Oops, I did it again. As of October 1, I am again flying solo. I hope it works out a little better this time. As a result of this change, I hope to turn over a new leaf with organization. For the blog, this means posting about new decisions more frequently and staying on top of posting court schedules. In addition, I intend to post more about practice in general.

So, I hope I can keep up. Wish me luck.

Two new Iowa Supreme Court opinions today. One dealing with family law and one with title loans. I prefer these topics to Workers’ Compensation, so I guess I’m pleased with my reading material this morning.

In Re Marriage of Cooper – Mr. Cooper had an affair and Mrs. Cooper found out about it. They made a written reconciliation agreement that required that Mr. Cooper do certain things, should the affair cause a divorce. When Mr. Cooper moved out a few years later and a divorce followed, Mrs. Cooper tried to enforce the reconciliation agreement. The District Court basically followed the terms of the agreement, though it didn’t specifically say it was enforcing the agreement. The Court of Appeals upheld the award of temporary support (not timely appealed), but reversed any reliance on the agreement for the distribution of property.

Justice Appel’s opinion affirms the Court of Appeals, reversing the District Court on the issue of final property settlement. The Court determines that there is a public policy in Iowa against injecting fault into divorce proceedings. Even though Section 598.21(1)(k) seems to allow the Court to consider any agreements between the parties, this agreement attempted to regulate the conduct of spouses during the marriage and injected fault into the distribution of property. The agreement therefore goes against case law and policy. The Court holds the agreement unenforceable and further concludes that 598.21(1)(k) and 598.21(1)(m), the catchall, do not extend to unenforceable agreements. So, Courts can’t even consider a mutual agreement if it’s unenforceable.

I’m now trying to reconcile the question of whether 598.21(1)(k) has any value. If an agreement is enforceable, the Court should enforce it, rather than just consider it in making an equitable distribution of property, right? And if an agreement is unenforceable, the Court can’t even consider it, despite what I believe to be fairly clear language to the contrary in the statute itself. Anyone? Bueller? Bueller?

Anderson Financial v. Miller – Here, Anderson Financial, doing business as Loan Max and Loan Smart (I honestly don’t think there’s anything smart about these loans, but that’s just me), asked the Attorney General for an opinion on how a new law limiting the interest rate on title loans would affect them. The Attorney General indicated that the law would not affect loans disbursed before July 1, 2007, but loans and advances made after that date, regardless of the date of the original agreement, would be subject to the new limits. Since this would keep Anderson from collecting its 200%-300% annual interest (the new law limits the interest to 21%), Anderson asked for a declaratory judgment from the Court. The District Court agreed with the Attorney General and Anderson appealed and the Supreme Court now considers it.

Chief Justice Ternus (interesting news about her husband and son this week) wrote this opinion reversing and remanding the District Court. The Supreme Court held that this is a substantive, not a remedial law. Without express or clearly implied evidence otherwise, a substantive law change applies only prospectively, not retroactively. As a result, Loan Max and Loan [Asinine] can continue to collect it’s 200%-300% on advances made under contracts that were made before July 1, 2007, regardless of when the loan disbursement is actually made. Hooray!

Kind of a slow day, so I decided to read and actually comment on the new supreme court cases posted today.

American Eyecare v. Department of Human Services – American Eyecare performed services for patients on Medicaid. DHS, as the agency in charge of Iowa’s Medicaid program, determined that American Eyecare had upcoded, or overbilled, Medicaid for services rendered. Justice Streit’s opinion vacates the Court of Appeals affirmance and reverses the District Court, an administrative law judge and DHS’ interpretation of DHS rules.

DHS made rules concerning when eye exams and such would be deemed “comprehensive opthalmological services”. In doing so, the defined that term as “including” a number of different procedures. DHS argued that, because American Eyecare didn’t perform all of the procedures listed in the definition, they could not bill for comprehensive opthalmological services.

The Court determined that the legislature did not clearly vest DHS with the power to interpret its own rules and, therefore, DHS’ interpretation deserved no deference, contrary to the findings of the lower Courts. On the merits, the Court found that DHS misinterpreted this rule, and that requiring all of the stated procedures would be illogical. As a result, American Eyecare did provide comprehensive opthalmological services because they performed one of the listed procedures.

Interestingly, DHS requested reimbursement for 964 patients after reviewing only two patient files. I have a feeling that this one wasn’t going to fly, either way.

Swainston v. American Family Mutual Insurance Company – The Swainstons were passengers in a car owned by someone else. The vehicle in which they were riding was hit by an oncoming van that crossed the center line, the driver of which was not insured. The Swainstons recovered under the insurance policy held by the driver of the vehicle in which they were riding, then made a claim under the uninsured driver provisions of their own auto insurance policy with American Family. American Family denied that it had any liability because they had already recovered (simplistic explanation). District Court granted summary judgment to American Family and the Court of Appeals affirmed.

Chief Justice Ternus’ opinion holds that the Swainstons should be allowed to recover under their own policy, as well. Their American Family policy did not specifically address “interpolicy stacking” of insurance coverage, so they are governed by the default rule. The default rule allows recovery up to the highest limit of applicable coverage. The vehicle owner’s insurance policy allowed $500,000 per incident and was the highest limit. However, the Swainstons didn’t recover $500,000 from State Farm, presumably because they had to split the coverage with others in the car, and the owner. As a result, the Swainstons could recover under their own policy, but not for a total recovery of more than $500,000. Summary judgment was reversed, as the District Court interpreted the default rule differently.

Drake University v. Angela Davis – This is a workers’ compensation decision. I tend to skip these opinions, since I don’t practice in that area. They seem to make up at least a third of what the Supreme Court is turning out these days, though. Maybe I should get into that line of work. There appears to be a lot of it.

In re the Detention of Galen Kendrick Schaffer – Schaffer was incarcerated in Anamosa after being convicted of three counts of 3rd degree sexual abuse. After a number of years, and a number of changes to the law regarding reduction of sentences, Schaffer was scheduled to be released July 2008. In October 2007, the State filed a petition to commit Schaffer as a sexually violent predator. Schaffer proceeded to seek postconviction relief challenging the changes to his sentence reduction as violating the Ex Post Facto clause of the constitution. He won on postconviction relief, then was successful in having the court dismiss the commitment action because he was not “presently confined” within the meaning of the relevant Iowa Code provisions. He argued that to be presently confined, he must have been confined legally.

Justice Cady’s opinion holds that, despite the fact that Schaffer’s release date change violated the Ex Post Facto clause, he was “presently confined” within the meaning of the statute. Since Schaffer never challenged the recalculated date of his release until after the State filed its commitment action, he was presently confined for a sexually violent offense, and the civil commitment action should not have been dismissed.

Governor Culver signed last night Senate File 478, which made a number of changes that will help the budget situation for the Court system. The big thing is the increases in the filing fees for a number of different cases. Those can be found here.

A longer list of the changes can be found here.

Four new opinions, today, but one was a per curiam opinion based on one of the others. I think I brought this up before, but I have to think that, when two similar cases are decided at the same time, one gets full treatment and the other a per curiam opinion, the defendant who got the per curiam opinion, regardless of the outcome, has to feel a little slighted. Anyway, her we go:

Goosman v. State - Reviewing the Heemstradecision to determine if it applies retroactively. The Court says that, because the Court was changing the law, rather than just clarifying the law as it stood at the time of the offense, the change is not applied retroactively. Now, I think I learned in law school that courts don’t change law, they just say what the law has always been, regardless of what they said previously. Hmmm…

This was argued under the Federal Due Process Clause, so I imagine we’ll see some application to the US Supreme Court regarding this. We’ll see how that turns out. Also, the sister case of Scott v. Iowa was decided per curiam with the same outcome.

Heemstra, by the way, held that, when a person commits a felonious assault and the result of that assault is the death of the “assaultee”, the assault merges into the homicide and cannot be used as the predicate offense for a felony-murder theory of prosecution.

State v. Stone- This is an appeal from a driving under suspension conviction. The defendant’s license was suspended for an OWI test refusal. He was charged with violating the terms of his work permit (he got his truck washed and stopped at McDonalds, oh no!). The DOT later rescinded his suspension, for whatever reason. He argued that the evidence of his suspension should not be admissible at trial because it was later rescinded.

The Court affirmed the district court ruling that a rescission of a license suspension does not magically wipe away any evidence of that suspension. At the time he was stopped for expired tags, he was suspended and the conviction stands.

Here’s some helpful advice to people like Mr. Stone: If you’re going to drive without a license or violate the terms of your license, make sure your tags are current and your car is in good working order, and don’t drive like your in the lightbike scene from Tron, because that will get you every time.

Harder v. Anderson, Arnold, Dickey, Jensen, Gullickson and Sanger, LLP, et al. – A noncustodial mother appeals the district court’s ruling that she was not entitled to an injunction requiring her children’s therapist to release the children’s mental health records. The Court holds that the standard in a case like this is what is in the best interests of the child. Viewing the case using that standard, the Court holds that requiring the release of the records would not be in the children’s best interests, so the Court affirms the lower court.

One of the more poignant portions of Justice Wiggins opinion from page 8:

“Moreover, Susan claims she is seeking the records for use in her own therapy, in order to get a larger picture of her children’s feelings towards her, and repair her strained relationship with her daughter. To help Susan achieve this goal, without compromising the mental health of the children, Pini offered to meet with Susan to answer her questions or listen to her concerns dealing with the children. Pini also agreed to work with Susan’s therapist to coordinate Susan’s therapy. Instead of exploring these options with Pini, Susan filed her action demanding the release of her children’s records. Susan’s actions lead us to believe that her request for the records is in her own best interest rather than that of

her children.”

Isn’t that always the case?

So this case covers a lot of ground. It has a lot of good quotes and I thnk it’s well-reasoned. I’m disappointed that the Court didn’t make a determination as to whether sexual orientation is a suspect or quasi-suspect class. I think it may muddy the waters somewhat, but they may not have wanted to go too far in their first foray into that decision. Since the County argued rationale basis, I suppose it would have been difficult to make that determination based on the record in front of them. At least we know that rational basis will not apply in the future.

One thing that I’ve thought about in the past: The term “marriage” seems to be the big problem, here. Marriage is a religious ceremony. Legally, it’s nothing more than a civil contract. Why don’t we treat it that way? Take the term marriage out of the Iowa Code altogether and simply have civil unions for all people. If they want to get “married” they can go to a church.

Now, I suppose I should actually try to get something done today.

Varnum v. Brien

I’m going to blog while I read. The first thing I notice is that, after the first page, which lists the parties and their attorneys, there are five pages of all the amici. A lot of lawyers made a lot of money on this case. Best attorney name I found: Tobias Barrington Wolff of the University of Pennsylvania Law School. For some reason, I don’t think he had an upbringing like mine.

69 pages folks, which is not surprising considering that the opinion is written by Justice Cady. One other thing of note is that there are no dissents. It will be interesting to see if the opinion appears to be watered down to make it palatable for all the Justices, but, now that I think of it, I can’t think of one who I get the impression would need it watered down.

Oh Justice Cady. The first paragraph is a little sappy for me, but that’s OK. “Like all Iowans, they prize their liberties and live within the borders of this state with the expectation that their rights will be maintained and protected – a belief embraced by our state motto.” I would have put the state motto directly into the paragraph, rather than a footnote, but whatever.

I hadn’t really paid attention to this case until now. One thing that they did that was really smart, and I’m sure it’s been done in the other states where this has come up, was to not claim that the statute violated their rights under the United States Constitution. Only the Iowa Constitution. Therefore, no federal question exists for which the State could appeal to the United States Supreme Court. This is solely an Iowa issue.

I also notice that Justice Cady keeps making comparisons with “other Iowans” as if he’s trying to normalize the plaintiffs to citizens of the state who may not be so accepting of this decision.

A couple more interesting things. First, this was an appeal from a summary judgment motion. Therefore, no in-person testimony, only affidavits and depositions. Some of the affidavits by the plaintiffs contain the things they wish they could do for their partners “including decisions related to health care, burial arrangements, autopsy, and disposition of remains following death.” There are ways to do give people the right to make these decisions for you outside of marriage. Sure the provision concerning allowing someone other than a spouse or next of kin to determine the disposition of remains went into effect only last year, but that makes this point moot. Granted, it’s a small issue, but I probably wouldn’t have included it because it feels to me like it makes the argument weaker.

I think the County was in a tough position here. I wonder if they were really into this or just doing their jobs. They cite five “primary interests of society in support of the legislature’s exclusive definition of marriage.” The fifth is the “governmental interest in promoting the concept and integrity of the traditional notion of marriage.” I always find that laughable as an argument. With a 50% divorce rate, is there really any integrity in the traditional notion of marriage?

It also appears that the County put up a bunch of fringe “scientists” in support of their arguments. A retired pediatrician, a clinical psychologist and two college professors? On the other side we have the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, the National Association of Social Workers, and the Child Welfare League of America. Not good odds. “Almost every professional group that has studied the issue indicates children are not harmed when raised by same-sex couples, but to the contrary, benefit from them.”

We get the standard of review for summary judgment rulings and head into a discussion of Separation of Powers. The Court obviously knows this is a big decision and is making it clear they understand their role and are not “legislating from the bench.” This is an opinion for the people to read, not just lawyers.

A nice shout-out to Chief Justice Marshall and Marbury v. Madison. I like the quote from Justice Jackson better, though: “the very purpose of limiting the power of the elected branches of government by constitutional provisions like the Equal Protection Clause is ‘to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to etablish them as legal principles to be applied by the courts.’” I’m going to start saying “vicissitudes”.

“Finally, it should be recognized that the constitution belongs to the people, not the government or even the judicial branch of government.” (citation omitted). While the constitution is the supreme law and cannot be altered by the enactment of an ordinary statute, the power of the constitution flows from the people, and the people of Iowa retain the ultimate power to shape it over time.” (citation omitted). We can certainly recall this from the last election cycle and what happened in California. I would imagine there will be a similar movement in Iowa, the success of which is something we’ll have to wait to find out.

At page 17 begins the history of the Equal Protection Clause of the Iowa Constitution. Some things I didn’t know that make me proud to be an Iowan: the Iowa Supreme Court issued a decision in 1839, almost 20 years before the infamous U.S. Supreme Court’s Dred Scott, that held that a person is not property; in 1839 the Iowa Supreme Court began issuing opinions that “struck blows to the conept of segregation” (Brown v Board of Education was 1954); “Iowa was also the first state in the nation to admit a woman to the practice of law, doing so in 1869.”

Page 19, footnote 6: “Here again, we find federal precedent instructive in interpreting the Iowa Constitution, but refuse to follow it blindly. . . . the federal framework traditionally employed for resolution of equal protection cases provides a useful starting point for evaluation of Iowa’s constitutional equal protection provision.”

A nice explanation of the differences between rational basis, heightened scrutiny and strict scrutiny. I’m interested to find out which one they use…

What, there are other issues besides Equal Protection? The County appealed the exclusion of some of the testimony it offered in support of its position on the summary judgment motion. I guess we’ll have to deal with that first. More nice explanations for the lay people reading this opinion.

So, basically, the County wanted to have testimony about the background of the Constitution and the District Court didn’t allow it. The County probably made an offer of proof or some such thing and so that testimony is part of the record for the Supreme Court’s de novo review. “The error committed by the trial court in failing to [consider the evidence] is of no consequence under our de novo reviewing standard.”

The County claims that, since same-sex couples can’t, for lack of a better term, “naturally” procreate, they are not similarly situated to opposite-sex couples. The similarly situated test is a “threshold” to getting to true Equal Protection analysis. The Court determines that same-sex couples are similarly situated because you can’t make that determination based solely on one characteristic. Notably, in footnote 9 on page 29, the Court says that the threshold test may not really be useful: “. . . we have, at times, directly or indirectly infused that analysis . . . This approach is almost inevitable for the test to have any real value as an analytical tool to resolve equal protection claims. Conseqently, we question the usefulness of the threshold test and express caution in the future use of th threshold analysis.” In true judicial form, though, because the threshold test isn’t dispositive in this case, they’ll deal with it in some future case.

Interesting, the District Court determined that the law classifies on the basis of gender. The Supreme Court determines that it classifies on the basis of sexual orientation. I smell a new protected class here. This is big.

Reading along, four considerations to determine if a higher level of scrutiny is required: 1. History of discrimination, check; 2. Ability to contribute to society, check; 3. Immutability, check; 4. Political powerlessness, check. So rational basis isn’t going to cut it. So is it heightened scrutiny or strict scrutiny?

Punt! What!? “Because we conclude Iowa’s same-sex marriage statute cannot withstand intermediate scrutiny, we need not decide whether classifications based on sexual orientation are subject to a higher level of scrutiny.” I was not expecting that. But, true judicial form…

So we’re looking at heightened scrutiny analysis: substantially related to an important governement interest. County’s first important government interest is tradition. Court says that’s no governmental interest. Second is interpreted by the Court to be “the best interests of children”, which the Court says is an important governmental interest. But, “Plaintiffs presented an abundance of evidence and research, confirmed by our independent research, supporting the proposition that the interests of children are served equally by same-sex parents and opposit-sex parents. On the other hand, we acknowledge the existence of reasoned opinions that dual-gender parenting is the optimal environment for children. These opinions, while thoughtful and sincere, were largely unsupported by reliable scientific studies.” Ouch.

To be substantially related to a geovernmental interest, the law cannot be too under- or over-inclusive. Since the law doesn’t ban child abusers from getting married, it’s under-inclusive. Since it restricts same-sex couples who don’t want to have children from getting married, it’s over-inclusive. I’ve gotta say, I like that Justice Cady was chosen to write this. Though his opinions often go a little too far into history for me, they’re always well-reasoned and almost unassailable in their logic.

Next argument is that the law promotes procreation, which continues the human race. “[T]he sole conceivable avenue by which exclusion of gay and lesbian people from civil marriage could promote more procreation is if the unavailability of civil marriage for same-sex partners caused homosexual individuals to “become” heterosexual in order to procreate wihin the present traditional institution of civil marriage. . . . Even if possibly true, the link between exclusion of gay and lesbian people from marriage and increased procreation is far too tenuous to withstand heightened scrutiny.” This one is under-inclusive because it doesn’t say anything about those who don’t procreate for other reasons (age, health, etc.).

Next is the promotion of stability in same-sex marriages. County doesn’t say how this law does that, and the Court can’t find a reason. No dice.

County argues conservation of resources through fewer tax breaks for married people, benefits paid, etc. “Excluding any group from civil marriage – African-Americans, illegitamtes [don't like that term], aliens [that one either], even red-haried individuals [hey, my daughter has red hair] – would conserve state resources in an equally “rational” way. Yet, such classifications so obviously offend our society’s collective sense of equality that the courts have not hesitated to provide added protections against such inequities.”

“While the objectives asserted may be important, (and many undoubtedly are important), none are furthered in a substantial way by the exclusion of same-sex couples from civil marriage.”

I questioned why the Court put anything in the opinion about religious views, especially since the County didn’t raise that issue. THen I realized that, starting on page 63, the Court is assuring all religions that they still have a right to determine who gets married in their churches. More for the lay-people than for the great legal mids, such as myself.

The remedy portion of the opinion is interesting. I haven’t followd this issue closely, but apparently Courts in other jurisdictions have done one of two things: allow same-sex couples to marry or allow state legislatures to provide some similar avenue, such as civil union. The Court here doesn’t see how the second option would be any less repugnant to Equal Protection. It would be like segregation, I suppose. So, same-sex couples get to marry.

So I’m catching up on my Iowa Supreme Court cases, today. I just finished Soifer v. Floyd County Board of Review and, have to say, I respectfully disagree with the Court’s decision, and the precedent it followed.

It appears clear to me that the assessed value of a property should be based solely on the property’s inherent value. Sure, you can say this property is set up as a restaurant, so it should have a similar value to other reastaurant properties. In Soifer, though, the Court says that the assessed value of a McDonald’s restaurant is best determined by comparing it to the sales of other fast-food franchise restaurants sold as going concerns, meaning that someone is buying both the real estate and the business.

To me, when you value something based on that much specificity of its use, you begin to add some of the value of the business as a going concern to the value you are taxing. You no longer are taxing just the value of the property, but also the intangible value that a particular business brings to the site.

In my opinion, properties should be valued as if they were empty, without any business to speak of. A restaurant is a restaurant, but you can certainly place a value on the land and the structure without looking at the success of the business that occupies the space.

I think this may be an issue that the legislature should take up, as there is a string of cases that the Court relied on in Soifer, and it doesn’t appear that they are making any plans to right the ship.

So I have not posted anything other than court schedules for quite some time. I guess I’ve had a lot going on. The most notable I suppose is the arrival of my son Max. He is now about a month old and I’m finally starting to settle back in to work.

I also joined Faceboook back in November. My sisters had been pushing me to do it and I thought it might be a good idea for a number of reasons. One of those reasons was advertising. I figured if I put my name and what I do out there for people in the area to see, it might draw in some business. It hasn’t worked, of course, but I think there is some real potential there and I may explore it more.

I also got to lose my first appeal. It was a termination of parental rights case and the opinion came out a couple of weeks ago. Not surprising, but I think the case, and many like it, raised a few issues. This was a case where the termination trial happened in May of 2008. In June, before an order had been entered, the flood occurred and wiped out the court file,  and both the judge’s and court reporter’s notes.

I tried a few things to get a new trial, but the didn’t work, of course. After I filed the appeal, I got an order from the Supremem Court requiring me to file a statement of evidence pursuant to the Rules of Civil Procedure. Now this begs the question, I think, what is a fair record on appeal? Do the parties get a fair appeal if the attorneys and everyone else involved has to try to recreate what happened during trial on paper? What happens to spontaneous objections and rulings from the bench during trial? I argued that point and lost.

I guess that’s the way it goes.

It’s been a couple…few?…weeks since I posted here. I probably shouldn’t be doing it now, but I need a break. So, new Iowa Supreme Court opinions today. Here goes:

Harper v. Pella Corporation- This is interesting. Harper sued Pella for injuries from fall at a home owned by Pella. The home is located in Kentucky. Pella moves for summary judgment on the grounds that Kentucky’s period of limitations is one year. District Court denied the motion. Pella again moves for summary judgment because there are no genuine issues of material fact concerning liability. This motion is granted. Harper appealed, Pella cross-appealed the denial of the first motion. The Court of Appeals affirmed on the liability ground and didn’t reach the limitations ground.

On further review, the Supreme Court says that it can’t decide. In a per curiam, the Court says that there are four who would affirm and four who would reverse.  As a result, the District Court ruling is affirmed by operation of law.

We have not seen this sort of dissension very often. It would have been nice to have Justice Baker taking part so we could have gotten a good opinion and a good dissent. We could have seen into the minds of those crazy Justices and understood why they feel the way they do. Oh well, those are the breaks.

Johnson v. Iowa District Court for Scott County - Today we find out what it takes to get a final hearing in the civil commitment of a sexually violent predator. At his annual review, Johnson presented evidence from a doctor that he had a 10% likelihood of re-offending. As a result, he asked for a final hearing to determine if he should be released. The District Court denied the request because Johnson did not show that he was likely to succeed at such a hearing. Johnson filed a writ of certiorari claiming that the Court exceeded its jurisdiction when it weighed the likelihood of release to determine whether or not he should have a final hearing.

The Court sustained the writ. Justice Streit explains that requiring the committed person to show a likelihood of success in a final hearing before granting such a hearing is basically giving the person a free pass at the final hearing.  He also explains the burdens during annual reviews and final hearings: “At an annual review, the committed person bear the burden of proof to show by a preponderance of the evidence there is competent evidence which would lead  a reasonable person to believe  a final hearing should be held.” p. 8 (citation and emphasis omitted). “At the final hearing, the state bears the burden of proof to show beyond a reasonable doubt the committed person’s mental abnormality has not changed.” Id. (citation and emphasis omitted).

The Court equates “competent evidence” with “admissible evidence”, so the bar is pretty low to get a final hearing. Interesting. I’m honestly a little glad that I don’t generally work with sexually violent predators, though they deserve representation as much as anyone. I don’t now if my stomach could take it, though.

State v. Wilkes – Wilkes was sitting in a running vehicle in the parking lot of a quarry on a cold night. An officer noticed and pulled his car behind Wilkes’ truck, leaving enough room for Wilkes to leave, if he wants. Officer approaches vehicle, smells alcohol and begins the process of arresting Wilkes for OWI.

Wilkes filed a motion to suppress saying that his 4th Amendment rights were violated because he was seized without probable cause. He claimed that the seizure occurred when the officer pulled up behind him with his headlights on (no overheads, by the way) and approached the vehicle. District Court granted the motion and State appealed. The Court of Appeals affirmed the suppression and the State asked for further review.

The Supreme Court vacated the decision of the Court of Appeals, reversed the order of the District Court and remanded. There was no seizure until after the officer smelled alcohol around Wilkes. There was no show of authority or anything that would lead a person to believe that they are not free to leave the scene.

Now, I ask this: How many people are going to feel free to leave a place when there is a police car behind them an an officer approaching? I understand that the officer never turned on the overheads, and I understand that the reserve officer stood behind the truck and did not approach the front. But, really. The language about a reasonable person not feeling like he couldn’t leave is ridiculous. Why not just leave it at this: The officer was performing a community protection service when he checked to make sure everyone in the vehicle was OK. That was not a seizure for the purposes of the 4th Amendment, but it did give rise to probable cause to believe there was some criminal activity.

Let’s forget all of this stuff about people feeling free to leave. There’s my soapbox for the month. Have a good weekend.