had previously represented the opposing party in a similar matter and/or (2) the attorney’s representation of the two parties was concurrent. The Court held that the trial court did not abuse its discretion in concluding the prior attorney-client relationship did not warrant disqualification under the “substantial relationship” test. However, the trial court erred in failing to disqualify the attorney because the attorney’s representation of Plaintiff was a “directly adverse concurrent conflict of interest.”

Relation Back After EDMS Rejection of Filing Jacobs v. Iowa Dept. of Transportation, 887 N.W.2d 590 (Iowa 2016) A filing that is returned by the Clerk may relate back to the original date the filing was received by the EDMS when the filing party demonstrates the following conditions: (1) the party submitted an electronic document that was received by EDMS prior to the deadline and was otherwise proper except for minor errors in the electronic cover sheet; (2) the proposed filing was returned by the Clerk’s office after the deadline because of these minor errors; and (3) the party promptly resubmitted the filing after correcting the errors.

Sealing Injunction Case File & Scope of Injunction In re Langholz, 887 N.W.2d 770 (Iowa 2016) Permanent injunction was issued prohibiting a minor girl’s former softball coach from having any contact or communication with the girl or her sister. The trial court sealed the entire file and prohibited dissemination of any documents in the file. Father of girl appealed, relying on Open Records Law (Iowa Code Chapter 22). The Court held that if no exclusions to openness apply under Section 22.7, and the sole injunctive relief sought to seal the records is under Section 22.8, the district court must conduct a hearing and make factual findings as provided by statute before sealing the records. On the issue of the scope of the injunction, the father’s request to expand the scope of the injunction was not needed to protect the children. The additional harm the father sought to avoid was already prevented by the terms set by the trial court. Father could not use concern that the enjoined party would violate the injunction to justify its expansion.

AHLERS - 13 Finality of Ruling Precludes Amendment Wellmark, Inc. v. Iowa District Court for Polk County, 890 N.W.2d 636 (Iowa 2017) Chiropractors sought to certify a class action seeking damages based on Wellmark’s allegedly discriminatory practice of limiting the dollar amount of claims approved for chiropractic services in comparison to similar services performed by medical doctors and doctors of osteopathic medicine. Before a class was certified, to avoid a stay, the chiropractors agreed that their antitrust claims were per se claims and specifically did not include “rule-of-reason” claims. Based on that limitation, summary judgment was granted to Wellmark and the case was dismissed. The ruling was affirmed on appeal. After procedendo issued, the chiropractors persuaded the trial court to set a pretrial scheduling conference with the expectation of allowing the chiropractors to proceed with an amended “rule-of-reason” claim. Wellmark sought a writ of certiorari, which was sustained. The Court held that the case was over once the judgment was affirmed. The Court also held that, since no class had been certified, no notice to putative class members was necessary for the trial court to grant summary judgment. The ruling did not affect other lawsuits between chiropractors and Wellmark.

Jurisdiction to Grant Injunctive Relief Ney v. Ney, 891 N.W.2d 446 (Iowa 2017) Trial court’s jurisdiction to grant injunctive relief is not limited to statutory grounds. Courts’ equitable jurisdiction includes the power to identify the relevant equities and fashion an appropriate remedy, including injunctive relief. Here, injunction issued by consent enjoining brothers from entering each other’s property or otherwise contacting each other was enforceable. Court properly issued injunction after one brother pled a prima facie case for an injunction in his petition for injunctive relief and the other brother consented to the imposition of injunctive relief. Iowa Code Section 664A.2(2) does not eliminate the trial court’s equitable jurisdiction to grant injunctive relief when the grounds for such relief are established.

Discovery of PSN Materials in Medical Negligence Cases Willard v. State, 893 N.W.2d 52 (Iowa 2017) A Patient Safety Net (“PSN”) is an electronic form that allows hospital employees to enter information about events that raise a safety concern for patients. The Court held that the PSN and related materials prepared by a hospital are afforded privilege as morbidity and mortality information to be used in a study as defined in Iowa Code Section 135.40. The privilege applies to prevent disclosure to the patient referenced in the PSN, not just to third parties. The privilege extends to prevent discovery of the PSN materials, not just to prevent its admissibility.

AHLERS - 14 Appointing Out-of-District Judge in Legal Malpractice Action Estate of Cox v. Dunakey & Klatt, P.C., 893 N.W.2d 295 (Iowa 2017) Chief judge of district did not abuse her discretion in refusing to appoint an out-of- district judge to preside over a dispute as to whether settlement had been reached in a legal malpractice action against a local law firm. Supporting the Court’s ruling was the fact that the appointed judge had chambers in a different county from where the law firm was located and had been specially assigned for over nine months without objection. The challenge to the judge’s participation first arose after the judge ruled against Plaintiff related to enforcement of a settlement agreement. The Court noted that it had no problem with assigning out-of-district judges at the outset of litigation as a precautionary measure, but found that no recusal was required in this case.

COMMERCIAL LAW

Indemnification Issues in Trucking Industry United Suppliers, Inc. v. Hanson, 876 N.W.2d 765 (Iowa 2016) Wholesaler entered a lease with a trucking company for delivery of wholesaler’s products to customers. Driver hired by the trucking company lost control of the truck, resulting in damage to the truck, loss of product, and environmental cleanup expenses, resulting in this dispute between the wholesaler, the trucking company, and the driver. Since the wholesaler only delivered its own products through use of the trucking company, the wholesaler is a “private carrier” rather than a “motor carrier.” Consequently, Iowa Code Section 325B.1, which prohibits certain indemnification agreements, did not apply. Terms of lease that stated that the semi-truck “shall be solely and exclusively under the direction and control of” the wholesaler did not negate other terms of lease that required trucking company to indemnify wholesaler for loss or damage resulting from driver’s negligence, incompetence, or dishonesty. The first clause is intended to benefit the public while the second clause controls the obligations between the wholesaler (lessee) and the trucking company (lessor). Wholesaler’s insurance policy defined “insured” broadly enough that the driver was an insured. Since the driver was an insured, so was the trucking company with regard to any claims based on respondeat superior.

Products Liability Immunity and Implied Warranty Claims Under UCC Des Moines Flying Service, Inc. v. Aerial Services, Inc., 880 N.W.2d 212 (Iowa 2016) Airplane owner refused to pay windshield seller and installer for replacement windshield after windshield cracked shortly after installation. In collection suit that included a counterclaim against the seller, the seller claimed immunity under Section 613.18. In a 4-3 decision, immunity statute did not apply. A products liability case

AHLERS - 15 involving personal injury or property damage is necessary to trigger the immunity provisions of Section 613.18(1)(a). In cases such as this, where there is economic loss only, the immediate seller is liable for breach of implied warranty, subject to any warranty exclusions, modifications, or disclaimers found in the sales contract.

Participation Agreements When Lead Bank Fails Central Bank & Real Estate Owned, LLC v. Hogan, 891 N.W.2d 197 (Iowa 2017) Lead bank on a loan transaction entered into participation agreements with other banks. Borrower defaulted and gave the collateral back to the lead bank (which had failed). The lead bank then sold the collateral to another bank and conveyed the property by quit claim deed. Purchasing bank sought declaratory relief that it owned the collateral. The Court held that the participation agreements in this case involved the sale of an undivided ownership interest in the entire loan (as opposed to creating a debtor-creditor relationship between the lead and participating banks), which included the lead bank’s rights in the collateral. Since the participating banks had an undivided ownership interest in the loan and collateral, the lead bank only owned its pro rata share of the collateral that was surrendered to the lead bank. When the lead bank sold its interest to the purchasing bank through a quit claim deed, the lead bank only conveyed its partial interest in the collateral. The participating banks continued to own their respective shares of the collateral.

CONSTITUTIONAL LAW

Eligibility of Felons to Vote Griffin v. Pate, 884 N.W.2d 182 (Iowa 2016) In a 4-3 decision, the Court holds that the class C felony crime of Delivery of Cocaine is an “infamous crime” under the voter disqualification provisions of the Iowa Constitution. “Infamous crime” under the Iowa Constitution means all felonies.

Line Item Veto to Avoid Funding State Mental Hospitals Homan v. Branstad, 887 N.W.2d 153 (Iowa 2016) Governor exercised line item veto to avoid funding state mental hospitals in Clarinda and Mount Pleasant. In suit against the Governor claiming statutory and constitutional provisions required the State to fund the hospitals, issue was not moot just because the general assembly failed to appropriate funds for the facilities during the next legislative session. On the merits, Iowa Code Section 218.1 and 226.1 do not mandate that the two facilities exist in perpetuity. Consequently, those statutes did not limit the Governor’s ability to item veto appropriated funds for the hospitals.

AHLERS - 16 CONTRACTS

Releases & Reformation Nationwide Agribusiness Ins. Co. v. PGI Int’l, 882 N.W.2d 512 (Iowa App. 2016) Farm co-op and its insurer settled claim with farmer killed in farm accident. Insurer then brought contribution claim against various third parties. Pursuant to Iowa Code Section 668.5(2), when, as here, a party seeking contribution has settled with a claimant, contribution is available only if the liability of the person against whom contribution is sought has been extinguished. Here, the releases signed by the deceased farmer’s family unambiguously did not release the third parties against whom contribution was sought. Consequently, summary judgment in favor of the third parties was appropriate. However, co-op’s insurer also claimed reformation of the releases based on a mutual mistake (i.e., both the insurer and the farmer’s family had intended the release to cover the third parties). Since there was a genuine issue of material fact as to the intentions of the co-op’s insurer and the farmer’s family in terms of releasing the third parties at the time the release was signed, summary judgment in favor of the third parties on the insurer’s reformation claim was denied.

UCC Article 2 and Limitations of Warranties R.J. Meyers Co. v. Reinke Mfg. Co., Inc., 885 N.W.2d 429 (Iowa App. 2016) Commercial sod farm owner sued irrigation system supplier and manufacturer for breach of contract and breach of warranty related claims. There was no “genuine” issue of material fact supporting farm owner’s claim of an oral contract that preceded the written contract. There was no genuine issue of material fact negating the conclusion that farm owner received the warranty information and had the opportunity to read it prior to signing the purchase agreement. Whether a clause is conspicuous is a question of law for the court to decide and, in this case, disclaimers of warranties were conspicuous. Any failure of the “repair and replace” remedy for breach of express warranty did not revive otherwise disclaimed implied warranties. Warranty disclaimers were not substantially or procedurally unconscionable.

Modification of At-Will Contracts Johnson v. Associated Milk Producers, Inc., 886 N.W.2d 384 (Iowa 2016) At-will contract between a co-op and a milk hauler. Co-op could alter payment terms prospectively upon reasonable notice. Since the hauler was notified of the change in payment terms, the hauler faced a choice of accepting the new terms or ceasing performance. The hauler accepted by performance, notwithstanding its protests. Contracts terminable at will are modifiable at will. A party that unilaterally modifies an at-will contract effectively terminates the old agreement and offers new

AHLERS - 17 terms for acceptance. The principle allowing unilateral changes to at-will contracts upon reasonable notice applies to independent contractors as well as employees. The Court noted that, in cases of contracts that are not terminable at will, terms can only be modified by one party with the consent of the other.

Contradicting Clauses in Subsequent Contract Iowa Arboretum, Inc. v. Iowa 4-H Foundation, 886 N.W.2d 695 (Iowa 2016) Parties to a land lease operated under a memorandum of understanding (“MOU”), but later entered into a written lease with the purpose of supplementing the MOU. The two documents conflicted in that the lease provided for a term of 99 years while the MOU contemplated a term of multiple, recurring five-year periods. Parties may modify the terms of their agreement and if the terms of a subsequent agreement contradict the earlier agreement, the terms of the later agreement prevail and supersede those of the earlier contract. Here, since there was consideration for the modification from the MOU to the lease, the terms of the lease controlled with respect to the conflicting terms because the lease was the later document.

Mechanic’s Lien – Indemnification Clause Standard Water Control Systems, Inc. v. Jones, 888 N.W2d 673 (Iowa App. 2016) In contract between contractor and homeowner for basement waterproofing tiling project, contract provision that stated that contractor was not liable to the owner for damages to hidden or unknown installments or framed wall components did not violate Section 537A.5(2). Section 537A.5(2) voids indemnification clauses. The contract provision in this case was not an indemnification clause. An indemnification clause does not apply to claims between the parties to the agreement. Rather, it obligates the indemnitor to protect the indemnitee against claims brought by persons not a party to the contract.

Confidentiality Clause in Legal Malpractice Settlement Estate of Cox v. Dunakey & Klatt, P.C., 893 N.W.2d 295 (Iowa 2017) Following mediation, the parties reached an agreement on an amount to settle a legal malpractice claim and agreed to a confidentiality provision. However, based on basic contract principles, the Court found that the parties were never able to reach an agreement on the terms of the confidentiality provisions, so there was never a settlement agreement or contract formed. Trial court did not abuse its discretion in sealing the court record related to the mediation and claimed settlement.

AHLERS - 18 CORPORATIONS

Capacity to Sue and Obligation for Arbitration IIHBRA v. State University of Iowa, 876 N.W.2d 800 (Iowa 2016) Nonprofit corporation (IIHBRA) has the capacity to sue its members for unpaid assessments. Even though amendments to Iowa Code Chapter 513C (Individual Health Insurance Market Reform Act) deleted a provision authorizing the power to sue, the deleted provision was redundant to a separate power to sue conferred by Iowa Code Chapter 504A. Also, the nonprofit corporation is not an “administrative department, commission or board of the state government” subject to mandatory arbitration under Iowa Code Section 679A.19.

CRIMINAL LAW

Stun Gun Is Per Se a Dangerous Weapon State v. Howse, 875 N.W.2d 684 (Iowa 2016) A stun gun, even if inoperable, is per se a dangerous weapon under the definition set forth in Iowa Code Section 702.7. The definition’s broad description encompasses both stun guns and Tasers, so there is no need to question witnesses regarding whether the device at issue produces a certain amount of voltage and no need to delve into the difference between “immobilize” and “incapacitate.”

Proof Required to Support Finding of Constructive Possession State v. Reed, 875 N.W.2d 693 (Iowa 2016) In a thorough review of the law of constructive possession and the evidence needed to support a finding of it, the Court found sufficient evidence to support the jury’s verdict that Defendant possessed drugs found in a house. However, the evidence was insufficient to support the verdict finding possession of firearms present in the house. Proof of constructive possession of the drugs, without more, was not sufficient to prove Defendant’s constructive possession of handguns found in the house when the handguns had someone else’s fingerprints on them and were located next to a woman’s personal effects.

Skin-to-Skin Contact Not Required for Lascivious Acts State v. Alvarado, 875 N.W.2d 713 (Iowa 2016) A person can “touch the pubes or genitals of a child” so as to commit the crime of Lascivious Acts With a Child in violation of Iowa Code Section 709.8(1) without making skin-to-skin contact. Consequently, evidence that Defendant inappropriately

AHLERS - 19 touched his granddaughter’s genitals over her clothing was sufficient to support the guilty verdict.

“Territorial Jurisdiction” and Insurance Fraud State v. Rimmer, 877 N.W.2d 652 (Iowa 2016) Defendants staged auto accident in Chicago in an effort to fraudulently obtain insurance proceeds. In a thorough review of the doctrine of “territorial jurisdiction” and its limits, the Court holds that by speaking with and giving false information to an insurance adjuster in Iowa on the telephone, Defendants were subject to prosecution in Iowa. This is true even though Defendants never set foot in Iowa until they were extradited. Constitutional challenges failed regardless of whether Defendants knew the adjuster with whom they were speaking was in Iowa. The minimum contacts test for civil personal jurisdiction does not apply to criminal prosecutions. Statutory challenges also failed. Defendants fell within the jurisdictional limit of Section 803.1 because their phone calls to the non-resident victim’s employee in Iowa deceived the employee into authorizing payment of a false claim which constituted “conduct” or a “result” that occurred in Iowa.

No Merger of Burglary 1st and Robbery 2nd & Sex Act Units of Prosecution Bryson v. State, 886 N.W.2d 860 (Iowa App. 2016) Robbery in the Second Degree does not merge into Burglary in the First Degree. Robbery’s assault element has a restriction as to the purpose of the assault (i.e., assault committed in carrying out intention to steal or in escaping from scene) that burglary does not, making it legally possible to commit Burglary in the First Degree without also committing Robbery in the Second Degree. Also, two counts of Sexual Abuse did not merge because the jury found two different sex acts, each of which met the statutory definition of “sex act.” Fact that the two sex acts occurred in a short period of time did not mean they constituted only one criminal act.

Juvenile Murder Offenders – Mandatory Restitution State v. Richardson, 890 N.W.2d 609 (Iowa 2017) In a 4-3 decision, Iowa Code Section 901.5(14) does not authorize the trial court to modify the mandatory $150,000 restitution amount required by Section 910.3B(1) to be imposed against a defendant convicted of Second Degree Murder. Section 910.3B does not violate the excessive fines clause of the Iowa Constitution as it relates to juvenile homicide offenders. Both facial and “as applied” challenges were rejected. The Court expressly declined to address whether Section 910.3B could be unconstitutional as applied to a juvenile homicide offender because of the specific payment plan imposed, stating that such a challenge was premature in this case. The Court also expressly declined to address whether a juvenile homicide offender could show that a restitution payment plan so deprived the offender of the

AHLERS - 20 opportunity for rehabilitation as to undermine the guarantees of Miller, Lyle, Ragland, Pearson, and Null.

“Going” Armed With Intent State v. Harris, 891 N.W.2d 182 (Iowa 2017) Regarding the charge of Going Armed With Intent, “going” is an element of the offense. Noting that “going armed” is not defined, the Court holds that “armed” means the conscious and deliberate keeping of a dangerous weapon on or about the person available for immediate use and “going” necessarily implicates proof of movement. Even though the evidence was sufficient to generate a jury question on the element of “going,” defense counsel was ineffective for failing to object to the jury instructions that did not include “going” (i.e., proof of movement) as an element.

Authorized Questions on Application for Weapon Permit State v. Downey, 893 N.W.2d 603 (Iowa 2017) Iowa Code Section 724.17 makes it a crime to make a knowingly false statement on an application for an annual permit to acquire a firearm. The statute states that the application “shall require only” certain specified pieces of information. Only false statements in response to questions required by the statute can form a basis for criminal liability. An unauthorized question on the application cannot be the basis for a criminal conviction.

CRIMINAL PROCEDURE

Denial of Element of Offense During Guilty Plea State v. Perkins, 875 N.W.2d 190 (Iowa App. 2015) A guilty plea colloquy that results in minor omission of facts may be supplemented by other portions of the record in the district court, including the minutes of evidence. However, when a defendant affirmatively maintains a denial of facts necessary to support an element of the crime, the trial court cannot find that a factual basis exists and cannot accept the plea.

Authority on Remand to Correct Sentence State v. Pearson, 876 N.W.2d 200 (Iowa 2016) Defendant’s sentence for two counts of Sexual Abuse in the Third Degree was vacated due to an error in reciting which Iowa Code section was violated (even though the trial court clearly contemplated the correct section). On remand, Defendant was resentenced before a new judge who ran the sentences

AHLERS - 21 consecutively rather than concurrently. Defendant appealed again. In a 5-2 decision, the majority held that the trial court exceeded its authority on remand and remanded for entry to amend to the correct Code section without resentencing. The dissenters pointed out that the sentence had been “vacated,” which required resentencing since there was no longer a sentence in place, and argued that Defendant participated in a “resentencing” by asking for a lighter sentence on remand.

Mid-Trial Publicity State v. Gathercole, 877 N.W.2d 421 (Iowa 2016) When inaccurate midtrial publicity occurs, there is a qualitative and quantitative analysis to determine whether a fair trial has been endangered to the point that polling the jurors is necessary. The “qualitative” analysis looks at how closely related the publicity is to the case, whether it recounts facts outside the record, and whether it speculates on the defendant’s guilt or innocence. The “quantitative” analysis requires consideration of such factors as frequency or extent of coverage, the prominence or conspicuousness of the coverage, the nature and extent of admonitions directing the jurors not to review news accounts, and the reputation or standing of the publisher of the news accounts. Here, the qualitative factors did not warrant jury polling, as the news account was clearly wrong and was neither opinion-laden nor inflammatory in tone. Likewise, the quantitative factors did not require jury polling, as, although the coverage was in a respected newspaper, the record did not establish any prominence of the coverage. Since the record did not demonstrate a “reasonable possibility” that the challenged information reached the jury, trial court did not abuse its discretion in refusing to question or poll jurors about the coverage. While not reversing, the Court encouraged trial courts to err on the side of polling and also encouraged admonitions specifically addressing social media.

Guilty Pleas – Disclosure of Driver’s License and Surcharge Consequences State v. Fisher, 877 N.W.2d 676 (Iowa 2016) Because revocation of the driver’s license of a person convicted of a drug possession offense is mandatory, immediate, and part of the punishment for the offense, the defendant must be informed of this consequence before the defendant’s plea can be accepted. Since the written guilty plea did not disclose this consequence, the plea was involuntary and the conviction was set aside. Additionally, a defendant is required to be informed of surcharges that will be imposed, because the surcharges are punitive. Since the Court reversed the conviction because of the driver’s license disclosure problem, the Court declined to decide whether the failure to disclose surcharges alone meant the plea failed to substantially comply with Rule

AHLERS - 22 2.8(2)(b)(2). However, the Court did hold that actual compliance requires such disclosure.

Individual Juror Tainting Pool & Other Trial Issues State v. Ary, 877 N.W.2d 686 (Iowa 2016) Expressions of bias or prejudice by a single prospective juror ordinarily do not constitute sufficient grounds for disqualification of an entire panel. Biased juror’s comments did not reference the defendant, convey personal knowledge of the facts, or relay objective data. Additionally, because the trial court gave counsel the opportunity to question other prospective jurors individually to determine whether the biased juror’s comments had affected them, the trial court properly overruled defense counsel’s request to strike the whole panel. Trial court did not abuse its discretion in refusing to permit discovery after defense counsel missed a deadline that had already been previously extended or in refusing to grant a hearing to allow defense counsel an opportunity to show good cause for missing the deadline. Trial court erroneously applied the “sufficiency-of-the-evidence” standard rather than the applicable “weight-of-the-evidence” standard in ruling on a motion for new trial, requiring remand to apply the correct standard.

Topics & Questions During Jury Selection State v. Martin, 877 N.W.2d 859 (Iowa 2016) In a rare case discussing the propriety of questions posed to prospective jurors, the Court notes: (1) that control of the jury selection process is lodged in the discretion of the trial court; and (2) the objective of voir dire is to gather sufficient information for the exercise of challenges and otherwise secure a fair and impartial jury. The Court hints that two lines of prosecution questions were improper, but declined to actually address them because defense counsel did not preserve error by objecting. Those two lines were: (1) a civics lesson reminding jurors that the County Attorney is an elected officer and inferring that the jurors could rely on the prosecutor to present reliable evidence because failing to do so could cost the prosecutors their jobs; and (2) suggesting the prosecution had other evidence, but that the jury might not hear it because of the rules of evidence. Error was preserved with respect to four other areas of inquiry. Two of those topics involved general questions about officer credibility and trustworthiness of confidential informants. These topics were proper, as they probed the minds of potential jurors to determine whether they had a predisposition about a case-specific category of potential witnesses. The final two topics involved the prosecutor asking the jurors to picture themselves as drug dealers and whether they would be inclined to give weight to a surreptitious audio recording of a controlled drug buy. The Court noted that these two lines of questioning “steered awfully close” to being improper. However, in both instances, defense counsel requested a bench conference and the trial court promptly

AHLERS - 23 terminated the lines of inquiry. Plus, the trial court instructed the jury at least twice that remarks made by the lawyers were not evidence.

No Unsealing of Dependent Adult Abuse Records State v. Olutunde, 878 N.W.2d 264 (Iowa 2016) In this case charging Defendant with Dependent Adult Abuse, State is not entitled to unseal and access records of founded dependent adult abuse against Defendant from more than 10 years earlier. Sealing of dependent adult abuse records is automatic and mandatory under Section 235B.9(1) after 10 years if there is no second report or showing of good cause within 10 years of the initial report. The statute does not include a provision that allows for unsealing of the records. The “good cause” referenced in the statute does not apply once the records are sealed.

Reasons for Consecutive Sentences – Offenses While On Parole State v. Hill, 878 N.W.2d 269 (Iowa 2016) Defendant pled guilty to an aggravated misdemeanor offense of sex offender registry violations while on parole for the underlying sex crime. Defendant was sentenced to two years in prison, run consecutively to the parole violation sentence. Even though Iowa Code Section 908.10A states that the sentence for an aggravated misdemeanor committed while the defendant is on parole “shall be served consecutively with the term imposed for the parole violation,” it goes on to give discretion to the sentencing judge to run the sentence concurrently. Rule 2.23(3)(d) requires the sentencing court to give reasons for its sentence. This requirement applies notwithstanding the statutory presumption of consecutive sentences set forth in Section 908.10A. Therefore, in imposing consecutive sentences, the sentencing judge had to state reasons. The Court seems to suggest that the statutory presumption may be a valid reason, but the sentencing court has to mention it, which was not done here. Likewise, stating “the reason for the sentence is protection of the community, seriousness of the crime, and the nature and circumstances of the offense” may have been sufficient to explain why a suspended sentence request was not granted and a prison sentence was imposed, but it was not sufficient to explain why the sentences were run consecutively. The Court encouraged more detailed reasons for the sentences and explicit reasons for consecutive sentences, although it again acknowledged that, in doing so, the sentencing court can rely on the same reasons for imposing a sentence of incarceration. The Court expressly overruled Hennings and Johnson to the extent those cases allow the appellate court to infer that the reasons for consecutive sentences were the same reasons for imposing the sentence of incarceration as part of an overall sentencing plan.

AHLERS - 24 Sentencing No-Contact Order – Child Endangerment State v. Epping, 878 N.W.2d 277 (Iowa App. 2016) Trial court properly issued a five-year no-contact order against a mother prohibiting her from having contact with her children after the mother pled guilty to Child Endangerment after allowing known sex offenders to have access to her children. A pending CINA case did not make the issuance of the no-contact order improper. Also, although the mother has a constitutionally-protected right to parent her children, the issuance of the no-contact order survives strict scrutiny because it is narrowly tailored to the State’s compelling interest in protecting the children from future harm.

Ability to Pay Attorney Fees and Costs State v. Kurtz, 878 N.W.2d 469 (Iowa App. 2016) The sentencing court is required to order restitution to be paid to victims of the crime and to the clerk of court for fines, penalties, and surcharges. However, restitution for crime victim assistance reimbursement, public agencies, court costs including correctional fees, court-appointed attorney fees, contribution to a local anticrime organization, and the medical assistance program can only be ordered to the extent a defendant is reasonably able to pay. Thus, before ordering payment for those items, the sentencing court must consider the defendant’s ability to pay. When everything is done in writing, so the defendant does not even raise the issue at sentencing, the sentencing judge must still consider ability to pay and disclose the exercise of that discretion in the sentencing order.

Retroactivity of Heemstra Nguyen v. State, 878 N.W.2d 744 (Iowa 2016) Prior postconviction counsel was not ineffective because counsel has no obligation to pursue a meritless claim. Nonretroactivity of the rule expressed in Heemstra (i.e., prohibiting use of the acts that constitute a predicate felony to also support a felony-murder conviction) does not violate the due process, separation of powers, or equal protection clauses of the Iowa Constitution or the equal protection clause of the United States Constitution.

Juvenile Offenders – Categorical Prohibition on LWOP State v. Sweet, 879 N.W.2d 811 (Iowa 2016) The majority in a 4-3 decision adopts a categorical rule that juvenile offenders may not be sentenced to life without the possibility of parole, as doing so would violate the Cruel and Unusual Punishment clause of Article I, Section 17 of the Iowa Constitution.

AHLERS - 25 Newly Discovered Evidence – CBLA Evidence More v. State, 880 N.W.2d 487 (Iowa 2016) Letter from FBI declaring that compositional bullet lead analysis (CBLA) evidence introduced at Defendant’s murder trial was not scientifically supportable constituted “newly discovered evidence.” However, since the verdict would not have been different, Defendant was not entitled to a new trial. Introduction of the CBLA evidence did not violate Due Process, as introduction of that evidence did not render the trial “fundamentally unfair.”

Resentencing Issues and Limits State v. McLachlan, 880 N.W.2d 513 (Iowa App. 2016) In a case involving a convoluted history involving remands on two cases, the Court holds that an appellate decision remanding for sentencing of this juvenile offender charged as an adult in order to consider the Lyle factors did not vacate or set aside the adjudication of guilty. It only vacated the sentence of incarceration and remanded for resentencing. Therefore, the sentencing judge was not authorized to consider a deferred judgment. Likewise, in the second case, the trial court did not have the authority to resentence on remand. Based on the appellate decision, the trial court’s authority was limited to issuance of a revised sentencing order that removed any sentence for a charge vacated on appeal.

Good Cause for Speedy Trial Violation State v. Taylor, 881 N.W.2d 72 (Iowa 2016) In a 5-2 decision, the Court details the potential exceptions available to the State to avoid dismissal when a defendant is not brought to trial within 90 days of the filing of the Trial Information. The State has the burden to prove the exceptions to avoid dismissal. Here, the State did not show good cause for the delay. The fact that Defendant missed her arraignment and did not appear to answer to these charges because of her incarceration in another county and in prison did not excuse the delay when no evidence was introduced that the State was not aware of where Defendant was incarcerated and no evidence was presented showing whether the State diligently sought to locate her. Defendant’s entry into a proffer agreement after the speedy trial deadline ran was not enough to establish waiver of speedy trial. Waiver requires a knowing and intelligent relinquishment of speedy trial rights, not mere acquiescence. The State could not claim reliance on negotiations, as no evidence was introduced that there was any negotiation before the speedy trial deadline passed. Also, since the proffer agreement did not provide a benefit to Defendant on any charges other than the charges in this case, the negotiations of that agreement did not constitute a waiver.

AHLERS - 26 Alternative Theories of Child Endangerment State v. Schlitter, 881 N.W.2d 380 (Iowa 2016) In a unanimous part of the decision, the Court finds trial counsel ineffective for failing to object to four different theories of Child Endangerment being submitted to the jury when there was insufficient evidence to support one of the theories. Since a general verdict was used, it was unknown whether the jury relied on the theory for which there was insufficient evidence, so a new trial was required.

Jailhouse Informants & Massiah State v. Marshall, 882 N.W.2d 1 (Iowa 2016) Three different jailhouse informants testified at Defendant’s murder trial about statements Defendant made to them in jail. In a 4-3 decision, the testimony of one of the informants was found to have been improperly admitted because it violated Massiah, as Defendant was represented by counsel when incriminating statements were obtained by the informant. Informant Johnson, who was encouraged by police to report back with any information learned from certain fellow inmates (including Defendant), was an “agent” of the State for purposes of Massiah. However, since Johnson did not “deliberately elicit” statements from Defendant, his testimony was admissible. Although Informant Freeman sought to elicit information from Defendant in order to market the information, he did so without any advance agreement, so he was not an “agent” of the State. Informant Martin had a proffer agreement with the State at the time that he gathered statements from Defendant, so he was an “agent” of the State. Additionally, Martin deliberately elicited incriminating statements. Martin’s testimony should have been suppressed as a result.

Limits on Terms of Probation State v. Fatland, 882 N.W.2d 123 (Iowa App. 2016) Defendant convicted of Child Endangerment Resulting in Bodily Injury. Condition of probation that Defendant have no contact with children under five years’ of age was overbroad and unduly restrictive. The condition was permissible provided that it contained an exception for incidental contact in public places where other responsible adults were present. Condition of probation prohibiting Defendant from becoming pregnant was required to be eliminated because it impinged on Defendant’s fundamental right to procreation.

PCR Statute of Limitations (Nguyen & Heemstra) Smith v. State, 882 N.W.2d 126 (Iowa App. 2016) Petitioner sought postconviction relief after being convicted of two counts of First Degree Murder on alternate theories of premeditated murder and felony murder

AHLERS - 27 based on the predicate felony of robbery. Nguyen came down in 2013, holding that Heemstra was a new ground of law so as to excuse the three-year statute of limitations for PCR cases. Petitioner did not file for PCR within 3 years of the Heemstra ruling, but did file within 3 years of the Nguyen ruling. Nguyen does not constitute a new ground of law such that Petitioner is allowed to leap frog his way past the three-year statute of limitations to have a chance to argue that Heemstra should be retroactively applied (subsequent rulings in Nguyen nixed this argument anyway). Petitioner’s PCR claim was barred by the statute.

No Breach of Plea Agreement – Cannot Hide Criminal History State v. Schlachter, 884 N.W.2d 782 (Iowa App. 2016) Prosecutor did not violate plea agreement by the manner in which agreed-upon recommendation was made at sentencing. There was no reticence, reluctance, qualifications, or hesitation – implicit or explicit – in the prosecutor’s recommendation. Consequently, defense counsel was not ineffective for failing to object based on a claimed violation of the plea agreement. Likewise, counsel was not ineffective for failing to object to prosecutor’s accurate recital of Defendant’s criminal history. Such recitation did not detract from the sentencing recommendation, but actually strengthened it by alerting the court that the prosecutor was aware of Defendant’s history and was making the recommendation with that knowledge. Finally, it would be inappropriate and unacceptable for a plea agreement to prohibit the court from being advised of a defendant’s criminal history.

Judge’s Familiarity with Defendant State v. Toles, 885 N.W.2d 407 (Iowa 2016) At sentencing, the judge referenced the fact that the judge was familiar with Defendant from having prosecuted Defendant in the past and having had Defendant on the criminal docket “far, far too many times.” The Court rejected Defendant’s claim that the judge was required to recuse himself. To require recusal, Defendant needed to demonstrate that the judge was biased or prejudiced against Defendant. The judge’s remarks merely revealed that the judge had a level of familiarity with Defendant and did not reveal bias or prejudice. Ineffective assistance claim based on defense counsel not demanding recusal would not be addressed on direct appeal because the record was inadequate.

Lack of Timeliness of Motion to Suppress State v. Ruhs, 885 N.W.2d 822 (Iowa App. 2016) Although the Court noted that it is the defendant’s obligation to show good cause for the late filing of a motion to suppress, the Court refused to affirm a suppression ruling denying the motion on the basis of untimeliness of the motion when the State did not urge the Court to deny the motion on that basis. The Court refused to

AHLERS - 28 affirm on this basis in spite of the fact that it held that Defendant’s motion to enlarge or amend was not an appropriate vehicle in which to assert good cause for the first time.

Assessment of Costs on Dismissed Counts & Ability to Pay State v. Johnson, 887 N.W.2d 178 (Iowa App. 2016) Defendant pled guilty to two counts of a six-count Trial Information. Even though the costs would have been the same if the Trial Information had only included the two counts to which Defendant pled guilty, it was still inappropriate for the trial court to order Defendant to pay costs on the dismissed counts when the record revealed no agreement by Defendant to pay those costs. Additionally, regardless of Defendant’s ability to pay, the sentencing judge must order restitution to be paid in the form of restitution to victims and to the Clerk of Court for fines, penalties, and surcharges. However, before ordering restitution in the form of court costs, attorney fees, crime victim assistance reimbursement, public agency reimbursement, correctional fees, contributions to a local anticrime organization, and for the medical assistance program, the sentencing judge must determine Defendant’s ability to pay.

Earned-Time Credit for Juveniles Convicted As Adults Breeden v. Iowa Dept. of Corrections, 887 N.W.2d 602 (Iowa 2016) In Lyle, mandatory minimum sentences automatically imposed on defendants for crimes committed as juveniles were found unconstitutional. Offenders were resentenced without mandatory minimums, including offenders that committed the crimes listed in Section 902.12. Iowa Code Section 903A.2 sets forth different accrual rates for earned-time credit for sentences imposed under Section 902.12 (fifteen eighty-fifths of a day for each day of good conduct) versus other sentences (1.2 days for each day of good conduct). Since the mandatory minimum sentences for juvenile offenders were struck down as unconstitutional, the slower accrual rate of fifteen eighty-fifths of a day does not apply and offenders are entitle to the faster accrual rate of 1.2 days of earned-time credit per day of good conduct.

Restitution – Amounts Covered by Insurance But Not Claimed State v. Dubois, 888 N.W.2d 52 (Iowa 2016) In the context of restitution, Iowa Code Section 910.1(3) defines “pecuniary damages,” in part, as “all damages to the extent not paid by an insurer.” Victim is entitled to full restitution from the defendant for damages “not paid” by insurance. Even though the victim had potential insurance coverage for the loss, the victim is under no obligation to act for the defendant’s benefit by seeking insurance coverage for the victim’s losses. If the victim actually receives insurance payments related to

AHLERS - 29 the loss, the defendant would be entitled to seek adjustment of the restitution order under Section 910.7.

Sex Offender Treatment Program For Non-Sex Offense State v. Iowa Dist. Ct. for Jones County, 888 N.W.2d 655 (Iowa 2016) Department of Corrections (DOC) has authority to require an inmate to attend a sex offender treatment program (SOTP), which includes stopping accrued earned time credit, when the inmate is convicted of a crime that is not facially considered a sex offense but the factual circumstances of the crime are of a sexual nature, provided that due process is met by the inmate being provided notice of the claimed classification, the allegations supporting it, and the right to a hearing. Here, due process was provided. DOC and the ALJ are allowed to use a victim’s statement contained in a police report prepared nearly contemporaneously with the incident in classifying inmates for SOTP. Since the ALJ determined that the victim’s statements from the underlying assault case were reliable and credible, the statements satisfy the “some evidence” standard to classify the inmate for SOTP. Victim’s statements were partially corroborated by the inmate’s testimony at the hearing.

Cash Bail Cannot Be Forfeited As Part of Sentencing State v. Letscher, 888 N.W.2d 880 (Iowa 2016) Trial court does not have authority to forfeit cash bail posted by Defendant as part of a sentencing order.

Factual Basis for Plea – Judicial Notice of File Yocum v. State, 891 N.W.2d 418 (Iowa 2017) If the record does not contain a factual basis for a guilty plea, a reviewing court has two alternatives: (1) if the record shows the State charged the defendant with the wrong crime and there is no possibility the State could establish a factual basis for that crime, the court vacates the judgment of conviction and sentence, and remands the case for the district court to dismiss the case; or (2) if the record shows the State could establish a factual basis for the crime charged, the court remands the case for further proceedings and, on remand, the district court can allow the State to establish a factual basis. In this case, a factual basis existed to support trial court’s acceptance of defendant’s guilty plea to offense of failure to appear for sentencing, where trial court took judicial notice of court file from previous prosecution during which defendant failed to appear for sentencing, defendant did not object to court taking judicial notice of file, and statements of defendant further established that he entered a treatment center, left it, and failed to appear at his sentencing after the court released him from the county jail and placed him at the treatment center.

AHLERS - 30 Habitual Offender Procedures & Error Preservation Rules State v. Harrington, 893 N.W.2d 36 (Iowa 2017) A motion in arrest of judgment is the proper vehicle to bring claims of deficiencies in a habitual offender proceeding. Offenders in a habitual offender proceeding must preserve error in any deficiencies in the proceeding by filing a motion in arrest of judgment. The voluntary-and-intelligent standard for admitting prior convictions in a habitual offender proceeding should follow the same protocol as taking a guilty plea. So, the trial court must: (1) inform the offender of the nature of the habitual offender charge and, if admitted, that it will result in sentencing as a habitual offender for having twice before been convicted of a felony; (2) inform the offender that these prior felony convictions are only valid if obtained when the offender was represented by counsel or knowingly and voluntarily waived the right to counsel; (3) make sure a factual basis exists to support the admission to the prior convictions; (4) inform the offender of the maximum possible punishment of the habitual offender enhancement, including mandatory minimum punishment; (5) inform the offender of the offender’s trial rights, which is limited to the issue of identity (the issue of prior representation is decided by the trial court with the same rights available to the offender other than the right to a jury trial); (6) inform the offender that no trial will take place by admitting to the prior convictions; (7) inform the offender that the State is not required to prove the prior convictions were entered with counsel if the offender does not first raise the claim; and (8) inform the offender that challenges to an admission based on defects in the habitual offender proceedings must be raised in a motion in arrest of judgment and failure to do so will preclude the right to assert them on appeal. The procedure to follow at the habitual offender stage is also detailed, including how to proceed depending on whether the offender admits or denies the prior convictions. Two dissenters would not require such a full colloquy because the Rules of Criminal Procedure do not require it.

Evidence on Multiple Theories, Disclosure in Minutes, & Presence of Defendant State v. Shorter, 893 N.W.2d 65 (Iowa 2017) Because there was sufficient evidence that the defendant participated in a vicious group assault of a victim, there was sufficient evidence supporting a murder conviction as a principal. Evidence also supported a murder conviction as an aider and abettor, as evidence supported a finding that the defendant was present at the beginning of the beating and participated in subsequent kicking and stomping of the victim. Additionally, since there were no predicate nonhomicide crimes that could have served as a basis for vicarious liability for subsequent crimes in furtherance of the original crime, the only crime for which the defendant could have been found guilty under a joint criminal conduct theory is the group assault. If the jury found the defendant participated in the group assault, he would also necessarily be guilty

AHLERS - 31 of murder based on liability as a principal or aider and abettor. There is no requirement that the minutes of evidence provide a complete catalogue of witness testimony, but only that the defense be placed on fair notice and not subject to surprise testimony. With that said, eyewitness identification must be disclosed by the prosecution. However, due to uncertainties over whether the State knew an eyewitness was going to identify the defendant at trial, what defense counsel knew, and whether any prejudice occurred, ineffective assistance claim was preserved for postconviction relief. The defendant is entitled to be present when questions from the jury are discussed, and practical considerations do not excuse the defendant’s presence. Fact questions remained as to whether the defendant waived presence, but, even if he did not, there was no prejudice to the defendant because defense counsel participated and the response to the jury question was to “reread the instructions.” There was no prejudice to the defendant by defense counsel not requesting a stock instruction on eyewitness identification.

DEBTOR / CREDITOR

Priority of Liens Between Agricultural Supply Dealer & Bank Oyens Feed & Supply, Inc. v. Primebank, 879 N.W.2d 853 (Iowa 2016) Answering certified questions from federal court in this dispute over priority of liens in sale proceeds of a hog operation liquidated as part of a bankruptcy, the Court holds: (1) an agricultural supply dealer is required to file a new financing statement every thirty-one (31) days in order to maintain perfection of its agricultural supply dealer’s lien as to feed supplied within the preceding thirty-one (31) day period. The financing statement cannot perfect a lien for feed sold on credit after the statement is filed. Instead, the financing statement only perfects a lien for feed sold during the thirty-one day period preceding the filing of the statement; and (2) the “acquisition price” of livestock born in the farmer’s facility is zero. This is important because the feed supplier’s superpriority is limited to “the difference between the acquisition price of the livestock and the fair market value of the livestock at the time the lien attaches or the sale price of the livestock, whichever is greater.”

Charging Order & Multiple Levies Under Single Execution DuTrac Community Credit Union v. Hefel, 893 N.W.2d 282 (Iowa 2017) Limited liability company had a specific interest in the outcome of litigation – namely, the amount of proceeds that would be disbursed to the credit union under the terms of a charging order. Consequently, the LLC was properly allowed to intervene. Compromise agreement in bankruptcy proceeding did not act as an accord and satisfaction with the credit union, as the credit union was not a party. Credit union did not elect remedies. Credit union did not waive its claim by

AHLERS - 32 dismissing appeals of issues in bankruptcy and accepting payment on its claims. LLC’s operating agreement did not prohibit a charging order, as the operating agreement did not prevent transfer of distributions, only transfer of ownership interests. Judgment holder is limited to one execution at a time, but the statute does not prevent multiple garnishments and levies under a single execution.

DIVORCE / FAMILY LAW

Modification of Joint Physical Care In re Marriage of Harris, 877 N.W.2d 434 (Iowa 2016) In a 4-3 decision, the majority reverses the trial court ruling that the mother in this modification action had failed to establish a substantial change in circumstances. Finding an “abject failure of the joint physical care arrangement” that was “more or less permanent,” the Court awarded physical care to the mother. The Court relied on disagreement of the parties in dealing with daughter’s shyness, dealing with behaviors of their son in daycare, and deciding which extracurricular activities in which the children should participate as well as the father’s brusque manner at pickup and drop-off times in changing custody. The dissenters pointed out that the mother filed for modification eleven days after the Supreme Court had affirmed on her previous appeal in which she fought the award of joint physical care. They deferred to the trial court and found no change in circumstances. The dissenters also pointed out that the disagreement over medical care and extracurricular activities is an issue left to the courts to decide when the parties have joint legal custody and should not result in modification away from joint physical care.

Attorney Fees in Contempt Proceeding Involving Unwed Parents Rea v. Dist. Ct. for Lee (North) County, 877 N.W.2d 869 (Iowa App. 2016) Father of child who was never married to the mother was properly held in contempt of court for failing to pay child support. However, the Court has no authority to award attorney fees to the mother. Iowa Code Section 598.24 only permits the award of attorney fees in cases involving dissolution, annulment, or separate maintenance. Because no other statutory provision specifically provides for the award of attorney fees in this type of case, the trial court had no authority to order the father to pay the mother’s attorney fees.

Modification of Visitation & Clarification of “Joint Legal Custody” Christy v. Lenz, 878 N.W.2d 461 (Iowa App. 2016) Mother’s refusal to be flexible in accommodating reasonable requests for minor alterations to the visitation schedule constituted a material change in circumstances warranting modification of the visitation schedule. A change of circumstances need

AHLERS - 33 not be shown in order to obtain a clarification of a decree. Mother’s failure to provide information concerning the child’s medical and educational well-being justified provision in modification decree providing more detail as to what the parties’ rights and mother’s responsibilities were within the context of “joint legal custody.” Trial court properly ordered father to provide health insurance rather than paying money to the mother to keep the child on the mother’s plan, as the father’s plan was reasonably priced and the father had no obligation to subsidize the mother’s family coverage for herself and her other child.

Right to Counsel in Contempt Proceedings & Time Limits on Hearing Spitz v. District Ct. for Mitchell County, 881 N.W.2d 456 (Iowa 2016) Post-divorce contempt proceedings are civil contempt proceedings. The Sixth Amendment right to counsel does not apply because it is not a criminal case. Fourteenth Amendment due process rights do apply, but due process does not require the provision of counsel in a civil contempt case so long as adequate procedural safeguards are present. Since mother was notified of the allegations against her and had the opportunity to present and dispute evidence, procedural safeguards were met, so mother did not have the right to appointment of counsel. While time limits must not be imposed arbitrarily, the time limits in this case did not violate due process standards. Refusal to allow 14 and 15-year-old children to testify in a purge hearing did not violate due process.

Pension & Equalization Payments – Physical Care Disputes In re Marriage of Hansen, 886 N.W.2d 868 (Iowa App. 2016) In a short-term marriage, division of a pension using the Benson formula may not be necessary. However, here, where husband’s pension increased in value by over $29,000 during the course of the marriage, division by the Benson formula was equitable. Trial court’s order requiring husband to make an equalization payment based largely on the equity of the house was inequitable because the marriage was short (4 years), the family home was the husband’s premarital asset, the house did not appreciate in value, the parties did not enter the marriage with an equal value of assets, and there was no overriding contribution or sacrifice by either party to support an equal division of the net assets. Wife was properly awarded primary physical care in spite of husband’s request for joint physical care. Husband’s lack of effective communication, including text messages disrespecting the court’s authority to set parenting schedule, husband’s failure to honor exchange times, and tension and conflict between the two made joint physical care inappropriate. Wife’s home- business-use deduction was a legitimate business expense and properly considered in calculating her net monthly income.

AHLERS - 34 No Retroactive Child Support Increase on Remand In re Marriage of Hoffman, 891 N.W.2d 849 (Iowa App. 2016) On appeal, Court of Appeals remanded for the trial court to set modified child support on “the date of the decree from which appeal was taken” (i.e., retroactive to time of trial). On further review, the Supreme Court directed remand with child support to be set “based on the present financial circumstances of the parties and the child support guidelines” (i.e., prospectively). Since the Supreme Court addressed the same issue as the Court of Appeals, when the directions on remand conflicted, the Supreme Court’s remand direction controlled. On remand, trial court was required to follow the Supreme Court’s directive to apply changes in child support prospectively. Even if the Supreme Court’s directive was not a clear mandate, the trial court did not abuse its discretion in determining retroactivity of increase in child support was not warranted.

EMPLOYMENT

Unemployment Benefits – Standard for Establishing Misconduct Greenwell v. Employment Appeal Board, 879 N.W.2d 222 (Iowa App. 2016) The employer bears the burden of proving a claimant is disqualified for benefits because of misconduct. The legal standard for establishing misconduct requires more than reoccurring acts of negligence in disregard of the employer’s interests. The standard for establishing misconduct requires “carelessness or negligence of such degree of recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests.”

Unemployment Benefits – Absenteeism Due to Incarceration Irving v. Employment Appeal Board, 883 N.W.2d 179 (Iowa 2016) In a unanimous part of the decision, in a case of first impression, employee’s misconduct at a part-time job that disqualified the employee from unemployment benefits at that job did not disqualify employee from unemployment benefits after the employee’s termination from her simultaneously-held full-time job. In a 4-3 part of the decision, employer did not meet its burden of showing misconduct where employee was absent due to incarceration when the charge was later dismissed and employee made arrangements to notify employer of the incarceration on a daily basis until told not to do so. Employer also did not meet its burden to establish that employee “voluntarily quit” as a result of her incarceration. “Voluntary” requires volition and a desire to quit the job, which did not occur here when employee was incarcerated on a charge, was unable to post bail, and the charge was later dismissed.

AHLERS - 35

Statutory Attorney Fees – Partial Success on Claims Smith v. Iowa State University, 885 N.W.2d 620 (Iowa 2016) Plaintiff recovered on one claim for which attorney fees could not be awarded and partially recovered on another claim for which attorney fees could be awarded. The award of attorney fees follows a two-step analysis. First, while fees can be awarded for time devoted generally to the litigation as a whole, the trial court should make an appropriate reduction for unrelated time spent on unsuccessful claims and on claims for which fees are not recoverable. Second, if the plaintiff only obtained partial or limited success on the claim for which attorney fees are recoverable, the trial court must consider the reasonableness of the hours spent in light of the ultimate result. As for detail in the attorney fee claim, there is no precise rule or formula as to how much specificity is required. However, any lack of necessary detail can be taken into account by an appropriate discount or reduction of the award.

EVIDENCE

Hearsay Exception for Medical Diagnosis – Domestic Abuse Assault State v. Smith, 876 N.W.2d 180 (Iowa 2016) In a 4-3 decision, the majority holds that statements made by a victim to medical staff concerning identity of the perpetrator of domestic abuse are not categorically admissible under the hearsay exception for medical diagnosis (I.R.E. 5.803(4)), even though such statements are commonly admitted in cases of child abuse. Trial court must apply the Tracy standards to determine whether the statements fall within the exception. The foundation need not be elaborate, but it must establish that the identity of the perpetrator was reasonably pertinent to medical treatment or diagnosis. The majority found the foundation to be lacking in this case because medical staff only asked the victim how she was injured and their treatment efforts focused only on physical trauma, not emotional or psychological trauma. Dissenters called for a categorical rule allowing such evidence, but, even if done on a case-by- case basis, would have found adequate foundation.

Child Statements to Interviewers in Sexual Abuse Case In re J.C., 877 N.W.2d 447 (Iowa 2016) Making it clear it was limiting its ruling to federal Confrontation Clause analysis and not Iowa Confrontation Clause analysis, the majority in a 4-3 decision holds that 4- year-old’s statements to a doctor were not testimonial and thus were admissible. Relying on a recent U.S. Supreme Court case, the majority held that, considering the totality of the circumstances under the “primary-purpose test,” there was no

AHLERS - 36 Confrontation Clause violation largely because no law enforcement personnel attended the meeting and the child was so young. Only three members of the Court accepted the idea that “statements by very young children will rarely, if ever, implicate the Confrontation Clause.” The majority also found that statements to the forensic interviewer were erroneously admitted over Confrontation Clause objections, but, based on the admissibility of the statements to the doctor and the eyewitness accounts, admission of that evidence was harmless. Finally, the child’s assumed incompetence to stand trial did not render the child’s statements to the doctor inadmissible. The dissenters pointed out that the doctor was part of the “investigative team” who worked in the same office as the forensic interviewer and the primary purpose of having the doctor interview the child nearly a month after the incident was to create an out-of-court substitute for trial testimony, thus violating the federal Confrontation Clause.

Evidence of a Defendant’s Flight & Efforts to Avoid Apprehension State v. Wilson, 878 N.W.2d 203 (Iowa 2016) This case provides a thorough review of the standards for admitting evidence of a defendant’s flight and efforts to avoid apprehension. When flight and avoidance evidence involves the defendant’s acts when officers try to arrest the defendant, rather than acts at the time the crime was alleged to have been committed, Rule 5.404(b) applies. Although the Court acknowledged that it is “well-settled law” that the act of avoiding law enforcement after a crime may constitute circumstantial evidence of consciousness of guilt that is probative of guilt itself, there is a more complex analysis involved. Applying that analysis, the trial court was found not to have abused its discretion in allowing evidence of Defendant’s conduct in fleeing in a vehicle when police came to arrest him for an underlying charge. However, evidence that Defendant hid in a hole in his basement to avoid police when they tried to apprehend Defendant over a month later for the original charge and the Eluding charge stemming from the prior flight was not properly admitted because the danger of unfair prejudice outweighed its probative value of guilt on the original charge. However, admission of the evidence was harmless given the admissibility of the flight evidence.

Prior Violence in Domestic Abuse Assault Prosecution State v. Richards, 879 N.W.2d 140 (Iowa 2016) In this Domestic Abuse Assault case, a 4-3 majority found no abuse of discretion in admitting evidence of three prior episodes of violence by Defendant against the alleged victim. Following the three-step analysis for prior bad acts evidence under Rule 5.404(b), the majority concluded (1) the evidence was relevant and material to a legitimate issue; (2) the alleged victim’s testimony of the prior acts constituted “clear proof” of the prior acts; and (3) prejudice did not substantially outweigh the

AHLERS - 37 probative value. The fact that Defendant asserted self-defense did not remove intent as an issue, so there was still a legitimate issue of intent and the prior acts evidence was relevant on that issue. Also, trial court carefully circumscribing the scope of the other acts evidence and giving a limiting instruction contributed to a lack of unfair prejudice. Dissenters argued that self-defense claim negated the intent element, because Defendant is admitting what he did but claims he was legally justified. So, the dissenters found the evidence inappropriate because intent was no longer a legitimate issue and the prejudice of the prior acts evidence outweighed any relevance.

Impeachment, Prior Identification, & Lack of Memory State v. Russell, 893 N.W.2d 307 (Iowa 2017) The Turacek rule is a shield designed to prevent the introduction of otherwise inadmissible evidence. It cannot be used to prevent the State from using admissible evidence to impeach a witness. When a witness testifies that the witness does not remember underlying facts (as opposed to testifying to facts that differ from a prior statement), the only subject to be impeached is the witness’s memory or ability to recollect. In that instance, the State is free to try to make the witness admit that the witness remembered the underlying facts, but is not free to read into evidence the prior statement. Witness’s prior statement to police officer that the person depicted in a photograph the officer showed the witness was the person the witness saw kick the victim was a statement of identification that was, by definition, not hearsay pursuant to Rule 5.801(d)(1)(C). Since the witness testified at trial and was available for cross-examination, the prior statement to the officer was admissible as non-hearsay.

INSURANCE

What Constitutes “One Accident” in Auto Policy Just v. Farmers Auto. Ins. Ass’n., 877 N.W.2d 467 (Iowa 2016) A chain-reaction collision resulting in separate impacts seconds apart involved one “accident” for policy limit purposes even though “accident” is not defined in the policy. Lack of clarification of a term does not make the term ambiguous. Policy language stating “regardless of the number of vehicles involved” provides sufficient clarification of the term “accident.” Iowa follows a “cause” theory. Under that theory, no cause intervened between the multiple collisions and the collisions occurred within seconds of each other, so there was only one “accident” under the policy.

AHLERS - 38 Insurance Coverage for Construction Defects National Surety Corp. v. Westlake Investments, LLC, 880 N.W.2d 724 (Iowa 2016) In this suit involving CGL coverage for a construction dispute, a 4-3 decision holds that whether an event amounts to an “accident” that constitutes an “occurrence” triggering coverage under a standard-form CGL policy turns on whether the event itself and the resulting harm were both “expected or intended from the standpoint of the insured.” Also, the standard-form CGL policy provides coverage for property damage arising out of defective work performed by an insured’s subcontractor unless the resulting property damage is specifically precluded from coverage by an exclusion or endorsement. Defective work performed by the insured’s subcontractor falls within the definition of “occurrence.”

Chiropractor Reimbursement Rates Abbas v. Iowa Insurance Division, 893 N.W.2d 879 (Iowa 2017) Chiropractors challenged health insurance company’s practice of compensating chiropractors unequally in comparison to medical and osteopathic doctors, claiming the practice was discriminatory. The Court held: (1) the interpretation of Iowa Code Section 514F.2 has not been clearly vested in the discretion of the Insurance Commissioner; (2) Iowa Code Section 514F.2 regulates payments to providers; (3) the health insurer’s payments for chiropractic care are not based solely on licensure; and (4) ERISA preempts the application of Iowa Code Section 514F.2 to self-funded health plans.

JUVENILE

Specifics in CINA Petition In re B.E., 875 N.W.2d 181 (Iowa App. 2015) In a CINA proceeding, due process requires notice of the specific facts upon which the State seeks to take action to enable the parent to properly meet the charge. “Regurgitation of the statutory language without specification of the factual allegations violates due process.” Reversal of the adjudicatory and dispositional orders was without prejudice to refiling a new petition.

Error Preservation in TPR In re M.W., 876 N.W.2d 212 (Iowa 2016) The prevailing party in a termination of parental rights case need not file a cross- appeal or a Rule 1.904(2) motion to assert an alternative ground for affirmance on appeal that was raised before the juvenile court. Here, the State was the prevailing party at the trial court because the trial court terminated parental rights, so the

AHLERS - 39 State was allowed to rely on each of the grounds urged for termination even if the trial court did not rely on a particular ground.

Unsealing of Adoption Records In re R.D., 876 N.W.2d 786 (Iowa 2016) Adoptee, who was adopted as a newborn and was 51 years old when this case was brought, sought to unseal the adoption records pursuant to Iowa Code Section 600.16A(2)(d). Medical testimony established that disclosure of the parents’ identities would assist the treatment of the adoptee’s alcoholism and related depression and anxiety. This showing triggered the discretionary option for the court to open the records. However, disclosure still remains subject to the statutory mandate to “make every reasonable effort to prevent the identity of the biological parents from being revealed to the adopted person.” Since the adoption records contained no medical information (negating the option of revealing that information while redacting information regarding identity), and all the adoptee wanted to know was the names of her biological parents, the Court affirmed the denial of the request to unseal the records.

Exclusion of Parents From Proceedings & Dissemination of CASA Report In re M.H., 877 N.W.2d 139 (Iowa App. 2016) Juvenile court violated statute by excluding parents and their attorneys from a reported in-chambers proceeding in which a child’s testimony was taken. However, since the information obtained from the in-chambers proceeding was entered into evidence through other sources, there was no prejudice. Juvenile court did not abuse its discretion in permitting evidence related to two older children who were not subject to the CINA modification proceeding. Evidence relating to the welfare of siblings not a subject of the current proceedings was not irrelevant or unfairly prejudicial. Although CASA reports are statutorily required to be distributed to “the parties” and the parents did not get the reports in this case, there was no prejudice because the parents’ attorneys received the reports, informed the parents of the contents, and presented testimony from the parents refuting many of the assertions in the report.

DHS Ignoring Family Members In re N.V., 877 N.W.2d 146 (Iowa App. 2016) Iowa Code Section 232.84(2) places the onus on the DHS, not the parents, to notify relatives when child is removed. DHS failed to notify relatives who previously expressed interest in the child, who were identified by the mother as potential placements, and who were statutorily preferred over nonrelatives during the CINA phase of the proceedings. As a result, juvenile court denial of relatives’ motion to be appointed guardian and custodian for the child was reversed. Since the

AHLERS - 40 intervening relatives proved unreasonable actions by the DHS as custodian and guardian of the child, replacement of the DHS with relatives was appropriate.

Limits on Authority to Assess Costs to State Public Defender State Public Defender v. Iowa District Court, 886 N.W.2d 595 (Iowa 2016) Based on its conclusion that the State Public Defender (“SPD”) improperly refused to represent a juvenile in a detention proceeding, the trial court assessed court and travel costs of witnesses and attorneys to the State Public Defender. The Court held that there was no statutory authority for assessing the costs to the SPD. Costs also could not be assessed as a sanction for the local PD’s conduct in declining to represent the juvenile because the sanction was imposed without notice and an opportunity to be heard. Local PD complied with the statutory directive to “return the case to the court” when it moved to withdraw due to a conflict within one hour of the appointment and appeared at the hearing to answer questions about the motion. In such a situation, the statute places the responsibility for selecting and appointing successor counsel on the trial court, not the PD. Local PD did not violate ethical rules requiring attorney to mitigate impact to client arising from withdrawal, as PD’s conflict prohibited representation, even at the detention hearing (a hearing that does not involve the merits of the case).

Definition of “Removal” For Purposes of TPR Elements Being Met In Interest of C.F.-H., 889 N.W.2d 201 (Iowa 2016) In a 4-3 decision, placement of a child with the mother pursuant to juvenile court order does not constitute “removal” from the custody of the father for purposes of meeting the statutory elements for termination of the parental rights of the father.

No TPR for Marijuana Use In re M.S., 889 N.W.2d 675 (Iowa App. 2016) In a 6-3 decision, the State did not meet its burden to prove grounds for termination of father’s parental rights. Child tested positive for marijuana at birth and was removed from mom’s care. Father was identified later in the case and immediately took steps to be a placement option. Father’s marijuana use prompted TPR proceedings. State did not produce any evidence the father had “a substance- related disorder” as defined by the Code such as to support TPR under Section 232.116(1)(l). State also failed to prove grounds under Section 232.116(1)(h). Although the father continued to use marijuana, the workers confirmed that the father was able to meet the child’s needs, maintained full-time employment, provided a safe and appropriate home with no safety concerns, was eager and able to meet the child’s needs, attended every visitation session (which required careful planning to rearrange his work schedule), conducted himself well on visits, demonstrated good parenting skills, attended anger management sessions, and was

AHLERS - 41 acknowledged not to be a safety risk to the child. Under these circumstances, the State failed to establish a nexus between the father’s ongoing drug usage and any appreciable risk of adjudicatory harm to the child.

MISCELLANEOUS

Ripeness of Challenges to Sexually Violent Predator Statute Taft v. Iowa Dist. Ct. For Linn County, 879 N.W.2d 634 (Iowa 2016) Sexually violent predator raised substantive due process and equal protection challenges to statutory criteria regarding major discipline reports and treatment provider approval of offender’s relapse prevention plan. Since the offender agreed he would not qualify under the statute for the transitional release program even if he were not required to meet the challenged criteria, the constitutional challenges were not ripe and the Court declined to address them.

Standards for Continued Mental Health Commitment In the Matter of L.H., 890 N.W.2d 333 (Iowa App. 2016) The definition of “serious mental impairment” does not become less stringent in a proceeding in which a person challenges continued commitment than it was at the initial proceeding. The burden remains on the State to prove that all three elements continue to exist in order for commitment proceedings to continue. Those elements are: (1) mental illness; (2) lack of judgment; and (3) dangerousness. Here, the State failed to prove the last two elements. Proof of “dangerousness” requires prior manifestations of aggressive behavior or threats, which requires a showing of a recent overt act, attempt, or threat.

MOTOR VEHICLES / OWI

Private Meeting Must Be Requested to Trigger Section 804.20 State v. Lamoreux, 875 N.W.2d 172 (Iowa 2016) Iowa Code Section 804.20 contains a provision stating that an attorney “shall be permitted to see and consult confidentially with such person alone and in private.” When an attorney is called to the jail, enters a room the attorney knows is equipped with audio and video recording devices, does not request that the audio or video equipment be turned off, does not request a different room, and meets with the client in the room, no violation of Section 804.20 occurs. This is not a case about “legally inaccurate requests.” Rather, it is a case about no request at all. Since neither the attorney nor the client requested privacy, there was no violation.

AHLERS - 42 Evidence of Smell of Alcohol & Closing Arguments State v. Morgan, 877 N.W.2d 133 (Iowa App. 2016) The Court notes that it is well-known that there can be an odor following the consumption of an alcoholic beverage and that smell is distinctive. Defense counsel was not ineffective for failing to object to deputy’s testimony that the deputy smelled the odor of alcohol coming from Defendant. Because alcohol can be smelled on one’s breath, detection of such smell is an indicium of intoxication, and an officer can testify about the officer’s personal observations regarding a person’s insobriety, Defendant’s ineffective assistance claim was without merit. Prosecutor’s statements in closing argument that the deputy had to support Defendant’s weight as Defendant walked were reasonable inferences and conclusions drawn from the evidence presented at trial.

Section 804.20 & Right to Counsel State v. Senn, 882 N.W.2d 1 (Iowa 2016) In a 4-3 decision, provision of Iowa Code Section 804.20 that allows law enforcement to be present during detainee’s phone call with a lawyer does not violate the right to counsel under the Iowa Constitution. A plurality held that the right to counsel does not attach until formal criminal charges are filed and had not attached at the time the detainee was asked to submit to a chemical test. Because no constitutional provision was violated and the statutory terms were honored, the breath tests were not suppressed.

Claimed 804.20 Violation When Detainee Allowed to Call Anyone State v. Markley, 884 N.W.2d 218 (Iowa App. 2016) Detainee sought to suppress breath test refusal evidence after the officer gave the detainee his cell phone, a landline, and a phone book and told him “you can call anyone you want.” The Court confirms a long line of cases that decline to recognize a duty of an arresting officer to inform a detainee of the scope of the detainee’s phone call rights unless the detainee’s request is refused because it is outside the scope of the statute. Here, when the officer did not misstate the law, did not undermine the detainee’s right to make phone calls, and honored the detainee’s request to make phone calls, no violation occurred.

“Emergency Response” Restitution State v. Iowa District Court for Scott County, 889 N.W.2d 467 (Iowa 2017) Iowa Code Section 321J.2(13)(b) allows recovery of restitution for “emergency response” costs in OWI cases. The definition of “emergency response” is ambiguous. The unanimous court resolved the ambiguity by determining that “emergency response” required an actual emergency (e.g., an accident or a 9-1-1

AHLERS - 43 call) and did not allow the State to recover restitution for an officer’s time involved in a routine traffic stop.

MUNICIPAL CORPORATIONS

Open Meetings and What Constitutes a “Meeting” Hutchison v. Shull, 878 N.W.2d 221 (Iowa 2016) In a 4-3 decision, the Court holds that the definition of “meeting” within the Open Meetings Law (Section 21.2(2)) extends to all in-person gatherings at which there is deliberation upon any matter within the scope of the policy-making duties of a governmental body by a majority of its members, including in-person gatherings attended by a majority of the members by virtue of an agent or a proxy. The majority remanded the case to the trial court to apply agency law and determine whether the county administrator acted as an agent for members of the three- person board of supervisors when the administrator discussed policy with a board member. If the administrator was acting as agent for a board member when the administrator met with a board member, a majority was present and the Open Meetings Law would apply. The dissenters claimed that there is no basis for treating an administrator as an agent in applying the Open Meetings Law and also pointed out that the theory was not raised by the plaintiffs. The dissenters also pointed out that, even if the administrator was an agent for purposes of conveying messages, since the administrator did not have authority to make decisions, there was no violation.

Urban Renewal and TIF Areas Southeast Polk School Dist. v. Pleasant Hill, 878 N.W.2d 252 (Iowa 2016) Extending the duration of a tax increment financing (“TIF”) area was impermissible because that area had previously been consolidated with other TIF areas and therefore no longer existed. Thus, the old TIF area could not benefit from a grandfather provision in a 1994 law that otherwise limited such TIF arrangements to twenty years’ duration. Revenue may be shared within a consolidated, larger TIF area, subject to the 20-year time limits set forth in the 1994 law. This urban renewal plan conformed with the city’s general plan.

Trade Secrets and Open Records Law Sysco Iowa, Inc. v. University of Iowa, 889 N.W.2d 235 (Iowa App. 2016) Newspaper sought to obtain copy of a contract between food distributor and the university under the Open Records Law. Food distributor sought injunctive relief on the basis of the trade secrets exception to disclosure requirements. Distinguishing prior cases that found claims of trade secrets to be unsupported, the Court found

AHLERS - 44 information in the contract to be “confidential information” as trade secrets, as the contract was obtained through a competitive sealed bid process and the contract included information about pricing, margins, etc. that would give competitors an unfair advantage if disclosed.

Open Meetings – No Suspension of Damages / Presence of Counsel Olinger v. Smith, 889 N.W.2d 476 (Iowa App. 2015) Trial court’s order assessing damages for violations of the Iowa Open Meetings Act (IOMA) was premature. Objectors should have been given the opportunity to prove that violations were done knowingly (with higher damage amounts) and government body members should have been given the opportunity to present defenses (to avoid personal liability). If the court finds that a violation of IOMA occurred and a member has not proved any defenses, assessment of damages is mandatory and cannot be suspended or reduced below the statutory minimum. If a violation is established, attorney fees must be awarded to the party establishing the violation. If a member of the governmental body proves a defense, the obligation to pay the attorney fees shifts to the governmental body. In order to hold a closed session to discuss strategy about pending or imminent litigation pursuant to Iowa Code Section 21.5(1)(c), counsel must be present at the meeting.

Drainage District Obligations to Downstream Water Users Board of Water Works Trustees v. Sac County, et. al., 890 N.W.2d 50 (Iowa 2017) In response to certified questions from federal court in a suit by Des Moines Water Works against upstream counties and drainage districts, the Court answered the questions as follows (either by 5-2 or 6-1 votes): (1) drainage districts have unqualified immunity from all damage claims in this case; (2) doctrine of implied immunity gives drainage districts unqualified immunity from equitable remedies and claims other than mandamus; (3) inalienable rights, due process, equal protection, and takings clauses of the Iowa Constitution do not provide protections to Plaintiff since the protections do not apply to governmental subdivisions such as Plaintiff; and (4) Plaintiff does not have a property interest that may be the subject of a claim under the Iowa Constitution’s takings clause.

Contempt Standards & Preference in Sale of Abandoned Highway DenHartog v. City of Waterloo, 891 N.W.2d 430 (Iowa 2017) To establish contempt, proof must be beyond a reasonable doubt. The party alleging contempt bears the initial burden of proving a duty to obey an order and willful failure to obey. If this burden is met, the burden shifts to the alleged contemner to produce evidence suggesting the violation was not willful. Failure to follow a court order is not willful if a contemner shows the order was indefinite or the contemner was unable to comply. Taxpayers proved that the City violated Iowa

AHLERS - 45 Code Section 306.23(1), requiring notice to certain preferred parties when attempting to sell property no longer used as a highway and essentially giving such preferred parties a right of first refusal, by giving notice to a non-preferred party (the party to whom the City wanted to sell the land). This action violated an injunction that prohibited the City from “selling or transferring the property…without first following the procedures” set forth in Section 306.23. While recognizing that some of the deficiencies in the notice provided by the City were “particularly troubling,” the Court agreed with the trial court that the taxpayers failed to prove the City acted contemptuously beyond a reasonable doubt.

Open Meetings – Round 2 – Defenses & Attorney Fees Olinger v. Smith, 892 N.W.2d 775 (Iowa App. 2016) Trustees of drainage district violated the Iowa Open Meetings Act (IOMA) by going in to closed session to discuss litigation against the district and how to respond to a letter threatening litigation. The trustees’ deliberation and decision not to act was more than a gathering to “receive information” and constituted “deliberation or action” with the meaning of Iowa Code Section 21.2(2). By twice voting to go into closed session with no statutory basis, there was more than a “procedural irregularity.” Consequently, the trustees failed to establish substantial compliance with the IOMA. Good faith defense did not apply. Even if the trustees’ actions were well-intended, good intentions do not equate to a “good reason to believe” and “good faith belief” in “facts” that, “if true, would have indicated compliance with all the requirements of” the IOMA. Removal from office was not an available remedy. The fact that there was more than one violation did not satisfy the “prior violation” condition for removal from office. Record did not support a finding of a knowing violation. Therefore, damages were set at the lowest statutory amount. Trial court’s downward adjustment of fees awarded to objectors was improper and objectors were awarded full trial and appellate attorney fees.

PROBATE / GUARDIANSHIP / CONSERVATORSHIP

Class Versus Individual Gift – Adoption of Beneficiary Roll v. Newhall, 888 N.W.2d 422 (Iowa 2016) Testator executed a will leaving the residue of her estate equally to her son and daughter, identified by name and as her children. After the execution of the will, the son was adopted by his paternal aunt in order to avoid inheritance tax on the aunt’s estate. The testator then died and the daughter sought declaratory relief that the son was not entitled to an inheritance because he was no longer legally the testator’s son. The Court held in favor of the son, finding this to be an individual

AHLERS - 46 gift and not a class gift. Naming a beneficiary as an individual and by class indicates a prima facie intent to make an individual gift.

Undue Influence of Trustor In re Ronald R. Oldham Trust, 889 N.W.2d 671 (Iowa App. 2016) Son sued to set aside changes to a revocable trust that had been set up by his father based on claims that the son’s daughter (the trustor’s granddaughter) unduly influenced the father, causing amendments that favored the granddaughter to the detriment of the son. The Court held that the Trust Code provides the same actions and remedies relating to attacking creation, revocation, or modification of a revocable trust as it does to a will. Therefore, the standard of review is for errors at law and findings of fact are binding on review if supported by substantial evidence. The Court upheld the trial court findings. Even though the granddaughter had the opportunity to unduly influence the trustor, the other elements were not established, as the trustor was not susceptible to undue influence, the granddaughter did not have the disposition to unduly influence the trustor, and the change in trust terms was not clearly the result of undue influence. This finding was upheld in spite of evidence that the granddaughter attempted to get the trustor to deed her the property immediately. The fact that the son did the same thing and the trustor refused both parties’ requests supported the finding that the trustor was not susceptible to undue influence.

“Vulnerable Elder” Under Elder Abuse Statute Petition of Chapman, 890 N.W.2d 853 (Iowa 2017) A person claiming elder abuse must prove the following elements to qualify as a “vulnerable elder” as defined in Section 235F.1(17): (1) the person must be sixty years of age or older; and (2) the person must be unable to protect himself or herself from elder abuse as a result of one of the following: (a) age; (b) a mental condition; or (c) a physical condition. If a person’s age makes a person unable to protect himself or herself from elder abuse, that person is a “vulnerable elder” without proof of a mental or physical condition. In a 4-3 decision, petitioning mother proved that she was unable to protect herself from elder abuse and thus was a “vulnerable elder” whose son took advantage of her due to age and financial condition.

IRAs Are Not Subject to Spousal Allowance Matter of Estate of Gantner, 893 N.W.2d 896 (Iowa 2017) Decedent’s IRA and SEP-IRA accounts cannot be used to pay an allowance to a surviving spouse who was not a beneficiary of the accounts. Iowa Code Chapter 663D does not apply to IRAs where one or more nonspouses are designated as the beneficiaries.

AHLERS - 47 REAL PROPERTY

Assessed Value of Single-Occupant Corporate Headquarters Wellmark, Inc. v. Polk County Bd. of Review, 875 N.W.2d 667 (Iowa 2016) In property tax protest, since the market value of the single-occupant corporate headquarters of Wellmark could not be “readily established” through market analysis, other factors must be considered in an effort to establish the value of the property. The Court affirmed the Board’s valuation by embracing the view that the property should be valued based on its current use (i.e., single occupant headquarters) and not a hypothetical use (i.e., multi-tenant office space) even though the market for the property’s current use was limited. The Court criticized Wellmark for asserting a tax value that was less than half of the cost of constructing the building.

Landlord-Tenant Issues – Lease Provisions De Stefano v. Apartments Downtown, Inc., 879 N.W.2d 155 (Iowa 2016) In a 4-3 decision in this landlord-tenant dispute interpreting the Iowa Uniform Residential Landlord and Tenant Act (IURLTA), the majority holds that lease provision that permitted landlord to charge tenant for door repairs was unenforceable. Landlord did not act reasonably in refusing a requested sublease when it attempted to enforce an unlawful provision in the lease (i.e., the provision that tried to make the tenant responsible for door repair). Landlord cannot impose an automatic carpet-cleaning fee and deduct the fee from a rental deposit. However, the automatic carpet-cleaning fee deduction did not warrant statutory punitive damages.

Landlord-Tenant Issues – Lease Provisions II Caruso v. Apartments Downtown, Inc., 880 N.W.2d 465 (Iowa 2016) In a related case to the above, attorney fees claimed or awarded are not included for purposes of determining small claim jurisdiction. Also, automatic carpet cleaning fee violates IURLTA. Record supported finding that tenants were not responsible for damage to an interior door, so landlord could not charge tenants for repairing it. Record did not contain sufficient evidence to support a finding that the landlord knowingly violated IURLTA based on the illegal automatic carpet cleaning fee and the automatic repair deduction provisions. Also, there was insufficient fact-finding on the issue of bad-faith retention of the rental deposit, so there was a remand on that issue.

AHLERS - 48 Constitutionality of Lease on Land Claimed To Be Agricultural Iowa Arboretum, Inc. v. Iowa 4-H Foundation, 886 N.W.2d 695 (Iowa 2016) Article I, Section 24 of the Iowa Constitution prohibits leases of agricultural land for a period longer than 20 years. Whether the clause is violated depends on whether the land is agricultural. This 99-year lease for operation of an arboretum did not violate the constitutional provision. When, as here, land that can be used for agricultural purposes is actually leased and used for nonagricultural purposes, the lease does not violate the constitutional provision.

Boundary Line Acquiescence Albert v. Conger, 886 N.W.2d 877 (Iowa App. 2016) Property owner filed suit to quiet title to land. Adjoining landowners counterclaimed, asking that title be quieted in their name. Even though the land, by deed, belonged to the property owner, adjoining landowners obtained title by acquiescence. Adjoining landowners’ installation of a fence enclosing the disputed property and their efforts in mowing and otherwise maintaining the property for over 10 years resulted in title being acquired by the adjoining landowners. Adjoining landowners acquired title in spite of the fact that they had no intention of taking extra land. Their honestly-held belief that they owned the land, coupled with their actions in treating it as their own without objection by the property owner dictated this outcome. Casual conversation comments by the property owner that the adjoining landowners did not own the land was not enough to avoid this outcome.

Re-Zoning Standards Residential & Ag. Adv. Comm. v. Dyersville City Council, 888 N.W.2d 24 (Iowa 2016) City council acted in its proper legislative function when it rezoned the Field of Dreams property from A-1 Agricultural to C-2 Commercial. The city council was impartial, the action was not arbitrary, capricious, or unreasonable, the rezoning fit within the comprehensive plan, and, while the rezoning may have been spot zoning, it was not illegal spot zoning because it was consistent with the overall comprehensive plan. Both ordinances involved in the rezoning were validly passed, and no procedural or substantive errors affected the decision of the city council in its rezoning decisions.

Partition in Kind Versus Partition by Sale Newhall v. Roll, 888 N.W.2d 636 (Iowa 2016) In Iowa, partition by sale is favored over partition in kind. A party seeking partition in kind has the burden to prove that partition in kind would be both equitable and practicable. Here, brother and sister owned two farms as tenants in common.

AHLERS - 49 Brother sought partition by sale and sister sought partition in kind. Sister failed to meet her burden. Sister’s in-kind division proposal would cause the tract to be given to the brother to be unsuitable for raising livestock or growing crops because of limited access, lack of water supply for livestock, fencing problems, and susceptibility to flooding. Additionally, the division of the farm into separate parcels would depreciate the aggregate value. The Court declined to address whether the doctrine of owelty (an equitable remedy used in partition actions to equalize the value of parcels through the payment of money from the recipient of higher-value parcel to the recipient of the lower-value parcel) is available in Iowa, as the sister could not prove a superior claim to entitlement to the farm she wanted.

Mechanic’s Lien – No Notice to MNLR By General Contractor Standard Water Control Systems, Inc. v. Jones, 888 N.W.2d 673 (Iowa App. 2016) Iowa Code Section 572.13A requires notice of commencement of work to be posted to the mechanics’ notice and lien registry (MNLR) within 10 days of commencement of work on the property. In a case of first impression, Section 572.13A does not apply to general contractors that do not hire subcontractors. The purpose of Section 572.13A is to identify subcontractors that would otherwise be unknown to the homeowner. It is not intended to apply to general contractors hired by and known to the homeowner. Award of attorney fees to the contractor for over $43,000.00 was unreasonable in light of the judgment amount of $5,400.00.

Impossibility of Restrictive Covenants – Modification Impractical DuTrac Comm. Credit Union v. Radiology Group, 891 N.W.2d 210 (Iowa 2017) Restrictive covenant prohibited erecting any building in the subdivision without the approval of the architectural committee, which consisted of the two developers of the subdivision. No succession process for the committee members was stated. Twenty years later, prospective purchaser of a lot sought a declaration of invalidity of the covenant because one of the named developers was dead and the other either resigned from the committee or refused to act on its behalf. Based on these circumstances, the Court held that compliance with the approval process contained within the restrictive covenant was both impossible and impracticable, so the covenant was invalid and unenforceable. The Court went on to analyze the issue under the Restatement (Third) of Property in light of the defending land owners’ argument that the covenant should be modified. Proposed modification that called for other owners in the subdivision to serve as committee members was rejected because it was not practicable or effective as a matter of law.

Limited Time to Challenge Eminent Domain – Uneconomical Remnant Johnson Propane, Heating & Cooling v. Iowa DOT, 891 N.W.2d 220 (Iowa 2017) An appeal from a damage award by the compensation commission under Sections

AHLERS - 50 6B.18(1) and 6B.22(1) is not the proper method to challenge whether the taking left an “uneconomical remnant.” To make such a challenge, the landowner must bring a separate suit under Section 6A.24(1) within thirty days from the notice of assessment.

Single Horse Grazing on Property Does Not Make a Farm Tenancy Porter v. Harden, 891 N.W.2d 420 (Iowa 2017) In a 6-1 decision, a tenant’s decision to graze a single 38-year-old horse on an acreage where the tenant resided was not enough to establish a farm tenancy and trigger the special farm tenancy termination protections of Iowa Code Sections 562.5 through 562.7. Finding the statute ambiguous, the majority adopted a “primary purpose” test. Since the land was not devoted primarily to the production of crops or the care and feeding of livestock, there was no farm tenancy.

SEARCH AND SEIZURE

Apparent Authority to Search Backpack State v. Jackson, 878 N.W.2d 422 (Iowa 2016) In a 4-3 decision, the Court finds lack of apparent authority to consent to search of a backpack even though consent to search the room where the backpack was located was valid. The Court confirms that, under the federal constitution, an officer is entitled to rely on consent given by a person with apparent authority to consent. Apparent authority is determined by an objective reasonableness standard. The burden is on the State to prove by a preponderance of the evidence that the person giving consent had apparent authority to consent. Here, although the tenant of the apartment validly gave consent to search the bedroom, the tenant had no apparent authority to consent to search the backpack in the bedroom when the backpack was located near a non-tenant who was found in the bedroom. The circumstances as to ownership of the backpack were ambiguous enough that further inquiry was needed, and, since no such inquiry was made by officers, the search was unreasonable. The dissenters applied the same standards, but found that the facts warranted a finding of apparent authority.

What Constitutes “Custody” Under Miranda State v. Schlitter, 881 N.W.2d 380 (Iowa 2016) In a 4-3 decision, applying a totality of the circumstances analysis, balancing the four factors to be considered, Defendant was not in custody when interrogated, so no Miranda warnings were required. Defendant cooperatively talked to officers in the days preceding the interview, so would not have been alarmed when another interview was requested. Also, Defendant voluntarily went to the patrol office,

AHLERS - 51 rather than being taken there. Additionally, Defendant was permitted to leave when he requested to do so. Although the questioning was aggressive and accusatory, it did not restrict Defendant’s freedom to the point of rendering him in custody.

Search Within the School Setting State v. Lindsey, 881 N.W.2d 411 (Iowa 2016) High school football player with a known history of drug and firearms violations was injured during a game. While being attended to on the field for a potentially serious injury, player told school officials that he wanted his equipment bag to be given to a specific teammate and to not let anyone mess with it. Subsequent search of the bag revealed drugs and a firearm. In a thorough review of the standards for searches by school officials, the Court upheld the search in a 7-1 decision. The analysis involves two questions: (1) whether, at the inception of the search, there were reasonable grounds for suspecting that the search will turn up evidence that the student is violating either the law or the rules of the school; and (2) whether the scope of the search was reasonably related to the objectives of the search and not excessively intrusive. Answering the first question, the Court found reasonable grounds based on the player’s history and his suspicious conduct of directing that the bag be given to a specific teammate at a time when the player was lying on the field being attended to for a potentially serious injury. Answering the second question, the scope was reasonable as the search of a backpack found within the equipment bag was reasonable given the reason for the search, especially when a loud clunk consistent with the sound of a gun being dropped was noticed when the bag was set on the floor.

Tip As Basis for a Vehicle Stop State v. Ruhs, 885 N.W.2d 822 (Iowa App. 2016) Distinguishing Kooima, the Court holds that bartender’s face-to-face statement to officer that the man the officer had just seen leaving the bar in a truck was intoxicated, coupled with the officer’s observation of poor driving, were sufficient to justify an investigatory stop.

Seizure Versus Consensual Encounter State v. White, 887 N.W.2d 172 (Iowa 2016) Defendant was seized within the meaning of the Fourth Amendment of the U.S. Constitution when he was approached as he made his way from his car to his house when he was directed to step down from his porch. Applying a totality of the circumstances standard, flashing lights of the patrol vehicle, parking of the vehicle in Defendant’s driveway (blocking Defendant’s car), officer’s approach while wearing a uniform, badge, and firearm, and officer’s tone and action in stepping onto the porch as he made the statement “I need you to step down here and talk to me,

AHLERS - 52 OK?” all supported the finding of a seizure. The finding of a seizure did not necessarily mean Defendant’s motion to suppress should be granted, but it could not be denied on the basis that there was no seizure. Case was remanded for further proceedings.

Special Needs Doctrine – Search of Probationer State v. Brooks, 888 N.W.2d 406 (Iowa 2016) In a 4-3 decision, the Court applies the special-needs doctrine to uphold warrantless entry into and search of probationer’s bedroom. Such entry and search did not violate Article I, Section 8 of the Iowa Constitution, as entry into the bedroom was done by probation officers with probable cause to believe Defendant was in violation of terms of probation and in furtherance of the goals of enforcing probation (as opposed to investigating other crimes). Fact that one of the probation officers was dressed in a law enforcement uniform and carried a firearm did not change this conclusion. Due to its ruling, the Court found it unnecessary to address the issue of whether the exclusionary rule applied to probation revocation proceedings.

Vehicle Stop Months After Observed Criminal Behavior State v. Steffens, 889 N.W.2d 691 (Iowa App. 2016) At time of vehicle stop, officer had no reasonable suspicion that criminal activity was afoot. Consequently, probable cause to believe a traffic violation has occurred or to believe that the individual has committed a crime is necessary to effectuate a seizure by initiating a traffic stop. Fact that officer had probable cause to arrest Defendant for a drug offense in March did not justify stopping Defendant’s vehicle on sight in November just because Defendant had failed to comply with a claimed cooperation agreement.

Traffic Stop Cannot Be Prolonged Once Basis For Stop Is Rebutted State v. Coleman, 890 N.W.2d 284 (Iowa 2017) In a 4-3 decision, under the Iowa Constitution, a law enforcement officer, after making a valid traffic stop supported by reasonable suspicion that an offense may have been committed, must terminate the stop when the underlying suspicion that justified the stop is no longer present.

Searches by Off-Duty Law Enforcement Officer State v. Brown, 890 N.W.2d 315 (Iowa 2017) Defendant’s stepfather was a city police officer. While off duty, the stepfather searched Defendant’s vehicle and found contraband. The Court rejected the argument than an off-duty police officer is acting as a government agent in every situation. Instead, the Court adopts a two-part test: (1) examine the capacity in

AHLERS - 53 which the off-duty officer was functioning when the officer initially confronted the situation; and (2) examine the manner in which the officer conducted himself or herself from that point forward. Applying this test, the stepfather was not acting as a government agent because the first search was done out of concern for his stepson (Defendant) to retrieve a missing gun when it was believed the stepson was suicidal. After discovering drugs and a gun during the second search, the stepfather did not detain Defendant. Instead he called authorities. Since the stepfather was acting in his private capacity, there was no government action and no violation of either the Iowa or Federal Constitution.

Applicant’s Signature Not Required on Search Warrant Application State v. Angel, 893 N.W.2d 904 (Iowa 2017) In a 4-3 decision, the Court holds that: (1) failure of the applying officer to sign the warrant application did not invalidate the warrant because evidence established that the officer swore to the accuracy of the information in the application before the warrant was issued; and (2) issuing judge’s failure to cross out the “is/is not” or “do/do not” options on the warrant did not invalidate the warrant as the judge’s signing of the warrant, the application endorsement, and the jurat to the application left no doubt that the judge found probable cause to issue the warrant and approved the warrant.

TAXATION

Tax on Shipping and Handling Charges on Internet Sales Bass v. J.C. Penney Co., Inc., 880 N.W.2d 751 (Iowa 2016) Class action suit on behalf of consumers claiming internet retailer unlawfully charged Iowa sales tax on shipping and handling charges. Iowa’s version of the Streamlined Sales and Use Tax Act (SSUTA) is found in Iowa Code Chapter 423. The SSUTA was not enacted to benefit taxpayers, but to streamline tax collection for retailers. Consequently, the Court holds that the SSUTA does not create a private right of action either expressly or impliedly. Additionally, Iowa Code Section 423.47, which allows an aggrieved party (in this case, the consumer) to seek a refund of overpaid tax from the Iowa Department of Revenue (IDOR), provides the exclusive remedy for a party seeking a refund of sales tax claims where the retailer has forwarded the funds to the Iowa Department of Revenue. Consumers’ claims for negligent misrepresentation, fraud, fraudulent misrepresentation, unjust enrichment, violation of the Iowa Consumer Fraud Act, and conversion all failed because the retailer made no material misrepresentations as the retailer disclosed that it was charging tax on shipping and handling charges and the retailer forwarded the tax collected to the IDOR.

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Income Taxation of Out-of-State Controlling Corporation Myria Holdings Inc. v. Iowa Department of Revenue, 892 N.W.2d 343 (Iowa 2017) Out-of-state parent corporation’s activities with its subsidiaries doing business in Iowa were activities of “ownership” and “control” over the subsidiaries within the meaning of Iowa Code Section 422.34A(5). The parent corporation established no taxable nexus with Iowa. Because the parent corporation lacked a taxable nexus with Iowa, the Department correctly concluded that the parent corporation could not join the consolidated return with the subsidiaries.

TORTS

Legal Malpractice Against Criminal Defense Attorneys Barker v. Capotosto, 875 N.W.2d 157 (Iowa 2016) In a 5-2 decision, the Court holds that a criminal defendant that has obtained postconviction relief who sues his or her attorney for legal malpractice is not required to prove actual innocence as a precondition to recovery. Instead, judges and juries should take innocence or guilt into account in determining whether the traditional elements of a legal malpractice claim have been established.

Res Ipsa Loquitur Instruction Standards Tamco Pork II, LLC v. Heartland Co-op, 876 N.W.2d 226 (Iowa App. 2015) Fire happens, frequently in the absence of negligence. For the doctrine of res ipsa loquitur to apply, plaintiff must establish the cause of the fire. Plaintiff is only required to present sufficient evidence that it was more likely than not negligence that caused the event in order to be allowed to submit a res ipsa loquitur instruction. Since there was not substantial evidence establishing the instrumentality or agency causing the fire that formed the basis for this suit, trial court properly refused to give a res ipsa loquitur instruction. The Court refused to adopt the Restatement (Third) of Torts section 17, setting forth the Restatement’s formulation of the res ipsa loquitur doctrine.

Tort Claims to State Appeal Board by Estate Administrator McFadden v. Dep’t of Transportation, State of Iowa, 877 N.W.2d 119 (Iowa 2016) Wife of motorcyclist who died in a single vehicle accident was appointed administrator of her husband’s estate and filed a tort claim with the State Appeal Board for wrongful death. After no relief or response in six months, wife withdrew the claim and filed suit. The State claimed administrative remedies had not been exhausted because the wife did not file the claim with the State Appeal Board in her

AHLERS - 55 capacity as administrator of the estate, but only filed the claim in her own name. Clarifying prior case law, the Court held that the Appeal Board’s rules and claim form did not require the wife to allege her representative capacity. Because the wife was, in fact, the administrator of her husband’s estate, she was entitled to present the claim and file suit in her own name as the estate’s legal representative. Therefore, the wife had exhausted administrative remedies and was entitled to sue.

Class Action – Fees Charged for Medical Records Young v. HealthPort Technologies, Inc., 877 N.W.2d 124 (Iowa 2016) Patients who requested medical records from their healthcare providers filed a class action suit claiming the company that fulfilled the requests charged excessive fees in violation of Iowa Code Section 622.10(6). Ruling on a motion to dismiss for failure to state a claim, the Court held that, based on the facts alleged in the petition, the records company was an agent for the healthcare providers. An entity that fulfills records requests on behalf of a healthcare provider cannot charge more for producing the requested records that the provider itself could legally charge.

No Claim for Wrongfully Imprisoned Person After Guilty Plea Rhoades v. State, 880 N.W.2d 431 (Iowa 2016) Claimant pled guilty to Criminal Transmission of HIV and was sent to prison. On postconviction relief, the conviction was set aside because there was insufficient evidence to show an exchange of bodily fluids. On remand, the State dismissed. Claimant then sought compensation as a “wrongfully imprisoned person” under Iowa Code Section 663A.1. The Court held that Section 663A.1(1)(b) categorically excludes all persons who plead guilty from compensation under the wrongful imprisonment statute.

Statute of Limitations – Unborn Fetus Consortium Claims Estate of Gray ex rel. Gray v. Baldi, 880 N.W.2d 451 (Iowa 2016) In this wrongful death suit against physician and medical care providers claiming negligence in treating decedent during his struggle with substance abuse, consortium claim of the child conceived but not yet born at the time of the decedent father’s death was entitled to the protection of Section 614.1(9)(b) (extending statute of limitations to the tenth birthday in suits brought on behalf of minor who was under the age of eight). The Court declined to decide whether the discovery rule could extend the deadline for the surviving spouse to file a wrongful death suit because the record established as a matter of law that the spouse knew or should have known of a possible connection between the husband’s death and the doctor’s medical care more than two years before suit was filed.

AHLERS - 56 Jury Instruction Issues – Slip and Fall Alcala v. Marriott International, Inc., 880 N.W.2d 699 (Iowa 2016) Patron at hotel slipped and fell on an icy sidewalk. In a 4-3 decision, the Court holds that when no lay or expert witness testified about any shortcomings in the hotel’s training or what training should have been provided, there was insufficient evidence to support a negligent-training instruction or specification of negligence. Also, jury instruction that essentially adopted plaintiff’s expert’s theory of ASTM standard violations was error. The instruction essentially instructed the jury that an icy sidewalk is substandard, even though the applicable standard does not say that and defendant’s expert testified that the standard did not even apply. Even assuming plaintiff’s expert’s testimony generated a jury question regarding the applicability of the standard, the trial court erred by taking one side and telling the jury the standard was violated by icy conditions. Issues over the “continuing storm doctrine” were directed to be addressed on remand in light of Section 7 of the Restatement (Third) of Torts.

State Liability – Collision With Submerged Dredge Pipe in Public Lake Estate of McFarlin v. State, 881 N.W.2d 51 (Iowa 2016) In this lawsuit against the State after a fatal boating accident on Storm Lake where the driver of the boat struck a submerged dredge pipe, killing a ten-year-old passenger, the Court held that Iowa Code Chapters 461A and 462A do not provide a private right to sue. In a 4-3 ruling on this issue, the Court held that the public-duty doctrine barred the common law claims against the State. Based on this ruling, the Court declined to address statutory immunity issues.

Municipal Housing Code and Negligence Per Se Winger v. CM Holdings, LLC, 881 N.W.2d 433 (Iowa 2016) Guest at apartment complex fell over the railing of a second-floor balcony and died. The railing complied with the municipal housing code in place when the apartment building was built (1968), but was too short to comply with the current municipal housing code. Overruling prior case law, the unanimous court held that negligence per se doctrine applied to the violation of a municipal housing code and was not limited to statewide laws. Trial court correctly rejected landlord’s argument that the old code applied as a matter of law, as the local housing board’s extension of time to comply with the new code merely suspended administrative penalties. It did not excuse tort liability. Trial court erred by instructing the jury that the new code applied as a matter of law. Plaintiff could not use offensive issue preclusion to use the local housing board’s determination of a code violation to establish a violation as a matter of law. On remand, the parties could present evidence on whether prior modifications eliminated grandfather status.

AHLERS - 57 Wrongful Death - Arbitration Clause & Adult Children Consortium Claims Roth v. Evangelical Lutheran Good Samaritan, 886 N.W.2d 601 (Iowa 2016) In the wrongful death context, adult children’s loss of parental consortium claims belong to the children even though they are ordinarily brought by the estate. As a result, adult children’s loss of consortium claims were not required to be submitted to arbitration just because the wrongful death action was.

Negligent Misrepresentation – Supplying Information Dinsdale Construction, LLC v. Lumber Specialties, Ltd., 888 N.W.2d 644 (Iowa 2016) Lumber company that sold building materials and services was sued for negligent misrepresentation after a building collapsed because an employee of the lumber company supplied false information to the builder about the structural integrity of the building under construction. Employee owed no duty to the builder because the lumber company had no pecuniary interest in supplying information and the employee was not acting in an information-giving capacity.

Signature Requirements on Iowa Tort Claims Act Form Segura v. State, 889 N.W.2d 215 (Iowa 2017) Claim under the Iowa Tort Claims Act (ITCA) was denied at trial court level because the claimants did not personally sign the claim form and their attorney who signed on their behalf did not attach a power of attorney showing authority to sign on their behalf. In a 5-2 decision, the Court reversed, finding that administrative regulations promulgated under the ITCA do not define the jurisdictional scope of the “presentment” requirement. A claim is properly presented when it, in writing, discloses the amount of damages claimed and generally describes the legal theories asserted against the State with sufficient specificity to permit the board to investigate the claim.

Punitive Damages for Secretly Recording Conversations Papillon v. Jones, 892 N.W.2d 763 (Iowa 2017) Girlfriend sued boyfriend for a violation of Iowa Code Chapter 808B after boyfriend placed a recording device in the house and recorded his girlfriend’s private conversations without her knowledge when the boyfriend was not a party to the conversations. To establish entitlement to punitive damages under the statute, it must be shown that the violator knew his conduct violated the statute. Even if the boyfriend was not aware that the recording violated the statute, the boyfriend had actual knowledge that his conduct in using the recordings violated the statute when he was served with notice of the first lawsuit alleging violations of the statute. After being so served, the boyfriend allowed a custody evaluator to use the recordings in her evaluation and he kept the recordings on his exhibit list until the morning of the

AHLERS - 58 custody trial. These actions constituted sufficient evidence of use of the recordings after knowledge that doing so violated the statute to support an award of punitive damages.

Duty of Care Upon Release of Sex Offender Gottschalk v. Pomeroy Development, Inc., 893 N.W.2d 579 (Iowa 2017) A person released from the State’s civil commitment unit for sexual offenders and then recommitted to a care center sexually assaulted a resident at the care center. Estate of the victim sued the care center and the State. In a 5-2 decision, the State was granted summary judgment. The State did not owe a duty of care to either the victim or the care center. It was the courts that released the perpetrator, not the State, so there was no special relationship such as to invoke Section 41 of the Restatement (Third) of Torts or any duty to warn. For the same reasons, the State owed no duty to assure that safety protocols were in place to protect the residents of the care center. Since there were no claimed representations made by the State to the victim, Iowa Code Section 669.14(4) did not provide an exception to the immunity granted the State.

WORKER’S COMPENSATION

Failure to Give Notice of Termination of Healing Period Benefits Pettengill v. American Blue Ribbon Holdings, 875 N.W.2d 740 (Iowa App. 2015) Employer did not conduct the requisite investigation before terminating claimant’s benefits, demonstrate it contemporaneously relied on the results of an investigation, or contemporaneously convey to claimant the basis for the termination of healing period benefits. Employer cannot unilaterally decide to terminate benefits without adhering to Iowa Code Section 86.13. Since employer failed to carry its burden, case was remanded to the agency for an award of penalty benefits and a determination of whether healing period benefits were further owed.

Liability for Medical Expenses Ramirez-Trujillo v. Quality Egg, L.L.C., 878 N.W.2d 759 (Iowa 2016) In a 6-1 decision involving an issue of first impression, the Court holds that an employer may establish that the employer is not liable for the cost of medical care an employee received from an authorized medical provider if the employer proves by a preponderance of the evidence that the employee knew or reasonably should have known either that (1) the care was unrelated to the medical condition or conditions upon which the employee’s claim for workers’ compensation benefits is based; or (2) the employer no longer authorized the care the employee received at the time the employee received it.

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401(k) Contributions As Earnings & Healing Period Evenson v. Winnebago Industries, Inc., 881 N.W.2d 360 (Iowa 2016) Employer’s matching contributions to employee’s 401(k) plan are not weekly earnings for purposes of calculating weekly benefits. Abrogating Presthus v. Barco, 531 N.W.2d 476 (Iowa App. 1995), an employee who receives temporary partial disability (TPD) and permanent partial disability (PPD) benefits following a single workplace injury is not paid twice for the same injury.

PTD & PPD Available for Separate Injuries JBS Swift & Co. v. Ochoa, 888 N.W.2d 887 (Iowa 2016) Employee is permitted to collect both permanent partial disability (PPD) benefits and permanent total disability (PTD) benefits at the same time when the employee suffers successive injuries at the same workplace.

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Avoiding Probate like the Plague

2:00 p.m. - 2:45 p.m.

Presented by: Christine Halbrook Bradshaw Fowler Proctor & Fairgrave, PC 801 Grand Ave, Ste 3700 Des Moines, IA 50309 Phone: 515-246-5882

Thursday, September 14, 2017 Avoiding Probate like the Plague

Christine Halbrook [email protected]

Note: This material is designed and intended for general informational purposes only, and is not intended, nor should it be construed or relied upon, as legal advice.

Many clients desire to avoid the probate process and seek guidance on how to accomplish this goal. Sometimes clients inadvertently avoid probate by titling assets in joint tenancy or by designating beneficiaries. Whether your client desires to intentionally avoid probate, or you are dealing with the inadvertent probate avoidance situation, this outline is intended to provide guidance on probate avoidance.

Revocable Trusts

Revocable Trusts are arguably the best intentional way to avoid probate.

Drafting revocable trusts is similar to drafting a will in many respects.

However, Revocable Trusts require work on the client’s (or attorney’s) part to make sure the Trust is properly funded. Below, I will address proper funding of a Revocable Trust and what to do when an asset is inadvertently not funded into the Trust.

When meeting with a client, I explain a person’s assets can be divided into three main categories: the simple, the sticky, and the stubborn. When funding a Revocable Trust, I stress the importance that all “stubborn” assets

1 get retitled (or otherwise directed) to the Revocable Trust. “Sticky” assets may require additional steps on behalf of the Trustee and/or beneficiary, but typically can get directed where they need to go without the necessity of probate. “Simple” assets include assets that are easily transferred (think tangible personal property). Here is a breakdown of the asset types:

I. Simple Assets

a. Require little (or no) paperwork to get where they need to go

b. Think tangible personal property and other various assets without

title

c. Funding them into a Revocable Trust is relatively easy, consider

executing a general Assignment to the Revocable Trust in order to

“move” the assets into the Trust

d. Practice Pointer: Make sure all safe deposit boxes are either

titled in the name of the Trust or list an individual who can have

access to the safe deposit box after the decedent passes

II. Sticky Assets

a. These assets require an extra step (or two) to get them transferred

to the beneficiary and/or Trust

b. Examples of “sticky” assets

i. Life Insurance with a designated beneficiary

ii. Car titles

iii. POD/TOD beneficiary designations

iv. Accounts/assets under $25,000 total

c. Practice Pointer: Make sure the beneficiary designations are

consistent with the desires of the trustor and their estate plan

III. Stubborn Assets

a. These assets will not move without a probate being opened and an

executor appointed

b. Examples of “stubborn” assets

i. Real estate in the decedent’s sole name

ii. Asset(s) which total over $25,000 and therefore cannot use

the Very Small Estate (Iowa Code § 633.356) affidavit

c. Practice Pointer: Even though an asset may seem “stubborn,”

consider providing an indemnification affidavit (the “Pretty Please”

Affidavit) to see if the corporate/financial institution will release

the funds

Helping the client with drafting an effective plan is one thing. Ensuring the client (or assisting the client) with funding the Revocable Trust may be another hurdle. For example, a client may neglect to fully disclose their assets.

There may be other assets the client knows about, but they don’t consider it to be an “asset” for probate avoidance purposes. Therefore, drafting and executing the Revocable Trust is not enough – it needs to be funded and assets need to be reviewed regularly to ensure future assets get directed into the

Revocable Trust as well. Here are some thoughts about funding revocable trusts:

I. Initial Meeting – ask the client

a. What assets they own

b. The title on those assets

c. Identify the assets the need to be transferred to the trust

d. Identify which documents must be prepared to transfer the asset

into the trust

e. Identify assets that have designated beneficiaries and make sure

those designations comport with the estate plan

f. Identify which party (attorney or client) is responsible for the

transfer

II. Primary Residence or other real estate

a. Have clients sign Quit Claim Deed transferring title into their

Revocable Trusts, but hold the deed in the file until they provide

confirmation their Revocable Trust(s) have been added as an

“additional insured” or “co-insured” on their homeowner’s policy

b. Also consider having Revocable Trust(s) added as an “additional

insured” on an umbrella policy

c. Once confirmation the Revocable Trust(s) have been added to the

insurance policies as co-insured, file the deed

d. Practice Pointer: Check the mortgage (if any) held on the

property being transferred into the Revocable Trust to make sure

the transfer will not trigger a “due on sale” clause. May also

require consent from a bank before transferring.

e. Leases may be assignable to the Trust if the terms of the lease

provide for such assignment or you get consent from the other

parties

III. Bank Accounts, brokerage accounts, and/or certificates of deposit

a. Either change the title on the accounts to the Revocable Trust(s),

or add Revocable Trust as POD/TOD beneficiary

b. Practice Pointer: Changing the title of an account held at a credit

union into a Revocable Trust’s name can be difficult as credit

unions often require their account holders to be individuals.

Consider adding the Trust(s) as a POD designated beneficiary

IV. US Savings Bonds

a. Savings bond should be transferred into the Trust by completing a

Request to Reissue United States Savings Bonds to a Personal

Trust (form available online)

b. Once completed, the client should have his or her signature

guaranteed and then send in the application, with the original

bonds, to the Treasury Department for processing

V. Safe Deposit Box

a. Change the title into the name of the Trust or add a party to the

lease agreement who is permitted to gain access to the safe deposit

box after the death of the owner

b. May also be able to get access after testator’s death under Iowa

Code § 524.810A(1)(e) by providing a certification of trust which

certifies that trust property is “reasonably believed” to be in the

safe deposit box

VI. Cars

a. Typically not re-titled into the name of the Trust

b. Can be transferred after death via affidavit

i. Forms can be found on Iowa DOT’s website

VII. Tangible Personal Property

a. Household goods, furniture, and personal effects

i. Typically deemed jointly owned with spouse or pass to

children via pour-over will (or via list)

b. Jewelry, works of art, stamp and coin collection

i. May re-title in the name of the Trust via an Assignment or

Bill of Sale

ii. Hold them in a safe deposit box titled in the name of the

Trust

iii. Make sure you add the Trust on as a co-insured or

additional insured on an insurance policy which insures

these items

VIII. Farm Equipment and Livestock

a. May transfer this to a Trust via Bill of Sale and include an exhibit

itemizing the property

IX. Business Interests

a. Sole proprietorship

i. Prepare an assignment of the assets of the business to the

trust

b. Closely held corporation

i. Prepare an assignment to the trust and have the certificate

reissued

ii. Practice Pointer: review all minutes, shareholder

agreements, bylaws, and any buy-sell agreements to make

sure you aren’t triggering a buyout of the shareholder’s

shares by transferring them to the trust

c. Professional Corporation

i. Restrictions prevent a Trust from owning the shares – so

payouts should be addressed in the bylaws of the

corporation

d. Partnership Interest

i. Review partnership agreement to determine restrictions on

transfers

e. Limited liability company

i. Review operating agreement to determine restrictions on

transfer to a revocable trust

f. Practice Pointer: Include exceptions in your bylaws, operating

agreements, shareholder agreements, buy-sell agreements that a

transfer from a shareholder to a revocable trust, owned solely by

the shareholder, is not an event that triggers a forced sale.

X. Retirement Accounts

a. Title should remain in the name of the individual, but beneficiary

designations should be reviewed closely

b. Can have a trust as a designated beneficiary, however, you will

want to make sure the trust is drafted so as to permit a stretch

payout of the retirement policy (e.g. a conduit trust)

XI. Life Insurance

a. Typically not transferred into the name of the revocable trust, but

beneficiary designations should also be reviewed

Unintentional Probate Avoidance

While many clients desire to avoid probate, some clients achieve it in a way they did not intend. For example – the client inadvertently adds a child on the account as a joint owner as opposed to a power of attorney because it is

“easier.” Or a client forgets to update beneficiary designation, and that asset distributes in a manner inconsistent with their estate plan. Reviewing the client’s assets, and any such co-owners or designated beneficiaries, will help to avoid the unintentional probate avoidance scenario.

Forgotten Asset

It happens. A client tries, as best as they can, to avoid probate. And then, after a client passes, some “stubborn” asset appears which blows the whole thing to pieces. Not to mention the glares you receive from the beneficiaries when they realize the extra steps they must now take to get the

8 assets transferred to the beneficiaries. So now what? Here are a few things to consider:

I. “Pretty Please” affidavit

a. Provide a “Pretty Please” affidavit to see if they will release the

asset(s) in exchange for providing them with a gracious indemnity

clause

II. Ignore it

a. Depending on the size and type of the asset, this may be a viable

option. Eventually it could end up at the Great Iowa Treasure

Hunt.

Avoiding probate seems to be on everyone’s minds these days. Careful review of your client’s assets, coupled with a very thorough funding strategy, can help your client achieve their goal of avoiding probate. A well drafted, and appropriately funded, Revocable Trust can help your client achieve their estate planning goals.

Labor and Employment Issue (Employee Angle)

3:00 p.m. - 3:30 p.m.

Presented by: Whitney Judkins Fiedler & Timmer, P.L.L.C. 8831 Windsor Parkway Johnston, IA 50131 Telephone: (515) 254-1999

Thursday, September 14, 2017

LABOR AND EMPLOYMENT ISSUES Employment Law 101

Whitney Judkins Fiedler & Timmer, P.L.L.C. 8831 Windsor Parkway Johnston, IA 50131 Telephone: (515) 254-1999 Fax: (515) 254-9923 [email protected]

I. DISCRIMINATION/HARASSMENT CLAIMS

A. LEGAL PROCEDURES

Iowa Civil Rights Commission (ICRC)/Equal Employment Opportunity Commission (EEOC) • Deadline to file is 300 days from the last act of discrimination/retaliation o Last Act = Tread carefully (file well within the limits) • File complaint with the ICRC (which cross-files with the EEOC) o https://icrc.iowa.gov/file-complaint • ICRC’s screening decision does not affect ability to bring case in state or federal court • Have 90 days to file lawsuit after requesting Right to Sue

Difference in laws State (Iowa Civil Rights Act – Iowa Code Ch. 216) • Individual liability under the Iowa Civil Rights Act (ICRA) • No punitive damages under the ICRA • Protected Classes: sex/gender, race, color, age, disability, national origin, religion, sexual orientation, gender identity

Federal (Title VII of the Civil Rights Act of 1964) • No individual liability under Title VII • Punitive Damages – capped based on number of employees • Protected Classes: same as ICRA, though sexual orientation and gender identity are not explicitly included. However, the EEOC interprets Title VII’s sex discrimination provision as prohibiting discrimination against employees on the basis of their sexual orientation and gender identity. • Something to consider when deciding what claims to bring: Federal Court is often not employee-friendly (more cases tend to be dismissed on MSJ) o E.g. Abdel-Ghani v. Target Corp. (8th Cir. 2017) Plaintiff, a Palestinian immigrant, was “called … names like camel jockey, 1 Muslim, Arab, terrorist, and sand nigger, often from behind shelves in the employee backroom.” “He also claimed to have overheard another employee say ‘[y]ou should be rounded up in one place and nuke[d].’”

No hostile work environment because “[s]ome of the approximately ten comments Abdel-Ghani heard in Target’s backroom may have been ‘morally repulsive,’ but they were not physically threatening.” And, “[t]he one physically threatening comment he overheard (referencing being nuked) was not said directly to him.”

His supervisor once told him to “go back home” and “go back to [his] country,” but that was insufficient to show national origin discrimination because “the one statement she made about how Abdel-Ghani should go back home was ‘facially neutral as to national origin’ and therefore did not ‘demonstrate animus on [her] part.’”

B. HARASSMENT/“HOSTILE WORK ENVIRONMENT”

Legal Standard for Coworker Harassment (Employer’s Negligence)1

1. Plaintiff was subjected to offensive conduct; 2. The conduct was unwelcome; 3. The conduct was based on the plaintiff’s (sex/gender, race, age, disability, religion, national origin, etc.); 4. The conduct was sufficiently severe or pervasive that a reasonable person in the plaintiff’s position would find the work environment to be hostile; 5. At the time the conduct occurred and as a result of the conduct, the plaintiff believed the work environment was hostile; 6. The defendant knew or should have known of the conduct; 7. The defendant failed to take prompt and appropriate corrective action to end the harassment.

Legal Standard for Supervisor Harassment Where There Was Tangible Employment Action

“An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 745 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 777 (1998). The rule set out by these United States Supreme Court cases presumes that employers are to blame when their supervisors create a sexually hostile work environment. Alverio v. Sam’s Warehouse Club, 9 F. Supp. 2d 955, 960 (N.D.Ill. 1998).

1 You can also bring a direct negligence claim against an employer for supervisor harassment; the same elements apply and you still have to prove the employer failed to take prompt and appropriate corrective action. See Haskenhoff v. Homeland Energy Solutions, LLC, 2017 WL 2705389, *9 (Iowa 2017). 2

“Tangible employment action” can be something that affects Plaintiff financially:

Termination Constructive Discharge Demotion Suspension Discipline

Tangible employment action can also be an action that does not affect the Plaintiff financially (e.g. changing an employee’s hours to a schedule you know doesn’t work for her because of childcare arrangements)

Reasoning – only the employer itself can cause such things. It’s fair to hold employers automatically accountable for harassment when it results in the supervisor using his/her power like this.

Where the harassment results in a tangible employment action, the employer does not have recourse to the affirmative defense.

Legal Standard for Supervisor Harassment Where There Was No Tangible Employment Action

1. Plaintiff was subjected to offensive conduct from a supervisor; 2. Such conduct was unwelcome; 3. Such conduct was based on Plaintiff’s (sex/gender, race, age, disability, religion, national origin, etc.); 4. Such conduct was sufficiently severe or pervasive that a reasonable person in plaintiff’s position would find her work environment to be hostile or abusive; and 5. At the time such conduct occurred and as a result of such conduct, plaintiff believed her/his work environment to be hostile or abusive.

Then, Defendant must prove BOTH elements of an affirmative defense:

(a) the employer exercised reasonable care to prevent and correct promptly any illegal harassing behavior, and (b) the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm otherwise.” Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765.

C. DISCRIMINATION

1. Defendant takes adverse action against Plaintiff; and 2. Plaintiff’s (sex/gender, race, age, religion, national origin, etc.)2 was a motivating factor in the decision to take the action. Channon v. United Parcel Serv., Inc., 629 N.W.2d 835, 861 (Iowa 2001).

D. UNEQUAL PAY

• Federal law: o Equal Pay Act (29 U.S.C. § 206(d)) ▪ Covers unequal pay on the basis of sex o Title VII (discrimination) ▪ Covers unequal pay on the basis of all classes protected under Title VII (see above) o The standards of the EPA apply whether the suit alleges a violation of the EPA or Title VII. McKee v. Bi-State Dev. Agency, 801 F.2d 1014, 1019 (8th Cir. 2986). o Any violation of the EPA is automatically a violation of Title VII. 29 C.F.R. § 1620.27. • State law: o Iowa Civil Rights Act ▪ Covers unequal pay on the basis of all classes protected under the ICRA (see above) o ICRA Mirrors the EPA

Elements of the claim:

1. Higher wages were paid to employee(s) outside of Plaintiff’s protected class; 2. Plaintiff performed equal work requiring substantially similar skill, effort, and responsibility; 3. The work was performed under similar working conditions

A plaintiff need not demonstrate that her/his job is “identical” to a higher paid position, but only that it is “substantially equal” to the higher paid position.

The EPA and ICRA are strict liability statutes and do not require plaintiffs to prove that an employer acted with discriminatory intent; plaintiffs need show only that an employer pays males more than females, for example.

Defendant’s Affirmative Defense:

Once Plaintiff has proven her/his prima facie case, Defendant must establish a statutory defense by the preponderance of the evidence: .

2 Disability discrimination is a bit more complicated – see below. 4

To avoid liability, an employer must prove that any pay disparity is justified by: (1) a seniority system; (2) a merit system; (3) a pay system based on quantity or quality of output; or (4) a disparity based on any other factor other than sex.”

E. DISABILITY DISCRIMINATION

Basics of the Americans with Disabilities Act

The ADA prohibits discrimination in employment based on disability. This includes discrimination in hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits and any other term or condition of employment. 42 U.S.C. § 12112. The ADA also prohibits harassment of a person based upon disability.

The ADA applies to employers with 15 or more employees for 20 calendar weeks this year or last year. 42 U.S.C. § 12111(5).

Not everyone with a medical condition is protected by the ADA. In order to be protected, a person must be qualified for the job and have a “disability” as defined by the law. A person may be disabled if: (1) he has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing or learning); (2) he has a history of a disability (such as cancer that is in remission); or (3) the employer believes he has a physical or mental impairment that is not transitory and minor even if he does not have such an impairment. 42 U.S.C. § 12102. The ADA also protects an employee from discrimination based on his relationship with a person with a disability even if he does not personally have a disability. 42 U.S.C. § 12112(b)(4).

The ADA requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer (“undue hardship”). 42 U.S.C. § 12112(b)(5). A reasonable accommodation is any change in the work environment to help a person with a disability apply for a job, perform the duties of a job, or employ the benefits and privileges of employment. 42 U.S.C. § 12111(9). Reasonable accommodation might include, for example, making the workplace accessible for wheelchair users or providing a reader for someone who is blind. 42 U.S.C. § 12111(9). An employer does not have to provide an accommodation if doing so would cause it undue hardship. Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer’s size, financial resources and the needs of the business. 42 U.S.C. § 12111(10). An employer may not refuse to provide an accommodation just because it involves some cost. An employer does not have to provide the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to provide.

The ADA Amendments of 2008 (ADAAA)

“Thanks to the newly enacted amendments, the ADA’s focus can return to where it should be –the question of whether the discrimination occurred, not whether the person with a disability is eligible 5 in the first place.” Statement of Sen. Maj. Leader Reid, 154 Cong. Rec. at S9626.

The ADAAA was enacted on September 25, 2008, and became effective on January 1, 2009. The ADAAA was a victory for persons with disabilities and a rebuke to several Supreme Court decisions. See 42 U.S.C. § 12101.

The ADAAA did not change the ADA’s definition of a disability. The basic three-part ADA definition is retained: a physical or mental impairment that substantially limits one or more major life activities; a record of such an impairment; or being regarded as having such an impairment. 42 U.S.C. § 12102(1). However the meaning of these terms has significantly changed from how the Supreme Court had interpreted them:

• To be considered “substantially limiting,” an impairment need not prevent, or significantly or severely restrict, performance of a major life activity. 74 Fed. Reg. 48,440 (Sept. 23, 2009).

• Disability “shall be construed in favor of broad coverage” and “should not require extensive analysis.” 42 U.S.C. § 12102(4)(A).

• An individual’s ability to perform a major life activity is compared to “most people in the general population,” often using a common-sense analysis without scientific or medical evidence. 74 Fed. Reg. 48,440 (Sept. 23, 2009).

• An impairment need not substantially limit more than one major activity. 42 U.S.C. § 12102 (4)(C).

Major life activities (MLAs) include “major bodily functions” such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, circulatory, respiratory, endocrine, hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary, and cardiovascular systems, and reproductive functions. 42 U.S.C. § 12102(2)(B). MLAs also include: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, sitting, reaching, interacting with others, and working. 42 U.S.C. § 12102(2)(A).

The positive effects of mitigating measures (except for ordinary eyeglasses and contact lenses) are not considered in determining whether an impairment is substantially limiting. 42 U.S.C. § 12101(4)(E). Examples of mitigating measures include medication, medical equipment and devices, prosthetics, hearing aids, cochlear implants and other implantable hearing devices, low vision devices, mobility devices, oxygen therapy, use of assistive technology, reasonable accommodations and auxiliary aids or services, behavioral or neurological modifications, and surgical interventions that do not permanently eliminate an impairment. 42 U.S.C. § 12102(4)(E).

The ADAAA replaced the concept of “type of work” with “class” or “broad range” of jobs. A type of work may be identified by the nature of the work (e.g. commercial truck driving, assembly line jobs, food service jobs, clerical jobs or law enforcement jobs). A type of work may also be defined by reference to job-related requirements (e.g. jobs requiring repetitive bending, reaching or 6 manual tasks, jobs requiring frequent or heavy lifting, and jobs requiring prolonged sitting or standing). 74 Fed. Reg. 48,447 – 48,448 (Sept. 23, 2009).

An employer regards an individual as having a disability if it takes a prohibited action based on an actual or perceived impairment that is not transitory (lasting or expected to last for six months or less) and minor. 42 U.S.C. § 12012(3). (Example: Taking an adverse employment action based on a sprained wrist or and broken leg expected to heal normally does not amount to regarding an individual as having a disability because these impairments are transitory and minor. Taking an adverse action based on carpal tunnel syndrome or Hepatitis C, or on a 2-day virus that an employer perceived to be heart disease, would amount to regarding an individual as having a disability). 74 Fed. Reg. 48,443 (Sept. 23, 2009).

Reasonable accommodations are not available to someone only covered under the “regarded as” prong of the definitions of disability.” 74 Fed. Reg. 48,432 (Sept. 23, 2009).

Under the ICRA:

The ICRA defines a “disability” as “the physical or mental condition of a person which constitutes a substantial disability.” Iowa Code § 216.2(5). The Iowa Administrative Code elaborates: a disability3 is a “physical or mental impairment that substantially limits one or more major life activities.” Iowa Admin. Code r. 161-8.26(1).

“Major life activities” include functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Iowa Admin. Code r. 161-8.26(1)(3). A person is “substantially limited” in a “major life activity” if the person is unable to perform a major life activity that the average person in the general population can perform, or is significantly restricted as to the condition, manner or duration under which that person can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform the same major life activity. Goodpaster v. Schwan’s Home Serv., Inc., 849 N.W.2d 1, 9-13 (Iowa 2014); Fuller v. Iowa Dep’t of Human Serv., 576 N.W.2d 324, 328 (Iowa 1998); Coleman v. Swift & Co., 2000 WL 278824, at *3 (Iowa Ct. App.).

Iowa law makes it clear that someone remains disabled if he “has a record of such an impairment [that substantially affects a major life activity], or is regarded as having such an impairment.” Iowa Admin. Code r. 161-8.26(1). “The term ‘has a record of such an impairment’ means has a history of . . . a mental or physical impairment that substantially limits one or more major life activities.” Iowa Admin. Code r. 161-8.26(4) (emphasis added).

The Iowa Supreme Court’s recent employment law jurisprudence leaves no doubt that it will interpret the ICRA as broadly as possible. See Pippen v. State, 854 N.W.2d 1, 28 (Iowa 2014); Palmer, Coll. of Chiropractic v. Davenport Civil Rights Comm’n, 850 N.W.2d 326, 333 (Iowa 2014); Goodpaster, 849 N.W.2d at 5, 7; DeBoom v. Raining Rose, Inc., 772 N.W.2d 1, 8 (Iowa 2009). This is faithful to the text of the law itself, which instructs that it must be “construed broadly to effectuate its purposes.” Iowa

3 Although the Iowa Administrative Code uses the outdated term “handicapped,” rather than “disabled,” the Goodpaster Court held this is “the relevant definition of those persons covered by the ICRA.” Goodpaster, 849 N.W.2d at 6 n.1. 7 Code § 216.18(1). The Iowa Supreme Court has noted that courts must be “guided by the broad reach early interpretations gave the [ICRA].” Goodpaster, 849 N.W.2d at 11. It relied on this language in adopting “broad definitions to eliminate employment discrimination.” Goodpaster, 849 N.W.2d at 10.

Iowa courts may look to interpretation of federal laws prohibiting disability discrimination for guidance in analyzing disability discrimination claims under the ICRA, though “[f]ederal law does not necessarily control our interpretation of a state statute.” Goodpaster, 849 N.W.2d at 9-10. Federal case law and regulations may help guide the analysis, but the Iowa Supreme Court has made it clear that courts must first be guided by the ICRA’s instruction that it is to be construed broadly to effectuate its purpose of eradicating discrimination. Id.; Palmer, 850 N.W.2d at 333. To achieve that end, Iowa’s appellate courts have adopted broad definitions that aid in the elimination of employment discrimination. Goodpaster, 849 N.W.2d at 10.

Elements of the claims:

Actual Disability: 1) Plaintiff suffered from an impairment 2) Plaintiff’s impairment substantially limited one or more major life activities 3) Defendant took adverse action against Plaintiff 4) Plaintiff could perform the essential functions of his/her job with or without reasonable accommodation 5) Plaintiff’s disability was a motivating factor in Defendant’s decision to take adverse action

Failure to Accommodate: 1) Plaintiff had an impairment 2) Plaintiff’s impairment substantially limited one or more major life activities 3) Defendant knew about Plaintiff’s impairment 4) Plaintiff could have performed the essential functions of his/her job at the time Defendant took adverse action if Plaintiff had been provided with accommodation(s) 5) Providing the accommodation(s) would have been reasonable 6) Defendants failed to provide any reasonable accommodation

* The duty to engage in an interactive process to identify a potential reasonable accommodation is triggered when an employee communicates to his employer his impairment and his desire for an accommodation, or when the employer has enough information to know that the employee may have a disability that requires an accommodation.

Regarded/Perceived as Disabled: 1) Defendant knew or believed Plaintiff had an impairment 2) Defendant took adverse action against Plaintiff 3) Plaintiff could have performed the essential functions of his/her job at the time Defendant took the adverse action 4) Defendant’s belief regarding Plaintiff’s impairment was a motivating factor in the decision to take the action

F. RETALIATION 8

• Iowa law makes it illegal to “discriminate or retaliate against another person in any of the rights protected against discrimination by this chapter because such person has lawfully opposed any practice forbidden under this chapter . . . or has filed a complaint . . .” IOWA CODE § 216.11.

• The Iowa Supreme Court has always defined an “adverse employment action” very broadly. It has cited examples as diverse as demotions, terminations, unjustified evaluations and reports, loss of normal work assignments, and extensions of a probationary period. Channon v. United Parcel Serv., Inc., 629 N.W.2d 835, 863 (Iowa 2001). An adverse employment action can exist “even without loss of money or benefits.” Id. Harassment, ridicule, constructive demotion, and lack of support in the face of open hostility are all actionable retaliation. Id. at 863-65.

• In 2006, the United States Supreme Court expanded the definition of actionable retaliation in Title VII cases. See Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). The Court held that Title VII protects employees from any retaliation that produces an injury or harm. Id. at 67. Retaliation includes anything that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. at 68.

• Like Title VII’s retaliation provision, the ICRA’s retaliation provision prohibits “discrimination or retaliation” and does not require the adverse action to rise to the level of affecting the terms and conditions of employment. See IOWA CODE § 216.11(2). Iowa appellate courts often look to the analysis of federal courts examining Title VII to help interpret the Iowa Civil Rights Act. Hulme v. Barrett, 449 N.W.2d 629, 631 (Iowa 1989). Thus, the reasonable worker’s perspective should be utilized to analyze Plaintiff’s retaliation claim under state law. Under this standard, a wide variety of conduct has been held to be retaliatory adverse employment action;4 including undesirable work assignments, (White, 548 U.S. at 70-71), denial of a requested accommodation, (Little v. Nat’l Broadcasting Co., 210 F. Supp. 2d 330, 384 (S.D.N.Y. 2002)), and disciplinary write-ups (Dar Dar v. Associated Outdoor Club, Inc., 201 Fed Appx. 718, 723 n.3 (11th Cir. 2006); Rivera v. Coll. of DuPage, 445 F. Supp. 2d 924, 926 (N.D. Ill. 2006)).

Elements of the claim:

o 1) The plaintiff engaged in protected activity ▪ Protected activity = complained about or opposed harassment or discrimination based on some protected characteristic o 2) The employer took adverse action against the plaintiff o 3) There was a causal connection between the protected activity and the adverse action

Causation Standards:

4 The Equal Employment Opportunity Commission takes the position that retaliation can also include such things as threats, reprimands, harassment, or other adverse treatment. E.E.O.C. Compliance Manual § 8-II(D)(1). 9

o ICRA: “Motivating Factor” = the protected activity played a part in the adverse action o Title VII: “But-for” = The adverse action would not have occurred but for the protected activity. “But-for” does not require that the plaintiff’s complaint or opposition was the only reason for the materially adverse employment action taken by a defendant

“Opposition” goes well beyond making complaints of harassment or discrimination and should be interpreted broadly. Crawford v. Metropolitan Gov’t of Nashville & Davidson County, 555 U.S. 271, 275 (2009). Examples: • Opposition can mean simply standing pat, having an opinion, or expressing disagreement. Crawford, 555 U.S. at 276, 278. • Refusing to submit to a sexual advance is “opposition” and, therefore, protected activity. See, e.g., Van Horn v. Specialized Support Services, Inc., 241 F. Supp. 2d 994, 1012-13 (S.D. Iowa 2003); Little v. National Broadcasting Co., Inc., 210 F. Supp. 2d 330, 385-86 (S.D.N.Y. 2002); Black v. City & County of Honolulu, 112 F. Supp. 2d 1041, 1049 (D. Haw. 2000); Armbruster v. Epstein, 1996 W.L 289991 (E.D. Pa. 1996); Burrell v. City Univ. of New York, 894 F. Supp. 750, 761 (S.D.N.Y. 1995); Boyd v. James S. Hayes Living Health Care Agency, Inc., 671 F. Supp. 1155, 1167 (W.D. Tenn. 1987); Farrell v. Planters Lifesavers Co., 22 F. Supp. 2d 372, 392 (D.N.J. 1998); Fleming v. South Carolina Dep’t of Corrections, 952 F. Supp. 283 (D.S.C. 1996). • Yelling loudly in response to perceived discrimination can constitute protected activity. Hertz v. Luzenac America, Inc., 370 F.3d 1014, 1021-22 (10th Cir. 2004).

II. NURSING DISCRIMINATION (aka Patient Protection and Affordable Care Act, 29 U.S.C. § 4207)

REASONABLE BREAK TIME FOR NURSING MOTHERS.

Section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207) is amended by adding at the end the following: ‘‘(r)(1) An employer shall provide— ‘‘(A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk; and ‘‘(B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

10 ‘‘(2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose. ‘‘(3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business. ‘‘(4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection.’’

*Note that this only applies to hourly employees, not salaried. Of course, it is in everyone’s best interest that employers provide all nursing mothers with time a privacy to pump, regardless of their exemption status under the FLSA.

III. FAMILY MEDICAL LEAVE ACT

The Family & Medical Leave Act applies to employers with 50 or more employees either at the location where the employee works or within 75 miles of that location.

The FMLA applies to employees who have been with the employer at least 12 months and who have worked at least 1,250 hours in the 12 months prior to the need for FMLA leave. That’s an average of just over 24 hours per week.

An eligible employee is entitled to up to 12 weeks leave because of their own serious health condition, having a new baby (either biological or adopted), or to care for an immediate family member (spouse, child, or parent)5 with a serious health condition.

A “serious health condition” is any illness, injury impairment that involves either inpatient care or “continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). The regulations further explain that the latter situation is satisfied with:

(a) at least three days of incapacity from regular daily activities such as work or school; and continuing medical treatment; or

(b) continuing medical treatment “for a chronic or long-term health condition that is incurable or so serious that, if not treated, would likely result” in at least a three-day period of incapacity. 29 C.F.R. § 825.114(a).

“Continuing treatment” involves at least two visits to the health care provider or else one visit, followed by a regimen of treatment, such as medication. 29 C.F.R. § 825.114(b).

5 Child is defined as (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability. 29 U.S.C. § 2611(12); see also Navarro v. Pfizer Corp., 261 F.3d 90, 95-96 (1st Cir. 2001). Employee can take leave to care for child when standing in loco parentis for the child, or for a “parent” when that person is not the biological or adoptive parent but previously stood in loco parentis for the employee when the employee was a child. 11

The serious health condition can be that of the employee or the employee’s spouse, son, daughter, or parent. 29 U.S.C. § 2612(a)(1)(C).

The normal limitations period for bringing an action is two years. However, if the violation is “willful,” the limitations period is extended to three years. To allege a willful violation, a plaintiff must prove the employer knew its actions were illegal or showed reckless disregard for whether its conduct was prohibited by the FMLA.

There are three “types” of claims under the FMLA: 1) “Interference” or “Entitlement”: when an employer refuses to authorize leave under the FMLA or takes other action to avoid responsibilities under the FMLA (e.g. discipline or fire someone for absences that were protected by the FMLA) a. This type of claim (unlike the others), only requires proof that the employer denied the employee entitlements under the FMLA and does not require proof of any discriminatory intent. That means an employee just has to show that he/she was entitled to a benefit that was denied. 2) “Retaliation”: when an employee opposes a practice that is unlawful under the FMLA and the employer takes adverse action against the employee because of the employee’s opposition 3) “Discrimination”: when an employer takes adverse action against an employee because the employee exercises rights to which he is entitled under the FMLA

IV. WORKERS’ COMPENSATION RETALIATION

Iowa has recognized an exception to the at-will employment doctrine in the tort of wrongful discharge in violation of public policy. See Fitzgerald v. Salsbury Chemical, Inc., 613 N.W.2d 275, 281 (Iowa 2000).

The Supreme Court of Iowa has recognized that when an employee is terminated in retaliation for asserting her right to workers' compensation benefits, a public policy is violated. Below v. Skarr, 569 N.W.2d 510, 511 (Iowa 1997); Springer v. Weeks & Leo Co., 429 N.W.2d 558, 559-60 (Iowa 1988).

To succeed on a wrongful termination in violation of public policy claim, Plaintiff must prove that he/she engaged in a protected activity, that he/she suffered an adverse employment action, and that a causal connection exists between the protected activity and the adverse employment action. Fitzgerald, 613 N.W.2d at 281 (citing Teachout v. Forest City Cmty. Sch. Dist., 584 N.W.2d 296, 299 (Iowa 1998)).

The causation standard in these cases is “a determining factor.” Smith v. Smithway Motor Xpress, Inc., 464 N.W.2d 682, 686 (Iowa 1991). A determining factor need not be the main reason behind the decision. It need only be the reason which “tips the scales decisively” one way or the other. Id.

12 V. DAMAGES

a. Harassment/Discrimination/Retaliation Lost Wages and Benefits, Emotional Distress Damages, Punitive Damages (in Federal Court only), Attorneys’ Fees and Expenses (to prevailing plaintiff), Equitable Relief

b. Unequal Pay Same as Harassment/Discrimination/Retaliation, except Lost Wages and Benefits are liquidated under ICRA and tripled if you prove willfulness

b. FMLAs Lost Wages and Benefits (liquidated unless employer proves that the FMLA violation was in good faith and the employer had reasonable grounds for believing the act or omission was not a violation), Attorneys’ Fees and Expenses (to prevailing plaintiff), Equitable Relief

c. Workers’ Compensation Retaliation Lost Wages and Benefits, Emotional Distress Damages, Punitive Damages

Labor and Employment Issues Representing/Advising Employers in Labor and Employment Issues

3:30 p.m. - 4:00 p.m.

Presented by: Bridget Penick Fredrikson & Byron, P.A. 505 E Grand Ave, Suite 200 Des Moines, IA 50309 Phone: 515-242-8902

Thursday, September 14, 2017

REPRESENTING/ADVISING EMPLOYERS IN LABOR AND EMPLOYMENT ISSUES

Bridget R. Penick, Esq. Fredrikson & Byron, P.A. [email protected] 515.242.8902

Employment At Will

• Default rule: employment at will • Exceptions: – Contracts(individual or CBA) • Handbook disclaimers! – Public policy exceptions – Statutory rights

1 Iowa Civil Rights Act • Protected classes: age, race, creed, color, sex, sexual orientation, gender identity, national origin, religion or disability • 4 or more employees (excluding family) • Prohibits discrimination, harassment, retaliation • Agency – Iowa Civil Rights Commission

Iowa Civil Rights Act (cont’d)

• Up to 8 weeks of leave required for pregnancy-related disabilities • Age discrimination-age 18 & up • Transgender employees must be permitted to use whichever restroom matches the gender with which they identify

2 Title VII, ADA, GINA

• Federal discrimination statutes • race, color, religion, national origin, sex (including pregnancy), disability, or genetic information. • 15 or more employees • Agency – EEOC

Sexual Orientation/Gender Identity • In 2012, EEOC included coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions as “top enforcement priority” even through not explicitly covered under Title VII • Courts have recognized both discrimination and harassment claims based on sexual orientation and gender identity • 2014 EEOC decision: Discrimination against transgendered people=sex discrimination

3 ADEA

• Federal age discrimination statute • Protects employees age 40 & over • 20 or more employees • Discrimination and harassment • Agency – EEOC

EQUAL PAY ACT

• EPA – Equal Pay Act • Employers may not pay unequal wages to men and women who perform jobs that require substantially equal skill, effort and responsibility under similar working conditions • Agency – EEOC

4 FLSA

• FLSA – Fair Labor Standards Act • Nonexempt employees entitled to overtime if work > 40 hours/week • Exempt employees must meet both salary and duties test. • New regulations on hold. • Agency - DOL

Iowa General Employment Laws

• Iowa wage and hour laws, whistleblower laws, IOSHA, and other state employment standards • 1 or more employees • Agency – Iowa Workforce Development Division of Labor

5 IOWA EPA, WPCL

• IEPA – Iowa Equal Pay Act (ICRA) – Agency—Iowa Civil Rights Commission

• WPCL – Wage Payment Collection Law – Agency – Iowa Workforce Development – $7.25 minimum wage – Cannot withhold from paychecks unless written authorization /for the benefit of the employee

FMLA • 12 weeks of unpaid leave from work for acceptable medical reasons • 26 weeks for covered servicemembers • 50 or more employees within 75 miles • Detailed notice requirements/deadlines • Agency – DOL, W&HD • No Iowa version of this statute

6 USERRA/Military Leave

• Discrimination statute protecting service member rights and benefits • All employers, regardless of size • Agency – VETS (Veterans' Employment and Training Service) • Iowa law: Iowa Code § 29A.43

WARN (Federal and Iowa) • Notice requirements for companies undergoing plant closing or mass layoff – 100+ employees/50+ employees affected • Agency – ETA • Iowa Layoff Notification Law – 25+ employees/25+ employees affected

7 IOWA DRUG TESTING LAW • Iowa Code 730.5- must have written policy with uniform consequences. • Types of permissible drug testing: – Pre-employment testing – Unannounced random testing – Reasonable suspicion testing – Post-accident testing – Testing during drug or alcohol rehab – Testing required by federal law

NLRA • All private sector employees have Section 7 right to engage in concerted activity for mutual aid/protection. • Prohibits interference and retaliation • Applies to union and nonunion employers • Agency: National Labor Relations Board

8 NLRB EMPLOYEE HANDBOOKS/POLICIES: NLRB has stricken very common policies – Confidentiality – Non-disparagement/No gossip – Positive Reflection on Company – Social Media – At-will Disclaimers

NLRB Strikes Confidentiality Rule • Fresh & Easy Neighborhood Market (July 2014) • Code of Business Conduct, Confidentiality and Data Protection Rule: "Keep customer and employee information secure. Information must be used fairly, lawfully and only for the purpose for which it was obtained."

9 NLRB Strikes Confidentiality Rule • Fresh & Easy Neighborhood Market • ALJ found no violation of Section 7 because it is merely a list of dos and don'ts regarding business ethical conduct. When considered as a whole, the policy would reasonably be understood to prohibit dissemination of confidential information UNRELATED to Section 7 rights.

NLRB Strikes Confidentiality Rule • Fresh & Easy Neighborhood Market • NLRB reversed ALJ, found CDP unlawful: • Employees would reasonably construe the rule to apply to all employee information and that it prohibits them from discussing or disclosing information about wages or terms and conditions of employment

10 NLRB Strikes Confidentiality Rule • Fresh & Easy Neighborhood Market • NLRB reversed ALJ, found CDP unlawful: • The Code is not limited to business ethics matters; it also discusses work duties and discipline for employees who do not comply.

NLRB Strikes No Gossip/No Negativity Rule • Hills & Dales General Hospital (April 2014) • Values and Standards of Behavior Policy: "We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.”

11 NLRB Strikes No Gossip/No Negativity Rule • Hills & Dales General Hospital • Values and Standards of Behavior Policy: “We will represent Hills & Dales in the community in a positive and professional manner in every opportunity.”

NLRB Strikes No Gossip/No Negativity Rule • Hills & Dales General Hospital • Values and Standards of Behavior Policy: “We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating."

12 NLRB Strikes No Gossip/No Negativity Rule • Hills & Dales General Hospital • Employees disciplined for posting negative Facebook comments about the hospital. • Unfair Labor Practice Charge filed alleging rules unlawfully interfere with Section 7 Rights

NLRB Strikes No Gossip/No Negativity Rule • Hills & Dales General Hospital • NLRB has held rules are unlawful which explicitly restrict Section 7 rights • Or when ambiguous about their application to Section 7 activity and contain no limiting language that make it clear to employees that they do not restrict Section 7 rights.

13 NLRB Strikes No Gossip/No Negativity Rule • Hills & Dales General Hospital • Hospital argued could only be unlawful if linked to Section 7 Activity • NLRB found these rules unlawful because “overly broad and ambiguous by its terms” and no saving language • Appealed to D.C. Circuit; settled 2015.

NLRB Strike/Upholds Social Media Rules • Triple Play Sports Bar & Grille (August 2014) • Post on former employee Facebook page: • “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!!”

14 NLRB Strike/Upholds Social Media Rules • Triple Play Sports Bar & Grille • One current employee commented: “I owe too. Such an asshole.” • Another employee “liked” the update. • The two employees were fired for disloyalty.

NLRB Strike/Upholds Social Media Rules • Triple Play Sports Bar & Grille • NLRB held employer violated NLRA by firing the employees for engaging in protected activity. • Second Circuit affirmed, but denied motion to publish the decision (October 2015).

15 NLRB Strike/Upholds Social Media Rules • Triple Play Sports Bar & Grille • NLRB found evidence did not establish discussion was directed to the general public (although no evidence of privacy setting), because it was on an individual’s personal page and not the company’s.

NLRB Strike/Upholds Social Media Rules • Triple Play Sports Bar & Grille • NLRB found comments were not “so disloyal as to lose the Act’s protection” because they did not disparage the employer’s products or services or undermine its reputation. • Comments not defamatory; just a negative personal opinion of the owner.

16 NLRB Strike/Upholds Social Media Rules • Triple Play Sports Bar & Grille • Internet/Blogging policy “engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment.”

NLRB Strike/Upholds Social Media Rules • Triple Play Sports Bar & Grille • NLRB found the policy was unlawfully overbroad and chilled employees’ section 7 rights. • Second Circuit affirmed all counts that were appealed, but denied motion to publish the decision (October 2015).

17 QUESTIONS?

18 KNOW YOUR NUMBERS! A QUICK REFERENCE GUIDE THRESHOLD # LAW DESCRIPTION PENALTIES All employers USERRA/Iowa Protects service members’ rights and benefits, including reinstatement after Lost wages, equitable relief, liquidated damages, Military Leave Law deployment injunctive relief, and attorney’s fees. All employers. FLSA Federal law regulating minimum wage, overtime, child labor, and more. Back pay, equitable relief, liquidated damages, and attorney’s fees. Employers w/federal Rehabilitation Act Similar to ADA; prohibits discrimination on the basis of disability in Back pay, front pay, injunctive relief, compensatory contracts/subcontracts programs conducted by federal agencies, in programs receiving federal damages, punitive damages, attorney’s fees. > 10K or of indefinite financial assistance, in federal employment, and in the employment practices quantity of federal contractors. 1 employee Equal Pay Act Federal law prohibiting sex-based wage discrimination between men and Back pay, front pay, injunctive relief, compensatory women in the same establishment who perform jobs that require damages, punitive damages, attorney’s fees. substantially equal skill, effort and responsibility under similar working conditions 1 employee Iowa Wage Iowa law governing payment of wages and benefits, minimum wage, Unpaid wages, liquidated damages, court costs and Payment Collection deductions from wages. attorney fees Law 4 employee Iowa Civil Rights Iowa law prohibiting discrimination in employment based on age (18+), Back pay, front pay, injunctive relief, compensatory Act race, creed, color, sex, sexual orientation, gender identity, national origin, damages, punitive damages, attorney’s fees. religion or disability 15 employees Americans With Federal law prohibiting disability discrimination in employment Back pay, front pay, compensatory damages, punitive Disabilities Act damages, and attorney’s fees. 15 employees Title VII/GINA Federal anti-discrimination law prohibits employment discrimination based Back pay, front pay, injunctive relief, compensatory on race, color, religion, national origin, sex (including pregnancy), or damages, punitive damages, attorney’s fees. genetic information. It is also illegal to retaliate against a person because he or she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. 20 employees Age Discrimination Federal law prohibiting age discrimination (40 and over). Back pay, front pay, liquidated damages, equitable relief, in Employment Act/ Must have specific language in agreement in order to have a valid release of and attorney’s fees. OWBPA federal age discrimination claims 25 employees Iowa Layoff Law requiring employers to provide 30-day notice to employees affected by Penalty of up to $100/day for period of violation. Notification Law plant closing or mass layoff when 25 or more employees affected. 50 employees FMLA Federal law providing employees right to family medical and military leave. Back pay, equitable relief, liquidated damages, injunctive relief, equitable relief, and attorney’s fees. 100+ employees WARN (federal) Law requiring employers to provide 60-day notice to employees affected by Amount equal to back pay and benefits for the period of plant closing or mass layoff when 50 or more employees affected. violation, up to 60 days, civil penalty up to $500/day.

This chart is not intended to be exhaustive nor should this information be construed as legal advice. Please contact Fredrikson & Byron, P.A. to discuss the application of these and other legal requirements to your employee benefit plans. © 2017 Fredrikson & Byron, P.A.

Bridge the Gap Seminar

Friday September 15, 2017

The Iowa State Bar Association's Young Lawyers Division presents

Turning Judgment Day Into a Pay Day: An Overview on the Execution of Judgments in Iowa

8:00 a.m. - 8:30 a.m.

Presented by: Kristina Stanger Nyemaster Goode PC 700 Walnut St, Suite 1600 Des Moines, IA 50309 Phone: 515-283-8009

Friday, September 15, 2017 IOWAlk the walk. As Iowa’s largest law firm, we’re dedicated to helping Iowa’s business community succeed. We offer larger teams for a broader array of practice areas. But more than that, we are Iowa, with roll-up-your sleeves-Iowan work ethic. CEDAR RAPIDS ❘ AMES ❘ DES MOINES NYEMASTER.COM

Welcome to Turning Judgment Day ISBA Bridge the Gap Into a Pay Day: September 14-15, 2017 Judgment Collections Overview

KRISTINA M. STANGER

KRISTINA M. STANGER is a member of Nyemaster Goode’s Litigation Department. Her litigation experience includes both plaintiff and defendant work in a variety of contexts, including, commercial and contract claims, business torts, employment and discrimination, personal injury, professional malpractice, property damage, construction litigation, and products liability.

Kristina was commissioned as a Medical Service Corps Officer in the United States Army in 2000 through the OCS program. She served in Iraq from 2003 through 2004, and continues to serve through the Iowa National Guard and is now a Lieutenant Colonel and the State of Iowa’s T: (515) 283-8009 F: (515) 283-3108 Strategic Planner. She graduated with high honors and Order of the Coif from Drake University E: [email protected] Law School where she was a member of the Drake Law Review and active in the moot court 700 Walnut, Suite 1600 Des program. Moines, IA 50309-3899 (515) 283-3100 Kristina is a member of the National Order of Barristers, national and local bar association organizations, Defense Research Institute, Iowa Defense Counsel, and is active with lobbying and mentoring programs within the military organization. She has given speeches and authored articles and updates regarding civil and military law matters.

1 What Did I Win? . Judgment does not guarantee recovery . A judgment by itself has minimal value . It is the ability to execute that provides the value . Approximately 80% of judgments are never satisfied

This presentation does not discuss secured interests under UCC provisions

Outline . Pre-Judgment Considerations . Judgment . Execution Options . Execution Process . Pitfalls

References . Forms: . Clerks of Court . Iowa Rules . Iowa Code . Iowa Code Sections: . § 626 – Execution . § 630 – Judgment Debtor’s Exams . § 642 – Garnishment Limits . Ch. 537 – Iowa Consumer Protection Act; includes IDCPA . Federal Code Sections: . FDCPA . 15 U.S.C. § 1673 et seq – Federal Consumer Protection Act

2 Pre-Judgment (Pre-Lawsuit) Considerations . Multiple debtors – Company, consumer credit, personal guaranty . Judgment proof? . Asset search – Accurint/Westlaw/UCC filings/Real Property – assessor’s website, IA land records . Looking for non-exempt assets – not homestead . Likelihood of bankruptcy or other judgments (IA Courts Online or PACER search) . Payment plan on debt . Assignment of Wages, Rents, etc. . During lawsuit – flag bank account, inheritance prospects, vacation/second properties or employment status

Types of Property . Real Property – automatic lien in the county of the judgment if properly docketed . Separate lis pendens filing $50.00 . Personal Property . No lien until levied upon . Sheriff has to seize property under Writ of Execution . Need to direct Sheriff . LLC interest – charging order . Secured interest – UCC

At Judgment . 10 years – renewable for 10 more . Survives death of judgment debtor * . Lien on real property owned by debtor in that county at time of entry of judgment . Send letter to debtor and arrange for voluntary payment (even a plan > garnishment/ guessing) . Debtor may assign property or security interest in exchange for holding off on execution . Be aware of appeal period but that does not stop execution (debtor needs to file a bond)

3 If They Won’t Pay – How Do We Go Get It?

EXECUTION An execution is the writ of process that gives the Sheriff the power to take the judgment debtor’s property for the satisfaction of the judgment. Although the term is used in a broader sense to include the levy and sale, the physical seizure fixes the liability.

Execution Options: General and Special SPECIAL (§ 626.17) = Used to reach “exempt” property. Normally used to levy on property pledged in security of debt. Example: Foreclosure of mortgage GENERAL (§ 626.7) = Most common. Used to reach non-exempt assets of debtor. May be issued immediately at entry of judgment and lasts for 120 days. Wages, Bank, personal, etc.

Examples of Assets

. Bank garnishment – even joint accounts . Wage garnishment . Public agency – Income tax offset . UCC filings . Credit Reports . Levy on rents/lease payments NON-EXEMPT . IA Treasure Hunt Iowa Code §§ 626 and 627 . Wallets Example: cannot execute on homestead and 1 shotgun . Season Tickets to Hawkeyes . Boats . Shotguns (if more than 1) . Agriculture – crops, land – special considerations (not discussed here) . Jewelry…

4 General Execution Checklist . Good for up to 120 days . Only 1 execution at a time per judgment . If don’t know which bank creditor can “guess” within that county . Done through a “Writ of Execution” . Only issued from county Clerk’s office where the judgment was obtained. . Can be sent to any county directed by the creditor as provided for under § 626.2, § 626.9 and § 626.11. . Form and contents of Writ – handled by Clerk . Whether Clerk forwards docs to Sheriff differs by County

General Execution Process TO CLERK 1. Obtain and provide certified/exemplified copy of judgment if need to take to another county or state 2. $25.00 3. Praecipe – request for Writ (Form 3.25; I-docs Form 319) 4. Affidavit of Amount

General Execution Process TO SHERIFF 1. Call them to find out fees/mileage for service on the Garnishee (bank or employer generally) 2. Send check in advance for fees/mileage ~$50.00 -$100.00 3. Dictation to Sheriff 4. Order to Levy 5. Notice of Garnishment (which they will send to debtor if there is a “hit”) – Iowa Code § 642.14A (I-docs Form 308)

5 General Execution Process SHERIFF 1. Sends Sheriff’s Rogs to Garnishee 2. Answer from Garnishee (If Yes – follow up with Sheriff on NOG Form 308) 3. Sheriff waits for response and sends response to Clerk for filing NOTE (for our banking and employer clients) – IF GARNISHEE DOES NOT RESPOND – Creditor can seek Judgment against Garnishee for FULL amount of debt. 4. Keeps execution open for 120 days unless you “release” or “cancel” – see letter from Polk County Sheriff

Wage Garnishment Limits . Does not apply to debts dealing with taxes, bankruptcy orders, student loans or certain family law obligations (15 U.S.C. § 1673) . Under § 642.21 Yearly Income Yearly Max Amt per Creditor $0 - $11,999 $250 $12,000 - $15,999 $400 $16,000 - $23,999 $800 $24,000 - $34,999 $1,500 $35,000 - $49,999 $2,000 $50,000 + 10% of yearly earnings

Got a “Hit” – Now What? . Consider Cancel vs. Release of Execution – want funds to be turned over to the Court for payment to creditor . Application/Order to Condemn Funds . If satisfies the judgment – file Satisfaction of Judgment . If not complete satisfaction of debt: . Issue a new one . Application for Judgment Debtor’s exam . Private Investigator . Wait and try again (remember Judgment good for 10 yrs and can be renewed)

6 Other Proceedings . Transcribe Judgment . used to attach the judgment to real property in another IA county . $50.00 . Filed like a separate motion in that county; assigned a TJ case number . Domesticate Foreign Judgment . Record a judgment from another state in Iowa to attach to property or to later conduct execution . $185.00 – like a new lawsuit in that county; requires notice served on debtor

Other Proceedings . Judgment Debtor’s Exam . Deposition about assets of Debtor . Permitted after returned + unsatisfied execution . Application to Court . Requires personal service of Order of JDE on Debtor . Bankruptcy and Foreclosure – can clear your judgment in most circumstances – will get a Notice or be sued as a Defendant in order to clear the unsecured judgment . Fraudulent Transfers – Iowa Code Chapter 684 (lots of factors/high standard) . Receivership – Iowa Code Chapter 680/681 (can be expensive)

QUESTIONS?

7 We know Iowa like nobody’s business.

CEDAR RAPIDS OFFICE AMES OFFICE DES MOINES OFFICE 625 FIRST STREET SE, STE 400, 1416 BUCKEYE AVENUE, STE 200, 700 WALNUT, STE 1600, CEDAR RAPIDS, IA 52401-2030 AMES, IA 50010-8070 DES MOINES, IA 50309-3899 P 319-286-7000 P 515-956-3900 P 515-283-3100 F 319-286-7050 F 515-956-3990 F 515-283-3108

IN THE IOWA DISTRICT COURT FOR LINN COUNTY

GREATAMERICA LEASING CORPORATION, Case No. LACV064836

Plaintiff,

v. ORDER TO LEVY

INTERTEX APPAREL, LTD,

Defendant.

Before any action may be taken, you must indicate if this is a Consumer Credit Transaction.

___YES X NO

STATE OF IOWA, COUNTY OF POLK:

To Sheriff of Linn County, Iowa:

You are hereby instructed to levy under a general execution in the above entitled cause upon any and all monies, accounts or assets found in name of Judgment Debtor Intertex Apparel, Ltd., including but not limited to accounts #007912374 (see attached) at HSBC.

Please serve the execution and levy to HSBC located at 151 Collins Road, Cedar Rapids, IA 52402. See attached Exhibit A with Account #007912374.

Please attempt execution for the full amount of the judgment.

Dated this ___ day of March, 2017.

NYEMASTER GOODE, P.C. 700 Walnut Street, Suite 1600 Des Moines, IA 50309 Tel: (515) 283-3100 Fax: (515) 283-8045 Email: [email protected]

By: ______Kristina M. Stanger, AT0000255 ATTORNEYS FOR PLAINTIFF

TO THE SHERIFF OF POLK COUNTY, IOWA Please STOP the below referenced garnishment: PLAINTIFF______DEFENDANT______CASE#______

REASON: ____ Bankruptcy ____Court order ____Paid in full ____Negative answers ____Other ______

SIGNED:______

E-FILED 2017 MAR 07 11:39 AM LINN - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR LINN COUNTY

GREATAMERICA FINANCIAL SERVICES CORPORATION Case No. 06571 LACV064836 Plaintiff/Petitioner General Execution vs.

INTERTEX APPAREL LTD Docket Event Code: EGEN Defendant/Respondent

TO THE SHERIFF OF LINN COUNTY, IOWA: YOU ARE HEREBY COMMANDED TO LEVY ON THE FOLLOWING JUDGMENT DEBTOR(S): Issued against INTERTEX APPAREL LTD as described in the "Dictation for Execution". Date of Judgment 12/07/2009 Balance Due on Judgment $68,311.23 Original Amount of Judgment $68,311.23 Balance Due on Court Costs $ Original Amount of Costs $ Balance Due on Attorney Fees $3,889.31 Original Amount of Attorney Fees $3,889.31 Interest Accrued to 03/07/2017 Interest Rate Per Annum 18% Total Interest Due $ 103,683.93 Effective From 03/16/2009 Interest Per Diem $ 35.61 Pre-judgment Accrued Interest

Dated: March 7, 2017 /s/ JENNIFER SCHRADER Clerk of Court/Designee LINN County

Requested by: KRISTINA STANGER Employers to return funds to the sheriff after 120 days from the date of issuance of this writ. E-FILED 2017 MAR 07 11:39 AM LINN - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR LINN COUNTY

GREATAMERICA FINANCIAL SERVICES Case No. 06571 LACV064836 CORPORATION Plaintiff/Petitioner Return of Service of General Execution vs. Under Iowa Code 626.12

INTERTEX APPAREL LTD Defendant/Respondent Docket Event Code: RSEX

Execution Issued by Clerk March 7, 2017

Issued Against INTERTEX APPAREL LTD

Amount Collected ______Date Served ______

Who Served ______Amount Retained ______

Where Served ______Amount to Clerk ______

Date Received______

Sheriff, ______County, Iowa

By ______Deputy

E-FILED 2017 JUL 28 4:22 PM LINN - CLERK OF DISTRICT COURT E-FILED 2017 JUL 28 4:22 PM LINN - CLERK OF DISTRICT COURT E-FILED 2017 JUL 28 4:22 PM LINN - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR LINN COUNTY

GREATAMERICA LEASING CORPORATION, Case No. LACV064836

Plaintiff,

v. DICTATION TO SHERIFF

INTERTEX APPAREL, LTD,

Defendant.

TO: LINN COUNTY SHERIFF

RE: GENERAL EXECUTION ISSUED BY THE CLERK OF COURT FOR LINN COUNTY FOR THE ABOVE-CAPTIONED MATTER

Pursuant to the Praecipe issued to the Linn County Clerk of Court for General Execution, upon receipt of the Writ for General Execution, please proceed to levy upon any and all accounts, monies and assets, including but not limited to deposit account, owed to GreatAmerica Leasing

Corporation at HSBC located at 151 Collins Road, Cedar Rapids, IA 52402. See attached Exhibit

A with Account #007912374.

Pursuant to Iowa Code 642.14A, if HSBC’s Answers to Interrogatories are in the affirmative, please also provide the enclosed Notice of Garnishment (FORM 308) to the Defendant within 7 days of your receipt by certified mail to the following address: 1400 Broadway, 18th Floor, New York, NY 10018.

Please e-file your notice of service of the execution, notice of garnishment and returned Interrogatories from the garnishee as soon as reasonably possible. Should you have any questions with respect to this matter, please contact the undersigned immediately.

Dated this ____ day of March, 2017.

NYEMASTER GOODE, P.C. 700 Walnut Street, Suite 1600 Des Moines, Iowa 50309-3899 Phone: (515) 283-8009 Fax: (515) 283-8045 Email: [email protected]

By: Kristina M. Stanger, AT0000255

ATTORNEYS FOR PLAINTIFF

New Changes to the Iowa Child Support Guidelines

10:15 a.m. - 11:00 a.m. Presented by: Wayne Bergman Assistant Attorney General Iowa Attorney General's Office Hoover Building, 2nd Floor Des Moines, IA 50319

Hon. Eliza Ovrom District Court Judge Polk County Courthouse 500 Mulberry Street Des Moines, IA 50309

Friday, September 15, 2017 IOWA CHILD SUPPORT GUIDELINES: SUMMARY OF CHANGES1 (Effective January 1, 2018)

______

1. Background.

A. The Federal Family Support Act of 1988 requires each state to maintain uniform child support guidelines and criteria and to review the guidelines and criteria at least once every four years. The Iowa Child Support Guidelines are found in chapter 9 of the Iowa Court Rules.

B. In May 2016, the Iowa Supreme Court established the 2016 Iowa Child Support Guidelines Review Committee (Committee) to assist with the latest scheduled review of Iowa’s child support guidelines. The Committee issued its Final Report, containing 14 separate recommendations, in April 2017.

C. On July 20, 2017, the Iowa Supreme Court issued an order adopting the Committee’s recommendations. The amended rules and revised child support grids will be effective January 1, 2018.

2. Health Insurance.

A. Iowa Code Section 252E.1A requires the court to order a parent to provide a health benefit plan covering the child(ren) if the parent has a plan which is accessible and reasonable in cost. If a parent is ordered to provide a health benefit plan, the guidelines provide that the insurance premium for the child(ren) is added to the basic support obligation and prorated between the parents. Rule 9.14(5)(b) currently provides that the child(ren)’s portion of insurance is the difference between the cost of family coverage to the parent or stepparent and single coverage, regardless of the number of individuals covered under the policy.

1 This summary was prepared by members of the 2016 Child Support Guidelines Review Committee. The commentary in this summary does not necessarily represent the views of the Iowa Supreme Court.

B. The Committee discussed two primary difficulties with the current rule. First, the cost of “family coverage” frequently exceeds the cost of the group plan actually carried by the parent (such as a parent + child plan). This inappropriately increases the support obligation if the custodial parent is ordered to carry the health insurance and inappropriately decreases the support obligation if the noncustodial parent is ordered to carry the health insurance. Second, if the entire difference in cost between family and single coverage is utilized, the parent not carrying the health insurance may be subsidizing the health insurance costs of the other parent’s family. For example, if a noncustodial parent has a health insurance plan covering his or her new spouse, their child, and the child for whom support is being calculated, prorating the entire cost difference between family and single coverage would require the custodial parent to subsidize the noncustodial parent’s cost to cover his or her new spouse and their child.

C. CHANGE: Effective January 1, 2018, Rule 9.14(5)(b) will be amended to provide:

“b. The allowable child(ren)’s portion of the premium will be calculated as follows:

(1) For a health benefit plan covering multiple individuals, including the child(ren) in the pending action, the allowable child(ren)’s portion is the amount of the premium cost for such coverage to the parent or stepparent that is in excess of the premium cost for single coverage, divided by the number of individuals enrolled in the health benefit plan, excluding the person providing the insurance, and then multiplied by the number of children who are the subject of the pending action.

(2) For a health benefit plan covering only the child(ren) in the pending action, the entire premium will be used as the allowable child(ren)’s portion of the premium.”

EXAMPLE: A parent is ordered to provide a health benefit plan. The plan costs $600 per month and covers himself, his new spouse, his child with his new spouse, and the two children who are the subject of the support order. A single plan would cost $280 per month. The allowable child(ren)’s portion which will be added to the basic support obligation and prorated between the parties is $160. [$600 total plan cost - $280 single cost = $320 / 4 individuals covered excluding the parent providing the insurance = $80 x 2 children subject of the support order = $160].

3. Cash Medical Support and hawk-i.

A. Healthy and Well Kids in Iowa (hawk-i) is not considered a “health benefit plan”. Therefore, when a parent has the child(ren) enrolled in hawk-i, and the other parent does not have health insurance available at a reasonable cost, the other parent will be subject to the requirement of paying cash medical support. The cost of cash medical support is often significantly greater than the cost of the hawk-i coverage. The State of Iowa typically takes an assignment of the cash medical support a parent is ordered to pay when the child(ren) is on Title 19, but does not take an assignment of cash medical support when the child(ren) is on hawk-i. When the cash medical support amount is greater than the cost for hawk-i, it results in a windfall to the custodial parent.

B. CHANGE: Effective January 1, 2018, cash medical support amount will be the lesser of the actual cost of the hawk-i premium or the amount calculated under the guidelines. Rule 2.12(3) will be amended to add:

“…If the child(ren)’s health care coverage is through the Healthy and Well Kids in Iowa program (hawk-i) under Iowa Code chapter 514I, the ordered amount of cash medical support is the cost of the hawk-i premium or the amount calculated pursuant to the table in rule 9.12(4), whichever is less.”

4. Spousal Support and Definition of Gross Income.

A. Rule 9.5(8) allows a deduction for a prior obligation for spousal support actually paid. However, it does not address what to do when spousal support is ordered in the current action. Iowa appellate courts have often permitted trial courts to consider spousal support paid or received in the current action in determining child support, even though it is not specifically addressed in the guidelines. See e.g., In re Marriage of Mihm, 842 N.W.2d 378, 382 (Iowa 2014); In re Marriage of Lalone, 469 N.W.2d 695, 696 (Iowa 1991). However, doing so represents a variance from the guidelines which must be supported by a finding that it is necessary to provide for the needs of the child(ren) or to do justice between the parties, payor, or payee under the special circumstances of the case.

B. The guidelines are also ambiguous as to whether spousal support received by a party is included in that party’s gross income for purposes of calculating child support. Rule 9.5 defines net monthly income, but does not define gross monthly income beyond stating that it does not include public assistance benefits or earned income tax credits. The Committee reviewed definitions of gross income in Iowa law, rules, and case law, as well as statutory and rule

language from other states and agreed spousal support should uniformly be included in the gross income of the recipient and subtracted from gross income of the person paying it. The Committee also agreed that the spousal support amount should be determined first before child support is calculated. The only exception to the general rule urged by the Committee is that reimbursement spousal support not be added to the income of the recipient or deducted from the income of the payor.

C. CHANGE: Effective January 1, 2018, Rule 9.5(1) will be amended to add a gross monthly income definition and provide for the inclusion of spousal support in the income of the recipient and the deduction from the income of the payor:

“Rule 9.5 Income.

9.5(1) Gross monthly income. In the guidelines, the term “gross monthly income” means reasonably expected income from all sources.

a. Gross monthly income includes traditional or rehabilitative spousal support payments to be received by a party in the pending matter and prior obligation traditional or rehabilitative spousal support payments actually received by a party pursuant to court order.

(1) If traditional or rehabilitative spousal support is to be paid in the pending matter, it will be determined first and added to the payee’s income and deducted from the payor’s income before child support is calculated.

(2) The payor of prior obligation spousal support will receive a reduction from income for traditional or rehabilitative spousal support actually paid pursuant to court order.

(3) Reimbursement spousal support shall not be added to the payee’s income or deducted from the payor’s income.

b. Gross monthly income does not include public assistance payments, the earned income tax credit, or child support payments a party receives.

c. Gross income from self-employment is self-employment gross income less reasonable business expenses.

d. To determine gross income, the court shall not impute income under rule 9.11 except:

(1) Pursuant to agreement of the parties, or

(2) Upon request of a party, and a written determination is made by the court under rule 9.11.”

5. Child Care Expenses.

A. Child support amounts in the Schedule of Basic Support Obligations do not account for child care expenses. Child care costs are specifically removed from the economic data on which the guidelines are based because not all parents have child care costs. However, many states require that parents share in the cost of child care in other ways. Some states treat child care costs in the same way that Iowa treats health insurance premiums (added to the support obligation and prorated between the parents). Some states treat child care costs in the same way Iowa treats uninsured medical expenses (divided in proportion to income, but not added to the child support obligation). Iowa is one of only a few states that does not specifically address child care in its guidelines as either an add-on or as a separate obligation apportioning expenses between the parents. Instead, the Iowa guidelines merely allow a deduction from gross income for “Actual child care expense while custodial parent is employed, less the appropriate income tax credit.” [Rule 9.5(10]. The deduction from gross income has only a de minimis impact on the support amount.

B. The Committee recognized that child care costs are sometimes quite significant, and often exceed the child support obligation, especially when a child is not of school age and when there are multiple children receiving child care. For example, the average cost of infant child care in a licensed center in Iowa is $790 per month. However, if Iowa were to require child care costs to be shared in some uniform fashion, there are several issues that would need to be addressed as part of the solution. For example, disputes exist over the determination of the appropriate child care cost; differences over who would have the authority to select the provider; issues associated with family members providing care and only charging one of the parties; and the necessity of frequent modifications due to changes in the child care costs and the number of children in child care. Following the last review in 2009, the Iowa Supreme Court amended Rule 9.11(2) to specifically allow the district court to consider an upward variance from the guidelines based on the child care expenses of the parties when the circumstances demand it. Rule 9.11(2) was amended to add: “Adjustments may also be made based on the parties’ child care expenses necessitated by employment or education.” However, there is little evidence to suggest that

that this language has been utilized in any significant way since its addition in 2013. In addition, there continues to be a mistaken belief by many that variance is not warranted because the guidelines already account for child care costs.

C. CHANGE: Effective January 1, 2018, the child care variance language in Rule 9.11(2) will be stricken and a new rule (Rule 9.11A) addressing the court’s ability to vary from the guidelines based on the cost of child care will be adopted. Rule 9.5(10) [now re-numbered 9.5(2)(j)] will also be amended to reference the definition of child care expenses in new Rule 9.11A. The rule changes are as follows:

“9.5(2)(j)2 Actual child care expenses, as defined in rule 9.11A. This deduction is allowed regardless of whether a variance is granted under rule 9.11A.

. . .

Rule 9.11A Variance for child care expenses. The custodial parent’s child care expenses may constitute grounds for the court to vary from the amount of child support that would result from application of the guidelines. In determining whether variance is warranted under this rule and rule 9.11, the court should consider the fact that child care expenses are not specifically included in the economic data used to establish the support amounts in the Schedule of Basic Support Obligations. When considering a variance, child care expenses are to be considered independently of any amount computed by use of the guidelines or any other grounds for variance.

9.11A(1) “Child care expenses” means actual, annualized child care expenses the custodial parent pays for the child(ren) in the pending matter that are reasonably necessary to enable the parent to be employed, attend education or training activities, or conduct a job search, less any third party reimbursements and any anticipated child care tax credits.

9.11A(2) There is a rebuttable presumption that there will be no variance for child care expenses attributable to a child who has reached the age of 13 years old.

9.11A(3) If variance is warranted, the support order must specify the amount of the basic support obligation calculated before the child care expense variance,

2 Formerly rule 9.5(10).

the amount of the child care expense variance allowed, and the combined amount of the basic support obligation and the child care expense variance.

9.11A(4) This rule does not apply to:

a. court-ordered joint (equally shared) physical care arrangements, as those child care expenses are to be allocated under rule 9.14(3); or

b. cases where the noncustodial parent’s adjusted net monthly income is in the low-income Area A of the schedule in rule 9.26.”

6. Step-Down Support Amounts.

A. When two or more children are covered by the support order, problems arise when the court’s order or the parties’ stipulation on which the order is based do not address how child support will change as the number of children eligible for support changes. In those instances, parties are required to seek a child support modification through the court or an administrative adjustment through the Child Support Recovery Unit. Until the support amount is changed, the payor must continue to pay the previously ordered amount which can be unduly burdensome to that party and can also create problems for the recipient if the support is later retroactively modified. The Committee determined that support orders covering two or more children should include a step-down provision to automatically adjust the child support amount as the number of children entitled to support changes. Of course, the step-down amounts of support are based on information that may later change. However, the step-down amounts are subject to later modification if necessary and providing a step-down amount of support at minimum creates a placeholder until a modification can be completed.

B. CHANGE: Effective January 1, 2018, Rule 9.14 will be amended to add a new subrule for cases with multiple children to state that the support order must include a step-down provision to automatically adjust child support as the number of children entitled to current support changes, as follows:

“9.14(6) Step-down provisions. For cases with multiple children, the support order shall include a step-down provision to automatically adjust the child support amount as the number of children entitled to support changes, unless subsequently modified by the court.”

7. Schedule of Basic Support Obligations.

A. The current schedules are based on 2007 economic data using the Betson- Rothbarth-3 (BR-3) study, updated to 2012 price levels. Adjusting the economic data to 2016 price levels would be expensive and time consuming and would have a minimal impact on support amounts (approximately 1%) due to modest inflation since 2012. A new economic study is expected to be available during the next guidelines review and the schedules should be reviewed again then.

B. In accordance with the Committee’s recommendation, no changes will be made to the Schedule of Basic Support Obligations.

8. Model for Calculating Support.

A. Iowa has utilized the current Pure Income Shares Model for calculating support since 2009. Thirty-nine states use the model. One of many advantages of the model is that it helped solve the “notch effect” that was prevalent under Iowa’s prior child support guidelines. The Committee considered other models and determined that the Pure Income Shares Model continues to be the model which is most equitable.

B. In accordance with the Committee’s recommendation, the Pure Income Shares Model will be retained.

9. Minimum Support Amounts.

A. The current minimum support amount is $30 for one child and $50 for two or more children. Any minimum support amount represents a public policy decision based primarily on the ability of the payor to pay rather than the needs of the child(ren). The minimum amounts were increased to their current level in 2012 and inflation has not increased significantly since then.

B. In accordance with the Committee’s recommendation, the minimum amount of support will not be changed at this time. However, the minimum support amounts should be reviewed during the next guidelines review when a new economic study is expected to be available.

10. High Income Parents.

A. The current guidelines provide Basic Support Obligations for combined net monthly incomes up to $25,000 per month. The Committee considered whether to provide support amounts for combined monthly net income beyond $25,000.

However, the $25,000 per month amount is already extrapolated from data supporting $22,000 per month, and it would be speculative to extrapolate further.

B. In accordance with the Committee’s recommendation, the current combined adjusted net maximum monthly income limit of $25,000 in the Schedule of Basic Support Obligations will be retained.

11. Guidelines Education for the Public.

A. The Committee discussed the need for public education focused on informing parents about how the child support guideline amounts are determined and the method for calculating individual child support obligations.

B. An educational video will be developed, produced, and freely shared. The video will specifically be provided for showing during the Children in the Middle course.

12. Updated Grids and Worksheets.

A. The grids and child support guideline worksheets will be amended to correspond to the changes.

B. The following grids and worksheets will be amended:

• Adjusted Net Monthly Income Computation grid in Rule 9.14(1) to correspond to the changes to Rule 9.5.

• Basic Method of Child Support Computation grid in Rule 9.14(2) to correspond to the changes to Rule 9.14(5) and Rule 9.5.

• Joint (Equally Shared) Physical Care Method of Child Support Computation grid in Rule 9.14(3) to correspond to the changes to Rule 9.14(5) and Rule 9.5.

• Child Support Guideline Worksheets in Rule 9.27 to correspond to the changes to Rule 9.14(5) and Rule 9.5.

NOTE: The Final Report of the 2016 Iowa Child Support Guidelines Review Committee can be found at: http://www.iowacourts.gov/wfdata/frame1020 9-1263/File301.pdf

The Iowa Child Support Guidelines, as amended, can be found at: http://www.iowacourts.gov/wfdata/frame1025 4-1235/File250.pdf

9/6/2017

Iowa Child Support Guidelines Summary of Changes

INTRODUCTION

• Quadrennial Review • 42 USC §667(a) • 45 CFR §302.56 • Iowa Code §598.21B(1)(a) • Committee Appointed by Iowa Supreme Court • Technical Consultant-Jane Venohr, Ph.D; Economist • General Elements of Review • Compare Iowa’s Guidelines to Surrounding States • Consider Economic date on cost of raising children • Analyze data on number of deviations from Guidelines

1 9/6/2017

• Process • Findings and Recommendations of Child Support Advisory Committee • Public Comments submitted to CSAC • Comments from Judges • Correspondence from citizens submitted to Committee

 Final report to Iowa Supreme Court April 2017

 Adopted by the Supreme Court July 2017

 Effective Date January 1, 2018

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HEALTH INSURANCE

 Redefine “allowable child(ren)’s portion of health insurance premium” Amend Rule 9.14(5)(b)  Iowa Code §252E.1A requirements  Ordered to provide HI if accessible and reasonable in cost  Guidelines require proration of cost  Children’s portion = Family-Single  Two Primary Difficulties  Cost of “family coverage” often exceeds what parent actually paying which then increases or decreases the support obligation (depending on whether CP or NCP is ordered to provide the coverage)  Parent not carrying the HI may be subsidizing the HI costs of other parent’s family

HEALTH INSURANCE (continued)

 Amend Rule 9.14(5)(b) as follows:  If HBP covers multiple individuals:  “Allowable child(ren)’s portion of the HI premium” ~ equals ~  Premium cost of plan minus the premium cost for single coverage  Divided by the # of individuals enrolled excluding person providing the coverage  Multiplied by # of children who are subject of pending action

3 9/6/2017

EXAMPLE

 Plan costs $600 per month  Covers parent, new spouse, child with new spouse and 2 children subject to the action (5 people total)  Single plan=$280  $600-$280=$320 divided by 4 (exclude parent)=$80 x 2=$160  $160 prorated between the parents

CASH MEDICAL SUPPORT & HAWK-I

 CHANGE: Cash Medical Support will now be the lesser of the actual cost of hawk-i premium or the amount calculated under the guidelines. Rule 9.12(3)

 Healthy and Well Kids in Iowa (hawk-i) not considered “health benefit plan”  NCP could be ordered to pay cash medical support if CP enrolls child in hawk-i  CMS is often greater than cost of hawk-i  No assignment to State if on hawk-i  Results in a windfall to the CP

4 9/6/2017

SPOUSAL SUPPORT & DEFINITION OF GROSS INCOME

 CHANGES: 1. Add definition of gross monthly income to rule 9.5; 2. Provide for inclusion of spousal support in income of recipient; 3. Provide for deduction from income of payor.  Current rule 9.5(8) only allows deduction for prior obligation  Supported by case law  Current rule ambiguous as to whether spousal support received is income  Current rule defines net monthly income but not gross income  Does not include reimbursement spousal support; only traditional or rehabilitative spousal support.  Determine first – before child support is calculated  Rule 9.5 Income. New subsections (1) Gross monthly income & (2) Net monthly income

CHILD CARE EXPENSES

• Background • Schedule does NOT account for child care expenses – removed from economic data • Deduction from gross income has minimal impact on support amount. • Iowa one of few states that does not address CC expenses in guidelines • CC expenses can be significant (average cost for infant is $790 per month) • Current rule allowing variance based on child care expenses has not been utilized in any significant way. (Rule 9.11(2) was amended in last review) • Difficulties if require parents to share costs ( e.g. pro-rating in proportion to income; treat like uninsured medical expense)

5 9/6/2017

CHILD CARE EXPENSES (cont.)

• CHANGES: • Strike child care variance language in rule 9.11(2) • Adopt new rule to emphasize Court’s ability to vary based on CC expenses-9.11A • Amend Rule 9.5(10) to reference definition of CC expenses in new rule • Rule 9.11A: • Court should consider fact that cc expenses are not included in economic data used to create the Schedule of Basic Support Obligations • “Child care expenses” are defined • If ordered, Court must specify amount of support, amount of variance and the combined amount • Rebuttable presumption –no variance for child who is 13 • Rule does not apply to shared care orders or low-income obligors

STEP-DOWN SUPPORT AMOUNTS

 CHANGE: Rule 9.14 amended to state that for cases with multiple children, the order must include a step-down provision.  Automatically adjust child support amount  As the number of children entitled to support changes.  Will avoid need for modifications  In re Marriage of Gustafson, 03-1258, 2004 WL 793128 (Iowa Ct. App. Apr. 14, 2004)

6 9/6/2017

SCHEDULE OF BASIC SUPPORT OBLIGATIONS

Retain current schedule – no changes  Current based on 2007 economic data using Betson-Rothbarth-3 study updated to 2012 price levels  Low Inflation  CPI 4.7% increase since 2012  2016 Poverty level increased from $931 to $990  Expensive to change  Minimal impact  New study is expected for use during next review

MODEL FOR CALCULATING SUPPORT

 Retains Pure Income Shares Model  Utilized since 2009  39 states use  More equitable  Helped solve “notch effect”

7 9/6/2017

MINIMUM SUPPORT AMOUNTS

 No change

 Current amounts are $30 for one child and $50 for two or more  Represents public policy decision to use ability to pay-not needs of child(ren)  Increased in 2012  Low inflation  Review when new economic study is available

HIGH-INCOME PARENTS

 No Change  Current guidelines provide for combined net monthly incomes up to $25,000.  Already extrapolated from data supporting combined income of $22,000  Speculative to extrapolate further  Affects few cases

8 9/6/2017

GUIDELINES EDUCATION FOR PUBLIC

 RECOMMENDATION: Develop an educational video to inform parents about how guideline amounts are determined and the method for calculating support obligations  ISBA assisting in production  Distribute video to be used in CIM  Put on Court website  ISBA website  Script is being developed

UPDATED GRIDS AND WORKSHEETS

 CHANGE: Amend computation grids in Rule 9.14(1), 9.14(2) and 9.14(3) And worksheets in Rule 27

 To correspond to changes to Rule 9.5 (spousal support)

 To correspond to changes to Rule 9.14(5) (allowable child(ren)’s portion of HI premium)

9 9/6/2017

RECENT CHANGES TO FEDERAL RULES

 81 Fed.Reg. 93,492 (Dec. 20, 2016)- Flexibility, Efficiency, and Modernization in Child Support Enforcement Programs

 Rules affecting guidelines: 45 CFR §302.56 and §303.31  All State Guidelines will be required to take into consideration the basic subsistence need of NCP (we already do this)  All Guidelines will have to provide that incarceration may not be treated as voluntary unemployment  Review Committee Reports will have to be published on the internet as well as the membership of the reviewing body and the date of the next review

RECENT CHANGES TO FEDERAL RULES (cont.)

 Rules affecting guidelines: 45 CFR §302.56 and §303.31 (cont.)  Added several things to consider when considering economic data on the cost of raising children- labor market data, local job markets, impact on family income below 200% of poverty  In addition to looking at the deviation rate must analyze data such as rates of default and imputed CS orders and orders determined using the low-income adjustment. Must also include a comparison of payments on CS orders by case characteristics  §303.31- Health care coverage will include public health care coverage  Iowa Code § 252E.1A will probably have to be amended

10 9/6/2017

RECENT CHANGES TO FEDERAL RULES (cont.)

 Compliance date for 45 CFR §302.56  One year after next review of guidelines – 2021-2022  Compliance date for 45 CFR §303.31  October 1, 2018  May necessitate reconvening the Committee in 2018

Motions to Suppress

11:00 a.m. - 12:00 p.m.

Presented by: Matthew Lindholm Gourley Rehkemper & Lindholm PLC 440 Fairway Dr, Suite 210 West Des Moines, IA 50266 Phone: 515-226-0500

Friday, September 15, 2017 Suppression Motions: Cutting Out the Bruises Matt Lindholm Gourley, Rehkemper & Lindholm [email protected] www.grllaw.com

I. Motion to Suppress v. Motion in Limine A. Motion to Suppress - “a legal document filed with the court prior to trial which requests the exclusion of evidence due to a violation of a statutory or constitutional right.” - Matt Lindholm (2017) - Motions to suppress are governed by Iowa Rule of Criminal Procedure 2.11(2)(c), 2.11(3), 2.11(4) and 2.12. B. Motion in Limine- “a legal document filed with the court prior to trial which requests the exclusion of evidence on the basis that it violates the rules of evidence.” - Matt Lindholm (2017) - Motions in limine are governed by Iowa Rule of Criminal Procedure 2.11(2)(g) and 2.11(4). II. Time for Filing A. “shall be filed when the grounds therefor reasonably appear but no later than 40 days after arraignment.” Iowa R. Crim. Pro. 2.11(4). B. Good Cause Exception- failure to file a motion to suppress within the prescribed time constitutes a waiver however the court can grant relief from that waiver for “good cause.” Iowa R. Crim. Pro. 2.11(3). 1. “Good Cause” Generally - it is discretionary with the court. State v. Lewis, 391 N.W.2d 726, 728 (Iowa App. 1986). - factors considered are the reasons for the late filing and whether the State was prejudiced. State v. Christensen, 323 N.W.2d 219, 222 (Iowa 1982). - the waiver sanction should not be imposed lightly. State v. Lewis, 391 N.W.2d at 729. - defendant bears the burden to show good cause. 2. What constitutes “good cause?”

- where a previous attorney failed to file a motion within the prescribed time. See State v. Ortiz, 766 N.W.2d 244 (Iowa 2009). - where the client was unrepresented and didn’t waive counsel. State v. Eldridge, 590 N.W.2d 734 (Iowa App. 1999). - the courts seem willing to accept any reasonable explanation to support a good cause showing in order to avoid the issue of ineffective assistance on appeal. The key is making a good record to support good cause. 3. What do I do to avoid having to argue good cause? - file a motion to extend deadlines and secure a ruling granting the same prior to the expiration of the 40 day deadline. - get discovery completed quickly including depositions - get an agreement from the county attorney (in writing) that he they will not resist a late filed mts. 4. What do I do if I miss a deadline and can’t get a good cause determination? - probably need to move to withdraw citing ineffective assistance of counsel and make a solid offer of proof as to why you think there is merit to the motion. - if you are allowed to withdraw, then new counsel may make a good cause argument. III. How do I Know if I Need to File a Motion to Suppress? A. Know the Facts (Generally) - you can’t possibly start to identify a basis for a motion to suppress unless you have a general understanding of what evidence was obtained and how the evidence was obtained. 1. what evidence was obtained (these are the bruises)? - drugs, guns, statements, DNA, alcohol test results, confessions/admissions, identifications, etc 2. How was the evidence obtained? a. was it obtained by a state actor or a private citizen b. under what circumstances was it obtained - your initial interviews with clients need to flush out some of these basic facts and the more detail you can get the better. B. Know the Law (Generally) (this the your client’s shield and sword)

- even with a good understanding of the facts, you cannot possibly start to identify suppression issues unless you know what constitutes a statutory or constitutional violation. 1. Constitutional Violations Generally. a. Iowa Constitution v. Federal Constitution - greater protections can be afforded under the Iowa Constitution BUT they have to be raised and argued. - IT IS MY OPINION THAT YOU WILL COMMIT MALPRACTICE BY NOT RAISING AND ARGUING THE IOWA CONSTITUTION IN YOUR MOTIONS. See all of the most recent Iowa Supreme Court cases interpreting the Iowa Constitution!!! - so just because you find a case saying you might not win under the Federal Constitution you need to research the Iowa Constitution as a basis to support your motion. - failure to argue and distinguish the Iowa Constitution from the Federal Constitution is fatal to a State Constitutional challenge b. Common Constitutional Violations- Generally (non-exhaustive list) i. Fourth Amendment and Article 1, Section 8 - warrantless searches and seizures - search warrants and the execution ii. Fifth Amendment and Article 1, Section 91 - use of defendant’s silence against him - Miranda Violations for confession - due process violations iii. Sixth Amendment and Article 1, Section 10 -right to counsel - right to confront and cross examine - Miranda violations iv. Fourteenth Amendment

1 The Iowa Constitution does not include language consistent with the Federal Counter Part that “no person shall…be compelled in any criminal case to be a witness against himself,” however this is encompassed within the due process provisions of Article 1, Section 9 in the Iowa Constitution. See State v. Height, 91 N.W. 935 (1902).

- dur process violations 2. Statutory Violations Generally- (non-exhaustive list) - often statutes can help support a constitutional argument. For example, an officer alleges a traffic violation but the client’s actions do not violate any statute under Chapter 321. i. Know Chapter 321 inside and out (caveat: often more than one statute can be violated to support a traffic violation so just because one does not apply make sure there are not others) ii. Iowa Code Section 804.20- communications by arrested person iii. Iowa Code Section 321J.11- independent test iv. Iowa Code Section 321J.6- Implied Consent v. Iowa Chapter 804- Manner of Arrest vi. Iowa Chapter 808- Search Warrants C. Don’t Jump the Gun Dig Deeper - Once you have a general understanding of the facts, the constitution, and the statutes at play, then you need to dig deeper! - Patience is a virtue if you identify a suppression issue because if you disclose it to a prosecutor too early, it will likely disappear! 1. Further Factual Development - regardless of whether you can initially spot a suppression issue, you must do your due diligence to ferret out all facts whether good or bad. - you must use what you have and get what you don’t - police reports - video and audio recordings- you commit malpractice if you don’t get them and watch every minute of them - phone calls - jail videos - surveillance video - dash cameras - 911 calls - witness video - body cameras - dispatch recordings - etc - get transcripts made of the depositions, videos, etc, because it is much easier to reference statements in writing than on video 2. Further Legal Development

- once you have a good understanding of the specific facts of the case, you need to fine tune your legal arguments. - often time one word or sentence can make or break these arguments. You need to know what the one word or sentence is. - know all of the bases for suppression and know what specific facts may need developed further in depositions - this requires research…..use Westlaw look at what the caselaw says now but more importantly read between the lines and see what the caselaw suggests - know what issues are on the horizon D. Finalize Your Facts - use depositions to cement your facts (i.e. get that one word or one sentence) - be ready to use the facts you have uncovered at your depositions to force the witness to say what you need them to say - marry the officer to their police report - given them an opportunity to change any answers - given them an opportunity to indicate they understood all questions - LEAVE NO WIGGLE ROOM E. Finalize Your Legal Support - once you have cemented the facts go back and do further research - look to other States if necessary to cover any weakness you may still have - start drafting your motion and your brief IV. Specific Constitutional Rights to Keep In Mind2 A. Fourth Amendment and Article 1, Section 8 1. Vehicle Stops - an officer must have probable cause or reasonable suspicion in order to lawfully effectuate a traffic stop - Weaving/ Erratic Driving-State v. Tague, 676 N.W.2d 197 (Iowa 2004)3- (momentary crossing of the fog line is insufficient to support the stop of the vehicle).

2 This is by no means meant to be an exhaustive list of constitutional issues and your own independent research is need for each case.

- Turn Signal- State v. Malloy, 453 N.W.2d 242 (Iowa App. 1990) (turn signal only required when the turn affects other traffic); State v. Troge, 2009 WL 3064648 (Iowa App. Unpublished) (changing lanes doesn’t require the use of a turn signal) - License Plate Light- State v. Lyon, 862 N.W. 2d 391 (Iowa 2015) (discussing the 50 feet requirement for illumination of a license plate light) - Registration Sticker- State v. Nguyen, 2013 WL 5498072 (Iowa App. Unpbulished)(placement of registration sticker even though not in the absolute bottom left corner was still legal placement and therefor stop was not justified). - License Plates- State v. Klinghammer, 2010 WL 200058 (Iowa App. 2010) (snow covering license plate was sufficient to support stop). - 911 Calls- State v. Kooima, 833 N.W.2d 202 (Iowa 2013)(anonymous tip did not support basis for stop because it only had vague assertion that driver was impaired) - suspicious activity/late night parking- State v. Standley, 2003 WL 22336257 (Iowa App. 2003) (late night parking at a cemetery is sufficient to support stop of vehicle) - community caretaking- State v. Kurth, 813 N.W.2d 270 (Iowa 2012) (blocking vehicle in parking spot constitutes a seizure and seeing someone hit a sign that was in the middle of road was not justified under community caretaking) 2. Warrantless Vehicle Searches - consent- State v. Pals, 805 N.W.2d 767 (Iowa 2011) ( consent to vehicle search held invalid following traffic stop under Iowa Constitution) - search incident to arrest- State v. Gaskins, 866 N.W.2d 1 (Iowa 2017) (significantly limiting the scope of the search incident to arrest exception under the Iowa Constitution when the person is detained in the back of the squad car) - automobile exception- State v. Storm, 898 N.W.2d 140 (Iowa 2017)(automobile exception is still alive and well under the Iowa Constution so long as they can’t get a warrant) - prolonged detention- In re Pardee, 872 N.W.2d 384 (Iowa 2015)(finding a prolonged detention of 25 minutes to wait for a drug dog unreasonable) 3. Warrantless Search of Persons

3 The cases cited under this subsection are not exclusive as there are many opinions for each category with differing factual scenarios and these are meant to only provide a starting point for your research.

- for alcohol- State v. Pettijohn, -- N.W.2d—(Iowa 2017) (breath tests are constitutional search not subject to the search incident to arrest exception under the Iowa Constitution; also a good discussion of consent factors. - for weapons- State v. Cline, 617 N.W.2d 277 (Iowa 2000) (presence in known drug area and flight from police did not establish probable cause to search her person) abrogated on other grounds by State v. Turner, 630 N.W.2d 601 (Iowa 2001) 4. Warrantless Searches of Homes - while on parole- State v. Baldon, 829 N.W.2d 785 (Iowa 2013) (holding that written consent to search on parole agreement was not valid consent) - mere acquiescence- State v. Ochoa, 792 N.W.2d 260 (Iowa 2010) (search of parolees motel room unconstitutional because he merely acquiesced when the officer said he was going to search - for purposes of investigation of crime- State v. Lovig, 675 N.W.2d 557 (Iowa 2004) (exigent circumstances due to dissipation of alcohol did not provide officer a basis to make a warrantless entry into an apartment). - hot pursuit- State v. Legg, 633 N.W.2d 763 (Iowa 2001) (warrantless entry into garage while officer was in hot pursuit was justified) - apparent authority to consent- State v. Jackson, 878 N.W.2d 422 (Iowa 2016) (apparent authority to consent to a search does not validate the search under the consent exception) 5. Warrantless Searches of Things - cell phone- Riley v. California, 134 S. Ct, 2473 (2014) (search warrant is required to search a cellphone as search incident to arrest exception does not apply). 6. Defects in Search Warrants - application not signed by officer- State v. Angel, 893 N.W.2d 904 (Iowa 20017) (as long as the search warrant was supported by oath or affirmation failure to sign the warrant to not render it defective) - troubles with endorsement- State v. Liesche, 228 N.W.2d 44 (Iowa 1975) - lack of probable cause- State v. Gogg, 561 N.W.2d 360 (Iowa 1997) (warrant lacking in probable cause for search of stolen computer equipment and for all persons at the residence) - anticipatory search warrant- State v. Ramirez, 895 N.W.2d 884 (Iowa 2017) (state issued anticipatory search warrant is illegal but federally issued anticipatory search warrant is not)

- materially false information- State v. Groff, 323 N.W.2d 204 (Iowa 1982) (materially false statements in a search warrant application may not be considered in determining probable cause) B. Fifth Amendment and Article 1, Section 9 - request for attorney- State v. Walls, 761 N.W.2d 683 (Iowa 2009) (police officer’s decision to proceeding with a custodial interrogation after defendant requested an attorney violated Fifth Amendment and statement was not admissible) - voluntary waiver- State v. Harris, 741 N.W.2d 1 (Iowa 2007) (police may not cajole a defendant into waiving his Fifth Amendment Rights) -promissory leniency- State v. Madsen, 813 N.W.2d 714 (Iowa 2012) (promises of leniency render statements involuntary and therefore inadmissible as a violation of the Fifth Amendment) - refusal to answer questions by court- State v. Washington, 832 N.W.2d 650 (Iowa 2013)( the court cannot penalize a person for refusing to answer questions) - post arrest/post Miranda Silence- State v. Metz, 636 N.W.2d 94 (Iowa 2001) (post arrest post Miranda silence of a Defendant is not admissible) - pre-arrest/ Miranda silence- Salinas v. Texas, 133 S. Ct. 2174 (2013) (under federal constitution pre-arrest silence may be admissible) C. Sixth Amendment and Article 1, Section 10 -when does right attach- State v. Senn, 882 N.W.2d 1 (Iowa 2016) (at the time charges are filed and where a confidential call to an attorney is denied prior to that time there is no violation) - informants- State v. Marshall, 882 N.W.2d 68 (Iowa 2016) (an information if classified as an agent for the State may not deliberately illicit incriminating information from a defendant) D. Fourteenth Amendment - right to present a defense- State v. Laforge, 2009 WL 1708843 (Iowa App. Unpublished 2009) (discussing the destruction of blood in an OWI as a basis for suppression) - fundamental fairness- State v. Massengale, 745 N.W.2d 499 (Iowa 2008) (holding the implied consent advisory violated due process because it improperly informed individuals about the applicable license suspensions and thus resulting breath test should be suppressed) abrogated on other grounds by State v. Hutton, 796 N.W.2d 898 (Iowa 2011).

- lineups- State v. Walton, 424 N.W.2d 444 (Iowa 1988) (discussing due process violation in light of a unnecessarily suggestive pretrial identification procedures) V. Specific Statutory Rights to Keep in Mind A. Iowa Code Section 804.20- right to call, consult, and see a family member - doesn’t just apply to OWI’s- State v. Moorehead, 699 N.W.2d 667, 674 (Iowa 2005) (804.20 “is a statute of general application,” and its scope is larger that OWI cases) - sufficient timing of request- Id.- doesn’t require formal arrest and a request at the scene may be sufficient to trigger the right - purpose of call- State v. Garrity, 765 N.W.2d 592 (Iowa 2009) (request for telephone call can be for any purpose in order to trigger statute) - officer’s obligation- State v. Hicks, 791 N.W.2d 89 (Iowa 2010) (once the right is invoked officer has to take affirmative steps to facilitate the exercising of the right) - private face to face consultation- State v. Walker, 804 N.W.2d 284 (Iowa 2011) (preventing face to face meeting with attorney was a violation) - private phone call request- State v. Hellstern, 856 N.W.2d 355 (Iowa 2014) (a request for a private phone call triggers officer’s obligation to explain the options articulated in Walker.) B. Iowa Code Section 321J.11- right to independent test in OWI cases - State v. Lukins, 846 N.W.2d 902 (Iowa 2014) (request for second breath test triggers office’s obligation to explain the right to independent testing and failure to do so requires suppression. C. Iowa Code Section 321J.6- statutory basis for invoking implied consent - existence of necessary conditions- State v. Albrecht, 657 N.W.2d 474 (Iowa 2003)(outlining the statutory prerequisites for invoking implied consent) - test requested outside of two hour- State v. Kjos, 524 N.W.2d 195 (Iowa 1994) (breath test requested more than two hours after arrest or PBT whichever occurs first and under the threat of license suspension is not admissible) - written request requirement- State v. Fischer, 785 N.W.2d 697 (Iowa 2010) (finding that “the request [for breath test] itself is the only portion that is statutorily required to be in writing and signed by the driver prior to the administration of the test.” - reasonable grounds requirement- Munson v. Iowa Dept., of Transp., 513 N.W.2d 722 (Iowa 1997) (officer lacked the requisite reasonable grounds to

believe the person operated while intoxicated and therefore did not have a basis to invoke implied consent) D. Iowa Code Section 321J.9- Refusal of Chemical Test - refusal is determinative- State v. Hitchens, 294 N.W.2d 686 (Iowa 1980) (officers are precluded from obtaining a search warrant to obtain a blood sample once the person has exercised their statutory right to refuse under the implied consent statutes.) E. Iowa Code Section 321J.10A- emergency situation to forgo warrant - emergency situation- State v. Harris, 763 N.W.2d 269 (Iowa 2009) (officer did not have belief he was confronted with an emergency situation in order to forgo a warrant pursuant to the mandates of this code section F. Iowa Code Section 321J.7- dead or unconscious person - Dr. Certification- State v. Scott, 2012 WL 3196050 (Iowa App. Unpublished) (failure of doctor to sign certification form precluded the use of the test results) G. Iowa Code Section 808.3- Applications for Search Warrants - credibility finding by magistrate for informant- State v. Weir, 414 N.W.2d 327 (Iowa 1987) H. Iowa Code Section 808.5- Execution of Search Warrant - not much for caselaw here I. Iowa Code Section 808.6- Forcible Execution of Search Warrant - knock and announce rule- State v. Cohrs, 484 N.W.2d 223 (Iowa App. 1992) (finding knock and announce rule was not violated. J. Iowa Code Section 808.7- Detention and Search of Persons on Premises - arrival during execution- State v. Prior, 617 N.W.2d 260 (Iowa 2000) (finding police could not detain and search a person arriving at an apartment as police were execution and all persons search warrant for drugs) K- Chapter 808A- Student Searches L. Chapter 808B- Interception of Communications VI. Drafting the Motion and Brief - Iowa follows notice pleadings therefore your motion does not need to spell out every fact and legal argument but it must apprise the State as to what each legal issue is. See State v. Washington, 257 N.W.2d 890 (Iowa 1977) (just a broad reference to a constitutional provision is insufficient to alert the court to the challenged issue).

- Try to include specific references to support all of the factual allegations you can (i.e. patrol car video at 3:42; deposition transcript at P.2, etc). Not only does this help you make sure you get those facts in but it helps direct the court.

- A motion to suppress can be amended outside the 40 days to include a new basis for suppression as long as you are seeking to suppress the same evidence otherwise you should probably ask for a good cause finding. See State v. Anderson, 2000 WL 766249 (Iowa App. Unpublished)

- Each motion to suppress should be supported by a brief unless there is a case or cases directly on point in which case they should be cited in your motion.

- Be sure to include each ground you have as a basis for suppression and to notify the court in the motion if you intend on seeking more protections under the Iowa Constitution than the Federal Constitution

VII. Arguing the Motion - Make sure you have your evidence organized and ready to be presented - Find out in advance if the judge wants any videos played in open court so you can plan accordingly - File proposed exhibits for the motion several days in advance of the hearing so the judge can familiarize himself with them - Make sure to get every fact in the record you need to support the motion - Anticipate any questions the judge may have VIII. Other Tidbits - Make sure to secure a ruling on each and every ground urged in the motion to suppress because failure to do so constitutes waiver of those issues on appeal - If you get a implied consent test or refusal suppressed make sure to file a petition to rescind the license revocation pursuant to Iowa Code Section 321J.13(6) - Don’t be afraid to ask the judge to reconsider his ruling if you think it is wrong - Another judge is NOT precluded from reconsidering a prior judges ruling on a motion to suppress. State v. Richards, 229 N.W.2d 229 (Iowa 1975). - On appeal both the evidence introduced at the motion to suppress and at trial is reviewed so if you do miss something at the motion to suppress make sure to get it in at trial.

IN THE IOWA DISTRICT COURT FOR DALLAS COUNTY

STATE OF IOWA, Case No.: OWCR00000 Plaintiff,

12 vs. JOEJOE SMITH, MOTION TO SUPPRESS AND MOTION TO CONTINUE Defendant.

COMES NOW attorney, Matthew T. Lindholm, for and on behalf of the Defendant and hereby states the following in support of his Motion to Suppress and Motion to Continue:

1. The Defendant was stopped, investigated, and ultimately arrested for Operating While Intoxicated, First Offense, in violation of Iowa Code Section 321J.2 on February 4, 2017, by Officer Smith of the Waukee Police Department. 2. Following his arrest, he was taken to the Dallas County Jail where he was read the implied consent advisory and offered the opportunity to call, consult, and see an attorney family member or both pursuant to Iowa Code Section 804.20. 3. The Defendant requested to call attorney Gary Jones and was allowed to place telephone calls to him on the land line in the holding cell. 4. The Defendant was provided Mr. Jones’s office number by jail staff after looking it up on the internet. 5. However, Mr. Smith was not able to get ahold of Mr. Jones and eventually requested his cell phone to either look up numbers or attempt to get ahold of Mr. Jones via Facebook Messenger.4 6. His request to use his cellular telephone in an attempt to contact Mr. Jones was denied. See station video at 51:40. 7. Additionally, it is believed that the telephone calls Mr. Smith placed on the land line in the holding cell to his fiancé and Mr. Jones were recorded without his knowledge.

4 Facebook Messenger is an instant messaging application whereby people can send and receive messages to each other much like test messaging.

8. Mr. Smith eventually asked what the criminal penalties were prior to submitting to the Datamaster and was told that the maximum jail time was one year and the maximum fine was $1875. See station video at 1:04. 9. Mr. Smith was eventually required to make a decision about submitting to chemical testing without the assistance of an attorney and failed the test with a result of .17. 10. After consulting with the attorney, the Defendant ultimately submitted to the Datamaster test with a result of .154. 11. Mr. Smith asserts that suppression of the following evidence is appropriate for the following reasons: A. The implied consent proceedings and test results should be suppressed because Mr. Smith’s rights under Iowa Code Section 804.20 were violated because he was not allowed to use his cellular telephone to attempt to secure an attorney. B. The implied consent proceedings and breath test results must be suppressed because Mr. Smith’s telephone conversations were recorded without his knowledge or consent in violation of Iowa Code Sections 727.8, 808B.2, and 808B.7. C. The breath test result and implied consent proceedings must be suppressed because Mr. Smith was improperly informed about what the criminal consequences were (i.e. fine of $1875) prior to submitting to the Datamaster which this information: i. violated his Due Process rights under the Iowa and United States Constitutions. See State v. Massengale, 745 N.W.2d 499 (Iowa 2008) (finding a due process violation when the person was misinformed about the applicable CDL suspension periods). ii. the misinformation violated Iowa Code Section 321J.8.

iii. the misinformation prevented Mr. Smith from making a knowing and informed decision to submit to chemical testing. WHEREFORE, the Defendant requests that the court set this matter for hearing and that following hearing, an order be entered suppressing the above evidence for the above stated reasons.

Respectfully Submitted, GOURLEY, REHKEMPER, & LINDHOLM, P.L.C. By: /s/ Matthew Lindholm ______Matthew T. Lindholm, AT0004746 440 Fairway, Suite 210 West Des Moines, IA 50266 Telephone No. (515) 226-0500 Email: [email protected] ATTORNEY FOR DEFENDANT

ORIGINAL FILED. CERTIFICATE OF SERVICE The undersigned certifies that the foregoing instrument was served upon all parties to the above Copy to: cause to each of the attorneys of record herein at Dallas County Attorney their respective addresses disclosed on the pleadings on

______, 2017.

IN THE IOWA DISTRICT COURT FOR DALLAS COUNTY

STATE OF IOWA, Case No.: OWCR00000 Plaintiff, vs. JOEJOE SMITH, Defendant. BRIEF IN SUPPORT OF DEFENDANT’S MOTION TO SUPPRESS

COMES NOW attorney, Matthew T. Lindholm, for and on behalf of the Defendant and hereby states the following in support of his Brief in Support of Motion to Suppress:

I. VIOLATION OF IOWA CODE SECTION 804.20.

The Defendant has asserted that his rights under Iowa Code Section 804.20 were violated because (1) the officer would not allow him to contact his attorney through Facebook messenger and (2) because he was prohibited from using his cell phone at all in an effort to secure an attorney. Each of these arguments will be addressed in turn.

A. Facebook Messenger.

The State has resisted the Defendant’s motion to suppress on this ground by arguing that “nothing in the language of Section 804.20 requires that officers all[ow] defendants unlimited access to their cellular telephone to use a variety of different means to contact an attorney.” However, the State’s position seems to miss the mark because Iowa Code Section 804.20 allows the person to “call, consult, and see an attorney and family member.” Mr. Smith’s request to contact his attorney via Facebook messenger was a request to “call” and/or a request to “consult” as those words are used in Iowa Code Section 804.20 and the refusal to allow Mr. Smith access to his phone for that reason violated Iowa Code Section 804.20.

Although the undersigned was unable to find any Iowa cases discussing whether use of a text messaging application such as Facebook Messenger constitutes a “call” as used in Iowa Code Section 804.20, the United States Supreme Court has concluded that text messages constitute a “call” as that word is used in the Telephone Consumer Protection Act. See

Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 667 (2016). Thus, to the extent that Mr. Smith was prevented from using Facebook Messenger on his cell phone to contact his attorney, he was denied his right to “call” his attorney as that word is used in Iowa Code Section 804.20.

As it relates to the word “consult” in Iowa Code Section 804.20, in the absence of legislative definition, words are to be given their ordinary meaning when used in statutes. State v. Kidd, 562 N.W.2d 764 (Iowa 1997). When determining the meaning of a particular word used in a statute “it will not be presumed that useless and meaningless words are used in a legislative enactment, and an interpretation reaching that result should be avoided if possible. Mallory v. Paradise, 173 N.W.2d 264 (Iowa 1969). Moreover, courts “are to interpret the operative statutory language to “best achieve the statute’s purpose.” State v. Bower, 725 N.W.2d 435, 442 (Iowa 2006).

The undersigned is unable to find any legislative definition either in the code or under caselaw for the word “consult” as used in Iowa Code Section 804.20. In the absence of a legislative definition a dictionary should be “consulted” to give words their plain and ordinary meaning. Lauridsen v. City of Okoboji Bd. Of Adjustment, 554 N.W.2d 541, 544 (Iowa 1996); see Iowa Code Section 4.1(38). Merriam Webster5 defines the word “consult” as follows:

Transitive Verb Definition

1. to have regard to

2. a. to ask the advice or opinion of

b. to refer to

Intransitive Verb Definition

1. to consult an individual

5 https://www.merriam-webster.com/dictionary/consult

2. to deliberate together

3. to serve as a consultant

Interestingly, the dictionary fails to limit any particular mode of communication to effectuate the meaning of the word and the purpose of the statute. Contrary to the State’s assertion, there is no authority for which this court can conclude the term “consult” as used in Iowa Code Section 804.20 does not and should not apply to the use of Facebook Messenger as a viable mode in which to contact an attorney. To hold otherwise would render the use of the word “consult” meaningless as used in Iowa Code Section 804.20.

It is important to remember that “section 804.20 is to be applied in a pragmatic manner, balancing the rights of the arrestee and the goals of the chemical-testing statutes.” State v. Tubbs, 690 N.W.2d 911, 914 (Iowa 2005). The legislative purpose of section 804.20 is to afford detained suspected the opportunity to communicate with a family member and attorney. State v. Vietor, 261 N.W.2d 828, 831 (Iowa 1978). The “best way to further this statutory purpose is to liberally construe a suspect’s invocation of this right.” “The legislature has deemed that a detainee’s right to communicate with family or counsel to be a tolerable burden on law enforcement and suitably balances the state’s law enforcement needs with the right of the accused.” Hicks, 791 N.W.2d at 95.

The State presented no evidence at the suppression hearing and has made no argument that allowing Mr. Smith to use Facebook Messenger would somehow interfere with the “goals of the chemical-testing statutes.” Thus, interpreting the use of the words “call” or “consult” as used in Iowa Code Section 804.20 to include Facebook Messenger as a mode of communication to contact an attorney would be to “liberally construe” this right and would effectuate the purpose of Iowa Code Section 804.20 without frustrating any goals of the chemical-testing statutes. Thus, the failure to allow Mr. Smith the opportunity to contact his attorney via Facebook Messenger violated Iowa Code Section 804.20.

The Court inquired about whether it was important that there was no evidence

presented in the record to show that Mr. Smith would have had cellular telephone reception in the jail. Essentially the Court’s inquiry was whether Mr. Smith was prejudiced by the refusal to

allow him the use of Facebook Messenger to contact his attorney given that there was no

testimony as to whether Facebook Messenger would even have worked in the jail. To this

point, the Iowa Supreme Court has succinctly stated that “prejudice is presumed upon a

violation of section 804.20.” Id. at 296 citing State v. Moorhead, 699 N.W.2d 667, 673 (Iowa

2005). Given that prejudice is presumed, it is irrelevant whether the record reflects that he

would or would not have had cell phone reception.

B. Refusal to Allow the Use of his Cell Phone at All. It is undisputed that Mr. Smith was not allowed the use of his cell phone at all. In fact,

he was specifically told that all phone calls had to be placed on the jail phone which was

recorded and if he wanted to have access to any phone numbers in his phone, jail would look

them up in his phone. Thus, Mr. Smith was faced with the unreasonable choice of not calling an

attorney or calling an attorney on a recorded phone line and potentially giving up the protected

privacy interests in his phone to the police so that they could look up numbers for him.

The Iowa Supreme Court has recognized that “if a criminal defendant is to receive the

full benefits of the right to counsel, the confidence and privacy of communications with counsel

must be assured.” Walker 804 N.W.2d at 294. Additionally, the Iowa Supreme Court has

recognized that many attorney’s who consult with person’s by telephone tell their clients to

answer questions with only a yes or no answer so as to avoid the admissibility of any

incriminating statements being made by the client. Id.

Given these acknowledgments by the Iowa Supreme Court, it was unreasonable to deny

Mr. Smith the use of his cell phone while attempting to exercise his rights under Iowa Code

Section 804.20. As the State aptly points out the holding in State v. Fox, 493 N.W.2d 829 (Iowa

1992), provides that the conversations on the recorded line can be used against the Defendant

in the criminal prosecution. In other words, the officer and/or jail staff created a catch 22 for

Mr. Smith in which he either placed a call on a recorded line which wouldn’t have even afforded

him the protections of “yes” or “no” answers in order to secure any competent legal advice or

forgo a call completely. It is important to note, that the Iowa Supreme Court has cautioned that

804.20 should not be interpreted, applied, and restricted so as to make it an “illusory statutory

right.” Hicks, 791 N.W.2d at 97. The refusal to allow Mr. Smith the use of his cell phone and

only giving him the option of calling an attorney on a recorded jail phone transforms Iowa Code

Section 804.20 into an “illusory right.”

II. MISLEADING INFORMATION.

It is undisputed that Mr. Smith was arrested with and only facing the charge of operating while intoxicated first offense. Nevertheless, he requested to know what the fine was if he was convicted before deciding whether to submit to or refuse the chemical test and the officer responded that the fine would be $1875. However, the maximum fine that could be imposed is $1250. See Iowa Code Section 321J.2(2)(a)(2). Mr. Smith argues that this misleading information violated (1) his due process rights, (2) the misinformation violated Iowa

Code Section 321J.8, and (3) it prevented Mr. Smith from making a knowing and informed decision to consent to chemical testing. Each of these arguments will be address in turn.

A. Due Process Violation.

The due process clause of the United States Constitution prohibits governmental

deprivation of life, liberty, or property without “fundamental fairness” through governmental

conduct that offends the community’s sense of justice, decency and fair play. Moran v.

Burbine, 475 U.S. 412, 432-4324 (1986); United States v. Russell, 411 U.S. 423, 432 (1986);

Hannah v. Larche, 363 U.S. 420 (1960); Rochin v. California, 342 U.S. 165, 172-73 (1952). The

Iowa Supreme Court has agreed that due process is implicated by the admission of a breath test

result in a criminal prosecution that may have an adverse affect on the defendant’s liberty

interest. State v. Knous, 313 N.W.2d 510, 511 (Iowa 1981). For over half-a-century, the United

States Supreme Court has mandated suppression of evidence, the admission of which would

result in a violation of a criminal defendant’s due process rights under the 14th Amendment to the United States Constitution and Article 1 Section 9 of the Iowa Constitution. See Chambers v. Florida, 309 U.S. 227 (1940) (due process mandated exclusion of improperly obtained confession); Stovall v. Denno, 388 U.S. 293 (1967) (due process mandated exclusion of identification resulting from unnecessarily suggestive out of court identification procedures).

The present situation is very similar to the situation presented in South Dakota v.

Neville, 459 U.S. 610 (1976), where the Supreme Court suggested that the use of implicit promises to forego the use of evidence that would unfairly trick the defendant would violate

due process. In Neville it was determined that the use of a breath test refusal when the

Defendant is not warned about the use of the refusal at trial did not violate due process.

However, the Court indicated that the failure to warn the Defendant that his refusal could be used against him “was not the sort of implicit promise to forego use of evidence that would

unfairly trick respondent if the evidence were later offered against him at trial.” Id. at 566. In

the present case Mr. Smith was informed that there would be a greater penalty than could

legally be imposed if he was convicted of the crime of OWI first offense. Although not a

promise to forgo the use of evidence, it certainly was a statement that promised something

that was not possible.

Similarly, in State v. Massengale, 745 N.W. 2d 499 (Iowa 2008), the Iowa Supreme Court

concluded a substantive due process violation occurred when an officer failed to adequately

advise the arrestee about the consequences of submitting to the chemical test. A situation had

been created whereby the arresstee was led to believe that his commercial driving privileges

would only be suspended for 180 days if he consented to the test and failed it. However,

another code section required suspension of his commercial driver’s license for 1 year if he

consented to the test and failed it. Thus, the Court found that there was a violation of the

Defendant’s due process rights since Massengale was not correctly informed about the CDL

consequences.

Much like Massengale, Mr. Smith was told there would be a penalty that was not consistent with what the law provided. Although the Mr. Smith was advised the penalty was greater than could be imposed be law, the analysis in Massengale remains unchanged as a person who is improperly informed there is a greater penalty that provided by law would be much more likely to take the taken and attempt to pass the test to avoid that penalty. As such, the Court should find that the misstatement violated Mr. Smith’s due process rights and suppress the test result and implied consent proceedings.

B. Violation of Iowa Code Section 321J.8.

Iowa Code Section 321J.8 reads in relevant part:

1. A person who has been requested to submit to a chemical test shall be advised by the peace officer of the following:

a. If the person refuses to submit to the test, the person’s driver’s license or nonresident operating privilege will be revoked by the department as required by and for the applicable period specified under 321J.9.

b. If the person submits to the test and the results indicate the presence of a controlled substance or other drug, or an alcohol concentration equal to or in excess of the level prohibited by section 321J.2 or 321J.2A, the persons driver’s license will be revoked by the department as required by and for the applicable period specified under section 321J.12.

The purpose behind the statutory requirements of section 321J.8 is to ensure that the individual’s decision regarding chemical testing is “reasoned and informed.” State v. Gravenish,

657 N.W.2d 469, 473 (Iowa 2003); see also State v. Bernhard, 657 N.W.2d 469, 473 (Iowa 2003).

When a person is not informed about the consequences for refusing to submit to chemical testing, there is a violation of Iowa Code Section 321J.8. Dickerson v. Iowa Dept. of Trans. 786

N.W.2d 874 (Table Iowa App. 2010), 2010 WL 2384866. The duty disclosed by the use of the word “shall” in Iowa Code Section 321J.8 is mandatory. Id. Failure to perform a duty under a mandatory statutory provision invalidates subsequent proceedings under that statute.

Downing v. Iowa Dept. of Trasnp, 415 N.W.2d 625, 628 (Iowa 1987).

In the present case, the statutory mandate provided by Iowa Code Section 321J.8 was not followed because additional penalty information was incorrectly provided to Mr. Smith

23 than what is required by the statute and as such the breath test result and implied consent proceedings should be suppressed.

C. Lack of Informed Consent. It is well settled that for consent to be valid, it must be voluntary and uncoerced. State v. Holland, 389 N.W. 2d 375, 381 (Iowa 1986). When coercion is alleged, the State must prove by a preponderance of the evidence the absence of undue pressure or duress. State v.

Stanford, 474 N.W. 2d 573, 575 (Iowa 1991). Statements are voluntary if they are the product of essentially unconstrained choice, made by a defendant whose will was not overcome or whose capacity for self-determination was not crucially impaired. State v. Payton, 481 N.W. 2d

325, 328 (Iowa 1992).

The purpose behind the statutory requirements of section 321J.8 is to ensure that the individual’s decision regarding chemical testing is “reasoned and informed.” State v. Gravenish,

657 N.W.2d 469, 473 (Iowa 2003); see also State v. Bernhard, 657 N.W.2d 469, 473 (Iowa 2003).

The requirement that an individual’s decision regarding chemical testing be “reasoned and informed” in the implied consent context is much more stringent than the normal Fourth

Amendment consent analysis. Under the Fourth Amendment, an individual’s consent must only be freely and voluntarily made, it does not need to be intelligent nor informed.

Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The reasoning behind the Fourth

Amendment’s relaxed standard is that the individual is ordinarily not yet in custody, the decision is usually not made in an a coercive environment, and may be withdrawn at any time.

See generally Id.; see also State v. Myer, 441 N.W.2d 762 (Iowa 1989).

Implied consent proceedings are completely different. Implied consent procedure “by its very nature, operates on the thin edges of acceptable due process standards,” Boyer v. Iowa

Department of Transportation, 2001 WL 1448206, 2,;(Iowa App. 2001) (unpublished opinion) and mandates a decision be made in a hostile and legislatively created coercive environment often times without the assistance of counsel or advice of family and friends. Hoffman v. Iowa

Department of Transportation, 257 N.W.2d 22, 27-28 (Iowa 1977) (Justice Mason, specially concurring) quoting Prideaux v. State Department of Public Safety, 247 N.W.2d 385, 388-389

(Minn. 1976). Once the decision is made, it cannot be changed, altered or withdrawn.

“Anything less than an unqualified and unequivocal consent to provide a specimen will be viewed as a refusal.” Ferguson v. Iowa Department of Transportation, 424 N.W.2d 464, 466

(Iowa 1988). A request by a law enforcement officer for a chemical specimen is not an occasion for “debate, maneuver or negotiation, but rather for a simple ‘yes' or ‘no’ to the officer’s request.” Swenumson v. Iowa Department of Public Safety, 210 N.W.2d 660, 662 (Iowa 1973).

Additionally, the impact of this decision on the individual’s life and liberty interests is immediate and enduring.

The present situation is similar to State v. Kjos, 524 N.W. 2d 195 (Iowa 1994), where it was determined that the false threat of a license revocation rendered the motorists consent invalid. In Kjos, the officer incorrectly informed Mr. Kjos that if he refused to consent to the test his driver’s license would be suspended. This statement was incorrect because more than two hours had lapsed since he was arrested before the officer requested that he submit to chemical testing and thus by statute there could be no revocation. The Court found that “the police officer who arrested Kjos was precluded from telling Kjos that his license would be

25 automatically revoked if he did not consent to the test.” Id at 197. See also State v. Vietor, 261

N.W.2d 828, 831 (Iowa 1978) (holding that the police could not tell a person arrested for OWI that they did not have the right to talk to an attorney.) Although the court in Kojos determined that a false threat of license revocation rendered the consent invalid, the same can and should be said for a breath test failure that is obtained from a motorist who is incorrectly informed about a criminal penalty. Most interestingly, the Court in Kjos did not required any evidence to be presented by the Defendant that his consent was tainted by the misinformation before deciding suppression was the appropriate remedy.

D. The State’s Argument.

The State contends that the holdings in State v. Bernhard, 657 N.W.2d 469 (iowa 2003) and State v. Hutton, 796 N.W.2d 898 (Iowa 2011), require the court to deny Mr. Smith’s motion because “not every inaccurate piece of information by a police officer is grounds for suppression. The State’s reliance on those cases is misplaced as discussed below.

The application of Hutton and Bernhard to the current situation is misplaced for the following reasons: (1) in each of these cases the Court found that the inaccuracies could not have influenced the Defendant’s decision, and (2) the overall inaccuracies were not really inaccuracies at all in light of the entire statutory framework the Defendant was facing. In the present case, the inaccuracy could have easily swayed Mr. Smith’s decision from refusing the test to trying to pass the test in order to avoid having to pay a greater fine that authorized by law. This change of position was detrimental to Mr. Smith because had he refused he would not have provided the State with the incriminating evidence of his breath test result.

Additionally, the misinformation he was provided was not correct within the entire statutory

context he was facing as there was no possibility that the fine could have been $1875. In fact,

the fine could have been as little as $625 if he got a temporary restricted license. See Iowa

Code Section 321J.2(2)(a)(2). In fact, the fine could have been completely suspended by the

court as well. See State v. Kramer, 773 N.W.2d 897 (Iowa 2009) (finding that the fine in an OWI

offense can be completely suspended. These differences put the misinformation provided in

this case outside the misinformation provided in Hutton and Bernhard and therefore make the inapplicable.

More importantly, if there are no repercussions when officer’s provide misleading information to arrestees whether intentionally or not, we open the door for coercion, threats, promises, and misleading advice by officers at all levels. This information undermines the intent of these particular statutes (i.e. to afford the arrestee a basis for decision making).

Although the State is correct in their assertion that “police are not required to inform the defendant of all possible consequences for a defendant to make an informed decision” however, when an officer chooses to provide information that may affect a person’s decision, and that is not required by statute, that information should be correct so that the persons is not misled. For the above reasons, the misinformation provided to Mr. Smith is sufficient to

suppress the test results and implied consent proceedings.

III. VIOLATION OF CHAPTER 808B.

Mr. Smith withdraws this allegation as a basis for suppression.

WHEREFORE Mr. Smith requests that the Court enter an order granting the Defendant’s motion to suppress for the reasons stated above.

Respectfully Submitted, GOURLEY, REHKEMPER, & LINDHOLM, P.L.C.

By: /s/ Matthew Lindholm ______Matthew T. Lindholm, AT0004746 440 Fairway, Suite 210 West Des Moines, IA 50266 Telephone No. (515) 226-0500 Email: [email protected] ATTORNEY FOR DEFENDANT

ORIGINAL FILED. CERTIFICATE OF SERVICE The undersigned certifies that the foregoing instrument was served upon all parties to the Copy to: above cause to each of the attorneys of record Dallas County Attorney herein at their respective addresses disclosed on the pleadings on

2017

Federal Case Law Update

1:00 p.m. - 2:00 p.m.

Presented by: Hon. Helen Adams United States Magistrate Judge United States District Court Southern District of Iowa 123 E. Walnut, Room 420 Des Moines, IA Phone: 515-284-6217

Friday, September 15, 2017

FEDERAL CASE UPDATE SELECTED 2016-17 EIGHTH CIRCUIT AND SUPREME COURT CASES

Helen C. Adams

United States Magistrate Judge United States District Court Southern District of Iowa 123 E. Walnut, Rm. 420 Des Moines, Iowa (515) 284-6217 Fax: (515) 284-6442

I. CIVIL LITIGATION AND PROCEDURE ...... 3 A. Jurisdiction ...... 3 B. Procedure ...... 6 C. Causes of Action ...... 11 D. Evidence ...... 21 II. CRIMINAL LAW ...... 22 A. Criminal Acts ...... 22 B. Procedure ...... 25 C. Fourth Amendment ...... 30 D. Fifth Amendment ...... 36 E. Due Process/Evidence ...... 37 F. Sixth Amendment ...... 42 G. Eighth Amendment ...... 43 H. Sentencing ...... 43 I. Habeas ...... 58 III. EMPLOYMENT LAW ...... 62 A. Disability ...... 62 B. Race/Gender/Retaliation ...... 62 C. FMLA ...... 65 D. FLSA ...... 65 E. Miscellaneous Employment Cases ...... 65 IV. CONSTITUTIONAL LAW ...... 68 A. First Amendment ...... 68 B. Fourth Amendment ...... 69 C. Due Process/Equal Protection ...... 71 D. Eighth Amendment ...... 75 E. Miscellaneous Constitutional Claims ...... 75 V. ERISA ...... 76 1

VI. PRISONERS’ RIGHTS ...... 77 A. First Amendment ...... 77 B. Eighth Amendment ...... 77 C. Miscellaneous ...... 77 VII. MISCELLANEOUS ...... 77

I. CIVIL LITIGATION AND PROCEDURE

A. Jurisdiction

Supreme Court Cases

1. Lightfoot v. Cendant Mortg. Corp., 137 S. Ct. 553 (2017) The inclusion of the phrase “any court of competent jurisdiction” in sue-and-be-sued clause of Fannie Mae’s charter did not grant federal courts subject-matter jurisdiction over all cases involving Fannie Mae, it merely permitted suit in courts already endowed with subject-matter jurisdiction.

2. Bolivarian Republic of Venez. v. Helmerich & Payne Int’l Drilling Co., 137 S. Ct. 1312 (2017) A party’s incorrect argument that the Venezuelan government took property in violation of international law is insufficient to confer jurisdiction under the Foreign Sovereign Immunities Act’s expropriation exception. Rather, state and federal courts only have jurisdiction to hear the merits of a case if the property in which the party claims to hold rights in was indeed “property taken in violation of international law” within the meaning of the exception.

3. Water Splash, Inc. v. Menon, 137 S. Ct. 1504 (2017) The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters does not prohibit service of process by mail.

4. Bristol-Myers Squibb Co. v. Super. Ct. of Cal., 137 S. Ct. 1773 (2017) Nonresident consumers’ products liability claims against nonresident prescription drug manufacturer were not connected to California, and, thus, due process did not permit California state court’s exercise of specific personal jurisdiction over claims there.

Eight Circuit Cases

5. Owner-Operator Indep. Drivers Assoc. v. U.S. Dept. of Trans., 831 F.3d 961 (8th Cir. 2016) Organization lacked associational standing because it failed to show that its cited member suffered an injury when Department of Transportation lifted a reporting restriction on member’s competitors. District court found that member did not suffer because competitors did not benefit.

6. Bramblett v. City of Columbia, 831 F.3d 999 (8th Cir. 2016) Eighth Circuit lacked jurisdiction to consider police chief’s interlocutory appeal of the district court’s denial of qualified immunity in a § 1983 employment suit. When a district court denies summary judgment based on qualified immunity, the defendant may appeal the purely legal issue of whether the facts alleged support a claim of violation of clearly established law. A defendant, however, is prohibited from appealing a denial of summary judgment based on qualified immunity when the denial, as is the case here, is based on a determination that there are genuine issues of fact for trial.

7. E. Iowa Plastics, Inc. v. PI, Inc., 832 F.3d 899 (8th Cir. 2016) District court lacked standing to cancel defendant’s trademark registration and award attorney’s fees after finding that plaintiff had not suffered from defendant’s wrongful registration of the mark. Plaintiff could not prove defendant’s use of the mark actually injured it and a claim for attorney’s fees is not an injury if damages do not support the underlying claim.

8. Auer v. Trans Union, LLC, 834 F.3d 933 (8th Cir. 2016) District court’s order permitting city and city’s counsel to dispose of plaintiff’s credit report was not an injunction, thus it was not immediately appealable. Order was directed at the parties who asked for it, did not compel another party to act, and had nothing to do with plaintiff’s requested relief.

9. In re Genetically Modified Rice Litig., 835 F.3d 822 (8th Cir. 2016) District court overseeing multidistrict litigation had jurisdiction to order parties to deposit a portion of state-court settlement into a common benefit fund. Both of the parties ordered to deposit the portion of the settlement were parties in multiple federal cases the district court was overseeing.

10. Braitberg v. Charter Commc’ns, 836 F.3d. 925 (8th Cir. 2016) Cable customer claiming that cable company retained his personal information in violation of the Cable Communications Act failed to allege injury in fact. Customer alleged the company kept his information for longer than permitted under the statute. He did not allege it provided the information to third parties, that the company used the information, or that he was actually harmed by the company retaining it. This particular procedural violation is not a sufficient injury.

11. Great Lakes Gas Transmission Ltd. P’ship v. Essar Steel Minn., 843 F.3d 325 (8th Cir. 2016) District court lacked jurisdiction to hear breach-of-contract case. Limited partners destroyed diversity jurisdiction, and plaintiff’s breach of contract action did not “arise under” federal law because there was no explicit or implied cause of action in 15 U.S.C. § 717u. Statute only gives courts exclusive jurisdiction over cases that otherwise arise under federal law.

12. City of Ozark v. Union Pacific R.R. Co., 843 F.3d 1167 (8th Cir. 2016) District court erred in granting summary judgment in favor of City, which sought an order requiring Union Pacific to restore a public at-grade rail crossing that Union Pacific had closed 15 years prior in violation of state law. The Eighth Circuit held that the Interstate Commerce Commission Termination Act preempted the state action because the restoration would have significant adverse effects on current rail operations and would pose significant safety risks.

13. Williams v. Emp’rs Mut. Cas. Co., 845 F.3d 891 (8th Cir. 2017) After defendant-insured assigned its rights to indemnification from defendant-insurers to plaintiff, district court entered judgment against defendant-insureds. Plaintiff filed an equitable garnishment action against insured and insurers. Insurers moved for judgment on the pleadings and won. District court entered consent judgment against insured due to its indemnification agreement with plaintiff. Eighth Circuit held that the consent judgment was a final appealable order because it resolved all of plaintiff’s claims. Plaintiff did not waive right to appeal consent judgment because her agreement with the insured demonstrated that she agreed to the form, and not the substance, of the judgment. Judgment on the pleadings was not a final appealable order because the insured still remained in the equitable garnishment action.

14. In re Wholesale Grocery Prods. Antitrust Litig., 849 F.3d 761 (8th Cir. 2017) The Eighth Circuit lacked jurisdiction to consider appeal of district court’s order declining to reconsider the district court’s earlier class certification denial. Courts of appeals only have jurisdiction to consider interlocutory appeals of orders granting or denying class certification. This order only declined to reconsider court’s earlier motion to deny class certification, which was outside of the 14-day deadline to appeal.

15. Aly v. Hanzada for Import & Export Co., ___ F.3d ___, 2017 WL 1089542 (8th Cir. 3/23/2017) The fact that plaintiff was a dual citizen of Egypt and the United States and defendant was a citizen of Egypt did not destroy diversity for purposes of subject-matter jurisdiction because plaintiff was domiciled in Ohio. The district court had personal jurisdiction over Egyptian defendant due to its contacts.

16. Cromeans v. Morgan Keegan & Co., 859 F.3d 558 (8th Cir. 2017) Class representatives’ appeal of district court’s denial of motion to enforce settlement agreement in a securities class action was not moot. Representatives were disputing whether underwriters and bond sellers had fully discharged their settlement obligations, not pursuing their original claims relating to bonds on appeal. The settlement agreement explicitly granted the district court jurisdiction for the purpose of “enforcing the agreement.”

17. Eckerberg v. Inter-State Studio Publ’g Co., 860 F.3d 1079 (8th Cir. 2017) Plaintiff, a Marine, was domiciled in Florida, not Missouri where he was stationed, for diversity jurisdiction purposes in his suit against a Missouri company; complete diversity existed for subject matter jurisdiction. Although plaintiff was a citizen of Missouri when he joined the Marines and owned two rental properties in Missouri, he moved to Florida 15 years ago, registered to vote, opened a bank account and obtained a driver’s license in Florida.

B. Procedure

Supreme Court Cases

1. Fry v. Napoleon Cmty. Schs., 137 S. Ct. 743 (2017) Student with disabilities sought to bring service dog to school. Supreme Court held that the Individuals with Disabilities Education Act’s exhaustion requirements did not apply if the gravamen of the plaintiff’s complaint was not seeking a “free appropriate education.”

2. Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178 (2017) Sanctions for a litigant’s bad-faith conduct are limited to the attorney’s fees the innocent party incurred solely because of the misconduct. District courts have broad discretion to calculate fees awarded under that standard.

3. Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645 (2017) An intervenor of right under Federal Rule of Civil Procedure 24(a)(2) must have Article III standing in order to pursue relief that is different from relief requested by the plaintiff.

4. Kokesh v. S.E.C., 137 S. Ct. 1635 (2017) Five-year federal statute of limitations (28 U.S.C. § 2462) applies to disgorgement claims imposed as a sanction for violating federal securities law. Disgorgement actions must be commenced within five years of the date the claim accrues.

5. Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017) Plaintiffs in a putative class action cannot transform a tentative interlocutory order denying class certification into a final judgment subject to immediate appellate review simply by dismissing their claims with prejudice.

Eighth Circuit Cases

6. Finstad v. Beresford Bancorporation, Inc., 831 F.3d 1009 (8th Cir. 2016) State court entry of summary judgment in favor of bank and others in a breach of contract action barred second action in federal court due to claim and issue preclusion. Previous summary judgment was for lack of statutory standing, which is a decision on the merits.

7. Johnson v. Vilsack, 833 F.3d 948 (8th Cir. 2016) African American farmer was not barred from bringing discrimination claims against the USDA, the Secretary of Agriculture, and other employees for discrimination in violation of the Equal Credit Opportunity Act, Title VI, and the Constitution. Part 15d’s procedure for handling discrimination complaints was too bare-bones to have a preclusive effect.

8. Davis v. Hot Springs Sch. Dist., 833 F.3d 959 (8th Cir. 2016) The repeal of Arkansas School Choice Act of 1989 and the enactment of the Arkansas Public School Choice Act of 2013 did not affect the settlement agreement with school district from previous desegregation case. The 2013 act specifically excluded court orders remedying past discrimination from its

requirements.

9. Galloway v. Kan. City Landsmen, LLC, 833 F.3d 969 (8th Cir. 2016) District court, not class counsel, has discretion to decide between an hourly “lodestar” method and a contingent “percentage of the benefit” method for determining the amount of attorney’ fees in a class action suit. District court was incorrect in holding that it must calculate fees based on the hourly method for injunctive relief and the contingent method for coupon awards.

10. Schultz v. Verizon Wireless Servs., LLC, 833 F.3d 975 (8th Cir. 2016) Parties had not entered into enforceable settlement agreement under Iowa law even though they agreed on a proposed settlement amount. Negotiations broke down over a non-disparagement clause in the settlement agreement and this unsettled term manifested a lack of intent to enter into the agreement.

11. United States v. $32,820.56, 838 F.3d 930 (8th Cir. 2016) Government’s dismissal of forfeiture action without prejudice based on a policy change by the IRS while the case was pending did not qualify defendant/claimant for attorneys’ fees as a prevailing party under the Civil Asset Forfeiture Reform Act.

12. Ferguson v. Short, 840 F.3d 508 (8th Cir. 2016) Eighth Circuit remanded interlocutory appeal from summary judgment. District court’s opinion laid out the law of qualified immunity, but did not apply that law to the facts. Eighth Circuit lacked jurisdiction over interlocutory appeal without a clear indication that the summary judgment was based on qualified immunity.

13. Gibson v. Clean Harbors Envtl. Servs., Inc., 840 F.3d 515 (8th Cir. 2016) Adopts the “bright line approach” to determining when Class Action Fairness Act 30-day removal period begins by looking only to the contents of the “amended pleading, motion, order or other paper.” Letter seeking settlement was not sufficiently definite to inform defendant that case was removable under CAFA, but the class’ expert report was.

14. Robinson v. EOR-ARK, LLC, 841 F.3d 781 (8th Cir. 2016) Son of deceased nursing home resident was required to arbitrate his claim against the nursing home despite the fact that the selected arbitrators listed in the agreement were all unavailable.

15. In re Target Corp. Customer Data Security Breach Litig., 847 F.3d 608 (8th Cir. 2017) Customers brought class action against corporation after hacker stole customer credit card information. District court’s summary conclusion that class certification was proper did not meet the “rigorous” standard set out in Rule 23 due to a lack of legal analysis and possible intra-class conflict. In addition, appeal bond cannot include delay-based administrative costs.

16. In re Life Time Fitness, Inc. Tel. Consumer Prot. Act (TCPA) Litig., 847 F.3d 619 (8th Cir. 2017) District court did not abuse its discretion in allowing class counsel to allocate attorneys’ fees award. District court did not abuse its discretion by applying the

7 percentage-of-the-benefit method to calculate fee award, or determining that $2.8 million was reasonable. Including $750,000 in fund administration costs in part of the “benefit” was not an abuse either.

17. Huyer v. Njema, 847 F.3d 934 (8th Cir. 2017) District court denied class member’s motion to transfer a trespass claim into a class action for loan servicer’s automatic charges to mortgagors for drive-by property inspections and approved settlement. District court did not abuse its discretion in denying transfer because no common question existed between the trespass claim and the class claim.

18. Am. Fire and Cas. Co. v. Hegel, 847 F.3d 956 (8th Cir. 2017) Kentucky, not North Dakota, law applied to insurer’s action seeking a declaration that it had no duty to provide underinsured motorist coverage. Employee was based in North Dakota, accident occurred there, and North Dakota required coverage, but the contract was created and sold in Kentucky.

19. Huyer v. Van de Voorde, 847 F.3d 983 (8th Cir. 2017) District court approved class action settlement despite class member’s claim that settlement was unfair to subclass that had to submit proofs of claim to obtain cash award. Objecting class member was not a member of the subclass and did not suffer an injury from the proof-of-claim requirement, thus lacked standing to appeal.

20. Huyer v. Buckley, 849 F.3d 395 (8th Cir. 2017) District court did not abuse its discretion in basing the attorney fee award in this class action settlement on the total amount of the settlement fund, which included $3,250,000 in fund administration costs. Attorney fee award of one third of total settlement fund was not an abuse.

21. Kokocinski ex rel. Medtronic, Inc. v. Collins, 850 F.3d 354 (8th Cir. 2017) The standard of review for a district court’s dismissal of derivative action based on a special litigation committee’s report is for abuse of discretion. SLC was disinterested and its investigation was adequate, appropriate, and in good faith. District court did not abuse its discretion in granting motion to dismiss without allowing for discovery.

22. Couzens v. Donohue 854 F.3d 508 (8th Cir. 2017) Individuals sued as trustees of a local Catholic advocacy organization were fraudulently joined as defendants in alleged sexual abuse victim’s defamation action against the advocacy organization. Defendant could have directly sued the organization and complaint made no factual allegations against the individual defendants.

23. Shelby Cty. Health Care Corp. v. S. Farm Bureau Cas. Ins. Co., 855 F.3d 836 (8th Cir. 2017) Plaintiff was not a “state court loser” and thus Rocker-Feldman did not apply to its action against tortfeasor’s insurer, administer of patient’s estate, and patient’s insurer for impairment of its Tennessee hospital lien, despite the fact that plaintiff could have intervened in prior probate proceedings in Arkansas.

24. Caligiuri v. Symantec Corp., 855 F.3d 860 (8th Cir. 2017) The district court did not abuse its discretion by approving class action settlement without knowing the final administrative costs or final amount received by the class or by calculating attorney’s fees based on the total settlement fund, including administrative costs.

25. Hudson Enters., Inc. v. Certain Underwriters at Lloyd’s London Ins. Cos., (8th Cir. 2017) The district court did not grossly abuse its discretion by denying insured’s motion to strike insurer’s expert report as untimely when the insurer waited until the last day allowed by the scheduling order to disclose its expert report and did not supplement their interrogatory answer after securing the expert.

26. Robinson v. Pfizer, Inc., 855 F.3d 893 (8th Cir. 2017) A drug manufacturer’s appeal from a district court order awarding attorney’s fees to plaintiffs, based on the manufacturer’s improper removal of the action, was moot after plaintiffs filed a satisfaction of judgment that disclaimed any interest in collecting attorney’s fees; thus, dismissal of the appeal was required.

27. In re Target Corporation Customer Data Security Breach Litigation, 855 F.3d 913 (8th Cir. 2017) Objecting class member properly joined sections of another objecting class member’s appellate brief by submitting letter invoking the rule permitting him to join and noting which sections of the brief he was joining.

28. Dammann v. Progressive Direct Ins. Co., 856 F.3d 580 (8th Cir. 2017) Plaintiffs failed to show it was legally impossible for them to recover more than $5 million in damages; therefore, the district court did not err in denying their motion to remove to state court, pursuant to the Class Action Fairness Act.

29. Zean v. Fairview Health Servs., 858 F.3d 520 (8th Cir. 2017) In a patient’s suit for violation of the Telephone Consumer Protection Act, the district court did not err in considering a hospital questionnaire and consent form signed by the patient, because they were embraced by the patient in his complaint. District court did not err in granting defendant’s motion to dismiss for failure to state a claim because the above considered documents directly refuted plaintiff’s assertion he did not give consent to make the calls at issue.

30. Blaes v. Johnson & Johnson, 858 F.3d 508 (8th Cir. 2017) District court did not abuse its discretion in granting a motion to voluntarily dismiss the case without prejudice so case could be consolidated with state court action. No party would be prejudiced because the case would be tried earlier in state court and the parties still had discovery opportunities. Depriving a party of the federal forum is not a factor for a court to consider in deciding a motion to voluntarily dismiss.

31. Keiran v. Home Capital, Inc., 858 F.3d 1127 (8th Cir. 2017) Plaintiffs’ conclusory affidavits did not serve to rebut the presumption that they received the required notices under the Truth in Lending Act. The statute’s three-day rescission window barred their request for rescission.

32. Adams v. Toyota Motor Corp., 859 F.3d 499 (8th Cir. 2017) Based on the plain language of Minn. Stat. § 549.09 regarding prejudgment interest, lower court decisions, and the purpose of the statute, the Eighth Circuit predicted the Minnesota Supreme Court would

conclude that prejudgment interest is not available for judgments that encompass multiple types of interest—some of which are subject to interest under the statute and some of which are not—when it is impossible to differentiate between the types of damages included in the judgment.

33. White v. CitiMortgage, Inc., 859 F.3d 630 (8th Cir. 2017) The Missouri statute of limitations on contract claims only started running when a reasonable person would have been put on notice that an injury and substantial damages may have occurred and would have undertaken steps to ascertain the extent of the damages; here, plaintiff did not become aware of the problem with the title to his mortgage until he tried to sell the property, therefore his suit was timely and the district court erred in dismissing it as barred by the applicable five-year statute of limitations.

34. Catamaran Corp. v. Towncrest Pharmacy, ___ F.3d ___, 2017 WL 3197622 (8th Cir. 7/28/2017) Courts presumed that the question of whether a contract permits class arbitration is a substantive question of arbitrability for the court, not the arbitrator, to decide. However, parties may clearly and unmistakably delegate that question to an arbitrator by specifically mentioning class arbitration. Silence regarding class arbitration is insufficient.

C. Causes of Action

Supreme Court Cases

1. State Farm Firm & Cas. Co. v. U.S. ex rel. Rigsby, 137 S. Ct. 436 (2016) Relators brought suit under the False Claims Act relating to claims under government-backed flood policies caused by Hurricane Katrina. FCA requires the case be sealed. Supreme Court held that violation of the FCA’s seal requirement did not mandate dismissal of complaint.

2. White v. Pauly, 137 S. Ct. 548 (2017) Officer who arrived late on the scene and shot a suspect from behind a stone wall, without identifying himself as an officer or providing a warning, did not violate clearly established law and was therefore entitled to qualified immunity. Clearly established law must be particularized to the facts of the case.

3. Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988 (2017) Schools must offer students with disabilities an individual education plan reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. This is higher than a de minimis standard.

4. Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296 (2017) Miami’s injuries fell within the zone of interest protected by the Fair Housing Act, thus the city was an “aggrieved person” and could bring a suit against defendant. To recover damages under the FHA, Miami must establish proximate cause, not just show that its injuries foreseeably followed from the statutory violation.

5. Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) A damages claim challenging the confinement conditions imposed on aliens detained for immigration violations pursuant to a high-level executive policy created in the wake of the September 11, 2001 terrorist attacks cannot be the basis for a Bivens action against federal executive officials. Officials and wardens are entitled to qualified immunity with regard to aliens’ civil rights conspiracy claims.

Eighth Circuit Cases

6. Olmsted v. St. Paul Pub. Sch., 830 F.3d 824 (8th Cir. 2016) Eighth Circuit affirmed summary judgment in favor of school district on teacher’s breach-of-contract claims when teacher quit in anticipation of the school district beginning termination proceedings. Resignation was not a product of duress and school district did not misrepresent status of investigation to teacher.

7. Kronberg v. Oasis Petroleum N. Am. LLC, 831 F.3d 1043 (8th Cir. 2016) Oil company that owned rights to drill at well, but outsourced well’s management was not the employer of the third-party’s employee when it could not exercise control over third-party’s operation.

8. Olson v. Fairview Health Servs. of Minn., 831 F.3d 1063 (8th Cir. 2016) In False Claims Act suit, hospital’s designation of children’s wing as a “children’s hospital” in connection with Medicaid payments to the hospital was reasonable and was not fraudulent. The term was undefined and that definition was logical.

9. Gillis v. Principia Corp., 832 F.3d 865 (8th Cir. 2016) Student’s breach-of-contract and intentional infliction of emotional distress claims failed when she could not allege the contractual obligations that the private university breached and the only emotion-invoking attacks she suffered were insults, petty oppressions, or other trivialities.

10. PWW Royalty Trust Dated Sept. 27, 1989 v. Barton, 832 F.3d 876 (8th Cir. 2016) Group of trusts brought suit against former attorneys alleging malpractice for failing to raise several arguments in various cases that the trusts lost. Eighth Circuit found that the malpractice claims failed because each proposed argument would have been unsuccessful.

11. United States ex rel. Donegan v. Anesthesia Assocs. of Kan. City, PC, 833 F.3d 874 (8th Cir. 2016) Medicare provider’s construction of the word “emergence” in anesthesia reporting requirements was objectively reasonable when provider defined it as the time spent in the recovery room as well as the physical removal of the anesthesia equipment. No False Claims Act liability.

12. Carlsen v. Gamestop, Inc., 833 F.3d 903 (8th Cir. 2016) Company did not breach contract with customer by sharing customer’s Facebook ID and browser history with a third-party corporation when the company’s privacy policy specifically listed the information that it would protect and those two pieces of information were not on the list.

13. Nelson v. Nelson, 833 F.3d 965 (8th Cir. 2016) Brother brought Racketeer Influenced and Corrupt Organizations Act suit against his brother (a co-owner in a farming operation), an accountant, and a banker claiming they were stealing money from the farming operation. Eighth Circuit affirmed district court’s dismissal because the group never operated as an “enterprise” as they never worked together in furtherance of a common or shared purpose.

14. Decker Plastics, Inc. v. W. Bend Mut. Ins. Co., 833 F.3d 986 (8th Cir. 2016) Plastic bag manufacturer forgot to treat bags to resist ultra-violet rays. Breakdown of the bags and subsequent intermingling of the plastic shreds into the purchaser’s landscaping inventory was an “accident” that constitutes a covered “occurrence” under a standard-form CGL policy.

15. Schmitz v. Sun Life Assurance Co. of Can., 840 F.3d 956 (8th Cir. 2016) Employee terminated for poor performance submitted a claim for long-term disability benefits alleging his then-undiagnosed multiple sclerosis caused his performance issues. Employee submitted claim in March 2013, but the contractual limitations period had expired in December 2011.

16. Lockhart v. United States, 834 F.3d 952 (8th Cir. 2016) Plaintiff who sued the government under the Federal Tort Claims Act for injuries sustained during a car accident was only entitled to damages due to aggravation of shoulder under Missouri law, rather than entire cost of joint replacement. Plaintiff’s preexisting arthritis would have required a shoulder replacement anyway.

17. In re Pre-Filled Propane Tank Antitrust Litig., 834 F.3d 943 (8th Cir. 2016) Sherman Act’s four-year limitations period does not restart when parties to the agreement simply continue selling under their original agreement. Parties must at least change their agreement and inflict new injury on the plaintiff to restart the four-year period.

18. Tichich v. City of Bloomington, 835 F.3d 856 (8th Cir. 2016) Eighth Circuit reviewed district court dismissals of cases alleging various government entities violated Minnesota’s Driver’s Privacy Protection Act by illegally accessing driver’s license information. Eighth Circuit looked to the timing, regularity, pattern of access, and whether the individual was locally famous or had any connection to the police force or individual officers.

19. Kampschroer v. Anoka Cty., 840 F.3d 961 (8th Cir. 2016) Eighth Circuit affirmed district court’s denial of motion to dismiss due to qualified immunity of officials in case alleging violations of Minnesota’s Driver’s Privacy Protection Act. Statute’s definition of the word “obtain” unambiguously includes accessing records, thus officers that accessed records violated the clearly worded statute and were not entitled to qualified immunity.

20. Am. Farm Bureau Fed’n v. U.S. Envtl. Prot. Agency, 836 F.3d. 963 (8th Cir. 2016) Freedom of Information Act request for information about concentrated animal feeding operations fell within FOIA’s exemption for disclosure of files that invade personal privacy. Information would include names, addresses, and financial information. Although some information was publicly available, aggregating it all in one place may subject individuals to harassment. Also, information had little to do with how the EPA was operating.

21. Qwest Commc’ns Corp. v. Free Conferencing Corp., 837 F.3d 889 (8th Cir. 2016) Company did not intentionally interfere with competitor’s business relationship by taking advantage of an uncertain area of the law. Inducement to breach an existing contract must be wrongful in South Dakota; simply taking advantage of an uncertain area does not qualify.

22. Bayer CropScience, LLC v. Stearns Bank Nat’l Assoc., 837 F.3d 911 (8th Cir. 2016) Under the Texas UCC Article 9, bank’s security interest was not discharged when it foreclosed on the collateral following default and then purchased the existing collateral at auction. Secured creditor’s remedies were cumulative, so bank could foreclose on collateral and collect proceeds of collateral by garnishing judgment in favor of debtor.

23. Haney v. Portfolio Recovery Assocs., L.L.C., 837 F.3d 918 (8th Cir. 2016) Debt collector did not violate the Fair Debt Collections Practices Act by charging debtor statutory interest on credit card debt that credit card company had charged off. Credit card company’s waiver of contractual right to collect interest did not affect debt collector’s statutory right to collect interest.

24. Kuntz v. Rodenburg LLP, 838 F.3d 923 (8th Cir. 2016) Debt collection law firm did not violate the Fair Debt Collections Practices Act by calling debtor’s father a second time after he said he would contact her. Firm had reasonable belief second call fell within 15 U.S.C. 1692b(3)’s safe harbor—debtor had incompletely answered and would have additional information later

25. Parker v. Crete Carrier Corp., 839 F.3d 717 (8th Cir. 2016) Trucking company did not violate the Americans with Disabilities Act when it ordered driver with body mass index of over 35 to undergo sleep study to detect obstructive sleep apnea. Requirement was job-related and consistent with business necessity because sleep apnea increased risk of accidents. Sleep test was not more intrusive than necessary because it was the best way to detect sleep apnea. Threshold BMI of 35 or greater was reasonable—medical evidence supported it.

26. Walker v. Progressive Direct Ins. Co., 840 F.3d 491 (8th Cir. 2016) District court correctly granted summary judgment in favor of insurer. Insured was killed while driving a motorcycle that he owned, but the policies did not cover. The owned vehicle exclusion barred underinsured motorist coverage.

27. United States ex rel. Miller v. Weston Educ., Inc., 840 F.3d 494 (8th Cir. 2016) Summary judgment in False Claims Act case was improper when there was a fact question over college’s intent to submit false statements when signing agreement with the government. College falsified records, but college’s intent at the time of signing was in dispute.

28. Schaffer v. Beringer, 842 F.3d 585 (8th Cir. 2016) Police officers were entitled to qualified immunity because they had arguable probable cause to arrest underage driver when another minor in the car admitted to consuming alcohol, driver had flushed face and watery eyes, and the car smelled like alcohol. Defendant failed to show that officer’s omission of defendant’s watery eyes and flushed face from his police report were intentional or reckless falsehoods.

29. Century Sur. Co. v. Jim Hipner LLC, 842 F.3d 606 (8th Cir. 2016) Eighth Circuit certified insurance law question to the Wyoming Supreme Court, which adopted the notice-prejudice rule for determining whether coverage may be denied based on late notice to the insurer. Court must determine (1) whether the notice was late, and (2) whether the late notice prejudiced the insurer. In this case, insurer did not suffer prejudice, thus it could not deny coverage based on late notice.

30. Custodio v. Samillan, 842 F.3d 1084 (8th Cir. 2016) International Child Abduction Remedies Act does not apply to children aged 16 or older, even if they were under 16 when abducted. Defendant established the mature child defense as to the 15-year-old when the child spoke with the judge individually, testified at trial that he was afraid of his father, his father had hit him, and he enjoyed life and school in the United States. The district court analyzed these factors to determine whether the child objected to being returned to Peru, not to determine custody.

31. The Gap, Inc. v. GK Dev., Inc., 843 F.3d 744 (8th Cir. 2016) In breach-of-contract action, the lease did not require lessee to pay for HVAC or common area expenses. Contract language was ambiguous, but course of performance and extrinsic evidence clarified parties’ intent.

32. Elmore v. Harbor Freight Tools USA, Inc., 844 F.3d 764 (8th Cir. 2016) Plaintiff did not sufficiently plead a § 1981 claim because he alleged no state action. The district court did not err in failing to exercise supplemental jurisdiction over plaintiff’s state law negligence claims.

33. Nationwide Prop. & Cas. Ins. Co. v. Faircloth, 845 F.3d 378 (8th Cir. 2016) Summary judgment in favor of insurer was proper. Insurer had no duty to indemnify or defend insured in car accident case because insured made material misrepresentations in his insurance application by stating his primary use was for “work” instead of “business.”

34. W. Va. Pipe Trades Health & Welfare Fund v. Medtronic, Inc., 845 F.3d 384 (8th Cir. 2016) In a securities fraud class action alleging “scheme liability” under 10b-5, the district court erred in dismissing the claim as barred by the applicable statute of limitations. A reasonably diligent plaintiff would not have discovered facts sufficient to plead scienter based on public information in time. Janus Capital Group, Inc. v. First Derivative Traders, 564 U.S. 135 (2011), did not bar scheme liability claim as a matter of law because the alleged deceptive conduct went beyond mere misrepresentations or omissions. Stonebridge Investment Partners, LLC v. Scientific-Atlanta, Inc., 52 U.S. 148 (2008), also does not bar it because the causal connection between the alleged deceptive conduct and the information on which the market relied is not too remote to support a finding of reliance.

35. Dunn v. Bank of Am. N.A., 844 F.3d 1002 (8th Cir. 2017) Borrower’s loan agreement was a “residential mortgage transaction” that did not entitle them to the right of rescission under the Truth in Lending Act. Mortgage was created to acquire the dwelling secured by it, not to refinance.

36. Star City Sch. Dist. v. ACI Bldg. Sys., 844 F.3d 1011 (8th Cir. 2017) School district sued contractor that built the roof on a new high school for fraud, breach of contract, and negligence. Fraud claims failed because school district did not plead misrepresentation or actual reliance. Arkansas 5-year statute of limitations barred construction-related claims.

37. Jerry’s Enters., Inc. v. Specialty Ins. Co., 845 F.3d 883 (8th Cir. 2017) Insured-corporation’s directors’ and officers’ liability insurance did not require the insurer to indemnify the corporation for suit brought by former director and her daughters. Former directors were insureds, and policy excluded coverage for claims brought against the insured corporation by other insureds. Daughters’ claims were barred because they stemmed from mother/former director.

38. Schnuck Mkts., Inc. v. First Data Merch. Servs. Corp., 86 F. Supp. 3d 1055 (8th Cir. 2017) In suit by grocery store alleging credit card processing company withheld more money than it was entitled to under their contract, the contract’s liability limitation capped recovery at $500,000.

39. ACI Worldwide Corp. v. Churchill Lane Assocs., LLC, 847 F.3d 571 (8th Cir. 2017) Licensee brought suit against licensor’s assignee seeking a declaratory judgment that the license had been terminated. Eighth Circuit held the license agreement modifications did not make assignee a full party to the license agreement. Assignee was third-party beneficiary. License was terminated, but plaintiff owes assignee royalties on any sublicenses granted before the license was terminated.

40. Hiland Partners GP Holdings, LLC v. Nat’l Union Fire Ins. Co. of Pittsburgh, 847 F.3d 594 (2017) Operator of natural gas processing facility brought suit against insurer seeking a declaratory judgment that insurer must defend suit by employee injured by a hydrocarbon condensate overflow. Hydrocarbon condensate qualified as a “pollutant” within the meaning of the pollution exclusion. Insurer was not liable.

41. Soltesz v. Rushmore Plaza Civic Ctr., 847 F.3d 941 (8th Cir. 2017) Business owner who had contracted with city brought suit alleging claims under § 1983 and state law claims for breach of contract, conversion, and tortious interference with business relations. After jury returned verdict for plaintiff, Eighth Circuit reversed and remanded because the district court failed to identify the final policymaker before submitting the case to the jury.

42. Aguilar v. PNC Bank, N.A., 853 F.3d 390 (8th Cir. 2017) Plaintiffs sued bank for participating in a Ponzi scheme. Plaintiffs alleged violations of Missouri’s Uniform Fiduciaries Law, aiding and abetting the breach of fiduciary duties, conspiracy to breach fiduciary duties, and conspiracy to violate RICO. Plaintiffs’ claims failed because they failed to allege bank objectively manifested agreement to participate in criminal scheme or that bank knew of the scheme.

43. Acciona Windpower N. Am., LLC v. City of West Branch, 847 F.3d 963 (8th Cir. 2017) Manufacturer brought action against city for breach of tax increment financing development agreement. The district court correctly found that the city breached the contract and that TIF agreement did not violate Iowa law.

44. Am. Railcar Indus., Inc. v. Hartford Ins. Co. of the Midwest, 847 F.3d 970 (8th Cir. 2017) Insured employer failed to comply with notice requirements in insurance contract when the injured employee indicated that he was planning on filing a civil suit during his workers compensation proceedings. Insured employer had duty to insurer to notify it of injured employee’s demands.

45. McKeage v. TMBC, LLC, 847 F.3d 992 (8th Cir. 2017) Plaintiffs brought class action against boat retailer alleging that it was practicing law without a license by charging plaintiffs fees for preparing legal documents during boat sales. Charging a separate fee for completing legal forms by non-lawyers is unauthorized practice of law in Missouri. Class certification was proper because buyers were ascertainable by the type of contract involved, and standard-form contract meant that they met commonality and predominance requirements.

46. Neubauer v. FedEx Corp., 849 F.3d 400 (8th Cir. 2017) Independent contractor sued corporation for breach of contract, fraud, violation of North Dakota’s Franchise Investment Law and North Dakota’s RICO statute. Plaintiff’s breach-of-contract claims failed because one contract had expired and the other only prohibited the corporation from changing the plaintiff’s independent contractor status; it did not bar other changes to their relationship. Plaintiff’s fraud claim failed for lack of specificity. His Franchise Investment Law claims failed because he was not a franchisee. His RICO claims failed because he did not allege racketeering acts.

47. Blackorby v. BNSF Ry. Co., 849 F.3d 716 (8th Cir. 2017) District court erred when it instructed the jury that they did not need to find that employer-railroad intentionally retaliated against employee for reporting a workplace injury. The Federal Railroad Safety Act requires a finding of intentional retaliation.

48. Heim v. BNSF Ry. Co., 849 F.3d 723 (8th Cir. 2017) Railroad employee failed to prove that his filing of a formal injury report was a contributing factor in his suspension when his supervisor instructed him to file it and bonus pay was not based on individual injuries.

49. Lamoureux v. MPSC, Inc., 849 F.3d 737 (8th Cir. 2017) Contract’s terms required meat-packing company to continue to pay royalties to trust until a termination event occurred. Contract term was not indefinite, so court properly did not impose at-will termination provision.

50. In re Wholesale Grocery Prods. Antitrust Litig., 850 F.3d 344 (8th Cir. 2017) The district court correctly held that the non-signatory defendants to certain arbitration agreements could not enforce them against plaintiffs. The non-signatory defendants did not qualify as successors-in-interest because they were assignors of the agreements, which are actually predecessors-in-interest. Defendants could not directly enforce agreements because they had assigned their rights away.

51. Anderson v. City of St. Paul, 849 F.3d 773 (8th Cir. 2017) Claim preclusion barred the plaintiff from challenging the city’s nuisance abatement order. Prior action and current action arose out of the same set of facts, all defendants were either former defendants or in privity with former defendants, and plaintiff had a full and fair opportunity to litigate in the prior action.

52. AMCO Ins. Co v. Williams, 850 F.3d 989 (8th Cir. 2017) Driver that hit and killed insured was not an “underinsured motorist” under Missouri’s definition because his policy limit exceeded the minimum policy limit set by the victim’s policy. Policy’s language was not ambiguous.

53. OmegaGenesis Corp. v. Mayo Found. for Med. Educ. & Research, 851 F.3d 800 (8th Cir. 2017) Medical technology company that brought claims for fraud and negligent misrepresentation failed to state a claim as to both because it did not plead facts showing reasonable reliance.

54. De La Rosa v. White, 852 F.3d 740 (8th Cir. 2017) State trooper had arguable reasonable suspicion of interstate drug trafficking, warranting 50-minute extension of traffic stop while he summoned a drug dog that alerted to arrestee’s pickup, and thus he had qualified immunity from arrestee’s § 1983 claim that his detention violated Fourth Amendment.

55. Barfield v. Sho-Me Power Elec. Coop., 852 F.3d 795 (8th Cir. 2017) Cooperative’s fiber-optic cable for commercial telecommunications network was outside scope of easement and constituted trespass. However, cooperative’s status as an entity with eminent domain power precluded unjust enrichment claim.

56. May v. Nationstar Mortg. 852 F.3d 806 (8th Cir. 2017) Ample evidence supported jury’s determination that mortgage service acted with reckless indifference to consumer’s rights, thus $400,000 punitive damage award for invasion-of-privacy claim was warranted.

57. Ludwick v. Harbinger Grp., Inc., 854 F.3d 400 (8th Cir. 2017) Permitting plaintiff to pursue her racketeering claims against an insurance company and its affiliates would impair state regulation of insurance in three states; therefore, the district court did not err in dismissing the suit as barred by the McCarran-Ferguson Act.

58. Koester v. Young Men’s Christian Ass’n of Greater St. Louis, 855 F.3d 908 (8th Cir. 2017) Summer camp operator did not take adverse action against a prospective camper on the basis of his disability in violation of Title III of the ADA, when it insisted that his parent provide his entire individualized education plan, rather than just the portions relevant to the camper’s experience.

59. Dooley v. Tharp, 856 F.3d 1177 (8th Cir. 2017) A deputy sheriff’s mistaken perception that the decedent posed a threat of serious physical harm to the deputy was objectively reasonable and thus the deputy was entitled to qualified immunity on a § 1983 excessive force claim. The perception was objectively reasonable because the deputy believed the decedent was carrying a rifle, and, even though it was a pellet gun, when the deputy told him to drop it, he began to turn towards the deputy and move the gun in an “arc-like” manner.

60. Royal v. Mo. & N. Ark. R.R. Co., Inc., 857 F.3d 759 (8th Cir. 2017) Summary judgment was appropriate on plaintiff’s FELA claim where plaintiff was an employee of an independent contractor that provided maintenance to defendant. Plaintiff was not an employee of defendant, a borrowed servant, a dual servant, or a subservant, and no reasonable jury could find that defendant controlled or had the right to control plaintiff’s work.

61. Rosemann v. St. Louis Bank, 858 F.3d 488 (8th Cir. 2017) Summary judgment was appropriate in suit filed by defrauded investors because the bank was not liable under the Uniform Fiduciaries Act. Bank did not have actual knowledge that an operator misappropriated fiduciary funds or that the operator was breaching his fiduciary duty. Bank was not liable for RICO conspiracy, aiding and abetting breach of fiduciary duties, or for conspiracy to breach fiduciary duties.

62. Food Mkt. Merch., Inc. v. Scottsdale Indem. Co., 857 F.3d 783 (8th Cir. 2017) Summary judgment in favor of insurer was appropriate where insured failed to give notice of its claim as soon as practicable, as required under its policy, and could not explain its seven-month delay in notifying insurer.

63. Int’l Envtl. Mgmt., Inc. v. United Corp. Servs., Inc., 858 F.3d 1121 (8th Cir. 2017) District court erred in granting registered agent’s motion to dismiss. In Missouri, a foreign corporation’s termination of a contractual relationship with their registered agent for service of process did not end the agent’s statutory duty. The agent still had a limited fiduciary duty when it accepted service of summons and petition before a change document was filed with the Secretary of State.

64. 3M Co. v. Nat’l Union Fire Ins. Co. of Pittsburg, 858 F.3d 561 (8th Cir. 2017) In Minnesota, an insured employer does not own earnings fraudulently diverted from its employee benefits plan by the insured’s investment advisors. The insured has no interest in the earnings until they are distributed. Thus, the earnings were not covered as lost “other property” under the employee dishonesty provision of insured’s blanket crime insurance policy.

65. Smiley v. Gary Crossley Ford, Inc., 859 F.3d 545 (8th Cir. 2017) Automobile dealership produced sufficient evidence for the jury to conclude that a customer had agreed during mediation to settle its Truth in Lending Act claim arising from the customer’s vehicle purchase where the dealership’s attorney testified that the parties agreed to settle all claims against the dealership and the customer conceded that he never told the mediator he wanted to preserve his TILA claim.

66. Gilkerson v. Neb. Colocation Ctrs., LLC, 859 F.3d 1115 (8th Cir. 2017) District court erred in granting employer’s motion for summary judgment on employee’s breach-of-contract claim because a genuine issue of material fact existed as to whether a threat of termination could support a claim of duress.

D. Evidence

Eighth Circuit Cases

1. Burckhard v. BNSF Ry. Co., 837 F.3d 848 (8th Cir. 2016) In FELA action to recover for railroad employee’s death while railroad employee drove them home from work, district court correctly excluded railroad’s evidence that victim had alternative methods of transportation available. The danger of confusing the issues substantially outweighed the evidence’s probative value. The evidence was relevant, but defendant did not plead the defenses of contributory negligence and assumption of risk. The railroad was able to enter evidence about whether its driver was negligent that did not bring up the two defenses that were not present.

2. Kaplan v. Mayo Clinic, 847 F.3d 988 (8th Cir. 2017) District court did not clearly err when it found that plaintiff in breach-of-contract case and treating physician did not enter into an agreement to perform a biopsy on plaintiff’s pancreas during an invasive surgery. Physician promised to test tissue surrounding the pancreas for cancerous cells (which physician did), but did not promise to retest the pancreas. The Eighth Circuit held that the district court correctly found that the patient was confused about the nature of the testing.

3. Bradford v. Palmer, 855 F.3d 890 (8th Cir. 2017) The juvenile court’s supervision of detainee’s confinement in state juvenile home as child in need of assistance did not mean that employees of the home were entitled to qualified immunity from detainee’s § 1983 claims that they violated his constitutional rights by housing him in prolonged solitary confinement. There was no indication that the court knew about the juvenile home’s conditions.

4. Hill v. Sw. Energy Co., 858 F.3d 481 (8th Cir. 2017) The district court erred in excluding expert opinion regarding the likely spread of waste water flow beneath the plaintiff’s property because, even though the methodology was not perfect, the evidence was scientifically reliable enough to assist the trier of fact.

5. Davis v. White, 858 F.3d 1155 (8th Cir. 2017) In an excessive force action arising out of an assault committed in a detainee’s jail cell, the district court did not abuse its discretion in excluding racist e-mails sent by the officer who failed to preserve the jail’s surveillance video. The officer was not involved in the alleged assault, the evidence had minimal probative value, and the district court decided to exclude it based on unfair prejudice to the defendant officers.

6. Letterman v. Does, 859 F.3d 1120 (8th Cir. 2017) Evidence of what state prison medical staff told corrections officers about prisoner’s medical needs, but not what the medical staff thought and did not communicate to the officers, was relevant in a § 1983 action against officers for a prisoner’s death while in custody. Only the information that the officers knew about the prisoner’s medical needs was relevant to whether the officers deliberately disregarded his needs.

7. Glaze v. Childs, 861 F.3d 724 (8th Cir. 2017) In an action by a former jail detainee alleging defendant, a corrections officer, failed to protect him from an attack by three other detainees, the district court acted within its discretion under Rule 404(b) in granting the officer’s motion in limine to exclude evidence that he resigned from the facility in lieu of accepting termination for giving an inmate a cigarette in violation of jail policy.

II. CRIMINAL LAW

A. Criminal Acts

Supreme Court Cases

1. Salman v. United States, 137 S. Ct. 420 (2016) Supreme Court affirmed defendant’s conviction for insider trading. The jury could infer that the defendant received a benefit from making a gift of the confidential information to his close relative.

2. Shaw v. United States, 137 S. Ct. 462 (2016) Defendant was charged with defrauding a financial institution for illegally transferring money from someone else’s account to his own. Defendant argued that he only intended to deprive the bank depositor, not a bank. Court found the bank had the right to use the deposited funds, so defendant did deprive it of property.

Eighth Circuit Cases

3. United States v. Trejo, 831 F.3d 1090 (8th Cir. 2016) Evidence supported charge of conspiracy to distribute methamphetamine when the police found methamphetamine buried outside defendant’s house; found $4,000 in small bills, a gun, and a scale at defendant’s house; observed a suspicious amount of traffic at defendant’s house; and observed individuals seemingly cooking methamphetamine, even though jury acquitted defendant of possession of methamphetamine with the intent to distribute.

4. United States v. Belmont, 831 F.3d1098 (8th Cir. 2016) Eighth Circuit upheld defendant’s conviction for illegally manufacturing explosives in violation of 18 U.S.C. § 842(a)(1) because statute’s requirement that defendant “engage in the business of” manufacturing or selling explosives included individuals selling explosives as a hobby and not for profit.

5. United States v. Headbird, 832 F.3d 844 (8th Cir. 2016) Defendant’s prior juvenile adjudication for second-degree assault with a weapon was not a predicate violent felony under the Armed Career Criminal Act because Minnesota law element of committing a crime “with a dangerous weapon” was broader than the ACCA definition.

6. United States v. Lasley, 832 F.3d 910 (8th Cir. 2016) Defendant was not entitled to a jury instruction on involuntary manslaughter as a lesser-included offense to first-degree murder charges when he repeatedly slashed parents with a three-foot long machete and made no claim that he accidentally slashed them.

7. United States v. Mulverhill, 833 F.3d 925 (8th Cir. 2016) District court did not commit clear error when it accepted defendant’s guilty plea to failing to register as a sex offender. Defendant’s admission that he was required to register and failed was a sufficient factual basis to support the guilty plea, despite the fact that defendant’s 15-year registration period had ended and he was no longer required to register.

8. United States v. McArthur, 836 F.3d. 931 (8th Cir. 2016) Defendant’s charges of conspiracy to participate in racketeering activity, conspiracy to use of firearm in crime of violence, conspiracy to distribute controlled substances, and distribution of controlled substances was supported by the weight of the evidence when the evidence indicated that the organization worked together to distribute drugs and threaten other drug dealers, defendant cooked and distributed drugs, and defendant possibly participated and surveilled target of gun violence.

9. United States v. Hamilton, 837 F.3d 859 (8th Cir. 2016) There was sufficient evidence to convict defendant of conspiracy to distribute methamphetamine when multiple drug transactions occurred at defendant’s home, defendant kept and handled money for the transactions, held drugs for the conspiracy, and kept records of drug transactions.

10. United States v. Trotter, 837 F.3d 864 (8th Cir. 2016) Evidence was sufficient to convict defendant of conspiracy to distribute methamphetamine when co-conspirator testified that she obtained large amounts of methamphetamine from defendant on several occasions and text messages corroborated testimony. Defendant argued that the arrangement was a simple buyer-seller arrangement that is unable to support a charge of conspiracy, but quantity of drugs indicated defendant was selling to co-conspirator for resale.

11. United States v. McDaniel, 838 F.3d 955 (8th Cir. 2016). Even though defendant would require a stool or ladder to reach guns stored on top of cabinet in which he kept drugs and a scale to measure drugs, the weapons were readily accessible demonstrating the required nexus

between the firearms and the drug trafficking offenses to support a firearms conviction.

12. United States v. Prickett, 839 F.3d 697 (8th Cir. 2016) The second prong of the Armed Career Criminal Act’s definition of a “crime of violence” set out in § 18 U.S.C. 924(c)(3)(B) was not unconstitutionally vague in light of the Supreme Court’s decision in Johnson because its scope was much narrower than the provision invalidated there.

13. United States v. De Foggi, 839 F.3d 701 (8th Cir. 2016) Evidence was insufficient to sustain defendant’s conviction for knowingly engaging in a child exploitation enterprise in violation of 18 U.S.C. § 2252A(g). Statute requires an agreement between two or more people. Defendant’s act of clicking on images uploaded to server by other users was not an agreement to engage in child exploitation enterprise.

14. United States v. Duffin, 844 F.3d 786 (8th Cir. 2016) Evidence that defendant and victim engaged in sexual intercourse, that victim’s parents restricted her activity and monitored her cell phone use, and that defendant and victim planned to move to Arkansas to live together was sufficient for a reasonable jury to conclude defendant transported a minor in interstate commerce with the intent to engage in criminal sexual activity. The court lacked jurisdiction to hear an appeal of the district court’s recommendation to the Bureau of Prisons to prohibit defendant from contacting the victim.

15. United States v. Lussier, 844 F.3d 1019 (8th Cir. 2017) Jury instruction that (1) person suffered an assault, and (2) assaulted person suffered serious bodily harm was not clear error. When read together, a natural meaning was that the assault in the first element was the assault referenced in the second element, as was required by the statute. Evidence was sufficient to support kidnapping conviction when defendant threw victims in crawlspace with an unlocked door, but victims were injured and could not find the door to escape.

16. United States v. Plume, 847 F.3d 624 (8th Cir. 2017) Evidence supported defendant’s conviction of assault resulting in serious bodily harm and child abuse. A drastic change in the infant victim’s condition while alone with the defendant sufficiently supports an inference of guilt. Defendant’s apology letter to the police corroborated guilt. Court properly excluded evidence of defendant’s wife’s prior child abuse because it did not give context to the charges at hand and was other-acts evidence.

17. United States v. Huyck, 849 F.3d 432 (8th Cir. 2017) District court properly admitted evidence that defendant charged with multiple child-pornography-related offenses accessed certain websites on the “dark” or “hidden” internet that are used to traffic contraband. Evidence indicated defendant knew how to access these sites, even if he did not use them in the charged offense. Evidence supported conviction because defendant was the only adult in the house and he did not assert that his minor daughter was accessing the illicit images.

18. United States v. Petersen, 848 F.3d 1153 (8th Cir. 2017) There was sufficient evidence to find that defendant violated the terms of his supervised release when he called his

daughter and asked her to assault a bar manager in return for money.

19. United States v. Stewart, 854 F.3d 472 (8th Cir. 2017) There was sufficient evidence to find that defendant engaged in a criminal conspiracy to distribute at least 50 kilograms of marijuana where witnesses testified about defendant’s role in procuring, packaging, and sending marijuana to Nebraska for distribution; travel and business records corroborated the testimony of co-conspirators; and defendant received bank wire transfers.

20. United States v. Anderson, 854 F.3d 1033 (8th Cir. 2017) Government’s prosecution of defendant for conspiring to distribute heroin did not violate Religious Freedom Restoration Act because the government has a compelling interest in preventing heroin allegedly used for religious purposes from being diverted to non-religious, recreational users, and prosecution of defendant was the least restrictive means necessary for the government to achieve its compelling interest.

21. United States v. Riepe, 858 F.3d 552 (8th Cir. 2017) Evidence was sufficient to convict defendant beyond a reasonable doubt of attempting to entice a minor based on an exchange of text messages showing his intent to persuade the minor to have sex with him.

22. United States v. McIntosh, 860 f.3d 624 (8th Cir. 2017) Evidence was sufficient to establish defendant knowingly possessed a firearm found at a house that he owned, but did not reside in when defendant’s girlfriend lived in the house, defendant was at the house almost every day, defendant used the house to store and sell drugs, defendant was present during the search, and one firearm was found by a piece of mail addressed to defendant’s primary residence.

B. Procedure

Eighth Circuit Cases

1. United States v. Colhoff, 833 F.3d 980 (8th Cir. 2016) Joining conspiracy to distribute controlled substances charge with witness tampering charge was proper because the two charges were connected. Witness tampering charge was factually interrelated because defendant was attempting to obstruct adjudication of substantive crime.

2. United States v. Starks, 840 F.3d 960 (8th Cir. 2016) Defendant filed notice of appeal 20 days after the 14-day deadline, but 10 days before the extended deadline to file due to good cause or excusable neglect. District court docketed the notice of appeal. Eight Circuit held that district court must find that the untimely notice is the product of excusable neglect before extending time to file the notice of appeal. Simply docketing the notice is not such a finding.

3. English v. United States, 840 F.3d 957 (8th Cir. 2016) Defendant was not entitled to equitable tolling of the deadline to challenge his sentence. Defendant did not act with reasonable diligence because all he did to pursue an extension was write letters to his lawyer and he failed to testify as to the reasons he missed the deadline at the evidentiary hearing.

4. United States v. Machorro-Xochicale, 840 F.3d 545 (8th Cir. 2016) There was sufficient evidence to support a jury finding that defendant was the person who knowingly submitted false permanent resident and social security card. Defendant waived his argument that the prosecution was selectively prosecuting him based on his race by failing to raise it in a pretrial motion.

5. United States v. Turner, 842 F.3d 602 (8th Cir. 2016) It was inappropriate for the district court to dismiss defendant’s motion to dismiss before a trial on the merits. Defendant’s argument that 18 U.S.C. § 922(g)(3), which prohibits unlawful drug users from possessing firearms, is unconstitutionally vague as applied to him required factual determination to be made at trial.

6. United States v. Jones, 842 F.3d 1077 (8th Cir. 2016) District court did not abuse its discretion in limiting expert fire inspector’s testimony in second-degree murder trial because the content of the testimony was not disclosed beforehand. Defendant’s pre-Miranda statements to officers shortly after the fire were properly admitted under the public safety exception and because defendant, who was on drugs at the time, was not responding to the officer’s questions, but was making spontaneous statements. Drugs did not render defendant’s confession involuntary.

7. United States v. Olivares, 843 F.3d 752 (8th Cir. 2016) District court did not abuse its discretion in refusing to permit defendant direct access to certain discovery information when defendant signed away his right to it. The court also ordered the jail to give defendant’s counsel unlimited access to defendant the week before trial and allowed defendant to partially proceed pro se (with standby counsel). District court did not abuse its discretion in not ordering another competency evaluation when the defendant had undergone several exams by different doctors and the court was able to watch defendant during trial and assess his competence.

8. United States v. Bear, 844 F.3d 981 (8th Cir. 2016) Defendant was properly subject to federal prosecution because the town in which he committed his crime, New Town, North Dakota, was part of the Fort Berthold Reservation.

9. United States v. Geddes, 844 F.3d 983 (8th Cir 2017) District court did not err in denying defendant’s motion to sever the firearm count from the sex trafficking counts because they involved the same series of events. District court did not err in admitting testimony of defendant’s ex-girlfriend to prove that defendant intended to force/coerce the victim to engage in prostitution because the prior act was sufficiently similar to infer criminal intent. District court did not abuse discretion in allowing prosecution to present expert testimony from a special agent with the Minnesota Bureau of Criminal Apprehension. Evidence was sufficient to support convictions.

10. United States v. Mikawa, 849 F.3d 445 (8th Cir. 2017) District court did not err in declining to release defendant charged with false personation, but found not guilty by reason of insanity. Court did not clearly err when it found that defendant posed a substantial risk because

27 he was suffering from numerous mental illnesses, had threatened or harassed others in the past, and had a long history of refusing to believe he had a mental illness and refusing to take his medication.

11. United States v. Beltramea, 849 F.3d 753 (8th Cir. 2017) Evidence that defendant told investors that he was going to open a chain of restaurants, but instead used their money to develop real estate, was a sufficient nexus to his offenses to warrant forfeiture of real estate.

12. United States v. Cooke, 853 F.3d 464 (8th Cir. 2017) Even if rule requiring arrestee to be taken before a magistrate judge without unnecessary delay applied to defendant’s arrest, remedy was only suppression of illegally obtained evidence, not dismissal of indictment.

13. United States v. Aossey, 854 F.3d 453 (8th Cir. 2017) Meat Inspection Act section giving Secretary of Agriculture authority to direct that use of false or misleading meat label be withheld unless it was modified to conform to Secretary’s prescription did not unambiguously remove from district court’s jurisdiction prosecutions for offenses arising from scheme to sell misbranded meat.

14. United States v. Norwood, 854 F.3d 469 (8th Cir. 2017) District court judge, who had previously been United States Attorney, did not have a conflict of interest that would require her recusal from prosecution to commit mail fraud, because investigation and prosecution of defendant’s conspiracy occurred after she left her position.

15. United States v. Dalasta, 856 F.3d 549 (8th Cir. 2017) Once court finds a defendant incompetent to stand trial, it must commit him to the custody of the Attorney General to determine whether his competency can be restored. Even if medical evidence establishes that his competency cannot be restored, he must still be committed to evaluate his dangerousness.

16. United States v. Graves, 856 F.3d 567 (8th Cir. 2017) The government complied with its disclosure requirements in providing electronic discovery to pro se defendant charged with sex trafficking and distribution of methamphetamine. The “open discovery file” provided by the government allowed defendant access to material beyond that required by rule, statute, or the Constitution and defendant was not prejudiced by the lack of access to discovery.

17. United States v. Prucha, 856 F.3d 1184 (8th Cir. 2017) Defendant’s motion to proceed pro se on the third day of his child pornography trial was not timely, even though the district court had advised the defendant that he could make move to proceed pro se at any time, because the defendant claimed he was not prepared to represent himself because he had not seen all discovery.

18. United States v. Hardison, 859 F.3d 585 (8th Cir. 2017) The district court did not err in combining the evidentiary hearing on defendant’s motion to suppress with his bench trial because the defendant filed his motion on the Friday before the Monday trial date; there was no structural error in combining the matters.

19. United States v. Whitbeck, ___ F.3d ____, 2017 WL 2586813 (8th Cir. 6/15/2017) The Mandatory Victims Restitution Act does not provide a district court with the authority to reduce the amount of a restitution obligation to match the value of a negotiated settlement with the victim in a civil proceeding; therefore, the district court did not have authority to grant defendant’s request to deem the restitution obligation discharged if he paid the negotiated settlement.

20. United States v. Herra-Herra, 860 F.3d 1128 (8th Cir. 2017) Twelve hours of deliberation at trial for a conspiracy to distribute methamphetamine charge did not indicate coercion, and thus it was within the district court’s discretion to give an Allen charge advising deadlocked jurors to reconsider their positions, rather than granting a mistrial as requested by defendant.

21. United States v. Mendez, 860 F.3d 1147 (8th Cir. 2017) Defendant knew, or should have known, that he enjoyed a present right to the return of his property that the government had seized but was not subject to forfeiture when the district court entered judgment on the jury’s guilty verdict. Thus, the statute of limitation on a motion for the return of seized property began to run on the date that judgment was entered and defendant’s present motion was time barred.

C. Fourth Amendment

Supreme Court Case 1. Manuel v. City of Joliet, 137 S. Ct. 911 (2017) Defendant was arrested and charged with unlawful possession of a controlled substance based on fabricated evidence. A county judge found probable cause to detain defendant after only considering the complaint. The district court found that the judge’s probable cause determination stopped defendant’s Fourth Amendment violation. Supreme Court reversed: pretrial detention can violate the Fourth Amendment when it follows the start of the legal process. Because the judge’s probable cause determination was based on falsified evidence, it did not extinguish the violation.

Eighth Circuit Cases

2. United States v. Zamora-Garcia, 831 F.3d 979 (8th Cir. 2016) Officer did not exceed the scope of defendant’s consent by bringing defendant’s car to the station when defendant agreed to let officer take his car to the station. Officer had probable cause to drill hole into trunk compartment when there was clearly a hidden compartment attached to the underside of the car, trunk contained a large bag of money, and defendant was visibly nervous.

3. United States v. Notman, 831 F.3d 1084 (8th Cir. 2016) Police had probable cause to search defendant’s house for child pornography when he had a prior child pornography conviction, he was registered on a website known to distribute child pornography, and had purchased videos known to contain nude images of minors online.

4. United States v. Fields, 832 F.3d 831 (8th Cir. 2016) Officer had reasonable suspicion to stop defendant when defendant and others showed up at an unsolved murder, the victim’s family had requested protective police presence, two of the men seemed to be guarding the funeral home door, and defendant had a bulge on his hip consistent with a firearm.

5. United States v. Faler, 832 F.3d 849 (8th Cir. 2016) Property owner stepping aside and motioning towards defendant gave officers the implied consent to enter the home.

6. United States v. Camberos-Villapuda, 832 F.3d 948 (8th Cir. 2016) Defendant lacked standing to challenge officer’s search of house and car because he abandoned his interests in them when he told the officer that he did not know who owned the house, was not staying there, had not been inside, he did not own the car, and the car was registered to someone else.

7. Duffie v. City of Lincoln, 834 F.3d 877 (8th Cir. 2016) Officers that initiated high-risk traffic stop of suspect lacked reasonable suspicion when incident report claimed suspect displayed a hand gun and pretended to blow imaginary smoke coming from the barrel, but there was no evidence suspect illegally possessed the gun, Nebraska has open carry gun laws, suspect did not threaten anyone, and the report indicated that the man police were looking for was young and had hair and the suspect was 58-years old and was bald, and suspect did not violate any traffic laws.

8. United States v. Rodriguez, 834 F.3d 937 (8th Cir. 2016) Evidence gained after illegal, unconsented search of house was admissible under the good faith exception to the warrant requirement. Officer’s belief that defendant had consented to his entry was reasonable when defendant did not protest when the officer followed him into the house and, after the officer asked to talk with defendant, defendant opened the door wider with one hand and walked into his house with his back turned to the officer.

9. United States v. Green, 835 F.3d 844 (8th Cir. 2016) Police violated defendants’ Fourth Amendment rights when they seized defendants’ phone and computer in 2012, but inadvertently held the electronics until 2014—one week before trial—before realizing they had not searched the electronics and obtaining a search warrant. Error was harmless because defendants had a week to prepare for the evidence, the error was inadvertent, and the evidence was sufficient to support a conviction without the evidence from the late search.

10. United States v. Arnold, 835 F.3d 833 (8th Cir. 2016) Roadblock was reasonable under the Fourth Amendment when the police were searching for armed bank robbers fleeing a second bank robbery, all of the individuals stopped by the roadblock were involved in the robbery, the police knew the type and color of the car involved, and the roadblock only stopped the individuals for a couple minutes before arresting them.

11. Stewart v. Wagner, 836 F.3d 978 (8th Cir. 2016) Defendant’s claim that officer procured false statements to develop probable cause to prosecute him is a claim for a violation of the Fourth Amendment, not substantive due process. In addition, officers were entitled to qualified immunity for determining probable cause existed—some of the statements officers relied on were enough to find probable cause, even if there were contradictory statements as well.

12. Gilmore v. City of Minneapolis, 837 F.3d 827 (8th Cir. 2016) Officers who arrested defendant were entitled to qualified immunity on defendant’s § 1983 false arrest claim because it was unclear whether the Fourth Amendment permits warrantless arrests for misdemeanors when the officer did not witness the offense. Witness’s report of the events surrounding the offense to the officers was arguable probable cause.

13. United States v. Walker, 840 F.3d 477 (8th Cir. 2016) Officers did not violate defendant’s Fourth Amendment rights by pulling him over due to the large crack in his windshield because the crack provided a reasonable basis for the office to believe the defendant was violating traffic law against obstructing driver’s vision. Smell of fresh, unburnt marijuana provided probable cause for officer to search the car.

14. United States v. Craddock, 841 F.3d 756 (8th Cir. 2016) Officer lacked probable cause to remove key fob during a Terry stop when the fob was clearly not a weapon, officer only saw defendant near the stolen car, officer did not know the key fob was associated with the stolen car, and millions of Americans walk around with key fobs in their pockets every day.

15. United States v. Merrell, 842 F.3d 577 (8th Cir. 2016) Government did not exceed the scope of a warrant authorizing officers to take photos of the defendant’s hands by taking 47 photos, and taking that many photos was no unreasonable. Photos were not an identification procedure under the Due Process Clause because they were not being presented to an eye witness for identification.

16. United States v. Cook, 842 F.3d 597 (8th Cir. 2016) Police did not seize defendant by pulling up behind his car with their “wig wag” lights on, but they did when they asked him to step out of the car. Officer approached the parked car, but defendant voluntarily rolled down his window. Officer did not order defendant to step out of the car until he smelled marijuana coming from the open window.

17. United States v. Morgan, 842 F.3d 1070 (8th Cir. 2016) Issuance of warrant 75 days after police identified that IP address associated with sharing images containing child pornography did not make the information stale in child pornography case. Custodians tend to hold that information for a long time. Officer’s viewing defendant’s cellphone screen did not violate his Fourth Amendment rights when he did not object or hide his screen and told officers information about different contacts. Officer asking defendant to lift his sleeve to expose tattoo visible in pornographic images was not unconstitutional search because defendant consented.

18. United States v. Skarda, 845 F.3d 370 (8th Cir. 2016) Failing to record a telephonic conversation to modify the address of a search warrant after realizing an error in violation of Rule 41 and Rule 4.1 of the Federal Rules of Criminal Procedure did not render the search warrant invalid because the violation was not of constitutional magnitude, defendant was not prejudiced, and there was no evidence that the violation of the rule was intentional and deliberate or reckless. Informant’s description was sufficient to constitute probable cause. Evidence that defendant threatened a government witness was admissible to show defendant was guilty of the charge.

19. United States v. Wright, 844 F.3d 759 (8th Cir. 2016) District court properly denied defendant’s motion to suppress evidence found in a search of defendant and his car. A known confidential informant provided information that defendant and a companion would be traveling to Chicago to pick up crack cocaine, and the surveillance conducted by police supported this idea (defendant went eastbound on I-80 from Davenport, returned in about the time necessary to complete a round trip to Chicago, rummaged around the back seat, and emerged with a duffle bag). Further, when police officers approached defendant, he smelled of marijuana and a marijuana was in plain view in the car, providing probable cause to detain defendant and search his car, including the glove component where the crack cocaine was found. Lastly, defendant had no reasonable expectation of privacy in the parking lot of his cousin’s apartment building.

20. United States v. Fuehrer, 844 F.3d 767 (8th Cir. 2016) Police officer did not make a pretextual stop. He had an objectively reasonable basis to believe defendant was speeding when defendant was driving one mile per hour over the speed limit, despite that the officer had been tracking defendant by GPS for suspicion of methamphetamine distribution and was planning to make a traffic stop on that day. Officer did not unreasonably prolong the traffic stop—the dog sniff occurred while the officer was completing required paperwork for the warning. Defendant’s prior federal and state convictions were separate and properly scored under Guidelines § 4A1.2(a)(2).

21. United States v. Yorgensen, 845 F.3d 908 (8th Cir. 2017) District court erroneously suppressed defendant’s incriminating statements. Officer made “recklessly false” statement in the affidavit supporting his search warrant. Two days later, defendant made incriminating statements to a law enforcement officer from a different law enforcement agency after defendant expressly waived his Miranda rights.

22. United States v. Brackett, 846 F.3d 987 (8th Cir. 2017) Search warrant contained enough information to establish probable cause to search defendant’s home from visual depictions of minor victim when the victim described having sexual intercourse with the defendant, he had taken pictures of her, he was a registered sex offender, and he had committed similar crimes in the past.

23. United States v. Russell, 847 F.3d 616 (8th Cir. 2017) Defendant riding in a rental car, who was not the renter or driver of the vehicle, did not have standing to challenge a search of the trunk. Defendant provided no evidence that he had a possessory interest in the car, even though

his girlfriend was allegedly operating the vehicle at his direction.

24. United States v. McCoy, 847 F.3d 601 (8th Cir. 2017) Defendant was on supervised post-conviction release when probation officers conducted a warrantless search of his computer pursuant to his conditions of release and found child pornography. Search was reasonable and the evidence supported his conviction. An enhancement for defendant’s previous conviction for transporting obscene matters was related to sexual assault and child pornography.

25. United States v. Johnson, 848 F.3d 872 (8th Cir. 2017) Warrant issued 11 months after defendant took nude photos of victim was not stale information giving defendant’s ongoing relationship with his victim. There was sufficient nexus to search his computer based on victim’s descriptions of how the defendant handled the videos he produced. In any case, Leon good faith exception to suppression applied.

26. United States v. Ortega-Montalvo, 850 F.3d 429 (8th Cir. 2017) Officers did not deceive defendant into consenting to search his apartment when they asked to “talk” to him, instead of informing him that they were searching for another criminal. There was no other evidence of coercion. Officer’s protective sweep was appropriate when officers came to this apartment looking for an individual with a conviction for assaulting a police officer.

27. United States v. Stegall, 850 F.3d 981 (8th Cir. 2017) Officer had reasonable suspicion to support a search incident to arrest when he was suspected of a road rage incident, he confirmed he had been involved in the incident, he said he “probably” had a firearm in his vehicle, the victim identified the driver, and a witness saw him hiding something in the vehicle’s rear hatch.

28. United States v. Evans, 851 F.3d 830 (8th Cir. 2017) Victim’s description of the man who raped her as being in a nearby apartment building, of the same height, weight, and build as the defendant, and wearing red tennis shoes was insufficient to establish probable cause to arrest the defendant. Defendant did not have a scar on defendant’s abdomen or tattoos on his hands like the victim’s attacker. His presence near the apartment building was not incriminating when it was 12 hours later. Officers did not ask victim to examine defendant before they arrested him, or call the phone number that the victim believed was that of her attacker to see if the defendant’s phone rang.

29. United States v. Peoples, 854 F.3d 993 (8th Cir. 2017) Police officer’s entry into defendant’s hotel room was for the lawful purpose of effecting defendant’s eviction, thus, evidence observed during the initial entry was a valid basis for a subsequent search warrant of room.

30. United States v. Ahumada, 858 F.3d 1138 (8th Cir. 2017) A brief extension of a traffic stop for eight-and-a-half minutes, so that a trooper could conduct a drug-dog sniff was objectively reasonable under then-binding federal circuit precedent; thus, the district court did not err in denying the motion to suppress the evidence found in the drug-sniff.

31. United States v. Council, 860 F.3d 604 (8th Cir. 2017) Sheriff’s deputies had reasonably trustworthy information sufficient to support a belief by a reasonably prudent person that defendant had committed an offense and thus had probable cause to arrest defendant without a warrant. The deputies received detailed and consistent reports from two witnesses of defendant’s recent violent conduct, the deputies found a truck on defendant’s property matching witnesses’ reports, and defendant threatened a witness when the deputies questioned him.

D. Fifth Amendment

Supreme Court Cases

1. United States v. Bravo-Fernandez, 137 S. Ct. 352 (2016) Defendants were convicted of federal-program bribery, but acquitted of conspiracy to commit federal-program bribery, an inconsistent verdict. The issue-preclusion component of the Double Jeopardy Clause does not bar retrial when jury comes back with inconsistent verdicts of conviction and acquittal and the convictions are later vacated for legal error unrelated to inconsistency.

2. Beckles v. United States, 137 S. Ct. 886 (2017) The Federal Sentencing Guidelines, including § 4B1.2(a)’s residual clause, are not subject to vagueness challenges under the Due Process Clause. This case followed Johnson v. United States, 135 S. Ct. 2551, which held the identically worded residual clause of the Armed Career Criminal Act was unconstitutionally vague.

Eighth Circuit Cases

3. United States v. Braden, 844 F.3d 794 (8th Cir. 2016) Defendant’s pre-Miranda statement to officers about the presence of marijuana while the officers executed the search warrant of his home was not properly preserved for review. Defendant failed to satisfy the plain error test because he could not show that the outcome of his trial would have been different had the court suppressed the statement. District court did not commit plain error by admitting expert testimony of an officer stating that guns were often used in drug dealing, and even if it was an error, it did not affect the outcome of the case.

4. United States v. Lewis, 844 F.3d 1007 (8th Cir. 2017) Double jeopardy and collateral estoppel did not prevent government from pursing claims it previously brought against defendant, dropped pursuant to a plea agreement, and then brought again after he reneged on the agreement. The charges were dropped before a jury was empaneled in the previous case. Eighth Circuit lacked jurisdiction to hear interlocutory appeal of defendant’s motion to dismiss.

5. United States v. LaFontaine, 847 F.3d 974 (8th Cir. 2017) Prosecutor did not commit misconduct when he made negative comments about defendant’s presumption of innocence, failure to testify, and attorney. Jury instructions contained the correct rule of law as to defendant’s presumption. Comments about failure to testify were indirect and aimed at strengthening a different witness’s credibility. Statements about defendant’s attorney were within bounds. In addition, defendant’s prior conversation with government employee was admissible as prior bad acts evidence. Court did not abuse discretion in imposing GPS monitoring as a condition of supervised release.

6. United States v. Jackson, 852 F.3d 764 (8th Cir. 2017) District court’s error in not suppressing second-degree murder defendant’s statement that he did not know when he had his last haircut, which was obtained in violation of Miranda and used to undermine his credibility, was harmless because the totality of the government’s evidence was substantial.

7. United States v. Ownen, 854 F.3d 536 (8th Cir. 2017) Defendant made a voluntary, knowing, and intelligent choice to represent himself at his revocation hearing after being advised against the decision by the magistrate judge; therefore, his claim that his waiver of counsel and decision to proceed pro se were invalid was rejected.

E. Due Process/Evidence

Eighth Circuit Cases

1. United States v. Scott, 831 F.3d 1027 (8th Cir. 2016) Officers did not violate defendant’s Due Process rights by using an old photograph of the defendant in a photographic lineup. Defendant failed to allege that officer used a suggestive and unnecessary procedure, thus the court did not need to reach the question of whether the evidence was unreliable.

2. United States v. Bailey, 831 F.3d 1035 (8th Cir. 2016) Substantial evidence supported finding that defendant knowingly possessed firearm when defendant was holding his pants up at one point, but then did not need to later; defendant talked to himself while in the squad car indicating the gun was his, and the gun was found in a yard that defendant ran through.

3. United States v. St. Claire, 831 F.3d 1039 (8th Cir. 2016) District court did not abuse its discretion by allowing fourth sexual assault victim of defendant to testify under the Federal Rules of Evidence’s rule regarding child molestation evidence. Even though the testimony was cumulative, its probative value outweighed its prejudicial value because it was so similar to the other victims’ testimony.

4. United States v. Ways, 832 F.3d 887 (8th Cir. 2016) Evidence was insufficient for a reasonable jury to find beyond a reasonable doubt that defendant was felon in possession of ammunition. Ammunition was found in a box in the basement of defendant’s girlfriend’s house, defendant did not live at the house, there was no evidence tying defendant to the ammunition. But drug paraphernalia that presumably belonged to defendant was found in the basement, defendant had once owned an AK-15, and defendant stored some clothes and business records at the house.

5. United States v. Bramer, 832 F.3d 908 (8th Cir. 2016) Statute prohibiting possession of a firearm while being “an unlawful user or addicted to any controlled substance” was not unconstitutionally vague as applied to this defendant because he admitted to being an unlawful user. Court did not preclude the possibility that the statute could be unconstitutionally vague as applied to other cases.

6. United States v. Pendleton, 832 F.3d 934 (8th Cir. 2016) District court did not err when it denied defendant’s request for the presentencing reports of two co-conspirators. Even though PSR’s may have indicated that co-conspirators did not initially name defendant, but named him later, the court did not violate his Brady rights because the government had not asked them specific questions about defendant and the evidence was neutral at best.

7. United States v. Golding, 833 F.3d 914 (8th Cir. 2016) District court did not abuse its discretion by admitting evidence of physician’s previous investigation and settlement agreement as evidence of his motive and intent to violate the law in this case, despite Rule 404(b)’s bar to evidence of prior bad acts solely to prove criminal disposition. Evidence proved that defendant-physician knew false reporting was illegal.

8. United States v. Luger, 837 F.3d 870 (8th Cir. 2016) Evidence of defendant’s 25-year-old sexual assaults on minors was admissible under Federal Rules of Evidence 413 and 414. Court weighed the evidence’s probative value against its prejudicial value and determined that the similarities (age of the victims, their familial relationships, and defendant’s position of power of victims) outweighed the differences (assaults were 25 years apart and rape in the previous assault and touching in this case). Evidence of previous assaults on adults though was more prejudicial than probative.

9. United States v. Zavesky, 839 F.3d 688 (8th Cir. 2016) Defendant was not entitled to new trial for district court’s violation of defendant’s rights under 18 U.S.C. § 4247(d), the Due Process Clause, or the Sixth Amendment by ordering mental evaluation without giving defendant notice, an opportunity to be present when the court ordered the evaluation, or an opportunity to be heard. District court had reasonable cause to determine defendant needed the evaluation based on testimony of defense counsel and defendant’s sister. Any error defendant faced was harmless.

10. United States v. Muratella, 843 F.3d 780 (8th Cir. 2016) Defendant waived his vindictive prosecution claim by knowingly and intelligently pleading guilty to the charges brought against him, despite the fact that the government filed a 21 U.S.C. § 851 information the day before the change of plea hearing. The § 851 information was not jurisdictional—it merely resulted in an increased sentence for the charge defendant was already facing.

11. United States v. Hassan, 844 F.3d 723 (8th Cir. 2016) District court properly denied defendant’s motions for acquittal and motion for a new trial. Government did not violate Brady by showing less DVD footage of the incident than was disclosed to defense counsel during discovery.

12. United States v. Fang, 844 F.3d 775 (8th Cir. 2016) Evidence was sufficient to support defendant’s conviction for possession of methamphetamine with intent to distribute. The court did not err in admitting evidence of past felony drug convictions for possession of meth from 2006 and 2012 as they were relevant to proving knowledge, were not too remote in time, and the evidence was not unfairly prejudicial. Further, the court gave a limiting instruction that likely reduced any possible prejudice.

13. United States v. Lora-Andres, 844 F.3d 781 (8th Cir. 2016) District court did not err in admitting evidence of phone calls between defendant and co-conspirators. Even though the co-conspirators were not formally registered confidential informants, they were acting under color of law, making their recordings legal under the Wiretap Act. The district court did not err in refusing to instruct the jury that defendant faced a ten-year mandatory minimum prison sentence if convicted of conspiracy to distribute 500 or more grams of meth. There was no error in imposing a two-level enhancement under Guidelines § 3B1.1(c) for management role in the offense.

14. United States v. Payne-Owens, 845 F.3d 868 (8th Cir. 2017) Federal Rule of Evidence 404(b)’s prohibition against evidence of prior bad acts did not bar evidence of defendant’s gang affiliation and social media posts about owning and using a gun because they provided context and motive. Prosecutor’s assertions during closing arguments that a real gang member from Chicago would not have a fake gun, which was defendant’s defense, were not reversible error.

15. Ryan v. Armstrong, 850 F.3d 419 (8th Cir. 2017) Officers were not entitled to qualified immunity on defendant’s deliberate indifference to serious medical needs claim when there were questions of fact as to whether they ignored pretrial detainee’s yelling, pounding on the door, hitting his head against the door, and a pool of blood on the floor in his cell. Defendants were entitled to qualified immunity on pretrial detainee’s excessive force claims when they applied body weight on top of him while he was in a prone position and tased him twice while attempting to remove him from his cell.

16. United States v. Ramos, 852 F.3d 747 (8th Cir. 2017) District court erred in admitting state parole board waiver of revocation hearing form over defendant’s Federal Rule of Evidence 403 objection in defendant’s prosecution on methamphetamine and weapons charges. Defendant did not have attorney present and was not under oath when he signed waiver form, he would have faced longer revocation sentence if he had not signed waiver form, alleged parole violations would have had to be proven by only preponderance of evidence, and any probative value the exhibit had was substantially outweighed by risk of unfair prejudice to defendant, as form bore indicia of official reliability and did not necessarily involve same misconduct as federal prosecution.

17. United States v. Wallace, 852 F.3d 778 (8th Cir. 2017) District court did not abuse its discretion in excluding as cumulative under Federal Rule of Evidence 403 defendant’s videotaped statement given close to time of alleged assault when it was consistent with her in-court testimony.

United States v. Delgrosso, 852 F.3d 821 (8th Cir. 2017) Defendant was not entitled to a new trial based on co-conspirator’s post-trial affidavit, which claimed that co-conspirator misled defendant and believed that defendant had no knowledge of the drug conspiracy because the affidavit would not be likely to produce an acquittal if a new trial was granted.

18. United States v. Needham, 852 F.3d 830 (8th Cir. 2017) District court did not abuse discretion in admitting screen shots of preserved version of group website messages over defendant’s lack of authentication objection in child pornography prosecution.

19. United States v. Wyatt, 853 F.3d 452 (8th Cir. 2016) Defendant’s indictment sufficiently charged him with unlawful possession of firearm, even though indictment did not charge him with possessing any firearm “in or affecting commerce,” but only with possessing firearm that “had been transported in interstate commerce.”

20. United States v. Jackson, 856 F.3d 1187 (8th Cir. 2017) The district court did not abuse its discretion in admitting evidence of defendant charged with distribution of heroin’s prior bad acts (past evidence of drug distribution) because it was relevant, went to establishing a common intent, motive, and plan, and, additionally, the evidence did not create a danger of unfair prejudice, and any unfair prejudice was limited through jury instructions.

21. United States v. Canales, 857 F.3d 963 (8th Cir. 2017) The district court did not err in refusing to admit evidence of a threat allegedly made against defendant by a confidential informant for defendant’s entrapment defense because the threat was unrelated to drug trafficking and occurred after the date of the drug offense. The evidence was not relevant to defendant’s defense.

22. United States v. Davis, 859 F.3d 592 (8th Cir. 2017) The evidence of defendant’s guilt regarding the illegal procurement of pseudoephedrine was overwhelming and any error in refusing to admit marginally relevant evidence that defendant obtained a post-conspiracy

40 prescription for pseudoephedrine was harmless.

23. United States v. Gaines, 859 F.3d 1128 (8th Cir. 2017) In a prosecution for felon in possession of a firearm, the probative value of defendant’s gang membership was not substantially outweighed by prejudicial effect. The evidence was offered to give context to the reason why defendant was arrested and to establish defendant’s knowledge, intent, and motive.

24. United States v. Johnson, 860 F.3d 1133 (8th Cir. 2017) The district court did not err in admitting a social worker’s expert testimony without a Daubert hearing in defendant’s prosecution for physically assaulting and raping his wife. Social worker had 30 years of experience specializing in domestic violence/sexual assault and could credibly testify on the cycle of violence in abusive relationships. The district court did not abuse its discretion in allowing the expert to testify on the general characteristics of victims of sexual abuse because the testimony could help jurors evaluate defendant’s wife’s behavior.

25. United States v. Kelley, 861 F.3d 790 (8th Cir. 2017) District court did not commit plain error in allowing agent’s statements regarding defendant’s use of pornography because the probative value of the statements outweighed any potential for unfair prejudice. The agent’s testimony that defendant admitted to looking at and downloading adult role-play pornography and used search terms like “young teen” connected him to the computer in evidence and the file-sharing program that was used to download the pornography. None of the statements were unnecessarily inflammatory or offensive to the point of encouraging the jury to find guilt from improper reasoning.

F. Sixth Amendment

Eighth Circuit Cases

1. United States v. Conklin, 835 F.3d 800 (8th Cir. 2016) Eighth Circuit held that defendant knowingly, voluntarily, and intelligently waived his right to counsel after he refused to tell the district court whether he wanted to retain counsel or have the court appoint counsel and the court repeatedly inquired about his counsel, postponed trial, and advised defendant of the risks of proceeding pro se.

2. United States v. Wearing, 837 F.3d 905 (8th Cir. 2016) Defendant’s placement in administrative segregation upon finding him with a makeshift weapon while incarcerated was not an “arrest” for the purpose of the Speedy Trial Act. An arrest only violates the Speedy Trial Act if the detainee is later charged with a crime and defendant was not.

3. United States v. Sims, 847 F.3d 630 (8th Cir. 2017) Defendant challenged his conviction under his Sixth Amendment right to a speedy trial. Twenty-two month delay between arrest and trial was uncommonly long, but government’s interlocutory appeal of district court’s decision to exclude certain DNA evidence was caused by negligence, not bad faith. Government’s excessive requests for extensions were not aimed at delaying trial. Defendant failed to provide particularized evidence of prejudice.

4. United States v. Tollefson, 853 F.3d 481 (8th Cir. 2017) The district court’s standing order appointing the Federal Public Defender to handle all motions for sentencing reduction under Amendment 782 did not violate defendant’s Sixth Amendment rights because defendants do not have a due process right to self-representation in post-conviction sentence reduction proceedings.

5. Allen v. United States, 854 F.3d 428 (8th Cir. 2017) Defendant’s right to effective counsel was not violated when he was not initially told that he faced a possible life sentence for distributing marijuana because defendant failed to show a substantial likelihood that he would have pled guilty had he been told.

G. Eighth Amendment

Eighth Circuit Case

1. United States v. McCurry, 832 F.3d 842 (8th Cir. 2016) Minimum 15-year sentence did not violate defendant’s Eighth Amendment rights when he had a low intelligence, but was not mentally disabled and was competent to stand trial. Defendant did not face capital punishment or life in prison. Administrative segregation is a method of investigating or disciplining inmates, while arrest is to detain an individual in anticipation of prosecution.

H. Sentencing

Supreme Court Cases

1. Dean v. United States, 137 S. Ct. 1170 (2017) Federal statute setting mandatory minimum sentences for using or possessing a firearm in connection with a violent drug trafficking crime does not restrict the authority of the sentencing court to consider the length of that mandatory minimum sentence when determining the length of sentence for the predicate offense.

2. Manrique v. United States, 137 S. Ct. 1266 (2017) A single notice of appeal, filed after entry of an initial judgment imposing certain aspects of a defendant’s sentence, but before a later, amended judgment determining restitution, is not sufficient to invoke appellate review of the amount of restitution, at least where the government objects to the defendant’s failure to file a notice of appeal following the amended judgment.

3. Honeycutt v. United States, 137 S. Ct. 1626 (2017) A federal statute mandating forfeiture of assets acquired in connection with drug crimes did not impose joint and several liability on a defendant who, while a member of a criminal conspiracy, did not acquire the property in question.

Eighth Circuit Cases

4. United States v. Granados, 830 F.3d 840 (8th Cir. 2016) District court did not abuse its discretion in denying prisoner’s motion to reduce sentence in light of the Sentencing Guidelines amendment when prisoner’s drug offenses involved a large quantity of drugs and violence.

5. United States v. Boedigheimer, 831 F.3d 954 (8th Cir. 2016) District court did not abuse its discretion in giving defendant a longer sentence than his co-conspirators when defendant abused his brother-in-law’s trust by acting as his lawyer, but acting in his own best interests.

6. United States v. Waddell, 831 F.3d 958 (8th Cir. 2016) District court did not clearly err in denying defendant a mitigating-factor reduction when he was present to intimidate the victim and to search the victim for drugs to steal. District court also did not err in relying on facts in presentence report when defendant objected to the characterization of his use of weapons in specific instances, not the presence of the weapons.

7. United States v. Clarke, 831 F.3d 1024 (8th Cir. 2016) Defendant’s 360-month sentence for producing child pornography was substantively reasonable when it was within the Guidelines range and involved two young girls. History of steady employment, lack of criminal history, and malingering mental difficulties did not render sentence unreasonable.

8. United States v. Shield, 831 F.3d 1079 (8th Cir. 2016) District court did not violate Sentencing Guideline § 5K2.21 or defendant’s Sixth Amendment rights by considering conduct that was not proved to a jury beyond a reasonable doubt. District courts can sentence defendants based on judge-found facts and uncharged conduct when sentence falls below the statutory maximum sentence.

9. United States v. Espinosa, 831 F.3d 1096 (8th Cir. 2016) District court did not need to consider whether defendant was a career criminal under the Sentencing Guidelines because district court varied his sentence upward simply based on his criminal history.

10. United States v. Key, 832 F.3d 837 (8th Cir. 2016) Defendant’s condition of release prohibiting possession of obscene materials was not vague or overbroad. The Supreme Court has previously found that its definition is not vague and the condition was not overbroad given the importance of the defendant’s rehabilitation and the goal of protecting children.

11. United States v. Jauron, 832 F.3d 859 (8th Cir. 2016) District court’s inclusion of two additional victims in calculating offense level and its application of the “sadistic or masochistic behavior” enhancement was not harmful error because defendant’s charges already warranted an offense level of 43, the ceiling of offense level calculations.

12. United States v. Binkholder, 832 F.3d 923 (8th Cir. 2016) District court was incorrect in concluding that the individual defendant’s fraud harmed a “victim” for the purposes of sentencing simply because he was a “victim” under the Crime Victims’ Rights Act. While similar, the two terms have different definitions and the court should have engaged in separate

44 analyses.

13. United States v. Chavez, 833 F.3d 887 (8th Cir. 2016) District court correctly applied two-level obstruction-of-justice enhancement when defendant knowingly fled to Mexico and then returned to a different part of the United States in order to avoid conviction. Defendant’s conduct obstructed justice because he delayed the case almost a decade.

14. Gray v. United States, 833 F.3d 919 (8th Cir. 2016) Defendant’s guilty plea was involuntary and unknowing when it contained a charge that the facts did not support. Despite the involuntary plea, the nature of the difference between the charges and defendant’s motivation to plead guilty to avoid a more serious charge made the involuntary plea harmless error. Defendant would have pled guilty regardless. Defendant could not withdraw his plea.

15. United States v. E.T.H., 833 F.3d 931 (8th Cir. 2016) Juvenile defendant on supervised released from an assaulting a federal officer charge violated his terms of release. Eighth Circuit held that the maximum term of supervision district court could impose following revocation of prior supervised release was determined using defendant’s age at the time of revocation.

16. United States v. Gauld, 833 F.3d 941 (8th Cir. 2016) Defendant’s previous juvenile conviction of a sexual offense involving a minor constituted a “prior conviction” for the purpose of sentencing for the crime of receiving child pornography in violation of 18 U.S.C. § 2252(a)(2). Court equated definition of “prior conviction” under the Armed Career Criminal Act and the Sex Offender Registration and Notification Act with § 2252(a)(2) in coming to this conclusion.

17. United States v. Burns, 834 F.3d 887 (8th Cir. 2016) District court did not abuse its discretion in following Sentencing Guidelines regarding child pornography and enhancing defendant’s sentence for “sadistic” material and “use of a computer.” While district court is not required to follow the Guidelines, following them is not a per se abuse of discretion. In addition, defendant’s enhancements were appropriate because his charges involved images that constituted “sadistic material” and involved computer manipulation of images.

18. United States v. Jensen, 834 F.3d 895 (8th Cir. 2016) Any error the district court committed by failing to apply acceptance-of-responsibility reduction or in applying obstruction-of-justice enhancement was harmless because defendant’s offense level would not have fallen below 43, which is the ceiling of the Guidelines range.

19. United States v. Bogdan, 835 F.3d 805 (8th Cir. 2016) Defendant’s statutory minimum sentence for distributing methamphetamine was based on a plea agreement negotiated by the parties and not on the Sentencing Guidelines. Thus, defendant was not entitled to a retroactive reduction in sentence for drug-based offenses.

20. United States v. Jones, 836 F.3d 896 (8th Cir. 2016) District court did not abuse its discretion in declining to apply two-level reduction for drug-related crimes that had not yet been passed. District court determined on the record that a 140-month sentence was appropriate based

on the facts of the case and the factors laid out in § 3553(a).

21. United States v. Miranda-Zarco, 836 F.3d 899 (8th Cir. 2016) District court correctly counted defendant’s previous convictions for armed criminal action and first-degree robbery as two offenses, even though they arose out of the same course of events, because the crimes had different elements and the Missouri legislature intended them to be punished cumulatively. District court remanded for sentencing because district court was not clear whether it relied on the previously invalidated “residual clause” of U.S.S.G. § 4B1.2(a).

22. United States v. Durham, 836 F.3d 903 (8th Cir. 2016) District court did not fail to rule on defendant’s request for a downward adjustment of offense level based on his minor role in the crime. District court denied defendant’s request along with defendant’s request for a variance and stated that it was denying the remainder of defendant’s requests.

23. United States v. Fogg, 836 F.3d. 951 (8th Cir. 2016) Defendant challenged the district court’s enhancement under the Armed Career Criminal Act due to his prior criminal history. Defendant contended that attempted drive-by shooting was not a “violent felony” under the statute. Eighth Circuit held Minnesota conviction for the reckless discharge of a firearm at or toward a person qualified is a “violent felony.”

24. United States v. Petruk, 836 F.3d 974 (8th Cir. 2016) District court did not err by applying two-level enhancement for an obstruction offense and denying defendant’s request for acceptance-of-responsibility reduction when defendant conspired to have third party call him in jail and falsely admit to defendant’s crime in order to provide evidence in his favor.

25. United States v. Thorne, 837 F.3d 888 (8th Cir. 2016) Defendant’s convictions for second-degree burglary of a dwelling were not “violent felonies” under the Armed Career Criminal Act because the elements of the charged crimes were over-inclusive in comparison to the definition of “violent felony” and indivisible.

26. United States v. Thomas, 838 F.3d 926 (8th Cir. 2016) Defendant’s previous conviction for Arkansas first-degree battery constituted a “crime of violence” for sentencing purposes because it was impossible to inflict serious physical injury by means of a deadly weapon as defined by the statute without employing physical force.

27. United States v. Gibson, 840 F.3d 512 (8th Cir. 2016) District court appropriately applied a two-level computer-use enhancement to defendant’s sentence for sex trafficking of a child because he posted an internet advertisement for the act. Commentary note 4 to U.S.S.G. § 2G1.3(b)(3) was inconsistent with the plain text of the Guideline, so the Guideline controls.

28. United States v. White, 840 F.3d 550 (8th Cir. 2016) District court properly varied defendant’s revocation sentence upward based on his violent past. Defendant did not contest any of the facts in his presentence investigation report supporting the conclusion that he was a violent person at his bond revocation hearing. District court relied on the facts underlying defendant’s

criminal history, not solely his arrests.

29. United States v. Hunt, 840 F.3d 554 (8th Cir. 2016) District court correctly denied defendant a two-level sentence reduction for being a minor participant in a conspiracy to distribute methamphetamine when defendant typically sold more than 2 ounces at a time, his methamphetamine was very pure, the conspiracy had sold over 45 pounds of methamphetamine, and he had been dealing for over 2 and ½ years.

30. United States v. Brandriet, 840 F.3d 558 (8th Cir. 2016) District court properly applied two-level enhancement for causing substantial financial hardship to defendant’s sentence for mail fraud when defendant acted as the victim’s insurance adjuster and withheld and stole $30,000 earmarked for time-sensitive rent and living expenses.

31. United States v. Bell, 840 F.3d 963 (8th Cir. 2016) District court improperly applied a two-level sentence enhancement for defendant’s prior conviction of second-degree robbery in Missouri as a “crime of violence.” A defendant can be convicted of that crime without resorting to the minimum amount of violence.

32. United States v. Thomas, 841 F.3d 760 (8th Cir. 2016) District court did not err in calculating defendant’s loss amount using $500 minimum loss amount for each unused fraudulent gift card he possessed. “Organizer or leader” enhancement was proper because defendant was directing and arranging the conspiracy. Obstruction of justice enhancement was proper when defendant provided police officers with a false name.

33. United States v. McFee, 842 F.3d 572 (8th Cir. 2016) Minnesota’s terroristic threat statute, which criminalizes threatening a “crime of violence” was not a violent felony under the Armed Career Criminal Act because the statute’s definition of “crime of violence” contained crimes that did not require the use of force as an element.

34. United States v. Carpenter, 841 F.3d 1057 (8th Cir. 2016) District court was within its discretion when it used the one-day-high price of futures commodities to calculate the amount of restitution defendant owed. However, the Eighth Circuit remanded to determine whether the attorney’s fees included in the restitution award were necessary.

35. United States v. Dace, 842 F.3d 1067 (8th Cir. 2016) Eighth Circuit held that a Missouri second-degree robbery conviction was not a crime of violence under the Armed Career Criminal Act because it did not require the use of force as an element. However, district court’s error was harmless because other factors supported upward variance.

36. United States v. Watson, 843 F.3d 335 (8th Cir. 2016) Defendant was convicted of escape from federal custody and also had pending federal fraud charges against him. District court sentenced him to a year and a half in prison, to run consecutively with any sentence from the fraud charges. Any error committed by district court in imposing sentence that would run consecutively to pending charges was not clear error.

37. United States v. Long, 843 F.3d 338 (8th Cir. 2016) Defendant’s supervised release was revoked because he was pulled over for driving while intoxicated and possessed a gun in violation of his release agreement. Defendant constructively possessed the gun under the seat of his car because he owned the car, he had been caught drinking and driving with a weapon previously, and he was sitting above the gun. District court did not abuse its discretion by denying a continuance because it had little evidence defendant’s head injury affected his ability to participate in the hearing.

38. United States v. Hobbs, 845 F.3d 365 (8th Cir. 2016) District court abused its discretion in imposing a no-contact order between defendant and her husband as part of defendant’s supervised release. Defendant and her husband had both plead guilty to aggravated identity theft and conspiracy to commit bank fraud, and the defendant’s husband was released shortly before the defendant’s violations. The Eighth Circuit held that the evidence was insufficient to show that defendant’s husband induced her to commit the underlying crimes nor were the release violations related to the underlying offense. The blanket no-contact order was overly broad and involved a greater deprivation of liberty than reasonably necessary.

39. United States v. Sykes, 844 F.3d 712 (8th Cir. 2016) District court correctly found that defendant’s prior convictions of Missouri second-degree burglary constituted violent felonies under the Armed Career Criminal Act § 924(e), as the elements of the statute and the defendant’s actual activities fit the generic definition of burglary. Applying the ACCA based on convictions obtained when defendant was a juvenile was not cruel and unusual punishment in violation of the Eighth Amendment because defendant was certified as an adult for each prior conviction.

40. United States v. Robles-Garcia, 844 F.3d 792 (8th Cir. 2016) District court did not improperly consider or give significant weight to defendant’s original within-Guidelines sentence when it reduced defendant’s 600-month sentence by 100 months after considering the retroactively effective modified Sentencing Guidelines, which made defendant’s sentencing range from 292 to 365 months. The out-of-range sentence was not an abuse of discretion because of the violent nature of defendant’s crimes.

41. United States v. Parrow, 844 F.3d 801 (8th Cir. 2016) Defendant’s prior Iowa conviction for domestic abuse is a felony crime of violence for purposes of calculating defendant’s base offense level under Guidelines § 2K2.1(a)(4)(A).

42. United States v. Kouangvan, 844 F.3d 996 (8th Cir. 2017) Prosecutor’s and district court’s references to defendant’s race, national origin, immigration status, and socioeconomic status during sentencing hearing were explanations of the circumstances of defendant’s crime and its effect on her victims, rather than improper considerations that extended her sentence.

43. United States v. Winston, 845 F.3d 876 (8th Cir. 2017) Defendant’s prior conviction for second-degree battery was a violent felony under the Armed Career Criminal Act. Defendant’s charging document in prior conviction indicated he was charged under portion of crime requiring the use of physical force.

44. United States v. Schultz, 845 F.3d 879 (8th Cir. 2017) District court did not err when it prohibited defendant convicted of failing to register as a sex offender from accessing pornography or having contact with minor children. Defendant had a history of contacting young females, and he was still allowed monitored internet access.

45. United States v. McGrew, 846 F.3d 277 (8th Cir. 2017) District court did not err when it sentenced defendant to the statutory maximum. Court determined that the statutory maximum was the appropriate sentence, and that no other sentence would suffice. Any error in court’s Sentencing Guidelines calculation was harmless.

46. United States v. Funke, 846 F.3d 998 (8th Cir. 2017) District court did not err in giving defendant convicted of possessing child pornography sentence within the Sentencing Guidelines’ range. Despite his military service, long-term employment, and sparse criminal history, the long duration of defendant’s crime, and the large number of images weighed against a downward variance. Award of restitution for future therapy was not an abuse of discretion because it was a “future cost” under the Mandatory Victims Restitution Act.

47. United States v. Schrader, 846 F.3d 1247 (8th Cir. 2017) Government moved to revoke defendant’s supervised release on three grounds. Government announced it would not present evidence regarding two of the grounds, and defendant moved to seal the motion and strike the allegations from the presentence report. The court properly refused to strike the allegations, but sustained defendant’s objections to them. Rule 32 does not require a court to strike controverted material not considered in sentencing.

48. United States v. Lamb, 847 F.3d 928 (8th Cir. 2017) The Eighth Circuit reviewed defendant’s sentencing in light of Mathis v. United States, 136 S. Ct. 2243 (2016). District court properly sentenced defendant because Mathis did not affect district court’s finding that his prior Michigan robbery convictions were violent felonies under the Armed Career Criminal Act. It also did not affect the finding based on a Wisconsin charging document that defendant was charged with generic burglary, an enumerated felony under 18 U.S.C. § 924(e)(2)(B)(ii).

49. United States v. Johnson, 846 F.3d 1249 (8th Cir. 2017) District court did not err in applying four-level enhancement for possessing a firearm in furtherance of another felony when the felony in question was possession of heroin with the intent to distribute. Firearm facilitated the drug offense.

50. United States v. Wrice, 855 F.3d 832 (8th Cir. 2017) District court did not improperly rely on the incongruity of defendant’s claims that he was caring for his children in Chicago while conspiring to distribute drugs in Iowa in sentencing. The effect of the statement was negligible and the district court relied on other relevant and permissible factors in determining his sentence.

51. United States v. Bevins, 848 F.3d 835 (8th Cir. 2017) District court properly applied enhancement for being a repeat and dangerous offender to man convicted of production, receipt, and possession of child porn when he had made at least two other videos and admitted to engaging in prohibited sexual conduct on multiple occasions. District court also properly applied enhancement for materials that portrayed sadistic or masochistic conduct or other depictions of violence when the video portrayed the victim resisting his assault.

52. United States v. Thigpen, 848 F.3d 841 (8th Cir. 2017) District court’s determination that defendant’s Iowa third-degree burglary conviction was a “crime of violence” was harmless error because court stated it would have imposed the same sentence regardless. District court properly enhanced defendant’s sentence for being a felon in possession of a firearm due to the fact that two numbers had been scratched off the gun’s serial number. The court also properly enhanced his sentence for defendant’s violation of an Iowa statute prohibiting carrying a concealed weapon. District court did not plainly err by stating it was imposing a non-Guidelines sentence and then imposing a sentence within the Guidelines range.

53. United States v. Adejumo, 848 F.3d 868 (8th Cir. 2017) Defendant pled guilty to bank fraud and aggravated identity theft and was sentenced. Over six months later, the government moved for a restitution order and the court granted one. The court did not lack jurisdiction to order restitution because it made it clear at sentencing that it intended to order it. However, the government failed to provide sufficient evidence of the ultimate losses defendant caused. Restitution award vacated.

54. United States v. Swisshelm, 848 F.3d 1157 (8th Cir. 2017) Defendant charged with bank fraud and money laundering breached his plea agreement when he requested a below-Guidelines sentence. Defendant’s breach affected the district court’s decision. Sentence vacated and remanded.

55. United States v. Bacon, 848 F.3d 1150 (8th Cir. 2017) District court’s sentence that was twice the upper limit of defendant’s Guidelines range was substantively reasonable because the court carefully considered whether defendant had made an effort to improve his respect for the law, whether a Guidelines-range sentence would improve his respect for the law, and whether a Guidelines-range sentence would protect the public.

56. United States v. McHenry, 849 F.3d 699 (8th Cir. 2017) District court did not abuse its discretion in denying defendant’s motion to withdraw his guilty plea based on his claim of ineffective assistance of counsel. Defendant’s claim his attorney did not prepare him for change-of-plea hearing was refuted by the transcript. Defendant’s assertion that his attorney should have moved to suppress certain evidence was meritless. Court did not err in enhancing his sentence for obstruction of justice when the defendant contacted the victim in an effort to change her testimony.

57. United States v. Irons, 849 F.3d 743 (8th Cir. 2017) District court did not err in determining that defendant’s prior conviction for violence against another inmate was a violent felony under the terms of the Armed Career Criminal Act.

58. United States v. Hernandez-Pineda, 849 F.3d 769 (8th Cir. 2017) District court did not abuse its discretion in sentencing. District court heard defendant’s arguments, acknowledged them, and concluded that defendant’s recidivism far outweighed any mitigating factors.

59. United States v. Winston, 850 F.3d 377 (8th Cir. 2017) District court did not abuse its discretion when it amended defendant’s supervised release to require him to submit to searches upon reasonable suspicion. District court was free to impose that requirement on defendant, and it did not violate the Ex Post Facto Clause because it was not punitive in nature.

60. United States v. Sherwood, 850 F.3d 391 (8th Cir. 2017) District court abused its discretion when it imposed conditions of supervised release that required defendant convicted of sexual assault to report personal financial details to the U.S. Probation Office and gain permission before opening new lines of credit. Financial conditions were unrelated to the circumstances surrounding defendant’s crime, and he had no advance notice of their imposition.

61. United States v. Hairy Chin, 850 F.3d 398 (8th Cir. 2017) Defendant’s thirty-seven-month sentence for child abuse just six months after completing her supervised release on an earlier conviction for child abuse was not substantively unreasonable. Absence of specific ruling that victim’s injuries met definition of “bodily injury” for the purpose of a two-level enhancement was not a significant procedural error.

62. United States v. Mannings, 850 F.3d 404 (8th Cir. 2017) The government presented sufficient evidence of drug quantity in the form of a co-conspirator and law enforcement officer when the district court found them credible and defendant had a chance to cross examine both. Two-level enhancement for possessing a firearm was appropriate when the gun was found in a car defendant had been driving earlier, and a witness testified that the defendant usually had a gun in his possession. Three-level enhancement for being a manager or supervisor of a criminal activity involving five or more participants was appropriate.

63. United States v. Koons, 850 F.3d 973 (8th Cir. 2017) Defendants convicted of methamphetamine conspiracy, whose initial Guidelines range was below the statutory minimum, and who received reduced sentences based on their assistance to the government, were not entitled to sentence reductions based on a retroactive Guidelines change because their sentence was not “based on” this initial range.

64. United States v. Swopes, 850 F.3d 979 (8th Cir. 2017) District court incorrectly determined that defendant’s conviction for Missouri second-degree robbery was a “violent felony” under the Armed Career Criminal Act. Rehearing en banc granted.

65. United States v. Boykin, 850 F.3d 985 (8th Cir. 2017) Defendants 98-month sentence for one count of possession with an intent to distribute and two counts of distribution of a controlled substance was not substantively unreasonable when defendant possessed 160 grams of heroin and was actively distributing it, despite low volume sales. Significant lenience of defendant’s former drug convictions resulted in continued illegal behavior, so long sentence was necessary.

66. United States v. Hudson, 851 F.3d 807 (8th Cir. 2017) A Missouri conviction for the unlawful use of a weapon under Mo. Rev. Stat. § 571.030.1(4) is a “violent felony” for the purpose of the Armed Career Criminal Act because it requires the defendant to have displayed a weapon in a threatening manner.

67. United States v. Price, 851 F.3d 824 (8th Cir. 2017) District court correctly determined that defendant’s prior conviction for Kansas attempted aggravated assault constituted a crime of violence because it required use of force and that the victim have been placed in fear of immediate physical harm. District court correctly enhanced sentence for possession of a firearm in connection with another felony when the police found a gun in the trunk with marijuana, defendant admitted to knowing the marijuana was there, defendant transferred items from the trunk to the house, and the smell of marijuana was obvious.

68. United States v. Rembert, 851 F.3d 836 (8th Cir. 2017) It was not prejudicial to enter into evidence a video posted on social media showing defendant charged with possession of a firearm holding a firearm because the prejudicial effect did not substantially outweigh the probative value. Defendant’s juvenile conviction for aiding and abetting first-degree robbery in Minnesota, which was revoked and classified as an adult conviction, qualified as a “crime of violence.”

69. United States v. Jawad, 852 F.3d 758 (8th Cir. 2017) Two-level sentence reduction for acceptance of responsibility was not warranted for defendant who pled guilty to trafficking counterfeit mark goods. Although defendant admitted the conduct underlying his conviction, he did not voluntarily terminate or withdraw from his involvement in criminal conduct.

70. United States v. Banderas, 858 F.3d 1147 (8th Cir. 2017) District court did not abuse its discretion by reducing defendant’s sentence to 293 months’ imprisonment, the top amended range, in prosecution for conspiracy to distribute and to possess with intent to distribute methamphetamine; court properly considered defendant’s criminal history and danger he would pose to community, including threats to three trial witnesses and his prior convictions which involved threatening to kill his girlfriend, holding her captive, and physically assaulting and strangling her, and court was aware of mitigating factors including his age and citizenship status, but found them outweighed by aggravating factors.

71. United States v. Phillips, 853 F.3d 432 (8th Cir. 2017) Missouri’s second-degree burglary statute covered a broader range of conduct than generic burglary in the form of alternative elements; thus to determine whether defendant’s prior Missouri burglary convictions may constitute Armed Criminal Career Act predicate crimes, a district court must employ the modified categorical approach to determine whether defendant unlawfully entered a building.

72. United States v. Cottrell, 853 F.3d 459 (8th Cir. 2017) District court committed plain error by considering unproven, objected to facts in sentencing. However, defendant cannot prove that he would have received a more favorable sentence if the district court had not considered those facts because the court considered other facts and sentenced him at the bottom of his guideline. Therefore, the error was not prejudicial.

73. United States v. Sullivan, 853 F.3d 475 (8th Cir. 2017) In sentencing defendant convicted of wire fraud, the district court abused its discretion and committed procedural error by departing from criminal history category II to category VI, based on what it perceived as an underrepresented criminal history, by not adequately explaining and supporting the reason for the departure.

74. United States v. Murillo-Salgado, 854 F.3d 407 (8th Cir. 2017) District court exceeded its authority when, as a special condition of supervision, it ordered the defendant removed from the United States. Unless the prosecutor and immigration officials request that district court hold a removal hearing, only an immigration judge may order an individual removed.

75. United States v. King, 854 F.3d 433 (8th Cir. 2017) Sentencing enhancement for obstruction of justice, which was based on finding that defendant committed perjury by testifying that he was promised total immunity from drug dealing, was not clear error.

76. United States v. Pate, 854 F.3d 448 (8th Cir. 2017) The district court did not err in imposing a four-level enhancement to defendant’s sentence for possessing a firearm in connection with another felony.

77. United States v. Sykes, 854 F.3d 457 (8th Cir. 2017) The district court did not err in finding defendant was a manager or supervisor and imposing a three-level role enhancement. Defendant transported cocaine from a supplier, had an accomplice cook cocaine, and had another accomplice remove cocaine from his residence every night. A defendant’s supplier may be counted in determining applicability of managerial role sentencing enhancement.

78. United States v. Lawrence, 854 F.3d 462 (8th Cir. 2017) In performing its drug quantity calculation in narcotics conspiracy prosecution, sentencing court could rely on testimony of witness who was suspected of embellishing his testimony when the testimony had some indicia of reliability and court accounted for possibility of embellishment.

79. United States v. Romero-Orbe, 853 F.3d 1333 (8th Cir. 2017) Defendant’s prior Minnesota conviction for domestic assault was a “crime of violence” that triggered a 16-level sentencing enhancement.

80. United States v. Mayokok, 854 F.3d 987 (8th Cir. 2017) District court erred in applying five-level enhancement for distribution of child pornography with expectation of receiving a thing of value when there was no evidence defendant uploaded or otherwise shared child pornography with the expectation he would receive a thing of value in return.

81. United States v. Ford, 854 F.3d 1030 (8th Cir. 2017) District court’s imposition of 18-month sentence following revocation of supervised release, which was above the advisory sentencing guideline range but within the statutory limits, was not substantively unreasonable. Defendant had been arrested several times while on previous supervised releases and had recently been arrested for domestic assault.

82. United States v. Sims, 854 F.3d 1037 (8th Cir. 2017) Defendant’s prior convictions for residential burglary under Arkansas law did not qualify as Armed Career Criminal Act predicate convictions because the statutes are broader than generic burglary.

83. United States v. Beyers, 854 F.3d 1041 (8th Cir. 2017) District court did not abuse its discretion by making defendant’s sentences for accessing and possessing child pornography and possessing child obscenity run concurrently to each other, but consecutively to defendant’s sentence for violating terms of supervised release, when defendant did not fully take responsibility for his crimes.

84. United States v. Benedict, 855 F.3d 880 (8th Cir. 2017) Corporations are eligible to be considered victims and may receive restitution under the Mandatory Victim Restitution Act.

85. United States v. Taylor, ___ F.3d ____, 2017 WL 1556124 (8th Cir. 5/2/2017) The district court did not abuse its discretion in departing upward by two criminal history points because the criminal history category substantially under-represented the seriousness of defendant’s conduct and his likelihood of committing more crimes.

86. United States v. Minard, 856 F.3d 555 (8th Cir. 2017) Defendant who plead guilty to being a felon in possession of a firearm after being found with firearms and other items stolen in recent area burglaries, was not entitled to a sentencing reduction on the grounds that the sentencing judge’s statement to one of defendant’s burglary victims, expressing empathy for the victim, reflected bias or partiality that required the judge to recuse himself.

87. United States v. Cartagena, 856 F.3d 1193 (8th Cir. 2017) Even assuming the district court erred in failing to consider the advisory factors in the commentary to the Sentencing Guideline regarding a minimal participant sentencing reduction, such error did not affect defendant’s substantial rights because there was no indication that, but for the error, defendant would have received a more favorable sentence. Defendant had a history or drug trafficking offenses, he agreed to travel cross-country with a large sum of money to exchange for almost seven kilograms of heroin, and his role was a necessary component of the criminal enterprise.

88. United States v. Soliz, 857 F.3d 781 (8th Cir. 2017) The district court did not err in granting defendant’s sentence at the low end of the Guideline range after granting a downward variance and considering the § 3553(a) factors. Disagreement with other district courts does not demonstrate abuse of discretion.

89. United States v. Blake, 858 F.3d 1134 (8th Cir. 2017) The district court did not clearly err in finding that defendant failed to establish that his bank robbery conviction did not constitute predicate “serious violent felony” under a federal “three strikes statute,” 18 U.S.C. § 3559(c)(1). The statute does not violate due process or Sixth Amendment right to jury trial by placing the burden on the defendant to prove the prior conviction did not qualify as a predicate felony.

90. United States v. White, 859 F.3d 569 (8th Cir. 2017) In reducing defendant’s sentence for conspiracy to distribute crack cocaine following the amendment of the Sentencing Guideline for crack cocaine offenses, the district court could not reduce defendant’s sentence below the amended Guideline range. Under the Guidelines, the only basis for reducing the term below the amended Guideline range is for substantial assistance.

91. United States v. Kirlin, 859 F.3d 539 (8th Cir. 2017) Defendant failed to show the district court erred in declining to reduce his offense level for acceptance of responsibility when defendant failed to take any of the actions identified in the commentary to Guidelines § 3E1.1.

92. United States v. Davis, 859 F.3d 572 (8th Cir. 2017) The district court acted within its discretion in ordering defendant’s federal sentence in his supervision revocation proceeding to run consecutively to his anticipated state sentence. Guidelines § 5G1.3 does not require district courts to consider a potential state term of imprisonment in setting sentences.

93. United States v. Sheridan, 859 F.3d 579 (8th Cir. 2017) District court did not abuse its discretion in considering defendant’s daughter’s hearsay testimony at sentencing hearing because the daughter’s testimony was consistent and reliable.

94. United States v. Hansen, 859 F.3d 576 (8th Cir. 2017) District court’s error, if any, in applying a five-level increase to the sentence of defendant for receipt of child pornography was harmless when the district court also applied a downward variance.

95. United States v. Peterson, ___ F.3d ____, 2017 WL 2642736 (8th Cir. 6/20/2017) Defendant does not have a right to be resentenced when defendant objected to presentence investigation report, but the district court expressly stated it did not rely on the report during sentencing.

96. United States v. Thunderhawk, 860 F.3d 633 (8th Cir. 2017) District court retained the power to order defendant convicted of abusive sexual contact of a child under 12 to pay restitution for the child’s medical expenses, despite the fact that the court did not award restitution within 90 days of sentencing as required by statute. Defendant did not argue he was prejudiced by the delay, and he was put on notice that the court would order restitution when it stated at sentencing that he owed restitution but kept the subject of restitution open for 60 days to give the parties an opportunity to submit memoranda and additional medical evidence. Additionally, during those 60 days defendant appealed, depriving the court jurisdiction to proceed while the appeal was pending.

97. United States v. Moore, 860 F.3d 1076 (8th Cir. 2017) The district court did not err in rejecting defendant’s request for a sentence reduction for possession of a firearm solely for sporting use. Defendant did not present any evidence that the firearms in question were used for sporting purposes and his own admissions showed the firearms were not possessed solely for sporting or collection purposes. The district court did not err in imposing a special condition of supervision requiring anger management counseling where the defendant had a prior conviction for making terroristic threats to his ex-girlfriend.

98. United States v. Miranda-Ortiz, ___ Fed. App’x ___, 2017 WL 2813860 (8th Cir. 6/29/2017) Defendant was not misled into believing he would qualify for safety valve sentencing and the record established that he entered into his guilty plea knowingly and voluntarily. The court did not err in denying defendant’s motion to withdraw his plea because his sworn testimony directly contradicted his reasons for withdrawing.

I. Habeas

Supreme Court Cases

1. Buck v. Davis, 137 S. Ct. 759 (2017) The Fifth Circuit improperly denied defendant a certificate of appealability when it essentially analyzed his case on the merits, instead of actually determining whether district court’s decision was “reasonably debatable.” Defendant demonstrated prejudicial ineffective assistance of counsel when his attorney put expert on the stand who testified that defendant’s race made it more likely that he was a danger to the community.

2. Rippo v. Baker, 137 S. Ct. 905 (2017) District court applied the wrong standard when analyzing defendant’s post-conviction relief claim that his trial judge, who was the target of a federal bribery probe, could not impartially decide the case. Under the Fourteenth Amendment’s Due Process Clause, the court should have considered whether the risk of bias was too high to be

constitutionally tolerable.

3. Moore v. Texas, 137 S. Ct. 1039 (2017) The Texas Court of Criminal Appeals erred in applying Briseno factors to determine whether defendant was intellectually disabled and therefore barred from receiving the death penalty. Briseno factors rely on superseded medical standards and create an unacceptable risk that a person with intellectual disabilities will be executed in violation of the Eighth Amendment.

4. Virginia v. LeBlanc, 137 S. Ct. 1726 (2017) State court’s denial of petitioner’s motion to vacate state court sentence of life imprisonment without parole for a non-homicide offense of rape and abduction, which he committed at the age of 16, was not an unreasonable application of Graham v. Florida, which prohibits juvenile offenders convicted of non-homicide offenses from being sentenced to life without parole, because the state had a geriatric release program.

5. McWilliams v. Dunn, 137 S. Ct. 1790 (2017) Alabama failed to meet its obligations under Ake v. Oklahoma to provide defendant with access to a mental health expert to assist in evaluation, preparation, and presentation of the defense when defense attorney repeatedly asked the trial and sentencing courts for assistance from a mental health expert, but was denied.

6. Jenkins v. Hutton, 137 S. Ct. 1769 (2017) Petitioner’s claim alleging that the Ohio state court violated his due process rights during the penalty phase of his murder trial by failing to instruct jurors to only consider aggravating factors they found during the guilt phase of the trial, was not subject to review by Court of Appeals under the miscarriage of justice exception to procedural default.

Eighth Circuit Cases

7. Talavera v. United States, 842 F.3d 556 (8th Cir. 2016) Defendant argued his attorney was ineffective because his attorney failed to advise the defendant that he could have received a lesser sentence if he had pled guilty. Attorney’s failure to explain the § 2255 safety valve to defendant and that it may apply to him was not prejudicial when defendant refused to testify against his co-conspirators, did not know much about them, and maintained his innocence.

8. Martin v. Fayram, 849 F.3d 691 (8th Cir. 2017) Prisoner’s case was untimely under the Antiterrorism and Effective Death Penalty Act because the filing period began when the state court affirmed his conviction, not when it denied his application for post-conviction relief. There were no extraordinary circumstances to warrant equitable tolling.

9. Guzman-Ortiz v. United States, 849 F.3d 708 (8th Cir. 2017) Defense counsel’s cross examination of co-conspirator and closing statement—which sought to undermine co-conspirator’s testimony instead of attacking the existence of a conspiracy—were reasonable trial strategies. Defendant’s claim that his attorney did not challenge the drug quantity is meritless. His attorney did challenge it and the court took the low end of the ranges to which the witnesses testified.

10. White v. Steele, 853 F.3d 486 (8th Cir. 2017) The state did not violate Brady or Nepue by failing to disclose an agreement with a prosecution witness because there is no evidence such an agreement existed.

11. Slocum v. Kelley, 854 F.3d 524 (8th Cir. 2017) The district court did not err in finding defendant’s claim that trial counsel was ineffective was without merit because counsel’s decision not to present any mitigating evidence at sentencing was reasonable: it was reasonable not to have defendant testify because of his prior manslaughter conviction and defendant would not allow his wife to testify on his behalf.

12. Bahtuoh v. Smith, 855 F.3d 868 (8th Cir. 2017) The Minnesota Supreme Court did not unreasonably apply clearly established federal law when it concluded that defense counsel’s advice to defendant not to testify in trial for first-degree felony murder, despite counsel’s previous statements to the jury that petitioner would testify, was not constitutionally deficient for purposes of ineffective assistance of counsel claim.

13. Dyab v. United States, 855 F.3d 919 (8th Cir. 2017) An amended restitution judgment, which added a co-conspirator in money laundering charge as an additional obligor for a portion of defendant’s restitution obligation, did not result in a new sentence or judgment. Therefore, defendant’s motion to vacate filed after the amended judgment was “successive” to his prior motions to vacate and required authorization from the Court of Appeals.

14. Fletcher v. United States, 858 F.3d 501 (8th Cir. 2017) Felony convictions for making terroristic threats under the Nebraska terroristic threats statute qualify as violent felonies under the force clause of the Armed Career Criminal Act.

15. Davis v. United States, 858 F.3d 529 (8th Cir. 2017) District court clearly erred in finding that defendant, who pled guilty, suffered from mental illness that impaired his ability to understand legal advice and make reasoned decisions. Mental health records showed that the defendant had no learning or comprehension limitations. District court erred in directing the government to reoffer defendant a five-year plea deal.

III. EMPLOYMENT LAW

A. Disability

Eighth Circuit Cases

1. Kowitz v. Trinity Health, 839 F.3d 742 (8th Cir. 2016) District court incorrectly granted summary judgment in employer’s favor on plaintiff’s Americans with Disabilities Act and North Dakota Human Rights Act claims because there was enough evidence for a reasonable jury to conclude that the employee-respiratory therapist informed employer that she would be unable to perform CPR due to her disability and employer failed to search for reasonable accommodation. Employer was aware of employee’s disability and knew employee was having surgery that would affect her neck.

2. Oehmke v. Medtronic, Inc., 844 F.3d 748 (8th Cir. 2016) Plaintiff brought a discrimination claim and retaliation claim against her employer. While she suffered a covered disability as a cancer survivor with lingering health complications, there was insufficient evidence in the record to establish a prima facie case of disability discrimination, nor was there sufficient evidence of a prima facie case of retaliation. Employee gave incorrect medical advice concerning a patient’s pacemaker, her managers perceived her as insolent and threatening, she failed to follow company procedures, and nothing linked her absences to her disability.

3. Faidley v. United Parcel Serv. of Am., 853 F.3d 447 (8th Cir. 2017) Plaintiff may establish the second element of an American’s with Disabilities discrimination claim—that he is a qualified individual—by showing he was qualified for a position that was unavailable at the time, but the employer reasonably anticipated would become vacant in the fairly immediate future.

B. Race/Gender/Retaliation

Supreme Court Case

1. McLane Co., Inc. v. E.E.O.C., 137 S. Ct. 1159 (2017) A court of appeals should review a district court’s decision to enforce or quash an Equal Employment Opportunity Commission subpoena issued pursuant to Title VII for abuse of discretion, not de novo.

Eighth Circuit Cases

2. Jenkins v. The Univ. of Minn., 838 F.3d 938 (8th Cir. 2016). Mentor/scientist’s conduct in making repeated sexual advances “including jokes, comments, innuendos and suggestions of contact” towards female graduate student while they were alone together in isolated location in Alaska conducting research constituted severe or pervasive conduct given plaintiff had no way to physically distance herself from the scientist during their research trip and had to depend upon him for survival. Furthermore, plaintiff’s academic future also depended on the scientist;

62 therefore, she could not just leave or stay alone.

3. Grant v. City of Blytheville, 841 F.3d 767 (8th Cir. 2016) Fifty-nine-year-old African-American city employee failed to make a prima facie case of age or race discrimination. Employee could not produce any similarly situated employees who were treated more favorably and could not show that city violated any of its own policies.

4. Guenther v. Griffin Constr. Co., Inc., 846 F.3d 979 (8th Cir. 2017) In action brought by the administrator of decedent-employee’s estate, Eighth Circuit held that claim for compensatory damages under the Americans with Disabilities Act survives employee’s death.

5. Sieden v. Chipotle Mexican Grill, Inc., 846 F.3d 1013 (8th Cir. 2017) Defendant who claimed that employer terminated him for objecting to racially motivated statement failed to prove that employer’s proffered reason for his termination was pretextual. Employer’s proffered reason was legitimate and non-discriminatory.

6. Wilson v. Ark. Dep’t of Human Servs., 850 F.3d 368 (8th Cir. 2017) District court correctly dismissed plaintiff’s Title VII claim based on race because she failed to allege disparate treatment when she alleged that she was disciplined for work a Caucasian woman did not complete. She did not allege the Caucasian coworker received less discipline than her. Plaintiff’s retaliation claim survived because she sufficiently plead facts supporting her argument that she was fired after filing an Equal Employment Opportunity Commission complaint.

7. Liles v. C.S. McCrossan, Inc., 851 F.3d 810 (8th Cir. 2017) Female plaintiff’s gender discrimination claim failed because she failed to show that the reason her employer terminated her, her failure to sufficiently perform her work duties, was pretext. Her Title VII retaliation and Minnesota Human Rights Act claims failed because her complaint on behalf of another female employee was too distant in time and there was no evidence from which a jury could infer discriminatory motive. Employee’s hostile work environment claim failed because she could not show that the harassment affected a term, condition, or privilege of her employment.

8. Dindinger v. Allsteel, Inc., 853 F.3d 414 (8th Cir. 2017) District court did not abuse its discretion in instructing the jury that employer could not rely on economic conditions to establish an affirmative defense to claims of sex-based wage discrimination where the employer did not present evidence explaining why economic conditions caused men to be paid more than women.

9. Stone v. McGraw Hill Fin., Inc., 856 F.3d 1168 (8th Cir. 2017) The district court did not err in granting summary judgment to employer when there was no evidence employer’s proffered reasons for paying two co-workers higher salaries than African-American plaintiff, including that the co-workers were hired from a competitor and were assigned to different territories than the plaintiff, were pretext for racial discrimination.

10. Williams v. Tucker, 857 F.3d 765 (8th Cir. 2017) District court did not err in denying summary judgment to circuit judge/defendant who was accused of retaliating against court bailiff/plaintiff who supported defendant’s opponent in a recent election. The was a genuine issue of material fact as to whether plaintiff suffered an adverse employment action, whether defendant’s decision to transfer plaintiff was causally connected to plaintiff’s support for the losing candidate, and whether the defendant’s proffered reasons for changing plaintiff to part-time were pretext.

11. Tovar v. Essentia Health, 857 F.3d 771 (8th Cir. 2017) District court properly dismissed Title VII sex discrimination claim against employer for refusal to cover her son’s gender reassignment surgery because Title VII and the Minnesota Human Rights Act do not extend to discrimination that is not the basis of the employee’s sex.

12. Mervine v. Plant Eng’g Servs., LLC, 859 F.3d 519 (8th Cir. 2017) Even though employer fired plaintiff from his project manager position only three weeks after plaintiff alleged his employer was illegally double billing its client, the causal inference between the temporal proximity of the two events was negated by evidence that defendant uncovered evidence of plaintiff’s misconduct during those three weeks.

13. Sellner v. MAT Holdings, Inc., 859 F.3d 610 (8th Cir. 2017) Supervisor’s comment that plaintiff would be “on the street” if he did not “get creative with [his] documentation” concerning a potentially defective product provided a specific link between plaintiff’s protected conduct and his termination. A reasonable fact finder could find that an illegitimate criterion actually motivated the adverse employment action. District court erred in granting the employer summary judgment on plaintiff’s Minnesota Whistleblower Act claim.

14. Aulick v. Skybridge Ams. Inc., 860 F.3d 613 (8th Cir. 2017) Employer’s comment that a “new face” was needed in the position plaintiff applied for was facially and contextually neutral and was not direct evidence of age discrimination. Employer selecting another candidate for a promotion and eventually terminating plaintiff due to other candidate having more experience and better qualifications for the position was not pretext.

15. Edwards v. Hiland Roberts Dairy, Co., 860 F.3d 1121 (8th Cir. 2017) Caucasian coworkers who were not terminated for violating employer’s policies were not similarly situated to African-American employees who were terminated for violations; thus, the disparate treatment did not create an inference of discrimination to support a Title VII claim. The employer terminated African American plaintiffs for “time theft,” which the employer considered a dishonest practice. Caucasion employees left for lunch without clocking out and fell asleep at work, which did not involve dishonesty.

16. Donathan v. Oakley Grain, Inc., 861 F.3d 735 (8th Cir. 2017) The district court erred in granting employer’s motion for summary judgment where a genuine issue of material fact existed as to whether the employer’s articulated reason for terminating plaintiff—employer’s plant was experiencing a slowdown—was legitimate, or whether it was pretext for retaliation

64 after plaintiff complained of not receiving a bonus.

C. FMLA

Eighth Circuit Case

1. Hernandez v. Bridgestone Ams. Tire Operations, LLC, 831 F.3d 940 (8th Cir. 2016) Employee’s overtime was not voluntary because he was reprimanded and fired for missing it. Thus, his overtime absences should have been deducted from his FMLA leave. However, employer miscalculated employee’s Family Medical Leave Act entitlement by not including these mandatory overtime hours as part of his normal work week.

D. FLSA

Eighth Circuit Cases

1. Garrson v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881 (8th Cir. 2016) Team leaders were exempt from FLSA overtime pay requirements under the executive exemption when they evaluated employee performance, made employment/discharge recommendations, and upper management followed their recommendations most, if not all, of the time.

2. Alexander v. Tutle & Tutle Trucking, Inc., 834 F.3d 866 (8th Cir. 2016) Motor Carrier exception to FLSA exempted truck drivers from overtime pay requirements when drivers were required to drive in interstate travel either regularly or from time to time. Even a small portion of interstate travel is sufficient to give rise to a reasonable expectation of interstate travel.

3. Karlson v. Action Process Serv. & Private Investigations, LLC, 860 F.3d 1089 (8th Cir. 2017) The evidence was sufficient to support the jury’s finding that a process server was an independent contractor, rather than an employee under the FLSA, and was thus not entitled to overtime pay. The process server was able to decide which assignments to accept; the company paid the process server a flat rate per assignment; the process server used his own car, phone and computer; and other factors provided a reasonable basis for jury’s finding.

E. Miscellaneous Employment Cases

Eighth Circuit Cases

1. Blomker v. Jewell, 831 F.3d 1051 (8th Cir. 2016) Eighth Circuit affirmed dismissal of employee’s sexual harassment and hostile work environment claims for failure to state a claim when she only alleged seven incidents spaced over three years by two different men.

2. Noreen v. PharMerica Corp., 833 F.3d 988 (8th Cir. 2016) Variation from company’s clearly written reduction-in-force guidelines did not lead to inference of discrimination when the variation was generally applied to all employees and did not result in a significant difference in the average age of employees. Merely reciting statistics regarding employees’ average age, without proving that change in average age is statistically significant, does not prove discriminatory effect.

3. Jackson v. Old EPT, LLC, 834 F.3d 872 (8th Cir. 2016) Union and employer reached impasse following expiration of collective bargaining agreement. Parties entered into an implied-in-fact bona fide collective-bargaining agreement when company implemented its last, best, and final offer, the union accepted the offer by not striking, and the union sought enforcement of certain terms of implied-in-fact agreement.

4. Watson v. Air Methods Corp., 834 F.3d 891 (8th Cir. 2016) Flight paramedic’s wrongful discharge claim against his previous employer/airline company was barred by the Airline Deregulation Act.

5. Haggenmiller v. ABM Parking Servs., 837 F.3d 879 (8th Cir. 2016) District court correctly granted summary judgment in favor of employer on employee’s Minnesota Human Rights Act age discrimination suit when employer proved a legitimate reason for employee’s termination—an impartial audit found the position unnecessary in light of new technology—and employee failed to provide evidence of age discrimination.

6. Nash v. Optomec, Inc., 849 F.3d 780 (8th Cir. 2017) Fifty-five-year-old employee failed to prove that employer’s legitimate, non-discriminatory reason for terminating him was pretext. Employee failed to provide evidence that employer’s termination decision was motivated by anything other than his lack of ability to learn new skills.

7. Mercier v. U.S. Dep’t of Labor, 850 F.3d 382 (8th Cir. 2017) ALJ reviewing the Department of Labor’s Administrative Review Board decision that denied railroad employee’s retaliatory termination action under the Federal Rail Safety Act did not err in considering acts outside of the 180-day limitations period under the background evidence rule. Substantial evidence supported ALJ’s determination that the employee failed to show that his safety issue reports were a contributing factor in his termination.

8. N.L.R.B. v. Chipotle Servs., LLC, 849 F.3d 1161 (8th Cir. 2017) The Eighth Circuit was jurisdictionally barred from considering an employer’s argument that the NLRB applied the wrong standard when the employee did not contest the standard below.

9. Gunderson v. BNSF Ry. Co., 850 F.3d 962 (8th Cir. 2017) Plaintiff railroad employee failed to prove his safety-related activities were contributing factors in his discharge for harassing and intimidating a co-worker. Plaintiff’s protected activities were separated in time from his discharge and plaintiff committed intervening rule violation between his protected activity and his termination.

10. Cargill, Inc. v. N.L.R.B., 851 F.3d 841 (8th Cir. 2017) Union’s second representation petition was not an improper motion for reconsideration, rehearing, or reopening of the record because it changed the bargaining unit. The NLRB reasonably determined that the packaging, shipping, and receiving employees constituted an appropriate bargaining unit. Chants of “yes we can” in Spanish and booing employee known to have voted against the union were not an atmosphere of fear and reprisal.

11. Thompson v. Shock, 852 F.3d 786 (8th Cir. 2017) A sheriff’s deputy’s § 1983 First Amendment claim that he was discharged by the sheriff for supporting his main rival in the sheriff election should have been analyzed under the narrow-justification Elrod–Branti test, which applies to employees who have been dismissed because of their political affiliations, and not under the Pickering–Connick test, which applies to employees terminated for their expressive political conduct.

12. N.L.R.B. v. Mo. Red Quarries, Inc., 853 F.3d 920 (8th Cir. 2017) Employee met statutory definition of supervisor because he played active and meaningful role in the hiring process and thus was not entitled to vote for unionization under National Labor Relations Act.

13. McLeod v. Gen. Mills, Inc., 856 F.3d 1160 (8th Cir. 2017) District court erred in denying defendant’s motion to compel arbitration when terminated employees knowingly and voluntarily waived their rights and claims under the Age Discrimination in Employment Act by accepting benefits and signing waivers. No contrary congressional command overrides the Federal Arbitration Act’s mandate to enforce the parties’ agreement to arbitrate ADEA claims.

14. Sullivan v. Endeavor Air, Inc., 856 F.3d 533 (8th Cir. 2017) The district court did not err in denying plaintiff’s petition to vacate an arbitration award issued by a System Board of Adjustment pursuant to the Railway Labor Act. Plaintiff’s claim that his termination violated public policy was an improper attempt to argue the merits of the Board’s decision, as was his challenge to the Board’s determination that his conduct violated the employer’s anti-harassment policy.

15. Entergy Operations, Inc. v. United Gov’t Sec. Officers of Am. Int’l Union, 856 F.3d 561 (8th Cir. 2017) Arbitrator did not exceed his authority under a collective bargaining agreement by ordering an employer to reinstate a terminated nuclear security officer whose chronic folliculitis hindered his ability to shave his facial hair and thus wear a respirator.

16. LaCurtis v. Express Med. Transporters, Inc., 856 F.3d 571 (8th Cir. 2017) The district court did not have to give controlling weight to a regulation promulgated by an agency with no authority to administer or enforce any of the statutes at issue in deciding whether paralift vans that had been modified to accommodate up to two wheelchair placements were vehicles designed to transport less than eight people for the purposes of the small vehicle exception to the Motor Carrier Act exemption to the Fair Labor Standards Act’s overtime pay requirements.

17. N. Mem’l Health Care v. N.L.R.B., 860 F.3d 639 (8th Cir. 2017) There was substantial evidence to support National Labor Relations Board’s determination that plaintiff/employer violated the National Labor Relations Act by interfering with nonemployee union representatives’ use of the hospital cafeteria on three separate dates. The hospital had a past practice of allowing nonemployee union representatives to use the cafeteria so long as their conduct did not rise to the level of a meeting, and the hospital unilaterally changed its past practices when it interfered with cafeteria access by nonunion representatives.

18. Markham v. Wertin, 861 F.3d 748 (8th Cir. 2017) In an action alleging the defendant union discriminated and retaliated against plaintiff based on his disability during his apprenticeship and training program, the district court erred in finding the claims were completely preempted by the Labor Management Relations Act or the National Labor Relations Act because plaintiff’s claims did not substantially rely on his collective bargaining agreement. Because plaintiff’s claims were not preempted, the district court lacked removal jurisdiction and the case had to be remanded to state court.

IV. CONSTITUTIONAL LAW

A. First Amendment

Supreme Court Cases

1. Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144 (2017) New York statute prohibiting merchants from imposing a surcharge for the use of a credit card regulates speech by regulating how merchants communicate their prices.

2. Packingham v. North Carolina, 137 S. Ct. 1730 (2017) North Carolina statute making it a crime for registered sex offenders to access social media websites that allow minors to be members violated the First Amendment’s Free Speech Clause.

3. Matal v. Tam, 137 S. Ct. 1744 (2017) The disparagement clause of the Lanham Act, which prohibits federal trademark registration for marks that might disparage any persons, living or dead, was facially invalid under the First Amendment’s protection of speech. Speech may not be banned on the ground that it expresses ideas that offend.

Eighth Circuit Cases

4. Sabri v. Whittier Alliance, 833 F.3d 995 (8th Cir. 2016) Neighborhood association’s adoption of anti-defamation bylaws that restricted members’ ability to advocate against the actions or members of the neighborhood association’s board was not state action. The city had previously directed the association to revise its bylaws in order to clarify them, but the city did not withhold funds or otherwise influence the association’s amendments to its bylaws.

5. MacMann v. Matthes, 843 F.3d 770 (8th Cir. 2016) Citizens’ challenge to city’s actions failed because the city was not infringing upon their right to free speech and to petition the government. City passed an ordinance that the plaintiffs sought to repeal through referendum. City’s actions were appropriate under the Missouri constitution and the city’s charter. City was not incorrect to issue licenses under the ordinance while the ordinance was under review because the city’s charter did not give citizens the right to challenge building permits.

6. Mo. Broads. Ass’n v. Lacy, 846 F.3d 295 (8th Cir. 2017) District court incorrectly dismissed suit brought by alcohol retailers alleging that Missouri statute and regulations regarding advertising on alcohol violated their First Amendment right to free speech. Plaintiff’s complaint sufficiently alleged that the laws did not directly advance the state’s substantial interest in promoting responsible drinking, and that the laws compelled them to engage in speech.

7. Minn. Majority v. Manky, 849 F.3d 749 (8th Cir. 2017) Minnesota election law prohibiting individuals from wearing political insignia in the polling place was valid under the First Amendment because it was viewpoint neutral and facially reasonable. Application to people wearing Tea Party apparel was reasonable because the Tea Party had recognizable political views.

8. Moore v. Martin, 854 F.3d 1021 (8th Cir. 2017) Genuine issue of material fact existed as to whether an Arkansas filing deadline for individuals wishing to appear on the general election ballot as independent candidates was narrowly drawn to serve the compelling state interest in timely certifying independent candidates to include on the ballot.

9. Gerlich v. Leath, 861 F.3d 697 (8th Cir. 2017) State university officials’ denial of trademark license requests by a student organization that advocated reform of marijuana laws discriminated against the organization based on its viewpoint in violation of the organization’s First Amendment free speech rights. The university’s trademark office had initially approved the organization’s request, but, after a newspaper article about the matter was published and state legislators and the governor’s office complained to officials, officials immediately placed the organization’s reorder requests on hold, subjected its request to greater scrutiny than those of other student organizations, and revised the university’s trademark guidelines.

B. Fourth Amendment

Supreme Court Case

1. Cty. of L.A. v. Mendez, 137 S. Ct. 1539 (2017) The Ninth Circuit’s “provocation rule,” which imposes liability on a law enforcement officer who exercises otherwise reasonable force when the need for that force was predicated on the officer’s earlier Fourth Amendment violation, is inconsistent with the Supreme Court’s excessive force jurisprudence.

Eighth Circuit Cases

2. Wallace v. City of Alexander, 843 F.3d 763 (8th Cir. 2016) District court correctly denied qualified immunity to officer that fatally shot suspect. Assuming officer intentionally shot suspect to avoid question of fact, officer’s action violated suspect/decedent’s Fourth Amendment right to be free from excessive force because he did not pose a serious and immediate threat, he had not committed a violent felony, and he was not holding a firearm when he fled.

3. Kittle-Aikeley v. Strong, 844 F.3d 727 (8th Cir. 2016) Linn State, a state technical school, required all incoming students to submit to urinalysis. Eighth Circuit affirmed the district court’s order permanently enjoining Linn State from drug testing students who were not, are not, or will not be enrolled in safety-sensitive programs, as drug testing students not enrolled in safety-sensitive programs constitutes an unreasonable search in violation of the Fourth Amendment.

4. Ehlers v. City of Rapid City, 846 F.3d 1002 (8th Cir. 2017) City and police officers were entitled to qualified immunity on claims for unlawful arrest and excessive use of force after physical altercation at a hockey game. Officers had probable cause to arrest plaintiff for obstructing a police officer when plaintiff refused to follow an order. Officers did not use excessive force when all of the force they used was in reaction to the plaintiff’s resistance.

5. Malone v. Hinman, 847 F.3d 949 (8th Cir. 2017) Police officer who shot plaintiff was entitled to qualified immunity because officer had probable cause to shoot plaintiff who posed a threat of serious physical harm to another officer. Shooting officer heard gunshots and saw plaintiff running towards the other officer. Plaintiff was close to the other officer and the entire event happened within three to ten seconds.

6. Mendoza v. U.S. Immigration & Customs Enf’t, 849 F.3d 408 (8th Cir. 2017) Agent issuing ICE detainer for citizen did so with arguable probable cause when arrestee told officer he was born in Mexico, never mentioned he was a U.S. citizen, an individual with a similar name had a record of aggravated felony and no legal status in the U.S., and office could not get fingerprints for a few days. Others involved, like the administrative staff, were entitled to qualified immunity because they behaved as they were supposed to in the circumstances. Substantive Due Process claim fails because these actions were negligent, at worst.

7. Boude v. City of Raymore, 855 F.3d 930 (8th Cir. 2017) It was reasonable for defendant police officer to believe that he needed to remove the plaintiff from her SUV in order to restrain her and prevent her from further non-compliance or flight when he believed plaintiff was reaching for the gear shift lever in her car in an attempt to flee. The defendant was also entitled to qualified immunity on plaintiff’s negligence and battery claims.

8. Tatum v. Robinson, 858 F.3d 544 (8th Cir. 2017) Defendant/officer was entitled to qualified immunity from liability in plaintiff’s excessive force claim, even though the officer’s use of force may have been unreasonable. It was not clearly established at the time that a misdemeanor shoplifting suspect who was angrily arguing and was warned that pepper spray was going to be used had a right not to be pepper sprayed.

9. Perry v. Woodruff Cty. Sheriff Dep’t., 858 F.3d 1141 (8th Cir. 2017) The district court did not err in denying defendant’s motion for summary judgment based on qualified immunity and holding that defendant violated plaintiff’s Fourth Amendment right to be free from excessive force. Defendant’s use of force, restraining plaintiff’s arm and forcing her knee into his back, was objectively unreasonable as a matter of law when plaintiff had committed no crime and was not resisting or acted aggressively or threateningly.

10. Kiesling v. Holladay, 859 F.3d 529 (8th Cir. 2017) Defendant Arkansas Game and Fish Commission officer was entitled to qualified immunity for his conduct in obtaining and executing a search warrant for suspects’ residence, which allegedly lacked probably cause. Although a state court judge later determined that the officer’s affidavit in support of his warrant lacked sufficient indicia of probable cause, it was not entirely unreasonable for the officer to believe that his affidavit established sufficient probable cause.

11. Brossart v. Janke, 859 F.3d 616 (8th Cir. 2017) Defendant officer was entitled to qualified immunity on plaintiff’s excessive force claim because defendant’s use of a stun gun on plaintiff was reasonable after the plaintiff made two threats of violence to law enforcement officers, resisted being handcuffed after being placed under arrest, and did not comply with officer’s orders to cooperate in a potential criminal investigation.

C. Due Process/Equal Protection

Supreme Court Cases

1. Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788 (2017) Three-judge district court panel improperly required challengers to Virginia’s redistricting to establish an actual conflict between the enacted plan and traditional redistricting principles. Proper standard does not require an actual conflict, and can be shown even when the plan respects traditional principles. Panel also erred in considering only the parts of the districts that diverged from traditional principles. The proper unit of analysis is the district as a whole.

2. Nelson v. Colorado, 137 S. Ct. 1249 (2017) Colorado law requiring criminal defendants whose convictions have been reversed or vacated to prove their innocence by clear and convincing evidence in order to obtain the refund of costs, fees, and restitution paid pursuant to their invalid convictions violates the Fourteenth Amendment’s guarantee of due process.

3. Cooper v. Harris, 137 S. Ct. 1455 (2017) A three-judge district court did not clearly err in finding that state officials used race as the predominant factor in drawing two congressional districts that had majority black voting-age populations.

4. BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549 (2017) The Federal Employers’ Liability Act did not authorize Montana state court to exercise personal jurisdiction over a railroad solely on the ground that the railroad did some business in Montana. Therefore, Montana violated the defendant railroad’s right to due process when it exercised general jurisdiction over the railroad.

5. North Carolina v. Covington, 137 S. Ct. 1624 (2017) A three-judge district court, in ordering a special election for truncated one-year terms as an equitable remedy for an Equal Protection Clause violation arising from racial gerrymandering of 28 majority-black districts in redistricting plan for state legislature, failed to give the careful case-specific analysis that is required for balancing of equities. Thus, the district court’s order was vacated.

6. Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017) Gender-based distinction in a statute governing the acquisition of United States citizenship by children born abroad to one U.S. citizen parent and one non-citizen parent, where only one year of continuous physical presence in the U.S. prior to birth was required for unwed mothers to pass their citizenship to their children, but five years for unwed fathers, violated the Fifth Amendment guarantee of equal protection.

Eighth Circuit Cases

7. Walker v. Hartford Life & Accident Ins. Co., 831 F.3d 968 (8th Cir. 2016) Minnesota provision providing more protection to insureds in group insurance plans than individual plans did not violate Equal Protection Clause because it passed rational basis review—treating the two groups differently was logical.

8. Bremer v. Johnson, 834 F.3d 925 (8th Cir. 2016) Adam Walsh Act provision barring citizens previously convicted of specific offenses against minors from petitioning for a visa on behalf of an immediate family member unless the Secretary of Homeland Security determined the citizen posed no risk to the alien did not violate Due Process Clause. Citizen was given notice and an opportunity to be heard and AWA did not interfere with his right to marry, it just restricted one of the ways his wife could become a citizen.

9. Sample v. City of Woodbury, 836 F.3d 913 (8th Cir. 2016) City prosecutors had absolute immunity in § 1983 suit alleging they were impermissibly representing both the city and the victims. Claims that prosecutors brought claims to further the victim’s representation were barred because absolute immunity protects a prosecutor’s charging decisions. Lack of established conflicts check process was also protected because it required the use of legal expertise. Absolute immunity did not protect the city.

10. Am. Family Ins. v. City of Minneapolis, 836 F.3d 918 (8th Cir. 2016) City did not violate the Equal Protection Clause when water main broke and the city paid individual claims against it, but declined to pay insurance companies’ claims. Insurance companies were not similarly situated because they passed losses off to policyholders, were in the business of assuming the risk of loss, received policy payments in return, and lost money, and not real or personal property.

11. Keefe v. Adams, 840 F.3d 523 (8th Cir. 2016) Nursing college did not violate nursing student’s substantive or procedural Due Process rights by expelling him for posting unprofessional messages that violated the nursing profession’s ethical standards on Facebook. College did not violate student’s substantive Due Process rights because he admitted he was wrong and the college allowed him to change majors. College did not violate his procedural Due Process rights because the student knew of the standards, met with program director to discuss his posts and the professional standards, and had an opportunity to respond. Lack of formal charges, time between notice and hearing, and notice of specific rule violations did not violate procedural Due Process rights. College also did not violate student’s First Amendment rights.

12. Hughes v. City of Cedar Rapids, 840 F.3d 987 (8th Cir. 2016) City’s automated traffic enforcement cameras did not violate driver’s constitutional rights. Drivers failed to support procedural Due Process claims, city did not violate drivers’ substantive Due Process rights/the right to travel because it was entitled to enforce traffic violations, did not violate Privileges and Immunities Clause because cameras did not distinguish between in- and out-of-state drivers, did not violate Equal Protection rights because automated traffic enforcement system was rationally related to a legitimate government goal.

13. Gilani v. Matthews, 843 F.3d 342 (8th Cir. 2016) Officers were entitled to qualified immunity on plaintiff’s Equal Protection claim because plaintiff’s comparator and statistics to support discriminatory effect did not support his assertion. Plaintiff essentially argued that his arrest was an arbitrary exercise of police power, but did not support his argument that the exercise of power was based on his race or ethnicity.

14. Karsjens v. Piper, 845 F.3d 394 (8th Cir. 2017) Class plaintiffs, civilly committed sex offenders, brought a facial and as-applied § 1983 claims against Minnesota’s Civil Commitment and Treatment Act and the managers of the Minnesota Sex Offender Program. District court erred in analyzing defendants’ as-applied substantive Due Process claims by considering whether the state’s actions interfered with the class plaintiffs’ liberty interests. The proper standard requires the court to find the conduct conscience-shocking and that it violated a fundamental liberty interest. None of the plaintiffs’ as-applied challenges satisfied the conscious-shocking standard. District court erred in applying strict scrutiny to the facial challenge—the proper standard is rational basis, and the MCTA is facially constitutional because it is rationally related to Minnesota’s legitimate interests. The plaintiffs had standing to sue.

15. Ingram v. Cole Cty., 846 F.3d 282 (8th Cir. 2017) Laundry policy for pretrial detainees that forced them to spend 7 hours overnight naked with only bed sheets for cover once every 4 nights for females and once 2–3 nights for males violated their Fourteenth Amendment Due Process rights. Deprivation was not de minimis because of its frequency.

16. Montin v. Moore, 846 F.3d 289 (8th Cir. 2017) Former patient who was acquitted of two felony charges for reasons of insanity brought malpractice and § 1983 claims alleging doctors at mental health facility negligently kept him committed longer than he needed. Eighth Circuit held plaintiff should have brought the medical malpractice claim in state court under Nebraska State Tort Claims Act. Due Process claim failed because negligent acts did not trigger the Due Process Clause’s protections.

17. Raymond v. Bd. of Regents of the Univ. of Minn., 847 F.3d 585 (8th Cir. 2017) University who fired employee with only a pre-termination hearing did not violate procedural Due Process. University provided employee with notice of allegations and evidence against him, an opportunity to respond, and the university agreed with his complaint of bias and collusion as to one investigation and ordered a new investigation. Deprivation of opportunity to cross examine witnesses was not a violation. Failure to give post-termination hearing did not violate his Due Process rights because he failed to exhaust his administrative remedies and employee did not prove exhaustion was futile.

18. Buckley v. Ray, 848 F.3d 855 (8th Cir. 2017) Plaintiff brought suit against law enforcement officials after his drug convictions were vacated and Arkansas Legislative Subcommittee denied his claims for compensation for wrongful conviction. During the wrongful conviction compensation proceedings, Attorney General’s office illegally accessed plaintiff’s expunged criminal records. Plaintiff failed to state Due Process claims because he had no liberty interest under the expungement statute that was protected by procedural Due Process. Plaintiff’s substantive Due Process claim failed because AG’s actions did not “shock the conscious.”

19. Powell v. Ryan, 855 F.3d 899 (8th Cir. 2017) Religious advocate, seeking a preliminary injunction preventing state fair officials from enforcing rules prohibiting him from engaging in speech immediately outside the fairgrounds, failed to establish a reasonable probably of success that those rules were unconstitutionally vague under the Due Process Clause. Additionally, the religious advocate failed to establish that he was likely to suffer irreparable harm in the absence of injunctive relief.

D. Eighth Amendment

Supreme Court Case

1. Bosse v. Oklahoma, 137 S. Ct. 1 (2016) Admission of victim’s family member’s characterizations and opinions about crime at defendant’s sentencing for first-degree murder and first-degree arson violated defendant’s Eighth Amendment rights. Family members cannot testify to their opinion on the appropriateness of the death penalty.

Eighth Circuit Cases

2. Ward v. Smith, 844 F.3d. 717 (8th Cir. 2016) District court’s finding that a correctional officer did not intentionally administer pepper spray to inmate’s genitals in violation of the Eighth Amendment was supported by the record. Because the defendant correctional officer did not intend to spray plaintiff’s genitals, his intentional infliction of emotional distress claim failed as well.

3. Kulkay v. Roy, 847 F.3d 637 (8th Cir. 2017) Eighth Circuit affirmed dismissal of defendant’s Eighth Amendment claim for injuries he sustained in prison while operating a beam saw without safety guards or formal training. Inmate failed to allege facts sufficient to show that the defendant officials were “deliberately indifferent” to the risk. State and federal safety regulations do not establish a standard for Eighth Amendment violations.

E. Miscellaneous Constitutional Claims

Supreme Court Cases

1. Coventry Health Care of Mo., Inc. v. Nevils, 137 S. Ct. 1190 (2017) The express preemption provision of the Federal Employees Health Benefits Act overrides state law prohibiting subrogation and reimbursement in insurance. That statutory provision does not exceed Congress’s powers under the Supremacy Clause.

Eighth Circuit Cases

2. Metro. Life Ins. Co. v. Melin, 853 F.3d 410 (8th Cir. 2017) Retroactive application of Minnesota’s revocation-upon-divorce statute constituted an impermissible impairment under the Contracts Clause, and former wife of life-insurance policyholder had third-party standing to assert the constitutional challenge.

3. Ouachita Watch League v. U.S. Forest Serv., 858 F.3d 539 (8th Cir. 2017) An environmental organization did not establish Article III standing to bring an action challenging the government’s management of a national forest and lake because it did not articulate how the organization or any particular member would be harmed by the government action.

4. Schmidt v. Ramsey, 860 F.3d 1038 (8th Cir. 2017) District court’s application of the Nebraska Hospital Medical Liability Act’s damages cap to a $17 million jury verdict in favor of a child born with severe brain damage did not violate the Seventh Amendment right to a jury trial or the Fifth Amendment Takings Clause.

V. ERISA

Supreme Court Case

1. Advocate Health Care Network v. Stapleton, 137 S. Ct. 1652 (2017) An ERISA plan maintained by a “principal-purpose organization,” (a church-associated organization whose chief purpose or function is to fund or administer a benefits plan for the employees of either a church or a church-affiliated nonprofit) qualifies as a “church plan,” and thus is exempt from the requirements of ERISA, regardless of whether a church originally established the plan.

Eighth Circuit Cases

2. Pharm. Care Mgmt. Assoc. v. Gerhart, 852 F.3d 722 (8th Cir. 2017) ERISA preempted Iowa Code § 510B.8’s regulations on how pharmacy benefits managers establish generic drug pricing and disclose certain drug pricing methodology by expressly and implied referring to ERISA.

3. Tussey v. ABB, Inc., 850 F.3d 951 (8th Cir. 2017) Eighth Circuit reaffirmed its holding that the ERISA plan fiduciaries breached their duty to the plan’s participants, but remanded to the district court to determine damages.

4. Spizman v. BCBSM, Inc., 855 F.3d 924 (8th Cir. 2017) An ERISA group health care plan that granted home health care coverage for “skilled care,” but excluded “private-duty nursing” did not cover round-the-clock in-home nursing care.

5. Jones v. Aetna Life Ins. Co., 856 F.3d 541 (8th Cir. 2017) A plan participant could bring ERISA claims against both her plan administrator to recover short-term and long-term disability benefits and against the administrator for breach of fiduciary duty. Although both claims sought damages in form of denied benefits, the claims were not duplicative because the denial-of-benefits claim asserted that the administrator violated the terms of the plan, and the claim for breach of fiduciary duty asserted the administrator used claims examiners with conflicts of interest.

VI. PRISONERS’ RIGHTS

A. First Amendment

Eighth Circuit Case

1. Yang v. Mo. Dept. of Corr., 833 F.3d 890 (8th Cir. 2016) Restrictions on prisoner’s First Amendment right to communicate with individuals outside the prison walls in Mandarin Chinese was reasonably restricted in light of legitimate government interest in prison security. Defendant had avenues of communication available to him other than communicating in Mandarin Chinese that did not increase the risk of escape or smuggling in contraband because prison officials were not able to read or understand the language.

B. Eighth Amendment

Eighth Circuit Case

1. Cullor v. Baldwin, 830 F.3d 830 (8th Cir. 2016) Summary judgment in favor of government employees was appropriate on prisoner’s Eighth Amendment § 1983 deliberate indifference to a serious medical need claim. While prisoner’s lack of teeth and need for dentures may have been a serious medical need, delay in providing dentures was not deliberate indifference when prison tried and failed to hire an adequate number of dentists.

C. Miscellaneous

Eighth Circuit Case

1. United States v. Hill, 835 F.3d 796 (8th Cir. 2016) Constitutional challenge to defendant’s conviction for being a felon in possession of ammunition on the grounds that the ammunition did not travel in interstate commerce failed because propellant power used in ammunition had traveled in interstate commerce. This connection to interstate commerce was not de minimis and was sufficient to support the conviction.

VII. MISCELLANEOUS

Supreme Court Cases

1. N.L.R.B. v. SW General, Inc., 137 S. Ct. 929 (2017) The Federal Vacancies Reform Act of 1998 prevents a person who has been nominated to fill a vacant office requiring presidential appointment and Senate confirmation from performing acting service in that position. It is not limited to first assistants. The FVRA prohibited Lafe Solomon from continuing to serve as acting general counsel of the NLRB after the president nominated him to fill the

77 position permanently.

2. Lewis v. Clarke, 137 S. Ct. 1285 (2017) In a tort suit brought against a tribal employee in his individual capacity, the employee, not the tribe, is the real party in interest and the tribe’s sovereign immunity is not implicated. That an employee was acting within the scope of his employment at the time the tort was committed is not, on its own, sufficient to bar a suit against that employee on the basis of tribal sovereign immunity. An indemnification provision does not extend a tribe’s sovereign immunity where it otherwise would not reach.

3. Howell v. Howell, 137 S. Ct. 1400 (2017) A state may not increase, pro rata, the amount a divorced spouse receives each month from veteran’s retirement pay in order to indemnify the divorced spouse and restore to him or her that amount lost after the veteran spouse waives retirement pay to receive service-related disability benefits post-divorce.

4. Midland Funding, LLC v. Johnson, 137 S. Ct. 1407 (2017) Creditor filing proof of claim that on its face indicated the limitations period on the underlying debt had run was not “false, deceptive, or misleading” within the meaning of the Fair Debt Collection Practices Act, nor was it unfair or unconscionable.

5. Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 S. Ct. 1421 (2017) Kentucky’s clear-statement rule, requiring an explicit statement in a power of attorney that the attorney-in-fact has authority to waive the principal’s state constitutional rights to access the courts and to a jury trial, disfavors arbitration agreements and is preempted by the Federal Arbitration Act. Rule hinged on the primary characteristic of an arbitration clause.

6. Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718 (2017) Individuals and entities who regularly purchase debts originated by someone else and then seek to collect those debts for their own account are not “debt collectors” subject to the Fair Debt Collection Practices Act.

Eighth Circuit Cases

7. Nat’l Football League Players Assoc. v. Nat’l Football League, 831 F.3d 985 (8th Cir. 2016) District court was wrong to overturn arbitrator’s decision on the grounds that arbitrator misconstrued precedent and exceeded its authority. Arbitrator’s decision did not disregard the law of the shop when arbitrator considered relevant precedent. Considering hypothetical question did not exceed arbitrator’s authority.

8. Carter v. Huterson, 831 F.3d 1104 (8th Cir. 2016) Officer that took civilly committed defendants blood sample to create a DNA profile was entitled to qualified immunity because, at the time the officer took the blood, a reasonable person interpreting the law would have concluded that such an act was constitutional.

9. Mays v. Bd. of Ed. Of Hamburg Sch. Dist., 834 F.3d 910 (8th Cir. 2016) Significant population loss, significant enrollment decline, cost savings, and educational considerations supported modifying 1991 consent order in race discrimination and desegregation case. All of these factors together resulted in a significant change in circumstances that justified modifying the consent order.

10. Stokes v. DISH Network, L.L.C., 838 F.3d 948 (8th Cir. 2016). Putative class action plaintiffs brought lawsuit against satellite television service provider making claims for damages after subscribers were unable to access Turner and FOX News services channels for a month while the provider negotiated a new agreement with FOX. The service contracts were not illusory because DISH continued to provide many other channels to subscribers during that one-month period. Furthermore, the Colorado law of good faith and fair dealing did not add a contract term by which plaintiffs would be entitled to monetary relief for services interruptions, which was expressly and unambiguously precluded by the terms of the subscriber agreements.

11. In re Mo. Dept. of Corr., 839 F.3d 732 (8th Cir. 2016) Death row inmates served subpoena on Missouri Department of Corrections seeking the identity of Missouri’s pentobarbital supplier. District court denied the Department’s motion to quash the subpoena and the Department filed petitions for writs of mandamus to prevent enforcement of the orders. Eighth Circuit granted the petitions because the identity was not relevant to the inmates’ claims and disclosure was an undue burden on the Department when the supplier would stop selling pentobarbital if its identity was released.

12. Bolderson v. City of Wentzville, 840 F.3d 982 (8th Cir. 2016) City administrator was not the final authority to establish municipal policy, thus the city is not liable for employee’s First Amendment § 1983 claim. There was also no evidence that city engaged in unofficial policy of discouraging reports of misconduct or corruption by city officials.

13. Neidenbach v. Amica Mut. Ins. Co., 842 F.3d 560 (8th Cir. 2016) District court was correct in finding that no reasonable jury could find that the insureds had not made material misrepresentations to their insurer when filing a claim following a fire listing $300,000 in personal assets, but when they filed a Chapter 13 bankruptcy petition a year earlier they claimed to own $7,000 in personal assets.

14. Brooks v. City of Des Moines, 844 F.3d 978 (8th Cir. 2016) Drivers had standing to challenge to city’s automated traffic enforcement system. System was not preempted by Iowa Code § 602.6101, which gives the district courts exclusive jurisdiction of all actions, because the Iowa Constitution gives municipalities home rule power. Drivers other constitutional claims were unsuccessful, as they were in Hughes v. City of Cedar Rapids, Iowa, 840 F.3d 987 (8th Cir. 2016).

15. Knowlton v. Anheuser-Busch Cos. Pension Plan, 849 F.3d 422 (8th Cir. 2017) Plan members were entitled to enhanced benefits under the terms of the plan. District court erred in not calculating the enhanced benefits due to individual plan members. Reversed and remanded

for district court to calculate individual plan members enhanced benefits.

16. Young v. Mercer Cty. Comm’n, 849 F.3d 728 (8th Cir. 2017) Absolute legislative immunity barred county prosecutor’s and his wife’s claim against county commission alleging that it violated his civil rights by requiring his office to have a permanent 911 address and giving him an address he did not desire. Qualified immunity applied to commissioners for asking the state attorney general to review their lease agreement with the prosecutor, even after plaintiffs publicly criticized county commission.

17. J.M. v. Francis Howell Sch. Dist., 850 F.3d 944 (8th Cir. 2017) Mother who brought action on behalf of her minor son who was physically restrained and isolated at school under the Equal Protection Clause, § 1983, § 1988, the Americans with Disabilities Act, the Rehabilitation Act, and the Missouri Human Rights Act was required to exhaust her administrative remedies under the Individuals with Disabilities Act. No exceptions to exhaustion applied in this case.

18. United States v. Jackson, 853 F.3d 436 (8th Cir. 2017) A 1905 Act by Congress did not diminish the Red Lake Reservation; therefore, the town of Redby, Minnesota is part of Indian Country.

19. United States v. CSL Behring, L.L.C., 855 F.3d 935 (8th Cir. 2017) The district court did not err in dismissing a False Claims Act suit based on the Act’s public disclosure bar because public disclosures made before relator filed suit sufficiently identified defendants and the subject matter of the alleged fraud.

20. United States ex rel. Ambrosecchia v. Paddock Labs., LLC, 855 F.3d 949 (8th Cir. 2017) The district court did not err in dismissing False Claims Act suit based on the Act’s public disclosure bar because alleged false claim was reported by separate sources and plaintiff’s complaint did not plausibly state that she qualified as an original source.

21. Wheatley v. JPMorgan Chase Bank, N.A., 860 F.3d 629 (8th Cir. 2017) Foreclosure was justified by mortgagor’s misrepresentations on the loan documents and the foreclosure was not the result of misconduct by defendants. The mortgagor had entered into a modification agreement that was conditioned on his truthful representations. Mortgagor misrepresented that his default was the result of his financial hardship, but the default was caused by his ex-wife’s inability to pay as she and mortgagor had arranged.

22. In re Pre-Filled Propane Tank Antitrust Litig., 860 F.3d 1059 (8th Cir. 2017) District court erred in dismissing plaintiff’s Sherman Act claims as barred by the statute of limitations. Under the Sherman Act, each sale to the plaintiffs in a price-fixing conspiracy starts the statutory period running again, and plaintiff’s allegations of a price-fixing conspiracy were sufficient to plead a continuing violation that restarted the statute of limitations.

23. Sprint Commc’ns Co., L.P. v. Lozier, 860 F.3d 1052 (8th Cir. 2017) The Telecommunications Act of 1996 does not preempt the Iowa Utility Board’s authority to compel Sprint to pay intrastate access charges to Windstream for its delivery of the nonnomadic, intrastate long-distance VIoP calls at issue.

24. Ellis v. City of Minneapolis, 860 F.3d 1106 (8th Cir. 2017) In an action by lessors alleging the city’s heightened enforcement of housing and rental standards had a disparate impact on the availability of housing for persons protected by the Fair Housing Act, the district court did not err in granting the city’s motion for judgment on the pleadings under Rule 12(c). Under the Supreme Court’s cautionary standards from Texas Department of Housing & Community Affairs, the plaintiffs failed to plead sufficient facts to plausibly support the existence of an arbitrary, artificial, and unnecessary policy causing a problematic disparity.

25. Leonard v. Del. N. Cos. Sport Serv., Inc., 861 F.3d 727 (8th Cir. 2017) Under Missouri law, the consideration required to form a contract may be either a benefit or a detriment. It may be an agreement to do something a person is not legally bound to do, or not do something a person has the legal right to do.

26. U.S. Sec. & Exch. Comm’n v. Collyard, 861 F.3d 760 (8th Cir. 2017) A permanent injunction against a venture capital corporation’s owner, who acted as an unregistered broker under the Securities Exchange Act, did not constitute a “penalty” subject to the Act’s five-year limitations period governing proceedings for enforcement of civil fines, penalties, or forfeitures. The owner was enjoined only from violating the Act and acting as an unregistered broker in connection with the offer and sale of securities and the SEC sought injunction to protect the public from the defendant, not to penalize defendant.

27. Special Sch. Dist. No. 1, Minneapolis Pub. Schs. v. R.M.M. ex rel. O.M. & O.T., 861 F.3d 769 (8th Cir. 2017) Minnesota state law grants a child attending a nonpublic school the right to a free appropriate education as well as the right to dispute the provisions of special education services in an impartial due process hearing.

Workers' Compensation Basics

Presented by: Janece Valentine 3:00 p.m. - 3:30 p.m. Valentine Law Office, P.C. Fort Dodge, Iowa Phone: 515-955-5544 Email: [email protected]

Julie Gray 3:30 p.m. - 3:00 p.m. Patterson Law Firm Des Moines, Iowa Phone: 515-283-2147 Email: [email protected]

Friday, September 15, 2017 WORKERS' COMPENSATION BASICS

Julie Gray Janece Valentine Patterson Law Firm Valentine Law Office, P.C. Des Moines, Iowa Fort Dodge, Iowa 515.283.2147 515.955.5544 [email protected] [email protected]

GETTING YOUR WORK COMP CASE FROM FILE TO TRIAL

I. When should a claim be filed? a. The statute of limitations is running b. The claim is denied and you need to get in line c. The injured worker has reached MMI d. Attempts to negotiate with adjustor would be/are futile e. Many assorted other reasons

II. What should be done immediately after filing the claim? a. Tickle date when hearing has to be scheduled b. Tickle date when answer should be filed c. Groan or cheer once you see who answered petition d. Once have answer, send all medical in possession by notice of service e. Once have answer, send discovery requests to defense counsel

II. Laying out the Plan to get Evidence for Hearing a. Look at medical evidence you have -Causation? -Treatment plan? -Restrictions? -Time off work documented? -Rating? -Other issues addressed? b. Are there affirmative defenses to be addressed? -Witnesses needed? -Employment file acquired? c. Are there holes to be filled? d. How did your client hold up during the deposition? e. Did you get the answers/information requested from your discovery requests? f. Did you learn anything new from their responses to discovery? g. Do you need to depose any other witnesses? h. Do you need vocational testimony? i. Do you need to amend your pleadings to include any issues that surfaced in the course of discovery? j. Is there a rate issue? k. Do you need an IME?

III. No chance the case will settle? Preparing for Hearing (assuming you've handled everything under section II)

a. Prepare the hearing report b. Prepare exhibits - joint vs. separate c. Prepare your client d. Trial brief? Or no?

THE INTERSECTION OF WORK COMP AND OTHER AREAS OF THE LAW

PERSONAL INJURY/ WORK COMP

One of the most obvious interplays occurs between work comp and personal injury. Clarence Client comes to you and tells you he was in a car accident. From the police report, it is clear that Harried Harriet ran a red light and smashed into Clarence. You’re thrilled that liability isn’t an issue. In response to your question as to who is taking care of the medical bills, Clarence tells you that “insurance” is covering it.

A year later when Clarence’s treatment is done, you proceed to negotiate a settlement with the adjuster. After cutting the checks and dispersing the funds, you get a nasty-gram from some unknown work comp adjuster telling you to fork over the cash. Work comp paid the medical bills on the case since the collision happened while Clarence was on an errand for his employer. You get that sick feeling in your stomach.

[Hint: Review Iowa Code §85.22 and the case law interpreting 85.22 before doing anything on a PI/Work Comp combo.]

Questions to ask anytime someone comes in with a “personal injury” claim:

1. Were you working when this happened? 2. Who owned the car you were driving/riding in? 3. Did the person that hit you appear to be working? In uniform? In a vehicle identified with a particular employer? 4. What were you doing at the time this happened? Where were you going? Why were you going there? Did anyone direct you to go there?

UNEMPLOYMENT/WRONGFUL TERMINATION & WORK COMP

It’s not uncommon for someone to lose his or her job after being hurt on the job. Sometimes it’s unavoidable. Sometimes it’s illegal. Here are some general questions that may help in discovering the difference: 1. Did you quit or were you fired? 2. What was the reason you quit? 3. What was the reason given for terminating you? 4. Do you know whether you qualify for unemployment benefits based upon the time you worked for this employer? 5. Were you under restrictions when you quit/were terminated? 6. Is there work in the plant that fits those restrictions? 7. Did the employer accommodate those restrictions? 8. Are you part of a union? 9. Were any comments made to you about your injury/restrictions? Did anyone witness those comments? 10. Are you aware of a pattern of getting rid of workers with injuries? 11. What is the worst thing that would be in your personnel file? 12. How long did you work for the employer? Were you still in a probationary period? 13. Is there a progressive discipline program? Was it followed?

If you don’t handle unemployment cases, you should at least know that there is an offset between work comp benefits and unemployment benefits. The folks at unemployment to be very helpful in sorting that out.

Keep in mind that good, solid retaliatory discharge cases don’t walk in the door often. Typically, a termination smells funny, but most employers are savvy enough not to blurt out the “real” reason for firing an injured worker. Further, few individuals have perfect employment records - - particularly after the employer gets the file and embellishes on the details.

SOCIAL SECURITY & WORK COMP

Three words come to mind with this combo …. USE EXTREME CAUTION. This combo is a huge trap for the unwary. There is an absolute offset between social security benefits and work comp benefits. The particulars in managing this offset are a topic all on its own. Suffice it to say, if you have a client receiving or that you anticipate receiving social security benefits with a work comp claim in the mix, you had better get up to speed on how these two entities play together. There is language you can place in settlement documents to benefit your client and save you from malpractice. Out of an abundance of caution, I place such language in all my work comp settlements regardless of whether social security is an issue at the time of the settlement.

By way of further caution, do not simply expect the future medicals relating to a work comp injury to be foisted onto the government when your client is eligible for Medicaid/Medicare. Language also needs to be placed into any settlement agreement addressing the future medical situation to avoid a setoff of such medical benefits from your client’s settlement.

BANKRUPTCY & WORK COMP

If you have a work comp client that anticipates a bankruptcy, you need to tell them to be sure the bankruptcy attorney knows about the case so the proper exemptions can be recorded and filed.

PROBATE & WORK COMP

In the context of a work comp situation, the death of your client is either related to the work injury, or it is unrelated to the work injury. If it is related to the work injury (and medical evidence substantiates that), you can pursue death benefits under Iowa Code section 85. If the death is unrelated to the work injury, the right to benefits ceases and liability terminates. Iowa Code §85.31(4).

However, the agency held that the employer is obligated to pay benefits to the decedent's estate up until the time of decedent's death, even if the employer contests the case and after the death is determined to be liable for benefits. The agency pointed out that to hold otherwise would result in a windfall for insurance carriers when an employee died from a non-work-related reason. Snodgrass v. Eagle Food Centers, Inc. File No.1199751 (Arb. 7/11/01).

MEDICAL NEGLIGENCE & WORK COMP

In the event medical negligence occurs in the context of the treatment of a work injury, it is important to note that a workers' compensation carrier has no lien under Iowa Code §85.22 against any recovery an employee may obtain in a medical negligence action against the physician who treated the employee's injury. Toomey v. Surgical Services, P.C., 558 N.W.2d 166, (Iowa 1997).

Succession Planning/Classification Changes

4:00 p.m. - 5:00 p.m.

Presented by: Tre Critelli Office of Professional Regulation Judicial Branch Building 1111 E. Court Avenue Des Moines, Iowa 50319 Phone: 515-725-8029

Friday, September 15, 2017 Do you practice law in Iowa? No You are not Yes required to comply with Rule 39.18 No Are you in private practice?

Yes

You need to comply with Rule Guide for all licensed Iowa lawyers 39.18 on compliance with Rule 39.18

Do you practice law in a firm or partnership with another Iowa lawyer?

Has an Iowa law firm consented to be your successor? Yes

No Yes

1 Has a bar association consented You have IDENTIFIED your to be your designated Yes designated successor successor?

No Yes

No Do you have a list of your You need to Has a professional liability insurer active clients? make one Done consented to be your designated Yes successor? Yes

No Yes Does someone other than you know where No You need to tell to find your list of your active clients? Done someone

Has an Iowa bank with trust powers Yes issued by the Iowa Division of Banking consented to be your successor?

Does someone other than you know where No your client files (paper and electronic) and You need to tell someone records are located? Done No

Yes

Has an active Iowa attorney in good standing consented to be your designated successor? Does someone other than you know where to No You need to tell find your office passwords and other security Done someone protocol?

No Yes Then you need to keep looking 2 You have IDENTIFIED the custodians of your client list, client files and passwords

What if I can't find anyone? After 12/26/2017 and before 3/10/2018

Then you won't be able to

Created by N. Tré Critelli file your annual Client Director, Office of Professional Regulation Security report and your 3 Log into If questions: 515-725-8029 license will be suspended iacourtcommissions.org and provide us with the name and contact information for your designated successor and three custodians as part of your annual Client Security report Why be designated as a successor?

Trustee: someone who has no interest in the trust property and cannot benefit by the exercise of the powers

Successor: someone who stands in the shoes of the predecessor

Trustee: Current (and potentially future) representation strictly prohibited

Successor: Representation allowed Pending Matter Trustee: Retention prohibited Active Clients Client File Successor: Retention allowed

Funds in Trust Trustee: Retainers must be returned to client

Successor: Retainers may be transferred to your trust account if you take over matter

Trustee: Must return to former clients Areas of concern for Archived Files planning attorney Past Clients Successor: May retain if client agrees

Contacts Trustee: Cannot solicit business

Successor: May solicit business

Trustee: Cannot pay or hire Staff Practice Entity Successor: Can pay or hire if written agreement permits Finances Trustee: Cannot handle firm finances

Successor: Can handle firm finances if written agreement permites

Trustee: Cannot buy or sell Furnishings

Successor: May buy or sell if written agreement permits Attorney Death and Disability Planning April 2017

Office of Professional Regulation

Introduction

The demographics of Iowa’s private practitioner community suggest that death or disability of sole practitioners will be common in coming years. Recent changes in court rules, notably Iowa Court Rule 45.11 and Iowa Court Rule 39.18, are intended to help address these situations. The purpose of this outline is to assist Iowa practitioners in implementing these new rules and in preparing their practices for maintenance, closure, or sale incident to their death or disability.

The primary focus of this outline is on planning by sole practitioners. Issues in practice administration occur less frequently with respect to attorneys practicing as a member or employee of a firm. However, a firm also can plan to ease transition of the practice when an attorney member or employee becomes disabled or dies. The provisions of rule 39.18 accordingly require all private practitioners to make the same designations as sole practitioners.

Why Planning for Death or Disability Makes Sense

Planning for the effect of death or disability on your practice is appropriate and necessary for ethical, personal, and professional reasons.

Once representation of a client has been undertaken, an attorney has an ethical duty of diligence. The duty of diligence includes planning to safeguard client interests in the event the attorney no longer is able to practice due to death or disability. See Iowa R. Prof’l Conduct 32:1.3, cmt. 5.

Effective December 25, 2017, an Iowa attorney in private practice (including an attorney practicing in a firm with other attorneys) is required to accomplish at least the “first tier” planning requirements of Iowa Court Rule 39.18.

An attorney has an obligation to take appropriate action to safeguard the confidences of clients upon the attorney’s death or disability. Iowa R. Prof’l Conduct 32:1.6, cmt. 18; Iowa R. Prof’l Conduct 32:1.9.

Contingency plans for your extended absence may be a condition of coverage by an attorney’s professional liability insurance carrier, or at least a consideration in the insurer’s issuance of coverage.

If an attorney is temporarily disabled, preserving the viability of the practice pending resolution of the disability may be in the attorney’s economic interest. If the attorney is permanently disabled or deceased, planning may assist in transfer of the practice to another attorney. See Iowa R. Prof’l Conduct 32:1.17 (sale of practice may include good will).

Planning may ease the burden of winding up or selling the practice on surviving family members.

Law practices not prepared for the practitioner’s disability or death have been a source of claims against the Client Security Trust Fund, generally based on retainers inadequately accounted for. In addition, trustee claims for compensation and expenses often are submitted to the Client Security Commission for payment. Planning and an orderly practice transition can reduce claims, help maintain the fund balance, and reduce the frequency of special assessments.

Finally, effecting a smooth transition for clients following death or disability demonstrates professionalism and competence as a practitioner.

Iowa Rules

Until 2005, no Iowa rule specifically required that practicing attorneys prepare their practices for maintenance, closure, or sale incident to their disability or death. The Iowa Rules of Professional Conduct, adopted in 2005, now address the requirement:

To prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action. See Iowa Ct. Rs. 35.17(6), 35.18 (where reasonable necessity exists, the local chief judge shall appoint a lawyer to serve as trustee to inventory files, sequester client funds, and take any other appropriate action to protect the interests of the clients and other affected persons of a deceased, suspended, or disabled lawyer).

Iowa R. of Prof’l Conduct 32:1.3, cmt. 5.

Iowa Court Rule 39.18 provides more detailed guidance regarding the duty to plan for death or disability. The rule originally was adopted in 2015, but implementation was delayed to permit study by the Iowa State Bar Association. The bar association study resulted in a revised rule that will be effective 2

December 25, 2017, for the annual client security report filing due in March of 2018. The revised rule creates a mandatory “first tier” of succession planning that all attorneys in private practice in Iowa will be required to complete as part of the annual client security report. The mandatory “first tier” is focused on tasks essential to protecting the interests of clients. The revised rule allows Iowa practitioners to adopt an optional written plan, in which the attorney may provide further guidance and authority, primarily for law firm management and administrative tasks.

Several other rules suggest obligations to clients upon disability or death:

Iowa Rule of Professional Conduct 32:1.5(e) (Fees). An attorney should not divide a fee for legal services with another attorney who is not in the same firm, absent disclosure to the client of the arrangement, and consent by the client confirmed in writing. Depending on the terms of your written plan or agreement regarding the scope of duties and compensation of the designated attorney, the disclosure and consent contemplated by rule 32:1.5(e) may be required at some point during your designated attorney’s administration of your practice.

Iowa Rule of Professional Conduct 32:1.9(c)(2) (Confidentiality of Information). An attorney may not reveal information relating to representation of a former client except as the ethics rules otherwise permit or require with respect to a client. Arguably the requirement to formulate a backup plan falls within the exception for disclosures permitted or required by the ethics rules, so that your clients’ written, informed consent to your designated attorney accessing their confidential information is not required. Nonetheless, disclosure of the existence of the backup agreement to clients in your standard fee agreements or engagement letters may be prudent.

Iowa Rule of Professional Conduct 32:1.16 (Declining or Terminating Representation). An attorney must withdraw from representation of clients when his or her mental or physical condition materially impairs his or her ability to represent the client. The withdrawal may require permission from the tribunal where any action on behalf of the clients may be pending. The withdrawal also triggers obligations to reasonably notify the client, return papers and property to them, and refund any unearned advance fees.

Iowa Rule of Professional Conduct 32:1.17 (Sale of Law Practice). This rule prescribes how a law practice may be sold by one attorney to another, and includes good will as a saleable component of a law practice. Comment 13 to the rule contemplates sale of a practice by a non-attorney representative, such as the estate of a deceased attorney, and implies that the purchasing attorney is obligated to ensure that the rule is observed even though the seller is not an attorney.

Opinion 78-30, Iowa Board of Professional Ethics and Conduct, Disposition of Files of Deceased Lawyer (1978). Opinion 79-72, Iowa Board of Professional Ethics and Conduct, Deceased Partner’s Files – Disposition or Retention (1979). Both opinions place responsibility for proper disposition of client files on the executor of the deceased attorney’s estate. The opinions appear to contemplate notice to the clients and an opportunity for a client to retrieve the client’s file before the file may be destroyed. If no address is available for a particular client, the opinions specify retention of that client’s file for a period of five years after notice, before the file may be destroyed.

Opinion 08-02, Iowa State Bar Association Committee on Ethics and Practice Guidelines (2008). This opinion recommends creation of a written file destruction policy, disclosure of the file destruction policy in engagement letters and closing letters, and a final notice before destruction of a client file. The opinion suggests sample disclosure or notice language.

As noted in comment 5 to rule 32:1.3, our rules also provide a framework for judicial supervision of a practice when an attorney has not planned for disability or death.

Iowa Court Rule 34.17. (Disability Suspension). Iowa Court Rule 34.17 provides for suspension of an attorney’s license to practice upon disability, and for appointment of a trustee to protect the interests of clients and other affected persons. The principal duty of the trustee is to protect the interests of the disabled attorney’s clients. The trustee has little if any duty to protect the interests of the disabled attorney, and the trustee’s actions generally will not preserve the disabled attorney’s practice during the suspension period. Rule 34.17 was amended effective December 25, 2017, to require the district chief judge to consider a standby nomination made by the disabled attorney under rule 39.18 if appointment of a trustee is necessary.

Iowa Court Rule 34.18. (Death, Suspension, or Disbarment of Practicing Attorney). Iowa Court Rule 34.18 provides for appointment of a trustee to protect the interests of clients and other affected persons upon the death, disbarment, or suspension of an attorney, provided reasonable necessity exists. Here also, the principal duty of the trustee is to protect the interests of the dead or suspended attorney’s clients. The trustee’s actions generally will not protect the interests of the deceased or suspended attorney or the deceased attorney’s estate or preserve the value of the practice for the estate or for sale. Rule 34.18 was amended effective December 25, 2017, to require the district chief judge to consider a standby nomination made by the deceased, suspended, or disbarred attorney under rule 39.18 if appointment of a trustee is necessary. Also, an attorney or entity designated under rule 39.18 now will be permitted to apply for appointment of a trustee. This change complements a provision in the new rule 39.18 which allows the designated attorney or entity to seek appointment of a trustee at any time. 4

Iowa Court Rule 45.11 (Designation of Successor Signatories). Iowa Court Rule 45.11 allows an attorney who is the sole attorney signatory on a trust account to designate a successor signatory, whose authority becomes effective upon the occurrence of an event described in the designation. Possible events include death, disappearance, abandonment of the practice, incapacity, suspension, or disbarment. The successor signatory must be a member of the Iowa bar in good standing. Rule 39.18 provides that an attorney or entity designated under the provisions of that rule also is authorized to serve as a successor signatory under rule 45.11.

Death and Disability Practice Before Iowa Court Rule 39.18

What Currently Happens at Death if No Succession Plan Exists

Three courses of action have been used for disposition of the practice of a deceased sole practitioner if no succession planning has occurred.

Iowa Probate Code. The first course of action is to proceed under the Iowa probate code. The personal representative of the deceased attorney appears to have authority to administer the practice as part of the general administration of the decedent’s estate. Iowa Code § 633.350; see Ethics Op. 79-72. The personal representative would be entitled to assistance from the attorney engaged to assist in administration of the estate. Iowa Code § 633.82. A special appointment of another attorney to assist with administration of the practice would be possible under Iowa Code section 633.84 (delegation of authority to outside specialists with court approval).

Iowa Court Rule 34.18. A second course of action is to petition for appointment of an attorney (or attorneys) as trustee or trustees to administer the practice under Iowa Court Rule 34.18.

An application for the trustee appointment under rule 34.18 may be made on behalf of the Attorney Disciplinary Board or the county bar association. The application must show that the attorney involved has died, and that reasonable necessity exists for appointment of a trustee.

Authority for the appointment is placed with the chief judge in the district where the deceased attorney practiced. The appointment by the chief judge is subject to confirmation by the Supreme Court. Thereafter, the trusteeship is supervised by the chief judge through final report and closure. Closure of the trust is appropriate when all pending representation of clients has been completed, or the purposes of the trust otherwise have been accomplished. The trust must be terminated by an order of the appointing chief judge.

Informal Administration. If knowledgeable law firm staff members are available to assist and the deceased attorney’s family is supportive, it sometimes is possible to close a law practice without court supervision. This approach appears to be most suitable when a non-attorney family member, such as a spouse, has been a long-term, integral part of the law firm staff. Another attorney known to the family often assists with informal administration. Even under this approach it still may be necessary to seek a trustee appointment under rule 34.18 for the limited purpose of administering and closing the deceased attorney’s trust account, as the decedent may have been the only account signatory, or the depository bank may not recognize the authority of any signatory who survives the decedent.

Comparing the Courses of Action. The courses of action offer different advantages and features, and are not mutually exclusive. In recent years, one or more of the courses of action have been employed in concert. The considerations in selecting the proper course or courses of action include the following:

The trustee’s duty to protect the interests of the clients is narrower than the duties of a fiduciary for a deceased attorney’s estate. For this reason, trustees sometimes can move more quickly to advise active clients of their need to engage new counsel, distribute trust account balances to those persons entitled to them, and distribute files to clients.

Trustees do not attempt to preserve the practice for sale, collect receivables, or address dissolution of the business aspects of the practice. Absent use of a parallel course of action by the decedent’s survivors, a trusteeship generally dismembers the client base of the practice and may reduce the value of the practice remaining for the decedent’s estate.

The allowable fees and expenses of a trustee are to be paid first from the decedent’s estate. It appears the trustee’s fees and expenses are entitled to administrative priority. See Iowa Code § 633.425(2) (other costs of administration). If the trustee cannot be paid from the estate, the Client Security Commission has authority and discretion to pay those fees and expenses. If there is any concern regarding the solvency of the estate, a trustee appointment under rule 34.18 therefore offers a second avenue for compensation of the trustee even if formal probate is undertaken also.

Administration of the law practice through formal probate, with the appointment of professional assistance if required, offers more encompassing authority than a trustee appointment. In 6

addition to the tasks normally undertaken by a trustee to protect the interests of clients, representatives of the estate can attempt to sell the physical assets and good will of the practice, collect earned but unpaid fees including the value of work performed but unbilled at the time of the decedent’s death, and dissolve the business aspects of the practice. If one professional handles these tasks in addition to those normally undertaken by a trustee, the overall cost to the estate may be reduced. Use of the probate process may be especially attractive if a likely purchaser of the practice is readily available.

Informal administration of a law practice generally is dependent on knowledgeable, experienced staff members or family members available to assist. As the nature of law practice becomes less reliant on staff support and more reliant on attorney technology skills, it seems less likely that informal administration will be a viable alternative. Informal administration also depends on the willingness of third parties to recognize authority of the staff or family members. In those instances where informal authority is insufficient, resort to a trusteeship or formal probate proceeding may be required.

What Currently Happens Upon Disability if No Succession Plan Exists

Three courses of action also are available for administration of the practice of a disabled practitioner if no succession planning has occurred. The considerations in selecting these courses of action are similar to the considerations applicable to administration of the practice of a deceased practitioner.

Iowa Court Rule 34.17. The course of action commonly used to administer the practice of a disabled sole practitioner, if no succession planning has occurred, is appointment of an Iowa attorney (or attorneys) as trustee or co- trustees under the provisions of Iowa Court Rule 34.17. Rule 34.17 provides a two-step process, the first of which is the disability suspension of the practitioner, which then prompts the appointment of a trustee.

An application to the Supreme Court for the disability suspension of an Iowa lawyer may be made on behalf of the Attorney Disciplinary Board or the county bar association. The application must show that the attorney involved is not discharging professional responsibilities, due to disability, incapacity, disappearance, or abandonment of the practice. The Supreme Court also may enter a suspension order based on the certification by any clerk of court in Iowa that an attorney has been adjudicated mentally incapacitated, an alcoholic, a drug addict, or has been committed to a hospital or institution for treatment.

Upon notification that a disability suspension has been ordered by the Supreme Court, an appointment of trustee shall be made by the chief judge in the district where the disabled attorney practiced. The appointment by the chief judge is subject to confirmation by the Supreme Court. Thereafter, the trusteeship is supervised by the chief judge through final report and closure. Closure of the trust is appropriate once the disabled attorney has been reinstated to practice, or all pending representation of clients has been completed, or the purposes of the trust otherwise have been accomplished. The trust may be terminated by order of the appointing chief judge.

Conservatorship Under Probate Code. Another course of action is appointment of a conservator under the provisions of Iowa Code section 633.566. An application for appointment of a conservator must show that the proposed ward’s decision-making capacity is so impaired that he or she is unable to make communicate, or carry out important decisions concerning the person’s financial affairs. Iowa Code § 633.556(2)(a). As is the case in a formal probate proceeding, the conservator would be would be entitled to assistance from the attorney designated to assist in administration of the conservatorship. Iowa Code §§ 633.82, 633.649. Similarly, a special appointment of another attorney to assist with administration of the practice would be possible under Iowa Code section 633.84 (delegation of authority to outside specialists with court approval).

Informal Administration. If knowledgeable law firm staff members are available to assist and the disabled attorney’s family is supportive, it sometimes is possible to administer a disabled attorney’s law practice without court supervision. This approach appears to be most suitable when a non-attorney family member, such as a spouse, has been a long-term, integral part of the law firm staff. Another attorney known to the family often assists with informal administration. Even under this approach it still may be necessary to seek a disability determination and trustee appointment under rule 34.17 for the limited purpose of administering and closing out the disabled attorney’s trust account, as the disabled attorney may have been the only account signatory. A disability determination and trustee appointment also may be necessary if the disabled attorney refuses to cooperate with, or resists, informal administration.

Duties of the Trustee Appointed under Iowa Court Rules 34.17 or 34.18

Under both Iowa Court Rule 34.17 and Iowa Court Rule 34.18, the overarching purpose of the trust is to protect the interests of clients and other affected persons. Both rules describe the trustee’s tasks as inventorying files, sequestering client funds, and taking other action appropriate to the purpose of the trust. The trustee has little if any duty to protect the interests of the disabled, suspended, or deceased attorney, or the deceased attorney’s estate, and should not attempt to keep the attorney’s business viable during the suspension period or preserve the value of the practice for the estate or for sale. If a legal representative of the deceased, suspended, or disabled attorney appears and

8 seeks to preserve the value of the practice for sale, the trustee should cooperate to the extent possible. A sale of the practice could produce sufficient return to help pay the fees and costs of the trusteeship.

Death and Disability Practice After Iowa Court Rule 39.18

Terminology

Iowa Court Rule 39.18 and the forms prepared by Iowa Trust & Estate Counsel (ITEC) use the terms designated attorney and planning attorney. To reduce confusion, the same terms are used in this outline. The term Designated Attorney refers to the lawyer designated under the provisions of rule 39.18 to administer the practice of a deceased or disabled attorney. The term Planning Attorney refers to the attorney making the designation, whose practice is to be administered.

The New Framework of Rule 39.18

Iowa Court Rule 39.18 will be effective December 25, 2017, for the 2018 annual report filing season. Rule 39.18 creates two “tiers” of planning. The “first tier” is mandatory, and the “second tier” is optional.

The “first tier” is a mandatory short form designation and authorization as part of the annual questionnaire filed with the Client Security Commission. The designation must identify an active Iowa attorney, law firm with at least one active Iowa attorney, or qualified attorney-servicing association. The designation also must identify where the planning attorney's records are located, including a current client list, and authorize the designated attorney or entity to perform certain tasks necessary to protect the interests of the planning attorney's clients. The listed tasks include reviewing client files, notifying clients of the planning attorney's death or disability, determining if other actions are necessary to protect client interests, and administering the planning attorney's trust account.

All attorneys in private practice are required to complete the “first tier” short form designation as part of the annual client security questionnaire. If a planning attorney is a member of a law firm that includes other Iowa attorneys in good standing, the planning attorney may simply designate his or her own firm.

Attorneys who are not in private practice in Iowa may indicate that status on the annual questionnaire and will not be required to complete the portion of the questionnaire pertaining to succession planning.

Because the “first tier” designations will be part of the annual client security questionnaire, chapter 39 of the court rules creates a duty to update the designation information within 30 days after the designation information occurs. The Office of Professional Regulation will add a succession plan update module on the lawyer account page to allowing updates between annual reporting periods.

The “second tier” of succession planning is an optional but encouraged written plan that the planning attorney may create if desired. In the optional written plan, the planning attorney may provide further guidance and authority to perform law firm management and administrative tasks. Those tasks may include collecting fees, paying law firm expenses and client costs, compensating staff, terminating leases, and selling the practice.

Rule 39.18 requires all attorneys in private practice to maintain a current client list. The Iowa State Bar Association Committee on Ethics and Practice Guidelines is developing a standard for content of a current client list.

The rule authorizes the designated attorney or entity to apply to the judicial district chief judge for an order confirming the death or disability of the planning attorney.

A qualified attorney-servicing association is defined as a bar association all or part of whose members are admitted to practice in Iowa, a company authorized to sell professional liability insurance to Iowa attorneys, or an Iowa bank with trust powers issued by the Iowa Division of Banking.

The amendments authorize the designated attorney or entity to petition for appointment of a trustee under the provisions of rule 34.17 or 34.18, as applicable, if the designated attorney or entity believes it is beneficial to be court-appointed as a trustee, or believes it is appropriate for the court to appoint an independent trustee. If the designated attorney or entity applies for a trustee appointment under rule 34.17 or 34.18, the amendments require the judicial district chief judge to give due regard to any designation or standby nomination the planning attorney made under the provisions of rule 39.18.

Implementing the Mandatory “First Tier” Provisions

An initial task is selection of another Iowa attorney in good standing, Iowa law firm with at least one active Iowa attorney in good standing, or a qualified attorney-servicing association to serve as designated attorney or entity. This selection should be made with care, as the designated attorney or entity will be

10 responsible for the transition of clients and the office, and probably also for proper disbursement of client funds in the trust account.

The planning attorney should familiarize the designated attorney or entity with the planning attorney’s office procedures and system. The planning attorney should consider providing the designated attorney or entity a tour of the office, with introductions to staff, and familiarization with how to access the client list, files, and other paper and electronic records.

The planning attorney also should brief the law office staff and his or her family regarding the existence and purpose of the designation, and how they should assist the designated attorney or entity with access to the client list, files, and other paper and electronic records.

Besides identifying the designated attorney as part of the mandatory “first tier” requirements, the planning attorney is required to specify the “custodian” and location of the client list, electronic and paper files and records, and the passwords and other security protocols required to access electronic files and records. The term “custodian” in this context is not intended to require that some person other than the planning attorney actually have physical possession of these materials. The intent is that some person other than the planning attorney should be knowledgeable regarding the location of these materials and have the ability to help the designated attorney gain access to them.

Examples: The “custodian” for this purpose might be a law staff member or a family member who knows where the materials are located and has a key to the office. If the planning attorney has briefed the designated attorney on the location of these materials and provided the designated attorney with a key to the office, the designated attorney could be the “custodian.” If the planning attorney has briefed the designated attorney on the location of the materials but no person other than the planning attorney has a key to the office, the “custodian” might be the office landlord who has a key to the office.

Once the planning attorney has submitted an annual client security questionnaire in compliance with rule 39.18, he or she should print out a designation form from his or her lawyer account page, execute it before a notary, and provide the executed form to the designated attorney. The designated attorney will need the executed designation form to establish his or her authority to administer the practice, and in particular to administer the trust account.

Implementing the Optional Second Tier Provisions

The “second tier” provisions of rule 39.18 can only be implemented by a written agreement and power of attorney regarding the scope of the duties to be 11 performed by the designated attorney and the planning attorney’s authorization and consent to their performance. Iowa Trust & Estates Counsel (ITEC) has prepared forms to implement the “second tier” provisions, which are available at http://www.iowabar.org/default.asp?page=LawPracticeForms:

Law Practice Succession Plan Agreement: This agreement is intended to supplement the designations made in the annual client security questionnaire. The agreement addresses authority to administer numerous functions not authorized under the “first tier” designation, including law firm financial affairs, insurance, law firm staffing, termination of leases and other obligations, and sale or closure of the practice.

Durable Limited Power of Attorney for Management of Law Practice Upon Incapacity or Inability to Practice Law for Any Reason: This power of attorney form contains durability provisions and incorporates by reference the power and authority described in the Law Practice Succession Plan Agreement.

Providing for Designated Attorney (and Alternate) in Estate Planning Documents: ITEC has provided sample provisions for the planning attorney’s will or revocable trust, directing the fiduciary for the estate or trust to engage the designated attorney to close or sell the practice in accordance with the succession plan agreement.

Law Practice Business Entities: Appointment of Agent to Manage Law Practice Upon Death or Incapacity: Forms are provided for entity consent and authorization of the designated attorney as an agent of the professional corporation or professional limited liability company.

Tip: The ITEC forms describe the status of the designated attorney or alternate as an agent of the planning attorney. If the designated attorney acts solely as an agent, he or she could provide clients notice of errors, just as the planning attorney would have done had he or she been able. Acting solely as an agent, the potential for conflicts likely is reduced, such that the designated attorney can more easily assume duties as successor counsel for the clients. In contrast, if the designated attorney acts as the attorney for the planning attorney, his or her primary duty would be to the planning attorney. The designated attorney would not be able to inform clients of errors discovered in the work performed by the planning attorney, unless the planning attorney expressly consents to and directs such disclosures. The designated attorney’s duties as counsel could increase the probability that conflicts of interest would prevent the designated attorney from assuming duties as successor counsel for the clients.

Client Notification

Once a designation has been made under rule 39.18, the planning attorney should provide notice to clients regarding the designation. The easiest way to do this is to include the information regarding the designation in your retainer agreements, engagement letters, and firm brochure. This provides clients with information about your arrangement and gives them an opportunity to object. Your client’s signature on a retainer agreement should provide written authorization for the designated attorney to proceed on the client’s behalf, if necessary.

Handling Client Files

One of the most troublesome issues confronted incident to death or permanent disability of a practicing attorney is the disposition of client files. Often the files never have been reviewed for client property or periodically purged by the disabled or deceased attorney. Proper handling of these files generally is a matter of considerable time and expense for the fiduciary or trustee, and will consume substantial time and expense on the part of the designated attorney absent preparation by the planning attorney.

The Iowa Supreme Court has adopted the “entire file” approach to the question of who owns the contents of a client’s file. Iowa Supreme Court Attorney Disciplinary Bd. v. Gottschalk, 729 N.W.2d 812 (Iowa 2007); Restatement (Third) of the Law Governing Lawyers §46(2) (2000). Subject to narrow exceptions, the client owns the entire file, including attorney work product. Gottschalk, 729 N.W.2d at 819-820.

Unless the planning attorney has addressed disposition of client files in his or her engagement letters, fee contracts, or termination letters, it will not be permissible for the designated attorney to summarily destroy client files. Before any file is destroyed, it will need to be checked for original documents (wills, abstracts, conveyance instruments) and any other specific client property that must be removed from file and returned to the rightful owners. The designated attorney then will need to contact the clients and return all files to the clients involved. If a client refuses to take custody of the file or otherwise fails to respond after being contacted and advised of the impending destruction of the file, the designated attorney would be authorized to destroy the remaining contents of the file if the normal file retention period has passed.

With respect to those files for which a client address cannot be found, the normal procedure ordered in trustee cases has been to publish notice regarding the files, and then retain those files that are unclaimed for a period of five or six years during which these clients may come forward and claim their file.

Planning attorneys can minimize the burden of file disposition upon termination of their practice by adopting some procedures in their daily practice:

Planning attorneys should consider including an agreement and consent regarding file destruction in their initial engagement letter or fee agreement with each client, or in the arrangements made upon termination of each representation.

Planning attorneys should periodically examine all files for which the last action was completed more than six years ago (or more than whatever minimum retention period is prescribed by your professional liability carrier); remove documents or other client property for transfer to the client; and consider destruction of the paper file provided client consent exists.

Planning attorneys should use a secure method to destroy client files, such as shredding, and document for future reference when and how each file was destroyed.

As a general rule, the best practice is to retain a client’s file for a minimum period of six years after the last action taken on the file, as prescribed for trust account records and supporting documents under Iowa Court Rule 45.2(2). The planning attorney’s professional liability carrier may recommend a longer minimum retention period. It is permissible to retain files in electronic form only and dispose of the paper files.

Preparation of Planning Attorney Personal Affairs

Planning attorneys will want to maintain a current will, designating a personal representative and alternates, so that probate of their estate can be opened and a personal representative can be appointed quickly upon their death.

Iowa law gives broad powers to a personal representative to sell or wind down a business, and to hire professionals to help administer the estate. Iowa Code §§ 633.84, 633.350. However, for the personal representative’s protection, you may want to include language in your will that expressly authorizes the personal representative, along with such professionals as the personal representative may engage, to administer the practice in an effort to preserve its value pending disposition and assist with orderly transition of client matters. The planning attorney should consider instructing the personal representative to engage the designated attorney for that purpose, with the appointment order or engagement incorporating provisions of the backup agreement. The form provisions prepared by ITEC use this approach.

The planning attorney should consider the likely cash flow situation of the practice upon disability or death. If the remainder of the planning attorney’s 14 property (other than the practice) is likely to pass by operation of law to a spouse or other family members, the practice might be placed in a cash-poor situation, especially if the accounts receivable are not amenable to rapid billing. Cash flow needs of the practice for routine expenses and compensation of staff may continue for some period after the planning attorney’s death or disability. The planning attorney may want to consider practice interruption insurance, disability insurance, and insurance on his or her life as sources for interim capital to wind up the practice in the event of disability or death.

Succession Planning By a Member of a Firm

The law firm organizational document is an appropriate place to include provisions relating to the death or disability of attorney members and employees of the firm.

One possible topic for the firm organizational document is a list of duties of all attorney members of the firm during routine practice, with the goal of maintaining a well-organized practice that is amenable to transition. The list of duties might include many of the topics addressed in the attached “Preparing a Law Practice for Death, Disability or Incapacity.”

Other possible topics for the firm organizational document are law firm authority and duties after the death or disability of an attorney member of the firm.

The firm also may want to consider formalizing designated attorney or practice group arrangements, wherein attorneys working in similar areas will maintain some level of familiarity with the matters assigned to another attorney or attorneys in the group.

Office of Professional Regulation (OPR) Implementation of Rule 39.18

During the period April through November of 2017, the staff at OPR will be working with a web site developer to implement necessary changes to the annual client security questionnaire and other functions on the OPR / Supreme Court Commissions web site.

The changes will allow attorneys in active status to submit succession planning designations as part of the annual client security report and questionnaire, and update succession planning designations at any time. A new heading titled “Succession Planning Functions” will be added to the menu on the lawyer account page. Under the heading “Succession Planning Functions” there will be two buttons, one titled “Update Designations” and the other titled “View / Print Designation of Authority.” The “Update Designations” button will take an attorney through a set of screens that pose the same succession planning questions posed on the normal client security questionnaire. The “View / Print 15

Designation of Authority” button will generate an official report that incorporates the succession planning designations and authorizes the designated attorney or entity to carry out the duties described in rule 39.18 in the event of the planning attorney’s death or disability. This report will be viewable and printable by the planning attorney at any time from his or her lawyer account page. The intent is that the planning attorney will print out the report, execute it, and provide a copy to the designated attorney.

The changes will allow staff at OPR to view an attorney’s succession planning designations. In addition, the staff at OPR will be able to print out the official form showing the current designations, which the OPR director or assistant directors may execute and give to the designated attorney or entity in the event the planning attorney did not do so prior to his or her death or disability. This form would authorize the actions described by the rule.

Appendix A – Preparing a Law Practice for Death, Disability, or Incapacity Appendix B – Checklist for Actions by the Attorney Designated under the “First Tier” -

APPENDIX A - Checklist – Preparing a Law Practice for Death, Disability, or Incapacity

Much of the confusion and expense involved in transition of your practice after your death or disability can be minimized by some prior planning and disciplined conduct of your practice prior to your departure. Some recommended tasks in preparation of your practice are as follows:

Introduce your designated attorney to your staff. Make certain your staff knows how to contact the designated attorney if an emergency occurs before or after office hours. If you practice without regular staff, make sure another appropriate person (spouse, significant other, landlord, for example) knows how to contact your designated attorney and arrange access to your office.

Inform your spouse, significant other, or closest living relative, and the personal representative of your estate of your designation and how to contact the designated attorney.

Forward the name, address, and phone number of your designated attorney to your professional liability insurance carrier. This will enable your carrier to locate the designated attorney in the event of your death, disability, impairment, or incapacity.

Review your designation with your designated attorney annually.

Familiarize your designated attorney with your office systems and keep him or her apprised of office changes.

Consult with your bank to ensure that your designations pertaining to authority over bank accounts will be honored. You may find it necessary to prepare a separate, successor signatory document under rule 45.11 to satisfy your bank.

Make sure all your file deadlines (including follow-up deadlines) are calendared, and your staff or software can produce an accurate list of the deadlines.

Keep your trust account and billing records up-to-date.

Prepare a law office list of contacts. Make sure your designated attorney has a copy.

Ensure your staff or software can produce an accurate list of current clients, addresses and telephone numbers.

Avoid keeping original client documents (e.g., wills, abstracts) in client files; consolidate and index your holdings of these documents or return them to clients.

Periodically purge paper files after proper notice to the clients and passage of the minimum retention period suggested in the following section of the outline. If possible, transition to files in electronic form only to avoid having to dispose of paper files.

Include provisions in your engagement letters and fee contracts regarding disposition of client files once a matter is concluded.

Include provisions in your retainer agreements and engagement letters that disclose that you have arranged for a designated attorney to close your practice in the event of death, disability, impairment, or incapacity.

Have a thorough and up-to-date office procedure manual that includes information on:

a. How to check for a conflict of interest; b. How to use the calendaring system; c. How to generate a list of active client files, including client names, addresses, and phone numbers; d. Where client ledgers are kept; e. How the open/active files are organized; f. How the closed files are organized and assigned numbers; g. Where the closed files are kept and how to access them; h. The office policy on keeping original client documents; i. Where original client documents are kept; j. Where the safe deposit box is located and how to access it; k. The bank name, address, account signers, and account numbers for all law office bank accounts; l. The location of all law office bank account records (trust and general); m. Where to find, or who knows about, the computer passwords; n. How to access your voice mail (or answering machine) and the access code numbers; and o. Where the post office or other mail service box is located and how to access it.

Appendix B – Checklist for Actions by the Attorney Designated under the “First Tier”

The duties of an attorney designated under the “first tier” provisions of rule 39.18 are limited to basic protection of client interests. The rule authorizes the designated attorney to review client files, notify each client of the planning attorney’s death or disability, properly dispose of inactive files, arrange for storage of files and trust account records, and determine if there is a need for other immediate action to protect the interests of the clients. The attorney designated under the “first tier” provisions also is authorized as a successor trust account signatory and may prepare final trust accountings and make trust account disbursements. Recommended actions by the designated attorney upon death or disability of the planning attorney are as follows:

Confirm the Death or Disability of the Planning Attorney: If there is any doubt regarding the existence of conditions triggering actions under the designation, the designated attorney may apply to the chief judge of the judicial district in which the planning attorney practiced for an order confirming the planning attorney’s death or disability.

Acquire Proof of Authority as Designated Attorney: Once the planning attorney has submitted an annual client security questionnaire in compliance with rule 39.18, he or she will have the ability to print out a designation form from his or her lawyer account page, execute it before a notary, and provide the executed form to the designated attorney. The designated attorney likely will need the executed designation form to establish his or her authority to administer the practice. If the designation form executed by the planning attorney is not available, the Office of Professional Regulation will be able to print out and provide a similar designation form, executed by the director or an assistant director of OPR based on the official records at OPR.

Access the Files and Records: The designated attorney should secure the office, files, and other practice property of the planning attorney, including trust account records and the trust account checkbook. If the planning attorney maintained client files or trust account records electronically, it may be necessary also to secure the computers, along with the user names and passwords for access.

Tip: The planning attorney is required to specify the “custodian” and location of the client list, electronic and paper files and records, and the passwords and other security protocols required to access electronic files and records. The Office of Professional Regulation can advise the designated attorney regarding the identity of the custodian and the specified locations of the materials based on the last client security questionnaire filed with the Client Security

Commission. The best practice, however, is for the planning attorney to directly advise the designated attorney of that information.

Assess the Situation: A designated attorney may petition the district court at any time for appointment as the trustee or appointment of a different attorney as a trustee under the provisions of rules 34.17 or 34.18. Once the designated attorney has assumed duties, he or she should assess the condition of the planning attorney’s practice and determine if the duties under the “first tier” of rule 39.18 can be performed and the designated attorney can be properly compensated without court supervision and assistance. If court supervision and assistance seems necessary, an application for appointment of a trustee should be filed.

Tip: The level of preparation of the practice at the time of the planning attorney’s death or disability will be a key factor in determining whether a trustee appointment will be necessary. For example, if the planning attorney’s trust account records are inadequate to establish client entitlements to funds in the trust account, or the trust account balance appears insufficient to honor all client claims on the account, a trusteeship may be necessary to adjudicate disbursement of the trust account. A second key factor will be whether it appears the designated attorney will be directly compensated for his or her time and expenses by the planning attorney or his or her estate. If there is doubt regarding compensation of the planning attorney, a trustee appointment will make reimbursement by the Client Security Commission possible.

Provide Notice to the Planning Attorney’s Clients and Other Interested Persons: The designated attorney should provide notice of the death, suspension, or disability to the planning attorney’s clients, opposing counsel, and the court in all pending matters, and notify clients of their right (and need) to pick up their file and engage other counsel. See Iowa R. Prof’l Conduct 32:1.16(d)(duties to clients upon termination of representation). Clerks of court or court administrators for those counties where the planning attorney practiced can provide lists of open cases in which the planning attorney has appeared. Identify imminent deadlines if possible, and provide specific notice to clients regarding these deadlines.

Protect the Confidences of Clients: The designated attorney must be alert for conflicts of interest with his or her own practice and address them as contemplated in rule 39.18(5). The designated attorney should avoid examining any documents or acquiring information creating a conflict with the designated attorney’s clients. If the designated attorney inadvertently acquires such information, rule 39.18(5) calls for prompt recusal or refusal of employment to protect the interests of the planning attorney’s clients. 23

Tip: Once the duties of the designated attorney are triggered, the designated attorney will want to examine the planning attorney’s client list for potential conflicts with the designated attorney’s client list before accessing any of the planning attorney’s client files.

Distribute Files to Active Clients: The planning attorney should use the planning attorney’s list of current clients and the list of the planning attorney’s open cases provided by the clerks of court or district court administrator to determine what clients have open matters. Those clients should be contacted immediately, advised of the planning attorney’s inability to continue representing them, and asked to pick up their file and seek new counsel.

Safeguard or Properly Dispose of Inactive Files: Inventory and return files to clients to the extent possible; provide proper notice before destruction of any files; make arrangements for files eligible for immediate destruction, long-term storage of files not eligible for immediate destruction, and for ultimate destruction authority for retained files. See Iowa R. Prof’l Conduct 32:1.16(d).

Reconcile the Trust Account and Make Proper Disbursements: Locate all trust account monies and records, coordinate with the depository institutions to execute new signature cards to prevent dissipation by former signatories on the accounts, reconcile the account statements and client ledger cards, and return all monies to the rightful owners. See Iowa R. Prof’l Conduct 32:1.15(d), Iowa Court Rule 45.2(2) (prompt accounting and return of funds or property clients or third persons are entitled to receive). Accounting assistance from the Client Security Commission should be requested if the condition or complexity of the accounting records exceeds the capabilities of the designated attorney, especially if there may be shortages in the account. Designated attorneys should be careful about returning trust account monies to clients before the account is completely reconciled.

Tip: If the trust account balance is not sufficient to reimburse all parties for whom trust account balances should exist, the only solution may be to formulate a plan of distribution and present it to the district chief judge for approval. When a trust account balance has been insufficient to fully pay all clients for whom funds should be available in the trust account, the practice in trusteeships under rules 34.17 and 34.18 has been to pay the clients on a pro rata basis from the trust account balance, and assist the clients with filing claims with the Client Security Commission for reimbursement of the unpaid balance from the Client Security Trust Fund.

ENDING YOUR^ CAREER

Office of Professional Regulation N. Tré Critelli, Director 515-725-8029 [email protected]

AGENDA

• New Retirement Option • Designated Successor Requirement • General Overview • Applicability to your practice • How it will affect you

1 RETIREMENT

The “fun” way to end your career….

2018 RULE CHANGE: RETIREMENT

CURRENT RULE STARTING JANUARY 1, 2018

• Active/Inactive • Active/Exempt/Retired • Active: Authorized to practice • Active: Authorized to practice • File annual CLE & CS reports • Exempt: Cannot practice law • Inactive: Cannot practice law • Can reinstate to active status • Inactive for CLE and/or CS • $50/yr exemption fee • No requirement to file report • Retired: Relinquish License • No requirement for fees • Cannot practice, but can obtain • Can reinstate to active status emeritus status • Cannot relinquish license • Must re-take bar exam to • Always an office of the court reinstate your license • Precluded from certain tasks

2 WHY RELINQUISH YOUR LICENSE?

• Allows you to do work you are prohibited from doing when “exempt” • Activities which are the “practice of law” when done by a lawyer but which non-lawyers can also do: • Tax returns • Mediations • Incorporations • Lobbying

BUT REMEMBER….

• Once you relinquish your law license you can’t get it back unless you retake and pass the bar exam

3 FOR THOSE “CONTEMPLATING”…

• Going inactive before the end of the year will get you “Legacy Inactive Status” which means • You’ll don’t have to pay $50 per year • You’ll have no more reports to file • Going inactive after the start of the new year will get you into “Exempt” status which means • You’ll have to pay $50 per year • You’ll have no more reports to file • To reinstate from either: • Pay reinstatement fees and any outstanding fees, fines or penalties • Pay current year’s disciplinary system fee & client security assessment • Show all CLE requirements for inactive years have been met or made up

DEATH OR DISABILITY

The “not so fun” ways to end your legal career…

4 BAD NEWS: YOU ARE MORTAL

Vizzini, Sicilian Mastermind

MORE BAD NEWS: DISABILITY

Likelihood of disability over death before age 55: • At no age is the risk of death greater than the risk of becoming disabled • Statistical information derived from: the Society of Actuaries, the National Safety Council, the Million Dollar Round Table, the National Underwriter-May 2002, The JHA Disability Fact Book -2003/2004 Edition - Need For Disability Insurance

5 WHY PLAN?

• It matters to your family, who would rather be mourning than dealing with your law practice • It matters to your clients who have lost the lawyer they trust • It matters to your friends that will be asked to help close your firm • It matters to your colleagues at the bar with whom you practice

RULE 39.18

• Effective December 25, 2017 (start of 2018 reporting season) • Requires designation of a contact person in case of your death or disability • Mandatory “First Tier” • All attorneys in private practice in Iowa must complete • A member of a firm with two Iowa lawyers may designate firm • Iowa attorneys not practicing in Iowa may opt out • Part of the annual client security questionnaire • Duty to supplement with 30 days of change • Optional “Second Tier” • Written contact between attorney and successor attorney • Gives guidance and authority for law firm management • No documents are filed with OPR

6 WHAT THE PLANNING ATTORNEY HAS TO DO

• Must designate one of the following: • An active Iowa attorney • A law firm with an active Iowa attorney • A Qualified Attorney-Servicing Association • A bar association of Iowa attorneys which has agreed to the service • A professional liability insurance company which sells to Iowa attorneys • An Iowa bank with trust powers issued by the Iowa Division of Banking • Must also designate: • Person(s) who possess or knows location of: • Client list of your active clients • Electronic and paper files • Passwords and other security protocol

7 DEATH OR DISABILITY PLANNING ADDENDUM TO ANNUAL CLIENT SECURITY QUESTIONNAIRE

Questions 25 through 30 implement the requirement in Iowa Court Rule 39.18 that each attorney in private practice designate annually an attorney or entity to perform certain duties in the event of the designating attorney's death or disability. If you are not engaged in private practice in Iowa, you may answer No to question 25 and skip questions 26 through 30. If you are engaged in private practice in Iowa, you must answer questions 25 through 30. An attorney in private practice in Iowa includes any active Iowa attorney who resides outside Iowa or maintains a virtual law practice but serves Iowa clients.

25. I am engaged in the private practice of law in Iowa Yes / No

26. I designate the following named active Iowa attorney in good standing, qualified lawyer servicing association, or Iowa law firm that includes Iowa attorneys in good standing, as my representative or representatives under Iowa Court Rule 39.18: • Name of Designated Attorney or Entity: • Address Line 1: • Address Line 2: • Address Line 3: • City: • State: • Zip Code: Zip Plus 4: • Telephone Number:

8 WHAT TO CONSIDER WHEN YOU ARE ASKED TO BE A DESIGNEE

• The difference between a trustee and a successor • What duties you are willing and able to undertake • What you want them to do before/after you decide • Some other stuff

TRUSTEES & SUCCESSORS: 101

TRUSTEE SUCCESSOR • Someone who has no interest • Someone who stands in the in the trust property and shoes of the predecessor cannot benefit by the exercise of the powers • Can take cases and clients if they agree • Prohibited from taking any of the cases or clients • Can hire staff, purchase firm assets, wind up firm • Cannot be involved in firm business (staff, operations, etc) • Best option for expanding or • Best option for “in and out” increasing your own practice in area

9 COMPARISON OF DUTIES

TRUSTEE SUCCESSOR

• Contact the three custodians to obtain access to office, • Contact the three custodians to obtain access to active client list, files and passwords office, active client list, files and passwords • Notify the planning attorney’s malpractice insurer • Notify the planning attorney’s malpractice insurer • Notify the court(s) & tribunals where the planning • Notify the court(s) & tribunals where the planning attorney practiced attorney practiced • Notify the active clients • Notify the active clients • Administer trust account • Administer trust account • Determine if other actions are necessary to protect the clients’ interests • Return files & funds to clients • Return files & funds to clients that don’t hire you

HOW YOU GET PAID

TRUSTEE SUCCESSOR • Adoration of your peers • Adoration of your peers • Your trustee fees are a • You get the clients and claim against the estate cases (if they agree) • CSC will consider the • Your successor fees can be claim if the estate has the subject of a contract insufficient funds • No CSC payment

10 NO NEED TO DECIDE TODAY

• Once you become “activated” you can choose to be a trustee or successor • But you can’t be both • Nor can you be one and then be the other

BEFORE YOU SAY “YES” TO BEING NAMED AS A DESIGNEE

• Ask them to start making an active client list • Ask them to start an inventory any original documents • Ask them to start purging old files • Ask them to make a “WID” (“When I Die”) plan for you • Their malpractice insurer info • Where their trust account(s) are located • Any other things you’d need to know • Ask them to draft a written agreement if they want you to wind down the business side of their practice

11 WHAT TO DO AS A PLANNING ATTORNEY BEFORE CHRISTMAS

• Select and get written confirmation of your designated attorney • Make a list of relevant usernames & passwords • Ensure your staff or software can produce an accurate list of current clients, addresses and telephone numbers • Ensure your staff or software can produce an accurate list of deadlines in pending matters • Minimize original client documents (e.g., wills, abstracts) in client files by returning them; consolidate and index the ones you can’t return • Properly purge old files you no longer need to keep • Create a “When I Die” file directory or folder with relevant notes, memos, letters, that you would want to have if YOU were your designated attorney • If you want your designee to wrap up the business side of your practice, draft up a contract

ENDING YOUR^ CAREER

Office of Professional Regulation N. Tré Critelli, Director 515-725-8029 [email protected]