UPDATES & ANALYSIS

12.13

Iowa Supreme Court to hear arguments in eight appeals Dec. 14 and 15

by Rox Laird | December 13, 2021

The Iowa Supreme Court will hear arguments in eight cases December 14 and 15, and five other cases will be submitted to the Court without oral argument.

Go to Iowa Brief’s “Cases in the Pipeline” page to read briefs in these appeals.

Following are summaries of the December cases.

 

In the Interest of T.F. and T.F.

Scheduled for oral argument Dec. 14, 9 a.m.

Issues: Did the State properly follow federal and state law in terminating the parental rights of a member of the Omaha Tribe, and should the case have been transferred to Tribal Court?

The father of T.F. and T.F., and the Omaha Tribe seek further review of a divided July 21 Iowa Court of Appeals ruling affirming a decision by the Polk County District Court terminating the father’s parental rights to the children. The father is an enrolled member of the Omaha Tribe in Nebraska and the children are both Indian children under Iowa law. The father argues his parental rights were not properly terminated under Iowa law or under the Indian Child Welfare Act. The Omaha Tribe, as intervenor in the District Court and as an appellant in this case, argues the District Court should have transferred the case to the tribal court. Two members of the Court of Appeals panel voted to affirm the District Court on the transfer question while a third member of the panel dissented on that issue.

 

In the Interest of Z.K.

Scheduled for oral argument Dec. 14, 9 a.m.

Issue: Should the Oglala Sioux Tribe have been allowed to intervene in a parental rights termination case involving a child who the Tribe argues may be a member?

The father of Z.K. seeks further review of a divided June 16 Iowa Court of Appeals ruling affirming the Woodbury District Court’s ruling terminating his parental rights to Z.K. Two members of the Court of Appeals voted to affirm the District Court’s holding that there was no question that the child is not a member of any Indian tribe. Otherwise, the federal Indian Child Welfare Act would have been triggered. The dissent argued that the trial court should have allowed the Oglala Tribe to intervene based on a tribal leader’s testimony that it had not had the opportunity to do due diligence to determine if the child may be eligible for trial membership.

 

State v. Davis

Will be submitted to the Court Dec. 14 without oral argument.

Issues: Was a defendant denied the right to make a statement to the trial court prior to sentencing, and does the Supreme Court have jurisdiction to consider his appeal filed pro se?

George Davis appeals from his conviction in Polk County District Court for operating while intoxicated, third offense, following a guilty plea. Davis appeals his five-year prison sentence arguing that he was not given the opportunity to speak during the plea hearing in mitigation of the sentence as required by Iowa Rule of Criminal Procedure 2.23(3)(d). The Supreme Court also ordered the parties to submit supplemental briefs on the question of whether it has jurisdiction to hear the case since Davis filed notice of appeal pro se. Iowa Code section 814.6A says the Court shall not consider any pro se filing from a defendant who is currently represented by counsel. Davis argues he filed his pro se notice of appeal with the District Court after he was represented by trial counsel but before he was represented by appellate counsel.

 

Hampton v. Martin Marietta Materials

Scheduled for oral argument Dec. 14, 1:30 p.m.

Issue: Did a trial court wrongly hold retaliation could not be found by a jury in employment discrimination claim?

Ronald Hampton appeals the Story County District Court’s dismissal on summary judgment of his suit against Martin Marietta Materials and Doug Robey alleging wrongful discharge in violation of public policy, disability discrimination, and retaliation. Hampton alleged that Martin Marietta Materials retaliated against him after he submitted complaints about racial and sexual harassment by Martin Marietta employees. On appeal Hampton argues the trial court erred in deciding that no jury could find retaliation and that the court applied the wrong causation standard for his retaliation claim under the Iowa Civil Rights Act.

 

State v. Ritterath

Scheduled for oral argument, Dec. 14, 1:30 p.m.

Issue: Is a defendant entitled to a new trial because the mental-health records of a key witness are unavailable?

Mark Ritterath seeks further review of a Dec. 16, 2020, Iowa Court of Appeals ruling reversing the Mitchell County District Court’s ruling granting Ritterath’s motion for a new trial following his 2016 conviction for solicitation to commit murder. Ritterath’s case had been remanded by the Iowa Court of Appeals in 2017, which directed the trial court to review in camera mental-health records of two witnesses that Ritterath argues may provide exculpatory evidence. When the records of one witness were blocked by federal authorities for privacy reasons, the District Court ordered a new trial. The State then appealed. In its subsequent December 2020 ruling, the Court of Appeals reversed, holding that with no new evidence to disclose there is no reason for retrial. Ritterath argues in his application for further review that without the witness’s mental-health records, he is unable to effectively cross-examine the witness and the witness’s testimony should thus be excluded.

 

State v. Crawford

Will be submitted to the Court on Dec. 14 without oral argument.

Issue: Does the Supreme Court have jurisdiction to hear defendant’s appeal filed pro se?

Randy Crawford seeks further review of an Aug. 4 Iowa Court of Appeals ruling affirming his conviction in Scott County District Court of possession of a controlled substance, failure to affix a drug-tax stamp, and two counts of interference with official acts resulting in bodily injury. Crawford claims he received ineffective assistance of counsel because his trial counsel failed to challenge the sufficiency of the evidence on the drug-tax stamp charge. In addition to granting further review of the Court of Appeals ruling, the Supreme Court ordered the parties to submit supplemental briefs on the question of whether it has jurisdiction to hear the case since Crawford filed the notice of appeal pro se. Iowa Code section 814.6A says the Court shall not consider any pro se filing from a defendant who is currently represented by counsel. Crawford argues that Code section applies only to pro se filings in appellate court whereas his pro se notice of appeal was filed in District Court. Crawford argues his constitutional right to due process would be violated if the Supreme Court rules his notice of appeal invalid under the statute. He also argues Iowa Code section 814A.6(1) violates the constitutional separation of powers doctrine of the Iowa Constitution.

 

State v. Kraai

Scheduled for oral argument Dec. 15, 9 a.m.

Issue: Did a trial court err in a jury instruction saying there is no requirement that testimony of a sex-abuse complainant be corroborated?

Both Kurt Kraai and the State seek further review of an April 14 en banc Iowa Court of Appeals decision affirming Kraai’s conviction by an Osceola County jury of second-degree child abuse. Kraai objects to a jury instruction that said, “There is no requirement that the testimony of a complainant of sexual offenses be corroborated.” The Court of Appeals agreed with Kraai that the jury instruction was contrary Iowa Code section 709.6, which says: “No instruction shall be given in a trial for sexual abuse cautioning the jury to use a different standard relating to a victim’s testimony than that of any other witness to that offense or any other offense.” The Court of Appeals nonetheless held that the guilty verdict was “surely unattributable” to the faulty instruction. In seeking further review, Kraai argues that the jury instruction error was not harmless beyond a reasonable doubt “given that the case turned on whether the jury believed the complainant or the defendant.” In its application for further review, the State argues the Court of Appeals incorrectly held the trial court erred in its jury instruction stating “There is no requirement that the testimony of a complainant of sexual offenses be corroborated.”

 

State v. Stevens

Scheduled for oral argument Dec. 15, 9 a.m.

Issue: Was the former passenger of a vehicle illegally searched after a drug dog indicated the presence of drugs from a sniff outside the empty vehicle?

Yale Stevens appeals his conviction in Woodbury County District Court for possession of a controlled substance. Stevens, a passenger in a vehicle searched by Sioux City police officers following a traffic stop, was searched outside the vehicle after a drug dog signaled at the passenger-side door. An officer conducted a pat-down search of Stevens and discovered a heat-sealed baggie containing a substance later identified as methamphetamine. Stevens argues the drug dog’s signal outside the empty car in which he had been a passenger was an insufficient nexus for the search and thus violated his rights under the Fourth Amendment and the Iowa Constitution. Stevens also argues the field test of the substance in the bag without confirmation by expert testimony or a lab report was insufficient to support his conviction.

 

State v. Davis

Will be submitted to the Court Dec. 15 without oral Argument.

Issue: Was a defendant’s right to appeal unconstitutionally foreclosed by Iowa law barring appeal from a guilty plea?

Shane Davis seeks further review of an Aug. 4 Iowa Court of Appeals ruling dismissing Davis’s appeal of his sentence after pleading guilty in Floyd County District court to lascivious acts with a child and indecent contact with a child. The Court of Appeals cited Iowa Code section 814.6(1)(a)(3), which says there is no right of appeal from a conviction where the defendant pleads guilty, except for a class A felony or in a case where the defendant establishes “good cause.” Davis’ crime was not a class A felony, and he failed to establish good cause, the Court of Appeals  held. In his application for further review, Davis said dismissal of his appeal violated his rights under the U.S. and Iowa constitutions.

 

State v. Wilbourn

Will be submitted to the Court Dec. 15 without oral argument.

Issue: Does the Supreme Court have jurisdiction to hear defendant’s appeal filed pro se?

Korki Wilbourn seeks further review of an Aug. 4 Iowa Court of Appeals ruling affirming the Marshal County District Court’s sentence following Wilbourn’s guilty plea to possession of methamphetamine with intent to deliver. Following Wilbourn’s application for further review, the Iowa Supreme Court ordered the parties to submit supplemental briefs on whether the Court has jurisdiction to hear Wilbourn’s appeal in light of Iowa Code section 814.6A(1), which prohibits certain pro se filings when a defendant is represented by counsel. Wilbourn argues that while he was represented by trial counsel when he filed his pro se notice of appeal, the Court nonetheless has jurisdiction because, he argues, section 814.6A(1) applies only in appellate court and does not apply to pro se notices of appeal filed in District Court. Wilbourn also argues Iowa Code section 814.6A(1) violates his constitutional right to due process and violates the separation of powers doctrine.

 

State v. McCalley

Scheduled for oral argument Dec. 15, 1:30 p.m.

Issue: Was a jail sentence in lieu of restitution for an indigent defendant unconstitutional?

Tiffany McCalley appeals following her guilty plea and sentence in Boone County District Court to the charge of driving while barred. McCalley argues her rights to due process and equal protection were violated and there was an abuse of discretion when the trial court imposed a jail sentence because she lacked the financial means to pay for court costs and attorney fees. McCalley also argues that the presumption under Iowa Code section 910.2A that defendants are reasonably able to pay restitution is an unconstitutional infringement of the constitutional rights to counsel and due process.

 

McGrew v. Otoadese

Scheduled for oral argument Dec. 15, 1:30 p.m.

Issue: Did plaintiffs in a medical malpractice action fail to properly disclose the nature of expert witnesses’ expected testimony?

William and Elaine McGrew seek further review of a March 3 Iowa Court of Appeals decision affirming a Black Hawk County jury’s verdict for defendants in the McGrews’ medical malpractice suit against Dr. Eromosele Otoadese and the Northern Iowa Cardiovascular and Thoracic Surgery Clinic. The Court of Appeals held there was no abuse of discretion by the District Court in ruling that one of the McGrews’ expert witnesses could testify only to his treatment of William McGrew, that a second witness could not testify because he did not directly treat McGrew, and that the McGrews did not adequately disclose the nature of the witnesses’ expert opinions. In seeking further review, the McGrews argue they complied with Iowa Rule of Civil Procedure 1.500(2) and there was no basis to conclude they failed to adequately disclose the anticipated testimony.

 

Mengwasser v. Comito and Capital City Fruit Co.

Will be submitted to the Court Dec. 15 without oral argument.

Issue: Should a treating chiropractor have been allowed to testify about plaintiff’s injury based on his treatment of her injury?

Robyn Mengwasser seeks further review of an April 14 Iowa Court of Appeals ruling affirming the Polk County District Court’s order denying Mengwasser’s motion for a new trial on whether she was entitled to future damages related to her injuries in an automobile accident while leaving undisturbed the verdict for Mengwasser on fault and past damages. Among other things, Mengwasser argues the trial court erred in excluding the testimony of Mengwasser’s treating chiropractor, and she urges the Supreme Court to hold that Iowa Rule of Civil Procedure 1.500(2) should not be interpreted as allowing parties to prohibit treating providers from offering testimony concerning their opinions developed during the course of treatment.

 

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