New Supreme Court Opinions

The Iowa Supreme Court released released three new opinions today. One was an attorney discipline case dealing with mental health issues. Probably worth reading.

 The one I find most interesting is In the Interest of A.W. and S.W., No. 60/06-1074. This is an appeal from an order allowing the Winnebago Tribe of Nebraska to intervene in an Iowa CINA case. Some of the issues include whether or not a county attorney can represent the State of Iowa in an appellate proceeding of this nature, whether a county attorney can challenge a state statute as unconstitutional and whether the Iowa Indian Children Welfare Act is unconstitutionally overbroad.

The Court determined that the first two questions I mention should be answered in the negative. The county attorny is a creature of statute, and statutory authority only gives the county attorney the ability to practice in appelate courts when the county is a party. In all other appellate cases, the Attorney General represents the state’s interests.

The Court also determined that it would be inappropriate for the county attorney “to appear as a litigant challenging an Iowa statute” in juvenile cases. The Court had previously held that this was the case outside of juvenile court.

The Court also determined that the Iowa ICWA violates the Equal Protection principles contained in both the U.S. and Iowa Constitutions. The Court construed the Iowa Constitution using the same standards that the U.S. Supreme Court has established for the U.S. Constitution, apparently because neither party suggested a different way to do it.

As background, the Iowa ICWA allows Tribes to intervene in juvenile court proceedings where Native American children are involved. The Iowa ICWA piggybacks off of the Federal ICWA in giving this power. The Iowa ICWA goes farther, though, and allows tribes to intervene in cases not covered by the Federal ICWA.

Generally, the child involved must be at least one quarter Native American before the tribe may intervene. In this case, the children were one eighth Native American, but the Iowa statute allowed the tribe to be involved. The Court decided that this circumstance created a new racial classification impermissible under Federal law. Therefore, strict scrutiny applied and the statute failed to pass (as most do under strict scrutiny).

I have never been involved in a case where the ICWA appplied, but I have heard from others that it imposes some procedural and practical difficulties on the parties to the case. I imagine people who practice a lot in juvenile court, especially those in the county attorney’s offices, will be fairly pleased with this decision.

New Court of Appeals Opinions

The Iowa Court of Appeals released a number of new opinions today. One that I find interesting is Erickson v. Raheel Foods, No. 7-764/07-0466. In that case, the Court upheld a damages award of $581 for the cost of a dental visit and anxiety after Ms. Erickson bit into a Kentucky Fried Chicken sadnwich and found a metal strand from a Brillo pad. Since Ms. Erickson was unconvincing as to other injuries, pain and suffering, and since there was substantial evidence to support the damage award, the Court determined that the damage award was appropriate. $581…the dangers of contingent fee cases.

Probate Claims Update

I posted earlier this month about an issue that I ran into concerning a surviving spouse’s ability to recover the full outstanding amount of joint debts from the decedent spouse’s estate. I hadn’t done the required reading when I posted that, but I have now.

As I suspected, the caselaw is pretty clear that the estate is liable for contribution, but none of the cases the attorney for the surviving spouse is banking on goes beyond 50%.

Now, the real question is whether it’s worth it in my case to fight about. And if it’s not, can I convince my client of that fact?

The Traveling Attorney

There are a few attorneys in my firm who travel all over Eastern Iowa. One, in particular, who I think must work in about every county West of Highway 63 and South of Highway 20.

I was going to be that guy. Before I joined the firm, I was on the State Public Defender’s contract list in eight different counties. When I moved into the firm, I pared it to three. Then just one.

Since moving my practice to Iowa City, I think I probably need the revenue from court appointments to meet my goals. So, I’m putting myself back on the lists in four counties.

I don’t like the idea of traveling all over creation, though.  I think I would lose all of my files and miss appointments because I had two other things scheduled for the same time in two different counties.

Dealing with different sets of juges can be an issue, too, I think. I’m pretty comfortable with most of the judges in the 6th District. Especially the Associate Judges. I’m not sure I want to start all over with two or three other sets.

For the most part, I’ll probably stick with the 6th District. But I’ll probably try to branch out a little bit into other districts, if I can get appointed.

Juvenile Court Surprise

I was meeting with a client today befre a hearing in juvenile court. He found out a few months ago that he has a daughter and that his daughter is the subject of a CINA action. The mother, after being compliant with the Department for some time, has now decided that she didn’t want anyone telling her who she could or could not hang out with. Therefore, she’s decided to cooperate with a termination of her parental rights.

My client has not had any visits with his daughter. By the time the Department contacted him about setting up visits, the mother had started talking about termination. He decided not to start visits because he didn’t want to get attached to the child. He also said that he would give up his parental rights so the child could have a good home.

As I sat there with him in the courtroom, with the child playing ten feet away, I could tell that he wanted to be able to have some time to get to know her…to get attached. But he chose not to. He knew tht he can’t give her the home that the people who want to adopt her can.

Maybe his motives aren’t completely altruistic. By giving up his rights he doesn’t pay child support or deal with the terrible twos (the child is right around two years old). But he also knows that he may never see the child again. The little blonde girl in the red dress with the black shoes. He’s giving up what he could have so she can have more.

Not something I’m used to seeing in Juvenile Court.

Happy Thanksgiving

It’s turkey time and I’m making a list of some of the things for which I’m thankful. I’m thankful to have a job working for good, well-respected attorneys. I’m thankful that I’m a licensed, practicing attorney.

But, professionally, most of all, I’m thankful that there are all of those people out there who break laws and get caught, have issues taking care of their children and have numerous violations of zoning codes, so I can be paid by the Public Defender’s Office to represent them. I’m also thankful for all of those people who want to plan for their and their children’s futures, get married or unmarried, sell or buy a home or start a business, so they can pay me to create documents for them.

Finally, I’m thankful to be working in a place where Due Process and Equal Protection of the laws are not only required, but routinely recognized by an independent court system. Whether we truly believe we get justice from our legal system, it certainly something to behold; and I think it’s something to be proud of.

 Happy Thanksgiving

New Supreme Court Orders

Justice Ternus signed a couple of orders that were released yesterday. One allows advertising of the fact that an attorney accepts clients in a limited representation capacity. The other allows advertising of Juvenile Law as a field of practice.

I guess I’m a little surprised that Juvenile Law hadn’t been a recognizable field of practice prior to now. Many of the attorneys I know who practice in the basement in Linn County practice almost exclusively in the basement in Linn County. I suppose a lot of places in Iowa are much different than Linn County.

City Meetings

For those people who represent cities, or have a reason to go to City meetings occasionally, there is a lot of time spent sitting and waiting for your issue. For instance, I represent a City and was at a meeting tonight. It started at 7:30 pm and ended around 11:15 pm. They paid me to be there for the whole thing and I spoke once.

I can’t say that I mind the billable hours, but it seems like a lot of time for very little input. I think my City, and a lot of others, prefers to have me there in case an unexpected issue comes up, or in case a discussion goes to a place where legal advice might be appropriate. But, in those instances, I would most often tell them theat I need to research the issue before I can give them an answer.

So, it seems that, a lot of the time, I could give my input in written form and be available by telephone if they have questions. I suppose it’s a decision for the Cities. I wouldn’t practice municipal law if I wasn’t willing to go to the meetings, but I feel somewhat unnecessary at a lot of meetings.

I might also prefer an earlier starting time.

The Supremes

The Iowa Supreme Court issued two rulings today. Both were criminal appeals and both were affirmed. Both appellants claimed ineffective assistance of counsel and in both cases, the Court determined that there was a sufficient record made below to dispose of the claims, rather than preserve them for post-conviction relief. In one of the cases, State v. Boggs, No. 42/05-1625, Justice Cady, as he often does, provided a thorough history of Double Jeopardy before deciding that Mr. Boggs was not put in jeopardy twice.

Pursuant to an agreement with prosecutors, Boggs was convicted after trial on the minutes of Possession of Methamphetamine (less than 10 grams) with intent to deliver, rather than the original and greater charge of Possession of Methamphetamine (more than 5 grams) with intent to deliver. While the appeal (contemplated by the agreement, hence the trial on the minutes) was pending, the Court remanded for new trial after determining that the trial court failed to make a record concerning Boggs’ request to represent himself.

On remand, prosecutors decided to go back to the original greater charge and Boggs was convicted by a jury. The Court determined that, because Boggs wasn’t “tried” on the greater charge the first time, his conviction on the lesser charge did not constitute a conviction of a lesser included offense, so it wasn’t a violation of Iowa’s Double Jeopardy statute or the Double Jeopardy provisions of the Iowa or US Constitutions.

All of my recaps will be pretty simple, so I might skip some details to get to the big points. I don’t get paid for this, you know.

New Court of Appeals Opinions

A quick review of the summaries of the opinions posted today by the Court of Appeals shows that they affirm a lot of cases. But, there are a few exceptions. The one that stands out most to me is Happe v. City of Urbandale, No. 7-577/06-0631. In Happe, the Court reversed a ruling by the Polk County District Court affirming the amount of road reconstruction costs assessed by the City to the Happe’s property. The original assessment was $37,092.09.

The Court of Appeals determined that amount to be excessive and knocked the assessment down to $6,118.51. Quite a decrease. The reasoning stems from case law stating that property owners are not required to pay for the gneral benefits of road reconstruction, only special benefits. The Court decided that there was sufficient evidence from the Happe’s that they received little, if any special benefit from the reconstruction. It probably didn’t hurt that a similar property was only assessed $6,118.51 to begin with.

The Supremes will be posting new opinions tomorrow.