JOHN LEE HRBEK v. STATE OF IOWA
No. 19-1571
IN THE SUPREME COURT OF IOWA
April 16, 2021
Submitted December 16, 2020
Appeal from the Iowa District Court for Pottawattamie County, Kathleen A. Kilnoski, Judge.
Postconviction-relief applicant represented by counsel seeks review of interlocutory order prohibiting applicant from filing any additional pro se supplemental documents in postconviction-relief proceeding. AFFIRMED AND REMANDED.
McDonald, J., delivered the opinion of the court, in which Waterman, Mansfield, and Oxley, JJ., joined. McDermott, J., filed an opinion concurring in part and dissenting in part, in which Christensen, C.J., and Appel, J., joined.
Philip B. Mears of Mears Law Office, Iowa City, for appellant.
In the spring of 2019, the legislature passed and the governor signed an omnibus crime bill. See 2019 Iowa Acts ch. 140. As relevant here, effective July 1, 2019, the new law prohibits postconviction-relief applicants represented by counsel from filing “any pro se document, including an application, brief, reply brief, or motion, in any Iowa court.” Id. § 35 (codified at
I.
For the past thirty-four years, John Hrbek has been litigating a still-pending application for postconviction relief in an attempt to vacate his convictions for two counts of murder in the first degree. See generally State v. Hrbek, 336 N.W.2d 431, 437 (Iowa 1983) (conditionally affirming defendant‘s murder convictions); Hrbek v. State, No. 13-1619, 2015 WL 6087572, at *1, *3 (Iowa Ct. App. Oct. 14, 2015) (discussing the “bizarre procedural history of the PCR action” and ordering reinstatement of the postconviction case). Although Hrbek has been and continues to be represented by counsel in his postconviction case, Hrbek regularly files pro se supplemental documents in support of his application.
While Hrbek‘s case was pending, the legislature enacted an omnibus crime bill that prohibits represented postconviction-relief applicants from filing pro se supplemental documents in any postconviction-relief proceeding or postconviction appeal. In full, the new law provides:
1. An applicant seeking relief under section 822.2 who is currently represented by counsel shall not file any pro se document, including an application, brief, reply brief, or
motion, in any Iowa court. The court shall not consider, and opposing counsel shall not respond to, such pro se filings. 2. This section does not prohibit an applicant for postconviction relief from proceeding without the assistance of counsel.
3. A represented applicant for postconviction relief may file a pro se motion seeking disqualification of counsel, which a court may grant upon a showing of good cause.
In August 2019, pursuant to the omnibus crime bill, the district court entered an order prohibiting Hrbek from filing any additional pro se supplemental documents in his postconviction-relief proceeding. The district court directed Hrbek to forward any such documents to his counsel instead.
This court granted Hrbek‘s application for interlocutory appeal of the district court‘s order. Although Hrbek is represented by counsel in this appeal, he moved to file pro se supplemental briefs in support of his appeal. See
Hrbek raises several arguments contesting the applicability and constitutionality of section 822.3A. Hrbek contends the new law is inapplicable here because the new law should not be applied retrospectively to postconviction-relief proceedings pending on the effective date of the statute. If section 822.3A is applicable here, Hrbek contends the new law is unconstitutional and void. Specifically, Hrbek contends section 822.3A violates the separation-of-powers doctrine and violates
II.
Hrbek first contends section 822.3A is inapplicable here because the new law should not be applied retrospectively to postconviction-relief proceedings pending on the effective date of the statute. According to Hrbek, his right to file pro se supplemental documents vested in 1987 when he filed his application for postconviction relief. He argues the application of section 822.3A to now bar him from filing pro se supplemental documents would be an unlawful retrospective application of the statute.
Whether a statute applies retrospectively, prospectively, or both is simply a question regarding the correct temporal application of a statute. See Landgraf v. USI Film Prods., 511 U.S. 244, 291, 114 S. Ct. 1522, 1524 (1994) (Scalia, J., concurring in the judgment) (stating the “temporal application of a statute” is a “mundane question“). The determination of the correct temporal application of a statute is a three-part inquiry. First, the court must determine whether application of a statute is in fact retrospective. Second, if the court determines application of a statute is in fact retrospective, then the court must determine whether the statute should be applied retrospectively. Third, if the court determines a statute should be applied retrospectively, then the court must determine whether a constitutional rule prohibits retrospective application of the statute.
With respect to the first part of the inquiry, application of a statute is in fact retrospective when a statute applies a new rule, standard, or consequence to a prior act or omission. See Frideres v. Schiltz, 540 N.W.2d 261, 264 (Iowa 1995) (en banc) (“A law is retroactive if it affects acts or facts which occurred, or rights which accrued, before the law came into
The application of section 822.3A to Hrbek‘s pending postconviction-relief case and this interlocutory postconviction appeal is not a retrospective application of the statute within any common-sense understanding of the term “retrospective.” The statute prohibits represented postconviction applicants from filing pro se supplemental documents in any Iowa court. The event of legal consequence is the filing of pro se supplemental documents. The new law went into effect on July 1, 2019, but all of the events of legal consequence occur after that date. The district court‘s order was entered in August 2019. Hrbek filed his application for interlocutory appeal on September 20, 2019. Hrbek had his counsel file a final pro se supplemental brief and reply brief in this appeal on August 24, 2020, more than one year after the effective date of the statute.
Application of a statute to conduct occurring after the effective date is in fact a prospective and not retrospective application. See Miller v. LaSalle Bank Nat‘l Ass‘n, 595 F.3d 782, 788 (7th Cir. 2010) (analyzing the relevant retroactivity event and concluding statute had no retroactive effect); Combs v. Comm‘r of Soc. Sec., 459 F.3d 640, 648-49 (6th Cir. 2006) (“A focus on the ‘relevant activity’ in this case leads inexorably to the
Hrbek‘s position—that he has a vested right to forever avail himself of the filing and briefing rules in place when he filed his postconviction-relief application in 1987—is untenable. No serious person could contend the procedures governing each and every case become fixed at the time the petition is filed in the case. Must the district court know the procedures
III.
Having concluded section 822.3A applies to Hrbek‘s postconviction case and this appeal, we address Hrbek‘s claim that the new law violates the separation-of-powers doctrine and is unconstitutional.1 On
We recently resolved a materially indistinguishable separation-of-powers argument in State v. Thompson, 954 N.W.2d 402, 408-09 (Iowa 2021). Thompson involved a challenge to another provision of the omnibus crime bill—section 814.6A(1). See id. That provision prohibits represented defendants in criminal proceedings from filing pro se supplemental documents in any Iowa court. See
The demarcation between a legitimate regulation of court practice and procedure and an unconstitutional encroachment of the judicial power is context specific. “The separation-of-powers doctrine . . . has no rigid boundaries.” Klouda, 642 N.W.2d at 260. In this specific context, we hold section 814.6A, as applied to prohibit the filing of pro se supplemental briefs on appeal, does not violate any aspect of the separation-of-powers doctrine. See id.; Webster Cnty. Bd. of Supervisors, 268 N.W.2d at 873. It is the legislative department‘s constitutional prerogative to establish a general system of practice in all Iowa courts so long as those restrictions and regulations do not impede the immediate, necessary, efficient, or basic functioning of the appellate courts. Section 814.6A, as applied to pro se supplemental briefs on appeal, does not impede the immediate, necessary, efficient, or basic functioning of the appellate courts. Instead,
section 814.6A merely restricts represented parties from filing documents in the appellate courts and thus regulates the manner in which legal claims and arguments can be presented to the appellate courts for resolution. The legislature has exercised its constitutional power to decide that the claims and arguments of all represented parties on appeal should be advanced by counsel rather than the litigants. This does not offend the separation-of-powers doctrine. The new legislation thus supersedes Iowa Rule of Appellate Procedure 6.901(2) . SeeIowa Code § 602.4202(4) ; Judicial Rule Making, 48 Iowa L. Rev. at 924 (explaining Iowa‘s “judicial rules will be invalid when in conflict with a statute“).
While Thompson involved an appeal from a criminal proceeding and not a postconviction-relief proceeding or postconviction appeal, the rationale of Thompson applies with at least equal force in this case, and we need not repeat the analysis in full herein. In sum, the Iowa Constitution vests the legislative department with the duty and authority “to provide for a general system of practice in all the courts of this state.”
This change to the wholly statutory postconviction-relief regime is within the legislative department‘s constitutional authority “to provide for a general system of practice in all the courts of this state” and does not violate the separation-of-powers doctrine.
Hrbek contends section 822.3A violates his constitutional right to file pro se supplemental documents in postconviction-relief proceedings and postconviction appeals. The exact nature of his claim is not clear. Hrbek notes, prior to the enactment of section 822.3A, represented applicants in postconviction cases had a nonconstitutional right to file pro se supplemental documents. He argues this nonconstitutional right has been “engrafted” onto constitutional rights and now has “a constitutional dimension” placing the right beyond the reach of the legislature. In support of his argument, Hrbek cites a litany of constitutional rights: inalienable rights; the right to the assistance of counsel; the right to access the courts; the right to the equal protection of the laws; and “some principle of due process.” We conclude there is no constitutional right of any sort to file pro se supplemental documents in postconviction-relief proceedings and postconviction appeals.
A.
Prior to the enactment of section 822.3A, represented postconviction-relief applicants had a right to file pro se supplemental documents. This right was provided by a rule enacted in January 2001. See Iowa Sup. Ct. Supervisory Order, In the Matter of Iowa Rule of Appellate Procedure 13 (Oct. 18, 2000);
The right recognized by our rule of appellate procedure and our precedents decidedly was not of constitutional dimension. In Leonard, we held the district court had “discretion to deny a postconviction relief applicant‘s request to dispose with counsel.” 461 N.W.2d at 468. We reached that conclusion based on our interpretation of the statute authorizing the appointment and denial of counsel in postconviction cases. See id. We “temper[ed that] holding with one qualification,” explaining a postconviction applicant may file pro se supplemental documents in the proceeding. Id. The court made clear the right to file pro se supplemental documents was not based on the right to counsel. See id. (“But the sixth amendment applies only to criminal prosecutions and so has no application to postconviction relief proceedings.“). Leonard did not rely upon any constitutional provision to support its holding.
In Gamble v. State, we recognized that a represented postconviction-relief applicant could file pro se supplemental claims and held that the district court could not order appointed counsel to prepare a report evaluating the postconviction applicant‘s pro se supplemental claims. See 723 N.W.2d at 445-46. Our holding was grounded in
Finally, in Jones v. State, we reiterated what we said in Gamble: “the district court must give the applicant an opportunity to be heard on his pro se claims and must then rule on each issue raised.” Jones, 731 N.W.2d at 392. As in Leonard and Gamble, we did not cite any constitutional provision in support of our holding. Instead, we reiterated the right to counsel was not implicated in postconviction-relief proceedings. See Jones, 731 N.W.2d at 391 (stating “the Sixth Amendment right to counsel and the corollary constitutional right to dispense with counsel ‘applies only to criminal prosecutions and so has no application to postconviction relief proceedings‘” (quoting Leonard, 461 N.W.2d at 468)).
B.
Hrbek concedes the original right articulated in Leonard, Gamble, and Jones was statutory and could be abrogated by the legislature. He argues, however, the original statutory right recognized in Leonard, Gamble, and Jones has ripened and now has constitutional dimension. Hrbek grounds this right largely in the constitutional right to counsel. Hrbek argues this court should hold there is a constitutional right to counsel in postconviction cases, including an additional constitutional right for represented postconviction-relief applicants to file pro se supplemental documents.
In support of his argument, Hrbek relies on Martinez v. Ryan, 566 U.S. 1, 132 S. Ct. 1309 (2012). In Martinez, the Supreme Court addressed “whether a federal habeas court may excuse a procedural default of an ineffective-assistance claim when the claim was not properly presented in state court due to an attorney‘s errors in an initial-review collateral
[W]hen a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an ineffective-assistance claim in two circumstances. The first is where the state courts did not appoint counsel in the initial-review collateral proceeding for a claim of ineffective assistance at trial. The second is where appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington.
Id. at 14, 132 S. Ct. at 1318 (citation omitted).
Martinez does not support Hrbek‘s argument. The limited issue in that case dealt with cause to excuse a procedural default for the purposes of federal habeas review. The Martinez majority explicitly denied it was creating a constitutional rule and instead characterized the decision as an “equitable ruling.” Id. at 16, 132 S. Ct. at 1319-20.
The Supreme Court and this court have repeatedly stated there is no constitutional right to counsel in postconviction cases. See Coleman v. Thompson, 501 U.S. 722, 752, 111 S. Ct. 2546, 2566 (1991) (“There is no constitutional right to an attorney in state post-conviction proceedings.“), superseded by statute on other grounds,
In any event, Hrbek‘s argument regarding the right to counsel is misdirection; the constitutional right to counsel is not implicated in this appeal. The question in this appeal is whether a represented postconviction-relief applicant has a constitutional right to hybrid representation, that is, a constitutional right to file pro se supplemental documents in addition to counsel‘s briefs in a postconviction-relief proceeding. Even if there were a constitutional right to counsel in postconviction-relief proceedings or initial-review postconviction-relief proceedings, the right to counsel does not encompass an additional constitutional right to hybrid representation. As the Supreme Court of North Dakota explained:
A criminal defendant has either a constitutional right to counsel, or a constitutional right of self-representation. Under certain circumstances, a court may appoint standby counsel in its discretion to assist a defendant and to represent the defendant if termination of self-representation is necessary. However, a criminal defendant has no constitutional right to “hybrid” representation and to act as co-counsel with his attorney. Johnson‘s allegation of ineffective assistance relates solely to his post-conviction attorney‘s failure to act as hybrid co-counsel in the proceedings, a type of representation to which Johnson was not entitled. Johnson had the option of either allowing his attorney to file a brief on his behalf or filing a brief on his own behalf. He could not demand the filing and consideration of both briefs. Because Johnson had no right to demand that his counsel file a brief in addition to the one he filed on his own behalf, we conclude as a matter of law that post-conviction counsel‘s performance did not fall below an objective standard of reasonableness.
Johnson v. State, 681 N.W.2d 769, 778 (N.D. 2004) (citations omitted). We agree with this analysis.
In addition to his constitutional-right-to-counsel argument, Hrbek has named other constitutional rights in support of his claimed constitutional right to hybrid representation, including his inalienable rights, his rights to equal protection of the laws, his rights to access the courts, and “some principle of due process.” However, Hrbek has not developed these claims in any meaningful way, and we decline to develop these arguments on his behalf. See
Regardless, neither the Federal nor the State Constitution support Hrbek‘s claim that a represented party has a constitutional right to file pro se supplemental documents in a postconviction-relief proceeding or a postconviction appeal. There is no federal or state constitutional right of any sort to hybrid representation in criminal proceedings or postconviction relief proceedings. See Thompson, 954 N.W.2d at 416-17 (collecting cases); see also Clemons v. Pfister, 845 F.3d 816, 820 (7th Cir. 2017) (“He could dispense with his counseled briefs and represent himself to ensure that his preferred arguments were raised, or he could roll the dice and hope that the court would make an exception to the rule against hybrid representation and accept his pro se supplemental brief. There was nothing unusual or unfair about putting him to this choice.“); Powell v. Cockrell, No. 01-40229, 2002 WL 753488, at *6 (5th Cir. Apr. 8, 2002) (per curiam) (disregarding pro se arguments in postconviction proceedings because “Texas does not allow ‘hybrid representation.‘“); Smith v. Tice, 1:16-cv-0362, 2016 WL 4945205, at *4 (M.D. Pa. Sept. 16, 2016) (“There
D.
The right recognized in
V.
For these reasons, we reject Hrbek‘s challenges to section 822.3A. The clerk of the supreme court is directed to strike Hrbek‘s pro se supplemental briefs. The district court‘s order prohibiting Hrbek from filing additional pro se supplemental documents in his pending postconviction-relief case is affirmed.
AFFIRMED AND REMANDED.
Waterman, Mansfield, and Oxley, JJ., join this opinion. McDermott, J., files a separate opinion concurring in part and dissenting in part, in which Christensen, C.J., and Appel, J., join.
The defendant‘s constitutional challenge to
The Iowa Constitution establishes the “Jurisdiction of supreme court” and assigns to the supreme court the power to provide for “the correction of errors at law” and to “issue all writs and process necessary to secure justice to parties.”
The Iowa Constitution directs the legislature “to provide for a general system of practice in all the courts of this state.”
The judiciary bears the constitutional duty to decide cases and, thus, must have access to the tools that are part and parcel to carrying out this duty. By restricting who may file briefs with our court, the legislature limits the courts’ sources of knowledge, which is inextricably intertwined with the courts’ constitutional power to decide cases. Richardson v. Fitzgerald, 132 Iowa 253, 255, 109 N.W. 866, 867 (1906) (“[A]ny direction by the Legislature that the judicial function shall be performed in a particular way is a plain violation of the Constitution.“). Our own appellate rules expressly permit postconviction relief applicants to submit a pro se supplemental brief.
Once a case is before the court, the legislature doesn‘t have the power to control the arguments the parties may make, just as it doesn‘t have the power to control what courts may use, or consider, in arriving at their decisions. Courts “derive from the Constitution itself, once they have been created and their jurisdiction established, the authority to do what courts have traditionally done in order to accomplish their assigned tasks.”
The judicial power to decide cases is nothing more than what the framers might have called a “parchment power” if the legislature can dictate what the court may consider in reaching its decisions. See The Federalist No. 48, at 333 (James Madison). I concur in the majority‘s opinion in division II on the retrospective application issue that Hrbek raises. But for these and the other reasons I set out in my dissent in Thompson, I respectfully dissent from division III and would hold section 822.3A unconstitutional as a violation of the separation of powers.
Christensen, C.J., and Appel, J., join this concurrence in part and dissent in part.