Ahlers, Parrish, Sailer, and Bert's Applications To Judicial Nominating Commissions

STATE JUDICIAL NOMINATION COMMISSION
AND OFFICE OF THE GOVERNOR

JOINT JUDICIAL APPLICATION
Please complete this application by placing your responses in normal type, immediately beneath
each request for information. Requested documents should be attached at the end of the
application or in separate PDF files, clearly identifying the numbered request to which each
document is responsive. Completed applications are public records. If you cannot fully respond
to a question without disclosing information that is confidential under state or federal law,
please submit that portion of your answer separately, along with your legal basis for considering
the information confidential. Do not submit opinions or other writing samples containing
confidential information unless you are able to appropriately redact the document to avoid
disclosing the identity of the parties or other confidential information.
PERSONAL INFORMATION
1. State your full name.
Paul Brian Ahlers
2. State your current occupation or title. (Lawyers: identify name of firm,

organization, or government agency; judicial officers: identify title and judicial
election district.)
District Associate Judge, District 2B (Webster City)
3. State your date of birth (to determine statutory eligibility).
50 years old)
4. State your current city and county of residence.
Fort Dodge, Webster County, Iowa
1
(Adopted June 17, 2019)
PROFESSIONAL AND EDUCATIONAL HISTORY
5. List in reverse chronological order each college and law school you attended
including the dates of attendance, the degree awarded, and your reason for leaving
each school if no degree from that institution was awarded.
Colleges and Law Schools Dates Degrees Date of

Attended Degree
University of Iowa College of Law 8/91 to 5/94 Juris Doctor 5/1994
Iowa State University 8/87 to 5/91 Bachelor of Business 5/1991
Administration (Finance)
6. Describe in reverse chronological order all of your work experience since

graduating from college, including:
a. Your position, dates (beginning and end) of your employment, addresses of
law firms or offices, companies, or governmental agencies with which you
have been connected, and the name of your supervisor or a knowledgeable
colleague if possible.
b. Your periods of military service, if any, including active duty, reserves or
other status. Give the date, branch of service, your rank or rating, and
present status or discharge status.
Dates Description of Work Experience

3/11 to Present District Associate Judge, District 2B
2300 Superior Street, Webster City, IA 50595
Supervisor: Chief Judge Kurt Wilke
2/08 to 3/11 Travelers Insurance Companies
385 Washington Street, St. Paul, Minnesota 55102
Position: Claim attorney in the bond and financial product claim group
Supervisor: Theresa Gooley
7/01 to 2/08 Bottorff & Ahlers
913 Seneca Street, Webster City, Iowa 50595
Position: Attorney
Knowledgeable Colleague: Don Bottorff
1/96 to 6/01 Johnson, Erb, Bice, Kramer, Good & Mulholland, P.C.
809 Central Avenue, Suite 600, Fort Dodge, IA 50501
Position: Attorney
Supervisor: Neven Mulholland
2
6/93 to 8/93 Cornwall, Avery, Bjornstad & Scott
and 407 Grand Avenue, P.O. Box 999, Spencer, Iowa 51301
7/94 to 12/95 Positions: Law Clerk (6/93 to 8/93) and Attorney (7/94 to 12/95)
Supervisor: Stephen F. Avery
6/91 to 5/93 Tom Riley Law Firm, P.C.
and 1210 Highway 6 West, Iowa City, IA 52246
8/93 to 5/94 Position: Law Clerk
Supervisor: Martin A. Diaz
7. List the dates you were admitted to the bar of any state and any lapses or
terminations of membership. Please explain the reason for any lapse or termination
of membership.
Admitted to the Iowa bar: 6/1994 to present (no lapses or terminations)

Admitted to the Minnesota bar: 2/2010 to present (no lapses or terminations, but
currently have a voluntarily inactive license due to not having a need for the license)
8. Describe the general character of your legal experience, dividing it into periods with
dates if its character has changed over the years, including:
a. A description of your typical clients and the areas of the law in which you
have focused, including the approximate percentage of time spent in each
area of practice.
b. The approximate percentage of your practice that has been in areas other
than appearance before courts or other tribunals and a description of the
nature of that practice.
c. The approximate percentage of your practice that involved litigation in court
or other tribunals.
d. The approximate percentage of your litigation that was: Administrative,
Civil, and Criminal.
e. The approximate number of cases or contested matters you tried (rather
than settled) in the last 10 years, indicating whether you were sole counsel,
chief counsel, or associate counsel, and whether the matter was tried to a
jury or directly to the court or other tribunal. If desired, you may also
provide separate data for experience beyond the last 10 years.
f. The approximate number of appeals in which you participated within the
last 10 years, indicating whether you were sole counsel, chief counsel, or
associate counsel. If desired, you may also provide separate data for
experience beyond the last 10 years.
3
8(a)
Dates Description of Law Practice

2/08 to 3/11 Travelers Insurance Companies
St. Paul, Minnesota
My work did not technically involve practicing law, but did call for me to
utilize my legal training and experience extensively. As claims counsel in
the bond and financial product claim group, I handled and adjusted
complex bond, errors and omissions, class action, and securities claims
involving banks, investment companies, insurance companies, and other
private and public companies on a nationwide and international basis. I
did not have clients, as I did not practice law, but typical insureds
included community banks, large banks, investment companies, insurance
companies, and other private and public companies.
7/01 to 2/08 Bottorff & Ahlers
Webster City, Iowa
I practiced primarily in civil and criminal litigation at the trial and
appellate levels, including experience in jury and non-jury trials in various
practice areas. I had experience in civil litigation, criminal, family law,
mortgage foreclosure, personal injury, employment, banking, and real
estate. Typical clients included parties in divorce actions, parties charged
with crimes, personal injury plaintiffs, banks, employees, parties in real
estate transactions, and other miscellaneous parties involved in litigation.
1/96 to 6/01 Johnson, Erb, Bice, Kramer, Good & Mulholland, P.C.
Fort Dodge, Iowa
practice areas. I had experience in personal injury (plaintiff and insurance
defense), employment, criminal, commercial, banking, real estate, and
family law. Typical clients included parties in divorce actions, parties
charged with crimes, personal injury plaintiffs, personal injury
defendants, banks, employers, insurance companies, and other
miscellaneous parties involved in litigation.
7/94 to 12/95 Cornwall, Avery, Bjornstad & Scott
Spencer, Iowa
practice areas. I had experience in personal injury (plaintiff and insurance
defense), employment, banking, criminal, and family law. Typical clients
included parties in divorce actions, parties charged with crimes, personal
injury plaintiffs, personal injury defendants, banks, employers, insurance
companies, and other miscellaneous parties involved in litigation.
4
8(b)-(d)
During the course of my approximately 14 years of experience practicing law before
transitioning to Travelers Insurance Companies and then becoming a District Associate
Judge, I estimate that my appearances before various tribunals can be broken down as
follows:
Type of Court or Tribunal % of
appearances
Federal courts < 1%
State courts ~ 99%
Administrative agencies < 1%
Other tribunals < 1%
During that same period of approximately 14 years, I estimate that my time can be broken
down into practice areas as follows:
Types of Cases % of time
Administrative < 1%
Civil (Non-Family Law) ~20%
Criminal ~30%
Family Law & Divorce ~50%
Juvenile < 1%
Probate & Real Estate < 1%
During my career of over 8 years as a District Associate Judge, I estimate that my time
spent working on various areas of law can be broken down as follows:
Types of Cases % of time
Criminal ~60%
Juvenile ~30%
Civil ~10%
8(e)-(f)
Due to my career with Travelers Insurance Companies and as a District Associate Judge,
I have not practiced law in the past 10 years, so have no approximations to give for that
time period in response to the question. During my nearly 14 years of experience
practicing law before transitioning to Travelers, I handled a variety of jury and non-jury
trials and the appeals that come from such trial work. Nearly all of my experience was as
the only attorney on my cases, even early in my career, as I was fortunate enough to work
5
for attorneys that saw the value of letting young attorneys learn by doing and had enough
confidence in my abilities to give me that freedom.
9. Describe your pro bono work over at least the past 10 years, including:
a. Approximate number of pro bono cases you’ve handled.
b. Average number of hours of pro bono service per year.
c. Types of pro bono cases.
Due to the fact that I have not practiced law for the past 10 years and am prohibited from
practicing law since becoming a judge over 8 years ago, I have not had the opportunity to
do pro bono work during that period of time. When I was practicing law, I regularly
worked on a variety of matters for the Volunteer Lawyers Project.
10. If you have ever held judicial office or served in a quasi-judicial position:
a. Describe the details, including the title of the position, the courts or other
tribunals involved, the method of selection, the periods of service, and a
description of the jurisdiction of each of court or tribunal.
I am currently serving as a District Associate Judge for the State of Iowa in District 2B. I
preside in Hamilton (Webster City), Hardin (Eldora), and Wright (Clarion) counties, as
well as occasionally covering conflict cases in other counties in District 2B. I have
jurisdiction over misdemeanor and class D felony criminal cases, juvenile cases, and civil
actions where the amount in controversy is $10,000.00 or less.
I was appointed to this position in March 2011 and have served continuously in
that position through the present. The selection method consisted of each applicant
submitting an application to a county magistrate appointing commission consisting of one
judge, two lawyers, and three non-lawyers. In my case, since the appointment covered
three counties, there were three county magistrate appointing commissions, so the
commission interviewing the applicants consisted of three judges, six lawyers, and nine
non-lawyers. The 18-person commission chose three of the applicants as the nominees.
Those three nominees then interviewed with the 11 District Court Judges from District
2B and that panel of judges appointed me from the pool of nominees.
b. List any cases in which your decision was reversed by a court or other
reviewing entity. For each case, include a citation for your reversed opinion
and the reviewing entity’s or court’s opinion and attach a copy of each
opinion.
Of the several thousand total sentencing, suppression, termination of parental rights, and
other rulings I have issued over the years, I am aware of appeals being filed in 55 of those
cases with five of those cases resulting in a reversal, in whole or in part. Following is a
table of those 5 cases in chronological order:
6
Case Name County S.Ct. Decision Resolution
Case # Date
1 State v. Thompson Hardin 11-2081 10/3/12 Sentence Vacated; Remanded
(Ct of A) for Resentencing
2 State v. Dunn Hamilton 12-0417 12/12/12 Sentence Vacated; Remanded
(Ct of A) for Resentencing
3 In re BM Wright 13-1704 12/18/13 Termination of Parental Rights;
(Ct. of A) Reversed & Remanded
4 State v. Vrba Wright 14-0894 10/14/15 Conviction Affirmed; Sentence
(Ct of A) Partially Vacated; Remanded
for Resentencing
5 State v. Ites Hardin 16-0524 9/20/16 Sentence Vacated; Remanded
(S.Ct.) for Resentencing
For each of these cases, there was no published opinion, so there is no meaningful
citation to provide. Therefore, I have attached the appellate ruling or order for each case
(labeled as “Ahlers – Question 10(b)” followed by the number that corresponds to the
number of the case in the table). With regard to the one juvenile case (case number 3 in
the table), I have also attached my ruling (redacted for confidentiality). With regard to
three of the cases that involved sentencing (case numbers 2, 4, and 5 in the table), I have
not attached a copy of my ruling (i.e., the sentencing order) because I do not believe the
sentencing order would provide any meaningful information as it relates to the appeal.
The issues on appeal in those three cases involve statements made during the sentencing
hearings or specific provisions of the sentencing orders that are spelled out in detail in the
appellate ruling, so I did not feel that the sentencing orders themselves would provide
useful information. However, if any commission members would like a copy of the
sentencing orders, I would be happy to provide them upon request. With regard to the
remaining criminal case that involved sentencing (case number 1 in the table), since that
case involved a written order I issued regarding reconsideration, I have attached a copy of
my sentencing order and my order on the defendant’s request for reconsideration.
c. List any case in which you wrote a significant opinion on federal or state
constitutional issues. For each case, include a citation for your opinion and
any reviewing entity’s or court’s opinion and attach a copy of each opinion.
I have issued numerous rulings over the years that involve federal or state constitutional
issues, primarily in the area of suppression rulings in criminal cases. I have no effective
way of creating a list of all such cases, as I have not kept a record of all suppression
rulings I have issued. In an effort to provide a fair sampling of those rulings, I have
gathered 12 suppression rulings covering a variety of constitutional issues and that
generally cover the entire span of my years on the bench. For each case, I have attached
a copy of my ruling (labeled “Ahlers – Question 10(c)” followed by a number
corresponding to the number of the case in the following table along with the defendant’s
7
last name). There are no citations to any appellate opinions on any of these rulings, as
there were no appeals in any of these cases. Following is a list of those rulings:
County Case Number Case Name Date

1 Hardin OWCR013365 State v. Holmes 5/27/2011
2 Wright SRCR010256 State v. M. Johnson 7/13/2012
3 Wright SRCR010279 State v. R. Johnson 7/27/2012
4 Hardin OWCR307375 State v. Wagoner 2/14/2013
5 Hamilton OWCR033859 State v. Haman 10/16/2014
6 Hamilton AGCR338415 State v. Adams 12/8/2014
7 Wright SRCR033826 State v. Merlo-Morales 10/8/2015
8 Hardin OWCR309244 State v. Clarke 1/25/2016
9 Wright FECR033879 State v. Maasdam 3/10/2016
10 Wright OWCR034176 State v. Pilcher 7/7/2016
11 Hardin AGCR309792 State v. Britcher 7/8/2016
12 Hamilton OWCR340499 State v. Gamble 4/25/2018
11. If you have been subject to the reporting requirements of Court Rule 22.10:
a. State the number of times you have failed to file timely rule 22.10 reports.
I have never had a matter under advisement long enough to require it to be

disclosed on a Rule 22.10 report. As part of the learning curve of becoming a
judge, when I first started in March 2011, I misunderstood the obligation to file a
Rule 22.10 report when there were no matters to disclose, so I neglected to timely
file such reports for the first two or three months that I was on the bench. Once I
became aware of the obligation to submit a monthly report even when there were
no matters to report, I immediately filed reports for the months I had missed and
have submitted timely reports every month thereafter.
b. State the number of matters, along with an explanation of the delay, that you
have taken under advisement for longer than:
i. 120 days.
Zero.
ii. 180 days.
Zero.
iii. 240 days.
Zero.
8
iv. One year.
Zero.
12. Describe at least three of the most significant legal matters in which you have
participated as an attorney or presided over as a judge or other impartial decision
maker. If they were litigated matters, give the citation if available. For each matter
please state the following:
a. Title of the case and venue,
b. A brief summary of the substance of each matter,
c. A succinct statement of what you believe to be the significance of it,
d. The name of the party you represented, if applicable,
e. The nature of your participation in the case,
f. Dates of your involvement,
g. The outcome of the case,
h. Name(s) and address(es) [city, state] of co-counsel (if any),
i. Name(s) of counsel for opposing parties in the case, and
j. Name of the judge before whom you tried the case, if applicable.
Significant legal matter #1:

a. In the Interest of C.R.M., Hamilton County, Iowa
b. I had issued a ruling terminating the parental rights of the parents of a child after it was
discovered that the mother was manufacturing methamphetamine in the home where the mother
lived with the child. It was also discovered that the child was being kept in a box or cage as a
form of punishment. As part of the process of terminating parental rights, I appointed the DHS
as the guardian and custodian of the child with the goal of finding an adoptive home. The
mother appealed the ruling terminating her parental rights. My ruling terminating the mother’s
rights was affirmed on appeal. After the DHS found an adoptive home for the child, one of the
mother’s relatives intervened in the proceedings and filed a request to have the DHS removed as
guardian of the child and asking that the relative be appointed as guardian so that the relative
could become the adoptive parent. There was considerable evidence suggesting that the relative
would not be a good placement option. The evidence also suggested that the relative only came
forward as part of the effort of the mother’s family to try to avoid the consequences of the
termination ruling by trying to have a relative obtain guardianship of the child so that the
mother, who was by then in federal prison, would continue to have access to the child.
c. I believe this case had legal significance because there did not appear to be clear guidance
from the statute or case law interpreting the statute as to what standards to apply in a dispute
over who should serve as guardian for a child after termination of parental rights. Presumably
due to that lack of clarity, it had started to become a common trend for parties, who were in
“competition” with other parties to be selected by the DHS as adoptive parents and had not been
chosen by the DHS, to start these types of actions seeking to remove the DHS as guardian. I had
the task of trying to determine the appropriate standard to apply in deciding whether to remove
the DHS. I issued a ruling setting forth my interpretation of what the standards are under the
applicable statute. That ruling was not appealed, so I have not received confirmation that my
interpretation is correct. However, given the litigious nature of the parties in the case, the lack
9
of an appeal is some indication that my interpretation was accurate, or at least accepted. The
case has added significance from the standpoint that it has been reported to me that other judges
in my district have used the legal analysis in my ruling as a template in drafting their own orders
in similar cases.
d. I did not represent any parties, as I was the presiding judge.
e. I was the presiding judge.
f. I was involved throughout the entire case, which started in March 2013 and ended in May
2014.
g. I ruled that the relevant inquiry was not whether I agreed or disagreed with the DHS’s
decision in terms of placing the child with a foster family that desired to adopt the child rather
than with the relative who challenged the DHS’s decision. The relevant inquiry was whether the
relative that sought to have the DHS removed as guardian had met the relative’s burden to
establish that the DHS failed to act in the child’s best interest by unreasonably or irresponsibly
failing to discharge the DHS’s duties in finding a suitable adoptive home for the child. I ruled
that the relative had not met that burden.
h. I had no co-counsel, as I was not an attorney in the case.
i. The State was represented by Assistant County Attorney Jon Beaty, the child was represented
by Justin Deppe, and the relative seeking removal of the DHS was represented by Dani
Eisentrager.
j. I was the presiding judge.

a. State of Iowa v. J. B. Meyers, Wright County, Iowa.
b. It was a criminal case in which Defendant was charged with four counts of Indecent Contact
with a Child and one count of Dissemination or Exhibition of Obscene Material to a Minor.
c. The case was not significant in the sense that it was the subject of media coverage or involved
an effort to change the law, but it was significant from the standpoint that Defendant was a
department manager in a business frequented by many people in a small town. Defendant was
charged with crimes that, if convicted, would have effectively ended his career. The case
involved significant evidentiary issues that required a balance to be struck between protecting
Defendant’s right to a fair trial and the alleged victim’s privacy rights. I believe a fair balance
between those competing interests was struck, giving both sides a fair trial.
d. I did not represent any parties, as I was the presiding judge.
f. I was involved throughout the entire case, which started in December 2012 and ended in April
2013.
g. Defendant was found not guilty on all five charges.
i. The State was represented by County Attorney Eric Simonson and Assistant County Attorney
Jonathan Holscher. Defendant was represented by John Flynn and John Jordan.
10
a. I do not recall the title of the case, but it was in Hardin County, Iowa.
b. The case was a small claims action in which the Plaintiff sued for replevin, trying to recover
possession of a cat from the Plaintiff’s neighbors.
c. Given the fact that it was a small claims action fighting over possession of a cat with no
monetary value, the case has no “big picture” significance. What makes it significant to me is
that I presided over the case early in my career on the bench. Of course I knew that, as a judge, I
was required to set aside any personal likes or dislikes for the parties and analyze the case on the
facts in light of the legal principles at issue. Although I knew that, this was the first case where
that concept really struck me. It struck me so intensely because the defendants were really nice,
pleasant, likeable people. The plaintiff, on the other hand, was a detestable person. She was
loud, belligerent, argumentative, and aggressive, and she had done almost everything in her
power to make a bad situation with her neighbors worse. In short, she was just a disagreeable
and unlikeable person. However, she was also legally right, which left me no choice but to rule
in her favor granting her possession of the cat. While there was no hesitation on my part in
ruling that way, as the law required that outcome, it really struck me how unpleasant it is to rule
in favor of a party that you genuinely do not like. That case has always stuck with me as a
reminder to always continue to set aside those types of feelings and issue a ruling only on the
facts and the law. The fact that the case sticks with me as such an important reminder after this
many years is why that case has significance to me.
d. I did not represent a party, as I was the presiding judge.
f. I was involved throughout the case. I do not recall the dates, but I believe it was sometime in
2011 or 2012.
g. I ruled in favor of the Plaintiff and ordered the return of her cat.
i. There were no attorneys in the case, as the parties represented themselves.
13. Describe how your non-litigation legal experience, if any, would enhance your
ability to serve as a judge.
My primary non-litigation legal experience consists of transactional work (e.g., contract

drafting, probate work, real estate transactional work) I did while in private practice and
the extensive experience I gained at Travelers Insurance Companies. I believe judges
that are well-rounded make the best judges because of the wide spectrum of the types of
cases that come before them. While non-litigation matters do not make up the bulk of the
cases that come before the Court of Appeals, the experience I have in non-litigation
matters adds breadth and depth to the perspective I can bring to the court.
11
With regard to my non-litigation experience while in private practice, it gives me
a knowledge base from which to work if cases come up that involve the contract drafting
process, estate administration, or real estate transactions, as examples. Even though I
have no particular expertise in those areas, the knowledge base I gained will help me to
better understand some of the nuances of cases that directly or indirectly touch on those
types of issues. Perhaps more importantly, that experience helps me have a better
understanding of what I do not know. Knowing what you do not know can be just as
important as knowing what you do you, because if you recognize what you do not know,
you understand the need to get help from others or research the issue more thoroughly.
One of the worst positions to be in is to be so unfamiliar with an area of the law that you
do not recognize what you do not know, which causes you to fail to look deeper into an
issue because you have no idea of the need to do so.
Regarding my time at Travelers Insurance Companies, while I was not actively
engaged in litigation, as a claims adjuster on complex financial institution claims, I was
actively involved behind the scenes of the litigation and helped manage the litigation that
took place surrounding such claims. The experience gave me a wealth of knowledge on
such issues as class action litigation issues, insurance coverage issues, bond claim issues,
lender liability issues, securities litigation issues, etc. While those types of cases do not
come up on a day-to-day basis before the Court of Appeals, I believe my experience in
these areas contributes to my knowledge base, just as my non-litigation experience in
private practice does, and would make me a more well-rounded judge that would increase
my value to the court.
14. If you have ever held public office or have you ever been a candidate for public
office, describe the public office held or sought, the location of the public office, and
the dates of service.
I currently hold the position of District Associate Judge, which is a position I have held in
District 2B since 2011. The only other public offices I have sought have been District
Court and Court of Appeals positions in the State of Iowa.
15. If you are currently an officer, director, partner, sole proprietor, or otherwise
engaged in the management of any business enterprise or nonprofit organization
other than a law practice, provide the following information about your position(s)
and title(s):
a. Name of business / organization.
b. Your title.
c. Your duties.
d. Dates of involvement.
Not applicable.
12
16. List all bar associations and legal- or judicial-related committees or groups of which
you are or have been a member and give the titles and dates of any offices that you
held in those groups.
Description of Group Committees / Offices Dates

Iowa State Bar Association – President 2001-2002
Young Lawyers Division Officer 1999-2002
Executive Council 1997-2003
Long Range Planning Committee 1998-2002
- Chair 2000-2001
Iowa State Bar Association Board of Governors 1999-2002
Ways & Means Committee 2003-2004
Administrative Committee 2001-2002
Iowa State Bar Foundation Board 2004-2008
Continuing Legal Education Committee 2006-2008
Annual Meeting Committee 2003-Present
- Co-Chair 2006-2007
- Chair 2007-2008
American Bar Association – National Conferences Team 2002-2003
Young Lawyers Division
Iowa Board of Law Bar Examination Grader 2004-2006
Examiners
Iowa Trial Lawyers Board of Governors 2002-2003
Association
17. List all other professional, business, fraternal, scholarly, civic, charitable, or other
organizations, other than those listed above, to which you have participated, since
graduation from law school. Provide dates of membership or participation and
indicate any office you held. “Participation” means consistent or repeated
involvement in a given organization, membership, or regular attendance at events
or meetings.
~Dates Organization Nature of Involvement

2002-2008 Corpus Christi Catholic President of Finance Council: 2005-2006
Church, Fort Dodge, Iowa Member of Finance Council: 2002-2006
Foundation Board Member: 2006-2008
Lector: 2005-2007
2005-2007 Fort Dodge Soccer Assn. Soccer coach and/or co-coach
2004-2007 Fort Dodge Baseball Assn. Assistant baseball coach
1996-2008 Rotary Club Member
13
18. If you have held judicial office, list at least three opinions that best reflect your
approach to writing and deciding cases. For each case, include a brief explanation as
to why you selected the opinion and a citation for your opinion and any reviewing
entity’s or court’s opinion. If either opinion is not publicly available (i.e., available
on Westlaw or a public website other than the court’s electronic filing system),
please attach a copy of the opinion.
Ruling #1:
Case Information/Citation: In the Interest of C.R.M., Hamilton County, Iowa
Reason Selected: This case is the same case I identified as a significant legal matter in response
to question number 12, where I described the background of the case. I chose this case as a
reflection on my approach to writing and deciding cases because, in terms of writing, I believe I
did a thorough job of walking through the statutory analysis and reaching a conclusion that I
believe is demanded by the statute and the case law interpreting it. As noted in the ruling, that
was not an easy task given the lack of clarity in the case law. In terms of reflecting my approach
to deciding cases, this ruling illustrates my approach of reaching a decision I believe to be
demanded by the law, even though that meant deciding that I did not have the authority or power
to override the decision of another charged with making the applicable decision. I am
particularly proud of this ruling because it was not appealed, suggesting I may have even
persuaded the losing party, and because I know my ruling has been used as a model by other
judges when facing the same issue. Because the case was not appealed, I have no citation to
provide, but I have attached a copy of my ruling (redacted for confidentiality and labeled as
“Ahlers – Question 18 - #1 (C.R.M.)”).
Ruling #2
Case Information/Citation: State v. Gruening, Hardin County OWCR311095
Reason Selected: I selected this case in terms of writing because, although it involved a fairly
straightforward suppression issue, there was not a lot of applicable case law. I believe my ruling
demonstrates my approach to writing because it shows my analytical approach of making
relevant factual findings, determining the legal principles that apply (even without guiding cases
from Iowa), and determining the appropriate outcome based on those facts and legal principles.
The ruling demonstrates my approach to deciding cases for the same reason, meaning that the
outcome is driven by the applicable facts and law, not the other way around. Because the case
was not appealed, I have no citation to provide, but I have attached a copy of my ruling (labeled
as “Ahlers- Question 18 - #2 (Gruening)”).
Ruling #3
Case Information/Citation: State v. Elmore, Wright County SRCR009919
Reason Selected: I selected this case, in part, because it involved an important issue, but one
that does not come up every day. My ruling involved a dispute over whether restitution was
14
owed following a jury verdict that found the defendant guilty of Assault, but not guilty of
Assault Causing Bodily Injury. I selected this ruling for much the same reason I chose the other
two, which is that it demonstrates my analytical approach to deciding cases and writing rulings.
That approach involves making the relevant factual findings (or, in this case, acknowledging the
factual findings made by the jury) and then engaging in an analysis of the relevant statutory
provisions and the case law interpreting those provisions to reach the required result, regardless
of whether that result is the one personally desired. Because the case was not appealed, I have
no citation to provide, but I have attached a copy of my ruling (labeled as “Ahlers- Question 18 -
#3 (Elmore)”).
19. If you have not held judicial office or served in a quasi-judicial position, provide at
least three writing samples (brief, article, book, etc.) that reflect your work.
Not applicable.
OTHER INFORMATION
20. If any member of the State Judicial Nominating Commission is your spouse, son,
daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, father-in-law,
mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, father,
mother, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half
brother, or half sister, state the Commissioner’s name and his or her familial
relationship with you.
Not applicable.
21. If any member of the State Judicial Nominating Commission is a current law
partner or business partner, state the Commissioner’s name and describe his or her
professional relationship with you.
Not applicable.
22. List the titles, publishers, and dates of books, articles, blog posts, letters to the
editor, editorial pieces, or other published material you have written or edited.
Iowa’s Dramshop Act & the Non-Liability of Convenience Stores, 78 IOWA LAW REVIEW 913 (1993)
AMCO Ins. Co. v. Haht: Iowa’s Definition of Insurance Intent, 79 Iowa Law Review 203 (1993)
I have attached copies of these two articles as writing samples, labeled “Ahlers – Question 22
(Dramshop)” and “Ahlers – Question 22 (Insurance Intent)” respectively.
23. List all speeches, talks, or other public presentations that you have delivered for at
least the last ten years, including the title of the presentation or a brief summary of
the subject matter of the presentation, the group to whom the presentation was
delivered, and the date of the presentation.
15
Subject Matter Location Description of Group Date
College Expenses in Okoboji Iowa State Bar Assn. (Young Lawyers 8/1997
Dissolution of Marriage Division – Summer Seminar)
Proceedings
Iowa Case Law Update Okoboji Iowa State Bar Assn. (Young Lawyers ~8/1998
Division – Summer Seminar)
Iowa Case Law Update Des Moines Iowa State Bar Assn. (Bridge the Gap) 5/1999
Iowa Case Law Update Des Moines Iowa State Bar Assn. (Traveling Seminar) ~10/2001
Iowa Case Law Update Okoboji Multiple bar associations in NW Iowa ~8/2002
Iowa Case Law Update Des Moines Iowa Trial Lawyers Association (Annual ~11/2002
Convention)
Iowa Case Law Update West Des Moines Iowa State Bar Assn. (Traveling Seminar) ~10/2003
Iowa Case Law Update Des Moines Iowa State Bar Assn. (Annual Meeting) 6/2004
Iowa Case Law Update Iowa City Johnson County Bar Association ~11/2004
16
Iowa Case Law Update Des Moines Iowa State Bar Assn. (Annual Meeting) 6/2005
Iowa Case Law Update Des Moines Iowa Trial Lawyers Association (Annual ~11/2005
Convention)
Iowa Case Law Update Ames Story County Bar Association 1/20/06
Iowa Case Law Update Des Moines Iowa State Bar Assn. (Bridge the Gap) 5/5/06
Iowa Case Law Update Okoboji Multiple bar associations in NW Iowa 6/2/06
Iowa Case Law Update Des Moines Iowa Judges Association 6/21/06
Iowa Case Law Update Des Moines Iowa State Bar Assn. (Annual Meeting) 6/21/06
Iowa Case Law Update Okoboji Iowa State Bar Assn. (Young Lawyers 8/18/06
Iowa Case Law Update Davenport Iowa State Bar Assn. (Traveling Seminar) 11/13/06
Iowa Case Law Update Cedar Rapids Iowa State Bar Assn. (Traveling Seminar) 11/14/06
Iowa Case Law Update Des Moines Iowa State Bar Assn. (Traveling Seminar) 11/15/06
Iowa Case Law Update Des Moines Iowa State Bar Assn. (Bridge the Gap) 5/3/07
Iowa Case Law Update Okoboji Iowa State Bar Assn. (Young Lawyers 7/20/07
Iowa Case Law Update West Des Moines Iowa State Bar Assn. (Bridge the Gap) 5/11/12
17
Iowa Case Law Update Coralville Iowa Association for Justice 4/12/19
I have also spoken at numerous continuing legal education seminars on ethics panels and have presented
on insurance issues as well, but I do not recall the dates and locations of the presentations over the years.
18
The “Iowa Case Law Update” listed in the above chart is a presentation I give discussing
the published opinions of the Iowa Supreme Court and the Iowa Court of Appeals.
Giving these presentations involves me reading every published opinion and creating a
written summary of each case that is included in an outline that is distributed to
conference attendees. To give an example of the magnitude of the case law update
project, I have attached as a sample an outline showing one year’s worth of summaries
(labeled “Ahlers – Question 23 (Case Law Update)”).
24. List all the social media applications (e.g., Facebook, Twitter, Snapchat, Instagram,
LinkedIn) that you have used in the past five years and your account name or other
identifying information (excluding passwords) for each account.
None.
25. List any honors, prizes, awards or other forms of recognition which you have
received (including any indication of academic distinction in college or law school)
other than those mentioned in answers to the foregoing questions.
Description of Honor, Prizes, or Award Educational Date Received

Institution
Valedictorian Hartley-Melvin High 5/1987
School
Valedictorian of curriculum and major (cumulative Iowa State 5/1991
grade point average of 4.0 on a 4.0 scale) University
Order of the Coif University of Iowa 5/1994
College of Law
Graduation with High Distinction (7th out of 208) University of Iowa 5/1994
College of Law
American Jurisprudence Award (Top Score in Class)
- Evidence Fall 1992
University of Iowa
- Trusts and Estates Spring 1993
College of Law
- Family Law Spring 1993
- Professional Responsibility (Ethics) Fall 1993
26. Provide the names and telephone numbers of at least five people who would be able
to comment on your qualifications to serve in judicial office. Briefly state the nature
of your relationship with each person.
Name Telephone number Nature of Relationship

Christopher McDonald Supreme Court Justice. Justice McDonald
has been a mentor for me after we came to
19
know each other from speaking at the same
seminars and becoming familiar with each
other’s work over the last several years.
Kurt L. Wilke Chief Judge of my district (2B). Judge Wilke
is familiar with my work as an attorney and a
judge, as I appeared before him many times
while I was in practice and he has been my
supervisor since I became a judge.
Angela Doyle District Court Judge in my district (2B).
Judge Doyle and I had many cases against
each other in private practice over many
years. We were later appointed as District
Associate Judges on the same day. We have
shared advice, insight, forms, and suggestions
since being appointed.
Gina Badding District Court Judge in my district (2B).
Judge Badding is familiar with my work as a
judge because she appeared before me when
she was in practice and we have gotten to
know each other better as we have crossed
paths since she became a judge.
Jim Kersten Mr. Kersten and I have known each other for
many years due to both living in Fort Dodge
and having children in the same class.
Elisabeth Reynoldson District Court Judge in District 5. Judge
Reynoldson and I have known each other and
been friends for over 20 years after meeting
during our involvement in the Young
Lawyers Division of the Iowa State Bar
Association.
Stephen F. Avery Attorney in Spencer, Iowa. I have known Mr.
Avery since I was a young child when my
mother worked at his firm. I later worked in
his firm as a law clerk and attorney.
Tennette Carlson Probation/parole officer for the Iowa
Department of Correctional Services. Ms.
Carlson and I have known each other for
approximately 20 years and she is familiar
with my work both as an attorney and a judge
Susan Ahlers Leman Market President and Senior Trust Officer at
First American Bank. Susan is my former
spouse and is the mother of my children.
Jason Schluttenhofer Sheriff of Wright County (one of the counties
in which I preside). Sheriff Schluttenhofer is
20
familiar with my work as a judge.
Mike Szalat High school teacher and coach at St. Edmond
in Fort Dodge. Mr. Szalat and I became
friends when I used to help Mike coach youth
baseball teams for which our sons played.
Duane Hoffmeyer Chief Judge of District 3. Judge Hoffmeyer
and I have become acquainted over the years
attending the same seminars. He is familiar
with my work on the case law update.
Patrick Grady Chief Judge of District 6. Judge Grady and I
have become acquainted over the years
attending the same seminars. He is familiar
with my work on the case law update.
27. Explain why you are seeking this judicial position.
I believe that an attorney that has the academic background, integrity, attention to detail,
work ethic, thirst for continued learning, organizational skills, knowledge of the law,
research skills, writing talent, interest in the work of a judge, decisiveness, sense of
fairness, and experience that would make the attorney a good judge has the obligation to
the profession, the community, and the citizens of the state to seek available judge
positions. I believe the same is true of sitting judges with respect to judicial openings at a
higher level. If the best-qualified people for the job do not apply, then we are left with
less-qualified people filling these important positions. I believe I possess all of the
above-listed attributes and would like to use those attributes to serve the people of the
State of Iowa in this important position.
28. Explain how your appointment would enhance the court.
I have a strong academic background coupled with solid research and writing skills. That
background and those skills were recognized in law school when I was fortunate enough
to have two articles published in the Iowa Law Review (the articles are attached as
writing samples). Those skills continued to serve me well during the nearly fourteen
years that I practiced law, gaining considerable experience in many areas of civil and
criminal trial work. The experience gained in practice helped me transition into work as
a complex claims handler for Travelers Insurance Companies for three years. During that
time, I gained more valuable experience in the areas of bond claims, financial institution
liability issues, class actions, and insurance coverage issues. I have since been able to put
those talents to good use for over eight years on the bench as a District Associate Judge.
As it relates to the Court of Appeals position, perhaps just as important as my academic
background, research skills, and writing skills is the fact that I actually enjoy the
challenge of research and writing. I am always eager to learn new things, and I love it
when an issue stumps me and I have the opportunity to dig for an answer. The fact that I
relish that challenge is demonstrated by the fact that, as part of my effort to give back to
21
my community and my profession, I have used significant periods of my free over the
past 20 years or more reading published Iowa Supreme Court and Iowa Court of Appeals
decisions and summarizing them in outline form in order to give presentations to lawyers
and judges throughout the state. I have presented those summaries as a case law update
at over 60 continuing legal education seminars over the past 20 years. To read the
opinions is one thing. To read them, summarize them as succinctly as possible, and give
presentations about them has given me a much higher level of familiarity with and
knowledge of those decisions than the average lawyer or judge. I am flattered by the fact
that it is a fairly common occurrence for me to be contacted by lawyers and other judges,
sometimes judges I do not know, asking if I am aware of a case on a particular issue, and
I am pleased when I am able to help them by remembering a case on point, or at least
close enough to being on point that it will help with the requester’s project. As
mentioned in response to a previous question, to give an example of the magnitude of the
case law update project, I have attached as a writing sample just one year’s worth of
summaries. People often assume that I have a law clerk or someone else read the cases
and/or prepare the summaries. That is not the case. Having someone else do the work
would defeat the purpose of why I have undertaken such project in the first place, which
is for the benefit of reading the cases myself and giving them enough consideration to be
able to summarize them and talk about them at seminars. So, how would my
appointment enhance the court? I believe I would enhance the court by bringing a strong
intellect and academic background, solid research and writing skills, tireless work ethic, a
broad base of experience in criminal, civil, juvenile, and family law, genuine interest in
research and writing, and a better-than-average understanding of the case law and its
trends.
29. Provide any additional information that you believe the Commission or the
Governor should know in considering your application.
By way of additional background information, I have two children. My son recently

graduated from the University of Michigan and is currently a working actor, having
recently played a recurring role on a prime time NBC show. He splits his time between
living in New York City and the Los Angeles area. My daughter is a senior at Iowa State
University working on a degree in dietetics. She hopes to become involved with the
dietary side of athletics training. I am extremely proud of both of them.
My primary interests outside the legal profession include reading, hockey, and
history. I collect Pulitzer-prize-winning books to add to my ever-expanding collection.
I also want to address an issue that is not addressed in other questions, as I have
come to find out that it is a concern for some. That issue is the fact that I am a District
Associate Judge and not a District Court Judge. Some have suggested that I am
“skipping a step” by applying for the Court of Appeals before becoming a District Court
Judge. I do not believe that I am “skipping a step” for a variety of reasons and would like
to address those reasons.
First, historically, there have been a number of people nominated by the State
Judicial Nominating Commission and appointed to the Court of Appeals without having
any judicial experience. This suggests, and rightly so, that attorneys in private practice
can accumulate sufficient experience and skills to be viewed as good additions to the
22
Court of Appeals. I wholeheartedly agree with that view. But if one accepts that view,
then logic would dictate that judicial experience on top of the experience from private
practice should be viewed as an additional positive qualification and not a negative of any
kind. In other words, if attorneys are to be favorably considered, then a judge with a
wealth of experience as an attorney in private practice plus the experience that comes
from being a judge should be even more favorably considered even if the judicial
experience is that of “just” a District Associate Judge.
Second, when consideration is given to the types of cases that typically come
before the Court of Appeals, and with no disrespect intended to District Court Judges, a
District Associate Judge frequently has more relevant experience than District Court
Judges with the types of cases that make up the bulk of the workload of the Court of
Appeals. Looking at the list of opinions that come down from the Court of Appeals on
the days those opinions are filed, it appears that juvenile and criminal cases make up the
bulk of the cases, with dissolution of marriage or other family law matters making up the
remainder of that bulk.
Breaking down those three categories of cases (i.e., juvenile, family law (divorce),
and criminal), I believe I actually have more relevant experience as a District Associate
Judge than a typical District Court Judge. As noted in response to a previous question,
my job duties as a District Associate Judge include spending approximately 30% of my
time working on juvenile cases. A typical District Court Judge does not work on juvenile
cases at all, so, in that area, I believe my judicial experience surpasses that of a typical
District Court Judge.
In the area of divorce and family law, of course, a typical District Court Judge
spends a significant part of the judge’s time working on those types of cases. District
Associate Judges do no handle those types of cases. As a result, I cannot argue that my
experience as a District Associate Judge equals that of a typical District Court Judge on
those types of cases. However, I believe I close any perceived gap in the area of
experience with divorce and family law matters by the fact that I spent nearly half of my
time during my 14 years of private practice handling those types of cases. I am well-
versed in that area of the law even though I do not currently preside over those types of
cases.
Finally, with regard to criminal matters, as a District Associate Judge, I have
multiple times as much experience as a typical District Court Judge. As a District
Associate Judge, I estimate that I handle approximately 80 to 85 percent of the indictable
criminal cases in my three counties. Keeping in mind that the rules of criminal procedure
and rules of evidence that apply to the felony cases handled by the District Court Judges
are the same rules of criminal procedure and rules of evidence that apply to the felony
and indictable misdemeanor cases that I handle, this means that I have 4 to 5 times more
experience in criminal cases than a typical District Court Judge just in terms of sheer
volume of cases. Additionally, in terms of actual contested matters, I believe that
disparity in experience is even greater than the disparity measured by sheer number of
cases. Due to the fact that the stakes are frequently lower in cases before a District
Associate Judge, there is a tendency for there to be more contested suppression matters,
more contested evidentiary matters, and more trials, because the parties believe they can
afford the risk of contesting their issues. Since the stakes are typically so much higher in
cases presided over by District Court Judges, there is more of a tendency for both sides to
23
avoid risk by resolving those types of issues without them being decided by a judge. For
this reason, besides the disparity in terms of sheer volume of cases, the disparity is
slanted even more heavily to District Associate Judges when consideration is given to
experience on actual contested matters. Many of the appellate decisions that come down
addressing various evidentiary and suppression issues come from cases involving District
Associate Judge rulings because of this reality.
For all of the above-stated reasons, it is my hope that my experience of over eight
and one-half years as a District Associate Judge will be viewed as a positive aspect of my
candidacy and not as any type of shortcoming or obstacle.
24
IN THE COURT OF APPEALS OF IOWA
No. 2-717 / 11-2081

Filed October 3, 2012
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CAMILLA RENEE THOMPSON,

Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Hardin County, Paul B. Ahlers,
Judge.
Camilla Renee Thompson appeals from her sentence following her
conviction of operating while intoxicated, first offense. SENTENCE VACATED;
REMANDED FOR RESENTENCING.
Robert W. Thompson of Thompson Law Office, Reinbeck, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant
Attorney General, and Randall J. Tilton, County Attorney, for appellee.
Considered by Eisenhauer, C.J., and Doyle and Tabor, JJ.

2
TABOR, J.
Camilla Renee Thompson entered a plea of guilty to operating while
intoxicated (OWI), first offense. Although she was eligible for a deferred
judgment, the district court denied her request and sentenced her to the statutory
minimum sentence. On appeal, she contends the court abused its discretion by
relying on her failure to timely complete a substance abuse evaluation.
Because the State provides no authority for the court to order Thompson
to complete a substance abuse evaluation before she was convicted, we find the
court erred in citing her “repeated failure to obtain a substance abuse evaluation”
as grounds for denying her request for a deferred judgment. Accordingly, we
vacate her sentence and remand for resentencing.
I. Background Facts and Proceedings.
On June 3, 2011, a deputy sheriff stopped Thompson for having expired
license plate tags. The deputy suspected she was intoxicated and asked her to
complete field sobriety tests and submit to a preliminary breath test (PBT).
Thompson exhibited several clues of intoxication during the field sobriety tests
and the PBT indicated her blood alcohol concentration (BAC) was over the legal
limit of .08. She registered a BAC of .089 on the DataMaster test. After making
an initial appearance, she was released from custody on her own recognizance.
Obtaining a substance abuse evaluation was not ordered as a condition of her
release.
On July 6, 2011, the State filed a trial information charging Thompson with
first-offense OWI, in violation of Iowa Code sections 321J.2(1)(a), (b), and

3
321J.2(2)(a) (2011). She filed a written arraignment on July 14, 2011, waiving
her right to a speedy trial and pleading not guilty.
The court signed a July 19, 2011 order setting a pretrial conference; the
order stated in bold type: “If Defendant has not already done so, Defendant shall
obtain a substance abuse evaluation and file the report setting forth the results of
the evaluation with the Clerk of Court at or before the hearing time set for the
Pretrial Conference.” The court set the pretrial conference for September 22,
2011.
At the pretrial conference, the parties advised the court they had reached
a plea agreement wherein Thompson would plead guilty to the crime as charged
and the State would dismiss a companion simple misdemeanor charge. The
State would recommend Thompson serve forty-eight hours in jail and pay the
minimum fine, but agreed it would not resist Thompson’s request for a deferred
judgment. On September 26, 2011, the court entered its order setting the plea
hearing for October 18, 2011. The court ordered Thompson to obtain a
substance abuse evaluation and file the results with the clerk of court at or before
the plea hearing. The order further stated, “Failure to file such a report in a
timely manner may be treated as contempt of court and/or be considered by the
Court in terms of the sentence to be imposed.”
On October 11, 2011, Thompson filed a written guilty plea, which
memorialized the terms of the plea agreement. She waived her right to be
present at the plea hearing and at sentencing. In an October 18, 2011 order, the
4
district court accepted Thompson’s guilty plea. A sentencing hearing was
scheduled for November 1, 2011. The order also stated:
Defendant shall obtain a substance abuse evaluation

and file the written results with the Clerk of Court before or at
the time of the Sentencing Hearing. Failure to obtain and file a
timely substance abuse evaluation may be treated as
contempt of court and/or may be considered by the Court as a
factor in sentencing on the charge(s) to which Defendant has
entered a guilty plea. The court notes that the Defendant has still
not submitted a written substance abuse evaluation. Such
evaluation was ordered to be filed by the pretrial conference date of
September 22, 2011, and was again ordered to file such a report by
the time of the plea hearing on today’s date. Such past failure to
file a timely substance abuse evaluation may be treated as
contempt of Court and/or be considered by the Court in terms of the
sentence to be imposed. Defendant’s future failure to have the
substance abuse evaluation on file by the time of the sentencing
hearing will be further treated as additional contempt of Court and
taken into consideration in terms of the sentence.
On November 1, 2011, Thompson requested her sentencing hearing be
continued. The reason listed for the continuance was that she “was unable to
complete her substance abuse evaluation.”
The district court entered its judgment entry and sentencing order on
November 14, 2011. The court denied Thompson’s request for a deferred
judgment, stating a deferred judgment was not appropriate under the
circumstances: “Among other factors, the Court does not believe a deferred
judgment is appropriate in light of Defendant’s failure to diligently take
responsibility for her actions in this case by repeatedly failing to procure a
substance abuse evaluation report in a timely manner.” The court sentenced
Thompson to two days in jail and a $1250 fine.

5
On November 22, 2011, Thompson requested the court reconsider its
sentence and grant her a deferred judgment. She asserted she had filed only
one motion to continue her sentencing hearing due to her inability to obtain a
substance abuse evaluation. She alleged she was being disqualified for a
deferred judgment because of her “poverty status”—stating she could not afford
to the pay for the evaluation—and that the court abused its discretion in failing to
ask why she had failed to complete the evaluation.
The district court entered its order denying Thompson’s application to
reconsider on November 28, 2011. The order states in part:
The Court acknowledges that Defendant’s failure to procure a

substance abuse evaluation without any excuse given (prior to
seeing the sentencing order) was one of the factors considered.
However, contrary to Defendant’s assumption, it was not because
Defendant was poor. The Court, in determining whether a deferred
judgment is appropriate, takes into account a defendant’s apparent
contrition, the seriousness with which a defendant takes the
charge, and a defendant’s level of taking responsibility for the
defendant’s conduct by, for example, getting a substance abuse
evaluation done in a timely manner, doing things without being told
(e.g., completing the drinking driver’s school or starting treatment,
when recommended, before being ordered to do so), showing up to
hearings on time, and otherwise showing that the defendant has
learned the defendant’s lesson from the experience.
The court continued to explain that Thompson “did nothing prior to being
ordered to do so.” The court continued:
She was repeatedly reminded of her obligation to get an evaluation,

repeatedly warned of the fact that her failure to get the evaluation
would be taken into account in sentencing, and repeatedly given
additional chances to fulfill her obligations. She neither fulfilled her
obligations nor requested relief from them. The Court took this lack
of responsibility into account in deciding to not grant the deferred
judgment and impose the statutory minimum penalty.
6
The sentencing court also pointed to the fact Thompson was twenty-six
years old at the time of the offense, stating: “The Court also took the other
circumstances of the case into account, including the fact that Defendant is of an
age where she should be expected not to commit such a crime, meaning this is
not a case that can be brushed aside as a ‘youthful mistake.’” The court then
imposed the statutory minimum penalties.
Thompson appeals the sentence, contending the court abused its
discretion in denying her a deferred judgment. She argues the court lacked
authority to order her to obtain a substance abuse evaluation until it accepted her
guilty plea on October 18, 2011. Thompson alleges the court placed an undue
financial burden on her by requiring her to pay the cost of that evaluation within
thirty days or be considered in violation of a court order. She also argues the
court improperly based its denial of the deferred judgment on her repeated failure
to obtain a substance abuse evaluation.
II. Scope and Standard of Review.
We apply two different standards of review for challenges to a sentence.
See State v. Valin, 724 N.W.2d 440, 443-44 (Iowa 2006). Where a defendant
challenges the legality of a sentence, our review is for correction of errors at law.
State v. Shearon, 660 N.W.2d 52, 57 (Iowa 2003). And where a defendant
challenges a sentence that falls within the statutory limits, as is the case here,
our review is for an abuse of discretion. State v. Cooley, 587 N.W.2d 752, 754
(Iowa 1998). An abuse of discretion occurs when the court’s sentencing decision
7
was “exercised on grounds or for reasons that were clearly untenable or
unreasonable.” State v. Bentley, 757 N.W.2d 257, 262 (Iowa 2008).
In general, an abuse of discretion and the consideration of improper
factors stand as separate issues when we review a sentence imposed by the
district court. State v. Grandberry, 619 N.W.2d 399, 401 n.1 (Iowa 2000). If a
court uses an improper consideration when sentencing a defendant,
resentencing is required, even if the improper factor is deemed a “secondary
consideration.” Id. at 401.
III. Analysis.
Thompson was eligible under Iowa Code section 321J.2(3)(b) (2011) to
receive a deferred judgment. She contends the district court erred in denying her
request for that sentencing option based on its observation that she repeatedly
failed to obtain a substance abuse evaluation.
Iowa Code section 321J.2(7)(a) states: “All persons convicted of an
offense under subsection 2 shall be ordered, at the person’s expense, to
undergo, prior to sentencing, a substance abuse evaluation.” The statute goes
on to say the court shall order the convicted person to follow the
recommendations proposed in the substance abuse evaluation as provided in
section 321J.3.
In this case, the district court ordered Thompson to obtain a substance
abuse evaluation first in the record of arraignment and again in the order setting
8
a plea hearing.1 Both of these orders preceded Thompson’s conviction for OWI.
Thompson contends on appeal the court did not have authority to order her to
undergo a substance abuse evaluation before her conviction.
It is true Thompson did not object to the court’s orders that she undergo a
substance abuse evaluation before entering her plea of guilty. But it was not until
the court’s sentencing order issued on November 15, 2011, that her delay in
obtaining an evaluation was used to her detriment. When defendants are “on the
threshold of being sentenced,” we do not require them to question the district
court’s rationale for choosing a certain sentencing option or waive the right to
assign the error on appeal. See Cooley, 587 N.W.2d at 754. The State
acknowledges we can consider Thompson’s claim on appeal.
We find no statute or case law granting a district court authority to order a
defendant charged with, but not yet convicted of, OWI to undergo a substance
abuse evaluation. In its briefing, the State addresses the court’s authority under
section 321J.2(7)(a) to order an evaluation “prior to sentencing” but does not
offer a statutory basis for the court’s mandate that Thompson obtain an
evaluation prior to her conviction.
We recognize a substance abuse evaluation may be ordered as a
condition of pretrial release in an OWI prosecution. See State v. Ludley, 465
N.W.2d 912, 913 (Iowa Ct. App. 1990). But the orders directing Thompson to
obtain a substance abuse evaluation before the pretrial conference and before
1
It appears to us that the directive to obtain a substance abuse evaluation before
conviction is boilerplate language in form orders that do not cite the authority for such a
requirement.
9
the plea hearing were not framed as conditions of her release. She was released
on her own recognizance on June 3, 2011.
In denying Thompson’s request for a deferred judgment, the district court
focused on her failure to complete a substance abuse evaluation for nearly four
months after first being ordered to do so following her arraignment. Thompson
argues that because the court lacked authority to order her to undergo a
substance abuse evaluation, before accepting her plea (which occurred only two
weeks before the sentencing hearing was scheduled), it was impermissible for
the court to rely on her delay in obtaining an evaluation in declining to grant a
deferred judgment. We agree.
The sentencing court erred in faulting Thompson for not undergoing a
substance evaluation at a point in time when she could have no valid
requirement to do so.2 By the time of the sentencing hearing, Thompson had
obtained a substance abuse evaluation and the court properly ordered her to
follow any recommendations for treatment or counseling made by the evaluator.
Because the court based its denial of the deferred judgment, in part, on an
impermissible factor, we vacate Thompson’s sentence and remand to the district
court for resentencing. See State v. Laffey, 600 N.W.2d 57, 62 (Iowa 1999)
(noting that sentencing court’s consideration of other, permissible factors does
not overcome reliance on impermissible consideration).
SENTENCE VACATED; REMANDED FOR RESENTENCING.
2
We do not address the question whether Thompson could have been held in contempt
of court for not obtaining an evaluation by the deadlines set in the earlier court orders.
See generally Opat v. Ludeking, 666 N.W.2d 597, 606 (Iowa 2003) (discussing the
difference between void and voidable orders).
No. 2-847 / 12-0417

Filed December 12, 2012
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ARIC GAIL DUNN,

________________________________________________________________
Appeal from the Iowa District Court for Hamilton County, Paul B. Ahlers,
District Associate Judge.
Aric Gail Dunn appeals from the district court sentencing determination.
SENTENCE VACATED AND REMANDED FOR RESENTENCING.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney
General, Patrick Chambers, County Attorney, and Adria Kester, Assistant County
Attorney, for appellee.
Considered by Eisenhauer, C.J., and Doyle and Tabor, JJ.

2
TABOR, J.
Police pulled over Aric Gail Dunn for speeding and driving off without
paying for gas, and found methamphetamine manufacturing equipment
containing ephedrine residue in his car trunk. The State charged Dunn with
possession of methamphetamine precursor, a class “D” felony, as well as four
misdemeanors. In exchange for pleading guilty to the possession charge, the
State dismissed the misdemeanor charges and recommended a deferred
judgment. The district court denied Dunn’s request for a deferred judgment and
imposed a suspended sentence of not less than five years imprisonment and
probation. Dunn challenges the district court’s references to his unemployment
and receipt of public assistance as impermissible factors in its sentencing
determination.
Because Iowa law allows courts to consider a defendant’s employment
status as a factor in determining whether to grant a deferred judgment, we find
the court did not abuse its discretion when it contemplated Dunn’s job history.
But because the Fourteenth Amendment protects against discrimination due to
economic status, we find the trial court relied upon an impermissible factor when
it considered that Dunn received food stamps as part of its sentencing rationale.
We vacate Dunn’s sentence and remand for resentencing.
I. Background Facts and Proceedings
A little before midnight on October 24, 2011, Dunn filled his gas tank at the
Kum and Go in Ellsworth, Iowa, then drove away without paying. A store
employee notified the police, and a Hamilton County deputy sheriff responded to
3
the call. While travelling south on Highway 69, the deputy saw Dunn’s vehicle
speed by with its high-beam lights on. The deputy followed Dunn and stopped
him after he turned onto Highway 20. Dunn did not have a valid driver’s license
and initially denied taking the gas, before admitting his actions. Dunn was taken
into custody and charged with driving under suspension, speeding, failure to dim
his headlights, and theft in the fifth degree.
Officers inventoried the contents of Dunn’s vehicle before having it towed.
In the trunk, the officers found a backpack containing several items used in the
manufacturing of methamphetamine and a bottle of white crystalline substance,
which field tested positive for ephedrine. Thereafter, Dunn also was charged
with possession of methamphetamine precursor, a class “D” felony, in violation of
Iowa Code section 124.401(4) (2011).
The State agreed to dismiss the misdemeanor charges against Dunn and
recommend a deferred judgment if he pleaded guilty to the felony possession of
a precursor. Dunn accepted this plea agreement and subsequently pleaded
guilty to the possession charge at a hearing on January 4, 2012. At the
sentencing hearing on February 29, 2012, Dunn requested a deferred judgment,
but the court denied this request, citing his unemployment, lack of responsibility,
history of drug use, and other reasons. The court instead sentenced Dunn to a
term of imprisonment not to exceed five years, suspended the sentence, placed
Dunn on probation for three years contingent on employment or school
attendance and substance abuse treatment and counseling, revoked his driving
4
privileges for 180 days, and ordered him to pay fines. Dunn appeals, asking us
to vacate his sentence and remand for a new sentencing hearing.
II. Standard and Scope of Review
We recognize a strong presumption in favor of a district court sentencing
decision if it is within statutory limits. State v. Formaro, 638 N.W.2d 720, 724
(Iowa 2002). We will overturn sentencing determinations only for abuse of
judicial discretion or consideration of inappropriate matters. Id. Abuse of
discretion occurs when we discern that a court used clearly untenable or
unreasonable grounds or reasons as part of its sentencing analysis. State v.
Laffey, 600 N.W.2d 57, 62 (Iowa 1999). Our “focus is whether an improper
sentencing factor crept into the proceedings.” State v. Thomas, 520 N.W.2d 311,
314 (Iowa Ct. App. 1994). If a court considers an improper factor, we may not
speculate about the influence of that factor in the sentencing determination.
State v. Carrillo, 597 N.W.2d 497, 501 (Iowa 1999). The fact that a court used
other permissible factors does not cleanse contamination from consideration of
an improper factor in a sentencing determination. Laffey, 600 N.W.2d at 62. If
we find a court has considered an improper factor, we must remand for
resentencing. Carrillo, 597 N.W.2d at 501.
III. Analysis
Dunn contends that in reaching its sentencing determination the district
court considered improper factors: his lack of employment and acceptance of
government assistance. When choosing a sentence, courts must consider all
pertinent matters, including the nature of the offense; the attending

5
circumstances; defendant’s age, character, and propensities; and chances for
reform. Formaro, 638 N.W.2d at 725. “After receiving and examining all
pertinent information,” a court should determine which sentence “will provide
maximum opportunity for the rehabilitation of the defendant, and for the
protection of the community from further offenses by the defendant and others.”
Iowa Code § 901.5. In addition, before deferring judgment or suspending
sentence, courts should also consider the defendant’s prior record of convictions
or deferred judgments, employment circumstances, family situation, mental
health, and substance abuse history. Iowa Code § 907.5. Because Iowa law
permits courts to weigh a defendant’s employment status as a factor in
determining whether to grant a deferred judgment, Dunn is not entitled to
resentencing based on the court’s reference to his unemployment.
But Dunn’s claim that the court impermissibly considered the fact that he
receives food stamps requires further inquiry. In reply to Dunn’s request for a
deferred judgment at his sentencing hearing, the court stated:
You’re supporting yourself by receiving food stamps, which I don’t

fault anybody for taking advantage of public assistance, I don’t
mean it in that way, but I do mean it from the standpoint that I look
at this, you’ve got no meaningful employment history, it appears to
me that you’re somebody that sits around smoking dope, using
methamphetamine, and now you’re possessing precursors with the
intent to manufacture methamphetamine.
If this was the only mention of Dunn receiving public assistance, it could be
viewed as merely an aside to the court’s consideration of Dunn’s lack of
employment and attending circumstances. But the sentencing court returned to
the topic of public assistance in its rationale for rejecting the State’s
6
recommendation for a deferred judgment: “You haven’t completed school, you
don’t work, you—you’re basically tapping more resources than you’re
contributing to our community at this point and for those reasons, I believe that
adjudicating you is appropriate and imposing the sentence is appropriate.”
Our court has recognized the rigors of the trial process and “the intensity
of the moment may result in comments which greater deliberation would reject.”
Thomas, 520 N.W.2d at 313. We also are aware “the sentencing process can be
especially demanding and requires trial judges to detail, usually
extemporaneously, the specific reasons for imposing the sentence.” Id.; see
Iowa R. Crim. P. 2.23(3)(d). Fulfilling this requirement can, at times, result in
“unfortunate phraseology” and misconstrued or unintended remarks. Thomas,
520 N.W.2d at 314. As an appellate court, we know the record only documents
verbal expression and may lack context for a court’s statements. See id.
But in this case, the sentencing court’s reference to Dunn tapping
community resources as a reason for rejecting a deferred judgment and its
earlier statement about Dunn receiving food stamps are so similar and logically
connected that we cannot dismiss them as a happenstance of unfortunate
phraseology. Our courts have long held that “[d]istinctions in the administration
of criminal justice between rich and poor are generally not likely to bear up under
constitutional scrutiny. Such economic discrimination falls squarely within the
protection of [the Fourteenth] Amendment.” State v. Snyder, 203 N.W.2d 280,
287 (Iowa 1972) (finding violation of Equal Protection Clause in imprisoning a
defendant based on his inability to pay fine).

7
Because the Fourteenth Amendment protects against discrimination due
to economic status, a defendant’s receipt of public assistance is an impermissible
reason to deny a deferred judgment. Acceptance of government assistance
does not speak to matters pertinent in sentencing, such as a defendant’s
character, propensities, or chance of reform or rehabilitation, and does not affect
a court’s duty to protect the community from further offenses by the defendant or
others. The sentencing court articulated several permissible bases for denying
Dunn a deferred judgment, but we cannot disentangle the sound from the
unsound reasons for the court’s decision. See Laffey, 600 N.W.2d at 62. We
vacate Dunn’s sentence and remand for resentencing.
SENTENCE VACATED AND REMANDED FOR RESENTENCING.

E-FILED 2014 FEB 07 10:53 AM WRIGHT - CLERK OF DISTRICT COURT
No. 14-0894
Filed October 14, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DAVID EDWARD VRBA,

________________________________________________________________
Appeal from the Iowa District Court for Wright County, Paul B. Ahlers,
Judge.
A defendant appeals his conviction and sentence for assault while
displaying a dangerous weapon. CONVICTION AFFIRMED; SENTENCE
AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH
DIRECTIONS.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik and Mary A. Triick,
Assistant Attorneys General, Eric Simonson, County Attorney, and Jonathan
Murphy, Assistant County Attorney, for appellee.
Considered by Tabor, P.J., and Bower and McDonald, JJ.

2
TABOR, Presiding Judge.
A jury convicted David Vrba of assault while displaying a dangerous
weapon after hearing testimony that he pointed a shotgun at his mother and
pushed her over a coffee table. On appeal, Vrba argues the jury should not have
been allowed to consider evidence that he engaged in a “standoff” with police
after his mother fled from the house. He further argues his attorney was remiss
in (1) not challenging the State’s proof he used or displayed the shotgun, (2) not
objecting to testimony concerning the mother’s possession of pepper spray to
protect her from Vrba, and (3) not requesting a limiting instruction concerning the
pepper spray and the “standoff.” Vrba also challenges his sentence.
Because we conclude the evidence of Vrba’s delayed arrest was
inextricably intertwined with the assault, we affirm on the evidentiary challenge.
We find no prejudice from counsel’s challenge to the sufficiency of the evidence
but preserve the remaining ineffectiveness claims. On the sentencing question,
we conclude the court properly exercised its discretion in denying a deferred
judgment, but we vacate the probationary condition prohibiting Vrba from being
at private locations where alcohol or controlled substances are present.
I. Background Facts and Proceedings
“This is Marilyn Vansickel. My son’s flipping out.” So started the
emergency call Vansickel placed to police from outside the home of her son
David Vrba on December 2, 2013. Vansickel told the Wright County dispatcher
Vrba placed his hands on her and took away her keys so she could not leave.
Vansickel also informed the dispatcher that Vrba was armed with a shotgun,
3
which he had pointed at his mother several times during their tense encounter.
Vansickel recounted that Vrba tried to push her over the coffee table, but she did
not hit the floor. As the police closed in on her son’s house, Vansickel said she
“really didn’t want him killed, but he needs help.”
After several hours of waiting for him to emerge from his house,
authorities eventually arrested Vrba. The State charged him with assault while
displaying a dangerous weapon and false imprisonment.1
At trial, Vansickel proved to be a reluctant witness against her son.2 She
recalled going to his Eagle Grove house to help him move furniture. She found
the house was a mess, and Vrba bristled when she chastised him about its
condition. She testified Vrba heard a noise in the kitchen and picked up his
shotgun from next to the living room couch. She continued: “He aimed into the
kitchen.” When the prosecutor asked if he carried the shotgun the whole time
she was inside the house, she replied: “I was probably not there very long. But.
Um. He had it like in his right hand. And he kept looking into the kitchen.”
When the prosecutor asked if Vrba pushed her, Vansickel again
equivocated: “I backed into the coffee table. . . . I don’t know if I lost my balance
or what. . . . I kind of fell over the coffee table backwards.” She acknowledged
Vrba grabbed her with his left hand as he held the gun in his right hand. Vrba
1
The State originally included a count of assault on a health care provider in connection
with Vrba’s conduct toward a social worker at the hospital. The court found no probable
cause to support the enhancement, amended the charge to a simple misdemeanor
assault, and transferred it to the magistrate court.
2
When asked if she had second thoughts about being involved in the case after Vrba
was arrested, Vansickel said: “I wish it never would have happened . . . . Because
things got blown out of shape.”
4
manhandled his mother with such force that she had red marks on her shoulder
despite wearing a heavy winter coat.
After Vansickel managed to get back to her feet, she fled from the house
without her keys. She then called law enforcement for help. Vansickel
acknowledged at trial that she was hiding behind a tree in a neighboring yard
when she spoke with the dispatcher. When the officers arrived, in her words,
“Everything went berserk after that.”
Eagle Grove Police Chief Ray Beltran responded to Vansickel’s call. She
told the chief her son had pointed a shotgun at her, and she had grabbed the
muzzle and pulled it away, telling him to stop. Chief Beltran used a cell phone to
call Vrba, who stayed inside his house. Vrba sounded “very emotional.” Beltran
told him the police were there to help him—but he needed to step outside. The
police also used a public address system in trying to communicate with Vrba. It
took several hours for Vrba to come out of his house, but as the chief told the
jury, “he finally came out on his own will.” Chief Beltran recalled that when Vrba
came out of the house, in his undershorts, he looked disoriented and acted like
he was under the influence of something. Vrba told officers he had not slept for a
couple of days and was paranoid that “people were trying to get him.” Police
transported Vrba to the hospital.
Police then obtained a search warrant for Vrba’s house. Inside, officers
recovered two shotguns, one inside of a dog kennel and one leaning against the
living room couch. Police Captain Josh Kuisle testified the couch was “tipped at
5
an angle toward the front door. . . . Basically set up for a barricade situation. He
had a fighting station set up there.”
Vrba testified in his own defense. He denied pointing a weapon at his
mother and claimed that he did not know police were outside of his house and he
just fell asleep.
After just over an hour of deliberation, the jury returned a verdict of not
guilty on the false imprisonment count, but found Vrba guilty of assault while
displaying a dangerous weapon.
At sentencing, the district court rejected Vrba’s request for a deferred
judgment and imposed a sentence of 180 days in the county jail, with all but thirty
days suspended, and placed him on probation for two years. As a condition of
his probation, the court prohibited Vrba from being at locations where illegal
drugs or alcoholic beverages were present, even if he was not consuming or
possessing them. The court added an exception allowing Vrba to dine at
restaurants that serve alcohol, “as long as that’s not the primary focus of the
business.”
Vrba appeals his conviction and sentence.
II. Scope and Standards of Review
We review the district court’s ruling on admissibility of the “standoff”
evidence for an abuse of discretion. State v. Putman, 848 N.W.2d 1, 7 (Iowa
2014). An abuse occurs when the district court exercises its discretion on
grounds or for reasons clearly untenable or to an extent clearly unreasonable.
Id. Even if the district court has abused its discretion, the defendant must show
6
prejudice before we will reverse. Id. We also review Vrba’s sentence for an
abuse of discretion; any abuse of discretion necessarily results in legal error.
See State v. Valin, 724 N.W.2d 440, 444 (Iowa 2006).
Vrba’s claims of ineffective assistance, because of their constitutional
implications, call for de novo review. State v. McNeal, 867 N.W.2d 91, 99 (Iowa
2015).
III. Analysis of Vrba’s Arguments
A. Did the district court abuse its discretion in admitting evidence of

Vrba’s “standoff” with police?
Before trial, when considering Vrba’s motion in limine, the district court
ruled the State could offer evidence of the “prolonged standoff, if you will,
between law enforcement and Mr. Vrba.” But the court prohibited the State from
revealing the detail that local schools were locked down during that time period.
At an earlier hearing, the court stated the span of time before Vrba left the house
was relevant and “largely kind of the res gestae of the crime.”
In its written ruling, the court concluded such evidence was not “improper
character or bad acts evidence that would be made inadmissible pursuant to
Rule 5.404, as claimed by Defendant.” But even if the evidence fell into that
framework, the court declared the evidence admissible as proof of “motive,
opportunity, intent, preparation, knowledge, identity, or absence of mistake or
accident.” The court also further ruled the probative value of the evidence was
not substantially outweighed by the danger of unfair prejudice under rule 5.403.
We find Vrba preserved error on this issue by securing the court’s final ruling on
admissibility of the evidence. See State v. Alberts, 722 N.W.2d 402, 406 (Iowa
7
2006) (explaining that “if the ruling reaches the ultimate issue and declares the
evidence admissible or inadmissible, it is ordinarily a final ruling and need not be
questioned again during trial”).
On appeal, Vrba contends the district court should have excluded the
evidence of his “standoff” with police under Iowa Rules of Evidence 5.403 3 and
5.404(b).4 He first asserts the record did not establish “clear proof” that he
actually engaged in behavior that constituted a “standoff.” Vrba disputes Captain
Kuisle’s characterization of the “barricade situation” in the living room and points
to his own testimony that he did not want to talk to anyone and just went to bed.
Vrba further claims his conduct subsequent to the alleged assault of his mother
was not relevant to show his intent, motive, opportunity, or consciousness of
guilt. Vrba also argues the doctrine of inextricably intertwined evidence does not
allow for admission of the purported “standoff” in this case.
The State points out the only mention of the term “standoff” in front of the
jury came during defense counsel’s questioning of Chief Beltran.5 The State
further argues that its evidence showed Vrba “initially refused to leave his home
upon the request of law enforcement and that, after a few hours, the defendant
3
“Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” Iowa R. Evid. 5.403.
4
Iowa Rule of Evidence 5.404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that the person acted in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident.
5
Q. So it wasn’t in fact until about an hour into the standoff that [Vansickel] even
mentioned a shotgun; isn’t that correct? A. . . . I’ll keep with my statement. Correct.
8
voluntarily surrendered.” The State argues the captain’s testimony that it
appeared Vrba had moved furniture to create some sort of barricade was in
response to cross examination suggesting Vrba did not know the police were
outside his home.
The State further contends the disputed testimony “was not evidence of
character or bad acts at all but rather the res gestae of the crime.” The State
noted the common law principle of res gestae has evolved into the inextricably
intertwined doctrine. See State v. Nelson, 791 N.W.2d 414, 421 (Iowa 2010)
(quoting Edward J. Imwinkelried, The Second Coming of Res Gestae: A
Procedural Approach to Untangling the “Inextricably Intertwined” Theory for
Admitting Evidence of an Accused’s Uncharged Misconduct, 59 Cath. U. L. Rev.
719, 728–29 (2010) (arguing inextricably intertwined doctrine is “modern de-
Latinized” equivalent of res gestae)).
Evidence that is “‘inextricably intertwined’ in a causal, temporal, relational,
or spatial sense with the charged offense” need not be excluded under rule
5.404(b). State v. Caples, 857 N.W.2d 641, 645 (Iowa Ct. App. 2014). Such
evidence does not point to another crime, wrong, or act but instead is closely
related to the charged crime. Id. The key question is whether omitting the
challenged evidence would have “left the narrative of this crime unintelligible,
incomprehensible, confusing, or misleading.” See Nelson, 791 N.W.2d at 424.
Our supreme court has cautioned that “the inextricably intertwined doctrine
should be used infrequently and as a narrow exception to the general rule

9
against admitting evidence of other crimes, wrongs, or acts.” Nelson, 791
N.W.2d at 423.
We believe this case fits within that narrow exception. The circumstances
immediately following the reported assault and culminating in Vrba’s arrest a few
hours later were intrinsic to the charged crime. The testimony of Vansickel and
the officers would have been confusing and incomplete without mention of the
officers’ efforts to coax Vrba from the house and the subsequent search of the
crime scene, which resulted in seizure of the shotgun used in the assault. See
State v. Walters, 426 N.W.2d 136, 140–41 (upholding admission of evidence that
defendant sexually abused victim after the kidnapping to complete the story of
the crime). Courts in other jurisdictions have reached similar conclusions
regarding the admissibility of events closely tied to the charged act in time and
location. See, e.g., United States v. Hood, 774 F.3d 638, 644 (10th Cir. 2014)
cert. denied, 135 S. Ct. 2370 (2015) (upholding government’s use of evidence of
uncharged acts necessary to “contextualize the defendant’s arrest as intrinsic
evidence not subject to Federal Rule of Evidence 404(b)”); Ordway v.
Commonwealth, 391 S.W.3d 762, 790–91 (Ky. 2013) (“It is difficult to conceive
how the events that immediately followed the shooting could be omitted without
impairing the jury’s ability to understand the whole event.”). Vrba’s post-crime,
pre-arrest conduct was relevant and admissible under the inextricably intertwined
doctrine.
We recognize even relevant and otherwise admissible evidence must be
excluded when its probative value is substantially outweighed by the danger of

10
unfair prejudice. See Iowa R. Evid. 5.403. “Unfair prejudice arises when the
evidence would cause the jury to base its decision on something other than the
proven facts and applicable law, such as sympathy for one party or a desire to
punish a party.” State v. Reynolds, 765 N.W.2d 283, 290 (Iowa 2009). We do
not believe the State’s evidence that Vrba stayed inside his house and possibly
moved furniture prompted the jurors to reach their verdicts based on sympathy or
a desire to punish. The State’s witnesses did not characterize the situation as a
“standoff.” Captain Kuisle’s description of Vrba’s living room as a “barricade
situation” or a “fighting station” was disputed by the defense case. It was up to
the jury whether to credit Vrba’s testimony explaining both the interaction with his
mother and his conduct after his mother alerted police.
To convict Vrba of aggravated assault, the State was required to offer
proof Vrba intentionally pointed a firearm toward Vansickel or displayed a firearm
in a threatening manner toward her. To convict Vrba of false imprisonment, the
State was required to prove he intentionally confined Vansickel against her will.
A defendant’s post-crime conduct may be relevant to show his or her intent at the
time of the offense. See State v. Shanahan, 712 N.W.2d 121, 138 (Iowa 2006)
(finding prejudicial effect of other-acts evidence did not substantially outweigh
their probative value). Vrba’s emotional reaction to Chief Beltran’s call and his
protracted refusal to submit to police authority was probative of the intentional
nature of his actions while his mother was inside the home. We do not believe
rule 5.403 required exclusion of the evidence challenged by Vrba on appeal.

11
The district court did not abuse its discretion in allowing testimony
concerning the activity leading up to Vrba’s arrest.
B. Did defense counsel perform below constitutional expectations?
Vrba raises three complaints about the performance of his trial attorney.
To succeed on his claims of deficient representation, Vrba must show two
elements by a preponderance of the evidence: (1) trial counsel failed to perform
an essential duty and (2) this failure resulted in prejudice. See State v. Webster,
865 N.W.2d 223, 231 (Iowa 2015); see also Strickland v. Washington, 466 U.S.
668, 687 (1984). If Vrba fails to show prejudice, we need not address whether
the attorney failed to perform an essential duty. See Webster, 865 N.W.2d at
231. Because Vrba chose to raise his ineffective-assistance-of-counsel claims
on direct appeal, we may either determine the record is adequate and decide the
claims or find the record is inadequate and preserve them for postconviction
proceedings so Vrba may develop a more complete accounting. State v. Neitzel,
801 N.W.2d 612, 624-25 (Iowa Ct. App. 2011).
Vrba first claims his attorney, in moving for judgment of acquittal,
breached a material duty by failing to challenge the State’s proof for the element
of using or displaying a dangerous weapon in connection with the assault. On
the prejudice prong, Vrba contends because of counsel’s omission, the jury was
allowed to find him guilty under a theory lacking in evidentiary support.
We bypass the duty question and skip to the prejudice prong. We reject
Vrba’s claim because a more specific motion would not have been successful.
The State presented substantial evidence—through the dispatch call and

12
Vansickel’s live, albeit unenthusiastic, testimony—establishing Vrba grabbed and
pushed her, causing her to fall over the coffee table. He did so while holding a
shotgun. The evidence showed Vrba pointed the gun at Vansickel more than
once during their encounter inside the house. The State’s proof created a jury
question on all of the statutory alternatives of assault presented in the
instructions. Counsel’s formulation of the motion for judgment of acquittal did not
result in prejudice to Vrba. See State v. Scalise, 660 N.W.2d 58, 62 (Iowa 2003)
(concluding even if trial counsel could have made a more specific motion for
judgment of acquittal, a claim of ineffective assistance of counsel cannot be
established if the State’s evidence was sufficient to generate a jury question on
defendant’s guilt).
Vrba’s second claim of ineffective assistance of counsel involves
Vansickel’s habit of carrying pepper spray. Vrba claims his attorney should have
objected to Vansickel’s testimony that she was prepared to use the spray as
protection from Vrba on a prior occasion. Vrba’s third claim of ineffective
assistance focuses on counsel’s failure to request a limiting instruction regarding
“other wrongful acts”—specifically his conduct in relation to the “standoff” and
pepper spray evidence. The record does not show whether counsel may have
had strategic reasons for not raising pursuing these issues. Because the record
is inadequate to decide these two claims of ineffective assistance of counsel, we
preserve them for possible postconviction-relief proceedings. See State v. Coil,
264 N.W.2d 293, 296 (Iowa 1978) (“Even a lawyer is entitled to his day in court,
especially when his professional reputation is impugned.”).

13
C. Did the district court abuse its discretion in sentencing Vrba?
Vrba first contends the district court, in denying his request for a deferred
judgment, violated the principle in State v. McKeever, 276 N.W.2d 385, 387
(Iowa 1979), that no one sentencing factor be determinative. Vrba contends the
court relied only upon the nature of the offense at the expense of all other
considerations in Iowa Code section 907.5 (2013).
We do not read the district court’s reasons for sentencing as violating
McKeever. The court expressly stated that it was taking into account Vrba’s
employment, his family circumstances, and his limited prior criminal history. The
court said the sentence would have been “much harsher” but for the “positive
things presented to me here today.” Yet the court rejected Vrba’s request for a
deferred judgment based on the “obviously unacceptable” and “very dangerous
behavior” he carried out against his mother. The jail sentence and probationary
period did not amount to an abuse of discretion. See State v. Formaro, 638
N.W.2d 720, 724 (Iowa 2002).
Vrba next argues the district court imposed an unreasonable condition of
probation. The following paragraph of the sentencing order is at issue:
Defendant is prohibited from consuming or possessing alcohol or

any illegal drug or any drug for which Defendant does not have a
valid prescription. In addition, Defendant is prohibited from being at
any location where alcohol or illegal drugs are present, regardless
of whether Defendant is actually in possession of or consuming
such alcohol or illegal drugs. This prohibition does not prohibit
Defendant from being at a public location (e.g., restaurant) where
alcohol is served, so long as the primary purpose of the
establishment is not the serving of alcohol and Defendant is not
consuming or in possession of alcohol at that location[.]
14
Specifically, Vrba argues it was unreasonable for the court to prohibit him from
being at private locations where alcoholic beverages or controlled substances
are present, even if Vrba is not in possession of or consuming those substances.
Vrba notes the court’s order allows him to spend “extended time periods in a
public restaurant surrounded by others consuming alcohol. But the conditions of
probation prohibit him from riding in a vehicle where there is a container of
alcoholic beverage in the trunk” and would “prohibit him from visiting friends and
family who have beer in the refrigerator.”
People placed on probation are subject to the conditions established by
the judicial district department of correctional services (DCS) subject to the
approval of the court, as well as any additional “reasonable conditions” which the
court or DCS may impose “to promote rehabilitation of the defendant or
protection of the community.” Iowa Code § 907.6. A condition of probation is
reasonable when it relates to the rehabilitative needs of the defendant or the
protection of the community and is justified by the defendant’s personal
circumstances. See Valin, 724 N.W.2d at 446. A condition of probation is
unreasonable if it is unnecessarily harsh or excessive in achieving the goals of
rehabilitation or public protection. Id. Vrba argues the probationary condition
prohibiting him from consuming or possessing alcohol or controlled substances,
without a valid prescription, is sufficient to promote the goals of rehabilitation.
We agree with Vrba that it is an unreasonable condition of probation to
forbid him from entering a private residence or vehicle where alcohol or
controlled substances are present, even if they are not being consumed. It is
15
unnecessarily harsh to expect Vrba to inspect the homes or vehicles of friends or
relatives for prohibited substances before entering. We make the following
amendment to the paragraph at issue:
Defendant is prohibited from consuming or possessing alcohol or

any illegal drug or any drug for which Defendant does not have a
valid prescription. In addition, Defendant is prohibited from being at
any business establishment whose primary purpose is the serving
of alcohol.
We otherwise affirm the sentence imposed. We remand for entry of a
corrected sentencing order consistent with this ruling.
CONVICTION AFFIRMED; SENTENCE AFFIRMED IN PART, VACATED
IN PART, AND REMANDED WITH DIRECTIONS.

E-FILED 2016 SEP 20 8:08 AM HARDIN - CLERK OF DISTRICT COURT
IN THE SUPREME COURT OF IOWA
No. 16–0524
Hardin County No. AGCR309534
ORDER
CLERK OF SUPREME COURT
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TODD JEFFREY ITES, JR.,

This matter comes before the court, Hecht, Appel, and Zager, JJ., upon the State’s
Motion to Reverse. Iowa R. App. P. 6.1006(3). The appellant has not filed a response
but his proof brief indicates agreement with the State’s position.
SEP 20, 2016
A summary reversal is appropriate where error has been confessed. Iowa R. App.
P. 6.1006(3). The State concedes the district court lacked the statutory authority to have
the defendant taken into the custody of the sheriff and held until a space became available
at the residential correctional facility. See Iowa Code § 907.8(3) (2015).
Accordingly, the defendant’s sentence is vacated and this case is remanded to the
ELECTRONICALLY FILED
district court for entry of a corrected sentence in accordance with this order.
Copies to:
Clerk of District Court for Hardin County
Brenda J. Gohr
Sharon Hall
1 of 2
E-FILED 2016 SEP 20 8:08 AM HARDIN - CLERK OF DISTRICT COURT
State of Iowa Courts
Case Number Case Title

16-0524 State v. Ites
So Ordered
Electronically signed on 2016-09-20 07:31:40
2 of 2
E-FILED 2013 FEB 14 8:51 AM HARDIN - CLERK OF DISTRICT COURT
IN THE IOWA DISTRICT COURT FOR HARDIN COUNTY
STATE OF IOWA, OWCR307375
Plaintiff,
v.
RULING ON MOTION TO
ELIZABETH JEAN WAGONER, SUPPRESS
Defendant.
Defendant is charged with Operating While Intoxicated. On February 12,
2013, a hearing was held on Defendant’s Motion to Suppress that was filed on
February 4, 2013. Defendant personally appeared for the hearing along with her
attorney, Lynn Wiese. The State was represented at the hearing by Assistant
County Attorney Kathryn Austin. The hearing was reported.
In scheduling the hearing on the anticipated Motion to Suppress (the parties
had filed a Report of Pretrial Conference indicating that such a motion would be
filed, so the Court set a hearing before the motion was actually on file), the Court
entered an order raising an issue regarding the timeliness of the Motion and stating
that such issue would be addressed at the hearing on the Motion to Suppress.
Defendant then filed the anticipated Motion to Suppress and also asked for an
extension of the deadline for filing pretrial motions. The issue of the timeliness of
the Motion to Suppress was addressed at the hearing. During the hearing, the State
conceded that it had delayed in providing defense counsel with a copy of the video
taken from the arresting officer’s vehicle regarding the stop of Defendant’s vehicle.
That delay prevented Defendant from filing a timely Motion to Suppress.
Consequently, the State agreed that it would be appropriate to extend the deadline
for filing such a Motion such that the Motion would be considered timely and the
suppression issue could be addressed on the merits. As stated at the hearing, the
Court finds that Defendant’s Motion to Extend the deadline for filing the Motion to
Suppress should be and is hereby granted and the Motion to Suppress is considered
to be timely. The hearing then proceeded on the merits of the Motion to Suppress.
The parties jointly submitted State’s Exhibit 1 (a video and audio recording
taken from the arresting officer’s vehicle) and stipulated as to the exhibit’s
admissibility. The Court reviewed the relevant portions of State’s Exhibit 1 (i.e.,
from the beginning of the video to the stop of Defendant’s vehicle) during the
course of the hearing. The Court also called the arresting officer (Deputy Josh
Nelson of the Hardin County Sheriff’s Department) as a witness to clarify questions
the Court had regarding details about the video. At the conclusion of the
evidentiary portion of the hearing, the parties made arguments to the Court.
Defendant conceded that her Motion to Suppress is limited to the issue of the
constitutionality of the stop of her vehicle on the night of her arrest. Defendant
argues that the arresting officer did not have probable cause to stop Defendant for
a traffic violation and did not have reasonable grounds for an investigatory Terry
stop. Defendant relies primarily on the case of State v. Tague, 676 N.W.2d 197
(Iowa 2004), to support her Motion. The State resists the Motion and argues that
the arresting officer had reasonable suspicion to justify an investigatory Terry stop
or community caretaker function investigatory stop.
The Court took the matter under advisement. The Court has again reviewed
the relevant portions of State’s Exhibit 1, has considered the arguments of the
parties and the relevant authority on the issues, and now issues this ruling.
FACTUAL BACKGROUND AND FINDINGS

While on routine patrol at approximately 2:15 a.m. on September 22, 2012,
Hardin County Deputy Josh Nelson was traveling on a paved, two-lane roadway.
Defendant’s vehicle was traveling in front of Deputy Nelson. Deputy Nelson
observed Defendant’s vehicle drift to the right hand side of the road causing the
right side tires of Defendant’s vehicle to cross the white fog line on the right hand
side of the road and drop off the traveled portion of the road onto the gravel
2
shoulder before Defendant fairly sharply turned the vehicle back to the left onto the
traveled portion of the roadway. After making this observation, Deputy Nelson
activated the video camera in his patrol vehicle.1 Deputy Nelson then followed
Defendant’s vehicle for approximately two and a half minutes. During this time,
Defendant weaved noticeably numerous times. The weaving included two
additional times when Defendant dropped the right side tires of the vehicle off the
traveled portion of the roadway onto the gravel shoulder after crossing the fog line
on the right hand side of the road. On multiple other occasions, Defendant either
gradually drifted or fairly sharply swerved to the right hand side of the road to the
point where her wheels touched or crossed the fog line. After observing this
weaving and erratic driving, Deputy Nelson initiated a traffic stop of Defendant’s
vehicle. Defendant’s Motion challenges the constitutionality of this stop and does
not challenge any other evidence obtained after the stop independently of
Defendant’s challenge to the stopping of the vehicle.
LEGAL ANALYSIS AND CONCLUSIONS

As the Court understands the State’s position, the State is not claiming that
Deputy Nelson had probable cause to stop Defendant’s vehicle for a traffic violation.
Rather, the State claims that Defendant’s erratic driving, including Defendant’s
repeated crossing of the fog line and her dropping of the right tires of her vehicle off
the paved portion of the road and onto the gravel shoulder on at least three
occasions, gave Deputy Nelson reasonable suspicion to believe criminal activity had
occurred or was occurring such as to warrant an investigatory Terry stop or to
1
The video camera in Deputy Nelson’s vehicle has a 10-second “save back” feature. The video equipment is
constantly recording scenes in the camera’s view, but does not save the recording unless the camera is activated
by either manually activating the camera or activating the emergency lights of the vehicle. Upon activation of the
camera, the equipment saves the video footage from a period of time from 10 seconds before the activation of the
camera until the recording is stopped. Consequently, even though the camera had not yet been activated when
Defendant’s vehicle first dropped onto the shoulder of the roadway, the video equipment was able to capture and
save the footage of the scene originally observed by Deputy Nelson when Defendant first dropped the tires onto
the shoulder of the road.
3
warrant a community caretaker stop to investigate the cause of the erratic driving.
Defendant claims that Deputy Nelson did not have reasonable suspicion since no
traffic laws were violated and, under the totality of the circumstances, there were
not reasonable and objective grounds for initiating a Terry stop.
As previously mentioned, Defendant relies primarily on State v. Tague, 676
N.W.2d 197 (2004). In Tague, the Supreme Court held that a driver’s crossing of an
edge line (in that case, the yellow left edge line of a divided highway) once for a
very brief period did not provide a valid basis for an investigatory Terry stop or
community caretaker function stop when the officer did not observe erratic driving
or the vehicle weaving on the roadway during the one-mile stretch of road over
which the arresting officer followed the vehicle. See State v. Tague, 676 N.W.2d
197, 205 (Iowa 2004). In its ruling, the Tague court distinguished two other cases
addressing this issue, namely State v. Tompkins, 507 N.W.2d 736 (Iowa App. 1993)
and State v. Otto, 566 N.W.2d 509 (Iowa 1997).
In State v. Tompkins, 507 N.W.2d 736 (Iowa App. 1993), the driver was
followed by the arresting officer for approximately one mile. State v. Tompkins, 507
N.W.2d 736, 737 (Iowa App. 1993). Over the course of this distance, the driver’s
vehicle was observed to weave from the center line to the right side boundary line
several times, but never crossed the center line or the boundary line on either side.
Id. In response to the driver’s claim that there was not reasonable cause to stop
the vehicle for investigatory purposes, the Court of Appeals held that the officer’s
observation of the vehicle weaving within its own lane gave rise to a reasonable
cause to believe the driver was under the influence of intoxicants and upheld the
stop. Id. at 740.
In State v. Otto, 566 N.W.2d 509 (Iowa 1997), the arresting officer observed
the defendant’s vehicle traveling at a speed of 40 miles per hour in a 55 mile per
hour zone. State v. Otto, 566 N.W.2d 509, 510 (Iowa 1997). The officer followed
the driver for approximately two and a half miles. Id. During that time, the driver
4
changed speeds from 40 to 48 miles per hour and was observed to veer left and
right at a sharp angle and the vehicle was “going left and right and back
constantly.” Id. After turning onto another highway, the driver accelerated up to a
speed of 55 miles per hour, traveled behind another vehicle at a close distance, and
continued to veer from one side of its lane to the other before the officer initiated a
traffic stop. Id. The Supreme Court held that it did not interpret Tompkins to hold
that observation of a vehicle weaving within its own lane of traffic will always give
rise to a reasonable suspicion for police to execute a stop of the vehicle; rather, the
facts and circumstances of each case dictate whether or not probable cause exists
to justify stopping a vehicle for investigation. Id. at 511. The Supreme Court went
on to conclude that the facts and circumstances surrounding the stop of the vehicle
in Otto provided reasonable suspicion for the belief that criminal activity was afoot
based on the weaving and jerking, the fluctuation in speed, and the close following
of another vehicle. Id.
The Court believes the legal principles at issue in this case are largely
uncontested. What is contested is the application of the facts to those legal
principles and the conclusions to draw from the facts. To justify a stop of a vehicle
and to detain the driver for investigatory purposes, the police need only have
reasonable suspicion, not probable cause, to believe criminal activity has occurred or
is occurring. Tague, 676 N.W.2d at 204 (citations omitted). When a person
challenges a stop on the basis that reasonable suspicion did not exist, the State
must show by a preponderance of the evidence that the stopping officer had specific
and articulable facts, which taken together with reasonable inferences from those
facts, to reasonably believe criminal activity may have occurred. Id. Whether
reasonable suspicion exists for an investigatory stop must be determined in light of
the totality of the circumstances confronting the officer, including all information
available to the officer at the time the officer makes the decision to stop the vehicle.
5
Id. The legality of the stop does not depend on the actual motivations of the officer
involved in the stop. Id.
There is also an issue as to a stop under the community caretaker function.
To justify a stop on the basis that a driver was fatigued, the State must rely on the
“community caretaking function” of the police. Id. Review of a stop based on the
community caretaker function is done on an objective standard, namely whether the
facts available to the officer at the time of the stop would lead a reasonable person
to believe that the action taken by the officer was appropriate. Id.
In this case, based on the totality of the circumstances, the Court finds that
Deputy Nelson had specific and articulable grounds to reasonably believe that
criminal activity may have occurred such as to justify an investigatory Terry stop.
The Court also finds that the officer had grounds to initiate an investigatory stop for
community caretaker purposes based on a concern that the driver may have been
fatigued or having a medical problem. The Court finds the facts justifying the stop
in this case to be much closer to the facts in Tompkins and Otto, where a stop was
upheld, than to the facts in Tague, where the stop was found to be unconstitutional.
The specific and articulable facts supporting the stop were the observations of the
erratic driving exhibited by Defendant. Deputy Nelson’s attention was called to the
vehicle when the right side tires of the vehicle crossed the fog line on the right hand
side of the road and dropped off the traveled portion of the road onto the gravel
shoulder. At that point, the driver swerved the vehicle back into the traveled
portion of the road. If that was the extent of the erratic driving, then the conclusion
reached in Tague may have applied and the stop may have been invalid. However,
that was not the end of the erratic driving in this case. For approximately two and a
half minutes thereafter, Defendant repeatedly weaved within her lane of travel and
beyond. The weaving within the lane varied. Sometimes it was a fairly gradual drift
to the fog line on the right hand side and back toward the middle of Defendant’s
lane of travel. Other times, the weaving was fairly sharp veering or jerking. On
6
multiple occasions (Deputy Nelson estimated it to be approximately twelve times,

which the Court finds to be a fairly accurate and conservative estimate based on the
Court’s review of State’s Exhibit 1), Defendant’s vehicle touched or crossed the right
hand fog or edge line. On at least two additional occasions beyond the initial
observation when Defendant dropped the right side tires onto the shoulder of the
road, Defendant actually crossed the fog line far enough that her tires dropped off
the traveled portion of the road onto the shoulder before Defendant would swerve
the vehicle back onto the travelled portion of the road.
Unlike the facts in Tague, this case does not involve an isolated one-time
driving irregularity. It involves an ongoing and repeated unsafe manner of driving.
In Tompkins, the stop was upheld when the driver repeatedly weaved within the
lane of travel, but never crossed the center line or right side edge line. Tompkins,
507 N.W.2d at 737-38. Here, Defendant repeatedly weaved within her lane and, on
at least three occasions, actually crossed the edge or fog line and caused the right
side tires of the vehicle to drop off the paved portion of the road onto the shoulder.
These facts demonstrate more erratic driving than the driving exhibited in
Tompkins. The holding in Tague does not change the outcome under the totality of
the circumstances in this case. Just as Tompkins should not be read to stand for
the proposition that all weaving within one’s own lane of travel justifies a stop,
Tague should not be read to stand for the proposition that a driver is entitled to
cross an edge line multiple times without being subject to an investigatory stop. It
is dangerous to drive a vehicle in the manner Defendant was driving it on that night.
On multiple occasions shown on State’s Exhibit 1, Defendant’s driving was such that
it caused the Court concern, while watching the video, that Defendant was, at any
moment, going to drop the vehicle into the right hand ditch or jerk the vehicle back
from the shoulder and possibly overcorrect and cross the center line into oncoming
traffic or lose control of her own vehicle. While the Court realizes those things did
not happen, they very well could have had Defendant not been stopped by Deputy
7
Nelson. The manner of driving exhibited by Defendant on the video certainly

warranted a concern and provided reasonable and articulable grounds for Deputy
Nelson to initiate the traffic stop to investigate potential drunk driving or to
determine whether there was a fatigue or medical issue involved. Either way,
Deputy Nelson was justified in stopping the vehicle to investigate further to
determine the reason for the dangerous driving.
Considering the totality of the circumstances, the Court finds that Deputy
Nelson had reasonable suspicion for the belief that criminal activity was afoot or that
community caretaker functions warranted the stopping of the vehicle for
investigatory purposes. The stopping of Defendant’s vehicle and the detention of
Defendant for investigatory purposes was within constitutional limits.
IT IS, THEREFORE, ORDERED that Defendant’s Motion to Suppress is
hereby denied. A pretrial conference and trial will be rescheduled by separate court
order.
Clerk to send copies to:

County Attorney
Lynn Wiese
8
Type: OTHER ORDER

OWCR307375 STATE VS ELIZABETH JEAN WAGONER
So Ordered
Electronically signed on 2013-02-14 08:51:35 page 9 of 9

E-FILED 2014 OCT 16 10:02 AM HAMILTON - CLERK OF DISTRICT COURT
IN THE IOWA DISTRICT COURT FOR HAMILTON COUNTY
Plaintiff,
v.
ORDER RULING ON MOTION TO
DANE SKYLER HAMAN, SUPPRESS EVIDENCE
Defendant.
Defendant was charged by Trial Information with the crime of Operating
While Intoxicated, First Offense. On August 28, 2014, Defendant filed a timely
motion challenging the constitutionality of the stop of Defendant’s vehicle and
seeking suppression of all evidence found after the stop. The State resisted
Defendant’s motion. A hearing on the motion was held on September 17, 2014.
The hearing was reported. At the conclusion of the hearing, the Court took the
matter under advisement. After reviewing the exhibits, considering the evidence
and arguments presented, and researching the legal issues, the Court now issues
this ruling.
I. FACTUAL SUMMARY
The facts are largely undisputed. This is because the facts are largely
discerned from the video of the traffic stop (State’s Exhibit 2). In summary, at
approximately 11:30 p.m. on June 27, 2014, Hamilton County Deputy Sheriff Rod
Hicok (hereinafter “the Deputy”) was parked facing east in or near a farm field
driveway of a gravel road that ran east and west. The headlights of the Deputy’s
vehicle were off and it was dark.1 From his vantage point in the farm field driveway,
1
Defendant complains that the Deputy was illegally parked because, in violation of Iowa Code Section 321.354(2),
the Deputy’s vehicle’s lights were off and his vehicle could not be seen from a distance of 200 feet in each
direction upon the gravel road. The Court is aware of no authority, and Defendant cites none, that would permit
the Court to grant Defendant’s motion seeking to suppress evidence on the basis of the Deputy’s illegal behavior,
even if it was assumed that the Deputy was illegally parked. Defendant acknowledges that the Deputy being
illegally parked does not give Defendant a “free pass” to violate the traffic laws, but Defendant urges the Court to
the Deputy could see the T-intersection a short distance in front of him to the east.
Defendant’s vehicle was northbound on the gravel road approaching the T-
intersection. Upon reaching the intersection, Defendant’s vehicle turned to the right
to head eastbound within the view of the Deputy. Upon making the right-hand turn
and proceeding eastbound on the same gravel road beside which the Deputy was
parked, Defendant brought Defendant’s vehicle to a stop in the middle of the gravel
roadway. A female passenger then exited the passenger side of the pickup, walked
at a normal pace to the back of the pickup, around the back of the pickup, and to
the driver’s side door, where she re-entered the pickup through the driver’s door.
At that point, the Deputy began pulling away from the farm driveway onto the
traveled portion of the road and turned on the Deputy’s vehicle’s headlights at about
the same time that the female, who had just switched positions from passenger to
driver, began to pull the pickup away from the location where the pickup had been
stopped. As the Deputy’s vehicle closed the distance between the Deputy’s vehicle
and Defendant’s pickup, the female driver applied the brakes of the pickup, possibly
out of surprise at headlights appearing on what appeared to be a deserted gravel
road at 11:30 at night. After the momentary braking with no further action taken by
the Deputy, the female driver began to accelerate and maneuver the pickup back
toward the middle of the road. At that point, the Deputy activated emergency lights
and initiated a traffic stop. In response to the emergency lights, the female driver
immediately pulled the pickup to the side of the road and stopped. Subsequent
contact between the Deputy and the occupants of the pickup resulted in Defendant
being charged with Operating While Intoxicated.
Additional facts will be discussed as part of the legal analysis set forth later in
this order, as necessary.
consider the claimed illegal parking in its consideration of the reasonableness of the Deputy’s actions. Given the
fact that there is no authority cited for the proposition that the illegal parking of a law enforcement vehicle
impacts the legal standards for addressing the legality of a traffic stop, the Court declines to address whether the
Deputy was illegally parked, as that issue has no bearing on the merits of Defendant’s motion.
2
II. LEGAL ISSUES

As mentioned, the facts are largely undisputed. However, the conclusions to
draw from those facts are not. Defendant challenges the constitutionality of the
stop of Defendant’s vehicle. Defendant claims the stop of the vehicle violated
Defendant’s right to be free from unreasonable searches and seizures guaranteed
by the Fourth and Fourteenth Amendments to the United States Constitution and
Article I, Section 8, of the Iowa Constitution.
The State counters by arguing that the stop of Defendant’s vehicle was
justified because the Deputy had probable cause to believe a violation of Iowa Code
Section 321.354(1)(b) 2 had occurred, or, at the very least, the Deputy had
reasonable suspicion to justify a Terry stop to investigate whether a violation of
Iowa Code Section 321.354(1)(b) had occurred. The State further argues that, even
if a stop was not permitted because of an observed violation of Iowa Code Section
321.354(1)(b), the community caretaker exception to the warrant requirement
justified the stop. The State bases this argument on the claim by the Deputy that
he stopped the vehicle because he was concerned that a domestic dispute was
occurring and the Deputy was ensuring the safety of the occupants.
III. LEGAL ANALYSIS

As mentioned, the State raises two justifications for the stop of Defendant’s
2
Both In Defendant’s motion to suppress and during the hearing on the motion, the parties referenced Iowa Code
Section 321.354(2) as being the statute at issue. However, the Court believes that the parties were referring to an
outdated version of that Code section. Iowa Code Section 321.354 was amended during the 2013 legislative
session. As it relates to Section 321.354(2), the 2013 legislative change does not appear to be a substantive
change. Rather, the 2013 amendment essentially reorganizes some of the statute’s language and renumbers that
subsection to Iowa Code Section 321.354(1)(b). The changes made by the 2013 legislation would have taken effect
on July 1, 2013. See IOWA CODE § 3.7(1) (2013)(stating that all acts passed at regular sessions of the general
assembly take effect on the first day of July following their passage unless some other effective date is specified).
Consequently, those changes would have been in effect on the date of the incident that forms the basis for the
criminal charge in this case, as the offense date is alleged to be June 27, 2014. Based on the legislative changes,
the relevant section of the Iowa Code that would have applied to this situation at the time of the events leading up
to this case is Iowa Code Section 321.354(1)(b) rather than Iowa Code Section 321.354(2), as referenced by the
parties. All further references in this ruling to Iowa Code Section 321.354(1)(b) refer to that Code section as
amended by 2013 Iowa Acts Chapter 90, Section 83.
3
vehicle. Each will be discussed separately.
A. Violation of Traffic Laws.

The State seeks to justify the stop of Defendant’s vehicle on the basis that
the Deputy observed a violation of Iowa Code Section 321.354(1)(b). The version
of Iowa Code Section 321.354(1)(b) that was in effect at the time of the stop of
Defendant’s pickup reads, in pertinent part, as follows:
1. A person shall not stop, park, or leave standing an attended or
unattended vehicle upon any highway outside of a business district, rural
residence district, or residence district as follows:
[ . . . ]
b. Upon the main traveled part of a highway other than a paved

highway when it is practical to stop, park, or leave the vehicle
off that part of the highway. However, a clear and unobstructed
width of that part of the highway opposite the standing vehicle
shall be left to allow for the free passage of other vehicles.
IOWA CODE § 321.354(1)(b) (2013)(as amended by 2013 Iowa Acts Ch. 90, Section
83). The State relies on Iowa Code Section 321.354(1)(b), arguing that Defendant
violated that statute and the Deputy’s observation of the violation justified a traffic
stop or at least an investigatory stop. As a starting point in addressing the State’s
argument, a review of the legal standards applying to traffic stops is in order.
It is well-established that the Fourth Amendment to the United States
Constitution prohibits unreasonable searches and seizures by the government.
State v. Louwrens, 792 N.W.2d 649, 651 (Iowa 2010). The Fourth Amendment’s
proscriptions apply to state governments by way of the Due Process Clause of the
Fourteenth Amendment. Id. Generally, this means a search or seizure must take
place pursuant to a warrant issued by a judicial officer and that searches conducted
without a warrant are unreasonable, unless an exception to the warrant requirement
applies. Id. One such exception authorizes a law enforcement officer to stop a
vehicle when the officer observes a traffic violation, no matter how minor. Id. The
4
burden is on the State to prove by a preponderance of the evidence that the officer
had probable cause to stop the vehicle. Id. If the State does not meet this burden,
the evidence obtained through the stop must be suppressed. Id. at 651-52. An
officer’s reasonable mistake of fact supporting the officer’s belief that a traffic
violation or other criminal activity is underway will suffice as probable cause for a
stop. Id. at 652.
In addition to a stop being authorized when there is probable cause to believe
that a traffic violation has occurred, an investigatory stop can be conducted on
reasonable suspicion. State v. Kinkead, 570 N.W.2d 97, 101 (Iowa 1997). Courts
do not require proof of criminality by a preponderance of the evidence to validate an
investigatory stop, only a reasonable suspicion that criminal activity is occurring. Id.
In this case, the Deputy had probable cause to believe a violation of Iowa
Code Section 321.354(1)(b) had occurred and also had reasonable suspicion to
believe that a violation of that Code section had occurred. The statute in question
prohibits stopping or parking on the main traveled part of a gravel road when it is
practical to stop or park the vehicle off the main traveled part of the road.
Defendant claims that he did not stop in the main traveled part of the road
and, even if he did so, it was not practical to stop off that part of the road. This
claim is negated by the video of the traffic stop (State’s Exhibit 2). After turning to
head east on the gravel road in front of the Deputy, the pickup was brought to a
stop in the middle of the road. The location where Defendant stopped or parked
the vehicle was clearly the traveled portion of the road. This is clear for two
reasons. First, by simply looking at where Defendant parked, which was in the
middle of the road, it was the traveled portion of the road. Second, as the Deputy
started to close the distance between the Deputy’s vehicle and Defendant’s pickup,
the female, who had become the driver of the pickup, began to pull away from the
parked position the pickup had occupied. In doing so, the female driver steered the
pickup to the right of where the pickup had been parked in order to proceed down
5
the road. The fact that the driver had to move the pickup to the right of the parked
position in order to travel down the road confirms the fact the pickup had been
parked in the traveled portion of the road.
As mentioned, Defendant argues that, even if the pickup was parked on the
main traveled part of the road, it was not practical to stop off that part of the road.
Defendant’s argument that it was not practical to park or stop off the main traveled
part of the road is without merit. When the traffic stop was initiated, the driver of
Defendant’s pickup pulled to the edge of the road. Where the driver ultimately
stopped the pickup in response to the emergency lights was significantly further
right and closer to the ditch than where the pickup had been stopped or parked
when it first came to a stop when the occupants switched positions in the vehicle.
Since the pickup was able to be safely parked near the ditch in response to the
traffic stop, Defendant’s argument that it was impractical to pull the pickup that
close to the ditch when it was initially brought to a stop to switch drivers is
unpersuasive. The fact that it may have been convenient for Defendant to stop the
pickup in the middle of the road to switch the driver and passenger does not mean
that it was impractical to steer the pickup away from the middle of the road and
closer to the ditch to make the switch.
Besides claiming that it was not practical to stop or park the vehicle further to
the right, Defendant also claims that he complied with the statute because he left a
clear and unobstructed width of the road opposite his parked vehicle to allow for the
free passage of other vehicles. This claim is not supported by the facts. Defendant
parked the vehicle essentially in the middle of the road. No road and vehicle
measurements were introduced into evidence and the Court is not able to tell from a
strict measurement standpoint whether a vehicle could have technically passed
Defendant’s parked vehicle heading in the opposite direction. However, it is clear
that such passage would not have been clear and unobstructed. At the very least, a
vehicle coming from the other direction would have had to pull to the extreme ditch
6
side of the opposite side of the road (i.e., near the ditch or grassy shoulder on the
north side of the road for westbound traffic). Ironically, to accept Defendant’s claim
that he left a clear and unobstructed passage for vehicles going the other direction
would require acceptance of the claim that it was impractical for Defendant to park
near the grassy shoulder on his side of the road, but it was practical for vehicles
going the other direction to drive near the grassy shoulder of the road. It is
unreasonable for Defendant to claim that it was impractical for him to park on the
same portion of the road that he claims opposing drivers should have driven on in
order to avoid Defendant’s parked pickup. The Court does not believe requiring
drivers coming from the other direction to practically drive in or on the edge of the
ditch in order to avoid a vehicle parked in the middle of the road constitutes “clear
and unobstructed width” as used in the statute.
Under these circumstances, the Court finds that there was probable cause for
the Deputy to believe that a violation of Iowa Code Section 321.354(1)(b) occurred
and that the Deputy had reasonable suspicion for believing a violation of that
statute had occurred. The State is not required to prove criminality beyond a
reasonable doubt or even by a preponderance of evidence to validate an
investigatory stop. State v. Kinkead, 570 N.W.2d at 101.3 In other words, even if
Defendant is not ultimately convicted of a violation of Iowa Code Section
321.354(1)(b), a fact that has not been determined, it does not change the fact that
3
With respect to an investigatory stop, the Deputy had reasonable suspicion to believe that a violation of the
statute had occurred. As mentioned, proof beyond a reasonable doubt or even by a preponderance of the
evidence is not required. Here, the Deputy had reasonable and articulable grounds to believe that a violation had
occurred and the stop was justified. The further investigation that was warranted included investigating whether
there was some legal justification for the driver stopping the vehicle in the middle of the road. For example, if
Defendant was experiencing vehicle trouble, there was a medical emergency, or there had been some prudent
reason why a stop occurred, those may potentially be defenses that the driver could assert. See Pinckney v.
Watkinson, 116 N.W.2d 258, 263 (Iowa 1962)(listing examples of what may require a reasonably prudent person to
stop in the face of a hazardous situation or that the exercise of due care or caution made necessary). However,
even if any such legal justifications for stopping existed, the Deputy would still have been permitted to make an
investigatory stop based on his observations. The fact that there may be a potential defense to a claimed violation
of the statute does not invalidate the investigatory stop. In this circumstance, in addition to the fact that the
Deputy had probable cause to believe that a violation of the statute had occurred, the Deputy at least had
reasonable suspicion to justify an investigatory stop to determine whether a violation had occurred.
7
the Deputy had probable cause and reasonable suspicion to believe that a violation
of the statute had occurred. The traffic stop was legally justified.
B. Community Caretaker Exception.

Although the Court has already upheld the constitutionality of the stop based
on the observed violation of a traffic law, in the interest of thoroughness the Court
will also address the State’s second claimed justification for the stop.
The State argues that the Deputy was justified in stopping Defendant’s
vehicle because the Deputy was concerned that there may be a domestic altercation
occurring that caused the stop of the vehicle and the switching of drivers. The Iowa
Supreme Court has developed a three-step analysis in evaluating community
caretaker cases:
1. Was there a seizure within the meaning of the Fourth Amendment?;
2. If so, was the police conduct bona fide community caretaker activity?;
and
3. If so, did the public need and interest outweigh the intrusion upon the
privacy of the citizen?
State v. Kurth, 813 N.W.2d 270, 277 (Iowa 2012).

In this case, there is no question that there was a seizure, as the Deputy
activated his emergency lights and initiated a traffic stop of the vehicle. The first
prong of the community caretaker doctrine is met.
On the issue of whether the police conduct was a bona fide community
caretaker activity, the Iowa Supreme Court has recognized three categories of such
conduct:
1. the emergency aid doctrine;
2. the automobile impoundment/inventory doctrine; and
3. the public servant exception.
Kurth, 813 N.W.2d at 277.

In this case, there was no automobile impoundment/inventory that
8
surrounded the seizure. Consequently, only the emergency aid or the public servant
doctrine could conceivably apply. The emergency aid doctrine and the public
servant exception are closely related. Id. Assisting a motorist with a flat tire would
be an example of the public servant doctrine, whereas providing first aid to a person
slumped over the steering wheel with a bleeding head gash would fall under the
emergency aid doctrine. Id. at 277-78. Every community caretaking case must be
assessed according to its own unique set of facts and circumstances because
reasonableness is not a term that can be usefully refined in order to evolve some
detailed formula for judging cases. Id. at 277. To establish reasonableness, the
State has the burden of showing specific and articulable facts that indicate that the
actions of law enforcement were proper. Id. Courts are to apply an objective
standard considering the circumstances confronting the police officer. Id.
In this case, the specific and articulable facts known to the Deputy did not
justify a stop of Defendant’s vehicle and the seizure of Defendant’s vehicle and the
occupants thereof under the emergency aid or the public servant doctrine.
Consequently, the “bona fide community caretaker” prong of the community
caretaker doctrine was not met. The Deputy claimed that he was concerned that a
domestic dispute was occurring. The basis for this claim was that when the
passenger door was opened and the dome light came on, the Deputy could see the
female exiting the vehicle and the male driver moving to the passenger side. The
Deputy claimed that he was concerned that the driver was chasing the female
passenger and that she was fleeing. This claim has no credibility. While the video
(State’s Exhibit 2) is not crystal clear on all details, it is quite clear that when the
female passenger exited the vehicle, she was not fleeing. The female did not move
in any sort of frantic or hurried manner. The door was not violently flung open, but
was opened in a regular manner. The male driver never exited the vehicle to chase
the female. The female got out of the vehicle and walked at a normal pace to the
back of the pickup, around the back of the pickup, and up to the driver’s side door,
9
which she opened and entered in a non-hurried fashion. If, as the Deputy claims,
the female was “fleeing,” one would expect to see hurried motions, rapidly opened
doors, the male following the female out the door, efforts by the female to get away
from the vehicle and the male inside, or some other indication of alarm. None of
those things existed. Given the actions of the female passenger as she exited the
vehicle and moved in a direct, non-hurried fashion to the driver’s side of the vehicle,
a reasonable person would not have concluded that a domestic dispute was
occurring.4 In this case, there are no specific and articulable facts identified by the
State that justified the Deputy’s seizure of Defendant via a traffic stop under the
community caretaker exception.
IV. CONCLUSION
The Deputy was not justified in stopping Defendant’s vehicle under the
community caretaker exception to the warrant requirement. However, for the
reasons previously stated, the Deputy had probable cause and reasonable suspicion
to believe that a violation of Iowa Code Section 321.354(1)(b) had occurred that
justified the stop of Defendant’s vehicle. The sole issue raised by Defendant’s
motion was a challenge to the constitutionality of the stop. Since the stop was
within constitutional limits under both the United States and Iowa Constitutions,
4
During the suppression hearing, passing reference was made to the fact that, upon the Deputy’s contact with the
occupants of the vehicle, it turned out that the parties were having an argument. The suggestion was made that
this confirmed the Deputy’s claim that he was witnessing a domestic disturbance. This suggestion is without merit.
First, not all arguments or disagreements between domestic partners constitute domestic violence that warrant
law enforcement intervention. Second, the Court suspects that the claim that the Deputy “confirmed” that an
argument was occurring after he made contact with the occupants may involve a bit of creativity with the facts and
revisionist history. In other words, once the Deputy discovered that an argument was ensuing, it is quite possible
that he used that information to claim that he was concerned about a domestic dispute as a basis for the stop of
the vehicle, even though he did not have such suspicion before he stopped the vehicle. The Court is skeptical that
a bona fide concern of a domestic dispute prompted the stop of the vehicle. Third, even if it is assumed for the
sake of discussion that the Deputy was testifying truthfully when he claimed that he suspected a domestic dispute
was occurring and that that warranted a stop of the vehicle, the fact that the Deputy’s hunch was partially
confirmed after the stop does not justify the stop. There were no facts known before the stop that supported the
Deputy’s claimed hunch or that justified the stop on the basis of a concern of domestic violence. A search or
seizure is not to be made legal by what it turns up. State v. Short, 851 N.W.2d 474, 505 (Iowa 2014). In law, it is
good or bad when it starts and does not change character from its success. Id.
10
Defendant’s motion must be denied.

IT IS, THEREFORE ORDERED that Defendant’s motion seeking to suppress
evidence is hereby denied for the reasons stated herein.
IT IS FURTHER ORDERED that all further proceedings shall take place in
this matter as previously scheduled.

County Attorney
Defense Counsel: David Johnson
11
Type: OTHER ORDER

OWCR338259 STATE VS DANE SKYLER HAMAN
So Ordered

E-FILED 2014 DEC 08 4:35 PM HAMILTON - CLERK OF DISTRICT COURT
STATE OF IOWA, AGCR338415
Plaintiff,
v.
RULING ON MOTION TO
JACOB CHRISTOPHER ADAMS, SUPPRESS EVIDENCE
Defendant.
Defendant is charged by Trial Information with Possession of

Methamphetamine and Possession of Marijuana. The evidence supporting these
charges includes evidence found within Defendant’s reach at the time that he was
arrested on an outstanding warrant unrelated to these charges. Defendant filed a
motion seeking to suppress the evidence supporting these charges, claiming that
the evidence was obtained in violation of Defendant’s rights to be free from
unreasonable searches and seizures secured by the Fourth and Fourteenth
amendments to the United States Constitution and Article I, Section 8, of the Iowa
Constitution. A hearing on Defendant’s motion was held on December 3, 2014.
Defendant personally appeared for the hearing along with his attorney, William
Habhab. The State was represented by Assistant County Attorney Jon Beaty. After
receiving the evidence and arguments submitted by the parties, the Court took the
matter under advisement. The Court has now had a chance to further consider the
evidence, arguments, and legal authorities relevant to this matter and now issues
this ruling.
FACTUAL SUMMARY
The facts are largely undisputed. Deputy Timmons of the Hamilton County
Sheriff’s Office was aware of an outstanding warrant for the arrest of Defendant.
Deputy Timmons is familiar with Defendant and knew where he lived. With a copy
of the warrant in hand, Deputy Timmons proceeded to Defendant’s residence and

knocked on the door. Defendant answered the door after several knocks. Deputy
recognized Defendant by sight. In answering the door, Defendant remained in the
residence and kept his arm behind the opened door, presumably continuing to hold
on to the inside doorknob. When informed that Deputy Timmons was there to
execute an arrest warrant, Defendant raised an issue about the validity of the
warrant, claiming that it had been cancelled. As a courtesy to Defendant, Deputy
Timmons began a process of confirming the warrant that included discussing the
issue with Defendant and Deputy Timmons’s dispatcher. While this discussion was
taking place between Defendant and Deputy Timmons, Deputy Timmons stepped
across the threshold into the entryway of the house. Using his lapel microphone,
Deputy Timmons confirmed the validity of the warrant within the hearing of
Defendant.
After the validity of the warrant had been confirmed and Defendant had
heard the confirmation from Deputy Timmons’s lapel microphone, Defendant,
without prompting from Deputy Timmons, took his hand from behind the door,
reached into his right, front jeans pocket and pulled out a small item that appeared
gold in color and reached behind the door where there were some built-in shelves.
Defendant then brought his right hand back to where it had been before and his
hand was empty. While Deputy Timmons’s view was blocked by the door so he
could not confirm exactly where the item that had been removed from Defendant’s
pocket was placed, the fact that Defendant then brought his hand back without
anything in it left Deputy Timmons with the impression Defendant had set the item
removed from his pocket on the shelving behind the door. Deputy Timmons
acknowledged that he did not know for sure what the item was that Defendant had
removed from his pocket, but suspected it may be contraband of some sort. Deputy
Timmons did not believe that it was a weapon. After reaching behind the door with
the item that he had removed from his right jeans pocket, Defendant then began to
2
reach into his left, front jeans pocket. Becoming concerned about Defendant’s
digging in his pockets, Deputy Timmons told Defendant to stop putting his hands in
his pocket. Defendant then stated he was simply getting his cellphone. Deputy
Timmons allowed Defendant to remove his cellphone from his left, front jeans
pocket, at which point Defendant turned and placed the cellphone on a table to his
left that was in the entranceway of the house. Deputy Timmons then arrested
Defendant on the outstanding warrant and handcuffed Defendant. Immediately
after handcuffing Defendant, Deputy Timmons moved the door to retrieve the item
that Defendant had removed from his pocket and placed on the shelving behind the
door. Upon moving the door, Deputy Timmons saw a gold-bottomed Altoids®
container on the shelf at about the same height where Defendant had been
reaching after pulling the gold-colored item from his pocket. The item was within
Defendant’s reach and was within approximately 3 feet of where Deputy Timmons
and Defendant were standing. It was the only item on the shelving that generally
fit the description of the item Defendant removed from his pocket. Deputy
Timmons opened the Altoids® container and found methamphetamine and
marijuana, which is the evidence supporting the charges in this case. Deputy
Timmons did not otherwise search the house.
LEGAL ISSUES
Defendant challenges the constitutionality of the search of the area behind
the door and the seizure and search of the Altoids® container, claiming that Deputy
Timmons had no right to seize or open the container because he did not have a
warrant for the search of the premises. The State seeks to justify the search and
seizure of the Altoids® container as being a lawful search incident to arrest.
Defendant seeks to avoid the impact of the search incident to arrest doctrine by
claiming Deputy Timmons had no right to be in the house to initiate the search
incident to arrest.
3
LEGAL ANALYSIS
The Court finds Deputy Timmons was lawfully at and in Defendant’s residence
and that the Altoids® container and the contents thereof were obtained via a lawful
search incident to arrest.
I. Entry Into Residence.

Starting with the issue of Deputy Timmons’s presence in the house, the Court
finds that the deputy was invited into the house and also had the right to enter the
house even if he had not been invited. Deputy Timmons had a valid warrant for
Defendant’s arrest. Deputy Timmons lawfully knocked on Defendant’s residence
door several times before Defendant opened the door. After opening the door,
Defendant never exited the house or attempted to exit the house in spite of the fact
that he was aware that Deputy Timmons was a law enforcement officer and that
Deputy Timmons was there to execute an arrest warrant. Defendant remained
standing in the entranceway with the door open with his hands still on the interior
knob and initiated a conversation with Deputy Timmons regarding the validity of the
warrant. Although Deputy Timmons had no obligation to investigate Defendant’s
objection to the validity of the warrant, Deputy Timmons acted in a professional,
courteous, and reasonable manner by looking into the matter further. During the
discussion and process of confirming the warrant, Deputy Timmons stepped over
the threshold into the residence. This was done without objection by Defendant
and without any resistance from Defendant. Deputy Timmons’s entrance into the
home was reasonable under the circumstances. The reason for the delay that
necessitated the need for ongoing discussion between Deputy Timmons and
Defendant that prompted Deputy Timmons to enter the house rather than
immediately executing the warrant was Defendant’s raising of an issue related to
the validity of the warrant. The Court finds that Defendant impliedly invited Deputy
Timmons into the house by continuing to stand away from the doorway with the
door open while initiating a prolonged discussion designed to benefit Defendant.
4
Under these circumstances, it would be natural for the deputy to step into the
opened door so that the discussion that Defendant wanted to have could take place
in the residence rather than on the stoop.
Furthermore, even if Defendant did not invite Deputy Timmons into the
residence, Deputy Timmons had the right to enter. Deputy Timmons had
reasonable cause to believe that Defendant, whom Deputy Timmons was authorized
to arrest pursuant to the warrant, was present on the premises because the
Defendant was known to Deputy Timmons and had appeared at the door. Deputy
Timmons identified himself as a peace officer and told Defendant that he had a
warrant for Defendant’s arrest. Under these circumstances, pursuant to Iowa Code
Section 804.15, Deputy Timmons had the right to demand to be admitted to the
residence for the purpose of making the arrest on the outstanding warrant. If such
demand was not promptly complied with, Deputy Timmons then had the right under
Section 804.15 to enter the premises to make the arrest, using such force as is
reasonably necessary. In this case, Defendant did not leave the residence upon
being told of the warrant. Since Deputy Timmons was identified as a peace officer
and the purpose of his presence to execute the warrant was announced, Deputy
Timmons had the right to demand entry and to forcibly enter if needed.
Defendant’s failure to exit the house and his standing away from the open doorway
with the door open has been found by the Court to be an implied invitation into the
house. Since there was an implied invitation, no express demand for entry was
needed. However, if Defendant’s actions are not viewed as an implied invitation
into the house, then the delay in exiting the house by Defendant was a failure to
promptly comply with a demand for admission, which then gave Deputy Timmons
the right to enter the house pursuant to the terms of Iowa Code Section 804.15.
Law enforcement officers are not allowed to force a suspect back into a residence to
make an arrest when the suspect is attempting to comply with demands of law
enforcement and exit the residence. See State v. Kubit, 627 N.W.2d 914, 922 (Iowa
5
2001). However, that is not what happened in this case. No evidence was
presented that Defendant was trying to exit the residence and there is no evidence
that Deputy Timmons forced his way in. Rather, this was an amicable interaction
between Defendant and Deputy Timmons in which Deputy Timmons was impliedly
invited into the house, so no demand for entry was needed. Under the
circumstances, the Court finds Deputy Timmons’s presence in the house to be lawful
because of the implied invitation from Defendant and the alternative right to enter
following Deputy Timmons’s announcement as a law enforcement officer and his
intent to execute the warrant coupled with Defendant not immediately exiting the
house to surrender on the warrant.
II. Search Incident to Arrest.

Having determined that Deputy Timmons was lawfully in the house, the Court
then turns to the issue of the search that yielded the contraband that supports the
charges against Defendant. There is no dispute that there was a valid warrant for
Defendant’s arrest and that the seizure and search of the Altoids® container
occurred after the execution of that warrant. The State justifies the search as being
a valid search incident to arrest. Defendant claims that since the Altoids® container
was no longer on Defendant’s person, Deputy Timmons no longer had the right to
search in the vicinity of the arrest and seize the container.
The Supreme Court has long recognized the lawful custodial arrest of a
person justifies the contemporaneous search of the person arrested and of the
immediately surrounding area, meaning the area from which the person might gain
possession of a weapon or destructible evidence. State v. Vance, 790 N.W.2d 775,
786 (Iowa 2010)(citing Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034,
2040, 23 L.Ed.2d 685, 694 (1969)). This exception to the warrant requirement
serves the dual purposes of protecting arresting officers and safeguarding any
evidence the arrestee may seek to conceal or destroy. Id. Defendant in this case
clearly attempted to conceal or destroy evidence by removing an item from his
6
pocket and hiding it on the shelving behind the door after being told that he was
going to be arrested. 1 The Altoids® container was found in the immediately
surrounding area to where Defendant was arrested. The item was still easily within
Defendant’s reach when he was arrested because Defendant was arrested at the
same spot where he was standing when Defendant reached behind the door to the
shelving where the container was found. Additionally, the search was made
contemporaneously with Defendant’s arrest. Under the circumstances of this case,
it does not matter whether the search in the vicinity of the arrest and the seizure of
the Altoids® container occurred before or after Deputy Timmons announced the
arrest of Defendant. Even if the search occurred before a formal arrest was made,
that fact does not affect the admissibility of the evidence because probable cause
existed to arrest at the time the search was made. See State v. Farrell, 242 N.W.2d
327, 330 (Iowa 1976)(holding that the fact that the search occurred before a formal
arrest does not negate application of the search incident to lawful arrest doctrine).
Likewise, even if the search occurred after the arrest and the handcuffing of
Defendant, since the search occurred immediately following the arrest, the search
was a lawful search incident to arrest. See 68 AM.JUR.2D Searches & Seizures § 120
(updated November 2014)(noting that a brief delay of the search of a residence
after an arrest does not invalidate the search). In many of the cases addressing the
timeliness of a subsequent search, there are substantial delays between the arrest
1 ®
The evidence established that Defendant denied knowledge of the presence of or contents of the Altoids
container when it was seized as part of the search incident to arrest. This suggests that Defendant is arguing that
®
the Altoids container was not the item removed from his pocket and Deputy Timmons seized the wrong item.
This is an argument Defendant is free to make to the jury at trial. It is not a persuasive argument with respect to
®
suppression issues. According to Deputy Timmons, the Altoids container was found in the same location where
Defendant was seen to have reached and was the only item found on the shelf that had a gold-colored bottom and
generally fit the description of the item the deputy saw Defendant remove from his pocket. However, even if the
®
Altoids container was not the item Defendant removed from his pocket and placed behind the door, it does not
change the fact that Deputy Timmons had the right to search the entire area immediately surrounding the location
®
where Defendant was arrested. So, even if the Altoids container was not the item removed from Defendant’s
pocket, since it was within Defendant’s reach at the time Defendant was arrested, Deputy Timmons had the right
to search for and seize the item as part of the search incident to arrest.
7
and search or the defendant has been removed from the area of arrest when the
search occurred. See, e.g., Arizona v. Gant, 129 S.Ct. 1710, 173 L.Ed.2d 485
(2009)(addressing search of a vehicle incident to arrest after suspect has been
removed from vehicle, placed in law enforcement vehicle, and handcuffed). In this
case, there is neither delay nor removal from the area. The search that yielded the
Altoids® container and the contents thereof occurred at the very same spot where
Defendant was standing when he was arrested, which is the very same spot where
Defendant was standing when Defendant sought to conceal the item that he
removed from his pocket. Furthermore, the search occurred immediately following
Defendant’s arrest. There is no genuine dispute in this case that the search was
made contemporaneously with the arrest and was limited in scope to the
immediately surrounding area from which Defendant could have gained possession
of a weapon or destructible evidence. Under these circumstances, the search was a
valid search incident to arrest.
CONCLUSION
Since the arrest occurred at a location where Deputy Timmons was lawfully
entitled to be, the search was made contemporaneously with the arrest of
Defendant, and the area searched was in the area immediately surrounding where
the arrest occurred, the search that yielded the evidence that supports these
charges against Defendant was a lawful search incident to arrest under both the
Iowa and United States Constitutions.
IT IS, THEREFORE, ORDERED that Defendant’s motion seeking to
suppress evidence is hereby denied.
IT IS FURTHER ORDERED that all further proceedings in this matter shall
take place as previously scheduled.
County Attorney
Defense Counsel: Bill Habhab
8
Type: OTHER ORDER

AGCR338415 STATE VS JACOB CHRISTOPHER ADAMS
So Ordered

E-FILED 2015 OCT 08 3:30 PM WRIGHT - CLERK OF DISTRICT COURT
IN THE IOWA DISTRICT COURT FOR WRIGHT COUNTY
STATE OF IOWA, SRCR033826
Plaintiff,
v.
RULING ON MOTION SEEKING TO
ERLIS ORLANDO MERLO-MORALES, SUPPRESS EVIDENCE
Defendant.
Defendant is charged with the crime of Possession of Methamphetamine.

Defendant filed a motion seeking to suppress evidence. A hearing on that motion
was held on September 25, 2015. Defendant personally appeared for the hearing
along with his attorney, Doug Cook. The State was represented at the hearing by
Assistant County Attorney Jonathan Murphy. After hearing the evidence and
arguments presented at the hearing, the parties agreed to submit briefs or
statements of additional authority. A deadline of October 7, 2015, was set for the
submission of the briefs. Both parties have submitted briefs or statements of
authority and the case was deemed submitted at the conclusion of the briefing
deadline on October 7, 2015. The Court has now had the opportunity to consider
the evidence and arguments presented by the parties and to consider the relevant
legal authority and now issues this ruling.
The charge against Defendant stems from a search of his vehicle. The facts
are largely undisputed. Clarion Police Officer Lyon Anderson was at the police
department building in Clarion on July 5, 2015. He overheard radio traffic between
the Wright County dispatcher and officers from the Eagle Grove Police Department
and the Wright County Sheriff’s Office. That radio traffic indicated that an
unidentified person had called 9-1-1 and reported that a man had been brandishing
a gun in Eagle Grove and at one point the man had pointed the gun. The radio
traffic overheard by Officer Anderson indicated that an investigation was being
conducted and that law enforcement was looking for a specifically-described vehicle
with a specific license plate number associated with the man that had been reported
to be brandishing and/or pointing the gun. The dispatcher reported to the Eagle
Grove officer that the address for the vehicle bearing the specified license plate
number was a Clarion address. In response to that information, Officer Anderson
left the Clarion Police Department building and drove to the address of the owner to
whom the vehicle was registered to see if the vehicle was there. He discovered that
the vehicle was not there, so Officer Anderson began driving toward Eagle Grove on
the route he would commonly take if he was travelling to Eagle Grove to see if he
could intercept the vehicle. After proceeding only a few blocks, while still in the city
of Clarion, Officer Anderson saw a vehicle matching the subject vehicle’s description.
As the cars passed each other, Officer Anderson was able to observe the license
plate number and determined that it matched the license plate number that was
reported over the radio traffic. Officer Anderson then turned around, activated his
emergency lights, and initiated a stop of the vehicle. Upon stopping the vehicle,
Officer Anderson conducted a “felony stop” by having the driver exit the vehicle and
ordering him to lie on the ground face down with his palms out. Officer Anderson
held the driver at gunpoint until other officers could arrive and assist. The driver,
who was the only occupant of the vehicle, was handcuffed and detained outside the
car.
While Defendant was secured outside the vehicle, Officer Anderson began a
search of the vehicle starting with the driver’s compartment. He started with the
midline of the vehicle and began to work his way outward. He began with a search
of the console between the seats and then moved up to the compartment between
the two sun visors on the vehicle where sunglasses are commonly stored. He
popped open that compartment and found a small, metal, circular case that was in
the sunglasses compartment. Officer Anderson then opened the container,
purportedly for the purpose of trying to see if the container contained ammunition
2
or gun parts, and found the methamphetamine that forms the basis for the charge
in this case. Officer Anderson continued his search of the vehicle, which resulted in
him finding what appeared to be a black handgun in the pocket of the driver’s door.
When Officer Anderson picked up the gun, he immediately realized that it was not
heavy enough to be a real handgun. It turned out to be an Airsoft gun that is
manufactured with an orange tip for safety reasons. However, the orange tip had
been painted black. By size and appearance, the gun appeared to be a real
handgun in spite of the fact that it was not.
Defendant essentially raises three issues with regard to the State’s evidence:
(1) Defendant challenges the legality and constitutionality of the stop of
the vehicle, claiming that there was not sufficient corroboration of the “tip” called in
to 9-1-1 to justify the stop of the vehicle;
(2) Defendant challenges the search of the vehicle even if the stop was
valid; and
(3) Defendant challenges the opening and search of the small metal
container where the methamphetamine was located even if the search of the vehicle
to try to locate a gun was valid.
The State resists on all three issues on the basis that the officer had probable
cause to believe that the crimes of Assault With a Dangerous Weapon and/or Going
Armed with Intent had occurred. The State claims that probable cause justified the
stop and the search, including the search of the container.
The Court does not need to decide the first two issues raised by Defendant,
as the third issue is dispositive. For purposes of discussion of the third issue, the
Court will assume that there was probable cause to believe a crime had been
committed so as to justify the stop of the vehicle and will also assume that there
was probable cause to believe that there was contraband or evidence of a crime in
3
the vehicle so as to justify a search of the vehicle.1 Even with those assumptions
being made, the search of the small container in which the methamphetamine was
1
There is support for the Court’s assumptions. Defendant relies primarily on State v. Kooima, 833
N.W.2d 202 (Iowa 2013) and Florida v. J.L., 529 U.S. 266 (2000) for Defendant’s claim that the stop of
the vehicle was unconstitutional. The Court does not believe that those cases control. First, as noted in
the dissent in Kooima, the analysis in the line of cases dealing with anonymous tips may not be as
persuasive in this technological age where 9-1-1 calls are rarely anonymous. See, Kooima, 833 N.W. 2d
at 215-16. Second, as noted in Florida v. J.L., what needs to be done to corroborate an anonymous tip
depends on the nature of the tip. In J.L., the Supreme Court used the example that a report of a person
carrying a bomb would need to bear less indicia of reliability than that demanded for a report of a
person carrying a firearm. Florida v. J.L., 529 U.S. at 273-74. In this case, the Court likens the reported
criminal behavior as being closer to the end of the spectrum of a report of a person carrying a bomb
than the end of the spectrum involved in Florida v. J.L., which involved a report of a person with a
firearm concealed on his person with no reports of brandishing or pointing of the firearm. In other
words, the fact that the report available to Officer Anderson involved a person actually brandishing or
pointing a gun makes it a much more volatile and dangerous situation than a mere report of possession
of a gun. Those exacerbating factors make the conclusion in J.L. inapplicable to this case. Additionally,
Kooima notes that cases that uphold an anonymous tip as a sufficient basis to justify a stop contain
three common elements, one of which is that the tipster based the tipster’s information on personal,
eyewitness observations made contemporaneously with a crime in progress that was carried out in
public, identifiable and observable by anyone. Kooima, 833 N.W.2d at 208. In this case, the reported
criminal activity (i.e., brandishing or pointing a gun) was purportedly observed by the reporting caller
claiming that the crime had been carried out in public and was observable by anyone, as opposed to
being a concealed crime that would not be observable by the general public, as was the situation in
Florida v. J.L. in which the stop and search were found to be unconstitutional. Given the exigent
circumstances of the reported brandishing or pointing of a gun coupled with the specific identifying
information about the vehicle and the officer locating the vehicle at a place that was consistent with it
leaving the reported scene of the crime in Eagle Grove and returning to the registered owner’s home in
Clarion, there was sufficient corroboration and indicia of reliability of the call made to 9-1-1 to justify an
investigatory stop of the vehicle.
Likewise, there is support for the Court’s assumptions with respect to the officer’s authority to
search the vehicle for a gun. Since the purpose of the investigatory stop was to investigate the potential
crime of Assault With a Dangerous Weapon or Going Armed with Intent, the officer had reasonable
suspicion to justify a Terry search of the car in an effort to try to locate the gun. Defendant’s reliance on
State v. Gaskins, 866 N.W.2d 1 (Iowa 2015) is misplaced. Gaskins was a case involving search incident to
arrest and addressed the scope of Arizona v. Gant, 556 U.S. 332 (2009) and related cases in the context
of search incident to arrest under the Iowa Constitution. This case does not involve the search incident
to arrest exception to the warrant requirement. Defendant was not arrested and there is no claim that
the search of the vehicle was governed by search incident to arrest principles discussed in the majority
in Gaskins and in Gant. In both Gaskins and Gant, searches were held to be unconstitutional based, in
4
found violated the protection against unreasonable searches and seizures

guaranteed by the Fourth and Fourteenth Amendments to the United States
Constitution and Article I, Section 8, of the Iowa Constitution.
As noted, for purposes of this discussion, the Court will assume that there
was probable cause to believe that the vehicle contained contraband. If a car is
readily mobile and probable cause exists to believe it contains contraband, the
Fourth Amendment permits police to search the vehicle without more. Pennsylvania
v. Labron, 518 U.S. 938, 940 (1996). The automobile exception does not require
exigent circumstances. Maryland v. Dyson, 527 U.S. 465, 466-67 (1999). A warrant
is not needed to search a container in a vehicle when an officer has probable cause
part, on the fact that the suspect had been removed from the vehicle and the items in the vehicle were
no longer accessible to the suspect, making a search of the vehicle under the search-incident-to-arrest
exception inapplicable. In this case, the search was not justified by the search-incident-to-arrest
exception, but was justified as a reasonable Terry investigatory search in an effort to locate the reported
gun. While the Court realizes that Defendant had been removed from the vehicle and was handcuffed
and detained, the basis for the stop in the first place was the reported brandishing and pointing of the
gun. If officers did not have the right to search the car to try to locate the gun, then it would make no
sense that they would have been justified to make the stop in the first place. In other words, when
there is a report of a man brandishing and pointing a gun, it was constitutionally permissible to stop the
vehicle driven by the man reported to be brandishing the gun. If the officers could not then search the
car to try to obtain the gun and verify whether the reported crime had occurred, then what are the
officers to do at that point? Simply let Defendant leave? It would make no sense to authorize the
officers to stop Defendant and then immediately be required to let him go since they cannot do
anything in terms of trying to locate the weapon that prompted the need for the stop in the first place.
A reasonable investigatory search of the vehicle was warranted based on the exigent circumstances and
the reported gun.
The analysis and cases briefly summarized in this footnote are not meant to be an exhaustive
analysis of the issues surrounding the stop and search of the vehicle. As noted in the body of this ruling,
the Court is not deciding those issues. The Court includes this footnote only to point out that there is
legal support for many of the assumptions the Court is making. However, in making the assumptions
used in deciding the third issue raised by Defendant, the Court is going beyond the principles noted in
this footnote because the Court is assuming for the sake of argument that not only did the officer have
reasonable suspicion to justify a Terry stop and Terry search of the vehicle, but also goes so far in its
assumptions as to assume probable cause justifying the stop and probable cause to believe there was
contraband or evidence of crime located in the vehicle. Even with those assumptions, as will be
discussed in the body of the ruling, the search of the container was still outside constitutional limits.
5
to believe the container contains contraband or evidence. California v. Acevedo,

500 U.S. 565, 580 (1991). The problem for the State in this case is that, even if the
officer had probable cause to believe that there was a gun in the vehicle, the officer
had no probable cause to believe that the gun would be found in the small container
found in the sunglasses compartment between the two sun visors of the vehicle.
The container was too small. The justification for the search of the vehicle was
probable cause coupled with exigent circumstances consisting of a concern that the
driver had a gun and had used the gun to commit the crimes of Assault With a
Dangerous Weapon and/or Going Armed with Intent. Such probable cause and
exigent circumstances may have justified a search of the car trying to locate the
gun. It did not justify opening a small container that was too small to contain a
gun. The State’s claim that the officer looked in the container to try to find
ammunition or gun parts is not credible or persuasive. The Court views Officer
Anderson’s testimony that he opened and searched the container to try to locate
ammunition or gun parts as being an after-the-fact excuse trying to justify looking in
the container when, in reality, the officer was simply snooping or viewing the right
to search containers in the vehicle as an entitlement rather than an exception to the
warrant requirement. See State v. Gaskins, 866 N.W.2d 1, 9 (Iowa 2015)(noting
criticism of treating the ability to search a vehicle incident to the arrest of a recent
occupant as a police entitlement rather than as an exception to the warrant
requirement). Additionally, the Court notes that, at the time Officer Anderson
looked in the sunglasses compartment and located the small container, he had still
not found the gun for which he was looking, even though the gun was ultimately
found in a fairly obvious location (i.e., the door pocket of the driver door). The
Court finds there to be no credibility in the claim that Officer Anderson was looking
for ammunition and gun parts when he had not even completed a search of the
portions of the vehicle where a gun would most likely be found. Had the officer
actually finished the search for the gun rather than snooping for evidence in
6
general, it would have been revealed that the gun was not a real gun, which would
have negated the need to keep looking for ammunition or gun parts in the small
container or elsewhere.
In summary, even if the officer had reasonable suspicion or probable cause to
stop the vehicle, had reasonable suspicion or probable cause to search the vehicle,
and had probable cause to believe that there was contraband or evidence of a crime
in the vehicle, the officer did not have probable cause to believe that the small
container found in the sunglasses compartment contained contraband or evidence
of a crime. Consequently, the officer had no constitutional authority to open and
search the container. The search of that container violated Defendant’s rights to be
free from unreasonable searches and seizures secured by both the United States
and Iowa Constitutions.
IT IS, THEREFORE, ORDERED that Defendant’s motion seeking to suppress
evidence is granted, as limited by this order. Specifically, all evidence located in the
container found in the sunglasses compartment of the vehicle is hereby suppressed
and is inadmissible at trial.
IT IS FURTHER ORDERED that all further proceedings shall take place as
previously scheduled.

County Attorney
Defense Counsel: Doug Cook
7
Type: OTHER ORDER

SRCR033826 STATE OF IOWA VS ERLIS ORLANDO MERLO-MORALES
So Ordered

E-FILED 2016 JAN 25 12:27 PM HARDIN - CLERK OF DISTRICT COURT
Plaintiff,
v.
RULING ON MOTION TO SUPPRESS
CHRISTOPHER MICHAEL CLARKE, EVIDENCE
Defendant.
The Court issues this ruling on Defendant’s motion seeking to suppress

evidence.
I. Procedural Background.
Defendant has been charged by Trial Information with the crime of Operating
While Intoxicated. Defendant filed a motion seeking to suppress evidence.
Defendant seeks to suppress all evidence obtained following the stop of Defendant’s
vehicle, arguing that Defendant’s vehicle was unconstitutionally stopped by law
enforcement. A hearing on the motion was held on January 19, 2016. Defendant
personally appeared at the hearing along with his attorney, David Johnson. The
State was represented by Assistant County Attorney Kathryn Austin. The evidence
presented at the hearing consisted of testimony and a video recording from the
arresting officer’s vehicle (State’s Exhibit 1). The Court took the matter under
advisement to review the cases cited by Defendant and review State’s Exhibit 1 on a
computer that would not have as many issues with glare, as the computer monitor
on the bench was difficult to see due to lighting and glare issues. The Court has
now had the opportunity to review State’s Exhibit 1 and the cases cited by
Defendant more thoroughly, and the Court issues this ruling accordingly.
II. Factual Background.

Josh Nelson is a sergeant with the Hardin County Sheriff’s Department. On
June 20, 2015, Sergeant Nelson (hereinafter “the Officer”) was on duty in a patrol
vehicle when he came across a vehicle that was later determined to be driven by
Defendant. Defendant’s vehicle came to the attention of the Officer when the
vehicle weaved in its lane, causing the Officer to activate the Officer’s in-car
camera.1 The Officer followed Defendant’s vehicle for approximately three minutes
before initiating a traffic stop. The Officer estimated that he followed Defendant’s
vehicle for approximately 2.5 miles during the period of time between when the
vehicle came to the Officer’s attention and the traffic stop was initiated. During that
distance and period of time, the Officer testified that he recalled observing
Defendant’s vehicle touch the white line on the right side of the road approximately
three times, touch the yellow centerline approximately three times, and cross the
yellow centerline once.2 Based on those observations, the Officer initiated a traffic
stop which eventually resulted in the criminal charge that forms the basis for this
case.
III. Legal Issues.

Defendant challenges the constitutionality of the stop of Defendant’s vehicle
under both the Federal and Iowa Constitutions, claiming the stop to be an
unreasonable search and seizure of Defendant in violation of the Fourth and
Fourteenth Amendments to the United States Constitution and Article I, Section 8 of
the Iowa Constitution.
A. Legal Standards.
Defendant correctly points out that there are two potential bases that could
support the stop of Defendant’s vehicle: (1) probable cause that Defendant
committed a crime, including a traffic violation; and (2) reasonable suspicion to
1
The camera is continuously capturing video footage, but all the footage is not saved unless the camera is
activated. Once activated, the camera saves footage from several seconds before it was activated until it is
stopped. Consequently, once the Officer activated the camera, all erratic driving claimed by the Officer was
captured on the video (i.e., State’s Exhibit 1).
2
Upon reviewing the video during the hearing, the Officer identified three times that Defendant’s vehicle touched
the white line, eight times that it touched the yellow line, and two times that it crossed the yellow line.
2
believe criminal activity has occurred or is occurring. State v. Tague, 676 N.W.2d
197, 201-04 (Iowa 2004).
1. Probable Cause Standards.

When a peace officer observes a violation of the traffic laws, however minor,
the officer has probable cause to stop a motorist. Tague, 676 N.W.2d at 201 (citing
State v. Mitchell, 498 N.W.2d 691, 693 (Iowa 1993)). Probable cause exists if the
totality of the circumstances as viewed by a reasonable person would lead that
person to believe that a crime has been committed or is being committed and that
the arrestee committed or is committing it. Id. (citing State v. Bumpus, 459 N.W.2d
619, 624 (Iowa 1990)). The State has the burden to prove by a preponderance of
the evidence that the officer had probable cause to stop the vehicle. Id. (citing
State v. Cadotte, 542 N.W.2d 834, 836 (Iowa 1996)).
2. Reasonable Suspicion Standards.

To justify a stop on the basis of reasonable suspicion, the State must show by
a preponderance of the evidence that the stopping officer had specific and
articulable facts, which taken together with rational inferences from those facts, to
reasonably believe criminal activity may have occurred. Id. at 204 (citing State v.
Heminover, 619 N.W.2d 353, 357 (Iowa 2000)). Mere suspicion, curiosity, or hunch
of criminal activity is not enough. Id. (citing State v. Kreps, 650 N.W.2d 636, 641
(Iowa 2002)). Whether reasonable suspicion exists for an investigatory stop must
be determined in light of the totality of the circumstances confronting the officer,
including all information available to the officer at the time the officer makes the
decision to stop the vehicle. Id.
B. Legal Analysis.
The Court will address both the probable cause and reasonable suspicion
justifications urged by the State in support of the stop.
3
1. Probable Cause.
In Defendant’s brief, Defendant correctly points out that the Officer claimed a
violation of Iowa Code Section 321.297 as a justification for the stop. Defendant’s
brief then alleges that Defendant’s vehicle “never crossed the centerline and was
always driven on the right-hand side of the roadway.” The Court disagrees with this
claim. The Officer testified that, in the course of rounding the curve at the time
stamp3 of approximately 1:11:55, Defendant’s vehicle crossed the yellow centerline
and then crossed the yellow centerline again shortly after leaving the curve (at the
time stamp of approximately 1:12:05). Due to the relatively poor quality of the
video and the camera angle, it is not possible to definitively confirm the crossing of
the yellow line claimed by the Officer. However, definitive confirmation of the
Officer’s testimony by video is not required and the video certainly does not
definitively rebut the Officer’s claim. The Court understands that the burden is on
the State, so the fact that the video does not rebut the Officer’s claim is not
particularly compelling. However, in assessing whether the burden has been met, it
is important to remember that the burden is to show probable cause of a traffic
violation by a preponderance of the evidence, not beyond a reasonable doubt. See
Tague, 676 N.W.2d at 201. The point is that the poor-quality video is inconclusive
either way, but there is still the testimony of the Officer to allow the State to meets
its burden. The Officer testified that Defendant’s vehicle crossed the centerline.
The Court concludes that the naked eye has more acuity and sharpness than the
scene depicted on the video. The Court found the Officer’s testimony that the
Officer observed the vehicle cross the centerline to be credible. Furthermore, while
the Officer’s testimony was not definitively confirmed by the video, the testimony
was largely confirmed by the video. At the locations where the Officer claimed to
3
The data screen on State’s Exhibit 1 contains two different time stamps. One is labeled “Current Time” and the
other is labeled “Available Time.” The “Current Time” counter essentially tracks with the time of day and runs
forward in time. The “Available Time” counter runs backward in time and appears to be a counter measuring how
much time is left in the video segment. All references to the time stamp made at the hearing and in this ruling
refer to the “Available Time” counter.
4
have viewed Defendant’s vehicle cross the centerline, Defendant’s vehicle has
clearly weaved significantly to the left, appears to be over the centerline (although it
cannot be definitively confirmed because the centerline is not clearly visible due to
the poor quality of the video), and there is more roadway visible between the right
side of Defendant’s vehicle and the white line on the right side of the road than in
other locations when Defendant’s vehicle was clearly riding on the centerline.4
These details sufficiently corroborate the Officer’s credible testimony to cause the
Court to conclude that the State has met its burden to show, by a preponderance of
the evidence, that there was probable cause to believe that Defendant had crossed
the centerline in violation of Iowa Code Section 321.297 so as to justify a traffic
stop.
As part of his argument on the issue of probable cause, Defendant made the
argument that, even if Defendant crossed the yellow centerline, without proof that
the centerline was exactly in the center of the road, the State has not met its
burden to prove a violation of Iowa Code Section 321.297. Although the Court is
not sure that it understands this argument, Defendant’s argument is presumably
based on the fact that Iowa Code Section 321.297 requires vehicles to be driven on
the “right half of the roadway” and makes no reference to a centerline. Thus,
Defendant argues, it is the State’s burden to prove that the yellow centerline was, in
fact, the true “half point” of the roadway. Defendant cites no authority in support of
this argument and the Court has found none after its own research efforts. The
Court finds Defendant’s argument to be lacking in merit. The Court believes that
4
As for the amount of roadway visible between the right side of Defendant’s vehicle and the white line on the
right, the Court’s point is that at various times before Defendant’s vehicle reaches the curve where it is claimed
that Defendant’s vehicle first crossed the centerline, Defendant’s vehicle can be seen touching or coming close to
touching the yellow centerline. At those times when the left side of Defendant’s vehicle is right at the yellow
centerline, it can be seen how much space exists between the right side of Defendant’s vehicle and the white line
on the right edge of the road. At the location on the curve when the Officer testified that he saw Defendant’s
vehicle cross the centerline, there is significantly more roadway showing between the right side of Defendant’s
vehicle and the white line on the right side of the road than in locations when Defendant was right on the yellow
centerline, confirming that Defendant’s vehicle was further left on the roadway than when Defendant’s vehicle
was on the yellow centerline, thus confirming that Defendant’s vehicle had in fact crossed the centerline as
claimed by the Officer.
5
the reference in Iowa Code Section 321.297 to “right half of the roadway” without
reference to a centerline marking is designed to account for situations on city
streets or elsewhere where no centerline markings are present. In those instances,
irrespective of the fact that there is no marked centerline, Iowa Code Section
321.297 requires drivers to drive on the right half of the roadway. However, in
those instances where there is a centerline marking, that marking sets the “center
line” such that a driver is required to drive to the right side of the centerline marker,
even if the centerline marker is not the exact centerline equally dividing the
roadway. To accept Defendant’s argument would lead to a ridiculous interpretation
of the statute where drivers could drive down the road to the left of the marked
yellow centerline based on the claim that the yellow centerline is not the true “half
point” of the roadway. This would lead to dangerous chaos on the roadways and is
not a reasonable interpretation of the statute. The Court finds that, with respect to
the roadway at issue in this case, the yellow line dividing the roadway set the
centerline of the roadway such that Defendant’s driving to the left of the centerline
constituted a violation of Iowa Code Section 321.297.
2. Reasonable Suspicion.
The Court’s conclusion that there was probable cause to believe that
Defendant violated Iowa Code Section 321.297 such that the stop of Defendant’s
vehicle was within constitutional parameters makes it unnecessary to address the
claim that there was reasonable suspicion of criminal activity or that Defendant was
fatigued or intoxicated as a basis for the stop. Nevertheless, in the interest of
thoroughness, the Court will address that issue as well.
Two cases cited in Defendant’s motion actually support a finding of legality of
the stop of Defendant’s vehicle. In State v. Tompkins, 507 N.W.2d 736 (Iowa App.
1993), the Court of Appeals upheld the stop of a vehicle that was observed to have
weaved within its own lane of travel without ever crossing the centerline or
boundary line on the right-hand side of the road. The Court held that the stopping
6
officer’s observations of the subject vehicle weaving within in its own lane gave rise
to a reasonable cause to believe the driver was driving under the influence of
intoxicants so as to justify an investigatory stop. State v. Tompkins, 507 N.W.2d
736, 740 (Iowa App. 1993). While the holding in Tompkins has been clarified over
the years, it has never been overruled. The driving observed in Tompkins that was
sufficient to justify an investigatory stop was less egregious than the driving
observed by the Officer in this case. In this case, the Officer observed the driver
repeatedly weaving in its lane multiple times over the course of approximately 2.5
miles, several times touching both the white line on the right and the yellow line on
the left of the lane of travel, and twice crossing the yellow centerline. Under these
circumstances and the holding in Tompkins, the Officer had reasonable suspicion to
believe the driver was intoxicated or dangerously fatigued to the point that an
investigatory stop was justified.
One of the cases clarifying Tompkins is State v. Otto, 566 N.W.2d 509 (Iowa
1997). In Otto, the stopping officer observed the defendant’s vehicle being driven
significantly slower than the posted speed limit, at variable speeds, too close to a
car in front of it, and veering left and right at a sharp angle. Otto, 566 N.W.2d at
510. Ruling on a challenge to the stop of the vehicle, the Supreme Court noted that
Tompkins should not be read to hold that observation of a vehicle weaving within its
own lane of traffic will always give rise to reasonable suspicion supporting a stop of
the vehicle. Id. at 511. Rather, the facts and circumstances of each case dictate
whether or not probable cause exists to justify stopping a vehicle for investigation.
Id. In spite of clarifying that Tompkins is not to be read to hold that observation of
a vehicle weaving within in its own lane of travel will always justify a stop, the Court
held that the facts and circumstances provided reasonable suspicion for the belief
that criminal activity was afoot so as to justify the stop in that case. Id. In the
present case, just as in Otto, the Court concludes that the facts and circumstances
observed by the Officer justified the stop. The Officer observed Defendant’s vehicle
weaving repeatedly from white line to yellow line several times over the course of
7
2.5 miles, sometimes veering relatively sharply in corrective fashion. The Officer
also observed the vehicle cross the yellow centerline while traversing a curve in the
road and then again crossing the yellow centerline after having completed
traversing the curve. Under these circumstances, the Officer had reasonable
suspicion to believe that the driver was intoxicated or dangerously fatigued such as
to justify an investigatory stop. Even if Defendant’s vehicle did not cross the
centerline, as argued by Defendant, the repeated weaving and occasional veering
from white line to yellow line within its own lane of travel warranted an investigatory
stop under the standards articulated in Tompkins and Otto.
Defendant relies primarily on State v. Tague, 676 N.W.2d 197 (Iowa 2004),
for the claim that the stop of Defendant’s vehicle was unconstitutional. The Court
finds Tague distinguishable. In Tague, the defendant’s vehicle was stopped after an
officer observed the vehicle cross the left yellow line of the divided highway on
which it was travelling. Tague, 676 N.W.2d 197, 200 (Iowa 2004). The Supreme
Court found the stop unconstitutional because there was no probable cause and no
reasonable suspicion justifying the stop. In reaching those conclusions, the Court
found no probable cause to find a violation of Iowa Code Section 321.297 because
the yellow line the driver crossed was an edge line and not a center line because the
road was a divided highway. Id. at 202-03. The Court also found no violations of
any other traffic laws so as to support a finding of probable cause. Id. at 203-04.
In terms of reasonable suspicion, the Court found no reasonable suspicion that the
driver was intoxicated or fatigued because there was no evidence that the vehicle
was weaving or driving erratically. Id. at 205. The Court found that an isolated
incident of briefly crossing an edge line of a divided highway does not give rise to a
reasonable suspicion of intoxication or fatigue so as to justify a traffic stop. Id. The
Court noted a number of reasons why an isolated incident of briefly crossing an
edge line could occur, including talking on a cell phone, looking at a map, adjusting
the radio, adjusting the heater, defroster or air conditioner, or checking on a child
restrained in the back seat. Id. In reaching its conclusion, the Court noted a driver
8
is not required to “follow a perfect vector down the highway.” However, the facts of
Tague are easily distinguishable from the present case. Unlike Tague, where the
driver crossed an edge line and thus did not enter the opposing lane of travel,
Defendant here crossed the yellow centerline into the opposing lane of travel.
Consequently, Defendant violated Iowa Code Section 321.297. Additionally, unlike
Tague, Defendant’s driving irregularities were not limited to “an isolated incident of
briefly crossing an edge line of a divided roadway.” Rather, Defendant was
observed to have repeatedly weaved from white line to yellow line multiple times
over the course of 2.5 miles, sometimes rather sharply, and twice crossed the
yellow centerline. Under these circumstances, the facts are much closer to the facts
in Tompkins and Otto, where the stops were upheld, than the facts in Tague, where
the stop was found to be unconstitutional. In fact, the facts justifying a stop in this
case are more compelling than the facts in Tompkins and Otto because there was
actually a traffic violation observed and the non-traffic-violation driving irregularities
observed were more numerous. Again, even if it were determined that Defendant
did not actually cross the centerline, as argued by Defendant, the repeated weaving
and occasional veering from white line to yellow line within Defendant’s own lane of
travel justified an investigatory stop under the standards articulated in Tompkins
and Otto. The standards set by Tague do not justify a different conclusion, as the
repeated weaving and occasional veering distinguishes this case from the “isolated
incident” present in Tague.
The State has shown by a preponderance of the evidence that the Officer had
specific and articulable facts, namely the vehicle repeatedly weaving and veering
within its lane and crossing the yellow centerline, which taken together with rational
inferences from those facts, to reasonably believe criminal activity may have
occurred. Tague 676 N.W.2d at 204 (citing State v. Heminover, 619 N.W.2d 353,
357 (Iowa 2000)). The Officer had more than mere suspicion, curiosity, or hunch of
criminal activity. Id. (citing State v. Kreps, 650 N.W.2d 636, 641 (Iowa 2002)). In
9
light of the totality of the circumstances available to the Officer, there was
reasonable suspicion to justify an investigatory stop. Id.
Defendant sought to articulate the reasonable suspicion standard based on
the totality of the circumstances as “would a reasonable person say that the Officer
neglected his duty if the Officer did not stop the vehicle?” The Court answers that
question “yes.” Given the Officer’s observation of Defendant’s driving over several
miles during which time the Officer observed Defendant repeatedly weaving and
occasionally veering within his own lane of travel and the dangerous manner in
which Defendant weaved significantly to the left as he travelled around a curve
turning to the right, the Court believes that the Officer was well within the Officer’s
rights to initiate an investigatory traffic stop and would have neglected the Officer’s
duties if he had not done so.
IV. Summary and Conclusion.

For the reasons stated, the Court finds that the Officer had probable cause to
believe that a violation of the traffic laws had occurred and reasonable suspicion to
believe that criminal activity was occurring or had occurred. Consequently, the
Officer’s stopping of Defendant’s vehicle was within constitutional limits set by both
the United States and Iowa Constitutions.
evidence is hereby denied.
previously ordered.

County Attorney
Defense Counsel: David Johnson
10
Type: OTHER ORDER

OWCR309244 STATE VS CHRISTOPHER MICHAEL CLARKE
So Ordered

E-FILED 2016 MAR 10 11:46 AM WRIGHT - CLERK OF DISTRICT COURT
STATE OF IOWA, FECR033879
Plaintiff,
v.
RYAN LEE MAASDAM, SUPPRESS EVIDENCE
Defendant.
Defendant filed a motion seeking to suppress evidence. The Court issues the
following ruling on the motion.
I. Procedural Background.
Defendant’s motion asserts that Defendant was improperly seized and
subjected to custodial interrogation without Miranda warnings being given.
Defendant seeks to suppress all statements made following the claimed seizure
and during custodial interrogation and any evidence obtained in reliance on the
allegedly improperly-obtained statements as fruit of the poisonous tree.
A hearing on Defendant’s motion was held on February 26, 2016.
Defendant personally appeared for the hearing along with his attorney, Eric
Parrish. The State was represented at the hearing by Assistant County Attorney
Jonathan Murphy. At the request of Defendant, the parties were permitted to
submit briefs. The deadline for submitting briefs has passed and the Court now
issues this ruling.
II. Issues Presented.

Defendant’s motion seeking to suppress evidence raised essentially two
issues. Those issues are whether Defendant had been improperly seized and
whether Defendant was subjected to custodial interrogation without Miranda
warnings being given. The fact that these were the only issues being raised in
Defendant’s motion was clarified during the hearing held on February 26, 2016.
At the beginning of the part of the hearing addressing that motion, the Court
specifically asked defense counsel to confirm that the basis for Defendant’s
motion was an argument that Defendant was subjected to custodial interrogation
without being given Miranda warnings, so any statements Defendant made in
response to questioning during that custodial interrogation needed to be
suppressed. Defense counsel confirmed the Court’s understanding was correct,
with the clarification that Defendant was challenging the “stop” of Defendant and
the officers “going in” to talk to Defendant. The hearing proceeded with that
understanding of the issues.
After the briefing deadline set by the Court by agreement of the parties
had expired, Defendant filed a second brief that raised a number of additional
issues pertaining to propriety of administering a preliminary breath test and
related OWI issues. The Court will not consider any of the new issues raised in
Defendant’s second brief. First, the brief was filed late and will not be
considered for that reason. Second, and more importantly, Defendant is not
permitted to raise issues in Defendant’s brief that were not raised in Defendant’s
suppression motion or during the hearing on that motion. It is unfair to the
State and the Court to have Defendant raise issues in a written motion, have
Defendant clarify the limits of the motion during the hearing on the motion, have
a hearing that the State and the Court believed was to address the issues raised
in Defendant’s motion, have the State presumably limit its evidence to the issues
raised, and then have Defendant raise a variety of other issues after the fact. If
the State had been aware that Defendant was raising a variety of other issues,
those issues should have been stated in Defendant’s motion or, at the very least,
been disclosed at the beginning of the hearing so that the State could present
evidence and argument on the issues raised. The State was not given the
opportunity to present evidence and argument on the issues that were not called
to the State’s attention. Furthermore, since the Court was not aware of the
issues now raised by Defendant after the fact, the Court was not considering the
evidence in light of those issues and was deprived of the opportunity to ask any
2
clarifying questions the Court may have had about those issues. It is
inappropriate and unfair to both the State and the Court to ask the Court to
consider issues after the hearing that were never raised and addressed during
the hearing. Consequently, the Court is limiting its ruling to the issues actually
raised by Defendant in Defendant’s motion and as disclosed at the hearing. Any
other issues raised in Defendant’s first brief or late-filed second brief will not be
considered.
III. Factual Background and Findings.

After consideration of the evidence that is relevant to the issue raised in
Defendant’s motion, the Court makes the following factual findings. Clarion
Police Department Officers Bret Thompson and Leland Williams were on duty in
the early morning hours of August 22, 2015. The officers received a notification
from their dispatcher reporting that a silver pickup was being driven erratically
and its tires were being squealed. The vehicle was reportedly heading toward
Lantern Park Apartments. The dispatcher also reported that an assault may be
occurring in the vehicle that was reportedly being driven erratically.1 Officer
Thompson and Officer Williams immediately proceeded to Lantern Park
Apartments to investigate the erratic driving report, arriving at approximately the
same time. The officers noted a vehicle parked in the parking lot of the
apartment complex that generally met the description of the vehicle that was
reported to have been driven erratically.
Upon arrival at the apartment complex, the officers encountered a man by
the name of Derrick Linn.2 Mr. Linn reported that Defendant, Susan Eekoff,
1
Officer Thompson recalled hearing the information about a potential assault. At the time of the suppression
hearing, Officer Williams did not recall hearing that portion of the communication from the dispatcher.
2
Defendant placed great emphasis on the fact that Mr. Linn smelled of alcohol, may have been intoxicated, and
reportedly tried to improperly disable Defendant’s vehicle. Such emphasis is misplaced. Regardless of whether
Mr. Linn was intoxicated or had acted inappropriately in trying to disable Defendant’s truck, Mr. Linn reported
certain facts to the officers that warranted further investigation of Defendant. The officers would have been
derelict in their duties if they had ignored the information provided by Mr. Linn simply because Mr. Linn had
apparently been drinking or had damaged Defendant’s truck.
3
Waylon Robb, and Mr. Linn had been at Chappy’s bar. Mr. Linn also reported
that Defendant and Ms. Eekoff were in an argument and that Defendant was
driving the silver pickup as the argument ensued. Mr. Linn also reported that
Defendant and Ms. Eekoff were in one of the apartments at the complex and Mr.
Linn believed that Defendant was assaulting Ms. Eekoff, who Mr. Linn reported
as being Defendant’s girlfriend.3 Although the officers were originally dispatched
to Lantern Park Apartments to investigate an erratic driving complaint, based on
the information contained in the communication from the dispatcher that an
assault may be occurring coupled with Mr. Linn’s report to the officers that
Defendant was assaulting his girlfriend (Ms. Eekoff) in the apartment, the case
turned into a domestic abuse assault investigation as well as an investigation of
the erratic driving complaint. Additionally, the Court finds that the officers had
information at that point suggesting that drinking may be playing a role in the
events. There was a report of an erratic driver that had been squealing tires. It
was the early morning hours (approximately 1:27 a.m.), which is a time when
people are frequently leaving the bars, and there was a report from Mr. Linn that
Defendant had been at a bar before leaving to proceed to Lantern Park
Apartments. While the most immediate concern facing the officers at the time
they decided to approach the apartment door was a domestic abuse assault
investigation, the officers already had information to suggest that an operating
while intoxicated offense may have occurred.
Mr. Linn identified the apartment where Defendant and Ms. Eekoff were
reportedly fighting. The officers approached that apartment and could hear loud
3
Officer Thompson testified that Linn told Officer Thompson that Linn thought Ms. Eekoff “may be getting killed
right now” by Defendant, or words to that effect. Defendant tried to impeach Officer Thompson with Officer
Williams’s investigative report. Besides the fact that impeaching Officer Thompson with Officer Williams’s report
did not show any inconsistent statement since Officer Thompson was not the author of the report with which
Defendant tried to impeach him, even the claimed inconsistency between Officer Williams’s report and Officer
Thompson’s testimony was not significant in relation to the issues raised. Officer Williams’s report (Defendant’s
Exhibit H) indicated that Linn was in fear that Defendant was going to “hurt Eekoff.” Whether Officer Thompson
was told that Defendant was “killing” Eekoff or “going to hurt” Eekoff is a distinction without a difference in this
context. The point is that the officers were given information suggesting that a domestic abuse assault was
occurring and the officers had the duty to investigate that allegation regardless of the severity of the assault.
4
and raised voices coming from inside. Officer Thompson knocked on the door to
the apartment and Defendant answered. In response to questioning from Officer
Thompson as to what was going on, Defendant reported that he and his
girlfriend were arguing, but everything was fine. Ms. Eekoff also appeared from
inside the apartment and reported to the officers that everything was fine. In
furtherance of the domestic abuse assault investigation, Officer Thompson
decided that it would be appropriate to separate the two occupants to get more
details about what was happening, if anything.4 Separating the two would allow
the officers to get both parties’ versions of events without the ability of the
parties to hear what the other one was saying so that the officers could
determine whether they were being lied to due to inconsistencies in the stories.
Additionally, it is common practice to separate the two people suspected of being
involved in a domestic abuse assault situation so that any alleged victim may
speak more candidly without the potential intimidation or fear of telling the
officers what happened in the presence of the alleged abuser. Consistent with
this investigative technique, Officer Thompson asked Defendant to step outside
to speak with Officer Williams while Officer Thompson spoke with Ms. Eekoff
inside the apartment.
After separating the two occupants of the apartment for further
questioning in furtherance of the domestic abuse assault investigation, Officer
Williams spoke with Defendant. The details of that questioning and answering
4
Defendant suggests that, once being told by the alleged assailant and the alleged victim that everything was fine,
the officers had nothing more to investigate and should have ceased interacting with Defendant. This suggestion is
unpersuasive for two reasons. First, as Officer Thompson pointed out, the officers would have been remiss in their
duties if they simply walked away after being told there was no problem. Based on experience and common
sense, the Court is aware, and presumably Officer Thompson is aware as well in his 19 years of law enforcement
experience, that it is not uncommon for domestic abuse assailants and victims to lie to the police and claim
nothing has occurred when, in fact, an assault has occurred. This is especially true when an assailant and victim
are standing right next to each other, as the victim may be fearful of telling the truth. In spite of the claims of
there being nothing improper occurring, the officers appropriately determined to continue investigating and to
separate the alleged assailant and alleged victim for further inquiry. Second, as previously mentioned, the officers
had information pointing to possible intoxication of Defendant before approaching the apartment door. After
coming into contact with Defendant and noting further signs of intoxication, the investigation appropriately
expanded to include an operating while intoxicated investigation even if the domestic abuse assault concern had
been alleviated.
5
were not provided at the hearing. The details may not be of significant
consequence in this case because no domestic abuse assault charges were filed
following the completion of the investigation. However, in the course of
questioning Defendant as part of the domestic abuse assault and erratic driving
investigations, Officer Williams detected signs of intoxication with respect to
Defendant. Based on those observations, coupled with the information that the
officers had before approaching the apartment door, the investigation expanded
to include an investigation of a potential operating while intoxicated charge. The
officers then continued that investigation and determined that Defendant had
been operating a motor vehicle at a time when he was intoxicated. Defendant
was then arrested and the charges contained in the Trial Information were filed
as a result.
IV. Legal Analysis.

Defendant’s motion raises two issues. Defendant claims that Defendant
was in custody from the time when the officers arrived at the apartment door
and that Defendant was subjected to interrogation while in custody without
being given appropriate Miranda warnings. Defendant also argues that
Defendant was subjected to an improper seizure before the questioning
occurred. The State counters that Defendant, to the extent Defendant was
seized, the seizure was a valid Terry investigatory stop. The State also argues
that Defendant was not in custody and, therefore, was not entitled to Miranda
warnings.
A. Investigatory Seizure.
The first issue that needs to be addressed is if and when a Terry stop or
seizure occurred. Defendant suggests that the officers had no right to approach
the apartment door and knock. This is not the case. Generally, a law
enforcement officer is permitted to approach a residence and knock on the door
6
without such contact being considered an illegal search or seizure. See, e.g.,
Davis v. U.S., 327 F.2d 301, 303 (9th Cir. 1964)(stating: “Absent express orders
from the person in possession against any possible trespass, there is no rule of
private or public conduct which makes it illegal per se, or a condemned invasion
of the person’s right of privacy, for anyone openly and peaceably, at high noon,
to walk up the steps and knock on the front door of any man’s “castle” with the
honest intent of asking questions of the occupant thereof – whether the
questioner be a pollster, a salesman, or an officer of the law.”). Even if the
officers had not had reasonable suspicion of criminal activity being afoot, which
they did, there was no improper seizure by the officers approaching the door and
knocking.
After knocking on the door, Defendant voluntarily answered. This also did
not constitute a seizure. After questioning of Defendant and Ms. Eekoff from
outside the apartment, Officer Thompson did direct Defendant out of the
apartment to speak with Officer Williams. It was at this point that a seizure
occurred. However, such seizure was a proper Terry stop or seizure at that point
in time. The Terry stop was proper because, even before knocking on the
apartment door, the officers had specific and articulable cause to reasonably
believe that criminal activity was afoot. An officer is allowed to stop an individual
or vehicle for investigatory purposes based on a reasonable suspicion that a
criminal act has occurred or is occurring. See, State v. Kreps, 650 N.W.2d 636,
641 (Iowa 2002)(citing Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20
L.Ed.2d 889, 906 (1968)). To justify an investigatory stop, the officer must be
able to point to specific and articulable facts, which taken together with rational
inferences from those facts, reasonably warrant that intrusion. Kreps, 636
N.W.2d at 641. The officers had such specific and articulable facts even before
knocking on the apartment door. Before knocking on the door, the officers had
been told or had observed the following:
7
(1) A driver of a silver pickup had been reported to be driving erratically

and squealing the truck’s tires and the vehicle was headed to the Lantern Park
Apartments;
(2) A silver pickup matching the description of the silver pickup was
parked at Lantern Park Apartments;
(3) Defendant was the driver of the silver pickup;
(4) Defendant and Ms. Eekoff were in a specified apartment unit;
(5) Defendant had driven the pickup from a local bar to the apartment
with Eekhoff;
(6) An argument was occurring between Defendant and Eekoff;
(7) Defendant and Eekoff were in a boyfriend/girlfriend relationship;
(8) A bystander (Linn) who claimed to have been with Defendant and
Eekoff believed that Defendant was harming Eekoff; and
(9) The officers could hear yelling and loud voices coming from the
apartment.
This information constituted specific and articulable facts that justified a

Terry stop to investigate a potential domestic abuse assault even before the
officers knocked on the door. After knocking on the door, the officers
immediately gained additional specific and articulable facts that warranted
further investigation of a potential operating while intoxicated charge, because
Defendant was observed to be exhibiting signs that he had been drinking,
consistent with and corroborative of the prior information that Defendant had
just driven home from a bar. See, e.g., State v. Aderholdt, 545 N.W.2d 559, 564
(Iowa 1996)(holding that if a detainee’s responses or actions raise suspicions
unrelated to the offense for which the detainee was originally being investigated,
the officer’s inquiry may be broadened to satisfy those suspicions). The totality
of the information available to the officers at that point gave them reasonable
suspicion to believe that Defendant may have been operating while intoxicated.
When an officer has reasonable cause to believe a driver is operating while
intoxicated, a suspect may be detained, asked to perform field sobriety tests and
comply with other investigatory requests without violating the suspect’s Fourth
Amendment rights. State v. Marks, 644 N.W.2d 35, 38 (Iowa App. 2002).
8
Defendant’s arguments claiming impropriety of the Terry stop are based

on an inaccurate premise as to the level of the burden that must be shown to
justify the stop. Defendant’s arguments are more in line with arguments to be
made to a jury at trial when the burden is beyond a reasonable doubt. The
officers do not face a “beyond a reasonable doubt” standard at the investigative
stage. The standard facing the officers was reasonable suspicion that criminal
act has occurred or is occurring. As an example of Defendant’s misfocused
argument, Defendant places great emphasis on the fact that it is not a crime for
a couple to argue and that arguing is not, itself, domestic abuse assault. While
that is true, the fact remains that arguing frequently accompanies domestic
abuse assault. Faced with information that Defendant and his girlfriend had
been arguing on the way home from the bar, that an acquaintance had observed
Defendant and his girlfriend in an ongoing argument, that the acquaintance
believed Defendant was going to harm his girlfriend, and the acquaintance’s
claim was at least partially corroborated by the fact that the officers could hear
yelling coming from inside the specified apartment, the officers had a right and
duty to investigate. That right included the right to temporarily detain the
alleged participants to further that investigation. It does not matter that the
investigation did not result in domestic abuse assault charges being filed
because, presumably, the spat turned out to be nothing more than a non-
assaultive verbal altercation. The fact remains that the officers had a right to
detain Defendant to investigate the suspected criminal activity, even if the
investigation revealed no criminal activity. The purpose of an investigation is to
try to make a determination of whether the reasonable suspicions that prompted
the investigation are accurate. The fact that the investigation revealed no
domestic abuse assault did not diminish the propriety of the investigation.
Another example of Defendant’s misfocused arguments surrounds
Defendant’s complaint that the officers did not see Defendant driving, so the
officers were not allowed to detain Defendant to investigate an operating while
9
intoxicated charge. This argument ignores the standard of proof and the fact
that not all information in support of a criminal charge comes from a single
witness. Before knocking on the apartment door, the officers were justifiably
investigating a suspected domestic abuse assault. However, they also had
information suggesting that Defendant had driven home from the bar, was
driving erratically, and was exhibiting excitable behavior by virtue of the fact that
he was in an argument. After lawfully encountering Defendant after knocking on
the door, the officers observed signs of consumption of alcohol. Does a report
that Defendant drove home from the bar, had been driving erratically, was in an
excited emotional state, and showed signs of having consumed alcohol
conclusively prove beyond a reasonable doubt that Defendant had operated a
motor vehicle while intoxicated? No. Does it constitute specific and articulable
facts that create a reasonable suspicion that a criminal act has occurred so as to
justify a Terry stop? Yes. The officers justifiably detained Defendant to further
the investigation to confirm or rule out their reasonable suspicion that Defendant
had been operating a motor vehicle while he was intoxicated. See, U.S. v.
Hickman, 523 F.2d 323 (9th Cir. 1975)(noting that it is the very purpose of an
investigatory stop to allow the officer to confirm or deny the officer’s suspicions
by reasonable questioning).
B. Claimed Custodial Interrogation.

Having determined that Defendant was lawfully detained pursuant to a
Terry stop to investigated suspected domestic abuse assault and, subsequently,
for operating while intoxicated, the Court must also address the issue of whether
Defendant was in custody for purposes of Miranda warnings being required.
Police officers are not required to administer Miranda warnings to everyone
whom they question. State v. Underwood, 845 N.W.2d 719 (Iowa App.
2014)(table – unpublished)(citing Oregon v. Mathiason, 429 U.S. 492, 495
(1977)). Miranda warnings are necessary when police have placed a restriction
10
on a person’s freedom to the extent that a person is rendered “in custody.” Id.
To determine if a person is in custody, courts examine the totality of the
circumstances surrounding the interrogation, but the ultimate inquiry is whether
police made a formal arrest or restrained the person’s freedom of movement to
the degree associated with a formal arrest. Id. (citing State v. Countryman, 572
N.W.2d 553, 557-58 (Iowa 1997)). The custody determination does not rise and
fall on the subjective views of either the officers or the person being questioned.
Id. (citing Stansbury v. California, 511 U.S. 318, 323 (1994)). Rather, courts
look to the objective circumstances of the interrogation and ask whether a
reasonable person in the Defendant’s position would have understood himself to
be in custody. Id. (citing Countryman, 572 N.W.2d at 558).
Along with considering the totality of the circumstances, Iowa courts also
apply a four-factor test. State v. Miranda, 672 N.W.2d 753, 759 (Iowa 2003).
The four factors are:
1. The language used to summon the individual;
2. The purpose, place, and manner of interrogation;
3. The extent to which the defendant is confronted with evidence of
the defendant’s guilty; and
4. Whether the defendant is free to leave the place of question.
Id. Iowa courts have used these same factors to help decide if someone is in
custody in various locations. Underwood, 845 N.W.2d 719 (at page 3)(citing
cases involving various locations including a school office, outside of a third
party’s home, at a police station, at the defendant’s home, at a suspect’s office,
and at a law enforcement center). No one particular factor is determinative of
the custody issue. Id. (citing State v. Smith, 546 N.W. 2d 916, 922 (Iowa
1996)). The general rule is “in-home interrogations are not custodial for
purposes of Miranda.” Id. (at page 4)(citing State v. Evans, 495 N.W. 760, 762
(Iowa 1993)). While an interrogation in one’s home is not determinative alone of
the custodial inquiry, it is usually indicative of the absence of the isolation
inherent in custodial interrogations. Coomer v. Yukins, 533 F.3d 477, 486 (6th
11
Cir. 2008)(citing Beckwith v. United States, 425 U.S. 341, 346 n.7, 347, 96 S.Ct.
1612, 48 L.Ed.2d 1 (1976)(finding that the suspect, who was questioned in his
home “hardly found himself in the custodial situation described by the Miranda
court as the basis for its holding [,]” because Miranda concerned “the principal
psychological factor” of “isolating the suspect in unfamiliar surroundings ‘for no
purpose other than to subjugate the individual to the will of his
examiner’”)(quoting Miranda, 384 U.S. at 457, 86 S.Ct. 1602)).
Assessing the first factor, Defendant was not summoned from his location
to respond to inquiries from law enforcement. While Defendant may have been
summoned a short distance outside the apartment so that Defendant could be
questioned separately from Ms. Eekoff, the language used to “summon”
Defendant was not such as to suggest Defendant was in custody.
Regarding the second factor, the purpose of the questioning was simple.
The officers were initially investigating a reported erratic driving and domestic
abuse assault. Defendant was the alleged assailant. The police were seeking
Defendant’s side of the story separately from the story of the alleged victim so
that a determination could be made as to the credibility of the stories. While the
questioning about the reported assault was taking place, the officers detected
additional signs of intoxication that then turned the purpose of the questioning to
questions regarding an operating while intoxicated investigation. In terms of
place, the questioning took place at the location where Defendant had chosen to
be (i.e., the apartment complex). While it was true that Defendant was directed
to step outside the apartment for the questioning, Defendant was not
significantly removed from Defendant’s chosen place and was not taken to an
unfamiliar surrounding when the questioning took place. With respect to the
manner of questioning, no evidence was presented to suggest that the
questioning was anything less than civil. In spite of the fact that there were two
officers on the scene, only one officer initially questioned Defendant while the
domestic abuse assault investigation occurred. After the investigation of the
12
domestic abuse assault finished, Officer Thompson did assist Officer Williams
with the continued OWI investigation and the conducting of field sobriety testing.
However, nothing about the two officers being present during the OWI
investigation suggests any coercive or uncivil questioning. Defendant was never
handcuffed during the questioning, officers did not draw their weapons, and no
evidence was presented that any type of intimidating or coercive questioning
environment was created.
With regard to the third factor, other than being told that law enforcement
was there to investigate concerns about a domestic abuse assault, no evidence
was presented to suggest that Defendant was confronted with evidence of
Defendant’s guilt. Defendant was simply asked what had happened. After being
told by both Defendant and Ms. Eekoff that everything was fine, the officer’s
continued questioning consisted simply of separating the two individuals and
asking some follow-up questions to make sure that accurate stories were being
given. As the investigation then expanded to include an operating while
intoxicated investigation, there was no confrontation of Defendant with evidence
of his guilt.
Regarding the fourth factor, during the questioning, the law enforcement
officers did not tell Defendant that Defendant was under arrest and also did not
tell him he was free to leave or free to ask them to leave. Officer Williams
testified that he had detained Defendant for purposes of questioning. To the
extent Officer Williams’s subjective intent controls, Defendant was not free to
leave. However, the fact that Defendant was not free to leave while the officers
conducted their investigation is not the equivalent of being “in custody” for
purposes of Miranda. Any detention of Defendant during the brief period of
questioning did not rise to a formal arrest or restrain Defendant’s freedom of
movement to the degree associated with a formal arrest, so Defendant was not
in custody for purposes of Miranda. Underwood, 845 N.W.2d 719 (at page
3)(citing State v. Countryman, 572 N.W.2d 553, 557-58 (Iowa 1997)). Drunk
13
driving suspects are frequently detained and not free to leave from the moment
law enforcement initiates a traffic stop. In that situation, even though the
suspect has been seized and detained, the suspect is not “in custody” for
purposes of Miranda. State v. Plager, 796 N.W.2d 459 (Iowa App. 2004)(table –
unpublished)(citing Berkemer v. McCarty, 468 U.S. 420, 440 (1984), for the
principle that it is well-settled that persons temporarily detained pursuant to a
traffic stop are not “in custody” for the purposes of Miranda.) Although there
was no traffic stop involved in this case, the issues surrounding continued
detention are the same. The continued detention of Defendant once the
investigation expanded from an investigation of erratic driving and domestic
abuse assault to an OWI investigation did not render Defendant “in custody” for
Miranda purposes.
After considering the totality of the circumstances and after consideration
of the four-factor test, a reasonable person in Defendant’s position would not
have understood himself to be in custody such that the requirement that Miranda
warnings be given was triggered. Since Defendant was not in custody at the
time that he was questioned by Officer Thompson or Officer Williams, the
officers were not required to give Miranda warnings. Consequently, Defendant’s
motion must be denied.
IT IS, THEREFORE, ORDERED that Defendant’s motion seeking to
suppress evidence is hereby denied.

County Attorney
Defense Counsel: Eric Parrish
14
Type: OTHER ORDER

FECR033879 STATE OF IOWA VS RYAN LEE MAASDAM
So Ordered

E-FILED 2016 JUL 07 1:18 PM WRIGHT - CLERK OF DISTRICT COURT
Plaintiff,
v.
WILLIAM ELDON PAUL PILCHER, SUPPRESS EVIDENCE
Defendant.
Defendant is charged with Operating While Intoxicated, Second Offense.

Defendant filed a motion seeking to suppress evidence. Defendant claims that the
stop of the vehicle that Defendant was allegedly driving violated Defendant’s rights
to be free from unreasonable searches and seizures secured by the Fourth and
Fourteenth Amendments to the United States Constitution and Article I, Section 8 of
the Iowa Constitution.1 Defendant claims that since the stop of the vehicle was
unconstitutional, all evidence obtained following the stop of the vehicle was also
illegally obtained and, therefore, should be suppressed. The State resisted the
motion, claiming that the stop of the vehicle was within constitutional parameters.
A hearing on Defendant’s motion was held on June 24, 2016. Defendant
personally appeared at the hearing along with his attorney, Alesha Sigmeth Roberts.
The State of Iowa was represented by Assistant County Attorney Jonathan Murphy.
After hearing the evidence presented and the arguments of counsel, the Court took
the matter under advisement. The Court has now further considered the evidence
and issues in more detail and conducted additional research and now enters this
ruling.
I. FACTUAL SUMMARY AND FINDINGS.

The facts are essentially undisputed. Eagle Grove police officer Bryan Dayton
1Defendant’s written motion is not clear as to which constitutional provisions are relied upon by Defendant.
However, during the course of the suppression hearing held on June 24, 2016, defense counsel clarified that
the constitutional challenge was made under the Fourth and Fourteenth Amendments to the United States
Constitution and Article I, Section 8 of the Iowa Constitution. The State did not object to proceeding on that
basis. Based on the discussion at the suppression hearing, the Court will treat Defendant’s motion as raising
both federal and state constitutional issues.
was on duty on April 11, 2016, at approximately 1:28 a.m. At that time, the officer
came into visual contact with a vehicle. The officer called in the vehicle’s license
plate information to dispatch, which resulted in information about the vehicle and
owner being provided. Nothing about that communication caused any concern to
the officer. After hearing that the registered owner was a Robin Parker (a person
the officer did not know prior to initiating the stop), the officer asked the dispatcher
to do a “27” on Parker, which was a request for information about the registered
owner. The information that was communicated to the officer regarding Parker was
“no record on file.” The officer testified that “no record on file” means that
information could not be found on the registered owner having a license in Iowa.
The officer testified that frequently, when a 27 is run on a registered owner,
information will come back that the owner is valid to drive, barred, revoked,
suspended, wanted, or “no record on file.” If a registered owner does not have a
valid Iowa driver’s license, the report from dispatch in response to a request for a
27 would be “no record on file.” The officer testified that, in the majority of the
cases when the report comes back “no record on file” and a traffic stop is initiated,
the registered owner does not have a valid driver’s license and is in violation of Iowa
Code Section 321.174. However, the officer conceded that “no record on file” also
encompasses the situation where the registered owner does not have an Iowa
driver’s license, but has a valid driver’s license from another state or country.
In this case, after receiving the “no record on file” report from dispatch, the
officer initiated a traffic stop. The driver of the vehicle was Defendant. Robin
Parker, the registered owner of the vehicle, was a passenger in the vehicle and was
discovered to have a Missouri driver’s license in her possession. Based on the
officer’s interaction with Defendant after the traffic stop was initiated, Defendant
was charged with Operating While Intoxicated, Second Offense. Before initiating
the stop, the officer did not have any information as to the gender of Robin Parker
and did not have any information that would suggest that the registered owner was
not the driver of the vehicle.
2
II. LEGAL ISSUES PRESENTED.

Both parties rely on State v. Vance 790 N.W.2d 775 (Iowa 2010), in support
of their respective positions. Vance holds that an officer has reasonable suspicion to
initiate an investigatory stop of a vehicle to investigate whether the driver has a
valid driver’s license when the officer knows the registered owner of the vehicle has
a suspended license and the officer is unaware of any evidence or circumstances
indicating the registered owner is not the driver of the vehicle. State v. Vance 790
N.W.2d 775, 781 (Iowa 2010). It is reasonable for an officer to infer the registered
owner of the vehicle will do the vast amount of the driving. Id. Although this
inference may be fallible, it is sufficiently reasonable to generate reasonable
suspicion for an investigatory stop to resolve the ambiguity as to whether criminal
activity is afoot. Id. at 781-82. Additionally, to forbid the police from relying on
such an inference to form reasonable suspicion for an investigatory stop would
seriously limit an officer’s ability to investigate suspension violations because there
are few, if any, additional steps the officer can utilize to establish the driver of a
vehicle is its registered owner. Id. at 782. Finally, allowing a stopping officer to
infer the registered owner is the driver, absent any evidence to the contrary,
ensures the safety of the roadways and of law enforcement. Id.
Defendant attempts to distinguish Vance by pointing out that Vance dealt
with a situation where it was known that the registered owner was suspended.
When it is known that the vehicle’s owner’s driver’s license is suspended, Vance
simply holds that it is permissible for the officer to infer that the driver is the owner
and to stop the vehicle. In this case, Defendant points out that there is a second
inference that would have to be made to justify a traffic stop. As Defendant notes,
to justify a stop in this case, not only would there have to be the inference that is
permitted by Vance of assuming that the owner is the driver, but there must be a
second inference that the report from dispatch that the owner had “no record on
file” means that the owner did not have a valid driver’s license as opposed to the
innocent behavior of having an out-of-state or out-of-country driver’s license.
3
Defendant argues that allowing the second inference goes too far and goes beyond
the holding in Vance.
III. LEGAL ANALYSIS AND CONCLUSIONS.

As mentioned, prior to the initiation of the traffic stop in this case, there were
two ambiguities at issue:
(1) whether the registered owner was the driver of the vehicle; and
(2) whether “no record on file” meant that the registered owner/driver
needed to have an Iowa driver’s license but did not have one (which
would be criminal activity by the owner/driver in violation of Iowa Code
Section 321.174) or whether it meant that the registered owner/driver
had an out-of-state driver’s license (which would not be criminal
activity by the owner/driver).
A. The First Ambiguity (Identity of the Driver).

With regard to the first ambiguity, Vance controls and it was permissible for
the officer to conduct an investigatory stop to resolve the ambiguity as to whether
the registered owner was the driver. In this case, before the vehicle was stopped,
the officer had only the registered owner’s name, which was Robin Parker. Given
the androgynous nature of the owner’s first name, coupled with the fact that the
officer did not know Robin Parker before the stop, the officer had no information as
to the gender of the driver. Furthermore, the officer could not see the driver
because it was dark out. In other words, the officer had no information that would
have suggested that the registered owner was not the driver of the vehicle.
Consequently, under Vance, the officer was justified in making an investigatory stop
to resolve the ambiguity as to whether the registered owner was the driver.
B. The Second Ambiguity (Resident or Nonresident Owner).

The fighting issue in this case is whether an investigatory stop was justified to
resolve the second of the above-identified ambiguities. As would be expected, there
are arguments on both sides of this issue.
4
1. The State’s Arguments.

The State has the argument that the same rationale that justified an
investigatory stop to resolve the ambiguity as to whether the registered owner is the
driver, as allowed in Vance, also justifies an investigatory stop to resolve the
ambiguity of whether “no record on file” involves the crime of driving without a
driver’s license or the non-criminal behavior of driving with an out-of-state license.
Vance permits an inference that the owner is the driver in order to justify a traffic
stop to resolve the ambiguity of who is driving the vehicle, even though any one of
the more than 7.4 billion other people on Earth other than the owner could
potentially be the driver. 2 In contrast to the staggering number of other
possibilities regarding the ambiguity of the identity of the driver, with respect to the
ambiguity of what “no record on file” means, there are only two possibilities
(assuming the owner is the driver): (1) either the crime of no valid driver’s license
in violation of Iowa Code Section 321.174 is being committed; or (2) lawful activity
is occurring because the owner is an out-of-state licensed driver. In other words,
what needs to be resolved with regard to the first ambiguity is whether the owner is
the driver or one of over 7.4 billion other people is the driver. What needs to be
resolved with regard to the second ambiguity is whether the owner is required to
have an Iowa license and does not have one or the owner is not required to have
one because the owner is a nonresident. The State has the argument that, if Vance
permits a stop to resolve the first ambiguity in spite of the overwhelming number of
other possibilities, Vance permits a stop to resolve the second ambiguity, which
involves only two possibilities. According to the State, the fact that one of those
possibilities involves illegal behavior is reasonable suspicion to justify an
investigatory stop.3
2According to www.worldometers.info, the current world population is over 7.4 billion people.
3In support of the argument that there was reasonable suspicion to justify a stop, there was some suggestion
during the officer’s testimony that “no record on file” must mean that the person was unlawfully driving
without an Iowa driver’s license, rather than with a valid out-of-state license, because a nonresident is not
permitted to register a vehicle in Iowa. Although the officer backed away from that claim in response to later
questioning by responding that he did not know whether a nonresident could register a vehicle in Iowa, the
5
Additionally, the State can rely on one of the rationales supporting the
holding in Vance. That rationale is that to forbid the police from relying on an
inference (i.e., that the registered owner is the driver) to form reasonable suspicion
for an investigatory stop would seriously limit an officer’s ability to investigate
suspension violations because there are few, if any, additional steps the officer
could utilize to determine whether the driver of a vehicle is its registered owner.
Vance 790 N.W.2d at 782. The State argues that the same rationale controls with
regard to the second ambiguity in that there are few, if any, additional steps the
officer could utilize to determine whether the owner is required to be licensed in
Iowa to drive or whether the owner is a nonresident lawfully allowed to drive in
Iowa with an out-of-state driver’s license.
2. Defendant’s Arguments.
Of course, the defense has arguments as well. One argument is that, in
Vance, had the registered owner been driving, a crime was being committed (i.e.,
Driving Under Suspension). In contrast, in this case, if the registered owner had
been driving, no crime was being committed. Defendant argues that this distinction
demands a finding that the stop was unconstitutional.
Additionally, Defendant argues that stretching Vance so far as to allow a stop
in this case would subject out-of-state owners and drivers to unreasonable stops
with no way to protect themselves from such intrusions. See, e.g., U.S. v. Nicholas,
448 F.2d 622, 625 (8th Cir. 1971)(noting that the fact that a car has out-of-state
Court believes it would be appropriate to address that suggestion. The Court concludes that non-Iowa
residents are permitted to register a vehicle in Iowa. Iowa Code Section 321.18(1) references registration
requirements related to nonresidents, suggesting that nonresidents are permitted to register vehicles in
Iowa. Additionally, Iowa Code Section 321.55(1) specifically references situations where a nonresident
owner of a vehicle is required to register the vehicle in Iowa. Finally, regulations pertaining to registration of
vehicles specifically state that when none of the primary users of a nonresident-owned vehicle are located in
Iowa, the vehicle may be registered by the county treasurer of any county. IOWA ADMIN. CODE r. 761-
400.5(1)(2012). These authorities demonstrate that there are a number of circumstances in which it is legal
for a nonresident to register a vehicle in Iowa. Consequently, the suggestion that it would be per se unlawful
for an out-of-state licensed owner to register a vehicle in Iowa appears to be without merit.
6
license plates does not, of itself, indicate criminal activity). This is because, as in
this case where there is no indication that the vehicle was unlawfully registered in
Iowa, there is nothing the owner could do to protect against these types of
investigatory stops.
C. Conclusions.
Defendant has the better of the argument. Vance clearly allows the
ambiguity as to whether the registered owner is the driver of the vehicle to be
resolved by stopping the vehicle to investigate. However, to allow an investigatory
stop to resolve the second ambiguity (i.e., whether “no record on file” meant
unlawful driving by an Iowa resident without a valid driver’s license or whether it
meant an out-of-state person driving with a valid out-of-state license) goes too far
and is not supported by Vance. The rationales justifying an investigatory stop in
Vance do not extend to justifying an investigatory stop to resolve the second
ambiguity. There were essentially three rationales supporting the ruling in Vance:
1. it is reasonable to infer that the registered owner will do the vast
amount of the driving;
2. prohibiting an investigatory stop would seriously limit an officer’s ability
to investigate suspension violations; and
3. allowing a stopping officer to infer the registered owner is the driver,
absent any evidence to the contrary, ensures the safety of the
roadways and of law enforcement.
Vance, 790 N.W.2d at 782. Those rationales do not support stopping a vehicle to
resolve the second ambiguity. Each rationale will be addressed in turn.
First, it is not reasonable to infer that “no record on file” encompasses the
unlawful activity of driving without a driver’s license in violation of Iowa Code
Section 321.174 rather than the lawful activity of the registered owner being a
nonresident of fact. In fact, to permit such an inference would result in a
nonresident owner of a vehicle who is acting lawfully to be subjected to continuous
and unconstitutional intrusions. The intrusion of an investigatory stop that was
7
allowed in Vance could be avoided by both the registered owner and the actual
driver. The owner could avoid stops by not driving the vehicle and not allowing
someone else to drive the vehicle. The actual driver could have avoided the stop by
making sure the owner was licensed to drive before borrowing the vehicle.4 Here,
there is nothing that the owner or driver could do to avoid an investigatory stop in
spite of completely lawful behavior. In this case, the owner of the vehicle was
apparently a Missouri resident with a Missouri driver’s license and it was not
unlawful for her to drive the vehicle or to allow someone else to drive the vehicle.5
Consequently, unlike the situation in Vance, no crime was being committed
regardless of whether the owner was driving or someone else was driving with the
owner’s permission, yet the vehicle would be subject to being stopped at any time.
To uphold the stop in this case would open the door to allowing any nonresident
owner of a vehicle lawfully registered in Iowa to be subject to being stopped at any
time. There is nothing the nonresident owner could do to avoid such intrusions.
The Court does not believe that either the federal or the state constitution permits
exposure to such unlimited and unpreventable intrusions for completely lawful
behavior. There is no inference that can justify that outcome.
With regard to the second rationale, unlike in Vance, where there was very
little other investigation that an officer could do to resolve the ambiguity as to who
was driving the vehicle, there was additional investigation that could have been
done in this case. When the officer received the information that there was “no
4 The Court is not suggesting that it is illegal or even inappropriate for a licensed driver to drive someone
else’s vehicle with the owner’s permission. The Court is simply pointing out that, by borrowing someone
else’s vehicle, the nonowner driver is exposed to some risks outside his or her control. While the driver in
Vance was not committing a driving-related crime himself, he was subjected to an investigatory stop because
he was driving someone else’s vehicle that could not be lawfully operated by the owner. Unfortunately for
the driver in Vance, that was the price that was paid for making the decision to drive someone else’s vehicle
when the owner had some legal issues pertaining to operation of the vehicle, just as the driver would if there
was some other problem with the vehicle (e.g., expired registration, equipment violations, etc.).
5 The evidence presented was that the owner of the vehicle was a passenger in the vehicle and was in
possession of a Missouri driver’s license. The officer did not confirm whether the license was valid.
Confirmation of whether the owner’s driver’s license was valid is not important to the issue at hand. Even if
the registered owner was not validly licensed to drive in Missouri, the officer had no knowledge of that fact
prior to the initiation of the stop.
8
record on file,” the officer could have asked the dispatcher to provide additional
information as to whether that meant that the person was an Iowa resident without
a license (i.e., illegal behavior) or a nonresident owner (i.e., legal behavior).6 The
fact that the officer chose not to try to gather such additional information through
dispatch, which, if provided, would have resolved the ambiguity and negated the
justification for the stop, does not justify an investigatory stop.
With regard to the third rationale, an inference that “no record on file” means
the owner is unlawfully driving without a license, as opposed to lawfully driving with
an out-of-state license, would not ensure the safety of the roadways and of law
enforcement. This rationale supports the stop in Vance, but does not support the
stop in this case. In Vance, had the registered owner been driving, a crime was
being committed. Here, if the registered owner had been driving, no crime was
being committed.
In summary, the rationales supporting an investigatory stop to resolve the
ambiguity in Vance do not support an investigatory stop to resolve the second
ambiguity that exists in this case (i.e., whether “no record on file” meant that the
owner was unlawfully driving without a license instead of lawfully driving with an
out-of-state license). Given the information available to the officer at the time of
the stop, there simply was not enough evidence to justify an investigatory stop to
resolve the ambiguity of whether the owner had no valid driver’s license or had a
valid out-of-state driver’s license. The officer did not utilize other means to resolve
6The record does not show whether such additional information would be available to the dispatcher to
provide to the requesting officer. If such information was available, it could have been provided upon request
of the officer. The officer’s failure to request the information negates the rationale justifying a stop to resolve
the ambiguity because the officer could have resolved the ambiguity by other, less intrusive means. Even if
the information was not available to the dispatcher, that is a deficiency in the recordkeeping of the
governmental entities involved. If a nonresident owner of a vehicle registers a vehicle in Iowa, it seems to be
a fairly simple task to gather the data at the time of registration showing that the owner is a nonresident.
That information could presumably be included in the “27” dispatch report to a requesting officer. Even if
that information is not collected by the governmental entities involved and available to the dispatcher or the
requesting officer, the burden of the failure of the governmental entities involved to gather that information
and make it available to the investigating officer should not fall on the shoulders of nonresident owners of
vehicles by subjecting them to intrusive stops and seizures. To allow such stops and seizures simply because
the governmental entities involved did not collect and distribute information that would be available to them
would make the seizures unreasonable and in violation of federal and state constitutional principles.
9
the ambiguity. The ambiguous information available did not rise to the level of
reasonable suspicion to believe that criminal activity was afoot and amounted to
nothing more than mere suspicion or hunch. Furthermore, to allow inferences to
justify an investigatory stop in this case would subject law-abiding, nonresident
owners of vehicles registered in Iowa to limitless and endless stops at any time with
no means of protecting themselves from such intrusions. Such intrusions violate the
protections of being free from unreasonable searches and seizures secured by the
Fourth and Fourteenth Amendments to the United States Constitution and Article I,
Section 8 of the Iowa Constitution.
evidence is hereby granted.
IT IS FURTHER ORDERED that all evidence obtained following the stop of the
subject vehicle is hereby suppressed and is inadmissible at trial.

County Attorney
Defense Counsel: Alesha Sigmeth Roberts
10
Type: OTHER ORDER

OWCR034176 STATE OF IOWA VS WILLIAM ELDON PAUL PILCHER
So Ordered

E-FILED 2016 JUL 08 2:39 PM HARDIN - CLERK OF DISTRICT COURT
STATE OF IOWA, AGCR309792
Plaintiff,
v.
RULING ON MOTION TO
MARGARET EVELYN BRITCHER, SUPPRESS EVIDENCE
Defendant.
Responding to what turned out to be an erroneous tip that an individual with

an outstanding warrant for his arrest was in a certain location, a law enforcement
officer ordered three occupants out of a pickup truck at gunpoint. Defendant was
one of those occupants. After discovering that the tip was erroneous, law
enforcements officers still conducted a search of Defendant’s purse, revealing
contraband that forms the basis of the charge against Defendant in this case (i.e.,
Possession of Methamphetamine, Second Offense).
Defendant has filed a motion seeking to suppress the evidence obtained,
claiming the search of Defendant and her purse violated Defendant’s rights to be
free from unreasonable searches and seizures secured by the Fourth and Fourteenth
Amendments to the United States Constitution and Article I, Section 8 of the Iowa
Constitution. The State resisted the motion, claiming the search fit within
recognized exceptions to the warrant requirement.
A hearing on Defendant’s motion was held on June 21, 2016. Defendant
personally appeared at the hearing along with her attorney, Doug Cook. The State
of Iowa was represented at the hearing by Assistant County Attorney Denise
Patters. At the conclusion of the hearing, the parties were given an additional week
to submit legal authorities in support of their respective positions. The issue was
deemed submitted at the close of the briefing deadline on June 28, 2016. The
Court has considered the evidence and arguments presented at the suppression
hearing and considered the legal authority cited by the parties and issues this ruling.
I. FACTUAL SUMMARY AND FINDINGS.

The evidence submitted to the Court consisted of the testimony of Officer
Michael Emerson and State’s Exhibit 1, which is an audio and video recording taken
from Officer Emerson’s body camera. Michael Emerson (“the officer”) is a part-time
police officer for the Iowa Falls Police Department. The officer was on duty on
March 24, 2016, when he received communication from a law enforcement
dispatcher. The information provided was that a person that was wanted on an
outstanding warrant (i.e., Jeremy Brocka) was in a vehicle that was parked at a
canoe launch near the river in Iowa Falls. The officer proceeded to that location
and observed a pickup truck facing the river. The officer pulled up behind the
vehicle and stopped. The officer saw three individuals in the vehicle and noted that
the occupants were moving. The pickup’s brake lights came on and the officer
heard the vehicle’s engine start. At that point, the officer activated his emergency
lights and exited his vehicle. The officer drew his weapon, moved to the front of his
squad car, and began yelling at the occupants to stop moving and to show their
hands. All three of the occupants were ordered out of the vehicle at gunpoint in a
very aggressive and loud manner by the officer and commanded to place their
hands on separate locations around the vehicle. The occupants complied. The
occupants consisted of a female in the driver’s seat, a female in the middle seat,
and a male in the passenger seat. Another law enforcement officer arrived on the
scene to assist Officer Emerson.
The officer began getting identification information from the three occupants.
The three occupants of the vehicle turned out to be Defendant (seated in the
driver’s seat), Camilla Thompson (seated in the middle), and Christopher Archer
(seated in the passenger’s seat). Jeremy Brocka, the person that was wanted on
the outstanding warrant that prompted the call from the dispatcher, was not in the
vehicle or anywhere in the canoe launch area.
The identity of Mr. Archer was not immediately verified because, when he
was asked to identify himself, he gave the name of Adam Archer. Without Mr.
2
Archer’s consent, the officer pulled a wallet out of Mr. Archer’s pocket and found
identification with the name of Christopher Archer. The officer testified that he
smelled marijuana emanating from Mr. Archer. The officer, justifiably, immediately
became suspicious regarding the accuracy of Mr. Archer’s claim that he was Adam
Archer rather than Christopher Archer. The officer then went to the front of the
truck, where the officer had commanded Ms. Thompson to stand, and spoke to Ms.
Thompson. In response to questions about her identification, Ms. Thompson
acknowledged that her identification was in her purse which was in the cab of the
pickup. Without consent, the officer reached into the cab of the pickup and
retrieved Ms. Thompson’s purse. While he was reaching into the cab of the pickup,
the officer did not note any smell of marijuana coming from inside the pickup. After
retrieving Ms. Thompson’s purse, he set the purse on the hood of the vehicle and
began talking with Ms. Thompson. The officer asked Ms. Thompson regarding the
smell of marijuana coming from Mr. Archer. Ms. Thompson unequivocally denied
that any marijuana was being smoked by the three individuals that had been in the
pickup. In response to questions about the identity of Mr. Archer, Ms. Thompson
essentially begged the officer not to make her say. The officer informed her that it
was okay, that she did not need to answer, and that he knew that Mr. Archer was
“full of crap.”
The officer then returned to the back of the pickup where he had directed
Defendant and Mr. Archer to stand and began speaking with Mr. Archer. When he
referred to Mr. Archer as Christopher Archer, Mr. Archer “corrected” the officer and
stated that his name was Adam Archer. In response to Mr. Archer’s comment, in
the presence and hearing of Defendant, the officer threatened to arrest Archer for
false reports if he continued to claim that he was Adam Archer. Mr. Archer then
immediately acknowledged that his name was Christopher Archer. Mr. Archer also
admitted that he had been lying about his identity because he knew there was an
outstanding warrant for his arrest. No further investigation was needed as to the
identity of Mr. Archer at that time, as the officer had already retrieved an
3
identification card demonstrating that the individual was Christopher Archer and Mr.
Archer had admitted that he was Christopher Archer.
At that point, the officer clearly knew that none of the occupants of the
vehicle were the person that he had been looking for when he first arrived on the
scene (i.e., Jeremy Brocka). The officer had also resolved any issues as to the
identity of Christopher Archer. Additionally, the officer had no reason to believe that
Defendant possessed any illegal drugs, as the officer had not noticed any smell of
marijuana coming from Defendant or Ms. Thompson, there was no smell of
marijuana in the vehicle, and Ms. Thompson had denied any marijuana smoking
taking place at the location. The only indication of any drug activity was the
claimed smell of marijuana emanating from Mr. Archer. Based on these
circumstances, the officer had no further reason for detaining Defendant. In spite
of that fact, the officer never told Defendant that she was free to go. In fact, at all
times during his involvement with the occupants of the vehicle, the officer had very
forcefully demanded that they keep their hands on the vehicle and forcefully yelled
at anyone that removed their hands from the vehicle. At that point, Defendant had
not been told that she was free to go and the Court finds that no reasonable person
in that circumstance would have felt free to go.
In spite of the fact that there was no further basis for detaining Defendant,
the officer began questioning Defendant about the contents of the pickup.
Defendant denied that there were any illegal items in the pickup. In response to a
question of whether there were any weapons, Defendant stated that there may be a
machete under the seat. The officer then asked, “Would you give us permission to
search it to make sure there is nothing illegal in there?” Defendant indicated that
that was “okay” with her. Law enforcement officers on the scene then searched the
cab of the pickup and searched Defendant’s purse. Methamphetamine was found in
Defendant’s purse, resulting in the charge that forms the basis for this case.
Additional facts may be discussed in the context of analyzing the legal issues
involved.
4
II. LEGAL ISSUES AND ANALYSIS.

Defendant challenges the search of Defendant’s person and property.
Defendant asserts that the searches were conducted without a warrant and without
an exception to the warrant requirement, in violation of Defendant’s rights to be
free from unreasonable searches and seizures secured by the Fourth and Fourteenth
Amendments to the United Constitution and Article I, Section 8 of the Iowa
Constitution. The State acknowledges that there was a warrantless search such that
an exception to the warrant requirement was necessary. The State asserts
exceptions to the warrant requirement existed. The exceptions relied upon by the
State are as follows:
1. Probable cause coupled with exigent circumstances based on the
marijuana smell emanating from Archer;
2. Probable cause coupled with exigent circumstances based on furtive
movements of the occupants of the vehicle;
3. Probable cause coupled with exigent circumstances based on Archer’s
false information regarding his name;
4. Probable cause coupled with exigent circumstances based on
Defendant’s admission that there may be a machete under the seat;
and
5. Defendant consented to the search.
The Court will address each of these issues in turn.
A. Probable Cause & Exigent Circumstances – Marijuana Smell.

The State relies on State v. Eubanks, 355 N.W.2d 57 (Iowa 1984), in support
of its claim that the smell of marijuana emanating from Archer justified the search of
Defendant’s purse. As noted in Eubanks, a police officer may search an automobile
without a warrant when probable cause and exigent circumstances exist. Eubanks,
355 N.W.2d at 59. The smell of marijuana drifting from a vehicle can provide
reasonable cause to conduct a comprehensive search of the car. Id. The smell of
marijuana emanating from Archer may have justified a search of Archer. See State
v. Eubanks, 355 N.W.2d 57, 59 (Iowa 1984); and State v. Merrill, 538 N.W.2d 300,
5
302 (Iowa 1995). However, in terms of the search of the vehicle and Defendant’s
purse, the problem for the State is that the smell of marijuana was not emanating
from the vehicle. The only indication of marijuana was the smell coming from Mr.
Archer only. The officer had his head in the pickup while retrieving Ms. Thompson’s
purse from the pickup. In spite of the fact that the officer would have been on alert
to look for marijuana because he had already noted the smell of marijuana coming
from Mr. Archer before the officer reached into the cab of the pickup, the officer did
not note any smell of marijuana in the pickup. If the claimed smell of marijuana
coming from Mr. Archer had been a result of marijuana in the vehicle, it would be
expected that the smell of marijuana would be in the vehicle as well. It was not.
Additionally, the officer noted no smell of marijuana on Defendant or Ms.
Thompson. Furthermore, Ms. Thompson clearly denied that the occupants of the
vehicle had been “smoking weed” at the canoe launch location. Under these
circumstances, the exigent circumstances that justified a search in Eubanks simply
did not exist in this case. There was no probable cause to believe there was
marijuana in the cab of the pickup or in Defendant’s purse. Consequently, the
search of the pickup and Defendant’s purse were not justified based on this
exception to the warrant requirement.
B. Probable Cause & Exigent Circumstances – Furtive Movement.

The State seeks to justify the search of Defendant and Defendant’s purse on
the basis of probable cause with exigent circumstances related to claimed “furtive
movements.” Furtive actions by suspects can support a finding of probable cause
and exigent circumstances. See, e.g., State v. Merrill, 538 N.W.2d at 302 (holding
that the smell of burnt marijuana coupled with defendant’s furtive attempts to hide
something in his hand provided sufficient probable cause to search defendant’s
hand). The problem for the State in this case is that furtive movements were not
established. As noted during the hearing, the Court has experienced numerous
situations where law enforcement officers throw out the phrase “furtive movements”
6
in support of their actions, but provide few, if any, details about what “furtive
movements” occurred. The Court suspects that this phenomenon stems from law
enforcement training during which law enforcement officers are informed that
“furtive movements” can justify a search, so officers learn to sprinkle their testimony
with the phrase “furtive movements.” However, as in this case, the officers are
frequently incapable of providing any meaningful detail as to what actions
constituted "furtive movements.” In this case, the claimed furtive movements
occurred before the officer even had any contact with the occupants of the vehicle.
The officer arrived at the scene but did not engage his emergency lights. He then
claimed that he saw “a lot of movement from all three of them inside the vehicle.”
No details were given as to what that movement was. The officer then claimed that
he became suspicious when the brake lights of the vehicle came on and the
vehicle’s engine was started. This caused the officer to turn on his emergency lights
and seize the occupants of the vehicle. The Court finds this sequence of events
interesting for a variety of reasons. First, the fact that the officer did not engage his
emergency lights upon arrival suggests that he realized he may have been
approaching the wrong vehicle and did not have a basis for immediately seizing the
occupants. Second, until the emergency lights were activated, the State would
justifiably be able to argue that the occupants of the vehicle were free to leave and
that no seizure had occurred at that point in time. Consequently, had the officer
approached the vehicle and the occupants did not leave, the encounter would be
deemed to be consensual. However, in spite of the fact that the occupants were
free to leave before the emergency lights were activated, the officer deemed it
“suspicious” when the occupants actually exercised their right to leave by starting
the vehicle’s engine, causing the officer to activate his lights and seize the vehicle
and its occupants. There is no evidence to suggest that the occupants were fleeing
or even that they had noticed that the officer was there. It was not even a situation
where the occupants were outside the vehicle, the law enforcement vehicle pulled
up, and then the occupants headed toward the vehicle. In fact, the sequence of
7
events suggests that the occupants of the vehicle may have been ready to leave the
location and were simply getting settled into the vehicle when the officer arrived,
which would not only explain their movement in the vehicle, but also the fact that
the vehicle’s engine was started. There is nothing about the beginning of this
encounter that suggested suspicious behavior by the occupants, and the effort to
paint it as such is unpersuasive.
The Court’s conclusion in this regard is further bolstered by the lack of
specificity given by the officer with respect to the claimed “furtive movements.”
Besides his initial and vague description that he saw “a lot of movement from all
three of them inside the vehicle,” the officer later referred to the movements as
simply “furtive movements.” He was then specifically asked the following question
and gave the following answer:
Q: What type of movements did you observe in the vehicle?
A: All three individuals were moving back and forth.
This description does not convince the Court that there were any furtive
movements. Besides the lack of specificity that would support a conclusion of
furtive movements taking place, the description that there was “a lot of movement”
and that the individuals “were moving back and forth” is consistent with people
engaged in any number of lawful activities, including settling into a vehicle to leave,
putting on seat belts to leave, moving around to the beat of music that may have
been being played in the vehicle, or passing a cigarette between the occupants.
The term “furtive” means done by stealth, surreptitious, expressive of stealth.
MERRIAM-WEBSTER DICTIONARY. There is nothing about the description of what the
occupants did in the vehicle that would suggest that their movements were furtive
or in any way suspicious. The movements described did not rise to the level of
“furtive movements” that would support a finding of probable cause with exigent
circumstances that justified a search of Defendant, the vehicle, or Defendant’s
purse.
8
C. Probable Cause & Exigent Circumstances – Identity Of Archer.

The State also seeks to justify the search of Defendant and her purse by
virtue of the fact that Christopher Archer initially gave a false name. The State
argues that the misinformation regarding Archer’s name that was given by Archer
contributed to the totality of the circumstances establishing probable cause with
exigent circumstances to justify a search of Defendant, the pickup, and Defendant’s
purse. The Court strongly disagrees. By the time the pickup and Defendant’s purse
were searched, any uncertainty as to the identity of Christopher Archer had been
fully resolved. The officer was almost immediately aware of the false name given by
Mr. Archer based on the officer’s search of Mr. Archer’s wallet and Mr. Archer’s
admissions as to his identity. There was nothing about Mr. Archer’s providing of
false information as to his identity that in any way established probable cause and
exigent circumstances to search the pickup cab or Defendant’s person or purse.
D. Probable Cause & Exigent Circumstances – Weapon.

The State further seeks to justify the search of Defendant’s purse on the
basis that Defendant had admitted that there may be a machete under the seat of
the pickup. This claim by the State is problematic for three reasons.
First, at the time Defendant made this admission, there was no longer any
lawful purpose for detaining her, yet Defendant was not informed of her right to
leave or not answer the officer’s question. Because the admission was made at a
time when Defendant was unlawfully detained, the admission was not voluntary and
forms no legitimate basis for a search based on the admission.
Second, Defendant’s admission or confession was not voluntary. The State
bears the burden of proving by a preponderance of the evidence that an accused’s
confession is voluntary. State v. Bowers, 661 N.W.2d 536, 541 (Iowa 2003). The
ultimate test in making this determination is whether, under the totality of the
circumstances, the statements were the product of an essentially free and
unconstrained choice, made by the subject at a time when that person’s will was not
9
overborne or the capacity for self-determination critically impaired. Id. For the
same reasons addressed in the next section of this ruling where the Court explains
why Defendant’s consent to search was not voluntary, the Court finds that
Defendant’s admission or confession was not voluntary and cannot be used as a
basis for conducting a search.
Third, even if it is assumed that the information regarding the potential that
there was a machete under the seat of the pickup justified a search of the cab of
the pickup, there was no basis for searching Defendant’s purse, where the
contraband that forms the basis of the charge against Defendant was ultimately
found. A search may generally be lawfully extended to the entire area in which the
object of the search may be found. U.S. v. Ross, 456 U.S. 798, 820, 102 S.Ct.
2157, 2170 (1982). Thus, a warrant that authorizes an officer to search a home for
illegal weapons also provides authority to open closets, chests, drawers, and
containers in which the weapon might be found. Ross, 456 U.S. at 821, 102 S.Ct. at
2171 (emphasis added). A warrant to search a vehicle would support a search of
every part of the vehicle that might contain the object of the search. Id. (emphasis
added). In this case, there could be no reasonable belief that Defendant’s purse
contained a machete, because the purse is too small to contain such an item.
Therefore, even if law enforcement had probable cause coupled with exigent
circumstances to believe that a machete was under the seat of the pickup, there
was no justification for searching Defendant’s purse. For these reasons,
Defendant’s statement that there may be a machete under the seat of the pickup
did not establish probable cause and exigent circumstances justifying the search of
Defendant’s purse. The search of Defendant’s purse exceeded constitutional limits.
E. Consent.
The State claims that Defendant consented to the search of the vehicle and
her purse. Warrantless searches are per se unreasonable if they do not fall within
one of the well-recognized exceptions to the warrant requirement. State v. Lowe,
10
812 N.W.2d 554, 568 (Iowa 2012). Consent searches are one of these exceptions.
Id. To be valid, consent must be voluntary. Id.
In this case, Defendant claims that the consent to search relied upon by the
State was not voluntary. Defendant relies on State v. Pals, 805 N.W.2d 767 (Iowa
2011). Defendant’s reliance on Pals is well-placed. The Pals court held that a
consent to search was not voluntary under Article I, Section 8 of the Iowa
Constitution on facts much less coercive than those that exist in this case. In Pals,
the consent was held to be involuntary based on the following facts:
1. The officer subjected Pals to a pat-down search, which included a
command to empty his pockets, before detaining Pals in the police
cruiser;
2. Pals was detained in the police vehicle at the time of the consent to
search, so there was not a voluntary encounter in a public area;
3. Pals was never advised that he was free to leave or that he could
voluntarily refuse consent without any retaliation by the police; and
4. The officer had not advised Pals that the officer had concluded
business related to the stop at the time the officer asked for consent.
By not advising Pals that the business relating to the stop was
concluded, the officer conveyed the impression that Pals might receive
more favorable treatment if he consented to the search.
Pals, 805 N.W.2d at 782-83.

In comparison to the circumstances that existed in Pals, a case in which the
environment was considered so coercive that the consent was not voluntary, the
coercive nature of the circumstances in this case were exponentially worse. First,
the other two occupants of the vehicle had had their wallet and purse searched
without any request for consent from the owners of those items. Defendant saw
this display of law enforcement force occur. This show of force contributed to a
coercive environment.
Second, in Pals, the consent was found to be involuntary even though Pals
was politely requested to sit in the police vehicle where a fairly cordial conversation
was held. Id. at 786 (dissenting opinion)(quoting the Court of Appeals’ description
of a cordial interaction with a “very amicable discussion”). In stark contrast, in this
11
case, Defendant’s initial contact with law enforcement consisted of the officer
turning on his emergency lights, exiting his vehicle, drawing his handgun, pointing
the handgun at the occupants of the vehicle, aggressively yelling at the individuals
in the pickup to show their hands, ordering all three occupants out of the vehicle at
gunpoint, forcefully ordering each of the occupants to various locations around the
vehicle with a direction to place their hands on the vehicle, and sternly yelling at any
of the individuals if they in any way removed their hands from the vehicle or did not
comply with the officer’s commands to the officer’s liking.1 Under these
circumstances, the environment was significantly more coercive and intimidating
than the environment that existed in Pals. Therefore, these circumstances
contribute to the Court’s finding of a coercive environment that negated
voluntariness of the consent.
Third, the advisories that were recommended in Pals were not given to
Defendant. Defendant was never advised that she was free to leave and never
advised that she could voluntarily refuse consent without any retaliation by law
enforcement. Especially in light of the coercive environment and display of police
force in this case, the lack of advisories compels a finding of lack of voluntariness
even more so than in Pals.
Finally, the officer had not advised Defendant that the officer had concluded
business related to the stop at the time Defendant was asked for consent. The
officer admitted that the reason for detaining Defendant had ended as soon as the
officer received the admission from Mr. Archer that he was Christopher Archer, as
opposed to the person for whom the officer was looking (i.e., Jeremy Brocka).
However, Defendant was never informed that she was free to go, and given the
1
In describing these events, the Court is expressing no opinion as to the propriety of the course of action taken by
the officer. Officers are frequently put in the position of making impossible decisions. If they arrive at a location
and act aggressively to protect themselves, they expose themselves to the risk of being accused of using excessive
force. If they arrive at a location and are nonchalant about protecting themselves, they expose themselves to the
risk of being killed. It is an unenviable position. It is not the Court’s intent to comment on the propriety of the
officer’s chosen action in this case. The Court is simply pointing out that, in the context of the issues being ruled
upon by the Court, the officer’s actions resulted in a very intimidating and coercive environment for the occupants
of the vehicle, none of whom turned out to be the person for whom the officer was looking.
12
coercive nature of the environment as previously described, no reasonable person

would have felt free to leave at that point. As in Pals, the officer’s failure to advise
Defendant that his reason for detaining Defendant had ended before asking for
consent conveyed the impression that Defendant might receive more favorable
treatment if she consented to the search. As in Pals, this failure to advise
Defendant that she was free to go before being asked for consent contributed to the
coercive nature of the encounter that made the consent involuntary.
The State attempts to distinguish Pals on the basis that Defendant in this
case was not the focus of the investigation, like the defendant in Pals was. The
Court finds this claimed distinction to be factually not true. Even if the distinction
did exist, it is unimportant. The Court does not read Pals as requiring the
investigation to be focused on a particular individual before the individual’s consent
can be considered involuntary. Additionally, there was nothing about the interaction
between this officer and Defendant that would have in any way led Defendant or a
reasonable person to believe that Defendant was not a focus of the investigation.
Defendant had been ordered out of the vehicle at gunpoint in a very aggressive
fashion and ordered to stand with her hands on the tailgate of the pickup and was
ordered not to remove her hands from that location. Defendant then observed as
the officer treated the other two occupants in a similar fashion, yelling at the
occupants when they did not immediately comply with his commands. The officer
then went from person to person asking them questions. Under these
circumstances, a reasonable person would have had no reason to believe that they
were not a focus of the investigation. Furthermore, at the time that Defendant was
requested to give consent, the investigation of the other two occupants was, for all
intents and purposes, over. If Defendant was not the focus of the investigation at
that point, it is not clear who was.
III. CONCLUSIONS.
Warrantless searches are per se unreasonable if they do not fall within one of
13
the well-recognized exceptions to the warrant requirement. Lowe, 812 N.W.2d at

568. As discussed in this ruling, the State’s efforts to rely on exceptions to the
warrant requirement for probable cause with exigent circumstances and consent are
not persuasive. Under the Iowa Constitution, the claimed consent was not voluntary
and therefore was of no legal effect under the standards set forth in Pals. Under
both the United States and Iowa Constitutions, the claims of probable cause and
exigent circumstances based on the smell of marijuana coming from Archer, the
claimed furtive movements, Archer’s misinformation regarding his identity, and the
disclosure of a potential machete under the seat of the pickup were not established
by the State and a search was not permissible on those bases. Since no exception
to the warrant requirement existed, the warrantless searches pertaining to
Defendant were unreasonable and unconstitutional.
evidence is granted, as limited by the terms of this order.
IT IS FURTHER ORDERED that all evidence obtained as a result of the search
of Defendant or of Defendant’s purse is hereby suppressed and is inadmissible at
trial.
IT IS FURTHER ORDERED that all further proceedings in this matter shall take
place as previously scheduled.

County Attorney
Defense Counsel: Doug Cook
14
Type: OTHER ORDER

AGCR309792 STATE VS MARGARET EVELYN BRITCHER
So Ordered

E-FILED 2018 APR 25 3:55 PM HAMILTON - CLERK OF DISTRICT COURT
Plaintiff,
v.
RULING ON MOTION SEEKING
JASON CORY GAMBLE, TO SUPPRESS EVIDENCE
Defendant.
On today’s date, a hearing was held on Defendant’s motion seeking to

suppress evidence. Defendant personally appeared along with his attorney, Jennifer
Russell. The State was represented by Assistant County Attorney Jon Beaty. Prior
to starting the evidence, defense counsel confirmed that the following three issues
were being raised in Defendant’s motion:
1. There was not probable cause to initiate a stop of Defendant’s vehicle;
2. The investigating officer did not have reasonable grounds to invoke
implied consent; and
3. Defendant claims that Defendant did not refuse a breath test under the
implied consent procedures, so any evidence claiming that he refused
should be suppressed.
The Court then heard the evidence presented by the parties. At the
conclusion of the evidence, the Court ruled from the bench stating the Court’s
factual and legal findings and conclusions. The findings and conclusions stated on
the record are hereby incorporated by this reference as if fully set forth herein.
Without limiting those findings and conclusions, the Court will summarize them in
this order.
Deputy Rod Hicok (hereinafter “the Officer”) was traveling on a two-lane US
highway in a marked law enforcement vehicle. The Officer observed a vehicle
behind him traveling in the same direction approaching the Officer’s vehicle at a
rapid speed that exceeded the Officer’s speed of 53 to 55 miles per hour in the 55-
mile-per-hour zone in which the vehicles were traveling. The vehicle closing the
distance to the Officer’s vehicle turned out to be the vehicle driven by Defendant.
Defendant’s vehicle closed the gap between the vehicles so rapidly that the Officer
was unable to activate his radar. Defendant then proceeded to follow so close to
the Officer’s vehicle that the Officer could not see Defendant’s vehicle’s headlights.
Although the Officer did not get a radar reading, the Officer credibly testified that
there was no doubt that Defendant was exceeding the speed limit since Defendant
closed the gap between Defendant’s vehicle and the Officer’s vehicle so quickly
during a time when the Officer was driving very near the speed limit.
In addition to the speed violation observed by the Officer, Defendant then
began tailgating the marked vehicle driven by the Officer. The Officer credibly
testified that Defendant’s vehicle was less than a car length behind the Officer’s
vehicle, which is too close to be a safe distance given the speed of approximately 53
to 55 miles per hour that the vehicles were traveling at that time. After tailgating
the Officer’s vehicle, Defendant pulled to the left and crossed the center line as if to
pass the Officer’s vehicle. Defendant’s vehicle crossed the center line on a curve
that was marked as a no passing zone. After presumably observing an oncoming
vehicle coming in the opposite direction, Defendant then pulled back into the lane of
travel, but overcorrected to the point that Defendant’s vehicle crossed the fog line
on the right side of the highway. The Officer eventually managed to get behind
Defendant’s vehicle. Although the Officer observed additional driving irregularities
after getting behind Defendant’s vehicle, those irregularities are not important
because the Officer had already made the decision to stop Defendant’s vehicle by
that time and had probable cause for doing so. In short, the Officer had probable
cause to believe Defendant had violated laws against speeding and laws prohibiting
pulling into an oncoming traffic lane to pass in a no passing zone on a curve. In
addition, the erratic driving exhibited by Defendant when Defendant tailgated the
marked law enforcement vehicle and when Defendant overcorrected and crossed
the fog line after aborting the apparent attempt to pass further created reasonable
2
suspicion of impaired driving that warranted a traffic stop. In short, the Officer had
probable cause and reasonable suspicion to believe violations of the traffic laws had
occurred and that criminal activity was taking place such that the stop was within
constitutional limits.
After the stop was initiated, the Officer made contact with Defendant. The
Officer immediately noticed the smell of alcohol coming from Defendant’s vehicle.
Defendant also had slurred speech, bloodshot eyes, and watery eyes. Defendant
also admitted to having consumed alcohol, although Defendant claimed to have only
had two beers. Based on these observations, the Officer attempted field sobriety
tests. The horizontal gaze nystagmus test was conducted and Defendant failed that
test. Due to claimed problems with Defendant’s lower extremities, the Officer did
not administer the one-leg stand or the walk-and-turn test. Instead, the Officer
proceeded to offer a preliminary breath test. Upon being requested to give a breath
sample in the preliminary breath test device, Defendant began to claim medical
problems and failed to give an adequate breath sample. After several attempts
involving these apparent efforts to sabotage the breath test, the Officer used the
override feature on the preliminary breath screening device and obtained a reading
that exceeded .08. The Officer then arrested Defendant and transported him to the
jail. At that point, the Officer had reasonable grounds to invoke implied consent
procedures. Based on the observed driving irregularities, including Defendant’s
decision to tailgate and then attempt to pass a marked law enforcement vehicle in a
no passing zone on a curve, there was grounds for further investigation. That
further investigation revealed the smell of alcohol, slurred speech, bloodshot and
watery eyes, and an admission of drinking by Defendant. Further testing revealed
that Defendant failed the horizontal gaze nystagmus test, which was a further
indication of intoxication. Based on these observations alone, the Officer had
reasonable grounds to believe that Defendant was operating while intoxicated in
violation of Iowa Code Chapter 321J and was also lawfully allowed to arrest
3
Defendant. The Officer attempted to administer a preliminary breath test. The

preliminary breath test revealed a reading that exceeded the legal limit of .08. Even
if the preliminary breath test results were ignored because of the use of the override
feature, then one of the prongs of invoking implied consent was met because
Defendant refused the preliminary breath test. Although Defendant went through
the motion of giving a sample, the Court is convinced Defendant was intentionally
failing to give a sample. Based on these circumstances, the Court finds that there
was reasonable grounds to believe that Defendant was operating a motor vehicle
while intoxicated in violation of Iowa Code Chapter 321J.2, Defendant was lawfully
placed under arrest, and Defendant either failed the preliminary breath test or
refused the preliminary breath test. Consequently, implied consent procedures were
properly invoked.
Turning to the issue of the claimed refusal to test, the Court finds that that is
not properly a suppression issue. The State presented evidence suggesting that
Defendant was intentionally refusing to give a sample in spite of his claimed
willingness to do so. The State’s conclusion in this respect is bolstered by
Defendant’s comments that he was trying to give a test so there was nothing the
Officer could do to him. This suggests knowledge of efforts to try to game the
system by appearing to give a sample when, in reality, Defendant was not doing so.
Perhaps more importantly, the issue of whether Defendant did or did not refuse
testing and what conclusions should be drawn from those actions is a jury question
for the time of trial and not an issue for a suppression hearing. To the extent it is
an issue for a suppression hearing, the Court finds the State has established that
Defendant was refusing to take the breath test under implied consent procedures by
intentionally failing to give an adequate sample in spite of Defendant’s false claim
that he was trying to provide a sample. Additionally, the fact that Defendant was
repeatedly offered an alternative test of Defendant’s blood after failing to give an
4
adequate breath sample demonstrates that Defendant was, in fact, intentionally

refusing the testing.
For all these reasons, the three issues raised by Defendant do not justify
suppression of any evidence.
evidence is denied for the reasons stated.

County Attorney
Defense Counsel: Jennifer Russell
5
Type: OTHER ORDER

OWCR340499 STATE OF IOWA VS GAMBLE, JASON CORY
So Ordered

E-FILED 2018 AUG 08 1:03 PM HARDIN - CLERK OF DISTRICT COURT
Plaintiff,
v.
PATRICK JAMES GRUENING, SUPPRESS EVIDENCE
Defendant.
The Court rules on Defendant’s motion seeking to suppress evidence as

follows.
I. PROCEDURAL BACKGROUND
Defendant was charged by Trial Information with the crime of Operating
While Intoxicated. Following arraignment, Defendant filed a timely motion seeking
to suppress evidence challenging the constitutionality of the seizure of Defendant on
both state and federal constitutional grounds and sought suppression of all evidence
obtained following the claimed illegal seizure. A hearing was held on the motion on
July 31, 2018. Defendant personally appeared for the hearing along with his
attorney, Megan Rosenberg. The State was represented at the hearing by County
Attorney Darrell Meyer. The Court took the matter under advisement to give the
parties additional time to submit briefs, at the parties’ request. The parties have
filed such briefs and the deadline imposed for the submission of briefs has passed.
Therefore, the Court deems the matter fully submitted and now issues this ruling on
Defendant’s motion.
II. FACTUAL FINDINGS AND SUMMARY

Two Iowa Falls police officers, Bryce Knudsen and Blake Munro, were in the
same law enforcement vehicle on routine patrol when they received a call from their
dispatcher reporting that a worker at a local auto parts store had just been in
contact with a subject in the store who smelled strongly of alcohol. The caller from
the auto parts store reported that the male individual had just left the store in a
blue Chevy Trailblazer with dealer plates heading northbound toward the town of
Ackley. The officers began to try to find the vehicle because they wanted to
investigate whether the driver was committing the crime of Public Intoxication or
Operating While Intoxicated. The officers came across the vehicle shortly
thereafter. The officers were only able to view the subject vehicle for a short period
of time before losing sight of it as the officers tried to get behind the vehicle.
During that short period of time, the officers observed no violations of the traffic
laws, no driving irregularities, and nothing indicating that the driver was impaired.
Shortly after losing sight of the vehicle, the officers located the vehicle parked
in a grocery store parking lot in Iowa Falls. At the time the officers found the
vehicle in the parking lot, no one was in the vehicle. Nothing about the manner in
which the vehicle was parked suggested any illegal activity, irregularities, or any
sign of impairment on the part of the person that parked the vehicle. As the law
enforcement officers continued to travel through the parking lot of the grocery
store, they observed a male walking toward the vehicle. The officers did not notice
any signs of impairment in the manner in which the male walked toward the vehicle.
Upon arriving at the subject vehicle, the male, who turned out to be Defendant, got
into the vehicle.1 The officers parked their vehicle in a parking spot that did not
block Defendant’s vehicle. The officers also did not activate any of the emergency
lights of the law enforcement vehicle. The officers exited their patrol car and both
of them approached Defendant’s vehicle on foot.
Very shortly after arriving at Defendant’s vehicle and making contact with
Defendant, Officer Munro directed Defendant out of the vehicle and Defendant
1
There was somewhat conflicting testimony as to whether Defendant got into the vehicle before the
officers approached. Officer Knudsen testified that the officers made contact with Defendant as
Defendant arrived at the Trailblazer. Officer Munro testified that Defendant actually got into the vehicle
before the officers approached. Given the testimony that Officer Munro was the primary of the two
officers that engaged in contact with Defendant, the Court finds Officer Munro’s testimony to be more
accurate in this regard. The Court finds that Defendant was seated in the subject vehicle when the
officers approached.
2
complied. The officers then questioned Defendant for anywhere from 5 to 10

minutes while standing in the grocery store parking lot until a third officer (Officer
David Burk) arrived and took over the investigation. Based on this contact and the
observations made during the contact, Defendant was eventually arrested and
charged with Operating While Intoxicated.
III. LEGAL ANALYSIS

Defendant’s motion asserts that Defendant’s right to be free from
unreasonable searches and seizures protected by the Fourth and Fourteenth
Amendments to the United States Constitution and Article I, Section 8 of the Iowa
Constitution were violated. This claim raises two questions: (1) was there a
seizure?; and (2) if there was a seizure, was it within constitutional limits?
A. Whether a Seizure Occurred

The first question is answered in the affirmative. There was a seizure. The
State has conceded that there was a seizure. Even if the State had not made that
concession, the Court finds that a seizure occurred at the time that Officer Munro
directed Defendant out of the vehicle. There is some question as to whether Officer
Munro asked Defendant to exit the vehicle or whether Defendant was commanded
or directed out of the vehicle. The Court concludes that a resolution of that
question is not important, as the circumstances were such that the communication
from Officer Munro would not have left a reasonable person with the impression
that the request or command could have been disobeyed without peril. To a
reasonable person, when two uniformed police officers exit a marked patrol car that
the officers parked near the person and both officers approach the person’s vehicle
and make reference to wanting the person out of the vehicle, the person would not
perceive any practical difference between the officer saying “Could you step out of
the car, please?” versus “Step out of the car, please.” However Officer Munro’s
communication was worded, the Court concludes that it served as a command to
3
exit the vehicle. The command to exit the vehicle resulted in Defendant leaving the
place that he wanted to be (i.e., in his car ready to drive away) and resulted in
Defendant ending up being in a place that Defendant did not want to be (i.e.,
standing outside the vehicle with no remaining ability to easily leave the scene if
desired).
Whether a seizure occurred is determined by the totality of the
circumstances. State v. White, 887 N.W.2d 172, 176 (Iowa 2016). The Supreme
Court has long recognized that not all police contacts with individual are deemed
seizures within the meaning of the Fourth Amendment. Id. (citations omitted).
Such encounters remain consensual so long as a reasonable person would feel free
to disregard the police and go about his business. Id. (citations omitted). Factors
that might suggest a seizure include the threatening presence of several officers,
the display of a weapon by an officer, some physical touching of the person of the
citizen, or the use of language or tone of voice indicating that compliance with the
officer’s request might be compelled. Id. (citations omitted). In this case, although
the officers did not do anything threatening or display a weapon or physically touch
Defendant, the fact that two officers approached Defendant’s vehicle after parking
nearby and almost immediately directed Defendant out of the vehicle was a
sufficient display of force that the Court concludes that a reasonable person in
Defendant’s position would not have felt free to disregard the officers and go about
his business. The Court is fairly certain that if Defendant had simply ignored the
direction to get out of Defendant’s vehicle and would have placed the vehicle in gear
and began pulling away to go about his business that the officers would not have
permitted that to occur, in spite of their testimony that Defendant was “free to go.”
Presumably, the State agrees with this conclusion, since the State has conceded
that a seizure occurred.
B. Whether the Seizure Was Permissible
4
Having concluded that a seizure occurred, the question remains whether that
seizure was permissible. In addressing this question, the State seems to place a
great deal of emphasis on the fact that this was an investigatory Terry stop and not
a traffic stop. The Court finds this to be a distinction without a difference. There
can be investigatory Terry stops of a vehicle. See, e.g., State v. Tyler, 830 N.W.2d
288, 297-98 (Iowa 2013); State v. Pals, 805 N.W.2d 767, 775 (Iowa 2011); and
State v. Vance, 790 N.W.2d 775, 780 (Iowa 2010). What raises constitutional
questions about a Terry stop of a vehicle is that the occupants of the vehicle are
seized. See Whren v. U.S., 517 U.S. 806, 809-10 (1996)(“Temporary detention of
individuals during the stop of an automobile by the police, even if only for a brief
period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the
meaning of [the Fourth Amendment].”). It is the seizure of the individual that
triggers constitutional implications. Given that fact, there is no meaningful
difference between the seizure of Defendant in the parking lot of the grocery store
versus a seizure of Defendant by initiating a traffic stop for investigatory purposes.
Either way, Defendant is seized via a Terry stop and such a seizure is permissible
only if the Terry standards have been satisfied.
In order to initiate a Terry stop or seizure, the seizing officer must have
reasonable suspicion of criminal activity, which means that the officer must have
specific and articulable cause to support a reasonable belief that criminal activity
may have occurred. State v. Kinkead, 570 N.W.2d 97, 100 (Iowa 1997). To justify
an investigatory stop, the officer must be able to point to specific and articulable
facts which, taken together with rational inferences from those facts, reasonably
warrant that intrusion. State v. Kreps, 650 N.W.2d 636, 641 (Iowa 2002) (citing
State v. Heminover, 619 N.W.2d 353, 357 (Iowa 2000)). In short, an investigatory
stop of a vehicle is constitutionally permissible only if the officer who has made the
stop has specific and articulable cause to reasonably believe criminal activity is
afoot. Id. (citations omitted). Circumstances raising mere suspicion or curiosity are
5
not enough. Id. (citations omitted). The officer must be able to articulate more
than an inchoate unparticularized suspicion or hunch of criminal activity. Id. (citing
Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000)).
Given these standards, the fighting issue in this case comes down to whether
a report from a citizen informant that a person having a strong smell of alcohol who
was seen in public and then operating a vehicle warrants an investigatory stop or
seizure of that individual once located. The State argues that such a Terry seizure is
permissible. Defendant argues that it is not.
The State argues that the officers had the right to investigate whether the
person that smelled strongly of alcohol was intoxicated and thus may be committing
the crime of Public Intoxication or Operating While Intoxicated. In making this
argument, the State seems to confuse the notion of an investigation and a seizure.
The Court completely understands that the officers would have been concerned that
someone that smelled of alcohol may have reached the point of intoxication such
that further investigation was warranted. However, a further investigation being
warranted does not necessarily mean that a seizure is permitted to further that
investigation. It is worth noting that the call from the worker at the auto parts store
to the dispatcher did not report any illegal behavior or any behavior that suggested
illegal behavior. It is not a crime to drink and be in public or to drink and drive. It
is only a crime to drink to the point of intoxication and be in public or drive. At the
time these officers initiated a seizure of Defendant by directing Defendant out of his
vehicle, the officers had no information that suggested that Defendant had
consumed alcohol to the point of intoxication. Unlike the common scenarios where
someone reports erratic driving, belligerent behavior, or other behavior such as
unsteady balance, the only piece of information supplied to the officers in this case
was a strong smell of alcohol. In the situations where there is a report of erratic
driving, belligerent behavior, or unsteady balance, there is reported behavior that is
ambiguous in the sense that the behavior may be explained by intoxication or by
6
some innocent explanation. In those cases, an officer is justified in making an

investigatory stop to “resolve the ambiguity” as to whether criminal activity is afoot.
See State v. Tyler, 830 N.W.2d 288, 298 (Iowa 2013)(citing State v. Vance, 790
N.W.2d 775, 780 (Iowa 2010)). In this case, based on the information the officers
had at the time the seizure occurred, there was no ambiguity to resolve. The only
reported activity was not ambiguously criminal or noncriminal. It was
unambiguously noncriminal. Since there was no ambiguity that needed to be
resolved, a report of a person smelling of alcohol was not a basis for a Terry stop of
the person.
As noted, the officers were understandably suspicious and were perfectly
within their rights to investigate further. That investigation could have included, for
example, contacting the worker at the auto parts store to see if the worker had
observed any other behavior indicating intoxication, continuing to observe
Defendant before approaching him, observing whether Defendant was able to safely
operate the vehicle within the parking lot, or following the vehicle down the street
for a period of time to see if there were any driving irregularities observed.2 In this
case, the officers chose not to investigate in a nonintrusive fashion and, instead,
chose to seize Defendant to further their investigation. The problem is that at the
time that the seizure occurred, the concern that Defendant was intoxicated based
on the bare assertion of having a strong odor of alcohol about him was nothing
more than mere suspicion or curiosity. Mere suspicion or curiosity are not enough
2
As the State points out, allowing Defendant to leave in his vehicle with the officers following ran the risk
that Defendant could cause a collision that injured or killed someone before the officers were able to
confirm or dispel their suspicions. While that concern is legitimate, it does not in itself justify a Terry
stop. If concerns for safety of the community overrode concerns for individual liberties, then we would
allow officers to stop anybody at any time to make sure they were acting in a legal and safe manner. Or,
at the very least, we would permit officers to make stops at a certain point in the evening or at certain
locations (e.g., late at night or outside a bar) because there are concerns of safety that could be argued
justify a stop to make sure that the person is not acting illegally or in an unsafe manner. Of course, we
do not allow such intrusions in deference to individual liberties. It is balancing these concerns of safety
versus individual liberties that results in the standards that must be followed before allowing a Terry stop.
See Terry v. Ohio, 392 U.S. 1, 20-21 (1968)(pointing out the reasons standards must be set and followed
before the intrusion of an investigatory seizure is permitted).
7
to justify a Terry stop. Kreps, 650 N.W.2d at 641. To put it another way, the
officers were not permitted to seize Defendant in order to see if they could gather
enough evidence to justify a seizure. They needed to have enough evidence to
justify the seizure at the time the seizure was made. In this case, the officers did
not have it.
The issue of whether the smell of alcohol alone justifies a Terry stop appears
to be an issue that has not been specifically addressed in Iowa, as neither of the
parties have cited Iowa authority directly on point on that issue and the Court has
been unable to find direct authority based on the Court’s research. Although it
appears to be an issue that has not been specifically addressed in Iowa, at least two
other jurisdictions have addressed the issue.
In State v. Spillers, 2000 WL 299550 (Ohio App. 2d Dist. 2000)(unpublished),
the Ohio court held that an officer’s observation of a de minimus traffic violation
(consisting of weaving within the lane of travel, including crossing the fog line
several times and driving on the yellow line once), a slight odor of an alcoholic
beverage emitting from the driver, and the driver’s admission of having consumed
“a couple” of beers did not support a reasonable and articulable suspicion of
intoxication so as to permit continued detention to administer field sobriety tests. In
reaching this conclusion, the Ohio court noted that a slight odor of an alcoholic
beverage, without more, is not indicative of impaired driving.
In State v. Segi, 2000 WL 1162035 (Ohio App. 2d Dist. 2000)(unpublished),
the Ohio court was asked to expand on the issue addressed in Spillers by addressing
whether a “strong odor” of alcohol made the outcome different than in Spillers,
which involved a “slight odor” of alcohol. In addressing that issue, the Segi court
stated:
Having found in Spillers that a slight odor of alcohol coupled with a minor
traffic violation did not constitute reasonable, articulable suspicion, we cannot
rationally conclude that the stronger odor in this case created not only
reasonable, articulable suspicion but probable cause to arrest as well. The
law prohibits drunken driving, not driving after a drink. (citations omitted)
8
Although the Segi case is distinguishable in the sense that it addressed probable
cause for arrest rather than reasonable suspicion to detain to conduct field sobriety
testing (since the officer arrested the driver prior to conducting field sobriety tests),
the above-quoted language addresses the issue at hand and is persuasive authority.
In State v. Dixon, 2000 WL 1760664 (Ohio App. 2d Dist. 2000)(unpublished),
the Court found that early morning hours, glassy and bloodshot eyes, admission of
drinking one or two beers, and “an odor of alcohol about the person” did not create
a reasonable, articulable suspicion of drunk driving.
It should be noted that the Spillers, Segi, and Dixon rulings were disagreed
with by an Ohio federal district court in U.S. v. Frantz, 177 F.Supp.2d 760 (S.D. Ohio
2001). In disagreeing with those holdings, the Frantz court stated that it “cannot
understand the rationale of the Second District Court of Appeals’ decisions.”
However, with regard to the disagreement expressed by the Frantz court, two points
should be noted. First, the issue in Frantz was whether the observations, including
the smell of alcohol, justified further detention of an already-detained driver (due to
a traffic violation) to perform field sobriety tests. The Frantz court was, therefore,
dealing with the additional intrusion of lengthening the detention, which the court
noted was not a “major intrusion on liberty.” In the case at hand, however, we are
not dealing with an extension of an existing detention, but with the original
detention, which the Court concludes is a significant intrusion on the liberty of
Defendant. Second, and perhaps more importantly, in reaching its conclusion not to
follow the holding in Spillers, Segi, and Dixon, the Frantz court pointed out that the
following facts available to the officer constituted reasonable, articulable suspicion
that the driver was intoxicated so as to justify further detention to conduct field
sobriety tests:
● as the officer initiated a traffic stop for speeding, the driver put the car
in park before stopping, causing a grinding noise and suggesting
impairment
● glassy, bloodshot eyes
9
● slurred speech
● an excited manner
● a strong odor of an alcoholic beverage
U.S. v. Frantz, 177 F.Supp.2d 760, 764 (S.D. Ohio 2001). So, while disagreeing with
the holdings in Spillers, Segi, and Dixon, the Frantz court only did so when faced
with far more clues available to the officer than those involved in the instant case.
In no way do any of these Ohio cases suggest that an officer would be justified in
the initial detention of a suspect on nothing more than the strong smell of alcohol.
In every case, whether the court agreed or disagreed with additional detention,
there were additional clues available to the officer that were not present when the
officers in the current case seized Defendant in the grocery store parking lot.
In Keehn v. Town of Torrington, 834 P.2d 112, 117 (Wyoming 1992), the
Wyoming Supreme Court held that smell of alcohol emanating from a vehicle
stopped for an equipment violation, with no other signs of intoxication detected, did
not allow detention of the driver to conduct field sobriety tests.
While none of the above-cited cases are binding authority and they may be
distinguished on their facts in one way or another, they are persuasive from the
standpoint that in no case did the courts allow the mere smell of alcohol to justify
continued detention of a person to conduct field sobriety tests, let alone to justify
the initial detention of an individual. In fact, in several of the cases, the officer
involved had a number of additional clues beyond the mere smell of alcohol to
suggest intoxication and it was still found that the combination of clues did not
warrant further detention. Those holdings support this Court’s conclusion that the
strong smell of alcohol alone does not constitute reasonable suspicion of intoxication
so as to justify an initial investigatory Terry stop of an individual.
To address the issue of whether smell of alcohol is enough to justify a
seizure, it may be beneficial to compare it to another scenario that is generally
equivalent to the State’s position in this case and over which the Court does not
believe there would be any significant controversy. The Court believes that most
10
people, including representatives of the State in this case, would concede that
officers are not permitted to seize everyone that comes out of an establishment that
serves alcohol (i.e., a bar). The Court believes most people would concede this
point regardless of whether the context is a seizure to investigate the offense of
Public Intoxication before the person leaving the bar entered a vehicle or as an
investigatory Terry stop to investigate the crime of Operating While Intoxicated after
the individual got behind the wheel of a car and drove off. The Court believes that
most people would agree that seizures are not allowed in that context even though
the following statements are true:
Not everyone that has been to a bar is intoxicated.
Not everyone who is intoxicated has been to a bar.
Many people who are intoxicated have been to a bar.
In spite of the fact that all three of the prior statements are true, most people would
concede that the truthfulness of the third statement is not enough to justify seizing
all individuals leaving a bar because of the truthfulness of the first two statements.
If one accepts that conclusion, that a seizure of all people leaving a bar is not
justified, then one should also conclude that the seizure of all persons smelling of
alcohol who are in public or driving a vehicle is not warranted because the same
logical statements from above could be made by replacing the reference to “that
has been to a bar” with “smells of alcohol” as follows:
Not everyone who smells of alcohol is intoxicated.
Not everyone who is intoxicated smells of alcohol.
Many people who are intoxicated smell of alcohol.
Again, although the third statement is true, we should not allow seizures on that
basis because of the truthfulness of the first two statements – the same conclusion
as the conclusion we would draw with respect to all persons leaving a bar.
The seizure in this case was not based on specific and articulable cause to
reasonably believe criminal activity was afoot, as required before a Terry stop can
occur. Instead, it was based on unparticularized suspicion, hunch, or curiosity,
11
which is not enough to permit a Terry stop. See, e.g., State v. Kreps, 650 N.W.2d
636, 642 (Iowa 2002).
IV. CONCLUSION
Due to the fact that Defendant was subjected to a seizure by law
enforcement without the standards justifying such seizure being met, Defendant’s
rights to be free from unreasonable searches and seizures secured by the Fourth
and Fourteenth Amendments to the United States Constitution and Article I, Section
8 of the Iowa Constitution were violated. Since Defendant was subjected to an
unconstitutional seizure, all evidence obtained following that seizure must be
suppressed. The Court finds that Defendant was seized at the time that law
enforcement officers communicated their desire for Defendant to step out of
Defendant’s vehicle.
evidence is granted, as limited by the terms of this order.
IT IS FURTHER ORDERED that all evidence obtained following law
enforcement officers’ communication to Defendant to step out of Defendant’s
vehicle is hereby suppressed and inadmissible as evidence. The suppressed
evidence includes, but is not limited to, all evidence of statements made after
Defendant exited the vehicle, Defendant’s performance on field sobriety tests,
invocation of implied consent procedures, Defendant’s consent or refusal to consent
to testing under implied consent procedures, and the results of any tests conducted
pursuant to implied consent procedures.
IT IS FURTHER ORDERED that all further proceedings in this matter shall be
held as previously scheduled.

County Attorney
Defense Counsel: Megan Rosenberg
12
Type: OTHER ORDER

OWCR311095 ST VS PATRICK JAMES GRUENING
So Ordered

IOWA CASE LAW UPDATE
PAUL B. AHLERS
District Associate Judge
Webster City, Iowa
(515)832-9600
paul.ahlers@iowacourts.gov
(Covering volumes 912 to 928 of the Northwestern Reporter, Second Series)
TABLE OF CONTENTS
ADMINISTRATIVE LAW ......................................................................................... 2

APPELLATE PROCEDURE ....................................................................................... 3
ATTORNEY DISCIPLINE ........................................................................................ 3
CIVIL PROCEDURE ............................................................................................. 10
COMMERCIAL LAW ............................................................................................. 13
CONSTITUTIONAL LAW ...................................................................................... 13
CONTRACTS ....................................................................................................... 13
CORPORATIONS ................................................................................................. 14
CRIMINAL LAW .................................................................................................. 14
CRIMINAL PROCEDURE ...................................................................................... 16
DEBTOR / CREDITOR ......................................................................................... 23
DIVORCE / FAMILY LAW ..................................................................................... 24
EMPLOYMENT .................................................................................................... 25
EVIDENCE .......................................................................................................... 28
INSURANCE ....................................................................................................... 29
JUVENILE ........................................................................................................... 30
MISCELLANEOUS ................................................................................................ 31
MOTOR VEHICLES / OWI .................................................................................... 32
MUNICIPAL CORPORATIONS .............................................................................. 35
PROBATE / GUARDIANSHIP / CONSERVATORSHIP .............................................. 37
REAL PROPERTY ................................................................................................ 38
SEARCH AND SEIZURE ....................................................................................... 40
TAXATION ......................................................................................................... 41
TORTS ............................................................................................................... 42
WORKER’S COMPENSATION ............................................................................... 44
AHLERS - 1
ADMINISTRATIVE LAW
Registration of Electronic Gaming Devices
Banilla Games v. Iowa Dept. of Inspections, 919 N.W.2d 6 (Iowa 2018)
Agency properly interpreted Iowa Code Chapter 99B in determining that the outcome
of electronic game device play was not primarily determined by skill or knowledge of
the operator. Therefore, the games had to be registered. The agency did not
prejudice the substantial rights of the game manufacturer and seller based upon an
irrational, illogical, or wholly unjustifiable application of law to fact. The agency did
not prejudice the substantial rights of the manufacturer and seller unreasonably,
arbitrarily, capriciously, or through an abuse of discretion.
Entitlement to Hearing After Denial of Claims

Colwell v. Iowa Dept. of Human Services, 923 N.W.2d 225 (Iowa 2019)
A managed care organization (MCO) denied reimbursement claims submitted by a
dentist who contracted with the MCO as a provider. Iowa Code Section 249A.4 does
not grant the DHS authority to interpret its own rules and regulations. Therefore,
there is not deference to the DHS’s interpretations and the interpretations are
reviewed for errors of law. The Court declined to decide whether to defer to the
DHS’s interpretations of Iowa Code Section 249A.4(11) because, even under a de
novo standard, the Court agreed with the DHS’s interpretation. Finding the definition
of “individual” in Section 249A.4(11) ambiguous, the Court concludes “individual”
refers to Medicaid recipients and not providers. Therefore, the dentist was not entitled
to a review process or hearing under Section 249A.4(11). However, the administrative
rules in place at the time and the contract between the dentist and the MCO entitled
the dentist to a state fair hearing process after the denial of the dentist’s claims.
When the dentist renders services that are not recoverable under Medicaid, with the
proper pretreatment disclosures, the dentist may recover from the patient for these
uncovered services. However, when Medicaid does not reimburse the dentist for
services routinely covered by Medicaid, the dentist cannot recover from the patient.
Since the DHS’s role in the case was “primarily adjudicative,” the dentist was not
entitled to recover attorney fees from the DHS pursuant to Iowa Code Section
625.29(2) even though the dentist was the prevailing party. The dentist was also
precluded from recovering attorney fees under a second exception, namely the
exception under Section 625.29(1)(d) for actions where the role of the DHS was to
determine eligibility or entitlement to a monetary benefit.
Emailing Notice of Judicial Review

Ortiz v. Loyd Roling Construction, 928 N.W.2d 651 (Iowa 2019)
Iowa Code Section 17A.19(2) imposes a jurisdictional requirement for initiating an
action for judicial review of agency action that the petitioner “mail” a copy of the
AHLERS - 2
petition to the attorneys for all parties. Such requirement is satisfied when the petition
is sent to the attorneys in a timely manner by email.
APPELLATE PROCEDURE
Delay Between Service and Filing of Notice of Appeal

Evenson v. Winnebago Industries, Inc., 922 N.W.2d 335 (Iowa 2019)
Iowa Rule of Appellate Procedure 6.101(1)(b) requires notice of appeal to be filed
within 30 days after the filing of the final order or judgment being appealed. Rule
6.101(4) states: “The time for filing a notice of appeal is tolled when the notice is
served, provided the notice is filed with the district court clerk within a reasonable
time.” A 144-day delay between service of the notice of appeal on opposing counsel
and filing of the notice of appeal with the Clerk of Court was not “within a reasonable
time,” so the appeal was dismissed. The fact that the Supreme Court Clerk issued a
notice of briefing deadlines did not vest the Supreme Court with jurisdiction to hear
the untimely appeal.
ATTORNEY DISCIPLINE
Revocation for Misappropriation of Client Funds

Supreme Ct. Atty. Disciplinary Bd. v. Suarez-Quilty, 912 N.W.2d 150 (Iowa 2018)
Although numerous violations were admitted, revocation was imposed for
misappropriating client funds without a colorable future claim to the funds.
Misappropriation included charging $5000 to a client’s credit card when the attorney
knew the client was challenging the bill and had not authorized the credit card
transaction and failing to return $630 that the client had paid for expenses advanced
by the attorney, which expenses were later returned to the attorney, who kept the
money. While there may have been a colorable future claim to the $5000, there was
no colorable future claim to the $630. Therefore, revocation was imposed without
consideration of mitigating or aggravating factors.
Financial Transactions With Clients

Supreme Ct. Atty. Disciplinary Bd. v. Hamer, 915 N.W.2d 302 (Iowa 2018)
Six-month suspension for a number of violations. Violations included: (1) concurrent
conflict of interest in representing both a lender and borrower in a transaction without
full disclosure and informed consent (being involved in the negotiation of the terms
of the loan are not required for a violation to occur); (2) arranging loans from a client
to entities the attorney owned or in which the attorney had an ownership interest
without showing good faith and full disclosure; and (3) acting deceitfully in presenting
AHLERS - 3
a client with an unitemized bill with an undisclosed substantial bonus and then
refusing to provide the client with an itemization for five years. Mitigating factors
included impressive record of community service and lack of disciplinary history.
Aggravating factors included lengthy career, continued professed lack of
understanding that the attorney’s actions violated ethics rules, and the fact that
numerous violations were committed over a period of years.
Neglect, Missing Court Hearings, & Trust Account Violations

Supreme Ct. Atty. Disciplinary Bd. v. Turner, 918 N.W.2d 131 (Iowa 2018)
One-year suspension imposed for multiple violations. Violations included: (1) neglect
by failing to exercise due diligence by repeatedly failing to attend hearings; (2) neglect
by failing to communicate with clients to inform them of court hearings, resulting in
three clients being arrested and bankruptcy proceedings being dismissed; (3) neglect
by failing to expedite litigation by missing various filing deadlines and failing to file
proper documents, resulting in delays and dismissals; (4) trust account violations by
failing to deposit client funds in a separate trust account; (5) trust account violations
for failing to deposit retainers in a trust account (fee contract that provided that
payments “vest upon receipt” demonstrated an attempt to avoid the obligation to
deposit retainers, and was an impermissible nonrefundable retainer); (6) trust account
violations by failing to notify clients of withdrawals of money deposited in trust;
(7) trust account violations for failing to keep adequate check registers, client ledgers,
client invoices, and notices and accountings; (7) incompetence by failing to properly
handle bankruptcy filings and cases; (8) unreasonable fees by not properly
establishing a flat fee, not properly establishing a retainer or agreement, and not
properly setting a cap on fees when the fee agreement called for weekly payments
until the completion of the case regardless of whether work was done; (9) filing a
frivolous claim in bankruptcy; (10) lack of candor toward tribunals by making false
assertions to various judges; (11) failing to provide information to the board;
(12) misconduct involving dishonesty by providing false information on annual filings
and providing false information to the auditor of the attorney’s trust account;
(13) conduct prejudicial to the administration of justice for some of the above-noted
violations and conduct that resulted in attorney being held in contempt of court in
three counties; and (14) violations related to failure to provide records to auditor and
delays in producing other records. Mitigating factors included inexperience,
depression and ADHD (for which the attorney was receiving treatment), and
acceptance of responsibility.
Delays in Handling Estate and Fees Without Court Approval

Supreme Ct. Atty. Disciplinary Bd. v. Kowalke, 918 N.W.2d 158 (Iowa 2018)
Revocation imposed for conduct surrounding handling of an estate. Violations
included neglecting essential responsibilities, withdrawing attorney fees without court
AHLERS - 4
authorization, depositing funds into the attorney’s business account rather than trust
account, failing to deliver client funds when ordered by the court, knowingly making
a false statement to the court in a report, and converting client funds for the attorney’s
own use. Conversion of client funds with no colorable future claim to the funds
resulted in the sanction of revocation. Conversion of client funds included taking
additional funds from the estate account after already having taken the full amount
of fees the attorney would have been allowed to take with court approval (which
approval was not sought) and taking additional funds for the attorney’s own use and
to pay other clients.
Public Defender Billing Issues

Supreme Ct. Atty. Disciplinary Bd. v. Mathahs, 918 N.W.2d 487 (Iowa 2018)
Laches is an allowable defense to disciplinary proceedings, but evidence did not
support allegations of prejudice, so laches defense did not apply. Sixty-day
suspension imposed for excess fee and mileage claims submitted to the State Public
Defender. Time records read in conjunction with hours claimed of over 3000 hours
in one year established violation in the form of unreasonable fees. Claiming that the
overbilling was caused by secretarial mistakes resulted in another violation for failing
to properly supervise staff. Mitigating factors included full cooperation,
acknowledgment of responsibility for the errors, high quality of services provided to
indigent clients, amount of community service and pro bono work, and taking
corrective action. Aggravating factors included prior discipline, the length of time of
the misconduct, and the burden the misconduct placed on the State Public Defender
and the board.
Neglect & Conversion of Client Funds

Supreme Ct. Atty. Disciplinary Bd. v. Moran, 919 N.W.2d 754 (Iowa 2018)
Revocation for neglecting client matters, failing to communicate and consult with
clients, failing to provide clients with information about their cases, failing to deposit
fees into a client trust account, failing to comply with requests for information during
the disciplinary proceedings, and converting client funds (failing to meet the attorney’s
burden to show a colorable future claim to funds the attorney received for work the
attorney did not perform). Attorney collected a number of flat fees, did not deposit
the funds in trust, and then failed to perform work and communicate with clients,
resulting in harm to clients.
Premature Probate Fees

Supreme Ct. Atty. Disciplinary Bd. v. Saunders, 919 N.W.2d 760 (Iowa 2018)
Thirty-day suspension for billing and collecting the second half of the attorney’s
probate fee before work was completed on an estate and the final report had been
filed. Not only was taking the premature fee a violation, but not depositing that fee
AHLERS - 5
in the attorney’s trust account constituted another violation. The main aggravating
factor that caused the misconduct to warrant suspension rather than a public
reprimand was the fact that the attorney had received a public reprimand for
essentially the same type of misconduct only a year-and-a-half before the misconduct
in this case. An additional aggravating factor was experience. A mitigating factor
was cooperation.
Sexual Relations With a Client

Supreme Ct. Atty. Disciplinary Bd. v. Jacobsma, 920 N.W.2d 813 (Iowa 2018)
Thirty-day suspension for having a sexual relationship with a client. Distinguishing
cases imposing longer suspensions, the Court noted that this case did not involve
preying on the client’s vulnerable personal, mental, or financial state, did not involve
“sex-for-fees,” and did not involve uninvited, unwanted, or harassing conduct.
Aggravating factors included years of experience and the potential for harm to the
client based on the types of cases for which the attorney represented the client.
Mitigating factors included lack of prior discipline, isolated misconduct, remorse,
cooperation with the Board, self-reporting of the misconduct, independent decision to
participate in counseling and mental health treatment, being a respected member of
the bar, lack of actual harm, amount of pro bono and reduced fee work, community
service and volunteer work, and military service. Two dissenters (Wiggins and
Christensen) noted the trend of these types of violations and argued for a longer
suspension in an effort to promote “real deterrence.”
Sexual Relations With a Client – II

Supreme Ct. Atty. Disciplinary Bd. v. Nine, 920 N.W.2d 825 (Iowa 2018)
Thirty-day suspension for having a sexual relationship with a divorce client. Mitigating
factors included the fact that the misconduct was isolated, the client suffered no harm
of any type, and the attorney has a significant history of involvement in the community
and the profession. Aggravating factors included the fact that the representation
involved a family law matter and the attorney’s initial evasiveness. The Court also
noted it was imposing sanctions based on the fact that the attorney’s misconduct
occurred in 2011. The Court suggests that harsher sanctions may be imposed in
future such cases because of the recurring nature of these types of violations. One
concurring justice (Wiggins) went along with the 30-day suspension only because the
misconduct occurred in 2011, before several cases came out urging for longer
suspensions.
Stealing Colleague’s Undergarments and Related Conduct

Supreme Ct. Atty. Disciplinary Bd. v. Stansberry, 922 N.W.2d 591 (Iowa 2019)
One-year suspension for assistant county attorney stealing a female colleague’s
underpants from her home and rifling through female colleagues’ gym bags at the
AHLERS - 6
office to photograph their undergarments for his personal sexual gratification. Being
convicted of trespass and theft under these circumstances reflected adversely on
attorney’s fitness to practice law. Giving false statements to law enforcement
investigating the case was a violation of rules prohibiting engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation. Attorney’s conduct also
violated the rule prohibiting sexual harassment. Aggravating factors included the fact
that the attorney was a prosecutor, the victims were women the attorney oversaw at
work, misrepresentations were made to law enforcement, the attorney failed to
appreciate the wrongfulness of his actions, and the victims were traumatized. The
Court found no mitigating factors.
Neglect, Lack of Communication, & Related Violations

Supreme Ct. Atty. Disciplinary Bd. v. Humphrey, 922 N.W.2d 601 (Iowa 2019)
One-year suspension for failing to prosecute an appeal for one client, never
communicating with a second client in a criminal matter, failing to address the
attorney’s loss of a third client’s abstract of title, ignoring inquiries from the board,
and misrepresenting to the board what the attorney had done. Aggravating factors
included prior disciplinary record of three prior suspensions, one of which included a
three-month suspension for related but less serious misconduct. The Court discussed
overcharging by the board and reiterated a reminder that a violation of Rule 32:8.4(a)
(stating it is professional misconduct for a lawyer to violate the Iowa Rules of
Professional Conduct) does not create a separate ethical infraction and “does not need
to be automatically tacked onto every count of an attorney disciplinary complaint.”
False Billing for Court-Appointed Work

Supreme Ct. Atty. Disciplinary Bd. v. Noel, 923 N.W.2d 575 (Iowa 2019)
One-year suspension for billing the State Public Defender for services not performed
(i.e., billing for family team meetings the attorney did not attend) and submitting
excessive mileage claims (i.e., billing mileage for a full trip for each client rather than
pro rata). Offensive issue preclusion was properly applied to use the attorney’s theft
convictions for the same conduct to establish ethical violations. Minutes of testimony
from the criminal case were properly admitted at the hearing, as the statements were
non-hearsay as an admission by a party opponent by adoption due to the fact that
the attorney had stated that the minutes were accurate in the criminal plea
proceedings. Aggravating factors included lack of appreciation of the wrongful
conduct by making excuses for much of the misconduct, the misconduct occurring
repeatedly over a period of years, the failure to contact the State Public Defender to
remedy the problem after discovering the inappropriate practice with regard to
mileage, and the attorney’s position as a magistrate. Mitigating factors included the
attorney reimbursing the State Public Defender for the improper mileage and billing,
the respect the attorney has gained in the legal community (as demonstrated by
AHLERS - 7
character reference letters from judges), implementation of better recordkeeping and
billing practices, and no history of prior disciplinary actions.
Misappropriation of Client Funds

Supreme Ct. Atty. Disciplinary Bd. v. Parrish, 925 N.W.2d 163 (Iowa 2019)
While the Board has the burden of showing that a misappropriation of funds occurred,
the attorney has the burden of providing evidence of a colorable future claim to the
funds. When an attorney receives funds for a specific purpose, that purpose
supersedes any claim or attorney lien the attorney may have in the funds and the
“future claim of right” defense is not applicable. Attorney converted client funds by
taking client’s check earmarked for a trial transcript on appeal and cashing the check
without paying the court reporter or placing the funds in the trust account. However,
at the time the check was cashed, the attorney had a future colorable claim of right
that exceeded the amount of the check. As a result, the transgressions were viewed
as violations of trust account regulations regarding safekeeping of client funds.
However, the Court warned that, in future cases concerning specific purpose funds, a
future colorable claim of right will not be a defense to a charge of theft or
misappropriation. Two-year suspension imposed for trust account violations, making
“brazenly false” statements to the Supreme Court reporting that the client had not
raised funds for the transcript, and causing delays and ultimately dismissal of court
proceedings for failing to pay transcript fees. Aggravating factors included the
attorney’s history of prior admonitions, public reprimands, and a prior license
suspension; the fact that prior misconduct involved improper handling of fees and
trust account violations; the attorney’s seventeen-year history of practicing law; the
fact that there were multiple rule violations; the fact that the violations were done
knowingly; the attorney’s course of conduct during the disciplinary proceedings that
made the Commission’s work more difficult; the attorney’s attempt to concoct a fee
agreement to avoid trust regulations; the fact that the misconduct harmed the client;
and the attorney’s failure to take responsibility for his actions. One dissenter called
for revocation.
Embezzling Employer’s Funds While License Suspended

Supreme Ct. Atty. Disciplinary Bd. v. Johnson, 926 N.W.2d 553 (Iowa 2019)
Lawyer’s license was suspended and he began working as an accountant at a car
dealership. Lawyer embezzled funds belonging to his employer, resulting in a criminal
conviction for Fraudulent Practices in the First Degree. Such misconduct constituted
a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness
as a lawyer and conduct involving dishonesty, fraud, deceit, or misrepresentation,
resulting in revocation of the lawyer’s already suspended license.
AHLERS - 8
Revocation for Drug Dealing
Supreme Ct. Atty. Disciplinary Bd. v. Bauermeister, 927 N.W.2d 170 (Iowa 2019)
In a 5-1 decision, revocation imposed after the attorney was convicted of felony
federal charge of conspiring to possess and distribute a controlled substance involving
a scheme whereby the attorney conspired with others to buy marijuana in Oregon to
sell in Omaha. The majority distinguished a case in which an attorney that was a
drug user and alcoholic received a license suspension, noting that the current case
involved an attorney that was a drug dealer motivated by greed. Aggravating factors
included the fact that the attorney was the orchestrator of the drug dealing, the
attorney paid a coconspirator to assume the risk of transporting marijuana across
state lines, the attorney participated in at least two earlier drug deals over several
months before his mule was caught, the attorney engaged in for-profit drug dealing
while serving as an assistant city attorney, and the attorney committed a felony for
financial gain. Mitigating factors included the fact that the attorney had no disciplinary
history, the attorney was actively involved in his children’s activities, the attorney
cooperated with law enforcement and the disciplinary process, and the attorney self-
reported, albeit after he was served with a search warrant by federal agents. The
dissenter argued for a three-year suspension.
Repeated Probate Delinquencies

Supreme Ct. Atty. Disciplinary Bd. v. Capotosto, 927 N.W.2d 585 (Iowa 2019)
Sixty-day suspension for allowing 12 probate estates to become delinquent and
incurring 38 delinquencies in 6 estates. Such misconduct violated rules requiring
reasonable diligence, requiring communication with clients, and prohibiting conduct
prejudicial to the administration of justice (e.g., causing needless expenditure of
judicial resources). Aggravating factors included the number of delinquencies, two
prior reprimands (one of which involved the same type of misconduct involving
delinquent probate matters, including one of the estates in this case being the same
estate as in the prior disciplinary proceeding years earlier), and failure to comply with
an agreement reached to avoid discipline to clean up the estates and to refrain from
opening new estates. Mitigating factors included reference letters from others,
willingness to take court-appointed cases, and the fact that the attorney completed
substantial work on most of the cases.
Frivolous Claims & Misrepresentations to Court – Pro Hac Vice

Supreme Ct. Atty. Disciplinary Bd. v. Caghan, 927 N.W.2d 591 (Iowa 2019)
Out-of-state attorney admitted pro hac vice enjoined from the practice of law in Iowa
for at least six months after misconduct that included violations of rules prohibiting
bringing a frivolous proceeding, prohibiting knowingly making or failing to correct false
statements of material fact or law to a tribunal, and prohibiting conduct prejudicial to
the administration of justice. Aggravating factors included the attorney’s experience,
AHLERS - 9
previous violations related to frivolous proceedings, and lack of remorse. Three
dissenters argued for a one-year injunction.
CIVIL PROCEDURE
Time Deadline for Seeking Writ of Certiorari from Board of Adjustment Ruling
Burroughs v. Davenport Zoning Bd. of Adjustment, 912 N.W.2d 473 (Iowa 2018)
In seeking writ of certiorari from a decision of the board of adjustment, the controlling
time deadlines are those set forth in Iowa Code Section 414.15, not the deadlines set
forth in Iowa Rule of Civil Procedure 1.1402 (generally dealing with petitions for writ
of certiorari). The time for appeal from a zoning decision runs from the date of the
decision, regardless of the alleged adequacy of any findings of fact. The timeframe
set by Section 414.15 begins upon “filing” the decision. This requires the decision to
exist in some documentary form, not just orally. The filing can be electronic, so the
board’s decision is “filed” when posted on the board’s website. However, unapproved
minutes posted on the website is not a filing of the decision. Filing only occurs when
the minutes have been approved and posted on the website.
Statute of Limitations – Enforcing Judgment of Appellate Court

TSB Holdings v. Board of Adjustment, 913 N.W.2d 1 (Iowa 2018)
Overruling Dakota, Minnesota, & Eastern Railroad v. Iowa District Court, 898 N.W.2d
127 (Iowa 2017), the limitations period in Iowa Code Section 614.1(6) runs from the
date when the cause of action accrues, which in the case of an injunction may be the
date when the violation of the injunction occurs.
Timing of Objections to Improper Closing Argument & Allocation of Fault Issues

Kinseth v. Weil-McLain, 913 N.W.2d 55 (Iowa 2018)
In cases in which closing argument is reported, a party’s motion for mistrial based on
the remarks of opposing counsel during closing arguments is considered timely if
made before the case is submitted to the jury. Counsel for the aggrieved party is not
required to interrupt opposing counsel’s argument with objections in order to preserve
the right to ask for a mistrial. Arguments highlighting that defense experts relied on
studies that were sponsored by Defendant and how much defense experts are paid
to testify on behalf of asbestos manufacturers were not improper and did not violate
the order in limine. However, arguments referencing how much Defendant paid for
graphic exhibits and how much was spent defending the lawsuit violated the order in
limine and were improper. The comments were prejudicial, so a new trial was
warranted. Defendant was not judicially estopped from challenging compensatory
damage verdict based on comments made during the punitive damage phase in which
defense counsel argued that Defendant had received the message the jury had sent
AHLERS - 10
(in setting the compensatory damage award) and Defendant would be paying that
amount, so no punitive damages were necessary. Defendant did not introduce
enough evidence that Plaintiff was exposed to asbestos contained in valves
manufactured by a different company to justify including that other company in the
allocation of fault on the verdict forms. Bankrupt asbestos manufacturers were
“released parties” under Section 668.3, so those manufacturers were properly
included on the allocation-of-fault verdict form.
Attorney Fees Under City Civil Rights Ordinance

Seeberger v. Davenport Civil Rights Commission, 923 N.W.2d 564 (Iowa 2019)
Davenport’s civil rights ordinance is organized into three divisions. Division II lists
discriminatory practices including employment, accommodation, retaliation, and
education. Division III addresses fair housing. Division II expressly allows attorney
fee awards while the corresponding remedy section in Division III does not. A tenant
successfully established a violation under Division III. In a 5-2 decision, the Court
declined “to transport the remedy provisions from Division II to Division III” and
denied the claim for attorney fees. The Court also rejected the argument that fees
could be recovered under the Fair Housing Act. The same reasoning used in cases
that hold that a local civil rights commission cannot award punitive damages under a
federal statute applies to prohibit a local civil rights commission from awarding
attorney fees under a federal statute.
Failure to Respond to Jurors’ Questions Regarding Instructions

Mumm v. Jennie Edmundson Memorial Hospital, 924 N.W.2d 512 (Iowa 2019)
Iowa Code Section 668.3(5) directs the court to give instructions and permit evidence
and argument on the effects of the jury’s answers to comparative fault interrogatories.
Here, the trial court’s instructions did not explain how the math worked on allocation
of fault between the defendant doctor and a released party. Consequently, when the
jury asked a question about how allocation of fault worked, the trial court should have
given an explanatory instruction rather than referring the jury to the original
instructions. However, there was no prejudice to the plaintiff since the jury returned
a verdict finding no fault by the defendant doctor. The Court pointed out that it was
hampered in its efforts to review the record for prejudice since the plaintiff/appellant
did not order a transcript, so the Court had no way of knowing how strong the
evidence was or whether misleading arguments were made to the jury in the absence
of an instruction on how comparative fault worked.
Discovery & Protective Order Regarding Police Reports – Open Records Law
Mitchell v. City of Cedar Rapids, 926 N.W.2d 222 (Iowa 2019)
Motorist shot by police officer during a traffic stop sued the officer and the city.
Confidential record provisions of Section 22.7 do not trump discovery rules to block
AHLERS - 11
discovery of the records, but confidentiality of records exchanged in discovery may
be safeguarded by a protective order under Rule of Civil Procedure 1.504. Police
investigative reports do not lose their confidential status under Section 22.7(5) when
the investigation closes. Three-part balancing test under Hawk Eye remains the
controlling precedent for disputes over confidentiality of police investigative reports.
Trial court properly applied that test and properly refused to grant a protective order
prohibiting public disclosure of “investigative reports or electronic communications
generated or filed within 96 hours of the incident.” Trial court properly addressed the
defendants’ arguments that disclosure would have a chilling effect on the candor
expected for internal investigations by excluding from the order compelling production
those “reports or memorandum generated solely for purposes of a police internal
review of the incident.” Since the police investigative reports were not exempt from
public disclosure under the Hawk Eye balancing test, a protective order limiting
disclosure to third parties would be pointless since any member of the public could
obtain the same reports through a Chapter 22 open records request.
Error Preservation Limitation – Rule 1.904(2)

Winger Contracting Co. v. Cargill, Inc., 926 N.W.2d 526 (Iowa 2019)
Amendment to Rule 1.904(2) was designed to eliminate the difficult choice faced by
lawyers in determining whether a 1.904(2) motion was a valid request to consider an
issue overlooked by the trial court or whether it was a mere rehash and therefore did
not operate to stay the time for filing an appeal. It was not designed to overhaul
error preservation doctrines. Therefore, a party cannot raise an issue for the first
time in a 1.904(2) motion and doing so does not preserve error on that issue.
Modifying Jury Verdict to Conform to Jury’s Intention

Anderson v. Anderson Tooling, Inc., 928 N.W.2d 821 (Iowa 2019)
This case involves a complex business suit alleging civil conspiracy against two
defendants related to claims against the other defendant for the underlying torts of
conversion, intentional interference with prospective business advantage, breach of
fiduciary duty, and misappropriation of trade secrets. The trial court may only make
nonsubstantive changes to a jury verdict. Here, the main tortfeasor was found liable
with substantial damages awarded. The jury also found that the other two defendants
had engaged in a civil conspiracy, but stated the damage amount as “$0 –
duplication.” As noted in the “Torts” section of this outline, civil conspiracy is not an
independent action. Instead, damages are assessed based on the harm caused by
the underlying tortious conduct. Determining that the failure to award damages
against the two conspiracy defendants was the result of faulty structure of the verdict
form, the trial court properly amended the verdict to extend liability to the
conspirators. The Court pointed out that many of the issues in this case could have
been avoided had the parties not agreed to a sealed verdict.
AHLERS - 12
COMMERCIAL LAW
(No Cases)
CONSTITUTIONAL LAW
Abortion Waiting Period

Planned Parenthood v. Reynolds ex rel. State, 915 N.W.2d 206 (Iowa 2018)
In a 5-2 decision, applying the strict scrutiny standard, Iowa Code Chapter 146A,
which prohibits an abortion being performed for a 72-hour period after the pregnant
woman goes to a doctor, is unconstitutional as it violates the Due Process and Equal
Protection clauses of the Iowa Constitution.
CONTRACTS
Elements of Promissory Estoppel

Kunde v. Estate of Bowman, 920 N.W.2d 803 (Iowa 2018)
Farmer sued neighbor’s heirs for unjust enrichment, quantum meruit, and promissory
estoppel, claiming farmer had an option to buy neighbor’s land and farmer had made
substantial improvements in reliance on the promised option. The Court noted that
express contracts and implied contracts cannot coexist with respect to the same
subject matter. Since the farmer and the neighbor had a farm lease that addressed
improvements and allocated the costs of those improvements to the farmer, farmer’s
claims based on unjust enrichment and quantum meruit failed. However, the
promissory estoppel theory was not addressed by the farm lease, as the promissory
estoppel claim was based on the farmer’s claim that the farmer only incurred the cost
of the improvements after relying on the neighbor’s promise of an option to buy the
land. Clarifying conflicting prior cases that created confusion as to whether
promissory estoppel required proof of a “clear and definite agreement” or a “clear and
definite promise,” the Court holds that a “clear and definite promise” is sufficient if
the other elements of promissory estoppel are met.
Door-to-Door Sales – Definition of Consumer Goods or Services

Morris v. Steffes Group, Inc., 924 N.W.2d 491 (Iowa 2019)
The Iowa Door-to-Door Sales Act (“DDSA”)(Iowa Code Chapter 555A) only applies to
the sales of “consumer goods or services.” Whether goods or services are “consumer”
goods or services depends on the primary purpose of the goods or services sold. Such
determination is made from the perspective of the buyer, not the seller. Here, the
seller sought summary judgment on the buyer’s claims that the seller violated the
AHLERS - 13
DDSA by arguing that the sale of the services was not a “consumer” service because
the seller was in the business of selling agricultural auction services, not consumer
goods or services. However, viewed from the perspective of the buyer, since the
seller presented no evidence that the services it sold were not primarily for personal,
family, or household purposes, the seller was not entitled to summary judgment.
CORPORATIONS
(No Cases)
CRIMINAL LAW
Felony-Murder Rule Applied to Juveniles

State v. Harrison, 914 N.W.2d 178 (Iowa 2018)
In a 4-2 decision, the felony-murder rule does not violate the Iowa or United States
Constitutions when applied to juvenile offenders pursuant to a theory of aiding and
abetting. Sentencing juvenile offenders convicted of felony-murder, whether they
were the principal actor or aided and abetted, to life imprisonment with immediate
parole eligibility is constitutional under both constitutions. Sentence of life with
immediate parole eligibility for felony-murder is not grossly disproportionate to the
underlying crime, so an “as applied” challenge failed. Since Robbery in the Third
Degree was not an existing crime at the time of this defendant’s offense, the
defendant was not entitled to a jury instruction differentiating between felony robbery
and misdemeanor robbery. Also, the act of robbery is sufficiently independent from
the act of killing such that felony robbery does not merge into murder under the
Heemstra standards.
Instructions on General & Specific Intent

State v. Benson, 919 N.W.2d 237 (Iowa 2018)
As a matter of first impression, Child Endangerment is a general intent crime.
Evidence was sufficient to sustain convictions for Assault Causing Bodily Injury and
Child Endangerment in spite of the defendant’s defense that he was using corporal
punishment to correct behavior. Giving jury instructions on both general and specific
intent without informing the jury as to which form of intent applies to which charge
rendered the instructions confusing and misleading such that a new trial was required.
The stock jury instruction on specific intent correctly states the law on specific intent.
AHLERS - 14
Lesser Included Offenses & Merger
State v. West, 924 N.W.2d 502 (Iowa 2019)
In a thorough review of the doctrine of merger and the method for determining lesser
included offenses, the crimes of Delivery of a Controlled Substance and Involuntary
Manslaughter by a Public Offense Other Than a Forcible Felony or Escape do not
merge even though the two crimes meet the Blockberger “elements test.” The Court
declines to abandon the two-step approach set forth in Gallup and Halliburton. That
approach involves using legislative intent to determine whether an offense is
necessarily included in a greater offense. The legal elements test is useful, but not
determinative. Where, as here, the greater offense has a penalty that is not in excess
of the lesser included offense, a legislative intent to permit multiple punishments is
demonstrated.
Kidnapping – Confinement & Torture Elements

State v. Albright, 925 N.W.2d 144 (Iowa 2019)
Defendant was found guilty of Kidnapping in the First Degree. The “incidental rule”
states that confinement or removal in the kidnapping statute requires more than
confinement or removal that is an inherent incident of the commission of another
crime. The Court held that the incidental rule still applies when the kidnapping charge
involves torture. Here, the confinement element was met by evidence that the
defendant confined the victim for 13 hours, with periods of assault occurring
throughout that period, and the defendant prevented the victim from leaving the
house where she was confined. The torture element was met by evidence that the
defendant beat the victim intermittently for 13 hours, punched and hit the victim in
the face with his hands, hit her in the pelvis with a cordless drill, cut behind her ear
with a knife, burnt her wrists with a Taser, broke her dentures, allowed his dog to
bite her, and threatened to bury her in a cornfield up to her head and let a combine
cut her head off while repeatedly calling her a whore and other derogatory names.
Since the defendant was found guilty of Kidnapping in the First Degree, the Court did
not need to address the question whether it was error to submit an instruction on a
lesser included offense of Kidnapping in the Second Degree. When a jury convicts a
defendant of a greater offense, no prejudice results from the jury considering guilt of
a lesser offense.
Sex Offender Registration – Internet Identifiers

State v. Aschbrenner, 926 N.W.2d 240 (Iowa 2019)
Amendment to sex offender registration statute that added requirements for offenders
to divulge “internet identifiers” as part of the sex offender registration process does
not violate ex post facto constitutional provisions or violate free speech guarantees of
the Iowa or federal constitutions.
AHLERS - 15
Kidnapping – Nature of Confinement to Support Charge
Sauser v. State, 928 N.W.2d 816 (Iowa 2019)
Pointing a gun at the victim and making him stay in a chair for a period of time before
shooting and killing the victim did not meet the “confinement” element of kidnapping.
The confinement cannot be predicated on merely seizing another person. The
confinement must be beyond that which would ordinarily be associated with the
underlying offense and it must make the underlying crime more heinous. Here, the
purported confinement was simply the unique facts associated with this particular
shooting and did not make the shooting substantially more heinous. As a result, trial
counsel was ineffective for permitting the shooter to plead guilty to kidnapping.
CRIMINAL PROCEDURE
Bad Advice – Attachment of the Right to Counsel

Ruiz v. State, 912 N.W.2d 435 (Iowa 2018)
Defendant’s counsel allegedly breached a duty by advising defendant to go to the
DOT to apply for a driver’s license (Defendant had previously registered vehicles under
a different, bogus social security number). The application led to criminal charges
and subsequent immigration problems. Since no charges had been brought and no
investigation was underway when the allegedly bad advice was given, Defendant’s
right to counsel under the federal and state constitutions had not attached.
Therefore, the claimed bad advice did not constitute ineffective assistance of counsel
so as to require the setting aside of Defendant’s conviction.
Freezing of a Defendant’s Assets Before Trial

Krogmann v. State, 914 N.W.2d 293 (Iowa 2018)
In this postconviction relief case, a 6-1 decision holds that an order entered in the
underlying case freezing Defendant’s assets prior to trial was unlawful because there
is no common law remedy permitting such an injunction and the asset-freeze
application did not remotely resemble an application for an injunction under the Iowa
Rules of Civil Procedure or comply with Iowa Code Section 910.10. Trial counsel’s
failure to insist on the trial court’s ruling on the resistance to the asset-freeze
application or insist on a hearing was ineffective assistance of counsel. In addition,
the asset freeze violated Defendant’s rights under the Sixth Amendment and the Iowa
Constitution to be master of his own defense by allowing the State to monitor and
control Defendant’s expenditures on his own defense, preventing Defendant’s posting
of bail and being freed prior to trial to assist in his own defense, limiting Defendant’s
phone access while in jail by blocking access to funds, and preventing Defendant from
hiring a jury consultant and other experts. Under Article I, Section 8, of the Iowa
Constitution, this error was a structural error such that Defendant was not required
AHLERS - 16
to show actual prejudice in order to obtain postconviction relief and was entitled to a
new trial with full, lawful access to Defendant’s assets. Although granting a new trial,
to avoid further issue if convicted again, the Court, declining to overrule State v.
Clarke, 475 N.W.2d 193 (Iowa 1991), holds that application of the legal elements test
is required and application of that test demonstrates that Willful Injury is not a lesser-
included offense of Attempted Murder.
Competency Evaluations During Trial

State v. Einfeldt, 914 N.W.2d 773 (Iowa 2018)
In a 4-3 decision, trial court erred in not suspending trial to have an evaluation and
hold a competency hearing. The record showed that Defendant wanted to stab her
lawyer in the neck and kill him, believed her lawyer was turning written notes over to
the prosecution, recently had heard buzzing noises, claimed to have been told by the
FBI that she did nothing wrong, stated that she was worried about someone poisoning
the water, and had advised the trial court that she had a history of mental health
issues including a diagnosis of paranoid schizophrenia yet was not compliant with
prescribed drug therapy. Under these circumstances, an evaluation and a
competency hearing should have been ordered.
Statute of Limitations – Claimed Ineffectiveness of PCR Counsel

Allison v. State, 914 N.W.2d 866 (Iowa 2018)
In a 4-3 decision overruling prior case law, where a postconviction relief (“PCR”)
petition alleging ineffective assistance of trial counsel has been timely filed within the
limitation period of Section 822.3 and there is a successive PCR petition alleging
postconviction counsel was ineffective in presenting the ineffective-assistance-of-trial-
counsel claim, the timing of the filing of the second PCR petition relates back to the
timing of the filing of the original PCR petition for purposes of Section 822.3 if the
successive PCR petition is filed promptly after the conclusion of the first PCR action.
Even though amended petition in the second PCR case was not officially authorized
to be filed, since the trial court acknowledged the claims, the claims were preserved
for appellate review. The claims in the amended petition should not have been
dismissed via a motion to dismiss.
Multiple Offenses – Plea Stipulations That Contradict Record

Noble v. Iowa Dist. Ct. for Muscatine County, 919 N.W.2d 625 (Iowa App. 2018)
Defendant’s stipulation that the conduct supporting Defendant’s guilty plea to two
different crimes was separate conduct is of no legal effect when the stipulation is
contrary to the record. The record showed that Defendant’s guilty pleas to Attempted
Murder and Voluntary Manslaughter were based on the same act against the same
victim (i.e., kicking the victim in the head with steel-toed boots) and violated the rule
that a defendant cannot be convicted of both an attempted homicide and a completed
AHLERS - 17
homicide for the same acts directed against the same victim. Even though Defendant
stated, as part of the plea colloquy, that he would not raise issues of merger, estoppel,
or alleged inconsistency, such statements did not constitute a waiver to the objection
raised on appeal and, even if they did, the waiver is unenforceable, as the parties
cannot agree to an illegal sentence. Prosecutor is given the choice of remedy:
(1) accept the annulling of the sentence for Voluntary Manslaughter and remand for
resentencing on the remaining convictions; or (2) vacate all the convictions and the
entire plea bargain and remand the case, allowing the State to reinstate any charges
dismissed in contemplation of a valid plea bargain and file any additional charges
supported by the available evidence.
Preserving Ineffective Assistance Claims

State v. Harris, 919 N.W.2d 753 (Iowa 2018)
When counsel fails to preserve error at trial, a defendant can have the matter
reviewed as an ineffective-assistance-of-counsel claim either on direct appeal (if the
record is sufficient) or in postconviction relief proceedings. If the ineffective-
assistance-of-counsel claim in the appellate brief is insufficient to allow its
consideration, the appellate court should not consider the claim, but it should not
outright reject it. Therefore, Court of Appeals erred by not only refusing to consider
the ineffective-assistance-of-counsel claim, but denying it on its merits due to failure
to preserve error.
Restitution Standards
State v. Roache, 920 N.W.2d 93 (Iowa 2018)
Defendant stole a backpack that included a student’s study guide. The organization
that issued the study guide contractually “fined” the student $1900 for the loss of the
guide. In a 6-1 decision, since Iowa Code Chapter 910 expressly relies on civil liability
principles to determine restitution, the Restatement (Third) of Torts’ risk standard for
scope of liability applies. In assessing whether the $1900 could be assessed as
restitution, the avoidable consequences doctrine did not apply because it is a
comparative fault principle that does not apply to intentional acts. The State failed to
prove that the student would be compelled to pay the fine and failed to rebut
Defendant’s argument that the fine was an unenforceable penalty. An unpaid fine is
akin to an unpaid billing invoice and is insufficient, without more, to support a
restitution award. Although the study guide may have had value as intellectual
property, no lay or expert testimony was presented to prove such value. Since the
organization that issued the study guide could not compel the student to pay the fine
in a civil action, the fine amount could not be assessed as restitution. The fine was
also punitive, and punitive damages are not recoverable as restitution.
AHLERS - 18
Ineffective Assistance of PCR Counsel
Goode v. State, 920 N.W.2d 520 (Iowa 2018)
Postconviction relief (“PCR”) applicant claimed PCR counsel was ineffective by failing
to present evidence of ineffective assistance of trial counsel. Since the question of
whether this was a constitutional or statutory claim was not the issue in the case,
Court of Appeals erred by rejecting applicant’s claim because it was framed as a
constitutional issue. On the merits, trial court properly denied PCR application.
Applicant was not entitled to remand to address claim that PCR counsel was ineffective
not because of any statute of limitation issue, but because such claims must be raised
in a separate application for PCR.
Restitution for Damage to Pursuing Law Enforcement Vehicles

State v. Shears, 920 N.W.2d 527 (Iowa 2018)
Defendant pled guilty to Criminal Mischief and Eluding. Defendant challenged
restitution order requiring Defendant to pay for damage to police cruisers damaged
in the chase. In this circumstance, a government entity is a “victim” under the
restitution statute. In determining causation under the statute, tort principles are
applied rather than some more restrictive standard. The Court declines to decide
whether causation must be analyzed under tort principles in effect when the
restitution statute was enacted in 1982 or under current tort principles applying the
“scope of liability” standard because the result would be the same either way in this
case. Damage to police vehicles as a result of a high-speed chase would be within
the scope of liability in a negligence action, and thus such damage is recoverable as
restitution. Even if the pursuit intervention technique (“PIT”) maneuver used to stop
Defendant was an independent act that was also a factual cause of damage to the
police vehicles, under either the tort principles in effect in 1982 or the current tort
principles, Defendant is still liable for the damages. Also, the “firefighter’s rule,” which
generally limits the ability of firemen or police officers to recover for injuries incurred
in performing their duties, does not apply to avoid Defendant’s liability in these
circumstances. Provision in Iowa Code Section 321J.2(13)(b) allowing recovery of up
to $500.00 for emergency response costs in OWI cases did not limit recovery in this
case.
Risk Assessments in PSI & Considering Unproven Offenses at Sentencing

State v. Gordon, 921 N.W.2d 19 (Iowa 2018)
Claim that use of risk assessment tools in presentence investigation report (PSI)
violated Defendant’s due process rights is a claim of error in the proceedings prior to
imposition of sentence. Consequently, normal rules of error preservation apply. Since
Defendant failed to object to the inclusion of the risk assessment tools in the PSI,
error was not preserved. Ineffective assistance claim could not be resolved on direct
appeal and was preserved for postconviction proceedings. Trial court did not err by
AHLERS - 19
considering: (1) criminal charges that were filed between plea and sentencing; and
(2) details about the nature of the crimes (i.e., that Defendant was with a juvenile
runaway). Since Defendant admitted to committing the new crime to the presentence
investigator, admitted to the sentencing judge that Defendant was with the juvenile
when arrested, and failed to object to any information contained within the PSI
regarding the arrest, the trial court did not abuse its discretion in relying on the
unprosecuted charge or surrounding circumstances.
Risk Assessments in PSI – II

State v. Guise, 921 N.W.2d 26 (Iowa 2018)
Since the issue was not raised in Defendant’s brief, the Court declines to address the
issue of whether there is legislative authority supporting the use of a risk assessment
at sentencing. As in Gordon, due process challenges were not preserved for appeal
and the record was insufficient to address ineffective assistance claims. Concurring
opinion argues, not for categorical rejection of risk assessment tools, but for a fully-
developed record to make sure the assessment tools are statistically valid. Mistaken
reference to a surcharge for an underlying crime that was not charged, which the
sentencing judge immediately corrected, did not demonstrate improper consideration
of an unproven or unprosecuted offense.
Preclusive Effect of Determination of Length of Sex Offender Registration

Barker v. Iowa Dept. of Public Safety, 922 N.W.2d 581 (Iowa 2019)
On the unique facts of this case, even though the crime for which sex offender was
convicted required a lifetime registration requirement, due to a prior (although
erroneous) determination by the Court of Appeals that sex offender was only required
to register as a sex offender for ten years, the ruling had preclusive effect that
prohibited the DPS from requiring sex offender to register for life.
Stipulation to Habitual Offender Priors – Procedure & Error Preservation

State v. Smith, 924 N.W.2d 846 (Iowa 2019)
Defendant stated a desire to stipulate to prior offenses that would trigger habitual
offender enhancement. Trial court’s statement that Defendant had a right to file a
motion in arrest of judgment was insufficient to comply with its duty under Harrington
because the statement did not tie that right to the method of challenging the
stipulation proceedings and did not ensure that Defendant understood that the failure
to file such a motion would preclude Defendant from challenging the proceedings on
appeal. Therefore, Defendant was not precluded from challenging the prior offense
stipulation on appeal. Trial court failed to engage in the Harrington colloquy to inform
Defendant of the nature of the habitual offender enhancement, obtain a factual basis,
inform Defendant of the minimum and maximum punishment of habitual offender
enhancement, inform Defendant of trial rights, and inform Defendant that challenges
AHLERS - 20
to admissions based on defects in the habitual offender proceedings must be raised
in a motion in arrest of judgment and failure to do so would preclude the right to
assert them on appeal.
Restitution – Ability to Pay

State v. Albright, 925 N.W.2d 144 (Iowa 2019)
In a review of the statutory scheme for imposing financial obligations, the Court holds
that the sentencing judge must impose the applicable financial obligations for
restitution to a victim, fines, penalties, and surcharges regardless of the offender’s
reasonable ability to pay. The sentencing judge can only assess all other financial
obligations (e.g., court costs, attorney fees, jail fees, crime victim assistance) in an
amount commensurate with the offender’s reasonable ability to pay. It is error to
order an offender to pay all of the second category restitution items in full without
having the amount of each such item available to the sentencing judge at the time
the order is issued.
Probation Revocation Standards and Restitution

State v. Covel, 925 N.W.2d 183 (Iowa 2019)
A court may revoke probation if the probationer violates the terms of probation. The
judge must base a revocation decision on more than a simple reevaluation of the
information known by the trial judge at the time of sentencing. If a probation violation
is established, the trial court must then determine whether the person should be
committed to prison or whether the court should take other steps to protect society
and improve chances of rehabilitation. Here, the trial court put a great deal of time
and thought into the decision to revoke probation by getting an updated PSI and
holding two probation revocation hearings, so no error occurred in revoking the
youthful offender’s deferred judgment and imposing a prison sentence. However, the
restitution portion of the sentencing order was vacated because the trial court ordered
the defendant to pay the total amount of restitution without having the total
restitution figures available, in violation of the Albright procedure.
Scope of Motion in Arrest, Attorney-Client Breakdown, & Ex Post Facto Surcharges

State v. Petty, 925 N.W.2d 190 (Iowa 2019)
Defendant did not preserve error by filing a motion in arrest of judgment that raised
different issues than those raised on appeal. The issue not properly preserved for
appeal was preserved for postconviction relief. Record was insufficient to determine
whether there was a breakdown of the attorney-client relationship, so that issue was
preserved for postconviction relief. Since the defendant’s criminal conduct occurred
one month before the effective date of the sexual abuse surcharge imposed by Iowa
Code Section 911.2B, imposition of the surcharge violated ex post facto principles and
that portion of the sentence was vacated. Trial court’s imposition of court costs and
AHLERS - 21
attorney fees without determining Defendant’s reasonable ability to pay violated the
procedures detailed in Albright.
Apportionment of Court Costs on Dismissed Counts

State v. Ruth, 925 N.W.2d 589 (Iowa 2019)
In a multi-count case in which the offender is convicted on one or more counts and
one or more counts are dismissed, sentencing courts can no longer routinely order
the offender to pay all court costs unless there is an agreement between the parties
or the record shows no court costs are attributed to the dismissed counts. Without
an agreement, sentencing courts must either apply the apportionment rule or include
a provision that directs the offender to pay the court costs identified in the docket
report other than those attributed to a dismissed count. An appeal is not the only
remedy for the failure to apportion costs at sentencing. The State, the defendant, or
the clerk of court can request a supplemental order to apportion court costs.
Apportionment of Court Costs on Dismissed Counts – New Rule

State v. McMurry, 925 N.W.2d 592 (Iowa 2019)
Modifying the rule set forth in Petrie, in a multi-count case that results in both a
conviction with regard to one or more counts and a dismissal of one or more counts,
court costs that would have been the same without the dismissed counts (e.g., filing
fee, court reporter fees for plea and sentencing, service fees) should not be
apportioned proportionately and all such fees should be assessed against the
defendant. Equitable apportionment of court costs is still required, but apportionment
should only occur with regard to fees and costs clearly attributable to any single count.
It is error to find the defendant has the ability to pay court-appointed attorney fees
in full before the total amount of fees has been determined.
Claim of Illegal Sentence – Appointment of Counsel

Jefferson v. Iowa Dist. Ct. for Scott County, 926 N.W.2d 519 (Iowa 2019)
A motion to correct an illegal sentence is a stage of the original criminal case, even
when filed years after the sentence was imposed. Therefore, Iowa Rule of Criminal
Procedure 2.28(1) requires the court to appoint counsel when an indigent defendant
files a motion to correct an illegal sentence under Iowa Rule of Criminal Procedure
2.24(1).
Risk Assessments in PSI – III

State v. Headley, 926 N.W.2d 545 (Iowa 2019)
Sentencing judge does not abuse its discretion in considering risk assessment tools
on their face as contained in the PSI, as these tools contain pertinent sentencing
information. The argument that the sentencing judge did not know of the cautions
AHLERS - 22
and limitations associated with the tools was without merit because it is essentially a
due process argument that was not preserved because the defendant did not object
to the tools on this basis. Ineffective assistance claims could not be raised on direct
appeal, but were preserved for postconviction relief. Sentencing court did not
consider an improper sentencing factor by consider the PSI writer’s recommendation
because the recommendation is pertinent sentencing information. Requiring the
defendant to pay the court costs associated with dismissed charges did not constitute
an illegal sentence as long as the costs would have been incurred in prosecuting the
charges that were not dismissed, which was the case here. Ordering the defendant
to pay restitution in the form of court costs and correctional fees without first
determining the defendant’s ability to pay those items was error, as noted in Albright.
Expungement Conditioned on Payment of Court Debt

State v. Doe, 927 N.W.2d 656 (Iowa 2019)
After charges against a criminal defendant were dismissed, the defendant sought
expungement of the record pursuant to Iowa Code Chapter 901C. The request was
denied because the defendant still owed court-appointed attorney fees. The
defendant challenged the condition on Equal Protection grounds under both
constitutions, arguing that criminal defendants who owed fees to privately-retained
attorneys were allowed expungement. In a 4-3 decision, the Court found no Equal
Protection violation. Since there is no constitutional right to expungement, the Equal
Protection claim did not involve a fundamental right. Applying rational basis analysis,
the Court found that the legislature could reasonably condition expungement on
payment of costs in order to provide an incentive for defendants to pay court debt.
DEBTOR / CREDITOR
Enforcing Judgment Against Ownership Interest in LLC

Wells Fargo Equipment Finance v. Retterath, 928 N.W.2d 1 (Iowa 2019)
Minnesota creditor had a Florida judgment against a Florida resident, who owned
membership shares of an LLC formed in Iowa. The judgment was then filed in Iowa.
Pursuant to the Revised Uniform Limited Liability Company Act (codified as Iowa Code
Section 489.101), the creditor obtained a charging order to execute on the debtor’s
membership interest in the Iowa LLC. As a matter of first impression, the Court holds
that, for the purposes of determining the enforceability of a charging order under the
RULLCA, a member’s membership interest is located where the LLC was formed. In
this case, the LLC was formed in Iowa, so Iowa law applied to the dispute. Iowa law
does not recognize ownership of property by a married couple as “tenants in the
entireties,” so the petition filed by the judgment debtor and his wife seeking to vacate
the charging order on that basis was properly dismissed. With regard to challenges
AHLERS - 23
based on improper registration of the Florida judgment in Iowa, the fact that the Clerk
of Court did not note the mailing of the filing of the foreign judgment as required by
the statute was not fatal. There was substantial evidence supporting the trial court’s
finding that the judgment debtor received notice such that the clerical error was not
fatal to the registration of the judgment and issuance of the charging order. Notice
requirements that permit mailing of registration of a foreign judgment pursuant to
Iowa’s Uniform Enforcement of Foreign Judgments Act (Iowa Code Chapter 626A) do
not violate due process protections. Basic due process requirements were already
met by the Florida court when judgment was entered. Registering a foreign judgment
is merely the method of enforcing the properly-obtained judgment. Therefore, due
process is satisfied under both constitutions by the procedures of the UEFJA.
DIVORCE / FAMILY LAW
Postsecondary Education Subsidy Calculation

In re Marriage of Larsen, 912 N.W.2d 444 (Iowa 2018)
Calculating a postsecondary education subsidy is a three-step process: (1) determine
the cost; (2) calculate the child’s contribution; and (3) allocate the remaining amount
between the parents, with neither parent obligated for more than one-third of the
total cost. Regarding the first step, the cost of attendance published by the state
university is presumed to be the cost (if attending a college other than an in-state
public institution, the average of the three state schools is to be used). Sorority dues
do not warrant deviating from the published cost. Regarding the second step,
scholarships received by the student are included as the child’s contribution. Available
loans may be considered as the child’s contribution, but not here due to the parents’
incomes and the amount saved in the child’s Section 529 account. In calculating the
amount the student could contribute from employment, reasonable expectation of
employment, as opposed to proof of the existence of a specific job, can be used.
Child support paid by the father to the mother over the summer before the student
started college is not part of the “child’s contribution.” Regarding the third step, since
each parent had control over half of the Section 529 account and both had significant
incomes, the amount left after subtracting the child’s contribution from the total
published cost was equally divided between the parents, as the amount for each
parent did not exceed one-third of the total.
Death of Party Appealing Trial Court Ruling

In re Marriage of Wilson-White and White, 912 N.W.2d 494 (Iowa App. 2018)
After filing notice of appeal challenging trial court divorce ruling, husband died. The
general rule is that an appeal from a dissolution proceeding is not moot or abatable
where the appeal involves property rights, as the deceased party is substituted by a
AHLERS - 24
legal representative who can prosecute the decedent’s interests. Here, since no one
sought substitution of parties and, in fact, the husband’s attorney sought to withdraw
because no one intended to open an estate, there was no one to pursue the husband’s
disagreements. Therefore, there was no remaining controversy and the appeal was
dismissed as moot.
Premarital Agreements – Attempt to Deny Attorney Fees

In re Marriage of Erpelding, 917 N.W.2d 235 (Iowa 2018)
A premarital agreement provision waiving an award of attorney fees related to issues
of child or spousal support is categorically prohibited by Iowa Code Section 595.5(2).
Given the need to take into account the best interests of the children, public policy
prohibits premarital agreements from limiting child custody rights. Accordingly,
provisions in premarital agreements that seek to waive or shift attorney fees as to
child custody issues violate public policy and are barred by Iowa Code Section
595.5(1)(g).
EMPLOYMENT
No Extraterritorial Application of Iowa Civil Rights Act

Jahnke v. Deere & Co., 912 N.W.2d 136 (Iowa 2018)
The Iowa Civil Rights Act (“the ICRA”) does not apply extraterritorially because it
contains no clear and affirmative expression or indication of an extraterritorial reach.
Likewise, the ICRA does not apply to this discrimination case brought by an employee
who worked in the employer’s subsidiary in China. Employee failed to show either
that the employee or the employer was located within Iowa for purposes of the alleged
discriminatory acts. Mere Iowa residency and the presence of some ties to Iowa is
insufficient to establish that the employment relationship was located in Iowa.
Exhaustion and Exclusivity of Remedies – Whistleblower

Walsh v. Wahlert, 913 N.W.2d 517 (Iowa 2018)
Former chief administrative law judge is permitted to bring a direct claim under Iowa
Code Section 70A.28 (a “whistleblower” claim) without exhausting administrative
remedies under Iowa code Chapter 8A. However, common law claim for wrongful
termination in violation of public policy was properly dismissed because such a
common law claim cannot be brought when a civil service statute protects the
employee from wrongful conduct, as was the case here. In those cases, a civil service
statute that provides a comprehensive framework for the resolution of such claims
provides the exclusive remedy.
AHLERS - 25
Tolling Filing of Civil Rights Complaint
Mormann v. Iowa Workforce Development, 913 N.W.2d 554 (Iowa 2018)
The equitable tolling doctrines of the discovery rule and equitable estoppel are
available with respect to the 300-day filing limitation in the Iowa Civil Rights Act.
Discovery rule did not excuse the late filing in this case because Plaintiff had
knowledge of facts sufficient to support a prima facie case of age discrimination
immediately after being informed of the decision not to hire him. The fact that he
later discovered evidence that made his case stronger did not entitle Plaintiff to avail
himself of the discovery rule to save the case from dismissal. Likewise, equitable
estoppel did not apply based on the claim that the prospective employer omitted the
real (i.e., allegedly discriminatory) reason for not hiring Plaintiff in the rejection letter
sent to Plaintiff. To invoke equitable estoppel in this context, Plaintiff must show
some affirmative misrepresentation by the employer that the employer knew or should
have known would cause delay in the filing of a claim.
Wrongful Discharge Claims by Contract Employees

Ackerman v. State, 913 N.W.2d 610 (Iowa 2018)
In a case of first impression, in a 5-2 decision, wrongful discharge in violation of public
policy claims are not categorically reserved for at-will employees. Therefore, an
administrative law judge covered by a collective bargaining agreement can still bring
a claim based on wrongful termination in violation of public policy. The issue of
whether Iowa Code Section 70A.28 provides the exclusive remedy for wrongful
discharge claims brought by contract state employees was not properly raised and
litigated, so it was not decided.
Pre-Employment Physical – Disability Discrimination

Deeds v. City of Marion, 914 N.W.2d 330 (Iowa 2018)
City declined to hire a prospective firefighter after the physician performing the city’s
pre-employment physical examination reported that the applicant was not medically
qualified for the position. The physician made the determination based on national
firefighter guidelines that disqualify persons with MS with active symptoms within
three years. Applicant sued the city for violating the disability discrimination
provisions of the Iowa Civil Rights Act and sued the physician for aiding and abetting
the discrimination. In a 4-2 decision, summary judgment in favor of the city and the
physician was affirmed. The physician did not inform the city that MS was the reason
the applicant was found unfit and the city did not inquire further. The applicant also
did not inform the city that the applicant had MS. Summary judgment was granted
because the applicant could not prove the city discriminated against the applicant
because of the applicant’s MS when the city was unaware that the applicant had MS.
The physician was not liable for providing an independent medical opinion or for aiding
and abetting without proof the city intentionally discriminated against the applicant.
AHLERS - 26
Prohibition on Payroll Deductions for Union Dues for Public Employees
Iowa State Education Association v. State, 928 N.W.2d 11 (Iowa 2019)
Applying rational basis analysis, amendments to the Public Employment Relations Act
that prohibit payroll deductions for union dues do not violate the Equal Protection
clause. Public employees do not have a constitutional right to payroll deductions for
union dues. There is no Equal Protection violation merely because voluntary
automatic payroll deductions are permitted for charities or dues to other organizations
that do not impact the public treasury.
Different Bargaining Rights – Public Safety Employees

AFSCME Iowa Council 61 v. State, 928 N.W.2d 21 (Iowa 2019)
The 2017 amendments to the Public Employment Relations Act (“PERA”) limited the
issues over which collective bargaining was required and significantly reduced such
issues for bargaining units comprised of less than thirty percent “public safety
employees.” In a 4-3 decision, applying rational basis analysis, the amendments did
not violate Iowa’s Equal Protection clause by giving greater bargaining rights to
bargaining units comprised of 30% or more of public safety employees. The
legislature could reasonably conclude that the goal of keeping labor peace with unions
comprised of at least 30% public safety employees, and the greater risks faced by
emergency first responders, justified the classification. Also applying rational basis
analysis, the amendments did not violate the Freedom of Association clause, as the
amendments do not prohibit or restrict unions from soliciting members, disseminating
materials, engaging in political activities, or expressing their views. “There is a
fundamental distinction between the right to associate and whether someone must
listen when you do.”
Acceptance of Employer Contract Offer

UE Local 893/IUP v. State, 928 N.W.2d 51 (Iowa 2019)
Public employee union claimed it accepted the State’s offered collective bargaining
agreement. The State, in resisting the union’s motion for summary judgment, failed
to argue that Iowa Administrative Code Rule 621 – 6.5(3) required the State to vote
to ratify after the union vote and that without the State’s vote, no contract was
formed. Therefore, the State was found not to have preserved error on that issue.
Without that issue, the State lost, as the State had not withdrawn its offer before the
union’s acceptance and ratification, resulting in an enforceable collective bargaining
agreement. The Court also rejected the State’s arguments that the union failed to
exhaust administrative remedies and that the courts should defer to the Public
Employment Relations Board (“PERB”) under the doctrine of primary jurisdiction. Due
to PERB’s regulations not equipping the agency to adjudicate contract-formation and
contract-enforcement issues coupled with the courts having specific legislative
AHLERS - 27
authority to do so, the primary jurisdiction doctrine did not apply. Since PERB could
not order the relief the union sought in the lawsuit, the union was not required to
exhaust administrative remedies with PERB.
Public Employer Required to Get Approval Before Ratifying CBA

Service Employees Int’l Union v. Board of Regents, 928 N.W.2d 69 (Iowa 2019)
Public Employment Relations Board (“PERB”) had statutory authority to promulgate
Iowa Administrative Code Rule 621 – 6.5(3), which implements a public-voting
requirement before a public employer can accept a collective bargaining agreement.
Since the Board of Regents never approved the CBA proposal that was accepted by
the union, the CBA did not become an enforceable contract.
Interpretation of 2017 Amendments to PERA

United Electrical, Radio, & Machine Workers v. PERB, 928 N.W.2d 101 (Iowa 2019)
The 2017 amendments to the Public Employment Relations Act (“PERA”) limited
bargaining to “base wages and other matters mutually agreed upon” for bargaining
units that do not have at least 30% public safety employees. The amendments also
prohibited an arbitrator resolving any disputes between the public employer and such
bargaining units from considering “past collective bargaining agreements.”
Interpreting those amendments, in a 5-2 decision, the Court determined that the
terms “base wages” and “past collective bargaining agreements” are ambiguous, but
the context of those terms allowed their meaning to be determined. “Base wages”
means the floor level of pay for each job before upward adjustments such as for job
shift or longevity. “Past collective bargaining agreements” means the CBAs that came
before the existing CBA.
EVIDENCE
OSHA Violations & Evidence of Otherwise Excluded Topics

Kinseth v. Weil-McLain, 913 N.W.2d 55 (Iowa 2018)
In asbestos litigation, evidence of manufacturer’s OSHA violations for failing to include
warning labels after manufacturer knew of the risks of asbestos was relevant on
punitive damage claim, so trial court did not abuse its discretion in admitting it. By
summary judgment, the trial court had dismissed all claims based on exposure to
asbestos in the removal of various asbestos-containing products based on the statute
of repose. However, evidence of exposure to asbestos on removal of such products
was still admissible on the issue of causation (i.e., Plaintiff was still exposed to the
asbestos in removing products, which may have contributed to Plaintiff contracting
mesothelioma even though Plaintiff could not receive compensation for such
exposure), provided a proper limiting instruction was given.
AHLERS - 28
INSURANCE
Appraisal Clauses – Causation of Loss

Walnut Creek Townhome Assoc. v. Depositors Ins., 913 N.W.2d 80 (Iowa 2018)
In a case of first impression, appraisers chosen under an appraisal clause of a policy
are authorized to decide the factual cause of damage to insured property to determine
the amount of the loss. The court decides coverage questions, but the appraisers’
determination of the factual cause and monetary amount of the insured loss is binding
on the parties absent fraud or other grounds to overcome a presumption of validity.
While coverage determinations are for the court, the court is not free to disregard the
appraisal award as to factual disputes that may be dispositive of coverage questions.
Exclusions & Efficient Proximate Cause

City of West Liberty v. Employers Mut. Cas. Co., 922 N.W.2d 876 (Iowa 2019)
A squirrel climbed onto an outdoor electrical transformer at the city’s power plant,
resulting in arcing that caused significant damage to the transformer and other
electrical equipment. Insurer denied coverage based on an exclusion for loss caused
by arcing. City relied on the efficient proximate cause doctrine, asserting that the
squirrel was the efficient proximate cause of the loss. The Court found that the
doctrine only applies when two or more causes, at least one of which is covered and
at least one of which is excluded, contribute to a loss. Here, there were not two
independent causes as the squirrel did not independently contribute to the loss other
than through the arcing. Electrical arcing is always going to have some cause, so, if
the squirrel causing the arcing was a basis for avoiding the exclusion, the exclusion
could be avoided every time by simply pointing out that the arcing had a cause.
CGL Obligation to Indemnify Homeowners’ Carrier for Settlement

Metropolitan Property & Cas. v. Auto-Owners Mut., 924 N.W.2d 833 (Iowa 2019)
Homeowners’ insurance carrier filed subrogation claim against comprehensive general
liability (CGL) carrier for amounts paid to settle a claim for an accidental shooting
death. Substantial evidence supported trial court findings that: (1) son of owner of
insured LLC was engaged in conduct for the business of the LLC at the time of the
accidental shooting so as to make the son an insured under the CGL policy; (2) the
insured LLC was potentially liable for the accidental death under a premises liability
theory; and (3) a $900,000 settlement with disputed liability was a reasonable amount
to pay to settle a claim for the accidental death of a healthy 17-year-old. Therefore,
the CGL carrier was obligated to indemnify the homeowners’ carrier for half of the
settlement.
AHLERS - 29
JUVENILE
Constitutionality of Mandatory Sex Offender Registration

In the Interest of T.H., 913 N.W.2d 578 (Iowa 2018)
Substantial evidence supported juvenile court finding that child committed sex abuse
by force against the victim. Since the child was 14 years old and the delinquent act
was done by force, Iowa Code Section 692A.103(4) requires the child to register as a
sex offender and, pursuant to Section 692A.103(5)(e), the juvenile court is not
permitted to modify or suspend the registration requirement during the period the
dispositional order is in effect. However, the child can be relieved of registration
requirements by the juvenile court when rehabilitation under a dispositional order is
achieved prior to expiration of the dispositional order (Iowa Code Section
232.54(1)(i)). In a 6-1 portion of the opinion, mandatory sex offender registration
constitutes punishment. In a 4-3 portion of the opinion, although punishment,
mandatory sex offender registration is not cruel and unusual punishment in violation
of the federal or state constitution.
Participation in TPR Hearing by Incarcerated Parent

In the Interest of M.D., 921 N.W.2d 229 (Iowa 2018)
State sought to terminate parental rights of a mother incarcerated in another state.
Trial court properly denied mother’s request for continuance. However, limiting
mother’s telephone participation to testifying only was improper. The Court expressly
rejected a rule that limits telephone participation of an incarcerated parent in a
termination of parental rights hearing to giving testimony. Instead, the Court adopts
the standard that juvenile courts must give incarcerated parents the opportunity to
participate from the prison facility in the entire termination hearing by telephone or
other similar means of communication that enables the parent to hear the testimony
and arguments at the hearing. In the event prison officials or other circumstances do
not permit the standard to be met, the juvenile court must provide an alternative
process that allows the parent to review a transcript of the evidence offered at the
hearing. In those instances, the court must direct an expedited transcript of those
portions of the hearing that were closed to the parent be prepared and given to the
parent to review prior to testifying by telephone, along with all exhibits admitted into
evidence. If the attorney representing the incarcerated parent is unable to obtain the
cooperation of prison officials to make the parent available for the entire hearing, the
juvenile court must communicate with the prison officials to explain the importance
of participation by the parent and the benefits of avoiding the alternative procedure.
If efforts by the juvenile court are unsuccessful, then the alternative procedure of
providing transcripts and exhibits must be followed. Three justices concurring in part
and dissenting in part agreed with remand in this case because incarcerated parents
should be allowed to participate by telephone during the entire hearing as long as it
AHLERS - 30
is arranged by the parent’s attorney and allowed by prison officials. However, they
dissented with regard to the “onerous mandates for juvenile court judges and their
effects on court reporters.”
Delay in TPR Ruling – Reasonable Efforts in Interim

In the Interest of L.T., 924 N.W.2d 521 (Iowa 2019)
When the juvenile court fails to enter a ruling for 20 months following the close of the
evidentiary hearing on a petition seeking to terminate parental rights, it is error to
deny the mother’s request to reopen the record to present evidence of the mother’s
current situation. This is especially the case when the juvenile court allowed the State
to reopen the record 6 months after the close of the initial evidentiary hearing. Even
though the juvenile court verbally expressed an intention to grant termination at the
end of the hearing on the State’s request to reopen, the State remained obligated to
engage in reasonable efforts because that obligation runs until the juvenile court has
entered a final written order of termination. An oral expression of an intended ruling
is not the final action of the court. Although the reasonable efforts obligation
continued, the nature of that obligation depends on the best interest of the child and
does not necessarily mean efforts at reunification.
MISCELLANEOUS
Forfeiture Proceedings – Suppression Issues

Matter of Herrera, 912 N.W.2d 454 (Iowa 2018)
In an in rem forfeiture proceeding brought pursuant to Iowa Code Chapter 809A in
which the State seeks to forfeit a vehicle, cash, and other items found in the vehicle,
the Fifth Amendment privilege against self-incrimination excuses a defendant’s
compliance with forfeiture threshold pleading requirements, such as identifying the
source of the cash. Additionally, the trial court must first rule on motions seeking to
suppress evidence that the State is using to support its forfeiture claim before
adjudicating the forfeiture claim. Finally, vehicle owner who recovered the vehicle
when the State withdrew its objection to return of the vehicle after months of
contested litigation was entitled to an award of attorney fees as the prevailing party
even though there was not an adjudication on the merits.
Sexually Violent Predator – “Presently Confined”

In re Detention of Tripp, 915 N.W.2d 867 (Iowa 2018)
In a unanimous portion of the ruling, a person is not “presently confined” under the
provisions of Section 229A.4(1) when the person has been discharged from the
sentence underlying the sexually violent offense that resulted in incarceration even
though the person is confined for a violation of a Chapter 903B special sentence. In
AHLERS - 31
a 4-3 portion of the ruling, the person could not be committed as a sexually violent
predator based on a “recent overt act” when the only evidence of such act was an
exhibit that was admitted at trial that should not have been admitted because it was
hearsay.
Civil Rights – Medicaid Coverage for Gender-Affirming Surgery

Good v. Iowa Dept. of Human Services, 924 N.W.2d 853 (Iowa 2019)
Administrative rule that prohibits Medicaid coverage of surgical procedures related to
gender identity disorders violates the Iowa Civil Rights Act’s prohibition against
gender-identity discrimination. The DHS is a “government unit” within the ICRA’s
definition of a “public accommodation” and is bound by the terms of the ICRA, which
prohibits discrimination on the basis of sex or gender identity. Due to the finding that
the rule violates the ICRA, based on the doctrine of constitutional avoidance, the Court
declined to address the issue of whether the rule violates the equal protection clause
of the Iowa Constitution and other constitutional issues.
Reasonable Accommodation of Mental Health Disability in Medical School

Slaughter v. Des Moines University, 925 N.W.2d 793 (Iowa 2019)
Medical student was expelled based on failing grades. In a case of first impression in
a 4-3 ruling, knowledge of the university’s psychotherapist of student’s depression
cannot be imputed to the university’s academic decision-makers when student did not
authorize disclosure. Disclosure restrictions in Iowa Code Chapter 228 and HIPAA fall
within an exception to the general principle of agency law imputing an employee’s
knowledge to the employer. To avoid summary judgment, student had to make a
facial showing that a reasonable accommodation existed that could have enabled the
student to meet the medical school’s academic requirements. The student made no
such showing.
MOTOR VEHICLES / OWI
No Habitual Offender Enhancement for OWI Third Offense

Noll v. Iowa Dist. Ct. for Muscatine County, 919 N.W.2d 232 (Iowa 2019)
Iowa Code Section 321J.2(5) prescribes the maximum and minimum sentence for
Operating While Intoxicated (“OWI”), third and subsequent offenses. Thus, the
habitual offender provisions in Section 902.8 and 902.9 do not apply to OWI, third
and subsequent offenses.
AHLERS - 32
DOT Officer Authority to Initiate Traffic Stop
State v. Werner, 919 N.W.2d 375 (Iowa 2018)
Under the state of the law in August 2016, Iowa Department of Transportation Motor
Vehicle Enforcement Officer did not have the authority to stop a motorist for speeding
and subsequently arrest the motorist for Driving While Revoked. Such officers do not
have general traffic enforcement authority. Also, the officer’s arrest was not a valid
citizen’s arrest because the officer made the stop as part of the officer’s official duties,
rather than as a private citizen, and there is no indication that the officer went with
the motorist before a magistrate, as required by Section 804.24. Finally, the officer
was not engaged in a community caretaking function.
DOT Officer Authority to Initiate Traffic Stop – II

Rilea v. Iowa Dept. of Transportation, 919 N.W.2d 380 (Iowa 2018)
Under the statute in effect at the time, DOT motor vehicle enforcement officers lacked
authority to stop vehicles and issue speeding tickets or other traffic citations that did
not relate to operating authority, registration, size, weight, and load. Such officers
did not have such authority under citizen’s arrest statute because they were not
private persons and, even if they were, the citizen’s arrest statute does not authorize
citations in lieu of arrest.
Timing of Granting Request for Phone Calls

State v. Davis, 922 N.W.2d 326 (Iowa 2019)
Driver’s rights to make phone calls pursuant to Iowa Code 804.20 were not violated
when officer denied the driver’s request to call the driver’s wife until after field sobriety
testing occurred at the sally port. Due to a snowstorm, the sally port was a location
for field sobriety testing, not a “place of detention” within the meaning of Section
804.20.
Constitutionality of Speed Cameras

Behm v. City of Cedar Rapids, 922 N.W.2d 524 (Iowa 2019)
Challenges to ordinance permitting speed cameras based on claims that ordinance
violated substantive due process, equal protection, and privileges and immunities
clauses of the Iowa Constitution were reviewed under rational basis standard and not
strict scrutiny. Applying rational basis standard, ordinance did not violate substantive
due process, equal protection, or privileges and immunities clauses. Ordinance was
not conflict preempted by statute governing proceedings on municipal infractions by
virtue of the fact that the ordinance provided a voluntary administrative review
process before municipal infraction proceedings are initiated. Ordinance’s procedures
also did not violate procedural due process. Involvement of third party contractor in
AHLERS - 33
the process of initiating infraction process was not an unlawful delegation of city
authority.
Constitutionality of Speed Cameras – II

City of Cedar Rapids v. Leaf, 923 N.W.2d 184 (Iowa 2018)
Utilization of speed cameras in Cedar Rapids does not violate equal protection,
privileges and immunities, or substantive due process clauses of state or federal
constitutions. Motorist failed to preserve error on claim that the city’s action is
preempted by provisions of the Iowa Administrative Code, but, even if preserved,
Iowa Department of Transportation did not have authority to promulgate automated
traffic enforcement rules, as held in Behm. Since this case went to trial in small claims
court, procedural due process requirements were met. Motorist failed to meet the
motorist’s burden to support motorist’s claim of unlawful delegation of authority to a
private company.
Constitutionality of Speed Cameras – III

Weizberg v. City of Des Moines, 923 N.W.2d 200 (Iowa 2018)
Utilization of speed cameras in Des Moines did not violate procedural due process
under Iowa constitution based on claims that: (1) the city utilized additional
procedures beyond those provided for in the ordinance; or (2) the third party vendor
did not tell vehicle owners who called their hotline that the vehicle owners could avoid
liability if there had been a sale, lease, or rental of the vehicle (a 6-0 part of the
ruling). Irrebuttable presumption of vicarious liability of the vehicle owner did not
violate substantive due process (a 6-0 part of the ruling). Substantive due process,
equal protection, and privileges and immunities clause claims based on the exclusion
of government-owned vehicles and semi-trucks from enforcement were not properly
dismissed via motion to dismiss (as opposed to summary judgment in Behm)(a 4-2
part of the ruling). Motorists failed to preserve error on claims based on unlawful
delegation to a private entity with respect to calibration of equipment (a 6-0 part of
the ruling, with a special concurrence by two). If, on remand, motorists can sustain
their claims based on violations of equal protection, procedural and substantive due
process, and privileges and immunities clauses, the motorists have a viable claim for
damages (a 4-2 part of the ruling). Since the ordinance does not provide for
enforcement of a violation through any means other than a municipal infraction, the
ordinance is not preempted by Iowa Code Sections 602.6102 and 364.22(4) and (6)
(a 6-0 part of the ruling, with a special concurrence by two). Since the DOT lacked
authority to promulgate rules regulating speed cameras, motorists’ preemption
arguments based on DOT actions were without merit (a 6-0 part of the ruling).
AHLERS - 34
Proof of Detectable Amount of Controlled Substances
State v. Myers, 924 N.W.2d 823 (Iowa 2019)
Results of the initial testing of a urine specimen alone is insufficient to satisfy the
burden of proof required to establish a violation of Iowa Code Section 321J.2(1)(c)
(the presumptive “any amount of a controlled substance” violation). Without other
evidence, an initial test that only identifies the “possible presence” of a controlled
substance falls short of satisfying the beyond a reasonable doubt standard.
Additionally, witness testimony of impairment does not serve to validate the presence
of a controlled substance, at least not without expert testimony that could eliminate
other causes for the conduct and demeanor. The case was remanded for dismissal,
although three concurring justices would have allowed remand for a finding on the
“under the influence” theory that was not addressed by the trial court.
Invoking Right to Independent Chemical Test

Because the statute authorizing an independent chemical test only provides for the
right to independent testing in addition to testing administered by the officer, only
statements made by a suspect regarding additional testing are sufficient to invoke the
statutory right. Here, the defendant’s statements related only to testing in lieu of the
testing administered at the direction of the officer, so the statements were insufficient
to invoke the right to independent testing under Section 321J.11.
MUNICIPAL CORPORATIONS
Removal of County Attorney

State v. Watkins, 914 N.W.2d 827 (Iowa 2018)
In an action to remove an elected county attorney from office for willful misconduct
or maladministration in office pursuant to Iowa Code Section 66.1A, the party seeking
removal has the burden to show, by clear and convincing evidence, that the alleged
wrongdoer’s acts took place within the official’s capacity as a public official and not
when the official was acting as a private citizen. The party seeking removal also has
the burden to prove by clear, convincing, and satisfactory evidence that the official
committed the charged acts intentionally, deliberately, with a subjectively bad or evil
purpose, contrary to known duty. In assessing whether the official should be removed
from office for sexual harassment in the workplace, the applicable legal standards are
those set forth in Chapter 66, not the standards found in the rules of professional
conduct for attorneys or in civil employment law. In a 4-3 decision, although the
official’s actions were disgraceful, disrespectful, inappropriate, and could not be
condoned, they were not proved to have been done with a bad or evil purpose
contrary to a known duty or to have been committed within the scope of the official’s
AHLERS - 35
responsibilities as the county attorney. The official was entitled to attorney fees on
remand.
Change in Intensity of Nonconforming Use

Ames 2304 v. Ames, Zoning Bd. of Adjustment, 924 N.W.2d 863 (Iowa 2019)
Plaintiff owned a house converted to apartments that was grandfathered in as a legal
nonconforming use. Owner’s proposed interior remodeling that would increase the
number of bedrooms but not the number of apartment dwelling units did not
constitute a prohibited increase in the intensity of the nonconforming use.
Procedure for Sale of Abandoned Right-of-Way – Notice Requirements

Den Hartog v. City of Waterloo, 926 N.W.2d 764 (Iowa 2019)
City sought to transfer land from an unused right-of-way to a developer of a
residential subdivision. Adjacent landowners objected, challenging the City’s method
of providing notice of the proposed sale. In this appeal, the third appeal in this
dispute, the City was found to have complied with Iowa Code Section 306.23. Section
306.23 does not mandate a particular appraisal method; it only requires that the
notice include the fair market value of the land based upon “an appraisal by an
independent appraiser.” Since the City hired an independent appraiser who arrived
at the fair market value using appropriate standards, the City complied with Section
306.23. City’s requirement that bidders deposit the full amount of the bid was not
improper. The challenging landowners presented no evidence showing bids were
deterred by the full deposit requirement and cited no authority prohibiting a full value
bid deposit requirement. City’s express reservation of a right to reject bids did not
violate Section 306.23. The challenging landowners identified no bidders deterred by
the City’s asserted but unexercised right to reject bids and cited no authority
precluding a right to reject bids.
Wind Energy Ordinance Challenges

Mathis v. Palo Alto County Bd. of Supervisors, 927 N.W.2d 191 (Iowa 2019)
In landowners’ suit challenging a county wind energy ordinance and approval of a
specific wind energy project, the fact that the wind energy company provided input
into the ordinance drafting did not make the ordinance unlawful. The approval of the
specific project was not unlawful under the ordinance just because the planned
eventual owner of the wind energy system did not submit the application. Since the
owner at the time of the application submitted the application and disclosed the
planned future transfer to MidAmerican, the application complied with the ordinance.
Board did not act arbitrarily or capriciously in disregarding the recommendations of
the DNR and the state archaeologist, as board members reviewed the
recommendations and considered them, but chose not to follow them. Likewise,
approving the project in spite of a report by an acoustical expert claiming the project
AHLERS - 36
would violate the ordinance’s 50-decibel limit was not arbitrary and capricious. Finally,
with regard to costs related to decommissioning and removing the wind turbines at
the end of the useful life of the project, board’s reliance on the only cost estimate
that came from a licensed professional engineer, rather than a non-licensed individual
that submitted a report in opposition to the project, was not arbitrary and capricious.
Ultimately, the issues raised by the landowners were issues for the board, not the
courts, to resolve.
Local Airport Commission Authority to Regulate Building Height

Carroll Airport Commission v. Danner, 927 N.W.2d 635 (Iowa 2019)
After FAA issued a no-hazard determination to farmers who constructed a grain leg
near a local airport, the local airport commission sought an injunction to remove or
lower the grain leg. In response to the farmers’ preemption defense, the Court
concluded that federal law and the FAA no-hazard determination allow for local
regulation of tall structures in flight paths. The federal statute did not expressly
preempt state statutes and local ordinances. Likewise, the federal statute did not
impliedly preempt state statutes and local ordinances under either the conflict or field
preemption subcategories of implied preemption. State and local regulators can
impose stricter height restrictions on structures in flight paths notwithstanding an FAA
no-hazard determination. This conclusion was supported by language in the no-
hazard determination itself, which expressly warned the farmers that the farmers
must still comply with state and local laws. The trial court was praised for being
reasonable in giving the farmers a 9-month period within which to abate the nuisance.
PROBATE / GUARDIANSHIP / CONSERVATORSHIP
Transfer of Assets to Pooled Special Needs Trust

Cox v. Iowa Dept. of Human Services, 920 N.W.2d 545 (Iowa 2018)
Medicaid applicants sought judicial review of DHS decision requiring delay in eligibility
for institutional long-term care benefits after applicants transferred assets to a pooled
special needs trust. In a 6-1 decision interpreting the Medicaid statute, applicants
may establish a pooled special needs trust, but there may be a delay in Medicaid long-
term care benefits if transfers to the trust after the individual reached the age of 65
were for less than fair market value. Here, the applicants were subject to a delay in
eligibility because they were 65 when the transfers of funds to the trust occurred, the
funding of the trust constituted a “transfer,” and the transfer was for less than fair
market value because even if the trustee was obligated to pay out trust funds over a
period of time, the funds placed in the trust were still worth less than unrestricted
cash.
AHLERS - 37
Trusts – Statute of Limitations Following Trustee’s Report to a Beneficiary
Konrardy v. Vincent Angerer Trust, 925 N.W.2d 620 (Iowa 2019)
Trust beneficiaries brought suit challenging the valuation date used by the trustee in
valuing the beneficiaries’ shares. A trustee has the duty to administer the trust in
accordance with the terms of the trust. A violation of that duty is a breach of trust,
so a claimed violation of that duty is governed by the one-year limitation period set
forth in Iowa Code Section 633A.4504(1). A letter from the trustee responding to a
letter of complaint from the beneficiaries’ lawyer that included a schedule of assets,
a statement that all assets were professionally valued, and a copy of the trust
accounting for the years in question constituted a “report” under Section 633A.4504
and adequately disclosed the existence of a claim. Therefore, the receipt of that
letter/report by the beneficiaries started the running of the one-year limitation period.
Since the beneficiaries failed to file suit within one year of their receipt of that letter,
their claims were time barred.
REAL PROPERTY
“Assigns” of Property Interests & Avoiding Zoning Changes

TSB Holdings v. Board of Adjustment, 913 N.W.2d 1 (Iowa 2018)
Following litigation in 1987, the Supreme Court issued an order providing for the rights
of a real estate developer and its successors and assigns with respect to development
of specified lots in Iowa City (which order was incorporated into a District Court order
on remand). Subsequent owner sought to develop the land consistent with the terms
of the remand order in spite of a new city zoning ordinance that would have otherwise
prohibited the development. The subsequent owner was determined to be an “assign”
of the owner at the time of the 1987 ruling, even though the subsequent owner did
not take directly from the 1987 owner and did not receive all subject parcels at the
same time. Therefore, the subsequent owner was afforded the rights under the
remand order and the city was prohibited from enforcing its new zoning ordinances
to stop development that was permitted by the remand order.
Nuisance Suits Against CAFOs

Honomichl v. Valley View Swine, LLC, 914 N.W.2d 223 (Iowa 2018)
Iowa Code Section 657.11(2) purports to give farmers immunity from nuisance claims
when operating a confined animal feeding operation (“CAFO”). Neighbors filed
negligence and nuisance claims and obtained summary judgment striking the
immunity defense as unconstitutional. A facial challenge is one in which no application
of the statute could be constitutional under any set of facts. An as-applied challenge
alleges the statute is unconstitutional as applied to a particular set of facts. In a 5-2
portion of the decision, the Court reaffirms the three-prong test of Gacke in addressing
AHLERS - 38
as-applied challenges. Whether Section 657.11(2) is unconstitutional as applied to
the plaintiffs is inherently fact-specific. In this case, the trial court erred by granting
the “as-applied” challenge without making specific findings of fact that the three-
prong test was met. Therefore, summary judgment was inappropriate.
No Mechanic’s Lien on Lessor’s Interest for Work Done for Lessee

Winger Contracting Co. v. Cargill, Inc., 926 N.W.2d 526 (Iowa 2019)
Unpaid contractors that did work for lessee sought to enforce mechanic’s liens against
lessor and to have their mechanic’s liens on the lessee’s interest deemed to have
priority over a construction mortgage ultimately held by the lessor. The Court held
that the 2007 and 2012 amendments to the mechanic’s liens statute narrowed the
definition of “owner” and eliminated contracts with agents as a basis for a mechanic’s
lien against property of an owner. This interpretation of the amendments means that
the Romp and Stroh cases are no longer good law. As a result of this interpretation,
the contractors did not have mechanic’s liens on the lessor’s property. Contractors
unquestionably had mechanic’s liens on the lessee’s property (i.e., the building and
leasehold interest). These mechanic’s liens were subordinate to a construction
mortgage when the bank held the mortgage and that subordinate position did not
change when the mortgage ended up being owned by the lessor after the lessor was
forced to pay off the financing bank pursuant to contract after the project collapsed.
In this situation, the lessor’s ownership interest and its interest in the construction
mortgage on the lessee’s interest did not merge such as to lose the priority of the
mortgage. There was no fraud or unjust enrichment by allowing the lessor to keep
its priority, as the assignment of the mortgage to the lessor did not deprive the
contractors of anything.
Eminent Domain for Oil Pipeline

Puntenney v. Iowa Utilities Board, 928 N.W.2d 829 (Iowa 2019)
Iowa Utilities Board’s weighing of benefits and costs of Dakota Access pipeline
supported the board’s determination that the pipeline serves the public convenience
and necessity. The pipeline company is both a company “under the jurisdiction” of
the Iowa Utilities Board and a “common carrier,” and therefore is not barred by Iowa
Code Sections 6A.21 and 6A.22 from exercising eminent domain powers. The use of
eminent domain for a traditional public use such as an oil pipeline does not violate
the Iowa or federal constitutions simply because the pipeline passes through the state
without taking on or letting off oil. Substantial evidence supported the board’s
resolution of complaints by two individual landowners to the pipeline passing through
their land.
AHLERS - 39
SEARCH AND SEIZURE
Community Caretaking Exception

State v. Coffman, 914 N.W.2d 240 (Iowa 2018)
In a 4-2 decision, an officer was justified in pulling behind a vehicle and activating
emergency lights when the vehicle was stopped by the side of a highway at 1:00 a.m.
with the brake lights engaged. The officer’s actions were justified under the
community caretaking exception to the warrant requirement under both constitutions.
However, under the Iowa Constitution, the State must prove both that the objective
facts satisfy the standards for community caretaking and that the officer subjectively
intended to engage in community caretaking. The burden was met in this case.
Inventory Searches – Limits Under Iowa Constitution

State v. Ingram, 914 N.W.2d 794 (Iowa 2018)
In a 4-3 decision, under the Iowa Constitution, new standards are set for inventory
searches. First, vehicles cannot be impounded unless other options are not available.
Second, if a vehicle is impounded, the driver should be asked whether the driver
wants to retain any property in the vehicle and be given the opportunity to retrieve
it. If the driver declines to retrieve any property, the driver may be asked whether
there is anything of value in the vehicle and a record made of the response. Third,
absent specific consent to search them, officers must inventory closed containers left
behind as a unit, rather than opening the containers and taking an inventory of the
contents.
Community Caretaking Exception – II

For community caretaking exception to apply, the law enforcement conduct must be
a bona fide community caretaker activity. This requires the State to prove both that
the objective facts satisfy the standards for community caretaking and that the officer
subjectively intended to engage in community caretaking. In this case, the officer
stopped a vehicle that drove by the location where another vehicle had landed in a
ditch with no occupants in it because the officer was looking for the driver of the
vehicle in the ditch and the registered owner of the stopped vehicle had the same last
name and address as the owner of the vehicle in the ditch. The Court found that this
was not a bona fide community caretaker activity such as to be an exception to the
warrant requirement under the Iowa Constitution because there was no indication
that someone was injured or the occupants of the vehicle driving by wanted help.
AHLERS - 40
Stop of Vehicle & Subsequent Search Warrant for Residence
State v. Baker, 925 N.W.2d 602 (Iowa 2019)
In a good review of case law on investigatory stops, the Court reiterates that
reasonable suspicion of a crime allows an officer to stop and briefly detain a person
to conduct further investigation, while probable cause of a crime supports an arrest.
Here, reasonable suspicion to conduct a traffic stop existed after the officer witnessed
activity that appeared to be a hand-to-hand drug transaction out of a vehicle when
officers also had knowledge of the following: (1) the defendant had engaged in
suspicious behavior two weeks before the apparent drug transaction was witnessed;
(2) an anonymous caller had reported that the defendant had just returned to town
with a large shipment of marijuana and a large quantity of marijuana was at the
defendant’s residence; and (3) surveillance conducted after receiving the anonymous
tip resulted in the observation of the suspected hand-to-hand drug transaction. With
regard to a search warrant obtained for the defendant’s residence after the traffic
stop, the defendant had the burden of proving that officers made materially false
statements in the affidavit either deliberately or with a reckless disregard for the truth.
Failure to disclose information in a warrant application can constitute a
misrepresentation if the failure to disclose results in a misconception or, in other
words, if the omission produces the same practical effect as an affirmative statement.
Here, the following omissions did not constitute misrepresentations: (1) reporting that
the defendant had been arrested in the state of Nevada for traveling with a large
quantity of marijuana in the vehicle without disclosing that the defendant had not
been convicted; (2) reporting that the defendant acted suspiciously after observing
an officer conducting surveillance on the defendant’s house without disclosing that
the officer was undercover in plain clothes in an unmarked car; and (3) failing to
include information to demonstrate reliability of the anonymous informant, as the
officers conducted independent investigation that corroborated details of the tip.
TAXATION
Sales Tax on Labor Installing Building Components

Lowe’s Home Centers v. Iowa Dept. of Revenue, 921 N.W.2d 38 (Iowa 2018)
Department’s application of law to fact is entitled to deference and should be upheld
unless it is “irrational, illogical, or wholly unjustifiable.” This dispute involves whether
sales tax must be imposed on labor for installing building components sold by Lowe’s
and performed by subcontractors. Installation services by electrical and plumbing
subcontractors, which involved no structural changes to the home of customers, did
not fall within the statutory exemption for “new construction, reconstruction,
alteration, expansion, remodeling, or the services of a general building contractor,”
so tax was owed on those services. However, regulations limited the definition of
AHLERS - 41
“carpentry services” subject to sales tax to those performed for repairs. Since
installation services did not constitute “repairs,” sales tax was not owed for carpentry
performed for installation.
TORTS
Claims Related to Clergy Sexual Abuse

Bandstra v. Covenant Reformed Church, 913 N.W.2d 19 (Iowa 2018)
Parishioners sued elders and their church based on claims that the pastor of the
church sexually exploiting them under the guise of counseling. Claims based on
negligent response to the sexual abuse allegations were barred by the religious
freedom clauses of both constitutions. Summary judgment in favor of the church on
negligent investigation was proper since the church accepted the pastor’s resignation
within hours of the elders being informed of the pastor’s conduct. Negligent
supervision claims were not barred by the religion clauses, but were partially barred
by the statute of limitations because, even giving the parishioners the benefit of the
doubt about when they discovered their claims, the parishioners learned of the
pastor’s scheme more than two years before filing suit. One parishioner’s claim was
only partially time-barred and could proceed on claims for negligent supervision
derived from exploitation that occurred within the two-year limitation period. Based
on this ruling, the “continuing violations” doctrine did not apply, so the Court refused
to resolve the question of whether the doctrine is recognized in Iowa. Alleged
defamatory statements by church elders were either qualifiedly privileged or
constitutionally-protected opinions. Parishioners could not use offensive issue
preclusion based on pastor’s conviction for Sexual Exploitation by a Counselor because
the victim’s lack of consent is not an element of the offense. Clergy privilege applied
to church elders, even though they were not theologically-trained, with respect to
otherwise qualifying communications. However, the elders’ communications related
to governance or administration were not spiritually-based and were, therefore,
outside the scope of the privilege.
Public Duty Doctrine

Johnson v. Humboldt County, 913 N.W.2d 256 (Iowa 2018)
In a 4-3 decision reviewing summary judgment in favor of the county for claims made
by a passenger of a vehicle who was injured when the driver fell asleep, went into
the ditch, and struck a concrete embankment that had been constructed by the
landowner, the Court holds that the public-duty doctrine survived Iowa’ adoption of
the Restatement (Third) of Torts. In simplified terms, that doctrine states that if a
duty is owed to the public generally, there is no liability to an individual member of
the public. That doctrine applies to claims brought under the Iowa Municipal Tort
AHLERS - 42
Claims Act (Iowa Code Chapter 670). There is no exception to the doctrine in cases
of “grave danger.” The doctrine is not limited to common law duty of reasonable care
claims; it also applies to claims for negligence and premises liability.
Medical Malpractice – Disclosure of Experience & Related Issues

Andersen v. Khanna, 913 N.W.2d 526 (Iowa 2018)
In medical malpractice suit, in a 4-3 decision, a physician’s experience or training with
regard to the proposed treatment can be material to the decision whether to undergo
proposed treatment such that failure to disclose the extent of experience or training
may be evidence supporting a claim based on lack of informed consent. Trial judge
misapplied the law of the case when the trial judge precluded introduction of evidence
on an informed consent claim based on failure to warn of the risks of surgery due to
the condition of the patient’s heart based on an erroneous reading of a pretrial ruling
on summary judgment by a different judge (which only dismissed informed consent
claims based on lack of disclosure of experience). Jury verdict was reached without
any instructions regarding informed consent. Therefore, jury verdict finding physician
was not negligent did not preclude retrial on implied consent claims that should have
been submitted to the jury.
Preemption of Claims Against Railroad

Griffioen v. Cedar Rapids & Iowa City Railway Co., 914 N.W.2d 273 (Iowa 2018)
Landowners in Cedar Rapids sued the railroad on state tort claim theories, alleging
that the railroad’s misguided efforts to protect the railroad’s bridges over the Cedar
River from washing out during flooding worsened the effects of the flooding for other
landowners (i.e., the plaintiffs). In a 4-3 decision, the Federal Interstate Commerce
Commission Termination Act (“ICCTA”) was held to preempt the landowners’ action.
If a state-law tort claim requires second-guessing of a railroad’s operation and
management of its own rail lines as opposed to other activities, and the claim does
not pertain to rail safety, it is preempted by the ICCTA. There is also no “one-time
event” exception to preemption under the ICCTA. Finally, the savings clause in the
Federal Railroad Safety Act did not prevent the landowners’ claims from being
preempted by the ICCTA.
Qualified Immunity for False Arrest

Baldwin v. City of Estherville, 915 N.W.2d 259 (Iowa 2018)
Answering a certified question from the federal court, in a 5-2 decision, a defendant
who pleads and proves as an affirmative defense that he or she exercised all due care
to conform with the requirements of the law is entitled to qualified immunity on an
individual’s claims for damages for violation of Article I, Sections 1 and 8 of the Iowa
Constitution.
AHLERS - 43
Civil Conspiracy – Joint & Several Liability for Underlying Tort Only
Anderson v. Anderson Tooling, Inc., 928 N.W.2d 821 (Iowa 2019)
Civil conspiracy is not in itself actionable. Rather, it is the acts causing injury
undertaken in furtherance of the conspiracy that give rise to the action. Because civil
conspiracy cannot support an independent cause of action, it cannot have its own
measure of damages. Instead, damages are assessed based on the harm caused by
the underlying tortious activity. A person becomes jointly and severally liable for the
harm caused by the other’s tortious conduct when the person commits, encourages,
or assists such conduct.
WORKER’S COMPENSATION
Authorization Defense After Change in Position to Accept Liability

Brewer-Strong v. HNI Corp., 913 N.W.2d 235 (Iowa 2018)
In a case of first impression, an employer who initially denies liability for an employee’s
work-related injury can later amend its Answer to admit liability and regain control of
the employee’s medical care. Commissioner’s order issued while employer was
denying coverage stating employer could not use the authorization defense did not
trigger the “law-of-the-case” doctrine, as employer’s amended Answer admitting
liability changed the facts such as to make the commissioner’s order inapplicable. In
a 6-1 portion of the ruling, the Court refused to change the Bell Bros. test. Thus, an
employee seeking to recover for unauthorized medical treatment must still show that
the unauthorized treatment was reasonable, beneficial, and resulted in a more
favorable outcome than would have been accomplished with the employer’s
authorized care. That test also applies to recovering healing period benefits while
recovering from the unauthorized care.
Idiopathic Falls – Fact Question

Bluml v. Dee Jay’s Inc., 920 N.W.2d 82 (Iowa 2018)
In a 5-1 decision, there is no blanket rule rendering certain categories of workplace
idiopathic falls noncompensable, so long as the employee proves that a condition of
the employee’s employment increased the risk of injury. Whether the work conditions
posed an increased risk of injury is a factual issue, not a legal issue.
No Liability of Insurance Inspector

Clark v. Ins. Co. of the State of Pennsylvania, 927 N.W.2d 180 (Iowa 2019)
Employees and former employees of manufacturing plant brought a common law tort
claim against the employer’s workers’ compensation carrier alleging that the carrier
failed to conduct or negligently conducted an insurance inspection at the
AHLERS - 44
manufacturing facility, which resulted in serious health problems for the plaintiffs.
Summary judgment was granted to the carrier based on the conclusion that Iowa
Code Section 517.5 provides immunity to the carrier related to inspections. Summary
judgment was affirmed on appeal with a finding that Section 517.5 does not violate
the equal protection, inalienable rights, or due process clauses of the Iowa
Constitution. Immunity for inspections performed by workers compensation carriers
is part of the “grand bargain” of the workers’ compensation system, so the rational
basis test was applied to the equal protection issue. Likewise, there is no inalienable
rights clause violation because the “grand bargain” contemplates the close
relationship between the carrier and the employer, and immunity for inspections is
part of that grand bargain.
No Bad Faith Action Allowed Against Third-Party Claims Administrator

De Dios v. Indemnity Ins. Co. of North America, 927 N.W.2d 611 (Iowa 2019)
In a 5-2 decision, answering a certified question from federal court, the Court holds
that, under Iowa law, a common law cause of action for bad-faith failure to pay
workers’ compensation benefits is not available against a third-party claims
administrator of a workers’ compensation insurance carrier.
AHLERS - 45
OFFICE OF THE GOVERNOR
JUDICIAL APPLICATION
Roger Lewis Sailer

election district.)
Crawford County Attorney; Crawford County Attorney’s Office
Schleswig, Crawford County
College(s) and Law School(s) Dates Attended Degree(s)

Creighton School of Law, Omaha, Nebraska 9/2004 to 5/2007 J.D.
University of Colorado, Boulder, Colorado 1/1992 to 5/1994 B.S. (Journalism)
University of Nebraska, Lincoln, Nebraska 9/1983 to 9/1987 B.A. (English)
University of Nebraska at Omaha, Omaha, Nebraska 9/1982 to 5/1983 None. Transferred
to Lincoln campus.
1
a. Your position, dates (beginning and end) of your employment, addresses of
law firms or offices, companies, or governmental agencies with which you
have been connected, and the name of your supervisor or a knowledgeable
colleague if possible.
b. Your periods of military service, if any, including active duty, reserves or
other status. Give the date, branch of service, your rank or rating, and
present status or discharge status.
Response to Part “a” (work experience):
Position Dates Address Supervisor or Colleague

Crawford 7/2013 – Present Crawford County Attorney’s Office Crawford County Board
County Crawford County Courthouse of Supervisors
Attorney Current Chair: Kyle
1202 Broadway, Suite 12
Schultz
Denison, IA 51442
Assistant 5/2008 - 7/2013 Crawford County Attorney’s Office Michael Mundt
Crawford 1231 Broadway, Suite 103 Julie Schumacher
County
Denison, IA 51442
Attorney
General 9/2007 – 7/2013 Mundt, Franck & Schumacher Law Michael Mundt
practice Firm Derrick Franck
attorney 1231 Broadway, Suite 300 Julie Schumacher
(Associate) Denison, IA 51442
Begin: 6/1999 – 8/2004 Pappas Telecasting, Inc. Katina Gordon
Broadcast 4625 Farnam
Technician
Omaha, NE 68132
End:
Chief
Photographer
Response to Part “b” (military service):
Dates of Service Branch of Rank Discharge Status

Service
5/1994 – 9/1998 U.S. Army Sergeant (E-5) Honorable Discharge
Active Duty
2
of membership.
State Admitted Month/Yr Admitted Status

State of Iowa September, 2007 Active, no lapses
State of Texas August, 2016 Inactive – I gained admission when my wife and I were
considering moving to Texas in 2016, but we ultimately
decided not to move. I have never practiced in Texas nor
have I submitted CLE hours or other requirements to keep
my admission active, so I presume it is inactive.
area of practice.
or other tribunals.
Part “a” : Divided into periods, a description of typical clients, areas of law, and approximate
percentage of time spent in each area:
1. 2013 – Present: Crawford County Attorney

a. As the elected Crawford County Attorney, I am the chief law enforcement
officer in the county and my primary responsibility is to represent the State
of Iowa in all criminal prosecutions within my county. This function forms
the bulk of my practice, and it extends well beyond courtroom trials. For
example, I provide legal counsel and assistance to law enforcement agencies
during the course of their investigations, including assistance in obtaining
3
search warrants, arrest warrants, and subpoenas. Once an arrest is made, I
have the sole responsibility for making charging decisions and the authority
to either convene a grand jury or to file criminal charges myself through a
Trial Information. Once charges have been filed, I have the sole authority to
conduct plea negotiations, and if the matter proceeds to trial, I have the sole
responsibility of prosecuting the case before a judge or jury.
In addition to these functions related to criminal prosecution, I also have
a great many other duties which are enumerated in Iowa Code Section
331.756, and which encompass a wide variety of practice areas. These duties
include, among others: representing various state agencies in court actions
occurring within my county; representing the county itself and advising its
various elected officials in the execution of their duties; protecting children in
need of assistance through juvenile court action; executing the extradition of
fugitive defendants; appearing for the State of Iowa in involuntary
commitment proceedings and other mental health matters; and prosecuting
asset forfeitures to prevent offenders from profiting from their crimes. As to
this last function, prosecuting asset forfeitures, I single-handedly instituted
an asset forfeiture program in Crawford County in 2008, when I was an
assistant county attorney. This program has, over the years, converted well
over $100,000.00 of forfeited assets to law enforcement use rather than
being used in criminal enterprises.
During this period, spanning the past six years, I would estimate the
percentage of time I have spent in each area as follows: Criminal prosecution
and related matters: 90%. Civil and governmental practice: 10%.
In my function as a criminal prosecutor, I have no clients per se, but in my
other functions for the county, my clients are the county itself and its various
elected officials. I also represent our county landfill and our regional mental
health organization.
I believe it also merits mention that in addition to my duties as an
attorney, I am also the executive officer responsible for the administration of
the Crawford County Attorney’s Office, which includes budgeting of tax
dollars, hiring and oversight of staff, implementation and oversight of office
practices, procurement of equipment, maintenance contracts, and other
administrative functions related to the operation of my office.
2. 2008 - 2013: Assistant Crawford County Attorney/General Practice Attorney

a. During this period, the Crawford County Attorney’s Office was a part-time
County Attorney’s Office, as is the case in many smaller counties in Iowa.
This meant that my time was divided between county attorney functions and
private practice.
As Assistant County Attorney, my duties were much the same as they are
now: primarily criminal prosecution with additional civil duties for the
county, although the percentage of time I spent on civil matters was higher
because I was the primary attorney in our office who handled civil matters for
4
the county. In that capacity, I advised county officials on a wide range of
issues, including, just to name a few, tax increment financing, disposition of
public lands, tax-sale compromise and redemption procedures, personnel
matters, and litigation against the county.
In my private practice during this period, I was a general-practice litigator.
The bulk of my practice was in family law (child custody and dissolution of
marriage). I also had experience in civil litigation (particularly contract
disputes), and municipal law. In municipal practice, I appeared before boards
of adjustment (including mounting a successful board of adjustment appeal in
district court for a private client), I drafted ordinances, prosecuted civil
municipal infractions, and handled a number of cases involving condemnation
of property.
In private practice, my typical clients were family law clients, plaintiffs
with civil claims for monetary damages, and cities (see municipal practice
above).
I would estimate the time I spent in each area as approximately 60%
Assistant County Attorney work and approximately 40% private practice.
3. 2007 - 2008: General Practice Attorney

My civil practice during this period is described in the answer above
regarding my private practice.
Part “b” : approximate percentage of practice in areas other than appearance before courts or
tribunals and a description of the nature of that practice:
The vast majority of my practice, both private and governmental, has been in
cases that are before the court in active litigation. I have done virtually no
“transactional” work. I would estimate the percentage of non-litigation work I have
done to be approximately 3%. The majority of that work has been civil work for the
county and municipalities.
Part “c” : approximate percentage that involved litigation in court or other tribunals:
Approximately 97% (see answer above).
Part “d” : approximate percentage of litigation that was Administrative, Civil, and Criminal:
Administrative: 1%
Civil: 19%
Criminal: 80%
Part “e” : approximate number of cases or contested matters tried (rather than settled) in the
last 10 years, including whether sole counsel, chief counsel, or associate counsel, and whether
tried to a jury or directly to a judge or tribunal:
5
Total # of # as sole # as chief # as
Type of trial trials counsel counsel associate
counsel
Tried before a jury 6 2 0 4
Tried before a judge roughly 200 ~ 200 0 0
Column Total ~ 206 ~ 202 0 4
Part “f” : approximate number of appeals, indicating whether sole counsel, chief counsel, or
associate counsel:
I have done no appellate work. Criminal appeals are handled by the Iowa
Attorney General’s Office Division of Criminal Appeals, and I never had occasion to
practice appellate work in private practice (with the sole exception of an appeal I
mounted via certiorari to district court, appealing the decision of a local board of
adjustment – see my writing sample #3 submitted with this application).
a: I have handled approximately 3 pro bono cases in the last ten years, all of
which were prior to July, 2013, when I became full-time county attorney
(A full-time county attorney is barred from private practice under Iowa
Code Section 331.752).
b: Average hours per year is currently 0 (statutorily barred from private
practice).
c: All pro bono cases I handled were family law cases (dissolution of
marriage and child custody), and all were handled through the Volunteer
Lawyer Project.
Not applicable.
6
opinion.
Not applicable.
Not applicable.
Not applicable.
i. 120 days.
Not applicable.
ii. 180 days.
Not applicable.
iii. 240 days.
Not applicable.
iv. One year.
Not applicable.
7

A. State v. Ramon Hernandez, Crawford County FECR067624. Iowa District Court.
B. Ramon Hernandez was charged with 9 criminal offenses, including Homicide By Vehicle (a Class
B Felony), 3 counts of Distributing a Controlled Substance to a Minor (all Class B Felonies), 1
count of Delivery of a Controlled Substance (a Class D Felony), and 4 counts of Supplying
Alcohol to a Person Underage (all Serious Misdemeanors).
These charges stemmed from an incident in which Mr. Hernandez, an adult, supplied alcohol
and marijuana to a group of young people, partook of those substances himself, and then, while
intoxicated, drove his car into a river, leading to the drowning death of a 15-year-old girl.
C. This case was significant in several respects:
a. First, it was a significant event in our community. Not only was a young life brought
to a tragic end, but the search for her body lasted for eight days following the
incident and was a highly publicized event that involved multiple law enforcement
agencies and many volunteers. Following the recovery of her body, there were
multiple community events held. The citizens of our county cared about this case.
b. Second, the charging decisions I faced in this case were significant from a legal
perspective. After much deliberation and legal research, and against the advice of
some, I made the decision to charge Mr. Hernandez with Homicide by Vehicle. The
facts in this case presented a significant challenge in prosecuting the charge,
particularly with regard to the issue of causation.
c. Third, presenting the case was a significant challenge at trial. Besides the challenge
of overcoming the question of causation with the jury, there were evidentiary
obstacles to overcome. The key witnesses were juveniles, still traumatized from a
harrowing event. One of the key witnesses was the younger brother of the
Defendant and was torn between telling the truth and implicating his brother. He
had, in fact, made untruthful statements at deposition in efforts to protect his
brother. A key piece of evidence, a video recording of an interview of the defendant
conducted by law enforcement officers, was compromised by a technical
malfunction in the recording equipment, and many of the most important
admissions made by the defendant were missing from the recording.
D. I represented the State of Iowa.
E. I prosecuted this case myself from beginning to end. My involvement began when I was
contacted by law enforcement agents from the jail immediately following their interview of the
defendant. It was I who advised them to arrest him at that time. I made the charging decisions
and signed the Trial Information. I conducted all plea negotiations and participated in all
depositions. I conducted all trial preparations with regard to both legal preparation and witness
preparation, and I tried the case to the jury as sole counsel. I did enlist the aid of my Assistant
County Attorney, Colin Johnson, during the jury selection process, and he did accompany me at
counsel table during portions of the trial, but I tried this case by myself.
F. I was involved from the investigation stage in January, 2017; through the trial in October, 2017;
8
to the sentencing in December, 2017; to the resentencing in September, 2019. I was not
involved in the direct appeal.
G. Mr. Hernandez was found guilty on all counts by the jury. He appealed and the Iowa Court of
Appeals upheld his convictions (Docket 18-0083). During the process of his appeal, the State
argued that the sentencing court should have imposed a 10-year minimum sentence which had
not been imposed. The Court of Appeals agreed and remanded the case for resentencing,
which took place on September 26, 2019. Mr. Hernandez has now filed a Notice of Appeal with
regard to that resentencing. He is currently serving a 25-year indeterminate term with a
minimum term of 10 years before eligibility for parole.
H. No co-counsel per se, although Colin Johnson, Assistant Crawford County Attorney (Denison,
Iowa), assisted me during jury selection.
I. Opposing counsel was Thomas Niklitschek, an attorney from Omaha, Nebraska, who appeared
Pro Hac Vice.
J. The case was tried before Hon. Jeffrey A. Neary.

A. State v. Michael Schenk, Crawford County FECR066652; and State v. Jayden Chapman, initiated
as Crawford County FECR066653 but tried under change of venue as Woodbury County
FECR090937. Iowa District Court.
B. Michael Schenk, Jayden Chapman, and Erika Dains were each charged with two counts of
Murder in the First Degree and one count of Arson in the Second Degree.
These charges stemmed from an incident in which Schenk and Chapman shot and killed two
elderly residents and then set fire to a mobile home in an attempt to burn the bodies and
destroy the evidence of their crimes. Dains, although originally charged with the crimes,
entered into an agreement with the State to testify against Schenk and Chapman in exchange
for a reduction of the charges against her.
Schenk, Chapman, and Dains had gone to a rural farmstead at night in hopes of stealing scrap
metal to sell for money. Due to a series of mishaps, including getting their truck stuck in a
muddy field, they were still at the property when the elderly landowners arrived to have their
morning coffee in a trailer home located on the property. When the landowners arrived, Shenk
and Chapman shot them, killing both, and subsequently lit the trailer on fire in an effort to
conceal their crimes.
C. This case is significant in two respects:
1. First, it involved two separate trials of co-defendants on multiple charges of First-
Degree Murder.
2. Second, it involved the tragic and senseless killing of two entirely innocent citizens of
our community. The two victims were elderly, law-abiding residents whose only
misfortune was to accidentally stumble upon the perpetrators during the course of
their attempt to steal scrap metal.
E. I served as co-counsel together with Doug Hammerand, an area prosecutor with the Iowa
Attorney General’s office. Mr. Hammerand would accurately be characterized as “chief
counsel,” as he performed opening and closing statements at trial and took the lead in arguing
motions, etc. However, we operated as true co-counsel, meaning I was involved in all aspects
9
of the case from beginning to end, including charging decisions, discovery, pretrial motions, trial
preparation, trial strategy, jury selection, examination of witnesses during trial, presentation of
evidence during trial, post-trial motions, and sentencing.
F. I was involved through the entire life of the case, from the investigation stage in March, 2013;
through the trial of Schenk in January, 2015; the trial of Chapman in May, 2015; and the
subsequent sentencings of both defendants.
G. Both Schenk and Chapman were found guilty by jury of 2 counts of Murder in the First Degree.
Shenk was also found guilty of Arson in the Second Degree, whereas Chapman’s jury found him
guilty of the lesser-included offense of Reckless Use of Fire. All convictions in both cases were
upheld on appeal, and both defendants are currently serving life sentences without the
possibility of parole.
H. Co-counsel was Douglas Hammerand of the Iowa Attorney General’s Office, Area Prosecutions
Division, in Des Moines, Iowa.
I. Opposing counsel for Schenk was Michael Williams of the Sioux City Public Defender’s Office.
Opposing counsel for Chapman was Jennifer Solberg, then of the Council Bluffs Public
Defender’s Office.
J. Both cases were tried before Hon. John D. Ackerman.

A. Esteban Velazquez-Ramirez v. State of Iowa, Crawford County LACV035590
B. This was a post-conviction relief action following Defendant’s conviction for Murder in the First
Degree. The underlying conviction was not tried by me, but by a previous county attorney.
Mr. Ramirez had previously been convicted by jury of Murder in the First Degree for the
shooting of his then-girlfriend, Dora Hernandez, in the parking lot of Farmland Foods in
Denison, Iowa. His conviction was upheld on direct appeal, and he subsequently filed this post-
conviction relief action, which I defended for the State of Iowa.
C. This case was significant in several respects:
1. First, the underlying criminal conviction was for First-Degree Murder and the
defendant (“Applicant” in this case) was serving a life sentence without the
possibility of parole.
2. Second, the Applicant raised a great many alleged grounds for post-conviction
relief, which necessitated significant legal analysis, research, and briefing on my
part.
3. Third, a number of the grounds raised by the Applicant were legally substantial,
such as: Violation of Equal Protection vis-à-vis State v. Heemstra; violation of rights
under the Vienna Convention; improper sentencing due to merger of willful injury
with its predicate felony charge; defendant’s immigration status as presented to the
jury; and others.
E. I handled the case entirely on my own from start to finish, including trial to the bench.
F. I was involved throughout the life of the case, from the initial filing of the application in
December, 2006, through trial of the matter in October, 2010.
G. The case was adjudicated in favor of the State, the application for post-conviction relief was
10
denied in its entirety, and the ruling was affirmed on appeal to the Iowa Court of Appeals.
H. No co-counsel was involved.
I. Opposing counsel at trial was Martha McMinn, Sioux City, Iowa. Prior to Ms. McMinn,
Applicant was represented by Rees Conrad Douglas, Sioux City, Iowa.
J. The case was tried before Hon. John D. Ackerman.
The non-litigation experience I have had, which has been primarily in the area of
municipal and governmental practice, will serve me particularly well in adjudicating civil
matters in which a governmental entity is a party, and I believe this experience also aids
me greatly in statutory construction and legal analysis.
Also, arguably, my work with law enforcement agencies prior to an arrest is
“non-litigation” experience. This, of course, would come directly to bear in evaluating
search warrants, evaluating requests for arrest warrants, and the adjudication pretrial
motions such as suppression hearings.
Public Office “Held” or “Sought” Location Dates of Service

Crawford County Held Denison, Iowa 7/2013 – Present
Attorney Appointed 7/2013 to serve the
remainder of my predecessor’s term
upon his retirement.
Subsequently elected in 2014 and 2018
and title(s):
b. Your title.
c. Your duties.
Not applicable.
11
Association/Committee Dates (From -- To)

Iowa Supreme Court Grievance Commission 2011 – 2017 (two consecutive terms)
National District Attorneys Association 2016 – Present
Iowa County Attorneys Association 2008–Present
American Bar Association 2007 – 2011
Iowa Bar Association 2007 – Present
Crawford County Bar Association 2007 – Present
or meetings.
Dates (From -- To) Organization Involvement

2008 – Present Crawford County Republican Served as Co-Chair from 2009-2017.
Central Committee Currently serve as Parliamentarian.
Served as chair of precinct caucus every
election since 2008.
Served on platform committee 2009-2018
6/2019 – Present Iowa Federation of Republican Contributing member, assisted chair Gwen
Women Ecklund in organizing Iowa Suffrage Centennial
Gala held in Des Moines on 6/22/19.
2012 – 2019 School Board Member of governing board for parochial
Saint Rose of Lima Catholic school, grades K-5. Served as secretary of the
School, Denison, Iowa board.
2009 – Present Knights of Columbus Assist in fundraising activities for community

Council 2074 and charitable causes.
12
Not Applicable.
Please find attached as separate PDF files.
OTHER INFORMATION
Not Applicable.
Title of Presentation Subject Matter, Group, Date

“Sex and the Law: It’s all Fun and This is a program I developed myself and have presented
Games Until Somebody Goes to Jail” numerous times over the past 5 years at many high
schools and middle schools in western Iowa, including
schools in Crawford County, Harrison County,
Pottawattamie County, and Fremont County. I have
presented to both students and parents. The program is
focused on educating young people and their parents on
the pitfalls of inappropriate use of social media, “sexting,”
inappropriate physical contact, and “statutory rape.” I
have received universally positive feedback from the
program and I am currently working with contacts at the
state level in an attempt to expand the scope and reach of
this program.
Elder Abuse
I presented a program to the Denison, Iowa, Rotary Club
sometime in the spring of 2018 (I do not know the precise
date). This program outlined issues surrounding elder
abuse in our community and the prosecution of
perpetrators, particularly with regard to financial
exploitation of the elderly. This program grew out of a
training I attended in August, 2017, sponsored by the
National Institute on the Prosecution of Elder Abuse.
13
Law Enforcement Trainings
I have conducted dozens of trainings for our local law
enforcement agencies during the 12 years I have worked
as a prosecutor. These programs have covered a wide
range of topics applicable to law enforcement operations
such as search and seizure law, domestic abuse and
stalking, the use of canine officers, cannabidiol and hemp,
and many others, including regular updates on new
legislation.
Social media application name Account name or other identifying information

Facebook Account Name: Roger Sailer
Note: I am not a Facebook user and I generally avoid social media
entirely.
I created this Facebook account several years ago for the sole
purpose of trying to contact specific people related to genealogical
research I was conducting into my family history. I used it only for a
matter of days, was not successful in contacting the people I was
seeking, and I have not used it since. Frankly, I do not even know
whether this account still exists or, if it does, how to access it.
Snapchat Account Name: Roger Sailer
Note: This account was created for me by my teenage niece in order
to include me on family-wide messages. It was created on a previous
cell phone. I changed cell phones more than a year ago and I have
not accessed Snapchat since that time, as I do not know how to sign
into the account and do not care to.
Name/Title of Honor, Prizes, Awards Awarded by: Month/Yr

Received
Magna cum laude graduation from law school Creighton School of Law 5/2007
(Top ten class rank)
Dean’s Merit Scholarship Creighton School of Law 8/2004
14
Robert J. Muchemore Scholarship Robert J. Muchemore Foundation 9/2004
(Creighton School of Law)
Provost’s Award (for graduating first in class) Defense Language Institute 11/1995
Honors Graduate and Dean’s List every semester University of Colorado, Boulder 5/1994
(4.0 GPA)
Edward R. Murrow Award (for shooting and editing a Radio and Television News 1/2005
television documentary) Director’s Association
Omaha Jazz Society Music Scholarship (awarded to the Omaha Jazz Society/ 8/1982
outstanding soloist at the Omaha Jazz Festival) University of Nebraska
Military Awards: 1: National Security Agency Throughout
1. National Security Agency Commander’s Coin Others: 721st Military my time of
of Excellence active-duty
Intelligence Battalion
service from
2. National Defense Service Medal
5/1994 to
3. Army Service Ribbon 9/1998.
4. Army Good Conduct Medal
5. Expert Marksmanship Medal with Grenade Bar
Name Telephone number Relationship

Justice Susan Christensen Professional friend
Iowa Supreme Court (Cell Phone)
Hon. Julie A. Schumacher Friend and previous colleague

Iowa Court of Appeals Judge (Cell Phone)
Hon. John D. Ackerman Practiced in his court for years,
Iowa District Court Judge (Administration) including jury trials.
District 3B
(senior status)
(Cell Phone)
Hon. Jeffrey A. Neary Practiced in his court for years,
Iowa District Court Judge (Administration) including jury trials.
District 3B
(Home)
15
Hon. James D. Scott Practiced in his court for years.
Iowa District Court Judge (Cell Phone)
District 3B
(Retired)
Hon. Coleman J. McAllister Professional Friend
District 5C
Hon. Margaret Popp-Reyes Professional friend
District 4
Rep. Steve Holt Long-time friend and my local
Chair, Iowa House Judiciary Committee (Cell Phone) state representative
Sen. Brad Zaun Acquaintance and supporter

Chair, Iowa Senate Judiciary Committee (Cell Phone)
Sen. Dan Dawson I have prosecuted major
Iowa Senate Judiciary Committee (Cell Phone) criminal cases in which Dan
served as case agent. Through
and Special Agent, Iowa Division of
that experience, he has also
Criminal Investigation
become a friend.
Sen. Jason Schultz Long-time friend and my local
Iowa Senate Judiciary Committee state senator
Thomas E. Gustafson Attorney in Crawford County

Attorney (Office) who serves as defense counsel
in many of the criminal cases I
prosecute
I have given serious consideration to this very question during my process of deciding
whether to apply for this position. The fact is that I love serving in my current position as
Crawford County Attorney. I am very proud of the work I have done in this office and I
wholeheartedly consider it to be the best job I have ever held. Why would I want to leave it for
a judgeship?
The answer is that by serving as a district court judge, I would not only be able to retain the
aspects of my current work that appeal to me so much, but their scope would be broadened,
their reach would be deepened, and their effects would be magnified.
16
First, while serving as county attorney, I have had the opportunity and the authority to
make decisions and take actions that truly impact the communities in my jurisdiction and the
lives of the people who live here. Nothing is more rewarding, either personally or
professionally, than knowing that the effort I have put forth in a case has directly resulted in a
better, safer, and more just world for citizens in our county. Sometimes I get to hear the
heartfelt thanks of those who have benefited from those efforts; sometimes I do not. But in
either event the satisfaction is profound and humbling. If given the opportunity to serve as a
judge, the opportunities to make such decisions and take such actions would increase
dramatically, no longer being just one aspect of my work, but instead becoming the bulk of my
work. Not only would those opportunities increase in number, but they would also encompass
a much broader spectrum of the law, a much wider range of problems brought to the court by
those seeking resolution, and a much larger population of citizens in our area who could be
helped. Moreover, the reach and effect of those decisions, as enforceable court orders, would
be magnified.
Second, a county attorney is unique among practicing attorneys in a number of ways, but
one of the most important to me is that as a county attorney, my primary responsibility is not
to advocate for a client but to seek justice and to do right under the law. To quote from the
American Bar Association Standards for prosecutors:
“The primary duty of the prosecutor is to seek justice within the bounds of
the law, not merely to convict. The prosecutor serves the public interest and
should act with integrity and balanced judgment to increase public safety both
by pursuing appropriate criminal charges of appropriate severity, and by
exercising discretion to not pursue criminal charges in appropriate
circumstances. The prosecutor should seek to protect the innocent and convict
the guilty, consider the interests of victims and witnesses, and respect the
constitutional and legal rights of all persons, including suspects and
defendants.”
I have taken this charge to heart in my work as a prosecutor and it gives me pride, self-
respect, and great satisfaction to know that my daily duty is to consider and protect the rights
of all persons involved in the case and strive to do the right thing under the law.
As a judge, this function would remain my primary charge. For what does a judge do if not
“act with integrity and balanced judgment” and “respect the constitutional and legal rights of
all persons, including suspects and defendants?” I already perform these functions daily.
Third, I have become increasingly troubled over the last several years about what I see in
our profession as a marked decline in civility, decorum, and respect for our courts. Too often,
17
and with increasing regularity, I see attorneys and litigants, under the false flag of zealous
advocacy, engage in the type of behavior and gamesmanship that I can only characterize as
disrespectful and unprofessional toward opposing counsel, toward other litigants, and toward
the court itself. This concern of mine is more than mere traditionalism and conservatism,
although I do fall into those categories. It is a substantive concern that I feel is important. A
primary reason for the very existence of the courts and the legal profession as a whole is to
provide litigants a venue in which their disputes and wrongs can be addressed and settled in a
peaceful, impartial, and reasoned manner, without resort to incivility. As a judge, I would be in
a position to do what I could to turn this tide in my corner of the world, and I would not shrink
from that challenge.
Finally, I apply for this position in part due to geographic concerns. I recognize that this is a
self-serving argument, but it is true nonetheless: It is important to have a judge in our area of
the district. I have seen the importance of this throughout Judge Schumacher’s tenure on the
bench and during Judge Vipond’s tenure before her, and I am concerned that with Judge
Schumacher’s appointment to the Court of Appeals, Crawford County and the entire southern
portion of our judicial district may find themselves without a resident judge. I am healthy,
relatively young, properly educated, well experienced, and qualified for this position. I believe
such people should step forward to serve.
Former Iowa Supreme Court Justice Harvey Uhlenhopp reportedly said in 1986 that, “the
objective of a sound judicial selection system is the nomination and appointment of the best
qualified individuals who are available to be judges, in terms of such qualities as integrity,
intelligence, industry, impartiality, and experience” (as quoted on the Iowa Judicial Branch
website).
I agree with Justice Uhlenhopp with regard to these essential qualities. I would even agree
that he has placed them roughly in the correct order of importance, although I might place
“impartiality” higher on the list, above intelligence and industry.
I am not in a position to address whether I am the “best qualified” candidate in terms of

these qualities, but I can offer evidence that I do possess each of these qualities in sufficient
measure to qualify me for consideration and, if selected, to enhance the court by bringing them
to bear in my daily work as a judge.
Integrity: I know of no person who has ever interacted with me professionally who could,
or would, say that I conduct myself with anything less than the utmost integrity. Integrity is
important in all aspects of life, of course, and in all types of work, but it is particularly important
18
for public officials who carry the public trust and act on behalf of our government. Because only
through integrity can there be legitimacy in our actions. I already shoulder that responsibility
as an elected county attorney and those around me will attest that I have done so unfailingly.
I strive to conduct myself with honesty, integrity, and maturity at all times, and I believe
that this, combined with the appropriate amount of human kindness and respect for human
dignity, is what spells success for a judge and respect for a court.
My personal and professional integrity are driven by two factors: by the values and morals
instilled in me by my parents and other authority figures throughout my life, and by my Catholic
faith, which of course does not directly come into play in the courtroom, but which dramatically
influences the ways in which I strive to live and work.
I would also offer up one piece of extrinsic evidence regarding my character: during my
service in the U.S. Army Military Intelligence Corps, I worked in a very sensitive position for the
National Security Agency (NSA). I underwent an exhaustive investigation of my background, my
family, my work history, my affiliations and friendships, and my financial affairs. Following that
investigation, I was granted a Top-Secret-SCI security clearance, which is the highest level
attainable.
Intelligence: If “intelligence” means intellectual acumen, I have no shortage of evidence

that I possess it: high academic achievement in a wide range of disciplines, especially in the law;
a body of legal writing that displays analytical skills, reasoning ability, and critical thinking; a
background of broad intellectual pursuits including a degree in literature, a degree in
journalism, intensive study and fluency in foreign language (I worked as an Arabic interpreter
and have studied intensive German), and significant studies in mathematics, chemistry, and
physics. My background also includes high scores on a wide variety of standardized tests.
However, I think “intelligence” means much more than the traditional notion of intellectual
ability. The concept of “intelligence,” in this context, should also include cultural intelligence,
communication intelligence, interpersonal intelligence, practical intelligence, emotional
intelligence, and others. These forms of intelligence are every bit as important as abstract
intellectual ability - often more so. This is especially true when one considers the work of a
judge in the courtroom. To be a good and effective arbiter of justice, scholar of the law, and
problem solver for litigants, all of these types of intelligence must be brought to bear in varying
degrees. I believe that my background demonstrates that I would be more than capable of
employing all of the above and I would relish the challenge.
19
Industry: The volume of work performed on a continuing basis in my office, the case load I
have handled every day for the past 12 years, and my consistently high level of preparation for
courtroom hearings and trials are ample evidence that I am well acquainted with hard work and
that I am willing and able to handle significant workloads and effectively prioritize tasks.
Impartiality: Partiality comes in many forms, including “implicit bias,” which our courts are
currently working hard to address. Given the insidious nature of bias itself, and especially that
of implicit bias, I struggle to think how I, as a nominee, might demonstrate impartiality beyond
simply stating that I believe I am impartial and that in the course of my work, I regularly engage
in self-evaluation and thoughtful reflection to ensure that I remain unbiased.
I think one concrete example would be the fact that I currently work in one of the most
ethnically diverse communities in the State of Iowa and I have earned community trust and
support across racial and ethnic lines. Besides our ever-burgeoning Hispanic population in
Crawford County, we now also have significant numbers of Sudanese residents as well as a
growing contingent of Hmong and people of other Asian heritages. These are my neighbors
and fellow residents, no more nor less than those who look and speak as I do. That is my
attitude in all of my affairs, work and otherwise, and I believe it is a testament to my
impartiality that I enjoy great support from leaders of both the Hispanic Community and the
Sudanese community. These are immigrant citizens who could easily, as is the case in many
communities, dismiss authorities such as myself as racist, insensitive, and unresponsive to
them. But instead, leaders of the Hispanic community come to my office with their concerns,
seeking both my counsel and my help as an official. Likewise, leaders of the Sudanese
community in Denison have invited me to socialize and share a meal with them. These
individuals trust me, and I believe it is because I have demonstrated to them that I will treat
them fairly and impartially. That is precisely the type of trust the court must maintain to be
effective.
Experience: The other answers in this application sufficiently outline my experience in the
practice of law. Besides legal experience, however, a competent and effective judge is
undoubtedly informed by life experience. The ability to understand and appreciate the
viewpoint of others is absolutely critical to the judicial function, and that comes only from
genuine life experience, and the broader the better.
In this area, I am likely unrivaled. I have worked professionally as a waiter and bartender, as
a restaurant manager, as a technical writer for a computer software developer, as an Arabic
linguist for a Military Intelligence Battalion, as a voice intercept translator for the National
Security Agency, as a school bus driver, as a director and technical director for a live television
newscast, as a chief photographer at a television news station, and of course, as a lawyer and
prosecutor.
20
This broad base of experience, I believe, makes me uniquely suited to understand,
appreciate, and effectively adjudicate the vast array of issues presented to a district court judge
from litigants of all walks of life. It also, quite frankly, makes me more appreciative than the
average person of the opportunities given to me. I am keenly aware of just how blessed I am to
have found my current career and to have this opportunity to advance it. This, in turn, leads to
a true sense of humility and responsibility to answer the call to the very best of my ability. This
would be my attitude from the bench every day.
26. Provide any additional information that you believe the Governor should know in
considering your application.
An important facet of my legal experience which has not been addressed in this application
is the outstanding training I have received over the years. As a prosecutor, I have had access to
training opportunities beyond those available to other attorneys. Earlier this year, I attended
grant-funded training at the National Computer Forensics Institute in Hoover, Alabama. This is
a state-of-the-art facility operated by the U.S. Secret Service that trains judges, prosecutors,
and law enforcement officers around the country on both the law and the technology of digital
evidence in the courtroom. Previously, I have attended grant-funded training at the National
Advocacy Center in Columbia, South Carolina, where federal prosecutors receive their training.
I have also received training from the National District Attorney’s Association in Chattanooga,
Tennessee, where the faculty was comprised of top prosecutors from Chicago, New York City,
Philadelphia, and elsewhere. And I have received hundreds of hours of excellent training from
the Iowa Prosecuting Attorney Training Coordinator’s Office.
I have the tools necessary to do this job and to do it well: education, legal experience, life
experience, work ethic, and integrity.
I have experience in making difficult decisions that will be publicly scrutinized and standing
by those decisions even when they may be unpopular.
I am familiar and comfortable with working in an official capacity. I have developed broad
shoulders and I know how to carry the burden of authority and how to wield that authority
judiciously and appropriately.
It would be both an honor and a tremendous responsibility to serve as a judge in our

district, and I would appreciate and embrace the opportunity.
21
ROGER SAILER
WRITING SAMPLE #1
(Responsive to Question #18)
Trial Brief on behalf of Crawford County in CVCV035515:
Crawford County v. State of Iowa, et al.
This is a brief I wrote and submitted in a civil action involving three separate counties and the
State of Iowa as litigants. I represented Crawford County.
I have chosen this brief to submit as a writing sample because it involves complex legal issues
and analysis in an important and hard-fought case.
This case was adjudicated in favor of my client, Crawford County, and was not appealed.
The writing and analysis in this brief are entirely my own, although I did receive review and
input from attorney Derrick Franck, who was a partner in the firm where I practiced at the time.
.
IN THE IOWA DISTRICT COURT FOR CRAWFORD COUNTY
CRAWFORD COUNTY, IOWA *

and CRAWFORD COUNTY
BOARD OF SUPERVISORS, * CASE NO. CVCV035513
Petitioners, *
vs. *
STATE OF IOWA, ex. rel. *

KEVIN W. CONCANNON, DIRECTOR
OF THE IOWA DEPARTMENT *
OF HUMAN SERVICES, PETITIONERS’ BRIEF FOR
* JUDICIAL REVIEW OF
Respondents, ADMINISTRATIVE DECISION
*
vs.
*
POTTAWATTAMIE COUNTY, IOWA
and POTTAWATTAMIE COUNTY *
BOARD OF SUPERVISORS,
*
Respondents,
*
vs.
*
FREMONT COUNTY, IOWA
and FREMONT COUNTY *
BOARD OF SUPERVISORS,
*
Respondents,
*
vs.
*
IOWA DEPARTMENT OF
INSPECTIONS AND APPEALS, *
Respondent. *
* * * * * * * * * * * * *
INTRODUCTION
This case involves a determination of financial responsibility for J.L., a mentally retarded
young man who resides in a state institution in Glenwood, Iowa.
Pursuant to Iowa Code Sections 252.24 and 225C.8, the costs of J.L.’s care and support
will be borne by the county deemed to be his “legal settlement” under Iowa Code Section 252.16;
or, alternatively, will be borne by the State if it is determined he has no legal settlement or his
legal settlement is unknown. § 225C.8(4)(b), Code of Iowa.
These costs have already accrued in excess of $120,000 (Record, P. 10, Finding No. 21),
and the entity ordered to pay these costs under the ruling of this court will be liable not only for
that amount, but for all such costs for years into the future, potentially for the rest of J.L.’s
natural life, with the possibility of millions of dollars in future expenses. No party in this case
disputes that J.L. is entitled to proper care and support, but with such large sums hanging in the
balance, the ultimate decision of this court as to legal settlement for J.L. will have a dramatic
impact on the entities involved and the taxpayers who support them.
On July 28, 2006, an Administrative Law Judge for the Iowa Department of Inspections
and Appeals determined that Crawford County is the legal settlement in this case and is therefore
liable for current and future costs (Record, P. 14). This decision to hold Crawford County and its
taxpayers responsible for the care and support of J.L. was based solely on a guardianship that was
purportedly established by a juvenile court less than one month before J.L.’s eighteenth birthday,
wherein the guardian who was appointed for J.L. was a social worker who happens to reside in
Crawford County (Record, PP. 9, 14). There is no other connection whatsoever between this
case and Crawford County. J.L. has never physically been present in Crawford County; neither
J.L. nor his parents have ever resided in Crawford County; and neither Crawford County nor any
of its citizens have reaped any benefit from J.L.’s care in the State institution (Record, P. 38, l. 31
through P. 39, l. 7). Crawford County now prays for judicial relief.
If the ALJ’s decision of July 28, 2006, is allowed to stand, not only will a large burden be
placed on the taxpayers of Crawford County, but this case will establish a new rule in Iowa: that
any government entity who wishes to avoid the expense of supporting a mentally retarded child is
free to scour the state for an unwitting individual willing to serve as the child’s guardian before
the child turns eighteen, no matter how short that period may be; and as soon as such a person is
found and appointed by a juvenile court without any notice, the responsible entity may thereby
dump the entire expense of the child’s care and support on the county where the new guardian
happens to live, even if, as in the present case, the child has no other connection to that county
whatsoever.
FACTS
J.L., born August 12, 1983 (Record, P.8, Finding No. 1), in Council Bluffs, Iowa,
currently resides at the Glenwood Resource Center in Glenwood, Iowa, where he has lived
continuously since October 28, 1999 (Record, P. 9, Finding No. 9). J.L. suffers from mild to
moderate mental retardation, bipolar disorder, and borderline personality disorder (Record, P. 9,
Finding No. 10).
Prior to his arrival in Glenwood, J.L. lived in a series of foster homes and shelters
(Record, P. 9, Findings 6-9). In 1993, a juvenile court adjudicated J.L. to be a Child In Need of
Assistance (CHINA) and placed him in the custody of the Iowa Department of Human Services
4
(DHS), under whose control he has remained since that time, either in the physical custody of
DHS or in a foster home (Record, PP. 8-9, Findings 3-7). At the time that J.L. was removed
from his parents’ custody and placed in the custody of DHS (November 12, 1993), his parents
had legal settlement in either Pottawattamie County, Iowa, or Fremont County, Iowa (Record, P.
20, ll. 14-15; P. 22, ll. 9-13).
On May 9, 1997, the juvenile court terminated the parental rights of J.L.’s parents and
ordered that DHS be his Guardian (Record, P. 9, Finding No. 7). At that time, his parents had
legal settlement in Fremont County, Iowa (Record, P. 20, ll. 18-22).
On October 19, 2005, Pottawattamie County denied that it was the county of legal
settlement for J.L. (Record, P. 9, Finding No. 19). DHS took the position that Pottawattamie
county was J.L.’s county of legal settlement because it was the settlement of his parents at the
time he was removed from their custody and placed in the custody of DHS (Record, P. 21, ll. 5-
9).
On July 17, 2001, nearly eight years after his placement with DHS and only twenty-six
days before his eighteenth birthday, the juvenile court in Fremont County, Iowa, established a
guardianship for J.L., naming K.S. as his guardian (Record, P. 9, Finding No. 12). K.S. is a
social worker in Crawford County, Iowa (Record, P. 9, Finding No. 11). She was contacted by a
DHS social worker in its search to find a guardian for J.L., and she was asked to serve as his
guardian (Record, P. 33, ll. 21-30). Nothing was explained to K.S. at that time regarding legal
settlement or the potential financial burden that may befall Crawford County if she agreed to the
proposal of the State (Record, P. 33, ll. 31-33; P. 35, ll. 4-7). In fact, it was explained to her that
J.L. was going to be eighteen years old and was at the Glenwood Resource Center. (Record, P.
5
34, ll. 5-8).
On August 12, 2001, J.L. reached the majority age of eighteen (Record, P. 9, Finding No.
13), and subsequently the juvenile court entered an order on September 18, 2001, terminating its
jurisdiction over him and releasing itself from further responsibility for him (Record, P. 9,
Finding No. 14).
J.L. has never been physically present in Crawford County (Record, P. 38, ll. 31-34).
J.L.’s parents have never been physically present in Crawford County (Record, P. 39, ll. 1-3).
Other than the appointment of K.S. as J.L.’s guardian by the Juvenile Court, there is no evidence
of any connection between J.L. and Crawford County (Record, P. 39, ll. 4-7).
K.S., the Crawford County resident who was named his guardian by the juvenile court
shortly before his eighteenth birthday, has met J.L. personally on only one occasion: in October,
2001, in Glenwood, Iowa (Record, P. 34, ll. 9-22). K.S. has never received any Iowa District
Court papers stating she is appointed as J.L.’s guardian (Record, P. 34, ll. 26-28); she has never
filed an annual report as his guardian (Record, P. 34, ll. 29-30); she has never appeared in front
of any juvenile court on J.L.’s behalf (Record, P. 34, ll. 31-33); there was no explanation given to
her prior to July 17, 2001, from a judge or an attorney, as to what her responsibilities would be as
his guardian (Record, P. 34, l. 34 - P. 35, l. 3); and she had no expectation that trying to assist
J.L. would in any way have an effect on Crawford County (Record, P. 35, ll. 4-7).
On October 19, 2005, Pottawattamie County filed a Request for Review of this case with
DHS, then claiming that J.L.’s proper legal settlement was Crawford County, Iowa, based upon
the guardianship of K.S. (Record, P. 9, Finding No. 19).
On June 22, 2006, the Iowa Department of Inspections and Appeals held a telephonic
6
hearing on the matter, with Administrative Law Judge Charles B. Tarvin presiding (Record, P. 8;
PP. 15-49). Subsequently on July 28, 2006, ALJ Tarvin issued a decision naming Crawford
County as J.L.’s county of legal settlement and ordering Crawford County to reimburse DHS for
the costs incurred in his care, based upon the 2001 guardianship entered by the juvenile court
naming K.S. as his guardian and the fact that K.S. happens to be a resident of Crawford County
(Record, PP. 8-14).
On August 22, 2006, Petitioners Crawford County and Crawford County Board of
Supervisors timely filed a Petition for Judicial Review, which is the final filing in the Department
of Inspections and Appeals Case Record (Record, PP. 119-126).
On September 17, after engaging new counsel, Petitioner Crawford County moved to
amend and recast its Petition. Respondents Pottawattamie and Fremont Counties resisted that
motion and each filed a cross-motion to dismiss the Petition for lack of subject matter
jurisdiction. Hearing on these motions was held on October 9, 2007. On October 26, 2007, the
Honorable Jeffrey Neary issued a ruling granting Crawford County’s Motion to Amend its
Petition, denying Pottawattamie and Fremont counties’ motions to dismiss, and holding that
Crawford County’s Amended Petition relates back to the original Petition and stands as filed.
Service was promptly made on the Department of Inspections and Appeals, Affidavit of such
service was filed on November 28, 2007, and an Appearance and Notice of Waiver of Further
Participation was filed on behalf of the Department of Inspections and Appeals on or about
December 17, 2007.
ARGUMENTS
I.
7
THE DEPARTMENT OF INSPECTIONS AND APPEALS DID NOT HAVE SUBJECT
MATTER JURISDICTION UNDER IOWA CODE SECTION 225C.8 TO HEAR THIS
CASE.
Jurisdiction of an administrative agency to hear disputes is created, defined, and limited
by the enabling statute. See 2 Am. Jur. 2d § 282:
“Administrative agencies are tribunals of limited jurisdiction, and nothing is presumed in

favor of an agency’s jurisdiction. As a general rule, agencies have only such adjudicatory
jurisdiction as is conferred on them by statute. Their jurisdiction is dependent entirely upon the
validity and the terms of the statutes reposing power in them, and they cannot confer jurisdiction
on themselves.”
See also, e.g. Bair v. Blue Ribbon, Inc, 256 Iowa 660 at 663, 129 N.W.2d 85 at 86, (Iowa
1964); and Springville Comm. Sch. Dist. v. Iowa Dept. of Pub. Inst., 252 Iowa 907, 109 N.W.2d
213 (Iowa 1961):
“The general rule is a public administrative board or agency has only such adjudicatory
jurisdiction as is conferred on it by statute. Jurisdiction cannot be conferred by waiver or
consent on the State Department of Public Instruction any more than upon a court. It(s)
acts without jurisdiction are void.” Springville Comm. Sch. Dist. v. Iowa Dept. of Pub.
Inst., 252 Iowa 907 at 914, 109 N.W.2d 213 at 217 (Iowa 1961):
Section 225C.8, adopted in 2004 (House File 2537), is the statutory grant of jurisdiction
to the Iowa Department of Inspections and Appeals to hear this case. See Acts 2004 (80th G.A.)
Chapter 1090.
House File 2537 as originally introduced provided for a State-County Dispute Resolution
Committee to resolve disputes rather than for a hearing before the Department of Inspections and
Appeals. H.F. 2537, pp 19-21., H.J. 571 (March 10. 2004). The current Section 225C.8 was
added by House Amendment 8265, originally filed on March 17, 2004. H.J. 737 (March 17,
2004).
The jurisdiction limiting language in Section 54, also added by House Amendment 8265,
was the following:
8
“Sec. 54. APPLICABILITY.
1. The timeframes specified in section 225C.8, as enacted by this division of this Act, are
applicable to legal settlement disputes involving billings for services provided on or after
July 1, 2004.
2. For legal settlement disputes involving billings for services provided prior to July 1,
2004, unless the county disputed the billing prior to July 1, 2004, the person's legal
settlement shall be deemed to be in the county that was billed for services provided to the
person. However, if a county disputed the billing for a service provided prior to July 1,
2004, and the matter cannot be resolved with the department of human services or with
the other county, in lieu of the forty-five-day period specified in section 225C.8,
subsection 2, a party may move for the matter to be resolved in the manner provided in
section 225C.8, at any time prior to January 1, 2005. If a party has not made such a
motion, effective January 1, 2005, the matter shall be closed and the person's legal
settlement shall be in the county that was billed for services provided to the person.”
House Amendment 8265, p. 9, H.J. 737 (March 17, 2004) (Emphasis added.).
That language was ultimately adopted in the law enacted by the General Assembly and
signed by the Governor. See Acts 2004 (80th G.A.), Chapter 1090. Sec. 54.
Section 54 of H.F. 2537, as enacted, provided that the dispute resolution mechanism
created by H.F. 2537 was not available for disputes where services were rendered prior to the
effective date of the Act (July 1, 2004) unless a motion to resolve the matter under the new
dispute resolution mechanism was filed before January 1, 2005.
Administrative Law Judge Charles Tarvin found that as early as October, 2001, the
Department of Human Services was billing Pottawattamie County for the cost of JL’s care in the
state mental institute. (Record P. 9, Finding No. 18.) Because this case predated the enactment
of Section 225C.8 and involved billings for services rendered prior to July 1, 2004, the
Department of Inspections and Appeals had no statutory grant of subject matter jurisdiction to
hear the dispute unless the motion to dispute the matter had been filed with the Department of
Human Services prior to January 1, 2005. Administrative Law Judge Tarvin found as a fact that
Pottawattamie County did not file a written notice of dispute of JL’s legal settlement with the
9
Department of Human Services until on or about October 19, 2005. (Record P. 9, Finding No.
19).
In accordance with the clear language of Section 54, this matter was closed and the legal
settlement of JL in Pottawattamie County was not subject to further dispute. Under the clear
terms of the statute granting it jurisdiction, the Department of Inspections and Appeals had no
subject matter jurisdiction to render any decision on the merits in this case. Its decision without
subject matter jurisdiction is void.
Lack of Subject Matter Jurisdiction May Be Raised at Any Time.
While this lack of subject matter jurisdiction was not initially raised before the
Administrative Law Judge, it is properly before this court. See, e.g., Heartland Express v. Terry,
631 N.W.2d 260 at 265; and TMC Transp. v. Davidson, 713 N.W.2d 248, 2006 W.L. 334178
(Iowa App. 2006) (unpublished opinion), where the issue of subject matter jurisdiction was
raised for the first time in a reply brief:
“Challenges to the subject matter jurisdiction of an adjudicatory body-be it a court or an
agency-may be raised at any time, and we have consistently held that parties cannot
confer subject matter jurisdiction by waiver or consent. Heartland Express, Inc. v. Terry,
[citation omitted]; see also Bair v. Blue Ribbon, Inc., (noting that ‘[a]n objection based
upon the want of jurisdiction of the court over the subject matter of the action may be
raised at any time, and is not even waived by consent.”
This case concerns charges being billed to Pottawattamie County prior to the effective
date of Section 225C.8, Code of Iowa. Under the clear terms of the statute granting jurisdiction
to the Department of Inspections and Appeals to hear disputes concerning legal settlement,
10
unless the matter was raised by the county being billed prior to January 1, 2005, the question of
legal settlement was closed and was not subject to further dispute under Section 225C.8.
Because the jurisdiction of the Department of Inspections and Appeals to determine legal
settlement derives solely from Section 225C.8, the Department had no subject matter jurisdiction
to render any decision on the merits of this case.
In Alliant Energy – Interstate Power and Light Company v. Duckett, 732 N.W.2d 869
(Iowa, 2007), the Iowa Supreme Court explained the distinction between a challenge to subject
matter jurisdiction, which can be raised at any time, and a challenge to the authority of a court to
hear a particular case, which can be waived if not timely raised. In Alliant, the appellant Duckett
claimed that the district court that decided her case lacked subject matter jurisdiction because the
Appellee, Alliant, was required to first exhaust its administrative remedies through the Iowa
Utility board and it failed to do so. Alliant, 732 N.W.2d at 875. The Court explained that
“[s]ubject matter jurisdiction refers to ‘the authority of a court to hear and determine cases of the
general class to which the proceedings in question belong, not merely the particular case then
occupying the court’s attention.’” Id. at 874-75 (emphasis in original). The court found that
Duckett’s argument was not a challenge to subject matter jurisdiction and was therefore waived,
explaining, “[g]enerally, the exhaustion-of-remedies requirement does not implicate subject
matter jurisdiction. This is because the exhaustion-of-remedy doctrine does not preclude judicial
review, but merely defers it until the administrative agency has made a final decision.” Id. at
875.
Applying the Court’s reasoning in Alliant to the case at bar, Section 54 is the statutory
11
grant of jurisdiction to the Department of Inspections and appeals to hear the general class of
cases at issue, and it does not “merely defer” the ability of that agency to hear this particular case,
as did the exhaustion-of-remedies doctrine in Alliant, it explicitly precludes the Department of
Inspections and Appeals from hearing any challenges to legal settlement determinations in which
services were rendered prior to July 1, 2004, and no dispute was filed prior to January 1, 2005.
The Department of Inspections and Appeals lacked subject matter jurisdiction over this case,
which cannot be conferred by waiver, consent, or estoppel, and may be challenged at any time.
When a court lacks subject matter jurisdiction, its judgment is void. Opat v. Ludeking,
666 N.W. 2d 597 (Iowa, 2003). In Opat, the Appellant Ludeking claimed that a temporary
injunction against her was void from its inception because it was issued ex-parte without
certification required by Iowa Rule of Civil Procedure 1.1507. Opat, 666 N.W.2d at 606. The
Iowa Supreme Court held that the injunction issued by the lower court was not void, but merely
voidable, and the Court explained the difference, stating, “[a] void judgment is one that, “from its
inception, is a complete nullity and without legal effect. [citation omitted] A judgment is void
when the court lacks jurisdiction of the parties or of the subject matter, lacks the inherent power
to make or enter the particular order involved, or acts in a manner inconsistent with due process
of law.” Id, citing 46 Am.Jur.2d Judgments § 31, at 392, 394 (1994) and Davis v. Rudolph, 45
N.W. 2d 886, 890 (Iowa 1951). This Court should find that because the Department of
Inspections and Appeals lacked subject matter jurisdiction over this case, its decision naming
Crawford County, Iowa, as the legal settlement for J.L. is a void judgment without legal effect.
Further support for action by this Court is found in the Iowa Administrative Procedure
Act. Section 17A.19(b) of that act provides that the court “shall reverse, modify, or grant other
12
appropriate relief from agency action, equitable or legal and including declaratory relief, if it
determines that substantial rights of the person seeking judicial relief have been prejudiced
because the agency action is... (b) beyond the authority delegated to the agency by any provision
of law or in violation of any provision of law.” IAPA, § 17A.19(10) (emphasis added). The
action of the Department of Inspections and appeals in this case was beyond the authority
delegated to that agency by its enabling statute, Iowa Code Section 225C.8, and therefore
demands relief from this Court under Section 17A.19(b) of the Administrative Procedure Act.
Section 17A.19(b) is a separate, statutory avenue by which to challenge the subject matter
jurisdiction of the agency, and as such may be raised at any time. However, if this court should
find that a challenge under Section 17A.19(b) must appear in the petition to avoid waiver,
Petitioners respectfully request leave to further amend their Petition to include the following
additional allegation: “The decision of the Department of Inspections and Appeals in this case
was in violation of Section 17A.19(b) of the Administrative Procedure Act.”
II.
NO GUARDIANSHIP WAS CREATED IN THE FREMONT COUNTY JUVENILE

COURT BECAUSE THAT COURT LACKED JURISDICTION.
All jurisdiction resides in the district court unless some other statute grants exclusive or
concurrent jurisdiction to some other court. See Section 602.6101, Code of Iowa. It provides as
follows:
“A unified trial court is established. This court is the ‘Iowa District Court’. The district
court has exclusive, general, and original jurisdiction of all actions, proceedings, and
remedies, civil, criminal, probate, and juvenile, except in cases where exclusive or
concurrent jurisdiction is conferred upon some other court, tribunal, or administrative
body. The district court has all the power usually possessed and exercised by trial courts
of general jurisdiction, and is a court of record.” Section 602.6101, Code of Iowa.
13
The juvenile court is granted statutory jurisdiction over children under certain
circumstances by Chapter 232, Code of Iowa. Children are defined by Section 232.2(5) as
persons under the age of 18 years.
Here the juvenile court properly exercised jurisdiction over J.L. when he was removed
from his parent’s home in 1993 as a Child in Need of Assistance at the age of 10. (Record P. 8,
Finding Nos. 1 and 3.) From 1993 to 1997, J.L. resided in foster homes. (Record P. 9, Finding
No. 6.) No guardianship for J.L. was established for almost four years from October of 1993
until May of 1997. In May, 1997, the juvenile court terminated J.L.’s mother’s parental rights
and appointed the Department of Human Services as his guardian. (Record P. 9, Finding No. 7.)
It was not until almost 8 years of juvenile court jurisdiction and less than a month before J.L.’s
18th birthday that a guardian other than the Department of Human Services was appointed for J.L.
(Record P. 9, Finding No. 12.)
The juvenile court terminated its jurisdiction over J.L. shortly after his 18th birthday
(Record P. 9, Finding No. 14.) Clearly the purpose of the establishment of a guardianship for
J.L. just before his 18th birthday was because of his mental retardation. The juvenile court would
have no statutory purpose to be involved with J.L. once he turned 18. It was that act of
establishing a guardianship because of mental retardation for a person about to turn 18 years of
age that was committed by statute to the District Court sitting in probate and not to the juvenile
court. Because the juvenile court had no statutory grant of jurisdiction to establish a
guardianship for a mentally retarded person, its order doing so was without jurisdiction and void.
The Department of Inspections and Appeals (DIA) determined that a guardianship had
been established for J.L. in the Juvenile Court of Fremont County on July 17, 2001, naming
14
Crawford County resident K.S. as J.L.’s guardian. (Record P. 9. Finding No. 12.) This was an
erroneous interpretation of Iowa Code Sections 222 and 633, as well as Iowa Supreme Court
precedent in In re Guardianship of Matejski, 419 N.W.2d 576 (Iowa, 1988). The Juvenile Court
of Fremont County had no jurisdiction to establish a guardianship for J.L. because Iowa Code
expressly vests jurisdiction over guardianships, and especially guardianships for the mentally
retarded, in the District Court sitting in probate, not the Juvenile Court. See Sections 602.6101,
222.34, and 633.10, Code of Iowa. No valid guardianship ever existed, and this erroneous
interpretation of law was the sole basis upon which DIA determined that Crawford County was
the legal settlement for J.L. (Record P. 14.)
The interpretation of Iowa Code Sections 222 and 633 is not clearly vested in the
Department of Inspections and Appeals by any provision of law. Because the matter is not
clearly vested in the Department of Inspections and Appeals this court does not defer to the
Department’s interpretation of the law but instead is free to substitute its judgement for that of
the agency on the meaning of the statutes by reviewing for errors of law. See Section 17A.19(10)
(b); and Waterloo Educ. Ass'n v. Iowa Public Employment Relations Bd. 740 N.W.2d 418 at 420
(Iowa, 2007). Iowa Code Section 222.34 states that if a guardianship is proposed for a person
with mental retardation, “guardianship proceedings shall be initiated and conducted as provided
in chapter 633.” § 222.34, Code of Iowa. Lest there be any confusion over the applicability of
this statute because J.L. was a minor at the time, the Code further defines the term “mental
retardation,” as used in that chapter, as “a term or terms to describe children and adults who as a
result of inadequately developed intelligence are significantly impaired in ability to learn or to
adapt to the demands of society.” § 222.2, Code of Iowa (emphasis added).
15
In turn, Iowa Code Section 633.10 states, in pertinent part, that the District Court sitting
in probate shall have jurisdiction of “the appointment of conservators and guardians; the granting
of letters of conservatorship and guardianship; the administration, settlement and closing of
conservatorships and guardianships.” § 633.10(3), Code of Iowa (emphasis added). This
principle is further illuminated by the Iowa Practice Series section on Jurisdiction of the Probate
Court, which states, “[i]n guardianship matters the District Court sitting in probate has original
and exclusive jurisdiction of the person and estates of those needing a guardian.” 14 IA. Prac.,
Probate § 35:2 (2006) (emphasis added); relying on In re Guardianship of Matejski, 419 N.W.2d
576 (Iowa, 1988).
In Matejski, the guardians of a mentally retarded girl applied for authorization to have the
girl sterilized, and the District Court dismissed the case for lack of subject-matter jurisdiction.
The Iowa Supreme Court reversed and remanded the case back to the District Court, citing Iowa
Code Section 633.10 and stating, “[i]t is accordingly apparent that Iowa follows the rule that
probate jurisdiction, though a special jurisdiction, is not exercised by separate courts, but by a
separate division of a court of general jurisdiction.” Matejski, 419 N.W.2d at 578.
The Juvenile Court of Fremont County, which purports to have established K. S.’s
guardianship of J.L., is a separate court, not a separate division of a court of general jurisdiction,
and under §633.10 and Matejski, lacked jurisdiction to establish a guardianship for J.L.
Respondents rely on Iowa Code § 232.3 to find jurisdiction to establish the guardianship
in the Juvenile Court. Such reliance is misplaced because § 232.3 merely prevents a party from
concurrently litigating guardianship in another court during the pendency of an action in juvenile
court without leave of the Juvenile Court. § 232.3, Code of Iowa. Nowhere in the language of §
16
232.3 is jurisdiction affirmatively granted to the Juvenile Court to establish a guardianship for a
mentally retarded person. In fact, provision is made under § 232.3(2) for authorization by the
juvenile court to litigate such an issue in another court. § 232.3(2), Code of Iowa. The very
existence of § 232.3, and especially the existence of § 232.3(2), only serves to underscore the fact
that the Juvenile Court does not have jurisdiction in its own right over guardianship of a mentally
retarded person.
Respondents further rely on Iowa Code § 232.117 to find jurisdiction to establish the
guardianship in the Juvenile Court. This reliance is also misplaced. The juvenile court under
Chapter 232 only has jurisdiction over children. Children are defined in Section 232.2(5) as
persons under the age of 18 years.
17
Section 232.117 directs the Juvenile Court, upon terminating the parental rights of a
child’s parents, to transfer the guardianship and custody of the child to DHS, to a child-placing
agency, facility or institution, or to a non-custodial parent, other relative, or “other suitable
person.” § 232.117, Code of Iowa. This section goes on to make clear on its face that such a
transfer is for the temporary purpose of finding an adoptive home or other permanent placement
for the child (§ 232.117(6)), not for the purpose of establishing a permanent guardianship that
would determine the child’s legal settlement and dictate which government entity should fairly
be assessed the burden of supporting the child in perpetuity. The Juvenile Court of Fremont
County complied with this statute when it issued its order terminating parental rights on May 1st,
1997. At that time, the Juvenile Court ordered that “the guardianship, care, custody and control
of J.L.... be placed with the Iowa Department of Human Services for adoption.” (Record, P. 68).
To find in this statute a grant of jurisdiction for the Juvenile Court to establish a separate
guardianship more than four years later, in contravention of other statutes vesting that authority
in the District Court, is to stretch the reading of this statute beyond any reasonable interpretation.
ALJ Tarvin, in his decision of July 28, 2006, made a specific finding that J.L. “suffered
from mild to moderate mental retardation.” (Record P. 9, Finding No.10). Such a finding
necessitates application of Sections 222.2 and 633.1 and compels the conclusion that the Juvenile
Court of Fremont County lacked jurisdiction to establish a guardianship. Therefore, the
subsequent holding by ALJ Tarvin that J.L.’s legal settlement is in Crawford County, based upon
that purported guardianship, was in error because the District Court sitting in probate has
exclusive jurisdiction to establish such a guardianship. The July 17, 2001 order by the Juvenile
Court in Fremont County, purporting to establish a guardianship for J.L. and naming K. S. as his
guardian, was void. Since K. S. has never been legal guardian for J.L., Crawford County cannot
under any theory be held responsible for the expenses of his support.
18
Section 17A.19(10) of the Iowa Administrative Procedure Act provides that a reviewing
court “shall reverse, modify, or grant other appropriate relief from agency action, equitable or
legal and including declaratory relief, if it determines that substantial rights of the person seeking
judicial relief have been prejudiced because the agency action is... (c) based upon an erroneous
interpretation of a provision of law whose interpretation has not clearly been vested by a
provision of law in the discretion of the agency.” IAPA, § 17A.19(10) (emphasis added). The
action of the Department of Inspections and Appeals in this case was based upon an erroneous
interpretation of Iowa Code Sections 222 and 633, the interpretation of which has not been
vested by any provision of law in that department. Therefore, the Iowa Administrative Procedure
act requires relief from this Court.
III.
ANY GUARDIANSHIP THAT ARGUABLY MAY HAVE BEEN CREATED BY THE

JUVENILE COURT IN FREMONT COUNTY CEASED TO EXIST BY OPERATION
OF LAW AT THE MOMENT J.L. REACHED THE AGE OF MAJORITY.
Iowa Code Chapter 633 governs the creation, administration, and termination of
guardianships. Section 633.675 states plainly that a guardianship shall cease, if the ward is a
minor, when the ward reaches full age. § 633.675(1), Code of Iowa.
J.L. reached his eighteenth birthday on August 12, 2001, a mere twenty-six days after the
juvenile court purportedly created a guardianship for him by appointment of K. S., and any
guardianship that may have existed because of J.L.’s being a minor clearly dissolved at the end
of those twenty-six days. As noted above, the juvenile court never had jurisdiction to establish a
guardianship for a mentally retarded person.
This short-lived guardianship, if it ever existed at all, terminated nearly five years
previous to ALJ Tarvin’s decision to declare Crawford County as J.L.’s legal settlement and
thereby saddle Crawford County with the ongoing costs of J.L.’s support.
19
IV.
THE DEPARTMENT OF INSPECTIONS AND APPEALS’ ANALYSIS NAMING

CRAWFORD COUNTY AS J.L.’S LEGAL SETTLEMENT WAS NOT SUPPORTED BY
THE AUTHORITY CITED.
In his decision of July 28, 2006, naming Crawford County as J.L.’s legal settlement, ALJ
Tarvin stated, “Pursuant to Iowa Code Section 252.16(4) and in line with State ex rel. Palmer v.
Linn County, Iowa, on July 17, 2001, J derivatively took the legal settlement of his guardian, that
being legal settlement in Crawford County, Iowa.”
This statement is the lynchpin of ALJ Tarvin’s decision to hold Crawford County
accountable for J.L.’s expenses, and its reasoning is in direct conflict with the reasoning of the
Iowa Supreme Court in the very case cited. ALJ Tarvin seized upon the fact that under the
circumstances in Palmer, the Court found that a child’s derivative legal settlement, established
through a guardianship, survived the child’s attainment of majority. Palmer, 565 N.W.2d at 332.
However, ALJ Tarvin failed to recognize the factual and legal differences between Palmer and
the present case, differences which reveal that Palmer and its related line of cases are in fact
supporting authority for Petitioners in the present case, not for Respondents.
In Palmer, a mentally disabled girl was initially removed from her mother’s custody in
Linn County at her mother’s request and placed in a residential care facility at the age of 3. She
remained in the Linn County facility until she was 5 when she was placed in foster care also in
Linn County. When she was almost 6, Child In Need of Assistance proceedings were filed and
custody was transferred to the Department of Human Services. For the next five years she was in
foster care in Linn County. When she as 11, she was placed with a community-based provider in
Johnson County. When she was 13 years old, a special education teacher who resided in Johnson
County was appointed as her guardian. She remained her guardian at all relevant times. The
State paid for her care until she attained majority and then billed Linn County for her care. For
20
approximately four years, both the ward and her guardian resided in Johnson County.
Iowa Code Section 252.16(8) provides that a person who receives treatment or services
from a “community-based provider” does not acquire legal settlement in the host county simply
by virtue of receiving treatment there. § 252.16(8), Code of Iowa. The Iowa Supreme Court
stated that this statute was enacted to encourage counties to provide services “without fear that
the providers’ services will subject the counties to liability for the care of the mentally retarded.”
Palmer, 565 N.W.2d at 332, citing State ex. Rel. Palmer v. Howard County, 539 N.W.2d 165,
169 (Iowa, 1995).
Johnson County argued, inter alia, that this statute prevented Johnson County from
becoming the girl’s county of legal settlement, because she was receiving treatment there and
such a finding would cause Johnson County to be “penalized” for providing community-based
treatment services. Palmer, 565 N.W.2d at 333.
The Iowa Supreme Court found that the statute did not prevent Johnson County from
being named as the legal settlement of the girl, because that determination was not based solely
upon her presence in the county for treatment, but also upon the fact that her guardian resided
there. The Court stated, “The concept of legal settlement attempts to assess expenses and
responsibilities to the county which received the benefits of the individual’s residence prior to the
need for assistance.” Palmer, 565 N.W.2d at 333, citing Washington County v. Tama County,
555 N.W.2d 834 (Iowa, 1996).
The case at bar is not a case in which a child is present at a treatment facility in the same
county as his guardian, thus requiring an interpretation of § 252.16(8) as in Palmer. To the
contrary, J.L. has never set foot in Crawford County nor have either of his parents according to
the record, and Crawford county has never received any of the benefits of his residence prior to
his need for assistance. (Record, P. 38, l. 31 through P. 39, l. 7)
21
There was no dispute in Palmer that a guardianship was legally created over four years
prior to the child’s attaining majority. Here, as noted above, the juvenile court lacked
jurisdiction to create a guardianship for the sole reason that he is mentally retarded less than a
month before his majority. That jurisdiction is committed by statute to the district court sitting in
probate. In Palmer, the child and her guardian physically resided in Johnson County up until she
attained her majority. Here the record shows that J.L. never set foot in Crawford County and
Crawford County gained no benefit from his residence up to the time he attained majority.
(Record, P. 38, l. 31 through P. 39, l. 7)
The interpretation of Iowa Code Section 252.16 and the subsequent determination of legal
settlement is not clearly vested by provision of law in the Department of Inspections and
Appeals, which has no specialized knowledge, experience, or insight in the field. Such
knowledge, experience, and insight is the purview of the Department of Human Services. As
noted above, the Department of Inspections and Appeals has not been vested with construing
either Chapter 232 or Chapter 633. As stated in the Appearance and Notice of Waiver filed by
the Department, the Department of Inspections and Appeals merely provides an administrative
law judge to hear the case. (Appearance and Notice of Waiver of Department of Inspections and
Appeals, P. 2, Numbered Para. 1).
The Department of Inspections and Appeals assigns administrative law judges to hear
cases from a number of executive agencies. See Section 10A.103, Code of Iowa. There is no
guarantee that an Administrative Law Judge with any experience in the matter at issue will be
assigned to hear a particular case. See Section 10A.801(3)(b).
The Court should hold that because Palmer is distinguishable from the case at bar, it was
error for the Administrative Law Judge to rely on Palmer as the basis for his decision, thus
constituting an erroneous interpretation of a provision of law whose interpretation has not clearly
22
been vested by a provision of law in the discretion of the agency, and thus requiring relief under
Section 17A(10)(c) of the Iowa Administrative Procedure Act. Rather, because Crawford
County did not gain any benefit from J.L.’s residence prior to his need for assistance, Crawford
County should not be held to be J.L.’s legal settlement.
V.
THE DEPARTMENT OF INSPECTIONS AND APPEALS FAILED TO CONSIDER

RELEVANT AND IMPORTANT MATTERS RELATING TO THE PROPRIETY OR
DESIRABILITY OF THE ACTION IN QUESTION THAT A RATIONAL DECISION
MAKER IN SIMILAR CIRCUMSTANCES WOULD HAVE CONSIDERED PRIOR TO
TAKING THAT ACTION.
Section 17A.19(10) provides that a reviewing court “shall reverse, modify, or grant other
appropriate relief from agency action... if it determines that substantial rights of the person
seeking judicial relief have been prejudiced because the agency action is... (j) the product of a
decision-making process in which the agency did not consider a relevant and important matter
relating to the propriety or desirability of the action in question that a rational decision maker in
similar circumstances would have considered prior to taking that action.” IAPA, § 17A.19(10)(j)
(emphasis added).
The Department of Inspections and Appeals in this case failed to consider at least two
relevant and important matters that a rational decision maker would have considered prior to
taking action:
1. The Department of Inspections and Appeals failed to consider whether the case law
it relied upon for its decision was applicable to the case before it.
In the administrative hearing, Crawford County argued that the case law relied upon by
the Department of Inspections and Appeals was distinguishable from the present case. (Record,
P. 14). The Administrative Law Judge recognized this argument but expressly refused to
consider it, stating instead that it was “preserved for further review.” (Record, P. 14).
23
Unquestionably, the applicability of case law relied upon as a basis for a decision relates
to the propriety of the action and is an important matter that a rational decision maker would
have considered prior to taking action. The ALJ’s explicit failure to consider this argument
requires relief under Section 17A.19(10)(j) of the Administrative Procedure Act.
2. The Department of Inspections and Appeals failed to consider the inequity and
unfair burden to Crawford County resulting from its decision.
Similarly, Crawford County argued during the administrative hearing that “a
determination that Crawford County, Iowa, a county in which [J.L.] never resided, is the county
of his legal settlement is inequitable and unfairly burdens the county with the cost of J’s care, a
cost in excess of $100,000.” (Record, P. 14). Again, the ALJ recognized this argument but
expressly refused to consider it, stating that it, too, was “preserved for further review.” (Record,
P. 14).
Inequities and unfair burdens that may flow from a decision issued are important matters
that a rational decision maker would have considered prior to taking action, and they relate
directly to the propriety or desirability of taking action. The ALJ’s explicit failure to consider
these factors requires relief under Section 17A.19(10)(j) of the Administrative Procedure Act.
Given the Department’s lack of subject matter jurisdiction to hear the case and the other
errors outlined herein, Petitioners submit that this court has adequate bases to reverse the
decision of the Department of Inspections and Appeals without remand on these issues. In the
alternative, this case should be remanded to the Department of Inspections and Appeals with a
directive to rule on these issues.
VI.
THE DECISION OF THE DEPARTMENT OF INSPECTIONS AND APPEALS WAS

NOT REQUIRED BY LAW AND ITS NEGATIVE IMPACT ON THE PRIVATE
RIGHTS AFFECTED IS SO GROSSLY DISPROPORTIONATE TO THE BENEFITS
ACCRUING TO THE PUBLIC INTEREST FROM THAT ACTION THAT IT MUST
24
NECESSARILY BE DEEMED TO LACK ANY FOUNDATION IN RATIONAL
AGENCY POLICY.
Assuming, arguendo, that J.L. is expected to live until the year 2054 (based upon Centers
for Disease Control and Prevention, National Center for Health Statistics Life Expectancy Table),
a calculation based upon the costs already billed by the Department of Human Services of
$121,917.86 for September, 2001 through March, 2006 (Record, P. 10, Finding Number 21)
reveals that the projected future cost to Crawford County, if it is adjudicated to be J.L.’s legal
settlement, will be $1,278,492.36, for a total cost of $1,400,410.22. This conservative figure
ignores the virtual certainties of inflation, increased health care costs, and J.L.’s increased need
for care as he ages.
No party in this action denies that J.L. is entitled to proper care and support. However, to
saddle Crawford County and its taxpayers with the entire burden of that care for an individual
who has no ties whatsoever to Crawford County beyond a guardianship, purportedly established
in a Fremont County Juvenile Court mere days before his eighteenth birthday, strains the
concepts of equity and fairness beyond all reason and is in violation of public policy. Further, the
substantial costs of this individual’s ongoing care would seriously undermine Crawford County’s
ability to provide adequate services to its own residents.
As discussed previously, the action by the Department of Inspections and Appeals in this
case was not required by law, but rather was beyond the authority delegated to the agency and
based upon erroneous interpretations of provisions of law. Section 17A.19(10) of the Iowa
Administrative Procedure Act provides that a reviewing court “shall reverse, modify, or grant
other appropriate relief from agency action... if it determines that substantial rights of the person
seeking judicial relief have been prejudiced because the agency action is... (k) not required by
law and its negative impact on the private rights affected is so grossly disproportionate to the
25
benefits accruing to the public interest from that action that it must necessarily be deemed to lack
any foundation in rational agency policy.” IAPA, § 17A.19(10)(k).
The action of the Department of Inspections and Appeals in naming Crawford County as
J.L.’s legal settlement has an enormous negative impact on the private rights of the citizens of
Crawford County that is grossly disproportionate to any benefits accruing to the public interest,
and this action should be deemed to lack any foundation in rational agency policy, requiring
relief under Section 17A.19(10)(k) of the Administrative Procedure Act.
VII.
EVEN IF INTERPRETATION OF RELEVANT PROVISIONS OF LAW WAS VESTED

IN THE DISCRETION OF THE DEPARTMENT OF INSPECTIONS AND APPEALS,
THE ACTION BY THAT AGENCY SHOULD BE REVERSED BECAUSE IT WAS
BASED UPON A WHOLLY UNJUSTIFIABLE INTERPRETATION OF THOSE
PROVISIONS, IT WAS BASED UPON A WHOLLY UNJUSTIFIABLE APPLICATION
OF LAW TO FACT, AND IT WAS OTHERWISE UNREASONABLE, ARBITRARY,
CAPRICIOUS, AND AN ABUSE OF DISCRETION.
The scope of review of this court depends upon whether the interpretation of the relevant
statutes has been clearly vested by a provision of law in the discretion of the agency. Birchansky
Real Estate, L.C. v. Iowa Dept. Of Public Health, State Health Facilities Council, 737 N.W.2d
134, 138 (Iowa, 2007). The Supreme Court explained in Birchansky that if the interpretation is
not so vested, the reviewing court may substitute its own judgment de novo for the agency’s
interpretation, but if the interpretation is so vested, the reviewing Court may reverse only upon a
finding that the agency’s interpretation was “irrational, illogical, or wholly unjustifiable.” Id.
This distinction is reflected in the statutory language of Section 17A.19(10) of the Administrative
Procedure Act, which lists the grounds for relief from an agency decision and includes the
language “irrational, illogical, or wholly unjustifiable” for those grounds in which interpretation
of the statute has clearly been vested by a provision of law in the discretion of the agency. See
26
IAPA § 17A.19(10)(l and m).
In Birchansky, the Court considered whether review of Certification of Need (CON)
applications under Iowa Code Section 135.63(2)(o) was clearly vested in the Department of
Public Health. The Court stated that in order for interpretation to be clearly vested,
“we must have a firm conviction from reviewing the precise

language of the statute, its context, the purpose of the statute, and
the practical considerations involved, that the legislature actually
intended (or would have intended had it thought about the
question) to delegate to the agency interpretive power with the
binding force of law over the elaboration of the provision in
question.”
Birchansky, 737 N.W.2d at 138; citing Mosher v. Dep’t. of
Inspections & Appeals, 671 N.W.2d 501, 509 (Iowa 2003).
In Birchansky, the Court found that interpretation of the statute at issue was clearly vested
in the Department of Public Health because the Department was “expressly created by the
legislature to, among other things, make the final decision on all CON applications,” and because
“[t]he Department is also statutorily mandated with the responsibility for adopting all rules
‘necessary to enable [the Department] to implement this division,’ including procedures and
criteria for reviewing CON applications.” Birchansky, 737 N.W.2d at 138, citing Iowa Code
Sections 135.62(2)(d) and 135.72(1). In the present case, where the Department of Inspections
and Appeals is adjudicating a legal settlement under Iowa Code Section 225C.8, neither of these
factors is true: the Department of Inspections and Appeals was not expressly created by the
legislature to adjudicate legal settlement disputes and has no specialized knowledge, experience,
or insight in the field. Rather, as stated in the Appearance and Notice of Waiver filed by DIA, it
merely provides an administrative law judge to hear the case, as it does for a number of executive
agencies. See Section 10A.103, Code of Iowa. Neither does § 225C.8 contain a statutory
enabling provision for adopting “all rules necessary... including procedures and criteria...” for
adjudicating legal settlement disputes as does § 135.72(1) for the Department of Public Health’s
27
review of CON applications.
28
In October, 2007, two months after deciding Birchansky, the Iowa Supreme Court
addressed the issue again in Waterloo Educ. Ass’n. v. Iowa Public Employment Relations Board,
740 N.W.2d 418 (Iowa, 2007). In Waterloo, the Court held that interpretation of a provision of
the Public Employment Relations Act (Section 20.9, PERA, addressing mandatory vs. permissive
collective bargaining) was not clearly vested in the Public Employment Relations Board (PERB).
Waterloo, 740 N.W.2d at 420. The Court had previously found that the PERB lacked vested
authority to interpret Section 20.22 of the PERA in West Des Moines Ed. Ass’n. v. PERB, 266
N.W.2d 118 (Iowa, 1978). In West Des Moines, the Iowa Supreme Court noted that under the
Iowa Administrative Procedure Act, a trial court exercises appellate jurisdiction when it reviews
an agency action, and “[i]nterpretation of a statute is a question of law which must be determined
by the judiciary.” West Des Moines, 266 N.W.2d at 124. As was true for Section 20.9 in
Waterloo and Section 20.22 in West Des Moines, Section 225C.8 in the present case does not
clearly vest interpretation of legal settlement in the Department of Inspections and Appeals, but
merely provides a forum for adjudication. Certainly if the Public Employment Relations Board
lacks vested authority to interpret statutory provisions of the Public Employment Relations Act,
which is squarely within the purview of its expertise, the Department of Inspections and Appeals
can hardly be found to have vested interpretive authority for legal settlement statutes when DIA
does nothing more than provide an administrative law judge to hear the case.
As addressed in the arguments supra, the interpretation of Iowa Code Sections 222, 232,
252, and 633 has not clearly been vested by any provision of law in the discretion of the
Department of Inspections and Appeals. However, Iowa Code Section 225C.8 does provide that
under certain circumstances an Administrative Law Judge from the Iowa Department of
Inspections and Appeals shall hold a contested case hearing to determine legal settlement
disputes. (§ 225C.8(2-3), Code of Iowa). That is the provision which produced the
29
administrative decision in the present case from which Petitioners now seek judicial review and
relief. That provision, like the Public Employment Relations Act, merely provides an
administrative forum to litigate, rather than vesting the interpretation of the relevant statutes in
the Department of Inspections and Appeals.
To the extent this court might find that the interpretation of any of the above-mentioned
provisions is in fact vested by some provision of law in the Department of Inspections and
Appeals, the action taken by that agency still demands reversal under the Iowa Administrative
Procedure Act, Sections 17A.(19)(10)(l-n). Section 17A.(19)(10)(l) states that a reviewing court
“shall reverse, modify, or grant other appropriate relief from agency action... if it determines that
substantial rights of the person seeking judicial relief have been prejudiced because the agency
action is... (l) based upon an irrational, illogical, or wholly unjustifiable interpretation of a
provision of law whose interpretation has clearly been vested by a provision of law in the
discretion of the agency.” IAPA, § 17A.19(10)(l). It should also be noted that even in
Birchansky, where the Iowa Supreme Court found that interpretation had been vested in the
agency, the Court stated that under that circumstance, even though weight is given to an agency’s
interpretation, “the meaning of any statute is always a matter of law to be determined by the
court,” and “if the statute’s language is clear and unambiguous, we apply a plain and rational
meaning consistent with the subject matter of the statute.” Birchansky, 737 N.W.2d at 138, 139
(internal citations omitted).
Applying a plain and rational meaning to the statutory language of Iowa Code Sections
222, 232, 252, and 633, the Department of Inspections and Appeals’ erroneous interpretations of
those provisions, as outlined in the arguments supra, represent wholly unjustifiable
interpretations of those provisions, such that even if interpretations of those provisions had been
vested by a provision of law in the discretion of the agency, the decision in the case at bar would
30
require reversal by this court pursuant to Section 17A.19(10)(l).
The next two subsections of the Administrative Procedure Act, Section 17A.19(10)(m
and n), provide that a reviewing court “shall reverse, modify, or grant other appropriate relief
from agency action... if it determines that substantial rights of the person seeking judicial relief
have been prejudiced because the agency action is... (m) based upon an irrational, illogical, or
wholly unjustifiable application of law to fact that has clearly been vested by a provision of law
in the discretion of the agency [or] (n) otherwise unreasonable, arbitrary, capricious, or an abuse
of discretion.” IAPA, § 17A.19(10)(m, n).
The determination of legal settlement is an application of law to fact, and the action of the
Department of Inspections and Appeals in the present case represents a wholly unjustifiable
application of the law to the facts of the case in an unreasonable manner.
The Iowa Supreme Court has stated repeatedly that “[t]he concept of legal settlement
attempts to assess expenses and responsibilities to the county which received the benefits of the
individual’s residence prior to the need for assistance.” State ex rel. Palmer v. Linn County v.
Johnson County, 565 N.W.2d 329, 333 (Iowa, 1997); Washington County v. Tama County, 555
N.W.2d 834, 837 (Iowa, 1996); State ex rel. Palmer v. Cass County, 522 N.W.2d 615, 617-18
(Iowa, 1996).
Contrary to that statement from the Court, the Iowa Department of Inspections and
Appeals in this case has wielded the power of a legal settlement designation in order to saddle
Crawford County with the entire burden of J.L.’s care, both past and future, despite the fact that
J.L. has no past, present, or foreseeable future connection with Crawford County, its government,
or its citizens. As discussed in the arguments supra, DIA did so in contravention of statutory and
case law and without considering important and relevant matters in the case. Such an action by
the Department of Inspections and Appeals represents a wholly unjustifiable application of law to
31
fact and is unreasonable, arbitrary, and capricious on its face, demanding relief from this Court
under both Sections 17A.19(10)(m) and 17A.19(10)(n).
CONCLUSION AND PRAYER FOR RELIEF
The July 28, 2006 decision of the Iowa Department of Inspections and Appeals, holding
that Crawford County is J.L.’s legal settlement, was void for lack of subject matter jurisdiction,
was improperly based upon a guardianship that never legally existed, was improperly based upon
a misapplication of Iowa statutory and case law, was incomplete because the ALJ explicitly
failed to rule on issues that were properly before him, and works a gross inequity on Crawford
County and its taxpayers. Relief from this decision is appropriate under any one of at least seven
provisions of Section 17A.19(10) of the Iowa Administrative Procedure Act. Additionally, any
per-se rule that automatically establishes legal settlement in an Iowa county on the mere basis of
a guardianship order issued from a juvenile court in a different county, without affording the
affected county notice or opportunity to be heard, deprives the affected county of procedural due
process of law.
Petitioners therefore pray this Court find that the decision of the Department of
Inspections and Appeals is void for lack of subject matter jurisdiction.
Alternatively, Petitioners pray this Court, pursuant to Section 17A.19 of the Iowa
Administrative Procedure Act, reverse, modify, remand, or grant such other relief as may be
appropriate.
Petitioners further pray this court, upon judicial review, find that for purposes of legal
settlement, that no such legal settlement was established in Crawford County, Iowa by virtue of
the appointment of a guardian in the juvenile proceedings in Fremont County.
Petitioners further pray this court order that payments for past and future care of J.L. be
32
paid by the State of Iowa or Pottawattamie County, Iowa or Fremont County, Iowa.
33
ROGER SAILER
WRITING SAMPLE #2
State’s Pretrial Brief in Crawford County LACV035590:
Esteban Velazquez-Ramirez v. State of Iowa.
This is a brief that I wrote and submitted for a post-conviction relief action filed by a defendant
convicted of first-degree murder.
This case went to trial, was adjudicated in favor of the State, and was affirmed on appeal.
The work in this brief is entirely my own with the exception of the section appearing on pp. 22-
23, involving the issue of Equal Protection vis-à-vis the retroactivity of Heemstra. Material in
that section borrows liberally from materials provided to me by Mary Tabor, who was then with
the Iowa Attorney General’s office and is now a sitting judge on the Iowa Court of Appeals.
*
ESTEBAN VELAZQUEZ-RAMIREZ, CASE NO. LACV035590
*
Applicant,
vs. *
STATE’S PRETRIAL BRIEF
STATE OF IOWA, *
Respondent. *
* * * * * * * * * * * * *
STATEMENT OF THE CASE
At approximately 1:35 a.m. on Thursday morning, August 14, 2003, officers of the
Denison Police Department were dispatched to the parking lot of nearby Farmland Foods to
investigate the report of a shooting. When officers arrived at the scene, they discovered Dora
Hernandez lying in the parking lot with a gunshot wound to the head and a single shell casing
lying nearby. Ms. Hernandez was later pronounced dead at the scene by the Crawford County
Medical Examiner, the gunshot wound identified as the cause of her death.
At 1:38 a.m., some three minutes after the initial report of the shooting, the Applicant in
the present case, Esteban Velazquez-Ramirez (“Applicant”), appeared in the public lobby of the
Denison Police Department and reported to the dispatcher working behind the desk that he had
just shot a girl. A cursory examination of the Applicant’s 1996 Ford Contour, parked in front of
the door to the Police Department, revealed in plain view a handgun and ammunition on the front
seat of the vehicle. A search warrant was obtained and the handgun and ammunition were seized
as evidence.
After an interpreter was located, Applicant was informed of his Miranda rights and was
interviewed at the Denison Police Station by Denison Officer John Emswiler and DCI Special
Agent David Jobes. The interview was tape recorded. During this interview, Applicant admitted
that he had shot Dora Hernandez and then had driven to the Police Station, and he stated that the
gun he had used to shoot Ms. Hernandez was located on the front seat of his vehicle and that it
was still loaded.
A Complaint and affidavit were filed against Applicant on the same date, August 14,
2003, accusing him of Murder in the First Degree. On August 15, 2003, Attorney Michael
Williams of the State Public Defender’s Office in Sioux City, Iowa, was appointed counsel for
Applicant. On August 21, 2003, the Crawford County Attorney filed a Trial Information against
Applicant, charging him with Murder in the First Degree and stating that Applicant, “[h]aving
malice aforethought, willfully, deliberately and with premeditation, killed Dora Hernandez, or
while having malice aforethought, killed Dora Hernandez while participating in a forcible felony,
to-wit: willful injury as defined in Section 708.4(1) of the Iowa Code.”
A jury trial ensued, with the Honorable Edward A. Jacobson presiding, and on March 19,
2004, the jury returned its verdict finding Applicant Guilty of the crime of Murder in the First
Degree. Judgment was entered against Applicant on March 22, 2004. During trial, evidence was
presented that the applicant had armed himself with a handgun prior to driving from Columbus,
Nebraska, to Denison, Iowa, for the purpose of confronting Ms. Hernandez, who was his former
girlfriend but who had rejected him; that as Ms. Hernandez left the plant where she was working
at the end of her shift, he confronted her in the employee parking lot; that he had the handgun in
the waistband of his trousers; that he attempted to convince her that they should reconcile, a
suggestion that she rejected; that during this exchange of words, she became noticeably upset and
emotional; that when she asked her new boyfriend, who had arrived on the scene during the
confrontation, to call the police, Applicant pulled the handgun from his waistband and shot Ms.
3
Hernandez in the head, killing her.
Evidence presented against Applicant during trial included the handgun and ammunition
seized from Applicant’s car; the shell casing found near the victim’s body; the results of DCI
testing of the handgun which revealed blood splatters on the weapon which were identified
through DNA analysis as the blood of the victim, Dora Hernandez; the results of DCI testing of
the handgun and shell casing which revealed through forensic ballistic testing that the shell
casing found near Ms. Hernandez’ body had been fired from the handgun recovered from
Applicant’s vehicle; the testimony of two eyewitnesses who were present in the parking lot of
Farmland Foods at the time of the shooting; the taped interview of Applicant conducted shortly
after the crime was committed; as well as other testimony and evidence.
On April 15, 2004, Applicant filed a Motion for New Trial and Motion in Arrest of
Judgment, which Motions were overruled by the Court on April 21, 2004. On that same date,
Judgment and Sentence were pronounced against the Applicant, sentencing him to life in prison
without parole and also providing he make restitution in the amount of $10,015.24 for funeral
expenses, and also in the amount of $250,000.00 to the estate of the victim.
On May 6, 2004, Applicant filed Notice of Appeal from the judgment to the Iowa
Supreme Court, asserting that his trial counsel was ineffective for failing to specify an absence of
malice on Applicant’s part as one of the grounds in a Motion for Judgment of Acquittal presented
to the District Court. The State Appellate Defender’s Office represented Applicant on appeal.
The Iowa Court of Appeals affirmed the judgment of the District Court on March 31, 2005, and
on December 30, 2005, the Iowa Supreme Court affirmed the Decision of the Court of Appeals
and the Judgment of the District Court. Procedendo was issued by the Iowa Supreme Court on
January 24, 2006, and filed on January 27, 2006.
4
DISCUSSION OF ISSUES PRESENTED BY APPLICANT
A. Multiple versions of Applicant’s issues:
The numerous issues before the Court in this postconviction action are compounded by
the differing versions of the issues that have been raised at various times and in various
documents by the Applicant. This necessitates a brief discussion of the procedural history of the
case with regard to the issues before the court, as well as an explanation of the form of this Brief
in addressing those issues.
B. Procedural History:
First: The Application was initially filed on December 11, 2006. It alleges six
grounds for postconviction relief.
Second: Applicant filed a Supplemental/Amended Application on September 5,

2008, which incorporates the original Application and alleges two
additional grounds.
Third: On September 30, 2009, in preparation for trial and pursuant to the Court’s
Order of August 31, 2009, Applicant filed a Statement of Issues (“First
Statement”), listing issues to be presented at trial. This Statement
significantly recasts a number of the grounds alleged in the Application
and Amended Application, and also raises a number of additional grounds
not set forth in those pleadings.
Fourth: On November 20, 2009, this Court granted Applicant’s pro se Expedited
Motion to Continue Trial, and also approved the appointment of new
counsel for applicant. New counsel was appointed on December 7, 2009.
Fifth: On March 31, 2010, in preparation for trial and pursuant to the Court’s
Order of February 19, 2010, Applicant filed a second Statement of Issues
(“Second Statement”). This statement again contains issues not raised in
either the Application or the Amended Application, and again recasts a
number of the issues.
5
C. Form of Brief:
In light of the above, and in an effort to simplify the issues for the Court, this
Brief will proceed in the following manner:
First: A listing of all issues presented by Applicant, in chronological order and in

the form as set forth by the Applicant.
Second: The State’s arguments addressing the issues as raised by the Applicant in
the Second Statement, based upon the State’s assumption that these are in
fact the issues which will be raised by the Applicant at trial, stated in the
form they will be raised.
Third: The State’s arguments addressing all additional issues raised in the
Application, Amended Application, and First Statement, in the interest of
due diligence.
LISTING OF ISSUES PRESENTED BY APPLICANT
A. Grounds pled by Applicant in Application and Amended Application:
The alleged grounds for postconviction relief in this action, as set forth by the Applicant
in the pleadings, are as follows:
1. Ineffective assistance of trial counsel for not moving to suppress the statement
made by the applicant because it obtained [sic] in violation of the Vienna
Convention Article 36 and should have been inadmissible.
2. Ineffective assistance of trial counsel for not moving to suppress applicant’s
statement to police because Applicant’s waiver of his Miranda rights was
involuntary due to applicant not understanding English and therefore, not
understanding what he was signing.
6
3. Ineffective assistance of trial counsel for not objecting to the interpreter not
interpreting the applicant’s statements correctly.
4. Applicant’s Due Process rights were violated by the Iowa Supreme Court when
they ruled that the decision in State v. Heemstra, ____ N.W.2d ____ (Iowa 2006)
[sic], was not applicable to applicant’s case. Said decision was contrary to
Supreme Court law and directly against legislative intent in enacting the ‘new
law’ exception found in Iowa Code Section 822.3.” (Application, p. 3, Issue 4).
5. “The sentence imposed by the District Court is illegal because the willful injury
should have been merged into the murder charge and not been a predicate felony.
6. Ineffective assistance of trial counsel for not objecting to erroneous jury
instructions regarding willful injury.
7. The Applicant was denied his rights under the United States Constitution,
Amendment VI, to effective representation of counsel. Review of answers to a
supplementary jury questionnaire, submitted to the pool of prospective jurors,
makes quite clear that many prospective jurors did not believe that persons present
in the United States without immigration papers should enjoy the same rights as
other persons present in the United States. The defense attorney admittedly
questioned prospective jurors during voir dire about their views on this issue.
However, the defense attorney did not file any Motion in Limine to prevent the
issue from coming up during the trial. The issue of whether the Defendant was
legally present in the United States was completely irrelevant to the charge against
the Defendant of murder in the first degree. Indeed, the defense attorney
7
extraneously raised the issue during his closing. This constituted ineffective
assistance of counsel.
8. Pursuant to Iowa Code §815.7 and §815.10, the court may appoint two defense
attorneys in a “Class A” felony case. The defense attorney did not discuss this
right with the Defendant, and the Defendant did not waive this right, but the
Defendant was represented by only one attorney. The failure to consult the
Defendant about the possibility of two defense attorneys constituted ineffective
assistance of counsel.
B. Issues as set forth by Applicant in the First Statement of Issues:
1. Did trial counsel provide ineffective assistance of counsel by raising the issue of
the defendant’s immigration status?
a. The issue was not probative, not relevant, not admissible to prove the
character of a person in order to show that the person acted in conformity
with the prior criminal acts.
b. The trial counsel had an essential duty to object if the prosecution tried to
offer evidence of or even remark on the defendant’s ‘other crimes’ and to
file a Motion in Limine to do so.
c. Because there was widespread prejudice against undocumented aliens, the
trial counsel should have filed a motion for a change of venue.”
d. The prosecution’s responsibility is not to secure convictions but to see that
justice is done; was the prosecution guilty of misconduct by participating
in the selection of a biased jury?
8
2. Issues arising under State v. Heemstra, 721 N.W.2d 549 (Iowa 2006). Neither the
Trial Information nor the Verdict specify under what theory the Defendant was
charged and convicted of murder in the first degree in violation of Iowa Code
sections 707.1 and 707.2 (2003).
a. Was trial counsel ineffective in not raising Heemstra as a defense?
b. Was trial counsel ineffective in not arguing that a refusal to apply
Heemstra would violate a defendant’s rights under Equal Protection and
Separation of Powers clauses of the constitutions of the United States and
the State of Iowa?”
3. Did trial counsel provide ineffective assistance in not requesting appointment of a
second chair? Iowa law permits the defense to have a “second chair” in Class “A”
felonies (Iowa Code §815.7 and §815.10). Trial counsel was aware of this right
but did not request a “second chair.” During depositions, trial counsel provided
no rationale for not requesting a “second chair.”
4. Did trial counsel provide ineffective assistance by failing to require compliance
with the Vienna Convention? At most, trial counsel provided the Applicant with
a card about his rights under the Vienna Convention. Trial counsel did not notify
the Mexican Consulate about the arrest or trial of the Applicant. Such notification
is required under the Vienna Convention in all instances in which a foreign
national is charged with a crime. Assuming arguendo that some party other than
trial counsel was responsible for such notification, did trial counsel provide
ineffective assistance by failing to require that such notification be made? Did the
9
Crawford County Attorney commit prosecutorial misconduct by not notifying the
Mexican Consulate?
5. Was the defendant adequately informed of his Miranda rights and did trial counsel
provide ineffective assistance in not moving to suppress statements by the
Applicant?
6. Did trial counsel provide ineffective assistance in not requesting a psychological
or psychiatric examination of the defendant? The Applicant had attempted to
commit suicide, and trial counsel was aware of this. Trial counsel did not request
a mental status examination.
C. Issues as set forth by Applicant in the Second Statement of Issues:
1. Applicant was changed [sic] with a class A felony. Applicant was entitled to have
two attorneys represent him. Counsel did not discuss this with applicant and gave
no reason as to why he didn’t request co-counsel. Counsel’s failure to engage co-
counsel was ineffective and caused prejudice to the Applicant.
2. From jury questionnaires submitted it was obvious that many of the panel did not
believe that an illegal immigrant should have the same rights as an American
citizen. Counsel did not file a motion for change of venue.
3. Counsel raised the issue of Applicant’s illegal status during voir dire and also in
closing argument. Applicant’s illegal status was an issue that should not have
been revealed to the jury. Counsel should have filed a motion in limine keeping
this highly prejudicial irrelevant information from the jury. Instead counsel was
responsible for having the Additional Questionnaire sent to prospective jurors.
This Additional Questionnaire asked questions about their feelings toward illegal
10
immigrants. Many of the jurors expressed prejudice against anyone in this
country illegally. It can be assumed from the nature of the Additional
Questionnaire that jurors knew that the Applicant was an illegal immigrant.
4. Counsel was ineffective for not requesting a jury instruction that would have
required the jury to find if they convicted on a theory of felony murder or 1st
degree murder they had to specify if Willful Injury was the predicate felony. State
v. Heemstra found that Willful Injury could not be used as a predicate felony for
finding felony murder. Although the Iowa Supreme Court has ruled that this
decision is not retroactive; the Applicant raises it on the grounds that he was
denied not only due process but equal protection and wants to make sure that this
issue is preserved for federal court if an appeal to federal court becomes
necessary.
5. Counsel was ineffective for not requesting a psychological examination of the
Applicant. It is alleged that the Applicant had tried to commit suicide, but from
the record it is not possible to determine if Counsel was aware of this. The
defense presented by Counsel involved an argument that the shooting was because
Applicant had fear for his own safety and was done in what could be characterized
as the heat of passion. In order to go forward with this defense it would have been
necessary to have an expert witness testify as to Applicant’s mental state.
6. (Applicant’s Issue) Counsel was ineffective for not demanding compliance with
the Vienna Convention.
11
7. (Applicant’s Issue) Counsel was ineffective for not moving to have Applicant’s
statements suppressed.
ARGUMENTS ADDRESSING THE ISSUES SET FORTH IN APPLICANT’S

SECOND STATEMENT OF ISSUES
I.
Trial counsel did not provide ineffective assistance by failing to request a second
court-appointed attorney because he had no duty to do so; because he provided competent
representation; and because any failure to do so does not meet the requisite level of
prejudice in this case.
A. Trial counsel did not breach any essential duty to Applicant.
In order to prevail on a claim of ineffective assistance of counsel, Applicant must
demonstrate, 1) that counsel’s performance was deficient in that he failed to perform an essential
duty, and 2) that prejudice resulted, “to the extent that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,
694, 104 S.Ct. 2052, 2069 (1984); Ledezma v. State, 626 N.W.2d 134 (Iowa 2001); State v.
Thornton, 498 N.W.2d 670 (Iowa 1993); Brewer v. State, 444 N.W.2d 77 (Iowa 1989).
Furthermore, there is a presumption that the attorney performed competently: “a court
must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688-89; also see Ledezma, 626
N.W.2d at 142.
Although it is true, as Applicant asserts, that Iowa Code Sections 815.7 and 815.10 allow
for the appointment of a second attorney in a Class A felony trial, neither statute requires such an
appointment, nor does any other authority. Class A felonies are routinely handled by privately-
12
retained attorneys without co-counsel, and the fact that the statutes allow for court appointed co-
counsel creates neither a duty to request one on the part of a public defender nor a right for such a
request on the part of the Applicant. No duty existed, thus none was breached.
Furthermore, trial counsel in this matter was an experienced criminal defense attorney
who had handled, in his own estimation, more than a hundred forcible felony cases, and who was
(and still is) assigned to represent defendants in every forcible felony case handled by the Public
Defender’s office in Woodbury County, Iowa, and all Class A felonies in Crawford County,
Iowa, and several other counties, and who has specific experience trying murder cases.
(Deposition of Michael K. Williams, p. 44, L. 5 - p. 45, L. 10). Trial counsel testified during
deposition that his representation in this matter was not inferior to his usual representation.
(Deposition of Michael K. Williams, p. 54, L. 12-16).
Applicant availed himself of trial counsel’s services at all critical stages of the action, and
no breach of duty is asserted by Applicant regarding any deficiency of trial counsel’s
representation relating to his performance of such duties without co-counsel, save for the bald
assertion that trial counsel did not request a second attorney.
As indicated supra, trial counsel enjoys a presumption of competence. The unusual
assertion by Applicant that trial counsel was ineffective because he did not request appointment
of a second attorney attempts to turn that presumption on its head: in responding to such an
assertion, trial counsel is placed in the position of affirmatively demonstrating his competence in
order to justify proceeding without co-counsel, rather than retaining the presumption of
competence to which he is entitled and against which Applicant fails to allege any shortcoming
whatsoever.
13
B. Applicant’s claim of ineffective assistance fails to meet the requisite level of prejudice.
Overwhelming evidence of guilt was presented against Applicant at trial, including his
spontaneous confession in the lobby of the police department, his subsequent confession to law
enforcement officers, the presence of the murder weapon and ammunition in his vehicle, the
ballistic and DNA evidence linking the weapon to the murder, and the eyewitness testimony from
those present at the time of the shooting.
Applicant offers no showing that his representation would have differed at all with the
appointment of a second attorney, let alone that it would have differed sufficiently that “the result
of the proceeding would have been different,” as required by Strickland.
Although it is true, as Applicant asserts, that trial counsel at deposition offered no
rationale for not requesting appointment of a second attorney, trial counsel also testified during
the same deposition that there was no harm done to Applicant by not having a second attorney.
When asked why there was no harm to Applicant, the trial attorney testified, “[t]he facts were so
clearly in support of the verdict that actually occurred that, even upon reflection, I don’t see how
anything else could have been done to his benefit.” (Deposition of Michael K. Williams, p. 31,
L. 10-14).
No prejudice resulted in trial counsel’s failure to seek co-counsel, and Applicant’s claim
of ineffective assistance fails on that basis alone.
II.
Trial counsel did not provide ineffective assistance by failing to file a motion for
change of venue based on jury questionnaires, and such argument is barred because it is
not set forth in the pleadings.
14
A. The issue is statutorily barred.
Iowa Code Section 822.8 provides that, “All grounds for relief available to an applicant
under this chapter must be raised in the applicant’s original, supplemental or amended
application.” The Applicant in this case filed one original and one Supplemental/Amended
Application, neither of which raises the issue of change of venue.
B. Trial counsel did not breach any essential duty to Applicant.
First, the decision to seek a change of venue falls within the purview of trial strategy, in
which trial counsel enjoys a presumption of competence and Applicant bears the burden of
overcoming such presumption by preponderance of the evidence. State v. Dible, 538 N.W.2d
267 (Iowa 1995); State v. Hepperle, 530 N.W.2d 735 (Iowa 1995). No affirmative duty exists to
seek a change of venue, but only to provide representation within the parameters of normal
competency, which include taking adequate measures to assure a fair and impartial jury.
Trial counsel took adequate measures to assess the fairness and impartiality of the jury,
and he determined that a motion for change of venue was inappropriate. Indeed, trial counsel
was specifically asked during his deposition why he had not moved for change of venue, and he
correctly replied that in order to make such a motion, there would have to be a prima facie
showing during voir dire “that there would be an impossibility or a significant improbability of
being able to obtain a successful jury,” and that in his opinion, “there was not a basis for
challenging any of those jurors for cause and there was an insufficient showing of actual
prejudice that those persons had against my client in this particular case. So the analysis at the
time was that such a motion would be unsubstantiated.” (Deposition of Michael K. Williams, p.
12, L. 3-21). Trial counsel’s analysis is borne out by the trial record of voir dire, and trial
15
counsel has no duty to raise a meritless motion. State v. Nichter, 720 N.W.2d 547, 555 (Iowa
2006).
Subsequent to receiving the answers to the supplemental jury questionnaire to which
Applicant refers, trial counsel went to great lengths during voir dire to question jurors on their
views as to this subject, as did the Court and the prosecuting attorney within the hearing of
Defense Counsel. (See, e.g., Trial Record of examinations by trial counsel at pp. 107-113, 132-
135, 166, 324-326, 509-510; examinations by prosecutor at pp. 100, 272, 432; examinations by
the Court at pp. 87-91, 233, 563; and particularly the courts questioning of potential juror Hawes
and the Court’s subsequent dismissal of that individual for cause on pp. 579-581). A number of
jurors were excused for cause, some of them due to their responses to questions on the issue of
illegal immigration, and most of those upon the motion of defense counsel. A number of jurors
who ultimately served on the panel were among those who gave answers on the supplemental
questionnaire to which Applicant objects. However, all were questioned extensively on the issue
during voir dire by the Court, by the prosecuting attorney, and by defense counsel himself. Trial
counsel was asked during deposition why he did not move to strike these particular jurors for
cause, and he testified, “I believe in the examination of the – of those prospective jurors during
voir dire that there was no basis for cause.” (Deposition of Michael K. Williams, p. 10, L. 14-17).
Trial counsel’s decision not to pursue a change of venue was a decision of trail strategy
made within the normal parameters of professional confidence and was not a “breach of an
essential duty” as required by Strickland and Ledezma, et. al., in order to prevail on an ineffective
assistance claim.
C. Applicant’s claim of ineffective assistance fails to meet the requisite level of prejudice.
16
Under the facts of this case and the record of the voir dire conducted, even if trial counsel
had requested a change of venue, there is less than a reasonable probability it would have been
granted. Furthermore, even if change of venue had been requested and granted, Applicant was
convicted on the basis of overwhelming evidence of guilt and there is less than a reasonable
probability that the outcome would have been different. Taking both of these into consideration,
there is significantly less than a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different,” as required by Ledezma and
Strickland to prevail on a claim of ineffective assistance.
III.
Trial counsel did not provide ineffective assistance by referring to Applicant’s

illegal status during voir dire or by declining to file a motion in limine, because no essential
duty was breached and no prejudice resulted.
A. Trial counsel did not breach any essential duty to Applicant.
Trial counsel did not file a motion in limine to exclude reference to Applicant’s
immigration status, and indeed he freely remarked upon Applicant’s undocumented status during
voir dire of prospective jurors, but he did so: 1) only after the trial court had already done so sua
sponte, and 2) in a clear decision of trial strategy, in which arena trial counsel enjoys a
presumption of competence which Applicant bears the burden to overcome by a preponderance
of evidence. State v. Dible, 538 N.W.2d 267 (Iowa 1995); State v. Hepperle, 530 N.W.2d 735
(Iowa 1995).
Trial counsel repeatedly made statements to prospective jurors during voir dire such as
“Mr. Velasquez is, as we made no bones about it, not in this country legally, okay?” (Trial
Record, p. 509, L. 15-16). An examination of every such instance in the record reveals that all
17
such references were made in the context of exhortations to the prospective jurors that they
should not consider Applicant’s immigration status in deciding the case. Indeed, when asked
during deposition why he made such references to Applicant’s immigration status, trial counsel
testified:
“because I wanted to continue to impress upon the jury that

their deliberations should be based on the evidence rather
than on extrinsic considerations such as that. And it was
pretty obvious from the situation given that we needed to
have an interpreter for Spanish, that he had a Mexican
surname – or a Spanish surname, I should say, that the
inference is going to be there that he was an undocumented
foreign national, so it was pretty obvious. I mean, it was
going to be a pretty obvious thing. And one thing I would
want to do is to impress upon the jury that, yeah, he might
be that, but that has really nothing to do with the
deliberations.”
(Deposition of Michael K. Williams, p. 8, L. 7-24).
Trial counsel’s decision to raise the issue during voir dire himself, rather than filing a
motion in limine, was a clear exercise of trial strategy and did not constitute ineffective
assistance because trial counsel did not breach any essential duty to the client.
As for Applicant’s assertion that trial counsel extraneously raised the issue during his
closing argument, no evidence to support this contention appears in the record (Trial Record, pp.
9991-1011). It should be noted that Applicant’s status as an illegal immigrant was never offered
as evidence of any kind, and certainly not, as Applicant asserts in his statement, “to prove the
character of a person in order to show that the person acted in conformity with the prior criminal
acts.” (Statement, p.1, para. 1.a).
On the issue of Applicant’s illegal status as a whole, trial counsel took adequate steps to
guard against jury bias and acted within the normal range of competency, not breaching any
18
essential duty to Applicant, and thereby satisfying the first prong of Strickland.
B. Applicant’s claim of ineffective assistance fails to meet the requisite level of prejudice.
In addition to failing to meet the first prong of the Strickland test, breach of an essential
duty, Applicant’s claim of ineffective assistance also fails to meet the second prong of the
Strickland test, a showing that prejudice resulted, “to the extent that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
IV.
Trial counsel did not provide ineffective assistance by failing to request a jury
instruction regarding Willful Injury as a predicate felony to Felony Murder, or by failing
to object to the jury instruction on willful injury, because the jury instructions used at trial
were not erroneous. Furthermore, no violation of Due Process or Equal Protection
occurred because Heemstra is not applicable to Applicant’s case.
A. Applicant’s claims related to Heemstra.
Applicant makes various claims related to the case of State v. Heemstra throughout his
pleadings and Statements of Issues. In his Second Statement of issues, Applicant’s claim is
somewhat ambiguous: on the one hand, Applicant claims ineffective assistance of counsel for
failing to request a jury instruction consistent with Heemstra. On the other hand, however, in the
process of explaining this issue, Applicant states that he “raises it on the grounds that he was
denied not only due process but equal protection...,” suggesting he claims more than ineffective
assistance. The three separate claims, if they are such, of 1) ineffective assistance, 2) Due
Process, and 3) Equal Protection, are addressed in order infra.
B. No ineffective assistance claim is possible because the jury instructions used at trial
correctly stated the law at that time.
Applicant correctly states that in State v. Heemstra, 721 N.W.2d 549 (Iowa 2006), the
19
Iowa Supreme Court ruled that Willful Injury could not be used as a predicate felony for finding
felony murder. However, the Iowa Supreme Court decided Heemstra, on August 25, 2006,
whereas Applicant was convicted more than two years earlier on March 19, 2004.
Prior to the decision in Heemstra, the Iowa Supreme Court had ruled clearly and
consistently that a willful injury charge did not merge into a murder charge and could indeed
serve as a predicate felony for a conviction under the theory of felony murder. The Court first
addressed the issue and so ruled in State v. Beeman, 315 N.W.2d 770 (Iowa 1982), and then
vigorously reaffirmed that ruling in subsequent cases. See State v. Mayberry, 411 N.W.2d 677,
682-83 (Iowa 1987) (noting “[w]e rejected the legal premise [merger]... in State v. Beeman”);
State v. Ragland, 420 N.W.2d 791, 793 (Iowa 1988) (“We see no reason to retreat from our
previous decisions.”); State v. Rhomberg, 516 N.W.2d 803, 805 (Iowa 1994) (“We have now
reexamined the argument... and confirm our prior analyses.”); State v. Anderson, 517 N.W.2d
208, 214 (Iowa 1994) (“We have steadfastly declined these invitations to disavow the principles
established in Beeman... [a] settled construction...”).
The rule of Beeman and its progeny was the law of Iowa until August 25, 2006, when the
Court reversed it in Heemstra. Applicant was convicted and sentenced under the proper
rendering of Iowa law at the time of his conviction and sentencing. Indeed, the Iowa Supreme
Court reached precisely the same conclusion in Goosman v. State, 764 N.W.2d 539 (Iowa 2009).
In Goosman, just as in the present case, the trial court did not merge a willful injury charge into
a murder charge, instead allowing it to serve as a predicate felony for felony-murder, and the
Iowa Supreme Court noted when pronouncing its conclusion that Goosman was convicted under
jury instructions “which properly stated the law at the time of his conviction.” Goosman, 764
20
N.W.2d at 545.
Just as in Goosman, the jury instructions used at Applicant’s trial properly stated the law
at the time of his conviction, and counsel had no duty to object to them.
C. No violation of Due Process occurred because Heemstra is expressly inapplicable to

Applicant’s case and its inapplicability has withstood challenge on Due Process grounds.
1. Heemstra is expressly inapplicable to Applicant’s case
In Heemstra, the Iowa Supreme Court strictly limited the application of its holding,
stating the following:
The rule of law announced in this case regarding the use of

willful injury as a predicate felony for felony-murder
purposes shall be applicable only to the present case and
those cases not finally resolved on direct appeal in which
the issue has been raised in the district Court.
Heemstra, 721 N.W.2d at 558.
At the time Heemstra was decided, Applicant’s case had been fully and finally resolved
on direct appeal, the Iowa Supreme Court having issued its Opinion on December 30, 2005, and
having issued Procedendo on January 27, 2006. Moreover, in Applicant’s case, the issue had not
been raised in the district court, as expressly required for application of Heemstra.
2. Heemstra’s statement of non-retroactivity has already withstood challenge on Due

Process grounds.
On April 17, 2009, the Iowa Supreme Court decided the case of Goosman v. State, 764
N.W.2d 539 (Iowa 2009), in which it addressed precisely the issue raised by the Applicant in the
present case: “whether federal due process requires our decision in State v. Heemstra be applied
retroactively to persons whose direct appeals were final prior to the issuance of the Heemstra
decision.” Goosman, 764 N.W.2d at 540. The Court’s conclusion was that it does not. Id.
Just as the Applicant does in the present case, Goosman initiated a postconviction relief
21
action following a first-degree murder conviction in which a charge of willful injury may have
been used as a predicate felony for a conviction on the theory of felony-murder. Just as in the
present case, Goosman’s case was fully resolved prior to Heemstra. Just as the Applicant does in
the present case, Goosman alleged a violation of due process for failure to apply Heemstra to his
case. The Court engaged in a lengthy discussion of issues and decisions by other courts,
centering on the difference between a judicial decision that works a “change” in the law (which
does not implicate federal due process), versus a decision that is merely a “clarification” of
substantive law (which does implicate federal due process). Goosman, 764 N.W.2d at 544. At
the end of such discussion, the Court declared:
We conclude that Goosman does not have a federal due

process claim. Our ruling in Heemstra clearly involved a
change in law and not a mere clarification. Thus, Goosman
was convicted of first-degree murder under jury instruction,
which properly stated the law at the time of his conviction.
As a result, the limitation of retroactivity announced in
Heemstra to cases on direct appeal where the issue has been
preserved did not violate federal due process...
Goosman, 764 N.W.2d at 545.
The issue which Applicant in the present case raises as a ground for postconviction relief,
that failure to apply Heemstra to his case represents a violation of his due process rights, was
decided by the Iowa Supreme Court in April, 2009. The Court concluded that Goosman did not
have a federal due process claim, and neither does the Applicant in this case.
D. No violation of Equal Protection occurred and such argument is barred because it is not
set forth in the pleadings.
1. The issue is statutorily barred.
Iowa Code Section 822.8 provides that, “All grounds for relief available to an applicant
22
under this chapter must be raised in the applicant’s original, supplemental or amended
application.” The Applicant in this case filed one original and one Supplemental/Amended
Application, neither of which raises the issue of Equal Protection.
2. Heemstra’s limited retroactivity does not violate Equal Protection.
Equal Protection principles “require equal treatment of similarly situated people
Dissimilar treatment of people who are situated differently does not violate equal protection.” In
re Detention of Hennings, 744 N.W.2d 333, 339 (Iowa 2008) (citations omitted). When courts
consider whether their decisions are to apply to cases other than the one before the court, they
routinely distinguish between defendants whose cases are still pending on direct review and
defendants whose cases are final. See, e.g., Teague v. Lane, 489 U.S. 280, 310, 109 S. Ct. 1060,
1075, 103 L. Ed. 2d 334, 356 (1989); Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708,
716, 93 L. Ed. 2d 649, 661 (1987). The two classes of defendants are not similarly situated.
Furthermore, the Constitution does not require retrospective application of changes of
substantive law. American Trucking Assns. V. Smith, 496 U.S. 167, 177, 110 S. Ct. 2323, 2330,
110 L. Ed. 2d 148, 159 (1990); Wainwright v. Stone, 414 U.S. 21, 23-24, 94 S. Ct. 190, 193, 38
L. Ed. 2d 179, 182 (1973); State v. Davis, 525 N.W.2d 837, 841 (Iowa 1994).
The first step in any equal protection analysis is to determine what level of scrutiny
applies. In re Detention of Williams, 628 N.W.2d 447, 452 (Iowa 2001). The highest level of
review, strict scrutiny, is applied only when the challenged action classifies persons in terms of
their ability to exercise a fundamental right or when it classifies or distinguishes persons by race
or national origin. Williams, 628 N.W.2d at 452. Neither circumstance is present in the instant
case. All other classifications are subject to rational-basis review. State v. Mitchell, 757 N.W.2d
23
431, 436 (Iowa 2008). Under the rational-basis standard, a classification survives an equal
protection challenge if it is reasonable and operates equally upon each person within the class.
Id. at 437. The Heemstra decision was reasonable in limiting the impact of the new independent
felony murder rule to Heemstra’s own case and those cases not finally resolved on direct appeal
in which the issue had been raised. See Brewer v. State, 444 N.W.2d 77, 81 (Iowa 1989) (noting
that line may be drawn between the need for evenhanded justice that compels the retroactive
application of newly announced principles to similarly situated defendants awaiting appeal, and
the negative consequences flowing from repeated collateral attacks on judgments that were sound
when rendered). The Heemstra determination of limited retroactivity operates equally among
those like the Applicant in the instant case, whose convictions were final before the Court
changed its interpretation of the felony murder rule. The limited retroactive application does not
violate equal protection principles.
V.
Trial counsel did not provide ineffective assistance by failing to obtain a psychiatric or
psychological evaluation because trial counsel took adequate measures to assess Applicant
for competency and diminished capacity, and such argument is barred because it is not set
forth in the pleadings.
A. This issue is statutorily barred.
Iowa Code Section 822.8 provides that, “All grounds for relief available to an applicant under
this chapter must be raised in the applicant’s original, supplemental or amended application.”
The Applicant in this case filed one original and one Supplemental/Amended Application,
neither of which raises the issue of ineffective assistance for failure to obtain a psychiatric or
psychological examination.
24
B. Trial counsel did not breach any duty to Applicant by failing to request a mental status
examination because he took adequate measures to assess Applicant for competency and
diminished capacity.
Trial counsel testified at his deposition as to a systematic process that he routinely uses
with criminal defendants to “screen” for competence and diminished capacity, and which he
specifically used to screen Applicant. (Deposition of Michael K. Williams, pp. 20-25).
After describing the screening process, trial counsel testified as follows:
Q: And if I understand correctly, your conclusions

basically in the conversations you had with him
were that he had the cognitive ability to understand
the players and the procedures in – at trial?
A: Yes.
Q: And that he had enough mental ability, both
emotional and intellectual, to – to assist you in
defending him?
A: Yeah. I had no question about it. He just didn’t
raise a wrinkle.
Trial counsel acted within the normal range of competency and did not breach an
essential duty to Applicant.
C. Applicant’s claim of ineffective assistance fails to meet the requisite level of prejudice.
Applicant makes no allegation that a competency hearing, if requested by counsel, would have
resulted in a finding of insanity, incompetence, or diminished capacity. Thus, he fails to
demonstrate that he was prejudiced by trial counsel’s failure to request such a hearing. See
Kendall v. State, 760 N.W.2d 2009, 2008 WL4877457 (Iowa App., Unpublished Opinion).
VI.
Trial counsel did not provide ineffective assistance by failing to demand compliance with
the Vienna Convention because no violation of the Vienna Convention occurred; because
Counsel had no duty to demand compliance; because no prejudice resulted; and such
argument is barred because it is not set forth in the pleadings.
A. This issue is statutorily barred.
25
Iowa Code Section 822.8 provides that, “All grounds for relief available to an applicant under
this chapter must be raised in the applicant’s original, supplemental or amended application.”
The Applicant in this case filed one original and one Supplemental/Amended Application,
neither of which raises the issue of ineffective assistance for failure to demand compliance with
the Vienna Convention.
The only issue raised in the pleadings with regard to the Vienna Convention is a claim in the
original Application of ineffective assistance for failure to file a Motion to Suppress based on
alleged violation of the Vienna Convention, which claim is addressed infra.
B. No violation of the Vienna Convention occurred.
First, it bears mention that with regard to any alleged violation of the Vienna Convention,
Applicant claims only ineffective assistance of counsel as his grounds for postconviction relief;
Applicant makes no claim that he is entitled to postconviction relief on the grounds of any
alleged underlying violation itself. Indeed, applicant cannot so claim, as the issue was not raised
at trial or on direct appeal. See Iowa Code Section 822.8; Wenman v. State, 327 N.W.2d 216
(Iowa 1982); Bryant v. State, 309 N.W.2d 401 (Iowa 1981); Washington v. Scurr, 304 N.W.2d
231 (Iowa 1981); Houston v. State, 246 N.W.2d 908 (Iowa 1976); Rinehart v. State, 234 N.W.2d
649 (Iowa 1975).
That said, no violation of the Vienna Convention occurred. Article 36 of the Vienna Convention
provides, in pertinent part:
(b) if he so requests, the competent authorities of the receiving

State shall, without delay, inform the consular post of the sending
State if, within its consular district, a national of that State is
arrested or committed to prison or custody pending trial or is
detained in any other manner. Any communication addressed to
the consular post by the person arrested, in prison, custody or
26
detention shall also be forwarded by said authorities without delay.
The said authorities shall inform the person concerned without
delay of his rights under this sub-paragraph...” (Vienna
Convention on Consular Relations, April 24, 1963, art. 36, 21
U.S.T. 77, 100-01, 596 U.N.T.S. 261, 292.)
This authority requires that the consulate of the prisoner’s state be notified “if he so requests.”
Applicant makes no claim that he so requested notification of a consulate.
Courts remain divided on the issue of whether Article 36 creates an individually enforceable
right, and the Iowa Supreme Court has thus far declined to rule specifically on the issue, although
it has noted that “the United States Supreme Court has recently determined that international
treaties, such as the Vienna Convention, do not create domestically enforceable federal law.”
State v. Bonito, 752 N.W.2d 35, 2008 WL942279 (Iowa App.) (unpublished disposition). What
the Iowa Supreme Court has held in this regard is that “to the extent that Article 36 creates an
individually enforceable right, such right does not rise to the level of a fundamental right. We
therefore require a showing of actual prejudice before we afford any remedy for a violation.
State v. Lopez, 633 N.W.2d 774, 783 (Iowa, 2001). In Lopez, the Court adopted the test from the
Ninth Circuit in United States v. Villa-Fabela, 882 F.2d 434 (9th Cir. 1989), under which a
person asserting a violation of the Article 36 must show: 1) that he did not know of his right; 2)
that he would have availed himself of the right had he known of it; and 3) likelihood that contact
with the consulate would have resulted in assistance to him. Lopez, 633 N.W.2d at 783.
Applicant in the present case has demonstrated none of these. Furthermore, the Court in Lopez
stated that “it is extremely doubtful that the violation should result in the overturning of a final
judgment of conviction without some showing that the violation had an effect on the trial.” Id.
No such showing is made by Applicant in the present case.
27
C. Trial Counsel did not provide ineffective assistance of counsel by not requiring that
consular notification be made.
The claim regarding an alleged duty on the part of trial counsel to ensure notification of the
consulate fails both prongs of the Strickland test for ineffective assistance:
Trial counsel testified at deposition that he “almost certainly” notified Applicant of his rights
under Article 36 and “almost certainly” provided him with a card bearing the telephone numbers
to the consulate. (Deposition of Michael K. Williams. p. 13, L. 23 to p. 14, L. 4). This fulfilled
trial counsel’s obligation, if indeed any exists at all, under the Vienna Convention. The Iowa
Supreme Court addressed the issue in Ledezma v. State, 626 N.W.2d 134 (Iowa 2001), and
explicitly stopped short of stating that the Vienna Convention created an individual right to
consular notification or that failure by trial counsel to inform a client of his rights under the
Convention constitutes ineffective assistance. Ledezma, 626 N.W.2d at 150. The Court stated
only, “[t]rial counsel for foreign nationals should always inquire whether the client has been
made aware of his right to contact consul, and if not, counsel should advise his client of this
right.” Id. at 152. The Court stopped short of stating that failure even to simply inform the client
of his rights was ineffective assistance, and certainly did not create any duty whatsoever to notify
the consulate himself or to ensure that any other party did so.
Furthermore, this allegation fails to demonstrate the requisite degree of prejudice against
Applicant. No showing is made under the Vila-Fabela framework that Applicant would have
availed himself of consular services or that such services would have assisted him in any way,
and certainly no showing is made that failure of trial counsel to ensure notification of the
consulate would have overcome the overwhelming evidence upon which Applicant was
28
convicted and that therefore prejudice resulted, “to the extent that, but for counsel’s
VII.
Trial counsel did not provide ineffective assistance by failing to move for suppression of
Applicant’s statements, whether based on an alleged violation of the Vienna Convention or
an alleged violation of Miranda.
A. Applicant’s statement of the issue.
In his Second Statement of Issues, Applicant asserts that “Counsel was ineffective for not
moving to have Applicant’s statements suppressed,” but does not specify upon which grounds his
statements should have been suppressed. In the original Application, Applicant alleges two
separate grounds for suppression and claims ineffective assistance for failure to file a motion to
suppress on each of these grounds: 1) alleged violation of the Vienna Convention; and 2) alleged
violation of Miranda “due to Applicant not understanding English.” Each of these allegations is
addressed in turn, infra.
B. No ineffective assistance for failure to file a Motion to Suppress based on the Vienna
Convention.
As has been discussed supra, no violation of the Vienna Convention occurred. However, even
assuming, arguendo, that a violation did occur in Applicant’s case, the Iowa Supreme Court has
stated unequivocally that the Exclusionary Rule does not apply to violations of the Vienna
Convention, thus no duty existed to raise a meritless suppression motion. State v. Nitcher, 720
N.W.2d 547, 555 (Iowa 2006), citing State v. Wills, 696 N.W.2d 20, 24 (Iowa 2005).
In State v. Buenaventura, 660 N.W.2d 38 (Iowa 2003), the Court heard the appeal of a defendant
who claimed, inter alia, that the trial court erred in failing to suppress his statements to police
because they were obtained in violation of the Vienna Convention. Buenaventura, 660 N.W.2d
29
at 44. The Court stated, “... we now join those courts that hold the exclusionary rule simply does
not apply to evidence obtained in violation of Article 36.” Id. at 45., citing United States v.
Minjares-Alvarez, 264 F.3d 980, 986 (10th Cir. 2001); United States v. Jimenez-Nava, 243 F.3d
192, 199-200 (5th Cir. 2001); United States v. Chaparro-Alcantara, 226 F.3d 616, 621-22 (7th
Cir. 2000); United States v. Lombera-Camorlinga, 206 F.3d 882, 885-86 (9th Cir. 2000); United
States v. Li, 206 F.3d 56, 66 (1st Cir. 2000).
The Court engaged in a discussion of the issue and noted that numerous courts have concluded
that the Vienna Convention does not provide a remedy of suppression for violation of Article 36.
Buenaventura, 660 N.W.2d at 46. The Court specifically cited Jimenez-Nama, in which the 6th
Circuit noted that there is no indication in the Vienna Convention that its drafters had the
exclusionary rule in mind, “especially given the fact that even the United States Supreme Court
did not require Fifth and Sixth Amendment post-arrest warnings until it decided Miranda in
1966, three years after the treaty was drafted.” Id., citing Jimenez-Nava, 243 F.3d at 198, quoting
United States v. Page, 232 F.3d 536, 540-41 (6th Cir. 2000).
The Court agreed with this reasoning, then noted a previous Iowa decision in which the Court
found that the “notification rights of the Vienna Convention do not involve a fundamental right
of the defendant,” and then concluded, “Therefore, in the absence of any provision in the treaty
itself for suppression of evidence obtained in violation of its provisions, we refuse to create such
a remedy.” Buenaventura, 660 N.W.2d at 46 (internal citation omitted).
Furthermore, in addition to failing to meet the first prong of the Strickland test, breach of an
essential duty, Applicant’s claim of ineffective assistance also fails to meet the second prong of
30
the Strickland test, a showing that prejudice resulted, “to the extent that, but for counsel’s
First, because evidence is not subject to suppression for a violation of the Vienna Convention, as
outlined supra, even if trial counsel had moved for suppression, and even if a violation of the
Vienna Convention had been found, no evidence would have been suppressed and Applicant
would have faced exactly the same evidence on which he was convicted. No prejudice results
whatsoever.
Second, even assuming, arguendo, that trial counsel had somehow succeeded in suppressing
Applicant’s statement to authorities, the only piece of evidence that would have been suppressed
would be his recorded statement to authorities. Even absent that statement, Applicant would
have faced overwhelming evidence of guilt, including his spontaneous confession in the lobby of
the police department, the presence of the murder weapon and ammunition in his vehicle, the
ballistic and DNA evidence linking the weapon to the murder, and the eyewitness testimony from
those present at the time of the shooting.
C. No ineffective assistance for failure to file a Motion to Suppress based on Miranda.
1. No violation of Miranda occurred, therefore trial counsel did not breach any
essential duty to Applicant.
Testimony was offered at trial by three separate individuals that before Applicant was
interviewed, he was advised of his Miranda rights in the Spanish language through an interpreter
who read the Miranda warnings from a pre-printed form that contained the Miranda warnings in
both English and Spanish, and that Applicant indicated through the interpreter that he understood
these rights. (Oscar Caceres, Trial Record pp. 803-805; John Emswiler, Trial Record p. 759;
David Jobes, Trial Record pp. 860-861). The interpreter used was employed as a professional
31
interpreter and had been so employed for more than four years (Trial Record, pp. 798-800). Trial
counsel has no duty to raise a meritless suppression motion. State v. Nitcher, 720 N.W.2d 547,
555 (Iowa 2006), citing State v. Wills, 696 N.W.2d 20, 24 (Iowa 2005).
2. Applicant’s claim of ineffective assistance fails to meet the requisite level of

prejudice.
In addition to failing to meet the first prong of the Strickland test, breach of an essential duty,
Applicant’s claim of ineffective assistance also fails to meet the second prong of the Strickland
test, a showing that prejudice resulted, “to the extent that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Even assuming, arguendo, that trial
counsel had somehow succeeded in suppressing Applicant’s statement to authorities, the only
piece of evidence that would have been suppressed would be his recorded statement to
authorities. Even absent that statement, Applicant would have faced overwhelming evidence of
guilt, including his spontaneous confession in the lobby of the police department, the presence of
the murder weapon and ammunition in his vehicle, the ballistic and DNA evidence linking the
weapon to the murder, and the eyewitness testimony from those present at the time of the
shooting. The testimony of trial counsel summarized this best when he stated, “even if we had it
suppressed, given the other facts in the case, probably would be a minimal consequence as to
what he said.” (Deposition of Michael K. Williams, p. 19, L. 9-12).
ARGUMENTS ADDRESSING ADDITIONAL ISSUES NOT SET FORTH IN THE

SECOND STATEMENT OF ISSUES, BUT RAISED ELSEWHERE
VIII.
32
Trial counsel did not provide ineffective assistance by not objecting to incorrect
interpretation by the interpreter, because a competent interpreter was used and trial
counsel had no basis upon which to object.
It is axiomatic that it is not within the normal range of competency for an attorney to have
adequate foreign language skills to detect the accuracy or inaccuracy of an interpreter. Indeed, if
it were within the normal range of competency, no interpreters would be needed. This fact is
borne out by the testimony of trial counsel at deposition. When asked whether he was fluent in
Spanish, trial counsel testified, “no, that’s why I always use an interpreter.” (Deposition of
Michael K. Williams, p. 52, L. 8-25.)
The Spanish language interpreter used at trial for the benefit of Applicant was named
Frank Gonzalez, who is an experienced court interpreter who had been frequently used by trial
counsel. (Deposition of Michael K. Williams, p. 16, L. 2-4). Trial counsel testified at deposition
that he had no reason to believe that Mr. Gonzalez was not providing an accurate translation
(Deposition of Michael K. Williams, p. 53, L. 24 - p. 54, L. 2). Trial counsel had no reason to
suspect that the interpreter provided anything other than adequate translation, and therefore had
no basis upon which to enter any objection. Trial counsel did not breach any duty to Applicant
and therefore did not provide ineffective assistance. Furthermore, Applicant has alleged no
specific inaccuracies in interpretation to which trial counsel presumably should have objected.
IX.
33
The sentence of the District Court was not illegal because at the time of Applicant’s
conviction and sentencing, Iowa law did not allow merger of Willful Injury into a murder
charge.
Applicant asserts that “the sentence imposed by the District Court is illegal because the
willful injury should have been merged into the murder charge and not been a predicate felony.”
(Application, p. 3, Issue 5).
This is precisely the rule of law that was changed by Heemstra, subsequent to Applicant’s
case. Prior to Heemstra, the Iowa Supreme Court had ruled clearly and consistently that a willful
injury charge did not merge into a murder charge and could indeed serve as a predicate felony for
a conviction under the theory of felony murder (see discussion in Argument IV, supra).
X.
No prosecutorial misconduct occurred with regard to the Vienna Convention, and

any such argument has been waived and is further barred because it was not set forth in
the pleadings.
In his First Statement of Issues, Applicant poses the following question: “Did the
Crawford County Attorney commit prosecutorial misconduct by not notifying the Mexican
Consulate?”
First, this assertion has been waived by Applicant by failing to raise it at trial or on direct
appeal. See Collins v. State, 477 N.W.2d 374 (Iowa 1991); Wenman v. State, 327 N.W.2d 216
649 (Iowa 1975).
Second, this assertion is statutorily barred under §822.8 because it is not set forth in the
Application or Amended Application.
34
Third, no authority exists that a prosecuting attorney has any duties or obligations
whatsoever under Article 36 of the Vienna Convention, let alone any duty of sufficient import to
constitute prosecutorial misconduct for not performing such.
Fourth, to prevail on a claim of prosecutorial misconduct in a postconviction relief action,
Applicant must not only establish that misconduct occurred, but also that “he was so prejudiced
by the misconduct that he was deprived of a fair trial.” See State v. Bowers, 656 N.W.2d 349,
355 (Iowa 2002); State v. Greene, 592 N.W.2d 24, 30-31 (Iowa 1999). Furthermore, whether the
misconduct was isolated or pervasive and the strength of the evidence against the defendant are
appropriate considerations. State v. Belken, 633 N.W.2d 786, 802 (Iowa 2001); Greene, 592
N.W.2d at 32. In the instant case, even if misconduct had occurred, Applicant would be unable
to demonstrate the requisite prejudice in the face of the overwhelming evidence of guilt
presented against him at trial.
XI.
No prosecutorial misconduct occurred with regard to jury selection, and any such
argument has been waived and is further barred because it was not set forth in the
pleadings.
In his “Statement of Issues” in preparation for trial, Applicant poses the following
question: “[t]he prosecution’s responsibility is not to secure convictions but to see that justice is
done; was the prosecution guilty of misconduct by participating in the selection of a biased jury?”
First, this assertion has been waived by Applicant by failing to raise it at trial or on direct
appeal. See Collins v. State, 477 N.W.2d 374 (Iowa 1991); Wenman v. State, 327 N.W.2d 216
35
649 (Iowa 1975).
Second, this contention is barred under Iowa Code Section 822.8 because it is not set
forth in the Application or Amended Application.
Third, the trial record reveals no evidence whatsoever of any action by the prosecuting
attorney that even suggests an attempt or a desire to select a biased jury. To the contrary, the
record is replete with evidence that the prosecuting attorney himself examined prospective jurors
at great length in efforts to ferret out any potential bias on the issue of illegal immigration, that he
repeatedly exhorted the potential jurors that consideration should not be given to immigration
status, and that no such bias was evident in response to his questions (see Trial Transcript
generally, voir dire).
CONCLUSION
Applicant was convicted by jury of first-degree murder on the basis of overwhelming
evidence. All of Applicant’s remaining grounds for relief, as outlined in his Second Statement of
Issues, are based upon claims of ineffective assistance of counsel. None of Applicant’s claims of
ineffective assistance of counsel, even if true, demonstrate the level of prejudice necessary to
overcome the overwhelming evidence upon which he was convicted, and all fail on that basis
alone. If a claim of ineffective assistance of counsel lacks prejudice, it can be decided on that
ground alone without deciding whether the attorney performed deficiently. Strickland, 466 U.S.
at 697; State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). In addition, however, none of
Applicant’s claims of ineffective assistance of counsel demonstrate a breach of an essential duty
by trial counsel, and thus they fail on that issue also.
36
Applicant fails to present a single tenable ground for postconviction relief and his
Application and Amended Application should be denied in their entirety.
37
ROGER SAILER
WRITING SAMPLE #3
Trial Brief in Monona County CVCV026761:
Tessa Connor v. Mapleton Board of Adjustment
This is a brief I wrote and submitted in support of a Petition for Certiorari that I filed in Monona
County District Court on behalf of a private client, seeking judicial review of the decisions of the
Board of Adjustment of Mapleton, Iowa.
I have chosen this brief to submit as a writing sample because it typifies a class of cases that I
believe to be important and which do not always receive the attention they deserve: cases that
may easily be minimized by the court as inconsequential or even trivial based upon the facts at
issue, but which bear directly on significant and important rights of the litigants and therefore
matter a great deal to them. Such was certainly the case for my client.
The District Court overturned the decisions of the Board of Adjustment and granted my client the
relief she sought.
The writing and analysis in this brief are entirely my own.

.
1
TESSA CONNOR, * CASE NO. CVCV026761
Plaintiff, *
vs. * PLAINTIFF’S TRIAL BRIEF
MAPLETON BOARD *
OF ADJUSTMENT,
*
Defendant.
*
* * * * * * * * * * * * *
STATEMENT OF THE CASE
Plaintiff Tessa Connor owns and occupies a residential property located at 301 South 8th
Street, Mapleton, Iowa, also identified as Lot 1 and N 57' Lot 2, Block 27, Mapleton, Iowa. The
property is a corner lot, facing Ring Street to the north and 8th Street to the east. The home that is
situated on the property has two primary entrances: a door on the east face of the house with a
small covered porch which extends approximately six feet into the yard, and a door on the north
face of the house, also with a small covered porch which extends approximately five feet into the
yard.
Since acquiring the property in April, 2007, Plaintiff has maintained the opinion that
although the current address of the home is on 8th Street, suggesting that the home "faces" to the
east, the architecture of the home and its situation on the lot indicate that the primary entrance to
the home, as originally constructed in 1920, was intended to be the north face of the home, and
2
that it should properly "face" Ring Street to the north, and that whether or not such was the
intention of the original builder, such an orientation of her property would be her preference.
Additionally, Ms. Connor found within her home a letter, postmarked January 1968, and
addressed to a former occupant of the home at the address "710 Ring Street." Ms. Connor took
this letter to be further evidence that the home originally "faced" Ring Street to the north, rather
than 8th Street to the east, and it strengthened her resolve to orient her home in what she
considered to be the proper fashion. To that end, in 2008, Ms. Connor approached the Mapleton
City Council, informed them that she considered the north face of her home to be the "front" of
the house, that she wished to use the north door of her home as its primary entrance, and that she
requested a change of her address from 8th Street to Ring Street to reflect what she considered to
be the primary entrance to her home. The city council expressed some reservations at that time
regarding her request, and suggested that in order to effect such a change, Ms. Connor would be
required to remove or enclose the small covered porch on the east (8th Street) side of the home.
Ms. Connor indicated that she did intend to enclose the porch and that she would revisit the
issue with the Council after such work had been completed.
Then began the events which form the basis of the instant case. Ms. Connor found
herself in a difficult and bitter relationship with her neighbor to the south, Mr. Robert Blake, and
as a reaction to that difficulty she constructed a fence on her property. The fence is six feet in
height and extends along portions of the outer boundary of the lot, beginning on the west side at
the edge of an existing barn, and from there extending southward to approximately the south
boundary of her property; from there extending eastward along the entire south boundary of the
property, and from there extending northward along the east boundary of the property for a short
3
distance. Upon completion of the fence, Ms. Connor was present in her yard painting the fence
in September or October of 2008, when a gentleman unknown to her approached her and
initiated a conversation about how "nice" the fence looked, stating that he was considering
erecting a similar fence in his own yard. Although the gentleman did not identify himself at that
time, Ms. Connor soon received communication from the City informing her that a building
permit was required for her fence, and in her subsequent investigation of that communication,
she learned that the gentleman with whom she had spoken regarding her fence was in fact Tom
DeLance, recently appointed Zoning Administrator for the City of Mapleton.
Ms. Connor, wishing to comply with City regulations, visited City Hall and inquired
about submitting a building permit. The city employee who spoke with her at that time indicated
that although the fence had already been constructed, Ms. Connor was free to submit an
Application for Building Permit. Ms. Connor submitted such application on October 10, 2008.
On November 3, 2008, Zoning Administrator DeLance issued a letter denying Ms. Connor's
Application for Building Permit on the basis that he considered a portion of the fence to be
located in her "front yard," and as such that portion of the fence exceeded height limitations
according to Mapleton Code.
On November 13, 2008, Ms. Connor entered Notice of Appeal of the Zoning
Administrator's decision to the Mapleton Board of Adjustment, stating, inter alia, that "the
zoning administrator believes that the fence is in the 'front yard', which it is not." A hearing
before the Board of Adjustment was scheduled for December 4, 2008, at which time Ms. Connor
retained the undersigned to represent her in this matter.
The hearing scheduled for December 4 was continued by the agreement of counsel for
4
the parties in order to allow Ms. Connor to appear before the City Council regarding both her
request for address change and the denial of her Application for Building Permit, the primary
purpose of such appearance being to explain her position on both issues to the Council and
attempt to diffuse what she perceived to be growing hostility toward her from the City. To that
end, Ms. Connor and her attorney appeared before the Mapleton City Council at its regularly
scheduled meeting of December 10, 2008. The Council heard Ms. Connor's comments regarding
her desire for an address change and her desire for a building permit for her fence, and the
Council decided that these matters should be referred to the Zoning Administrator pursuant to
Mapleton Ordinance 17.52.100.
Pursuant to that decision by the Council, Ms. Connor's attorney sent a letter to the
Zoning Administrator, dated December 18, 2008, in which Ms. Connor formally requested a
decision from the Zoning Administrator regarding her request for an address change, and also
urging the zoning administrator to reconsider his position regarding the building permit for her
fence. In response, the Zoning Administrator issued a letter dated January 14, 2009, in which he
denied Ms. Connor's request for an address change on the basis of his belief that "the proper
numerical address" must be in the "front yard," and stating, "In my opinion, the front yard of this
residence faces 8th Street." In this letter, the Zoning Administrator also denied Ms. Connor's
request to reconsider his decision regarding the building permit for her fence, and also advised
her of her right to appeal his decision to the Board of Adjustment.
On February 10, 2009, Ms. Connor, through counsel, forwarded to the Board of
Adjustment a Notice of Appeal of the Zoning Administrator's decision regarding her change of
address, such Notice setting forth the grounds of her appeal and also suggesting that such appeal
5
be heard concurrently with her previously continued appeal regarding denial of her Application
for Building Permit for her fence.
Hearing was had on both appeals before the Board of Adjustment on February 25, 2009.
Evidence was presented, exhibits were accepted, and the Board voted at that time to affirm the
decisions of the Zoning Administrator on both issues. However, subsequent to the hearing,
discussions ensued between counsel for both parties regarding the fact that the Board had failed
to issue written findings and also regarding the fact that the Board may have been improperly
advised that it did not have the power to reverse the Zoning Administrator's decisions. The
parties agreed to conduct a rehearing, which was had on March 24, 2009. At that hearing, Ms.
Connor reviewed her primary arguments on appeal and also offered testimony. Ms. Connor
requested reversal of the Zoning Administrator's decisions, or alternatively, the granting of
variances for both her address change and her fence. The Board of Adjustment issued "Written
Findings and Decision" following the hearing, in which the Board again denied Ms. Connor's
requests.
On April 22, 2009, Ms. Connor filed a Petition for Certiorari in the Monona County
District Court, giving rise to the instant action, requesting this Court review the decisions of the
Mapleton Board of Adjustment.
STATEMENT OF ISSUES
The Board's decision to affirm the Zoning Administrator's denial of Plaintiffs
Application for Building Permit for her fence was illegal because it was contrary to
Iowa law.
6
2. The Board's decision to affirm the Zoning Administrator's denial of Plaintiff's
Application for Building Permit for her fence was illegal because it was contrary to
Mapleton Code.
3. The Board's decision to affirm the Zoning Administrator's denial of Plaintiffs
Application for Building Permit for her fence was illegal because it was arbitrary,
capricious, and unreasonable.
request for address change was illegal because the Board's finding is contrary to
Iowa Law.
5. The Board's decision to affirm the Zoning Administrator's denial of Plaintiffs
request for address change was illegal because the Board's finding was contrary to
Mapleton Code.
request for address change was illegal because it was arbitrary, capricious, and
unreasonable.
ARGUMENTS
I.
The Board of Adjustment's decision to affirm the Zoning Administrator's denial of
Plaintiffs Application for Building Permit for her fence was illegal because the
Board's finding is contrary to Iowa Law.
The Board's decision to affirm the Zoning Administrator's denial of Plaintiffs
Application for Building Permit was based upon its finding that "the front yard of the house faces 8th
Street" (Exhibit 22, p. 1). The Board found that "a portion of Tessa Conner's [sic] fence is located in
7
her front yard and therefore, it needs to comply with Mapleton Code Section 17.36.020 which limits
the height of fences in front yards to four (4) feet." (Exhibit 22, p. 1).
The Iowa Supreme Court addressed similar facts in Jersild v. Sarcone, 149 N.W.2d 179
(Iowa 1967), and found that the owner of a corner lot has the ability to choose which frontage he or
she desires to use as the "front yard," and further found that a zoning body does not have authority to
restrict that choice. In JersiId, a property owner owned a corner lot and obtained a building permit to
construct storage tanks on that lot. Neighboring landowners challenged the granting of the permit
on the basis that the proposed construction did not meet minimum setback requirements under city
zoning ordinances, based on their interpretation that the "front yard" of the property was the south-
facing frontage. The property owner countered that he considered the "front yard" to be the west-
facing frontage, which provided sufficient setback to satisfy the zoning ordinances. The District
Court found that the "front yard" of the property was indeed the south-facing frontage and ruled that
the proposed construction did not meet the minimum setback requirements. The Iowa Supreme
Court, however, reversed, stating, "we have searched through many textbooks, encyclopedias and
cases, in an effort to find authority in a zoning body to restrict the choice of a corner-lot property
owner as to which of two abutting streets he must use to face his structure or designate which yard is
his front yard. We have found none and counsel has cited none." Jersild, 149 N.W.2d at 185. The
Court further stated, "It was proper for him to choose which frontage he desired to use as his front
yard, and he chose [the west-facing frontage]." Id.
Just as in Jersild, the property owner in the present case, Ms. Connor, finds herself to be
either in compliance with applicable ordinances or in violation of applicable ordinances based
upon which frontage of her property is considered her "front yard." Just as in Jersild, Ms.
8
Connor owns a corner lot. Just as in Jersild, Ms. Connor has attempted to designate which
frontage of her property is her "front yard." Just as in Jersild, this Court should find that it is
proper for Ms. Connor to choose which frontage she desires to use as her front yard, and that the
zoning body has no authority to restrict that choice.
Defendants in this case are likely to argue that the instant case is distinguishable from
Jersild because the Mapleton Zoning Administrator, in denying the Application, relied upon his
reading of city ordinances defining "front yard" and "front lot line." However, similar
ordinances existed in Jersild and the Court stated, "[w]e find from these definitions... that there
is no attempt in this ordinance to prescribe which street a corner property owner must use as his
principal frontage or must face with his front yard." Id.
In fact, in Jersild, the applicable ordinance specifically addressed corner lots and defined
which frontage should be the "front yard," and the Court still found "no attempt" to prescribe
which street a corner property owner must face with his front yard. To the contrary in the instant
case, there is no explicit Mapleton Ordinance addressing "front yard" or "rear yard" for a corner
lot. Rather, the "front yard" of any property is defined as "the yard area lying to the front of the
principal building or between the front building line and the front lot line" (Mapleton Code
Section 17.02.680). This language is significantly more ambiguous than the ordinance in JersiId,
allowing, for example, an interpretation that the "front yard" could simply be the area lying "to
the front of the principal building." The Mapleton Zoning Administrator relied upon his
interpretation of that ordinance in his denial of Ms. Connor's Application. If the zoning
authority in Jersild lacked authority to limit a corner-property owner's choice of front yard
because an ordinance expressly defining the "front yard" of a corner lot did not prescribe or limit
9
that choice, then certainly the more ambiguous ordinance in the present case does not limit that
choice either and Mr. DeLance lacked authority to deny Ms. Connor her choice of front yard.
Ms. Connor may choose her front yard, and she has done so, designating the north-facing
frontage toward Ring Street. This designation places the fence in question entirely within her
rear and side yards, and thus in compliance with all provisions of Mapleton Code.
II.
The Board's decision to affirm the Zoning Administrator's denial of
Plaintiff's Application for Building Permit for her fence was illegal because it
was contrary to Mapleton Code.
The Zoning Administrator, as affirmed by the Board of Adjustment, reached the
conclusion that "the front yard of [Ms. Connor's] house faces East towards 8th Street" (Exhibit 4,
p. 1), based upon the definition of "front yard" in Mapleton Code Section 17.02.680 (Exhibit 4,
p. 1), which defines "front yard" as the yard area lying to the front of the principal building or
between the front building line and the front lot line. Although the Zoning Administrator does not
so state in his Denial, he presumably relied in turn upon Mapleton Code Section 17.02.370, which
defines "front lot line" in a corner lot as "that part of the lot having the narrowest front of any
street."
Plaintiff concedes that the narrowest frontage of her property is the east frontage, facing
8th Street, but does not concede that Mapleton Code requires the east portion of her property to
be her "front yard." The definition of "front yard" in Section 17.02 is in the disjunctive and
presents an either/or definition. Under that provision, the front yard of a property is either "the
yard area lying to the front of the principal building," or "between the front building and the lot
line.” In Ms. Connor's case, the "principal building" is the house, and Plaintiff submits that the
10
"front of the principal building" is the north-facing exposure of that house, as evidenced by
photographs in the record and by the home's apparent previous designation of a Ring Street
address. The fact that this is the "front of the principal building" makes the yard area lying to its
front the "front yard" under Mapleton's definition, without cause to resort to measurements of
frontages. No provision of Mapleton code requires that the "front yard" and the "front lot line"
be located on the same side of the building, and the discussion of Jersild v. Sarcone, supra,
provides evidence that the Iowa Supreme Court sees no necessary connection between the two,
either. In fact, in Jersild, the Court stated that "in any event, the rule of strict construction or
restrictions on the free use of property is applicable where the wording of the restriction is
ambiguous." Jersild, 149 N.W.2d at 185. The Mapleton ordinance defining "front yard" is
certainly more ambiguous than the operative ordinance in Jersild, and thus, as a restriction on
the free use of Ms. Connor's property requires strict construction. Such strict construction
reveals that Ms. Connor's choice of front yard as the north-facing frontage complies with
Mapleton Code, thus placing her fence entirely within her rear and side yards, which places it
also in compliance with Mapleton Code.
III.
Plaintiff’s Application for Building Permit for her fence was illegal
because it was arbitrary, capricious, and unreasonable.
The City of Mapleton's contention is that Mapleton Code Section 17.02.370 defines Ms.
Connor's "front lot line" to be the easterly edge of her property along 8th Street because it is the
narrowest frontage, and furthermore that Section 17.02.680 in turn defines her front yard, by
reference to that front lot line, as the east-facing frontage of her property.
11
Even assuming, arguendo, that the City's interpretations of those ordinances are correct,
and also assuming, arguendo, that those ordinances grant the zoning body the authority to
restrict Ms. Connor's choice of front yard as a corner property owner, in apparent violation of
Jersild, the Zoning Administrator's denial of her permit on that basis, and the subsequent
affirmation of that action by the Board of Adjustment, were arbitrary, capricious, and
unreasonable. The Board of adjustment was presented with numerous photographs of corner
properties in Mapleton, all of which appear to have front yards facing the wider frontage of the
corner, not the narrower frontage. One member of the Board of Adjustment challenged one of
the photographs, stating that the lot it depicted was not truly a corner lot. That challenge
notwithstanding, the Board of Adjustment had before it a number of photographs clearly
depicting that the rules ostensibly applied to deny Ms. Connor her Application were not so
applied against other residents of Mapleton. The city may not apply its reading of applicable
ordinances in an arbitrary and capricious manner.
IV.
Plaintiff's request for address change was illegal because the Board's finding is
contrary to Iowa Law.
The Board based its decision to deny Ms. Connor's request for an address change on its
finding, as stated, "[w]e find that Tessa Connor's front yard is 8th Street, and therefore, her
present address is correct." (Exhibit 22, p. 2).
For the reasons outlined in Argument I, supra, Ms. Connor has the choice under Iowa
Law as to which frontage she desires to designate as her "front yard," and she has so designated
the north-facing frontage along Ring Street. Assuming, arguendo, that the Zoning Administrator
12
and the Board were correct in their findings that "the numerical address for a house or structure
must be determined by its front yard," then Ms. Connor's address not only may be changed to
Ring Street, but in fact must be changed to Ring Street.
V.
Plaintiffs request for address change was illegal because the board's finding
was contrary to Mapleton Code.
The arguments outlined in Argument II, supra, apply equally to the denial of Ms.
Connor's request for address change as they do to the denial of her Application for Building
Permit.
However, there is an additional issue regarding her request for address change which
bears consideration by the Court. The Zoning Administrator, in his denial of Ms. Connor's
request on January 14, 2009, makes it clear that he based his decision on the following
statement: "I have reviewed the City of Mapleton's Zoning Ordinances, and believe the proper
numerical address for residential property in Mapleton must be in the 'front yard'." (Exhibit 4, p.
1). This assertion is echoed by the Board of Adjustment in their affirmation of the Zoning
Administrator's decision when they state, "[t]he Zoning Administrator determined that the
numerical address for a house or structure must be determined by its front yard. We agree with
that decision." (Exhibit 22, p.2).
Nowhere in the Mapleton Code is there any authority whatsoever for such an assertion.
The Mapleton City Attorney agreed in his letter of November 24, 2008, when he stated to the
City Clerk, "I have done some legal research regarding Tessa Connor's request for an address
change. I was unable to find anything in the Code, Comprehensive Plan or Subdivision
13
Regulations concerning numbering for residences and/or a requested address change.”
The Zoning Administrator's decision, based upon this conclusion, and the Board's
affirmation of that decision, based on the same conclusion, are findings that are not supported by
substantial evidence, or indeed by any evidence at all. They are at best arbitrary and capricious,
and at worst contrary to applicable authority. Absent any direction from the City Code, the
Monona County rule should be followed, which is to assign addresses based upon the frontage
of the property that is most likely to be considered the "front" of the property by emergency
responders. Plaintiff submits such is the north-facing frontage of her home, toward Ring Street.
VI.
Plaintiffs request for address change was illegal because it was arbitrary,
capricious, and unreasonable.
The arguments outlined in Argument III, supra, apply equally to the denial of Ms.
Connor's request for address change as they do to the denial of her Application for Building
Permit.
Additionally, the argument outlined in Argument V, supra, regarding the absence of any
provision of Mapleton Code as to address numbers, falls squarely under the category of arbitrary,
capricious, and unreasonable. During the rehearing before the Board of Appeals on the issue of
Ms. Connor's request for address change, counsel for Ms. Connor asked the Board of Appeals to
consider what possible negative consequence there could be in allowing Ms. Connor to change
her address to Ring Street. No answer was forthcoming, and no answer has yet to be advanced.
Plaintiff submits that the City of Mapleton has no interest whatsoever in whether her home has
14
an 8th Street address or a Ring Street address, and that denial of a request to change from one to
the other is arbitrary, capricious, and unreasonable on its face.
CONCLUSION AND PRAYER FOR RELIEF
The Plaintiff, Ms. Connor, has been denied requests for a Building Permit and an Address
Change by the Mapleton Zoning Administrator. Such denials have been affirmed by the
Mapleton Board of Adjustment. In affirming the decisions of the Zoning Administrator, the
Board of Adjustment has acted contrary to Iowa Law, contrary to Mapleton Code, and in an
arbitrary, capricious, and unreasonable manner.
Questions such as "which yard is the front yard?" and ''is the address 8th Street or Ring
Street?" may seem inconsequential at first blush. However, these questions and others addressed
by the Court in this case are extremely important to Ms. Connor, as they go directly to her rights
as a property owner in the City of Mapleton, Iowa, and her ability to freely use the property that
is rightfully hers. These are significant and important rights that are protected from restriction by
a governmental body, and Plaintiff prays that this Court will indeed protect her rights by
reversing the decisions of the Mapleton Board of Adjustment with regard to the denial of her
Application for Building Permit and the denial of her request for address change.
15
OFFICE OF THE GOVERNOR
JUDICIAL APPLICATION
Jeffrey David Bert

election district.)
Attorney/Shareholder, Brooks Law Firm, P.C.
Bettendorf, Scott County, Iowa
University of Iowa College of Law, August 1989 to May 1992, Graduation with
distinction, Juris Doctorate
Iowa State University, August 1985 to May 1989, Graduation with distinction, B.A.
English

1
a. Your position, dates (beginning and end) of your employment, addresses of law
firms or offices, companies, or governmental agencies with which you have been
connected, and the name of your supervisor or a knowledgeable colleague if
possible.
b. Your periods of military service, if any, including active duty, reserves or other
status. Give the date, branch of service, your rank or rating, and present status
or discharge status.
a. Attorney. February 1994 to present. Brooks Law Firm, P.C.
Office Locations
3425 E. Locust Street, Suite 201, Davenport, IA 52803
202 N. 2nd Street, Eldridge, IA 52748
3725 Blackhawk Road, Rock Island, IL 61201
Jeffrey McDaniel would be a knowledgeable colleague.
Associate Attorney. May 1992 to February 1994. Newport, Bell & Oxley in
Davenport, Iowa. Murray Bell was my supervisor.
Summer Law Clerk. May to August 1991. Mohr, Hackett, Pederson, Blakely &
Randolph, P.C. in Phoenix, AZ.
Carpenter’s Aide. May to August 1989. Accent Homes. DeWitt, IA.
b. I have not served in the military.
of membership.
Iowa – June 12, 1992

Illinois – May 4, 1993
United States District Court, Central District of Illinois – May 1994
United States District Court, Northern District of Illinois – February 2018
area of practice.
or other tribunals.
2
a. From May 1992 to February 1994, while employed as an associate attorney with
Newport, Bell & Oxley, my primary areas of practice were criminal defense (court
appointed and privately retained); representation of parents and children in juvenile
court proceedings (court appointed and privately retained), including serving as a
guardian ad litem for children in CHINA proceedings; juvenile delinquency; real estate;
estate planning, guardianship/conservatorship and probate; and miscellaneous civil law
matters. Because I was a new attorney, my typical clients in criminal and juvenile court
were court appointed. During this time, the firm served as closing agent for Citizen’s
Federal Bank in Davenport. Approximately 25 to 35% of my time was devoted to
abstracting, examining abstracts, drafting title opinions and resolving title issues and
explaining loan documents to clients at closing. The balance of my legal work would
have been devoted to litigation matters, civil and criminal. I did not engage in any
administrative litigation during this time period.
In February 1994, I joined my current firm. My practice with Brooks Law Firm, P.C.
has been diverse. Since joining the firm in 1994, I have tried at least one civil jury trial
or bench trial each year. With a few exceptions, the civil jury trials have involved the
defense of personal injury claims arising from automobile accidents, construction
accidents and other general negligence claims. During this time, I also “second
chaired” four medical negligence jury trials. In addition to my litigation practice, I
represent individual clients in residential and commercial real estate transactions,
drafting contracts, commercial lease negotiations and the formation, purchase and sale
of business entities in Iowa and Illinois. I also represent individual and business clients
in litigation concerning contract disputes, collections, covenants not to compete,
mechanic’s liens, real estate disputes and replevin actions. Many of my transactional
clients own small businesses located in the Quad Cities. In the past three to five years,
I have expanded my plaintiffs’ practice, representing injured persons in personal injury
and workers’ compensation cases in Iowa and Illinois.
b. Approximately 40% of my practice would best be described as transactional. This

would include representing individuals buying and selling commercial and residential
real estate, forming corporations, drafting commercial and residential lease agreements
and other contracts, reviewing contracts, forming corporations, and negotiating and
drafting asset or stock purchase agreements. Commercial litigation inevitably follows
3
from involvement in this practice and I feel my underlying knowledge of the
transactional details makes me a stronger litigator. Involvement in the commercial
litigation, in turn, assists in the drafting of the contractual agreements and documents as
the litigation provides invaluable insight regarding the importance of proper drafting,
which includes writing in a clear and understandable manner.
c. Approximately 60% of my practice with Brooks Law Firm, P.C. has involved
litigation.
d. In general, my litigation practice has been divided as follows:
Types of cases % of time
(1) Administrative 20
(2) Civil 65
(3) Criminal 10
(4) Domestic 1
(5) Juvenile 2
(6) Probate 2
(7) Other (describe): 0
e. Contested Trial matters in the last ten years.
Total # of # as sole # as chief # as

Type of trial trials counsel counsel associate
counsel
Tried before a jury 10 9 10 0
Tried before a judge 20 20 20 0
Column Total 30 29 30 0
4
f. Appeals in the last 10 years.
Appellate court* Total # # as sole # as # as # in which you

of counsel chief associate presented oral
appeals counsel counsel argument
:
Iowa Supreme Court
Iowa Court of Appeals 1 0 0 1 0
Other state appellate 1 1 1 0 0
court (identify):
Illinois (3rd District)
Throughout my career, I have always been willing to assist those who are unable to
afford legal services. I have generally performed pro bono legal work by direct
arrangement, either by request from a mutual contact or the client directly. Not
having kept track of the number of cases I have handled, I would estimate that
number to be approximately two matters a year during my career. In the last few
years, I have represented a few individuals charged with misdemeanor criminal and
traffic matters in Scott County, Iowa and Rock Island County, Illinois and have also
assisted people with resolution of issues with creditors. The examples below would be
representative of the pro bono work performed.
In 2010 and 2011, I spent a significant amount of time representing an individual
charged with felonies in Rock Island County and Henry County, Illinois. Prior to
committing the offenses in Illinois, this individual was on probation as a result of a
felony conviction in Scott County, Iowa. Due to the charges in Illinois, the Scott
County Attorney filed a motion to revoke my client’s probation. I represented the
client through two probation revocation hearings in Iowa and resolution of all charges
in Iowa and Illinois.
In 2011, I represented the 180 Zone, Inc. (n/k/a One Eighty) before the Rock Island
County Zoning Board regarding a residential facility operated by the 180 Zone, Inc.
in rural Rock Island County. The 180 Zone, Inc. is a non-profit, faith-based
organization providing services to people in crisis in Iowa and Illinois. The Rock
Island County Zoning Board approved our request to rezone the real property.
Shortly after this representation, I became a member of the Board of Directors for the
180 Zone, Inc. After joining the Board of Directors, I provided some legal services to
180 Zone, Inc. on a pro bono basis from 2012 to 2018.
5
In August of 2017, I accepted a referral from Prairie State Legal services to represent
a client facing a real estate foreclosure in the Federal Court for the Central District of
Illinois. The client does not own the real estate but is an occupant pursuant to an oral
lease with the landlord, who is acting as her own attorney in the litigation. Because
the client occupies the real estate, the client is a necessary party to the foreclosure.
This matter is still pending and in addition to representing the client’s interests in the
litigation, I have been assisting the client in finding an alternative place to live or
possibly purchase the real estate from the U.S. Government after the foreclosure sale.
In 2018, I assisted Pastor Doug Rowland with required legal work to plant a new
church, Rock Island Bible Church, in the City of Rock Island. Legal work performed
has included assisting in drafting By-Laws, submission of a 501(c)(3) application to
the Internal Revenue Service, negotiation of a lease agreement for a worship location
and closing a real estate transaction on four vacant lots donated to the church.
In February of 2018, I accepted a referral from a friend to represent an individual
whose water had been shut off to his home by the City of Rock Island. I negotiated a
resolution of the billing dispute with the city, resulting in the execution of a written
payment plan. This allowed the restoration of water service, and the client and his
family were able to return to their home.
In 2019, I completed and filed a 501(c)(3) application for Edgewood Baptist Church in
Rock Island, Illinois. The church, although formed in 1952 as a Religious Corporation,
had never formally applied for 501(c)(3) status.
Not applicable.
opinion.
Not applicable.
Not applicable.
6
Not applicable.
i. 120 days.
Not applicable.
ii. 180 days.

Not applicable.
iii. 240 days.

Not applicable.
iv. One year.

Not applicable.
Sale of Business Assets of Getmeregistered.com, LLC, The End Result, LLC and
OnlineRaceResults.com.
From February 2018 to July 2018, I represented the managers and members of the above
Iowa Limited Liability Companies in a sale of business assets to Stack Sports. Dallas
Cowboy Owner Jerry Jones is one of the equity owners of Stack Sports. Stack Sports
was represented by Attorney Varun Anil Gupte with the law firm of Morgan, Lewis &
Bockius LLP, 101 Park Avenue, New York, NY 10178-0060. The asset sale formally
closed on June 30, 2018, and involved the negotiation and drafting of an Asset Purchase
Agreement, Disclosure Schedules, Promissory Notes, Escrow Agreements, post closing
employment agreements, third party consents, IP assignments and other collateral
documents. The matter was significant due to the size and complexity of the transaction
7
as well as the length of time, and amount of work, necessary to complete the work to
close the transaction. I worked very closely with three majority unit holders and their
accountant to bring the transaction to the closing table. This matter successfully closed.
As an aside, I had the privilege of representing the same group when they purchased
these companies in 2008, and have continued to represent the companies in various
matters between 2008 and the present.
People of the State of Illinois vs. Michael Westfphal, Rock Island County, Illinois
1996 CF 657.
Michael Westfphal was charged with two counts of Aggravated Criminal Sexual Abuse
of a Minor. I entered my appearance as sole counsel on behalf of Mr. Westfphal on
August 15, 1996 and represented him through May 14, 1998, which included an
unsuccessful appeal of his conviction to the Third District Court of Appeals in Illinois on
Count II. At a jury trial presided over by Judge John Donald O’Shea on March 8 and 9,
1997, the Defendant was acquitted on Count I, but convicted on Count II. Assistant Rock
Island State’s Attorney Jessie Brockway represented the People. The matter was
significant due to the nature of the allegations (sexual abuse of a minor by an adult) and
the issues which arose during trial. At the beginning of the trial and in the presence of
the jury, Judge O’Shea, on his own motion, conducted a competency examination of the
accusing minor child. After completing the competency examination, Judge O’Shea
announced to the jury that the child was “competent” to testify. I immediately requested
a recess and objected to the Court’s decision to conduct the competency examination in
the presence of the jury. My request for a mistrial was denied. The Court ruled I had
waived the objection by failing to object prior to the exam being conducted. On appeal,
the Third District Appellate Court noted the general rule requiring objections to be made
at the time of error was not applicable when an attorney is objecting to the conduct of the
trial judge. However, the Third District found the error to be harmless and upheld the
conviction.
From my perspective as an attorney approximately five years into practice, the matter
was significant because it showed me the conduct of a judge can significantly affect a
trial, especially when the fact finder is a jury. Just as attorneys spend time preparing for a
trial, a judge must also be prepared to handle unexpected issues which arise during a trial
in a manner that does not prejudice the litigants.
In the Matter of the Estate of Frank E. Pancratz, Scott County Probate Court,
Probate No. 70759
This matter involved a will contest between three sisters/co-executors. The case was tried
to Judge Mark Smith in Scott County, Iowa District Court on May 11, 2011. Dennis
Jasper represented one of the beneficiaries and I represented the other two beneficiaries. I
was involved from May 2010 until resolution of the estate after the contested hearing on
May 11, 2011. The decedent died on March 1, 2009. His will dated October 30, 1964,
was admitted to probate on March 12, 2009. Shortly before the decedent’s death, the
8
decedent’s three daughters (beneficiaries) met their father at the hospice where the
decedent signed an Addendum to the Will. The Addendum was drafted by one of the
daughters, a non-lawyer, at their father’s bedside. Of particular significance, the
Addendum specifically devised one piece of real estate to each daughter, including the
homestead. In disposing of the property, the Addendum used the language, “I would
like…” The Court ruled the language “I would like…” in the Addendum was advisory
rather than obligatory. Therefore, the Addendum did not take precedence over the 1964
Will.
This matter was significant because had the Court found the Addendum controlled the
disposition of the estate, the daughter receiving the homestead would have avoided
sharing in the debts of her father and expenses of the estate administration. It was also
significant because it demonstrated the importance of using proper language when
drafting documents, and the impact caused by improper drafting. In this case, the impact
was the strife between the three sisters after the death of their father as well as the
potential disparity in the distribution of assets had the Addendum been upheld as valid.
My non-litigation experience would enhance my ability to serve as a judge in many ways.

I have highlighted three ways below.
First, non-litigation legal experience adds to breadth of knowledge of the law. Many
disputes arise from underlying business arrangements. As an attorney, I have drafted
contracts, formed corporations, drafted and reviewed by-laws, operating agreements,
shareholder agreements, employment agreements and buy-sell agreements. Involvement
as an attorney in the drafting and formation of varied business arrangements provides
valuable insight when relationships sour and litigation ensues. Iowa formed a Business
Specialty Court in December 2012 to handle these disputes. I believe this indicates the
need for judges with underlying transactional legal experience.
Second, my willingness and ability to concurrently handle an active transactional and

litigation practice demonstrates an ability to effectively manage time, meet deadlines,
manage client expectations and deliver high quality legal representation. The
transactional needs of clients tend to be immediate and time sensitive. Litigation is
subject to deadlines established by the Rules of Civil Procedure and Court Order. Many
times, the needs of a transactional client clash with litigation deadlines of a different
client. I have been able to successfully juggle the legal and time management demands
surrounding this clash. As a result, I believe I am fully equipped to manage the variety of
demands a judge faces on a daily basis related to writing decisions, conducting bench and
jury trials and addressing administrative responsibilities and all other challenges faced by
a judge on a daily basis.
9
Finally, since 2012, I have served as a volunteer member of the Bettendorf Planning and
Zoning Commission. Since the inception of my law practice in May of 1992, I have
always had an active transactional real estate transaction practice. The Planning and
Zoning Commission handles zoning, subdivision site plan review, land growth, plat
requests for land within the City. Part of the process requires citizens to bring these
requests before the board for public review, comment and discussion. I would describe
my service on this Commission as quasi-judicial and enhances my ability to serve by
providing experience reviewing submissions, listening patiently to concerns of citizens,
and reserving judgment until a full discussion has been conducted on the request
presented.
I have never held public office or been a candidate for public office.
and title(s):
b. Your title.
c. Your duties.
I am not currently an officer, director, partner, sole proprietor, or otherwise engaged in

the management of any business enterprise or nonprofit organization other than a law
practice.
Iowa State Bar Association

Scott County Bar Association
Illinois State Bar Association
Rock Island County Bar Association
Iowa Association of Defense Counsel
Illinois Defense Trial Counsel
10
or meetings.
Fund Distribution Committee Volunteer, United Way of the Quad Cities, (1997)
From 2001 to approximately 2013, I served as a volunteer youth basketball coach
from mid-October to late February or early March of the following year. During this
time, I coached teams for both my boys and my daughter, Olivia.
From June 2003 to October 2012, I served on the Board of Directors at the Vera
French Mental Health Center in Davenport, Iowa. During the time on the Board, I
also served on the Executive and Legislative Committees.
From June 2008 to the present, I have served on the Quad City Marathon Race
Committee as the Illinois Water Station Chairperson. My responsibilities include
recruiting volunteers to work at four water stations on the Illinois side of the river on
race day, attending committee meetings throughout the year to plan the race,
arrangement of a water source for each station and race day cleanup. On race day, my
entire family usually works a water station during the event and assists with cleanup
of the course after the event is concluded.
From May of 2012 to present, I have been a member of the Bettendorf Planning &
Zoning Commission. The Bettendorf Planning and Zoning Commission reviews and
considers rezoning applications, final and preliminary plat applications, sit e
development plans and other zoning matters in the City of Bettendorf and makes a
recommendation regarding those matters to the Bettendorf City Council.
From approximately 2012 to 2014, I served as a Contributing Member of the
Professional Advisory Council for Midwest Technical Institute in Moline, Illinois. In
addition to serving on the Advisory Board, I also served as a volunteer guest lecturer
at Midwest Technical Institute to speak to pharmacy technician students about risk
management and general legal issues relevant to working in a pharmacy.
From 2012 to October 2018, I served on the Board of Directors of One Eighty, a non-
profit corporation. For over ten years, One Eighty has been serving people in the Quad
City area who are struggling with crisis, poverty or addiction.
In June of 2019, my family joined the Outing Club in Davenport, Iowa as social
members.
I have never held a judicial office.
11
See attached writing samples.
OTHER INFORMATION
None.
In October 2010, I delivered a presentation titled “Liability for Animals” at a continuing

legal education seminar sponsored by the Rock Island County Bar Association. The
presentation was delivered to attorneys seeking continuing legal education credits. The
presentation focused on the Animal Control Act in Illinois and common law liability for
dog bites and other animal attacks.
Twitter - @bertyjdb
LinkedIn – Jeff Bert
Snapchat – Jdbert67
Goodreads – Jeff Bert or jdb@brookslawfirmpc.com
Quad City Times Outstanding Journalist (1985)

First Place, Midwest Writing Center Iron Pen Competition – Fiction (February 2016)
12
District Court Judge Thomas Reidel Judge Reidel and I were

classmates at the University of Iowa College of Law, Class of 1992. In 2011, Judge
Reidel presided over a civil jury trial where I successfully defended, with co-counsel, an
owner of a storage facility accused of civil conversion.
District Court Judge Henry Latham Shortly after I began practicing

law, Judge Latham and I met on the first floor of the Scott County courthouse. At that
time, we were both serving on the Court appointed lists for criminal and juvenile court
matters. We later became law partners when Judge Latham joined my law firm and
practiced law until he was appointed to the Bench in 2013.
Jeffrey C. McDaniel Jeff McDaniel and I have practiced law together

since February 1994. We are friends and law partners.
Joyce Yaddof Joyce was my trusted legal assistant from 1998 until her
retirement in 2015. She would be uniquely qualified to comment on my qualifications
and character.
Jennifer Olsen Jennifer and I jointly represented clients in a civil

litigation matter in Scott County in 2013 and 2014. The litigation was complex and
emotional for the clients.
Robert S. Gallagher Bob and I coached little league baseball together

and have had frequent dealings in the legal arena for a long time. When Bob was elected
mayor of Bettendorf, he recommended to the City Council my appointment to the
Bettendorf Planning & Zoning Commission.
The Mission of the Iowa Judicial Branch is - “Administering Justice under the law
equally to all persons.” I believe in the mission of the Iowa Judicial Branch. I
believe I possess the breadth of experience, temperament, background, integrity and
knowledge necessary to honorably and faithfully serve the people of Iowa as a
member of the judiciary.
I am not a candidate who will claim I always aspired to be a Judge. Upon graduation
from law school, I would never have imagined that I would be making this
Application. I am the first in my family to achieve a degree in law. My parents did not
attend college. I possessed no road map to guide me to this point. The lack of a
college education, however, did not prevent either of my parents from achieving
success in their respective careers – my mother as a senior Vice-President for IH
Mississippi Valley Credit Union before her death in 2003 and my father as the CEO
13
for the Iowa Association of Realtors before his retirement in 2016. My parents taught
me the value of hard work, integrity, diligence and perseverance.
In the last few years, I felt an internal pull to apply for this position. At the risk of
sounding bold, I am seeking this position because I believe I have something to offer –
because I believe my appointment would enhance the Court. In preparing this
Application, I have struggled to separate the answer to this question and the one that
follows. In my view, the answer to the question of “Why are you seeking this position”
can only be – Because I believe my appointment will enhance the Court!
In my opinion, serving as a judge is one of the most important public service positions in
society. Most people only encounter a judge when trouble has arrived in their lives.
Entanglement in the legal system can be daunting, uncertain and life changing. Therefore,
when life’s circumstances require Court involvement, justice must be administered
equally.
Having completed my twenty-seventh year of practice, I possess the breadth of
experience to effectively serve the public as a Judge. I have always approached my
career as an attorney as that of a “Counselor” or problem solver. For the client who has
been sued, that means seeking to dismiss, settle or win the lawsuit. For the client who
has been wronged, that means pursuing a claim against the responsible party or, if
necessary, filing a lawsuit to seek justice. During the course of representing one client,
attorneys can often wear many hats – advocate, mediator, sympathetic ear, teacher,
intermediary, mouthpiece, psychologist, and life coach. Many client problems cannot
completely be solved by the legal system and, in fact, are best solved before the matter
ever reaches the courthouse. No matter the problem, all clients seek closure and
resolution in an expedient and cost-effective manner, if possible.
As technology shrinks the world and alters the manner and method by which information
is delivered, a citizen, when cast into the legal system, is often shocked by the snail’s
pace at which justice is delivered (or at least perceived to be delivered). Fewer civil
claims are being resolved at the courthouse. Alternative dispute resolution (ADR), in the
form of mediation and arbitration, continues to grow in popularity and use. The rise in
use of ADR is due to many factors - two of those factors are certainly the cost to
prosecute a case through trial and the length of time required to get to trial. Throughout
my career, I have taken hundreds of depositions and used mediation and other forms
of ADR to resolve conflicts, including serving as an arbitrator in the Fourteenth
Judicial District of Illinois arbitration system since its inception in 2001. My
extensive experience with ADR will enhance the judicial system as the court
implements additional programs to supplement its traditional role in society.
In order to administer justice, the court must provide a fair, orderly and peaceful
means of resolving the disputes of its citizens. Some changes in the delivery of
justice have already occurred, with the addition of the Business Specialty Court in
December 2012 and the creation of the expedited civil action in January 2015. As
additional changes are discussed and implemented, my experience in private practice
will allow me to contribute to establishing additional systems that are fair, efficient
and effective in the delivery, and administration, of justice.
14
There will always be civil disputes which are not capable of resolution through ADR,
family law matters which cannot be resolved by agreement or criminal charges which
cannot be resolved through plea bargain. Those disputes will always require a traditional
trial or hearing in court. As an attorney with civil and criminal jury trial experience, I
understand the importance of allowing the attorneys to try their cases. I understand the
need for the judge to remain impartial but to act as the “referee” to ensure the rules of
civil or criminal procedure and the rules of evidence are followed. I also understand the
need for consistency so attorneys know what to expect when they enter the courtroom.
Maintaining the integrity of the justice system depends upon consistency in the
application of the law. It also requires that the law be followed and applied as written,
even if the result is not the result the Judge would reach if the judge had drafted the law.
The demeanor of the judge plays a role in a citizen’s perception of justice. A trial or
hearing in court can be an anxious and upsetting experience. From the bench, a judge
must convey a strong sense of order and fairness. From my experience as an advocate and
counselor, I understand the importance of providing closure to a client. If the controversy
has made it to the courthouse, closure requires a decision from a judge. In many cases,
closure is more important than the decision rendered. A decision allows people to move
forward with their lives. I will strive to issue fair and prompt decisions based upon the
evidence presented in court and I will follow the law when making those decisions.
As an advocate, I believe one of the most important jury instructions given to a jury is
General Instruction 100.2. That instruction states:
As you consider the evidence, do not be influenced by any personal sympathy, bias,
prejudices or emotions. Because you are making very important decisions in this case,
you are to evaluate the evidence carefully and avoid decisions based on generalizations,
gut feelings, prejudices, sympathies, stereotypes, or biases. The law demands that you
return a just verdict, based solely on the evidence, your reason and common sense, and
these instructions. As jurors, your sole duty is to find the truth and do justice.
This instruction succinctly summarizes the foundation of our justice system. Our justice
system requires the appointment of judges who will follow the law and resolve factual
matters according to these principles. I will adhere to these principles. I will seek to find
the truth and do justice and I will uphold the mission of the Iowa Judicial Branch.
President John F. Kennedy is quoted as saying: “To those whom much is given, much is
expected.” While many consider a legal degree to be an achievement, I consider it to be
a blessing. With that blessing comes responsibility to use that degree, not only to support
a family through a career in law, but also to better the community and State of Iowa.
Throughout my career, I have sought opportunities, outside of my law practice, to use my
degree and knowledge for the public good.
15
From 2003 to 2012, I served on the Board of Directors at the Vera French Mental Health
Center. During those nine years of service, I acquired a solid understanding of the mental
health issues that touch the lives of every citizen. From 2012 to October of 2018, I
served on the Board of One Eighty, a non-profit entity in Iowa and Illinois dedicated to
helping people overcome poverty, crisis and addiction. In many ways, the transition from
the Board of Directors at Vera French to One Eighty was seamless. Issues of mental
health and addiction play a role, sometimes a large role, in many problems that eventually
lead people to the local courthouse. In many cases, issues of addiction and mental health
are intertwined. My nearly fifteen years of continuous experience on the Boards for Vera
French and One Eighty certainly enhance my understanding of these issues and will
enhance my ability to effectively serve on the court. These experiences would make me
uniquely qualified to serve on the Drug Court and the Mental Health Court.
My legal experience, combined with my service outside my traditional practice,
demonstrates a commitment to using my talent and gifts for the betterment of others. If
selected, I would seek to continue my involvement outside the traditional role of a judge,
as allowed by the cannons of judicial ethics and approved by the Chief Judge. My degree
in law has given me opportunities not available to others. I am honored to have been
given much and accept the responsibility to use those gifts to serve others.
26. Provide any additional information that you believe the Governor should know in
considering your application.
As part of this application process, I have asked friends, family, attorneys, and clients to
provide letters of support. Through those letters, I hope to paint a portrait of who I am
and what kind of judge I will be if fortunate enough to earn the confidence of your
appointment. I am seeking this position because I believe I am qualified to serve and
because my life experience to this point has prepared me to serve the citizens of Iowa. If
selected, I will honor the Constitution of the State of Iowa and the United States and I
will serve with integrity and in a manner that brings honor to the judicial system.
16

Ahlers, Parrish, Sailer, and Bert's Applications To Judicial Nominating Commissions

Caricato da

Informazioni sul documento

Titolo originale

Copyright

Formati disponibili

Condividi questo documento

Condividi o incorpora il documento

Opzioni di condivisione

Hai trovato utile questo documento?

Questo contenuto è inappropriato?

Copyright:

Formati disponibili

Ahlers, Parrish, Sailer, and Bert's Applications To Judicial Nominating Commissions

Caricato da

Copyright:

Formati disponibili

STATE JUDICIAL NOMINATION COMMISSION

AND OFFICE OF THE GOVERNOR

1. State your full name.

Paul Brian Ahlers

2. State your current occupation or title. (Lawyers: identify name of firm,

District Associate Judge, District 2B (Webster City)

3. State your date of birth (to determine statutory eligibility).

4. State your current city and county of residence.

Fort Dodge, Webster County, Iowa

Colleges and Law Schools Dates Degrees Date of

6. Describe in reverse chronological order all of your work experience since

Dates Description of Work Experience

Admitted to the Iowa bar: 6/1994 to present (no lapses or terminations)

Dates Description of Law Practice

County Case Number Case Name Date

I have never had a matter under advisement long enough to require it to be

ii. 180 days.

iii. 240 days.

Significant legal matter #1:

Significant legal matter #2:

My primary non-litigation legal experience consists of transactional work (e.g., contract

Description of Group Committees / Offices Dates

~Dates Organization Nature of Involvement

Description of Honor, Prizes, or Award Educational Date Received

Name Telephone number Nature of Relationship

27. Explain why you are seeking this judicial position.

28. Explain how your appointment would enhance the court.

By way of additional background information, I have two children. My son recently

No. 2-717 / 11-2081

CAMILLA RENEE THOMPSON,

Camilla Renee Thompson appeals from her sentence following her

conviction of operating while intoxicated, first offense. SENTENCE VACATED;

REMANDED FOR RESENTENCING.

Robert W. Thompson of Thompson Law Office, Reinbeck, for appellant.

Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant

Attorney General, and Randall J. Tilton, County Attorney, for appellee.

Considered by Eisenhauer, C.J., and Doyle and Tabor, JJ.

Camilla Renee Thompson entered a plea of guilty to operating while

relying on her failure to timely complete a substance abuse evaluation.

as grounds for denying her request for a deferred judgment. Accordingly, we

vacate her sentence and remand for resentencing.

I. Background Facts and Proceedings.

On June 3, 2011, a deputy sheriff stopped Thompson for having expired

Obtaining a substance abuse evaluation was not ordered as a condition of her

first-offense OWI, in violation of Iowa Code sections 321J.2(1)(a), (b), and

her right to a speedy trial and pleading not guilty.

timely manner may be treated as contempt of court and/or be considered by the

Court in terms of the sentence to be imposed.”

On October 11, 2011, Thompson filed a written guilty plea, which

district court accepted Thompson’s guilty plea. A sentencing hearing was

scheduled for November 1, 2011. The order also stated:

Defendant shall obtain a substance abuse evaluation

On November 1, 2011, Thompson requested her sentencing hearing be

complete her substance abuse evaluation.”

judgment, stating a deferred judgment was not appropriate under the

judgment is appropriate in light of Defendant’s failure to diligently take

responsibility for her actions in this case by repeatedly failing to procure a

substance abuse evaluation report in a timely manner.” The court sentenced

Thompson to two days in jail and a $1250 fine.

On November 22, 2011, Thompson requested the court reconsider its

ask why she had failed to complete the evaluation.

The district court entered its order denying Thompson’s application to

reconsider on November 28, 2011. The order states in part: