UPDATES & ANALYSIS

8.13

June 2024 Opinion Roundup

by Chloe Dinardo | August 13, 2024

The Iowa Supreme Court entered opinions in fifteen cases during June 2024. You can read the analyses of Robert Teig v. Vanessa Chavez, Alissa Van Sloten, Patricia G. Kropf, Elizabeth Jacobi, Brad Hart, and Teresa Feldmann, Bankers Trust Company v. City Of Des Moines, Ron Myers v. City of Cedar Falls, Planned Parenthood of the Heartland, Inc., Emma Goldman Clinic, and Sarah Traxler M.D. v. Kim Reynolds ex rel. State of Iowa and Iowa Board of Medicine, State of Iowa v. Derek Michael White, and State of Iowa v. Kyra Rose Baule. The remaining opinions from June are summarized below.

  

Estate of Shirley Kay Gomez, by Gloria Ann Shontz, Administrator, Andrea Marie Bell, Individually, Kristina Christian Lincoln, Individually, and Kim Marie Kerr, Individually v. Mercy Medical Center-Clinton, Inc., and Amareshwar Chiruvella, M.D., No. 23-0719

Opinion date: June 7, 2024

On appeal from the Iowa District Court for Clinton County

Issues:

• Whether an expert’s signed but unsworn certificate of merit substantially complies with the affidavit requirement of Iowa Code Section 147.140.

The estate of Shirley Gomez filed a negligence action against Mercy Medical Center and a physician after Shirley suffered a fatal pulmonary embolism following an abdominal surgery. Plaintiffs served certificates of merit signed by an expert, but neither indicated that the expert had signed under oath. Before the Court had the opportunity to rule on this exact issue in Miller v. Catholic Health Initiatives, the district court found that the certificates substantially complied with Iowa Code section 147.140 and denied the defendants’ motion to dismiss.

Just a few weeks later, the Court held in Miller that Iowa Code section 147.140 “unambiguously requires the expert to timely sign the certificate under oath and that [an] unsworn signature did not substantially comply with the affidavit requirement.” Thus, an unsworn signature does not substantially comply. For the same reasons explained in Miller, the Supreme Court reversed and remanded the district court ruling. The opinion of the Court was delivered per curiam.

 

Medardo Rivera v. Clear Channel Outdoor, LLC, Lamar Media Corporation, TLC Properties, Inc., and All Unknown Claimants Claiming Any Right Title or Interest in the Property, No. 23-0679

Opinion date: June 7, 2024

On appeal from the Iowa District Court for Polk County

Issues:

• Whether Iowa Code section 614.17A applies to an action to clear an easement.

Plaintiff Medardo Rivera purchased a parcel of land with a billboard on it. The previous owners of the parcel had granted a “perpetual and exclusive” billboard easement to Defendant Clear Channel. Clear Channel assigned the easement to a Delaware company, which assigned the easement to a Louisiana company, Lamar Media. Rivera filed a petition to quiet title on the easement. Lamar moved for summary judgment, based in part on Iowa Code section 614.17A, which states that an action to recover or establish an interest in or claim to real estate cannot be maintained if three specific conditions are met: a) the action is based upon a claim arising more than ten years earlier or existing for more than ten years; b) the action is against the holder of the record title to the real estate in possession; c) the holder of the record title to the real estate in possession and the holder’s immediate or remote grantors are shown by the record to have held chain of title to the real estate for more than ten years. The district court granted summary judgment based on section 614.17A. Rivera appealed, arguing the conditions were not met and he should therefore be allowed to maintain the cause of action.

The Iowa Supreme Court reversed and remanded, concluding that the holder of an easement is not a “holder of the record title to the real estate in possession” as Iowa Code section 614.17A(1)(b) requires. According to the Court, easements are not possessory rights. Instead, easements entitle the holder to the use of another’s property. An easement is nonpossessory, even if the easement grants the holder exclusive access to the parcel or permits a “substantial physical presence” on the parcel that restricts its use. The easement at issue allowed Lamar to place a billboard on the land. But Lamar only had a possessory interest in the billboard, never the land itself, making section 614.17A inapplicable. Thus, summary judgment on the basis of section 614.17A was improper. Justice May authored the opinion of a unanimous Court.

 

Donald Lyle Clark v. State of Iowa, No. 23-0568

Opinion date: June 7, 2024

On appeal from the Iowa District Court for Johnson County

Issues:

• Whether proof of a criminal defense attorney’s negligence is sufficient for a plaintiff, who was convicted and imprisoned as a result of the malpractice, to recover emotional distress damages in a legal malpractice action.

Following his conviction and subsequent imprisonment for sexual abuse, Plaintiff and former criminal defendant, Donald Clark, successfully filed for postconviction relief based on a state public defender’s ineffective assistance. The State did not appeal the PCR ruling, dismissed the criminal complaint, and expunged Clark’s record. A year later, Clark filed a legal malpractice suit against the State as the employer of Clark’s public defender, alleging that the public defender was negligent in his representation of Clark. The malpractice case went to trial, and over the State’s objection, the court submitted Clark’s claim for emotional distress to the jury. The jury returned a verdict in Clark’s favor and awarded Clark $12 million in emotional distress damages. The district court denied the State’s post-trial motions and entered a judgment on the verdict.

The Iowa Supreme Court reversed and remanded. The general rule in Iowa is that emotional distress damages are not recoverable in a malpractice action unless the defendant engaged in intentional misconduct or caused physical injury to the plaintiff. In a 2013 case, Miranda v. Said, the Iowa Supreme Court allowed emotional distress damages where the attorney pursued an illegitimate course of action highly unlikely to succeed, leading to severe emotional distress.

The State argued that, under Miranda, recovery of emotional distress damages should only be allowed if the lawyer’s conduct was egregious and had no chance of success. Clark contended that incarceration resulting from a criminal defense attorney’s negligence should suffice for emotional distress damages. The Iowa Supreme Court partially agreed with the State, ruling that more than mere negligence is required to award emotional distress damages in legal malpractice cases. Still, the Court held that the standard articulated in Miranda would “set the bar too high in criminal malpractice cases.” The Court clarified that the proper standard involves proving by a preponderance of clear, convincing, and satisfactory evidence that the attorney acted with willful and wanton disregard for the client’s rights or safety, aligning with the threshold for punitive damages under Iowa law. Justice Waterman authored the opinion of a unanimous Court.

 

Timothy Duane Smith v. State of Iowa, No. 22-0813

Opinion date: June 7, 2024

On further review from the Iowa Court of Appeals

Issues:

• Whether counsel’s failure to request two additional peremptory strikes prejudiced the defendant, such that his representation was constitutionally ineffective.
• Whether counsel’s failure to move for a mistrial due to alleged jury misconduct was a breach of an essential duty, such that his representation was constitutionally ineffective.
• Whether counsel’s failure to call the defendant’s mother, ex-wife, daughter, or the county deputy sheriff to testify at trial was an unreasonable trial strategy, such that his representation was constitutionally ineffective.

Defendant Timothy Smith was convicted of two counts of sexual abuse in the second degree. On direct appeal, the court of appeals affirmed the convictions. Smith later filed for post-conviction relief, claiming that his trial counsel was ineffective in three ways: 1) filing to request additional peremptory strikes after his for-cause challenges on certain jurors was denied; 2) failing to move for a mistrial due to claimed juror misconduct; and 3) failing to call favorable defense witnesses. The postconviction court denied Smith’s application for relief. On appeal, the Iowa Court of Appeals found merit in the claim regarding the attorney’s failure to request additional peremptory strikes and reversed Smith’s convictions. The State sought further review.

The Iowa Supreme Court vacated the decision of the Court of Appeals, affirming the district court judgment. The Court held that the Court of Appeals failed to apply the appropriate Strickland v. Washington test, which requires a showing that the attorney’s misstep in jury selection resulted in an actually biased juror sitting on the jury. Because Smith did not show that any of the jurors on the selected jury were actually biased against him, he could not prevail on this ineffective assistance claim. Smith likewise failed to prove that his trial counsel breached an essential duty in not moving for a mistrial due to alleged jury misconduct. The only evidence Smith presented regarding the alleged misconduct was testimony from his ex-wife regarding what she believes she overheard jurors discussing on a recess. But the district court found the ex-wife was not credible, and the Court deferred to the district court’s credibility determination. This left no credible evidence to support Smith’s claim. Finally, defense counsel’s decision not to call certain witnesses was a reasonable strategic decision. The record demonstrated that defense counsel “believed [calling additional people to testify] would open the door to even more harmful evidence from the State.” The Court refused to second-guess the strategic trial decisions of counsel, again finding no prejudice. Accordingly, Smith’s convictions stand. Justice McDonald authored the opinion of the Court in which all justices joined except Chief Justice Christensen, who took no part.

 

State of Iowa v. Kari Jean Schwartz, No. 22-0390

Opinion date June 7, 2024

On further review from the Iowa Court of Appeals

Issues:

• Whether there was sufficient evidence of the defendant’s pattern, practice, or scheme of conduct to support her conviction for sexual exploitation by a school employee.
• Whether the district court erred in instructing the jury that sexual conduct includes hugging.

Kari Shwartz was an art teacher at Independence High School. A student reported Schwartz for inappropriate personal contact and behavior. The student initially reported inappropriate emails and texts, which led to Schwartz leaving the district. Ten years later, the student reported inappropriate touching that occurred in the school stairwell to the police. Schwartz was convicted of sexual exploitation by a school employee by a pattern, practice, or scheme, in violation of Iowa Code section 709.15(3)(a), (3)(b), and (5)(a). The Iowa Court of Appeals affirmed her conviction. Schwartz sought further review

The Iowa Supreme Court affirmed the Court of Appeals, finding substantial evidence supported Schwartz’s conviction. Based on the unchallenged jury instruction, a “‘pattern or practice or scheme of conduct’ means two or more acts constituting a systematic plan to engage in sexual conduct, as opposed to an isolated or accidental act.” In a 2018 case, State v. Wickes, the Supreme Court held that “thousands of messages exchanged between the teacher and student and the dozens of hugs over a forty-five-day period were sufficient to establish a pattern, practice, or scheme of conduct.” While Schwartz’s conduct in this case was not quite as pervasive as the defendant’s in Wickes, the evidence established that Schwartz engaged in at least “two or more acts” directed toward the victim-student, constituting a systematic plan to engage in sexual conduct. This included multiple messages in which Schwartz told the student that she loved her and invited the student to do activities with her outside of school. Additionally, the evidence showed that Schwartz, after gaining the student’s trust, engaged in frequent physical touching and initiated sexual contact in a school stairwell. This was sufficient to establish a “pattern or practice or scheme of conduct.”

Next, the Court addressed Schwartz’s challenge to jury instruction Number 16, which stated that “‘[s]exual conduct’ includes, but is not limited to kissing, hugging, touching of the clothed or unclothed inner thigh, breast, groin, buttock, anus, pubes, or genitals, or a ‘sex act.’” Schwartz argued that the jury instruction misstated the law, but the Court already established in Wickes that sexual conduct within the meaning of the statute is interpreted broadly and could include hugging. Additionally, Schwartz argued that the instruction misled the jury because it did not provide the proper context. However, the Court concluded that the instructions, when viewed altogether, provided enough context to the jury.

Finally, even if the instructions should have stated that sexual conduct “may include” hugging, instead of “includes” hugging, the Court held that this error would be a mere technicality that did not prejudice Schwartz. The jury instructions read as a whole and taken with each side’s further explanation at closing arguments could not have misled the jury to believe that all hugs are per se “sexual conduct.” The prosecutor even explained to the jury that, under the instructions, it “can find hugging as a sexual conduct.” The defense argued that the hugs in this case were not sexual in nature, but the jury concluded otherwise. This does not mean that Schwartz suffered prejudice. Accordingly, Schwartz’s challenge to the instruction failed. McDonald authored the opinion of the Court, joined by Justices Oxley, McDermott, and May.

Chief Justice Christensen authored a dissenting opinion, joined by Justices Waterman and Mansfield. Chief Justice Christensen emphasized the importance of context in determining whether hugging constitutes “sexual conduct,” and wrote that the “problem with including “hugging” in [the instruction’s] definition of “sexual conduct” is that it fails to convey the importance of this context.” The other actions listed in the definition of “sexual conduct,” like kissing and sexual touching, do not require such context because they are notably on a different level than hugging. The dissent argued that including “hugging” within the jury instruction’s list of sexual acts communicated to the jury that hugging was a per se sexual act, on the same level as kissing and sexual touching. This potentially prejudiced Schwartz. While labeling this a “close call,” Chief Justice Christensen would have vacated the court of appeals decision, reversed Schwartz’s conviction, and remanded for a new trial based on the potentially prejudicial jury instruction.

 

Sundance Land Company, LLC v. Phillip Remmark and Bobbie Remmark, No. 22-0848

Opinion date: June 14, 2024

On further review from the Iowa Court of Appeals

Issues:

• Whether a period of common ownership of adjacent parcels of land eliminated any boundary by acquiescence established prior to the common ownership.

This case involved a property dispute that arose between owners of a “north property” and a “south property” that sit adjacent to one another in Wapello County, Iowa. The two properties were separated by a boundary fence. Prior owners of each parcel considered the fence to be the boundary line separating the properties. Scott Hubbell and his wife eventually purchased both parcels, tore down the fence, and installed a machine shed and a grain bin on what they believed to be the south property. In 2017, the Remmarks purchased the south property, which Mr. Hubbell believed to include the machine shed and grain bin. In 2018, Sundance Land Company purchased the north property and had a land survey done. Through the land survey, Sundance discovered that the boundary line between the properties actually ran south of the fence line, so the machine shed and grain bin were encroaching onto the north property.

In 2020, Sundance filed a petition to quiet title according to survey boundary lines. The Remmarks counterclaimed that a new boundary had been established by acquiescence. After a bench trial, the district court found for the Remmarks that a boundary line by acquiescence had been established at the old fence line. Sundance appealed, and the Court of Appeals affirmed. The Supreme Court granted Sundance’s application for further review.

The Supreme Court vacated the decision of the Court of Appeals. Under Iowa Code section 650.6, a property line that is treated as the boundary between two parcels becomes a legal boundary if it has been “recognized and acquiesced in by the parties or their grantors for a period of ten consecutive years.” This is a fact specific inquiry. While the Court agreed that prior owners regarded the fence-line as the property boundary, this changed in 2014 with the Hubbells’ common ownership of the parcels. The Court interpreted Iowa Code section 650 as requiring two different parties to agree on the boundary during an uninterrupted period of ten years leading up to the claim. Thus, the Court held that “when two adjoining parcels come under common ownership, any potential boundary by acquiescence between them is eradicated, and the clock starts anew upon a subsequent separate conveyance.” Justice Mansfield delivered the opinion of the Court, joined by Chief Justice Christensen and Justices Waterman and McDermott.

Justice McDonald filed a special concurrence, joined by Justice May. Justice McDonald disagreed with the majority’s legal approach of surveying the decisions of other jurisdictions before interpreting Iowa law. He would reach the same conclusion based on Iowa law alone.

Justice Oxley dissented, viewing the “majority’s conclusion [as] inconsistent with the fact that boundaries by acquiescence are self-executing.” That is, after the ten-year period, the boundary becomes the legal boundary and future conveyances do not change the acquiesced boundary. Justice Oxley argued that common ownership may eviscerate a boundary by acquiescence, but it does not necessarily do so under all circumstances. The proper inquiry in Justice Oxley’s view was whether the Hubbells, as common owners of the north and south properties, did anything to repudiate the acquiesced boundary. And the Hubbells did not repudiate the acquiesced boundary but continued to regard the fence-line as the property boundary, as evidenced by their construction of a machine shed and a grain bin over the correct property line. Because a boundary by acquiescence was automatically established when the prior owners recognized the fence-line as the boundary line for a period of ten years, and the Hubbells did not do anything to affirmatively change the line, Justice Oxley would have affirmed the district court.

 

Mark Vagts, Joan Vagts, Andrew Vagts, and Vagts Dairy, LLC v. Northern Natural Gas Company, No. 23-0537

Opinion date: June 21, 2024

On appeal from the Iowa District Court for Fayette County

Issues:

• Whether negligence is an element of nuisance claims under Iowa law.
• Whether there was sufficient evidence to support the special damages award for personal inconvenience, annoyance, and discomfort.

The Vagts family has operated a dairy farm in West Union, Iowa since 1957. Northern Natural Gas Company (NNG) operates a natural gas pipeline that runs under the Vagts’ property. In 1960, the Vagts granted NNG an easement to operate the pipeline. Since 1964, NNG has used a cathodic protection system to prevent pipeline corrosion, which involves running a low-level electrical current through the pipeline. But in 2013, NNG installed new anodes. It was around that time when “bizarre, abnormal behavior” became apparent among the Vagts’ dairy herd. In 2017, the Vagts expanded their dairy operation, which brought the free stall barn closer to NNG’s pipeline and cathodic protection system, further exacerbating the abnormal behaviors and health issues, leading to significant financial losses. After consulting with various experts and testing stray voltage, the Vagts found DC electrical currents on their farm, attributed to NNG’s system.

In 2021, the Vagts filed suit against NNG, alleging both nuisance and negligence. The Vagts later dismissed their negligence claim, and the case went to trial on the nuisance claim alone. At trial, the parties disagreed about whether negligence was an element of nuisance. The district court agreed with the Vagts that negligence was not an element of the nuisance claim and instructed the jury accordingly. The jury found in favor of the Vagts, awarding them $3 million in economic damages, $1.25 million for personal inconvenience, annoyance, and discomfort, and $500,000 for the loss of use and enjoyment of land. On appeal, NNG relied on the inherent danger requirement from the Iowa Supreme Court’s 2002 opinion in Martins v. Interstate Power Company and argued that the Vagts were required to prove nuisance-by-negligence because operation of a gas pipeline is not inherently dangerous. NNG also argued that the district court erred in denying its post-trial motions because the evidence did not support a $1,250,000 award for special damages.

The Iowa Supreme Court affirmed, finding that both the Iowa Code as well as case law maintain a distinction between nuisance and negligence. The Court rejected NNG’s argument that negligence is an element of nuisance where the underlying conduct is not inherently dangerous. Instead, the Court declined to extend Martins because the inherent danger principle conflicted with Iowa’s long-standing rule that “nuisance is an unreasonable interference with an ordinary use of property without regard to negligence and without regard to whether the nuisance-producing conduct was inherently dangerous.” As for the special damages issue, the Court chose not to disturb the jury’s verdict because the award was reasonable. Justice McDonald authored the opinion of the Court, joined in full by Justices Oxley, McDermott, and May.

While Justices Christensen, Waterman, and Mansfield joined part III of the majority opinion and agreed that NNG was not entitled to a new trial, Justice Mansfield authored a special concurrence regarding the majority’s discussion of Iowa nuisance law, in which Justices Christensen and Waterman joined. Justice Mansfield highlighted the fact that NNG had an easement from the Vagts which allowed NNG to operate a pipeline and install a cathodic protection system. It was important to the dissent that NNG at all times operated in accordance with the easement, and the Vagts never had issues with the stray voltage until they chose to expand their operation closer to the anode bed. Justice Mansfield also distinguished between “classic nuisance,” which includes activities that would “clearly bother any ordinary property owner who lived nearby,” from the stray voltage situation in this case because “[u]nlike odors, pollution, and the like, stray voltage is not a problem for most property owners but only for those who own dairy herds.” Justice Mansfield argued that such specialized harms cannot support strict-liability nuisance claims. According to Justice Mansfield, absent an activity that would cause harm and annoyance to an ordinary neighbor (strict-liability nuisance), proof of negligence is required to succeed on a nuisance claim. Nonetheless, because this argument distinguishing between strict-liability and negligence-based nuisance was not raised by NNG, the dissent would affirm the verdict.

 

State of Iowa v. Shannon Paige Hightower, No. 22-1920

Opinion date: June 21, 2024

On appeal from the Iowa District Court for Black Hawk County

Issues:

• Whether a guilty plea was defective for not advising the defendant of the maximum punishments.
• Whether the district court relied on an improper sentencing consideration when it considered a defendant’s failure to make pre-sentence payments of victim restitution before the restitution was ordered.
• Whether the district court erred by ordering forfeiture of the defendant’s appeal bond to pay victim restitution.

In 2020, Shannon Hightower was charged with two felonies: dependent adult abuse and second-degree theft. The charges were based on allegations that Hightower, who had power of attorney of an adult dependent, J.S., misused J.S.’s funds, including opening and misusing credit cards in J.S.’s name, resulting in over $16,000 in losses. Hightower originally pleaded not guilty, but she signed a guilty plea to both charges two years later. The district court then sentenced Hightower to concurrent prison terms, influenced in part by Hightower’s failure to pay restitution prior to sentencing. Hightower, believing she would receive only probation, requested time to make arrangements for her children before she was taken into custody. In the following days, Hightower filed a motion to stay her sentence as well as a notice of appeal, raising several issues with her plea and sentencing. The court then set a $17,000 cash appeal bond to be used for victim restitution, not refundable to the payer. Hightower filed a second appeal regarding the appeal bond. The Supreme Court retained and consolidated both appeals.

The Iowa Supreme Court affirmed in part, reversed in part, and remanded with instructions. Hightower contended that her guilty plea was not made voluntarily and intelligently due to several irregularities in the written plea form, such as ambiguities about whether she was seeking a deferred judgment and incorrect information about fines and penalties. While the court acknowledged these concerns, it did not find them sufficient to conclude that the plea was involuntary or unintelligent. However, the Court did hold that the guilty plea was defective because it did not inform Hightower of the maximum possible fines for her offenses, a requirement under Rule 2.8(2)(b). The written plea stated that the maximum possible fine was $0, even though the actual maximum possible fine was $7,500 for each charge. Despite this substantial defect, under Iowa Code section 814.29, a plea cannot be vacated unless the defendant shows that she more likely than not would not have pleaded guilty if the defect had not occurred. Hightower argued that she met this burden based on her statements at sentencing that she believed there was an agreement for probation. The court disagreed, finding her comments insufficient to show she would have gone to trial instead of pleading guilty. Next, Hightower raised constitutional challenges, arguing that Section 814.29 violates due process by limiting appellate review of guilty plea challenges. The Court rejected this claim, noting that due process does not require unfettered appellate review and that Hightower still had the opportunity to challenge her plea in an action for post-conviction relief.

The Court also disagreed with Hightower’s argument that Iowa Rule of Criminal Procedure 2.10(3) required the district court to offer Hightower an opportunity to withdraw her plea at the sentencing hearing. Rule 2.10(3) applies to plea agreements conditioned on the court’s approval of a specific sentencing agreement. Here, the court was not bound by an agreed-upon sentence, and the parties did not present an agreed-upon sentence at the sentencing hearing. Therefore, Rule 2.10(3) did not apply, and the court was not required to allow Hightower to withdraw her plea.

The Court, however, agreed with Hightower that the district court considered an improper sentencing factor when it considered her failure to make pre-sentence payments of victim restitution. Relying on this factor was erroneous since Hightower had not been ordered to pay restitution prior to sentencing. Thus, resentencing was required.

Finally, Hightower raised two complaints about her appeal bond: the amount and the forfeiture requirement. The court declined to review the amount issue as moot, but held that the forfeiture requirement was erroneous, in conflict with Iowa precedent requiring the disbursement of bail money. Ultimately, the Court affirmed Hightower’s conviction but vacated her sentence and remanded for resentencing before another judge. Justice May authored the opinion of the Court, joined by justices Waterman, Mansfield, McDonald, and Oxley.

Justice McDermott dissented, joined by Chief Justice Christensen. Justice McDermott argued that Hightower met the requirements of Iowa Code section 814.29 by demonstrating that she likely would not have pleaded guilty if not for the plea defect. The dissent criticized the plea agreement’s clarity and accuracy, noting numerous inconsistencies and confusing elements. Justice McDermott pointed out that the plea agreement included misleading terms about sentencing expectations, which caused Hightower’s evident shock and confusion upon receiving a harsher sentence than anticipated. Justice McDermott would have vacated the guilty plea and sentence as neither voluntary nor intelligent and remand the case.

 

Nathan Daniel Olsen v. State of Iowa, No. 22-0779

Opinion date: June 28, 2024

On further review from the Iowa Court of Appeals

Issues:

• Whether the statute permitting only those who currently live, work, or attend school in Iowa the opportunity to modify their sex offender registration requirements unlawfully discriminates against nonresidents in violation of the Privileges and Immunities Clauses of the Iowa and United States Constitutions.
• Whether the five-year waiting period of Iowa Code section 692A.128(2)(a) begins tolling from the original registration date or whether each period added for non-compliance “commences” a new requirement to register and therefore a new tolling period.

Nathan Olsen was convicted of a sex offense in Wisconsin in 2009, a conviction that required him to register as a sex offender in Iowa should he decide to live, work, or attend school in the state. While living in Iowa, Olsen fulfilled his registration duties until 2017, when he failed to report his purchase of a new vehicle within the five days allotted by statute. This offense required him to register as a sex offender in the state for an additional ten years. Olsen then moved to Illinois and was placed on “inactive status” in Iowa. While a resident of Illinois, Olsen filed an application in Iowa district court seeking to modify his sex-offender status in anticipation of moving back to Iowa. If granted, Olsen would be allowed to live with his partner and her children in Iowa, an arrangement that would typically be prohibited for registered sex offenders. Olsen met all the requirements for modification except for the resident requirement. Because the modification statute only allows for modification of sex offender status for people who live, work, or attend school in Iowa, the district court dismissed his application. The Iowa Court of Appeals affirmed the dismissal.

The Iowa Supreme Court vacated the decision of the Court of Appeals. Olsen argued that the statute violates the Privileges and Immunities Clauses of both the Iowa and United States Constitutions because it unlawfully discriminates against out-of-state residents by not giving them the same modification opportunity as Iowans. First, the Court acknowledged that the right to access the courts of a state is a fundamental right, which the residency restriction of section 692.1010(20) denies to non-residents. However, on the second prong of the constitutional analysis, the Court noted that the record is void as to any sufficient justification the State may have for the distinction between residence and non-residence. The Court remanded the case for the parties to present evidence on the State’s justification and its sufficiency before the constitutionality of the statute could be determined.

Alternatively, the State argued that, even if Iowa Code section 692A.128 does apply to Olsen, he is not eligible for modification because the statute requires five years to pass from the date of commencement of his requirement to register before modification is permissible. The State calculated the waiting period from the commencement of Olsen’s second ten-year registration requirement in 2020 and therefore argued that Olsen would not be eligible for modification until 2025. The district court did not address this argument but “implicitly ruled against the State when it held that Olsen met all the requirements to seek modification other than the residency requirement.” The Court held that Olsen satisfied the five-year waiting period because the commencement of his registration requirement was 2009. In the Court’s view, the additional ten years for Olsen’s failure to report his purchase of a new vehicle did not begin a new commencement date for purposes of the calculation. Olsen did not have to re-register but just continue to register for longer than he otherwise would have. Under this interpretation of the statute, Olsen was eligible for modification in 2014, five years after the original 2009 requirement. Justice McDermott authored the opinion of the Court, joined by Justices Waterman, Mansfield, and Oxley.

Justice McDonald filed a dissenting opinion, joined by Chief Justice Christensen and Justice May. Justice McDonald did not “think it necessary to reach Olsen’s constitutional claims to resolve this case.” Yet, he views the Court’s constitutional analysis as “demonstrably erroneous” because its interpretation gives nonresidents greater constitutional rights than Iowans by allowing nonresidents to apply for modification before they are even on the State’s registry.

With respect to the five-year waiting period, Justice McDonald agreed with the State that the period should be measured from the date of commencement of Olsen’s current registration obligation, which in Justice McDonald’s view “commenced” in 2020. The dissent points to the grammatical structure of section 692A.128(2)(a) to conclude that “the requirement to register” indicates a reference to the second registration date in 2020. Additionally, Justice McDonald pointed to the purpose of the statute. Given the legislature’s goal of protecting the public by “requiring those convicted of violating the sex offender registry to register for an additional ten-year period due to their demonstrated noncompliance,” it would make little sense that the legislature would nonetheless intend for “those same persons to be immediately eligible to petition to be removed from the registry even prior to the commencement date of the new ten-year registration requirement.” Thus, Justice McDonald would have affirmed the judgment of the district court.

 

Tags: Iowa Supreme Court 2023-24