*1 OF APPEALS DECISION may arrive at a COURT the court VACATED; expend that the hours DISTRICT COURT JUDG- conclusion general specifying PART, without IN RE- ed were excessive MENT AFFIRMED unreasonably hour that was PART, each exactness REMANDED. IN AND VERED Moines, Des City Lynch spent, of (Iowa 1990), it still must “[djetailed of fact with findings
provide considered its [in factors to the
regard attorney fee award.” of]
determination case, In this
Butcher, at 897. concluded apparently
the court $25,000 in trial was entitled
plaintiff FORMARO, Appellant, Paul $25,000 Robert in appel attorney fees court these attorney fees. It then divided late applicable reasonable amounts appellate
hourly rates for trial and work Iowa; City COUNTY, of POLK number of the reasonable determine Ankeny, Iowa expertise the court its hоurs.2 “While Iowa, Appellees. reducing justified have been No. 08-0255. hours, attorneys’ under plaintiffs court, by the we cannot
methodology used
Supreme
of Iowa.
Court
appellate review. See Gen.
afford effective
(“district
Elec.,
court
the reasonableness
award”). Therefore, we remand this case findings
to the district court for detailed utilizing the factors enunciated in
fact
Dutcher to determine the reasonableness by Boyle’s attorneys. claimed
of the hours find, however, that it is neces
We do not appor court to further
sary for the district beyond trial attorney-fee
tion the award proceedings appellate pro court
ceedings. Upon the court’s determination pursuant
of a fee to the Dutсh- reasonable factors, that divi plaintiff
er is advised amongst the
sion of the awarded fees at
torneys should be consistent with the Iowa gener
Rules of Professional Conduct. See 32:1.5(e)
ally (pro R. Iowa Profl Conduct
viding between attor for division fees firm).
neys who are not in the same hour, typically upon of an an amount not 2. We reach this conclusion based dredth finding fact the trial of the reasonable legal billing practice. court's found in number of hours is determined to the hun- *3 Alfredo Parrish Parrish Kruidenier Dunn Gentry Boles Gribble Parrish & Fisher, L.L.P., Moines, appellant. Des for Miller, General, Attorney Thomas and because J. the court found that there was a Guddall, low risk Attorney that Formaro would Forrest Assistant Gen- reoffend. eral, appellee for State. later, years Two plaintiff participat- burglary ed of a home. Sarcone, County Attorney,
John P. Polk adult burglarized resident of the home was and Michael B. and Roger O’Meara J. assaulted, sexually partic- Formaro did not Kuhle, Attorneys, County Assistant Polk ipate directly in the assault. Formaro appellee County. Polk pled guilty burglary, received an inde- Perkins, Harry III and Jason Miller W. terminate ten-years imprison- sentence of Firm, L.L.P., Law Patterson Des ment, and was incarcerated at the Mt. *4 Moines, appellee City Ankeny. for Pleasant Faсility. Correctional at Pleasant, Mt. Formaro was not required to APPEL, Justice. participate in sex pro- offender treatment case, again upon we are called to grams, placed upon but was the sex of- challenges consider constitutional to Iowa registry. fender (2005),1 commonly section 692A.2A Code paroled When Formaro was in Novem- rule, known the 2000-foot which as limits ber he lived with parents his in places where certain sex offenders Ankeny approval with the probation of his appellant reside within the stаte. The In September however, officer. sought declaratory judgment that Iowa Lockridge, David parole Formaro’s new Code section 692A.2A violates his state officer, discovered that parents’ Formaro’s rights and federal constitutional because it: home was within 2000 feet of an elementa- (1) infringes upon his to travel and result, ry school. As a in- Lockridge (2) association, freedom of utilizes terms formed Formaro that at living par- his impermissibly vague that are or overbroad ents’ home he was in violation of the 2000- (3) process, in violation of due is an uncon- October, foot rule. Formaro was (4) attainder, stitutional bill and is an ex served with a notice of violation under post facto law. For the reasons expressed given Iowa Code section 692A.2A and five below, the district judgment court dismiss- days to move out of his parents’ home. ing each of these claims is affirmed. notice, receiving After Formaro’s mother, Leonard, began Barbara to search
I. Factual and Procedural Back- housing for alternative while Formaro ground. family’s himself continued to wоrk at the restaurant, where he earned between $600 fifteen, At age Robert Formaro was per month. $1200 juvenile found as a to have committed sexual in degree against abuse the second searching eight After to twelve hours County another minor. The Polk Juvenile Ankeny, for a residence in Leonard located placed Court ordered Formaro not be only apartment one that fell outside the limitations, the sex registry offender for the offense 2000-foot but there were no action, During pendency 1. substantially readoptеd. § of this Polk rule was Id. County party exist, filed a motion to dismiss it as a changes While minor structural we do due Assembly’s signifi- to the Iowa General any not believe of the revisions are material 692A, changes chapter cant to Iowa Code such, presented deny the claims here. As we including repeal of section 692A.2A. 4 County's Polk motion dismiss address (West 2009). We, Legis. § Iowa Serv. argu- the merits of Formaro’s constitutional nevertheless, legislative do not believe the ac- ments. tion moots Formaro's claim. The 2000-foot Fur- irreparable harm. not sufficient in was began then search She vacancies. ther, from this legal precedents based on eight hours of effort Altoona, after but Circuit, the district properties Eighth rental court and no available could find limitations. Formaro had not the 2000-foot concluded that court that were outside Moines, turned to Des on the strong then likelihood of success Leonard shown acceptable court, rental one she found claims. The district where merits of his however, application, Formaro’s however, motions to dismiss property. dеnied the the landlord consid- rejected Ankeny. was because County City Polk tenant an undesirable to be ered Formaro reconsider, The filed a motion conviction. She did burglary to his court failed to ad- noting that the district Polk unincorporated areas of not look The separate motion to dismiss. dress its just have “they don’t County because January entered an order district unincorporated areas in these apartments all dismissing against I defendants Count ” Finally, Leonard looked much.... State, allow- against III but and Count Moines, unable to but was also West Des go forward. ing remaining claims complied property find a rental *5 parties, of the the case With the consent listed on persons for city’s restrictions court on the was submitted to the district registry. the sex offender the December hear- record established at unable to secure was Leonard While temporary a ing application on the for Formaro, found him Lockridge housing for court held that injunction. The district in a Des Moines motel for live place a with- Formaro’s constitutional claims were evidentiary hear- After the a month. $800 timely merit. Formaro filed a notice out matter, Formaro secured hous- ing appeal. of in Des Moines for ing apartment at an per month. $400 Review. II. Standard of 2005, a Formaro filed In November remaining appeal on The issues against in district court petition four-count of application concern the constitutional Iowa, County, Polk and the the State of residency restrictions to sexual offender I, Ankeny. In Count Formaro City of reviews constitution Formaro. The court that he was not sub- sоught a declaration Groves, 742 al claims de novo. State v. II, In rule. Count he ject to the 2000-foot (Iowa 2007). 90, 92 the 2000-foot sought a declaration on its face and as rule was unconstitutional III. Discussion. III, In Formaro to him. Count
applied monetary under federal law. sought relief Right Travel and Freedom A. IV, injunctive sought Count century Almost half a of Association. emergency hearing an requested relief and Supreme Court rec ago, United States residency his restrictions. address right a constitutional ognized federal a Each filed motion to dismiss defendant Guest, travel. States v. interstate United petition. 758, 1170, 1178, 745, 86 S.Ct. 16 383 U.S. (1966). 239, December, The textual hearing in the dis- L.Ed.2d 249 After a however, right, source for the fundamental application trict denied Formaro’s times, it attrib The district court is uncertain. At has been injunctive relief. and Immunities permissi- Privileges had found a uted to the noted that Formaro of and the Fourteenth The fact that Formaro Clauses Article IV ble residence. Clause than he would like Amendment and to Commerce might pay have to more
839
Cincinnati,
484,
(6th
from the
has been inferred
federal
310 F.3d
498
or
Cir.
2002);
Casavilla,
gоvernment
Spencer
171,
of
created
structure
903 F.2d
(2d
Att’y
Cir.1990);
York,
Constitution.
Gen. v. Soto-
174
City
Federal
Lutz v.
of
902,
898,
2317,
(3d Cir.1990).
476
106
Lopez,
255,
U.S.
S.Ct.
899 F.2d
268
The Unit
(1986).
2320,
90 L.Ed.2d
Supreme
yet
ed States
has
explic
Court
itly
issue,
weigh in on
though
some
right
The fundamental
to travel
jurists
support
have found
for a federal
components.
recognized
has three
Saenz
right to
precedent,
intrastate travel
its
Roe,
U.S.
S.Ct.
especially
Douglas’s
Justice
concurrence in
(1999).
First,
L.Ed.2d
a
Simmons,
Aptheker. See
445 N.W.2d at
citizen of one state
enter and leave
(Lavorato, J., dissenting).
Second, another state.
Id.
citizen оf
This court
the constitutionality
state
to be
revisited
right
one
has “the
treated as a
juvenile
years
visitor
than as an un
curfew statutes three
welcome
rather
af
friendly
temporarily present”
City Maquoketa
alien when
ter Simmons
v. Rus
sell,
(Iowa
Third,
1992).
in another state.
Id.
a citizen of
Recognition right of fundamental to right and stаte constitutional intrastate specula- interstate travel has led wide travel thus a live wire. remains regarding of a tion the existence corre- right to travel. sponding intrastate This recognize Formaro invites us to those court, however, expressly has yet not em- rights that argues here and Iowa Code right. City braced such a Panora v. of section 692A.2A on its face violates his (Iowa Simmons, 1989), 445 363 N.W.2d right and federal to intrastate state travel declined to strike down a munic- and freedom of association. He claims juvenile law, with ipal mаjority curfew effectively prohibits that the statute him concluding “right of intracity that any traveling from location where he is right....” travel not a fundamental zone, asleep fall within the 2000-foot Simmons, (emphasis 445 at 369 N.W.2d him from participating overnight bars added). dissented, Justice Lavorato not- assemblies, political overnight religious as- “A ing, society, hallmark of a the right free semblies, any overnight or other lawful travel, perhaps is the most of cherished assembly, family gatherings, including our rights.” all fundamental Id. at 371 accessing him medical prevents from care (Lavorato, J., dissenting). by criminalizing any effort to receive medi- the use of involving Several federal circuit courts after Sim- cal services anesthetic mons, however, recognized hospitals, in area all overnight stays have a funda- or of right protected fall feet of a mental to intrastate travel under the which within 2000 City constitution. v. location. federal Johnson of
840 2006) necessary (upholding an Arkansas sex offender that it not is conclude
We
high-
registration
prohibited
there is a
statute that
whether
to determine
this case
risk,
living
from
registered
in-
offenders
right to
sex
constitutional
or state
federal
daycare
because,
2000 feet
a school or
rights within
of
even if such
travel
trastate
against a
that
the statute
in this
center
claim
been no violation
exist,
has
there
right
to intra
the constitutional
in the next
violated
be demonstrated
As will
case.
travel).
reading of the sex of-
state
section, Formaro’s
The
residency
is too broad.
statute
fender
Vagueness. The Due
B.
Pro
where
rule dictates
2000-foot
of
Clause
the United States Constitu
cess
the tra-
implicate
dоes not
may reside but
provides
“deprive
that no
shall
tion
trav-
of the freedom of
protections
ditional
life, liberty,
of
or
any person
property
Appeals
of
el.
noted
Court
As
Const,
process
of law.” U.S.
without
Circuit,
addressing the
when
Eighth
XIV, §
“Among
things,
other
amend.
Miller,
in Doe v.
N.W.2d (Iowa 2006). broadly Vilsack, too 725 N.W.2d 651 sweeps statute a plies where it Amendment law is that substantially danger chills First of such a de “The protection the accused of the afford rights. prives Id. Swartz, v. by judicial process.” State ed rule the 2000-foot claims that Formaro (Iowa 1999). “A bill 601 N.W.2d 351 the exercise impinges on is overbroad requires spеc three elements: of attainder by pre- freedoms Amendment of his First legislation, the target as to the of ificity in over- participating from venting him the lack a punishment, of of imposition or other religious, family, night political, Phillips, judicial trial.” prevent it He also claims will assemblies. (Iowa 2000). 840, 843 N.W.2d receiving necessary medical him from treatment, implicates he claims which already This court has determined that rights. Amendment First residency found section restrictions previously, agree. As noted do not We a of attain do not constitute bill 692A.2A 692A.2A, reading of section proper under a Willard, 207, 212 756 N.W.2d der. State all-night lawfully attend an can Formaro (Iowa 2008); Dep’t v. Iowa Wright of service, po- or family gatherings, religious (Iowa 2008). Corrs., 213, 218 area. protected rallies even within a litical Willard, this that al court determined impinges 2000-foot rule targeted rule a though the 2000-foot readi residence, a establish where offenders ly-identifiable group whose —sex fundamental to live where there is no did chapter were not victims minors—the you certainly upon not one based want and constitute a bill of attainder as residen Miller, 405 F.3d at the First Amendment. punish cy restrictions did not constitute 714; Leroy, Ill.App.3d People v. Willard, N.W.2d at Addi ment. (2005) Ill.Dec. 828 N.E.2d tionally, we held that section 692A.2A did child sex (holding prohibited statute which attainder as not constitute bill of those feet of living from within 500 offenders subject to the restrictions were afforded unconstitutionally not over- school was process Wright, of law. him from prevent as statute did not broad Wright noted at 218. the court family, merely but restricted living with underlying conviction was established so, permitted to nor did where he was do it prior imposition of the restrictions. visiting offender prohibit from his Here, Wright afforded a crimi- had been basis). daily As family on Formaro’s charge in 1977 nal trial on the statuto- impli- not First Amendment freedoms are ry rape. applies Section 692A.2A him 692A.2A, by cated section his overbreadth only because this conviction.... claim must fail. Because affected Id. those residen- Bill of Both D. Attainder. subject judicial cy restrictions were in- and the Iowa United States Constitution underlying criminal tervention prohibit legislative enact Constitution no could be charge, bill attainder found. Const, of bills of attainder. U.S. art. ment Id. *9 (“No I, any § ... pass 10 State shall Bill Const, ”); I, prece- acknowledges prior art. this of Attainder.... Iowa (“No He, nevertheless, to § 21 bill of attainder ... shall ever dent. seeks distin- Wright, legis A bill a his case unlike he passed.”). guish be of attainder is because subject that on was to 2000-foot rule due to a punishment lative act inflicts a the adjudication not an readily juvenile and adult particular individual or identifiable
843
juvenile pro-
criminal
Because
the
to
nonpunitive,
conviction.
statute
be civil and
the
incorporate
pano-
ceedings
legislative
do not
the full
intent does not control. Id.
rights
situations,
in
ply of constitutional
which adhere
such
this court
look
must
to the
“ ‘
a
prosecution,
criminal
Formaro asserts
statute to determine
it
whether
is
“so
“judicial
that he has not been afforded a
in
punitive
purpose
either
or effect as to
’
by
required
prior precedent.
trial” as
our
negate”
the nonpunitive intent.”
Id.
Doe,
84, 92,
v.
(quoting Smith
538 U.S.
123
we were to
Even if
assume
1140, 1147,
164,
S.Ct.
155 L.Ed.2d
176
correct, his
Formaro was
bill-of-attainder
‘“
’
(2003)).
“[0]nly
proof’
the clearest
claim nevertheless must fail. As will be
will
what
legislature
transform
the
has
section,
seen in the
on
record
next
the
a civil regulatory
denominated
measure
presented, Formaro has not
his bur
met
Miller,
into a
penalty.”
criminal
405 F.3d
den of
that the
restric
showing
residency
Smith,
92,
at
(quoting
718
at
538 U.S.
123
tions in
punish
section 692A.2A constitute
176).
at
S.Ct.
L.Ed.2d at
ment.
We addressed whether section 692A.2A
E. Ex Post Facto. Both the
prohibition
post
violated the
on ex
facto
federal and state constitutions contain Ex
in Seering.
Seering,
laws
a divided
“
ap
Post Facto
which
Clauses
‘forbid the
legislature’s
determined
thе
in
plication
punitive
new
of a
measure to
enacting
tent in
the
rule
2000-foot
was not
”
committed,’
conduct already
prohibit
and
punitive. Seering, 701
at
N.W.2d
667.
“
a statute which ‘makes more burdensome
then
The court
went on
apply
to
the fac
punishment
the
com
crime after its
tors
in Kennedy
articulated
v. Mendoza-
”
State,
mission.’
Schreiber
N.W.2d
666
Martinez,
144, 168-69,
372 U.S.
83 S.Ct.
(Iowa 2003)
127,
(quoting
129
Cor
State v.
554, 567,
(1963),
9 L.Ed.2d
661
(Iowa
win,
2000));
616
601
see
N.W.2d
if
determine
the law nevertheless had a
Const,
Const,
I,
10;
§
also
ait.
U.S.
Iowa
punitive
Id.
considering
effect.
After
I, §
art.
prohibition
post
of ex
“[T]he
the law
historically
whether
has been
only
applies
penal
facto laws
crimi
traditionally
to be pun-
considered
Flam,
nal actions.”
N.W.2d
587
ishment,
promotes
whether it
the tradi-
1998).
(Iowa
result,
“[p]ure
As
goals
punishment,
tional
whether it
ly civil
...
penalties
subjected
are not
imposes
disability
affirmative
or re-
Corwin,
restrictions,”
such
at
616 N.W.2d
straint, whether it has a rational connec-
601, “even
the civil consequences
where
nonpunitive
tion to some
purpose,
nature,”
are
Dep’t
‘serious’ in
Hills v. Iowa
it
respect
is
whether
excessive with
(Iowa
Transp.,
nonрunitive purpose^]
the
1995).
this court concluded that under the record
deciding
presented,
“In
whether a
it could
statute
not find that
2000-
violates
Ex Post Facto
im
imposed
punishment.
Clause
foot
criminal
rule
posing prohibited punishment,
first
it
Seering,
now approaches effectively punitive. tion 692A.2A above, expressed For the reasons denying decision of thе district court For- presented record to the dis- Under the declaratory judgment maro’s action for is court, agree. Forma- trict we cannot While affirmed. County ro of the the effect Polk mentions ordinances, City Ankeny he has not AFFIRMED. legality legislation. challenged the either presented solely are with appeal we J., justices WIGGINS, All except concur constitutionality of the of- state sex who dissents. residency restrictions. fender WIGGINS, (dissenting). Justice in Additionally, Seering, much like For- I believe Iowa Code continue to section applicable maro asserts that the standard 692A.2A the Ex Post Facto violates Claus- determining for whether the rule 2000-foot es of the United and Iowa Constitu- States punitive largely is depends whether in my tions the reasons set forth dis- law amounts to traditional banishment. in Seering, sent Pollard, But 908 N.E.2d see State (Iowa 2005) J., (Wiggins, 671-72 concur- (Ind.2009) (finding residency restric- part ring dissenting part). punitive, part, tions them similar- Therefore, I would reverse district ity requirements, probation not banish- grounds. court’s ruling on these ment). presented the record here Under we that cannot conclude Formaro will be
subject banishment under section Although
692A.2A. tes- Formaro’s mother spent looking several
tified she hours son,
for a residence for For- suitable her quickly permissible
maro was able to find
housing speaking probation after his
officer. Formaro estimated almost
ninety percent of the state falls within zones, maps
exclusion and certain were
admitted which tend substantiate that
claim, provided court was no in- housing
formation as to what available is
to registered sex offenders these outside