STATE OF IOWA, Appellee, vs. HOWARD J. THOMPSON, Appellant.
No. 19–1259
IN THE SUPREME COURT OF IOWA
Submitted September 17, 2020—Filed February 5, 2021
Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge.
The defendant challenges his convictions for attempting to obtain a prescription drug by deceit and conspiracy to commit a nonforcible felony and challenges a statute disallowing represented parties from filing pro se supplemental documents. CONVICTIONS AFFIRMED.
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.
Kent A. Simmons, Bettendorf, for appellant.
Thomas J. Miller, Attorney General, Thomas J. Ogden, Assistant Attorney General, Michael Walton, County Attorney, and Nathan Repp and Jonathan Noble, Assistant County Attorneys, for appellee.
McDONALD,
Howard Thompson was convicted of two counts of attempting to obtain a prescription drug by deceit, as a habitual offender, in violation of
I.
On June 5, 2017, Thompson and his friend, Markita Elverton, drove together to a local grocery-store pharmacy. Elverton entered the store alone and presented to the pharmacy technician a prescription for Elverton for oxycodone. After dropping off the prescription, Elverton went to the customer service counter and mailed a letter. The return address on the letter was Markita Elverton, 1303 14th Street, DeWitt, Iowa. After mailing the letter, Elverton returned to the vehicle where Thompson was waiting. An employee of the pharmacy called the doctor’s office identified in the prescription and learned the prescription was fraudulent. A manager of the pharmacy notified law enforcement.
After Elverton returned to the vehicle where Thompson was waiting, she and Thompson drove across the street to a different pharmacy. This time, Thompson entered the store alone, and Elverton waited in the vehicle. Thompson dropped off a prescription for Claudia Williamson for hydrocodone. Hailey Drobushevich, the pharmacy technician, asked Thompson for an address. Drobushevich testified Thompson gave the address 1303 6th Street, Dewitt, Iowa. Thompson then returned to the vehicle where Elverton was waiting. An employee of the pharmacy called the doctor’s office identified in the prescription and learned the prescription was fraudulent. A manager notified law enforcement.
After Thompson returned to the vehicle, he and Elverton drove back across the street to the first pharmacy. Although Elverton dropped off the prescription just moments before, Thompson entered the store to pick up the prescription. While Thompson was standing by the pharmacy counter, he was approached by responding officer Cristina Thomas. Officer Thomas first asked, “Hey man, what’s going on? Do you have an ID on you, sir?” Thompson replied, “No.” Officer Thomas asked, “Do you know why I’m here?” And Thompson said, “No.” “Okay, the reason I’m here is because, apparently, you’re trying to pick up a fraudulent prescription,” Thomas stated. Thompson denied he was picking up a prescription, stating, “How I’m trying to pick it up though?” Thomas asked, “Are you trying to pick up a prescription, a
Thompson was arrested several months later and charged with two counts of attempting to obtain a prescription drug by deceit, as a habitual offender, and conspiracy to commit a nonforcible felony. At trial, Thompson’s defense was wrong place, wrong time.
Elverton testified on Thompson’s behalf. Elverton testified she had stolen prescription pads from a doctor’s office a few years prior to this incident. She testified the prescriptions she and Thompson presented were written on the stolen prescription pads and were fraudulent. She forged the prescriptions to obtain drugs because she had an addiction. According to Elverton, Thompson was only involved because she asked him to help her drop off and pick up prescriptions. She testified she did not tell Thompson there was anything improper about the prescriptions. She testified Thompson did not know the prescriptions were fraudulent. She testified that she pleaded guilty to criminal charges arising out of this incident and that she wanted to clear Thompson of any responsibility.
Elverton’s attempt to exculpate Thompson was not credible. For example, Elverton testified she wrote the prescriptions for the two drugs because of her drug addiction, but she could not remember the name of one of the drugs to which she allegedly was addicted and for which she forged a prescription. As another example, one of the prescriptions Elverton forged was for Claudia Williamson, but, when pressed, Elverton testified she had “no clue” who Claudia Williamson was. Also, according to Elverton, Thompson was dropping off prescriptions for Elverton, but Thompson presented the prescription for Williamson without ever asking who Williamson was. (Although not material to our resolution of the issues in this appeal, the presentence investigation report shows Claudia Williamson is Thompson’s biological mother.)
The jury found the defendant guilty of all charges. The district court concluded the sentence for the conspiracy offense merged with the sentences for attempt to obtain a prescription drug and sentenced Thompson to a term of incarceration not to exceed fifteen years.
II.
We first address Thompson’s evidentiary challenge. Our review is for an abuse of discretion. See State v. Martin, 704 N.W.2d 665, 671 (Iowa 2005); Jensen v. Sattler, 696 N.W.2d 582, 585 (Iowa 2005). Evidentiary decisions will be given “wide latitude regarding admissibility” so long as the district court did not ignore the established rules of evidence. State v. Sallis, 574 N.W.2d 15, 16 (Iowa 1998).
Because Elverton conceded the prescriptions were forged, the primary issue at trial was whether Thompson knowingly participated in the crime either as a principal or as an aider and abettor. One of the ways in which the State attempted to prove Thompson’s knowledge, intent, and motive was to show Thompson gave false residential address information to pharmacy technician Drobushevich. To prove this, the State tried to show the address Thompson gave to Drobushevich was not his address.
The State first called Officer Herve Denain. Denain was dispatched to Walgreens to investigate the incident and create a
The State also tried to prove Thompson gave a false address to the pharmacy technician by showing the address given differed from that on Thompson’s written arraignment and plea of not guilty. To lay foundation for the exhibit, the State called a judicial specialist from the clerk of court’s office. The written arraignment and plea of not guilty was a form document. Question two of the form stated, “My name, current mailing and residence addresses, and telephone number are,” which was followed by a blank space. The blank space was completed and stated Thompson’s mailing and residence addresses were “1303 14th Street, DeWitt, IA 52744.” The arraignment was signed by Thompson. The exhibit was admitted over the defendant’s objection.
Thompson contends Denain’s testimony regarding the address on the complaint and the arraignment form were not relevant. “Iowa has adopted a broad view of relevancy . . . .” State v. Scott, 619 N.W.2d 371, 375 (Iowa 2000) (en banc). “Evidence is relevant if . . . [i]t has any tendency to make a fact more or less probable than it would be without the evidence” and “[t]he fact is of consequence in determining the action.”
We conclude the district court did not abuse its broad discretion in determining the evidence was relevant and admitting the same over Thompson’s objections. The State was required to prove the defendant acted with the specific intent to obtain a prescription drug by deceit either as a principal or as aider and abettor. The unchallenged marshaling instruction provided the State was required to prove the defendant did so by one or more of the following methods: (1) fraud, (2) deceit, (3) misrepresentation, (4) subterfuge, or (5) using a false name or gave a false address. The district court could have reasonably concluded the defendant’s provision of the address tended to show the defendant did have the requisite mens rea. The evidence was relevant to show Thompson was living with Elverton and was thus more likely to be in on the fraud. It also showed Thompson gave false information. He provided the pharmacy technician with the house number “1303” but a street name different than his own. It would be highly coincidental if Thompson and Williamson each resided at house number “1303” but on different streets. The jury was free to infer from this that Thompson provided false address information for himself or false address information for the made-up Williamson.
Thompson implicitly concedes the evidence was relevant. In his brief,
Thompson also argues the evidence should have been excluded because it was unfairly prejudicial.
We reject Thompson’s argument that the evidence was unfairly prejudicial. Thompson argues the evidence was unfairly prejudicial “because it was the only evidence offered to show Mr. Thompson had any knowledge [Elverton] was acting in fraud.” Thompson misapprehends the nature of the inquiry. All “[r]elevant evidence is inherently prejudicial in the sense of being detrimental to the opposing party’s case.” State v. Delaney, 526 N.W.2d 170, 175 (Iowa Ct. App. 1994). The relevant inquiry is not whether the evidence is prejudicial or inherently prejudicial but whether the evidence is unfairly prejudicial. Unfairly prejudicial means the “evidence has an undue tendency to suggest a decision on an improper basis.” Id. The evidence here does not suggest a decision on an improper basis.
Given the latitude afforded the district court in matters of evidence, we cannot conclude the district court abused its broad discretion in admitting the evidence over the defendant’s objection.
III.
A.
The constitutional question in this case involves filing and motion practice in this court. Thompson is represented by counsel in this appeal. Nonetheless, Thompson filed his own brief in addition to the brief filed by counsel. The Iowa Rules of Appellate Procedure allow a represented party to file a pro se supplemental brief. See
The State filed a resistance to Thompson’s pro se supplemental brief. In its resistance, the State contended a recently-enacted law now prohibits a represented party from filing any pro se document in any Iowa court. See 2019 Iowa Acts ch.
A defendant who is currently represented by counsel shall not file any pro se document, including a 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.
We ordered the motion and resistance be submitted with this appeal and ordered the parties to brief the issue. In their briefing, the parties contest the constitutionality of the new legislation. Thompson contends the new statute violates the separation-of-powers doctrine and is therefore unconstitutional and void. The State contends the new statute is a proper exercise of the legislative department’s constitutional authority to regulate practice and procedure in Iowa’s courts. Because the specific issue in this case is whether the court is required to strike Thompson’s pro se supplemental brief, we focus our inquiry on the constitutionality of the law as applied in this appeal.2
B.
Where, as here, the separation-of-powers question arises out of proceedings in this court, “this court shall make its own evaluation, based on the totality of circumstances, to determine whether that power has been exercised appropriately.” Webster Cnty. Bd. of Supervisors v. Flattery, 268 N.W.2d 869, 872 (Iowa 1978) (en banc). “Because statutes are cloaked with a strong presumption of constitutionality, a party challenging a statute carries a heavy burden of rebutting this presumption.” Klouda v. Sixth Jud. Dist. Dep’t of Corr. Servs., 642 N.W.2d 255, 260 (Iowa 2002). “[T]he party must show beyond a reasonable doubt that a statute violates the constitution.” Id.
C.
“The division of the powers of government into three different departments—legislative, executive, and judicial—lies at the very foundation of our constitutional system.” State v. Barker, 116 Iowa 96, 108, 89 N.W. 204, 208 (1902). The “historic concept of separation of powers to safeguard against tyranny” is memorialized in the Iowa Constitution. Webster Cnty. Bd. of Supervisors, 268 N.W.2d at 873. The constitution provides:
The powers of the government of Iowa shall be divided into three separate departments—the legislative, the executive, and the judicial: and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining to either of the others, except in cases hereinafter expressly directed or permitted.
The separation-of-powers doctrine has at least three aspects. First, the doctrine prohibits a department of the government from exercising “powers that are clearly forbidden” to it. Klouda, 642 N.W.2d at 260 (quoting State v. Phillips, 610 N.W.2d 840, 842 (Iowa 2000) (en banc)). Second, the doctrine prohibits one department of the government from exercising “powers granted by the constitution to another branch.” Id. Third, “[e]ach department of government must be and remain independent if the constitutional safeguards are to be maintained.” Webster Cnty. Bd. of Supervisors, 268 N.W.2d at 873. Stated differently, one department of the government cannot “impair another in the performance of its constitutional duties.” Klouda, 642 N.W.2d at 260 (emphasis omitted).
1.
We first address the question of whether the enactment of section 814.6A violates the first two aspects of the separation-of-powers doctrine. That is, whether the legislative department exercised “powers that are clearly forbidden” to it or exercised “powers granted by the constitution to another branch.” Klouda, 642 N.W.2d at 260. In answering the question, “we first look to the words used by our framers to ascertain intent and the meaning of our constitution and to the common understanding of those words.” Chiodo v. Section 43.24 Panel, 846 N.W.2d 845, 851 (Iowa 2014); see also Allison v. State, 914 N.W.2d 866, 884 (Iowa 2018) (“Lawyers and judges who believe constitutional text matters must give the additional Iowa constitutional language its full meaning.”). We look at the “text of the document through the prism of our precedent, tradition, and custom.” State v. Brown, 930 N.W.2d 840, 861 (Iowa 2019) (McDonald, J., concurring specially); see also The Federalist No. 37, at 179 (James Madison) (Garry Wills ed., 1982) (stating legal meaning must “be liquidated and ascertained by a series of particular discussions and adjudications”).
The constitutional duty of the judicial department is to exercise the judicial power to provide for the fair and impartial administration of justice. The constitution vests the judicial power in the “supreme court, district courts, and such other courts, inferior to the supreme court, as the general assembly may, from time to time, establish.”
The power of appellate review is one aspect of the judicial power. It is the power of an appellate court to correct legal error in the lower courts. The power of appellate review is vested in this court by the constitution. See
The judicial department has several fonts of authority to regulate court practice and procedure in all Iowa courts. The judicial department has constitutional authority to supervise and administer “all inferior judicial tribunals throughout the state.”
However, the constitutional text reserves to the legislative department authority to regulate the practice and procedure in all Iowa courts, including Iowa’s appellate courts. Article V, section 4 of the Iowa Constitution grants the supreme court appellate jurisdiction “under such restrictions as the general assembly may, by law, prescribe.” Article V, section 6 provides the district court shall have jurisdiction “as shall be prescribed by law.” And article V, section 14 of the constitution provides it is “the duty of the general assembly . . . to provide for a general system of practice in all the courts of this state.” The judicial department’s constitutional, statutory, inherent, and common law authority to regulate practice and procedure in its courts thus must give way where the legislative department has acted. See
Historical practice also supports the conclusion that the legislative department has the authority to prohibit the filing of pro se supplemental briefs. Practice and procedure in Iowa’s courts historically has been governed by the legislative department through statutes rather than by the judicial department through court rules.
For example, in the Code of 1860, the legislative department enacted a complete Code of Civil Practice and Code of Criminal Practice. See 1860 Iowa Code, Code Editor’s Preface (discussing wholly new codes of civil and criminal practice); Part III, Of the Courts and the Procedure Therein; Part IV, Of Crimes and Punishments, and Proceedings in Criminal Cases. The Codes of Civil Practice and Criminal Practice were plenary, regulating every aspect of practice and procedure in all Iowa courts.
prosecutions in all the courts of this state from and after the first day of September, A.D., 1860.”). The code included direct regulation of the conduct of the supreme court. The code directed where the supreme court shall hold court. See
While early code provisions did provide this court with the authority to make rules of procedure in civil matters, the rule making power was to “carry out the general spirit and intent of the system of practice” the legislature adopted and to “carry out the purposes of the statute.”
This was the state of affairs until the 1930s. In 1934, Congress passed an act delegating to the Supreme Court the power to prescribe rules of civil procedure. See Act of June 19, 1934, Pub. L. No. 73-415, 48 Stat. 1064 (1934). The power to promulgate rules of criminal procedure was conferred by the Act of June 29, 1940. See Pub. L. 76-675, 54 Stat. 688 (1940). Both acts are now codified under
Even with the legislative delegation of rulemaking power to this court, practice and procedure in Iowa’s courts remain a mix of statutes and rules. As relevant here, the legislative department continues to legislate on the topics of who can participate in judicial proceedings, what information or evidence can be presented in judicial proceedings, and what information or evidence can be considered in judicial proceedings. Consider just a sentencing proceeding—the quintessential judicial function. The legislature prohibits sentencing courts from ordering or considering a presentence investigation report when conducting sentencing for a class “A” felony. See
This brief survey of the relevant history shows the legislative department has always established the rules for practice and procedure in Iowa’s courts. Initially, the legislature did so directly through statutes. More recently, the legislature has done so indirectly through delegation of the rulemaking power to this court subject to legislative oversight and amendment. Pursuant to this historical practice, this court has repeatedly recognized the constitutionality of legislation regulating practice and procedure in Iowa’s courts. In State v. Olsen, 180 Iowa 97, 99–100, 162 N.W. 781, 782–83 (1917), we recognized the legislative department could set the deadlines by which a party could seek appellate review. In doing so, we stated, “The right of appeal is purely statutory. To invoke the appellate jurisdiction of this court, the statute must be followed.” Id. at 99, 162 N.W. at 782. In Andrews v. Burdick, 62 Iowa 714, 721, 16 N.W. 275, 279 (1883), we rejected an argument that the legislative department could not restrict the appellate power in cases involving an amount less than one hundred dollars. In Root v. Toney, 841 N.W.2d 83, 87 (2013), we recognized “the legislature’s limited role in our appellate process includes the power to prescribe by statute the time allowed to file an appeal and to provide for a one-day extension when the deadline falls on a day our clerk of court is closed in whole or in part.” And in Wine v. Jones, 183 Iowa 1166, 1177–78, 168 N.W. 318, 321 (1918), we held the legislative department did not violate the separation of powers when it prohibited this court from requiring the parties to file an assignment of error. We reasoned that the statute passed constitutional muster because it merely prohibited the filing of a pleading but did “not undertake to prescribe the manner of arguing errors complained of, in presenting a cause to this court.” Id. at 1178, 168 N.W. at 321.
The constitutional grant of authority to the legislative department to provide for a general system of practice in Iowa’s courts and historical practice distinguishes this case from the Klouda v. Sixth Judicial District Department of Correctional Services decision on which Thompson relies. Klouda involved a challenge to a statute that “create[d] a pilot project in the sixth judicial district whereby judges in that district transfer[red] jurisdiction over probation revocation cases to an administrative parole and probation judge (ALJ).” 642 N.W.2d at 257. We concluded the statute violated the separation-of-powers doctrine and was unconstitutional. See id. at 263. In reaching the conclusion, we explained that “sentencing . . . falls within the realm of judicial power.” Id. at 261.
In light of the foregoing, it is apparent Thompson has not carried his heavy burden of showing beyond a reasonable doubt the legislative department did, in prohibiting represented parties from filing pro se supplemental briefs on appeal, exercise “powers that are clearly forbidden” to it or exercise “powers granted by the constitution to another branch.” Klouda, 642 N.W.2d at 260. The constitution explicitly vests the legislative department with the power “to provide for a general system of practice in all the courts of this state.”
To be sure, the content of the three authorities of government is not to be derived from an abstract analysis. The areas are partly interacting, not wholly disjointed. The Constitution is a framework for government. Therefore the way the framework has consistently operated fairly establishes that it has operated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610, 72 S. Ct. 863, 897 (1952) (Frankfurter, J., concurring). Pursuant to the constitutional
text and historical practice, our precedents continue to recognize the “legislature possesses the fundamental responsibility to adopt rules of practice for our courts.” Butler v. Woodbury Cnty., 547 N.W.2d 17, 20 (Iowa Ct. App. 1996).
2.
This brings us to the third aspect of the separation-of-powers question—whether
Thompson argues
The United States Court of Appeals for the Third Circuit explained:
Even were this not the case, Fontanez’s claims fail substantively. The thrust of his complaint concerns a Pennsylvania litigant’s right to represent himself on appeal. But there is no such right under the federal constitution. Although such a right does exist at the trial level, the United States Supreme Court has made clear that this right does not extend to appeals. And rules limiting hybrid representation (in which a litigant proceeds simultaneously by counsel and pro se) are constitutionally acceptable in both the appellate and trial contexts.
Fontanez v. Pennsylvania, 570 F. App’x 115, 116 (3d Cir. 2014) (per curiam) (citations omitted).
Other courts that have considered the issue agree there is no constitutional right to hybrid representation on appeal. See United States v. Hunter, 932 F.3d 610, 620 (7th Cir. 2019) (stating “there is no Sixth Amendment right to file a pro se brief when the appellant is represented by counsel” (quoting Hayes v. Hawes, 921 F.2d 100, 102 (7th Cir. 1990) (per curiam))); United States v. Montgomery, 592 F. App’x 411, 415 (6th Cir. 2014) (“Accordingly, we have stated that there is no ‘constitutional entitlement to submit a pro se appellate brief on direct appeal in addition to the brief submitted by appointed counsel.’ ” (quoting McMeans v. Brigano, 228 F.3d 674, 684 (6th Cir. 2000))); United States v. Washington, 743 F.3d 938, 941 n.1 (4th Cir. 2014) (stating a party has no right to raise substantive issues while represented by counsel); Trimble v. State, 157 So.3d 1001, 1006 (Ala. Crim. App. 2014) (stating “courts in other jurisdictions have held that a defendant is not entitled to file pro se pleadings or motions when represented by counsel” and citing cases); Brewer v. State, 268 S.W.3d 332, 333 (Ark. 2007) (per curiam) (“An appellant is not entitled to accept appointment of counsel to represent him, and also proceed pro se. Moreover, this court will not permit an appellant to compete with his attorney to be heard in an appeal.” (citation omitted)); Eagle v. State, 440 S.E.2d 2, 5 (Ga. 1994) (declining to address arguments in pro se brief and stating “[n]either our State Constitution nor the Federal Constitution provide a defendant with a right to simultaneous representation by counsel and self-representation“); LeBaron v. Commonwealth, 985 N.E.2d 822, 822 (Mass. 2013) (stating the defendant had no constitutional right to file pro se documents on appeal); People v. White, 539 N.E.2d 577, 583 (N.Y. 1989) (“Indeed, good appellate practice might require a retained attorney to take a different approach from that urged by the client when experience has proven that the attorney’s approach is in the client’s best interest. Thus, we see no reason why the rule that defendant has no right to hybrid representation at the pretrial and trial stages should not carry over to the appellate stage.“); Commonwealth v. Blakeney, 108 A.3d 739, 762 (Pa. 2014) (per curiam) (“Indeed, no defendant has a constitutional right to hybrid representation, either at trial or on appeal.“); Jones v. State, 558 S.E.2d 517, 517 (S.C. 2002) (“There is no constitutional right to hybrid representation either at trial or on appeal.“); Marshall v. State, 210 S.W.3d 618, 620 n.1 (Tex. Crim. App. 2006) (declining to address arguments in pro se brief on the ground “appellant has no right to hybrid representation“); State v. Debra A.E., 523 N.W.2d 727, 737 (Wis. 1994) (stating a “a defendant does not have a constitutional right to hybrid representation on appeal or review” and collecting cases). To the best of our knowledge, no court has reached a contrary conclusion.
We cannot conclude
The fact that
D.
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
IV.
For these reasons, we affirm Thompson’s convictions for attempting to obtain a
CONVICTIONS AFFIRMED.
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.
State v. Thompson
#19–1259
McDERMOTT, Justice (concurring in part and dissenting in part).
The legislature’s statute challenged in this appeal erases the court’s own long-standing appellate rule inviting pro se supplemental briefs from criminal defendants. By its language,
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 separation of powers among the three branches preserves the balance established in the constitution to prevent “a gradual concentration of the several powers in the same department.” The Federalist No. 51, at 349 (James Madison) (Jacob E. Cooke ed., 1961). Under the separation of powers, the judicial branch holds “the ‘province and duty . . . to say what the law is’ in particular cases and controversies.” Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218, 115 S. Ct. 1447, 1453 (1995) (alteration in original) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). 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.” Chambers v. NASCO, Inc., 501 U.S. 32, 58, 111 S. Ct. 2123, 2140 (1991) (Scalia, J., dissenting).
The majority correctly recites that the Iowa Constitution provides this court jurisdiction “under such restrictions as the General Assembly may, by law, prescribe.”
The majority also correctly recites that the Iowa Constitution directs the legislature “to provide for a general system of practice in all the courts of this state.”
We do not think the constitutional assignment of a duty to the legislature to provide a general system of practice for the courts vests the power to adopt rules of practice in the legislature exclusively. Where the legislature has not acted, courts possess a residuum of inherent common-law power to adopt rules to enable them to meet their independent constitutional and statutory responsibilities. We find
Article V, § 14, of the Constitution , read with the separation of powers clause,Article III, § 1 , does not manifest a plain intention to abrogate the inherent common-law power of courts to adopt rules of practice.
244 N.W.2d 564, 569 (Iowa 1976) (en banc).
At common law, the inherent power of courts to make rules governing practice and procedure “was firmly established.” Id. at 568. In Hammon v. Gilson, we upheld a court’s procedural order under “the recognized rule that courts have the inherent power to prescribe such rules of practice and rules to regulate their proceedings . . . to facilitate the administration of justice.” 227 Iowa 1366, 1373, 291 N.W. 448, 451–52 (1940). We see the legislature’s implicit recognition of this power in the Iowa Code.
As the majority notes,
But
The “three aspect” separation-of-powers analysis the majority stitches from some of our prior cases strikes me as overwrought. The separation-of-powers doctrine is violated if one branch of government seeks to use powers granted by the constitution to another branch. See State v. Phillips, 610 N.W.2d 840, 842 (Iowa 2000) (en banc). The analysis requires two basic inquiries: what type of power is being exercised, and which branch is exercising it. See id.; see also Morrison v. Olson, 487 U.S. 654, 705, 108 S. Ct. 2597, 2626 (1988) (Scalia, J., dissenting); Martin H. Redish & Elizabeth J. Cisar, “If Angels Were to Govern“: The Need for Pragmatic Formalism in Separation of Powers Theory, 41 Duke L.J. 449, 488 (1991).
The potential of one branch’s action “to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis.” Morrison, 487 U.S. at 699, 108 S. Ct. at 2623. 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 responsibility. By restricting who can file briefs, the legislature limits the courts’ sources of knowledge—source 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.“). Another branch can’t be permitted, through a statute implementing a rule of practice or otherwise, to disarm the court of the means required to fulfill the core judicial power. Madison warned in The Federalist No. 48 not only of the danger presented when one branch “directly and completely” performs the functions of a separate branch but also of the danger when one branch “posses[es], directly or indirectly, an overruling influence over the others in the administration of their respective powers.” The Federalist No. 48, at 332 (James Madison). “Certain implied powers must necessarily result to our Courts of justice from the nature of their institution.” United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 34. These powers must include an ability by the judiciary to summon and consider information for its decision.
Our prior cases are of little help in resolving the separation of powers question presented in this case. In Critelli, 244 N.W.2d at 569, we held the court had residual inherent common law power to adopt the procedural rule challenged in that case. But that case didn’t involve any question about whether a rule of practice enacted by the legislature usurped the judiciary’s power to determine for itself the sources of information it could request or consider in deciding cases.
The majority cites four other cases to suggest we’ve previously recognized the constitutionality of legislative regulations
The majority completely passes on the “shall not consider” language in the second sentence of
The majority asserts that we have allowed criminal defendants to file pro se supplemental briefs “as a matter of grace.” I resist the view that appellate
Under the Iowa Constitution, the supreme court constitutes a court for the correction of errors at law under such restrictions as the general assembly may, by law, prescribe.
As Justice Scalia said in Plaut v. Spendthrift Farm, Inc., the constitutional separation of powers serves as “a prophylactic device, establishing high walls and clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict.” 514 U.S. at 239, 115 S. Ct. at 1463. I find the majority’s holding today troubling, not only for the separation of powers violation it approves in this case but also for the constitutional safeguards it removes in future cases.
Could the legislature now tell the judiciary it shall not permit and shall not consider briefs of amicus curiae? Could the legislature tell the judiciary it shall not permit and shall not consider oral arguments? Or could the legislature forbid or add other particular sources of information to a court’s decision-making sources? After all, if the legislature can forbid consideration of a brief in toto, it arguably can forbid consideration of particular components of briefs. For example, could the legislature tell the judiciary it “shall not consider” citations to law review articles in deciding cases? Or that courts “shall not consider” arguments in briefs that the words in a law should be given their ordinary meanings at the time the law was enacted (i.e., an antioriginalist requirement)? Having now permitted the legislature to dictate the sources of information the court may solicit and use in its decision-making process, it’s hard to see how any of these things are off-limits. And once this particular separation-of-powers safeguard is removed, a wide assortment of constitutional abuses becomes possible.
In response, the majority in a footnote demurs that these hypotheticals are not before us but then offers this: “[W]e agree there are constitutional limits to the legislative department’s authority to regulate practice and procedure in Iowa’s courts.” This concession is, of course, a correct statement of Iowa constitutional law, but it can’t be reconciled with the incorrect
The majority’s suggestion in the footnote that in the future we might decide differently challenges to these hypothetical legislative commands is faint consolation. Precedent matters. See Youngblut v. Youngblut, 945 N.W.2d 25, 44 (Iowa 2020) (McDonald, J., dissenting) (“A compelling reason to change the law ‘require[s] the highest possible showing that a precedent should be overruled before taking such a step.’ ” (alteration in original) (quoting Brewer-Strong v. HNI Corp., 913 N.W.2d 235, 249 (Iowa 2018))). As Justice Scalia wrote:
For when, in writing for the majority of the Court, I adopt a general rule, and say, “This is the basis of our decision,” I not only constrain lower courts, I constrain myself as well. If the next case should have such different facts that my political or policy preferences regarding the outcome are quite the opposite, I will be unable to indulge those preferences; I have committed myself to the governing principle.
Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1179 (1989). The majority today commits to a governing principle with unconstitutional moorings that the majority itself appears unable to reconcile.
In addition, in some contexts, the legislature’s refusal to permit a defendant to file a supplemental brief when represented by counsel may give rise to serious constitutional problems. For instance, when a criminal defendant’s lawyer files an Anders brief arguing that any potential issues in the appeal are frivolous, the Constitution likely entitles the defendant to file a pro se response. See Anders v. California, 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967). Under Anders v. California, an attorney who wishes to withdraw must file a motion “accompanied by a brief referring to anything in the record that might arguably support the appeal,” including grounds the counsel thinks frivolous, and provide a copy of the brief to the defendant. Id. at 744, 87 S. Ct. at 1400. The defendant is then allowed “to raise any points that he chooses“—either pro se or by other counsel—supporting the appeal for the court to consider. Id.
No one would suggest that the judiciary could tell the legislature what kind of communications it could consider in the exercise of its constitutional responsibilities. For instance, no one would suggest that this court could tell the legislature to consider only communications through registered lobbyists and not directly from citizens in the crafting of legislation. The legislature has no power to engage in similar interventions in the judicial process and override a duly promulgated rule of this court relating to what it may consider. For those who prize an independent judiciary, free of unconstitutional transient intervention by political branches, this case takes us in an undeniably undesirable direction.
The framers recognized “parchment barriers” alone were insufficient to check another branch’s “encroaching spirit of power.” The Federalist No. 48, at 333 (James Madison). The constitutional system’s actors thus, it was hoped, would assert and defend their powers acting with “the necessary constitutional means, and personal motives, to resist encroachments of the others.” The Federalist No. 51, at 349 (James Madison). In this way, the actors in each branch would serve as a “centinel over the public rights.” Id. And nowhere was the framers’ concern for potential overreach aimed more directly than at the legislature, since with “[i]ts constitutional powers being at once more extensive and less susceptible of precise limits, it can with the greater facility, mask under complicated and indirect measures, the encroachments which it makes” on the other branches. The Federalist No. 48, at 334 (James Madison).
An approach to the law that extols a bedrock principle but repeatedly compromises on the edges leads to the washing away of the principle along with the edges. If a statute and the constitution conflict, “then courts must resolve that dispute and, . . . follow the higher law of the Constitution.” Seila Law LLC v. Consumer Fin. Prot. Bureau, 591 U.S. ___, ___, 140 S. Ct. 2183, 2219 (2020) (Thomas, J., concurring in part and dissenting in part) (alteration in original) (quoting Murphy v. Nat’l Collegiate Athletic Ass’n, 584 U.S. ___, ___, 138 S. Ct. 1461, 1486 (2018) (Thomas, J., concurring)). In the challenged statute, a judicial power is being exercised by the legislature. I concur in the majority’s opinion in division II on the evidentiary issues presented. But I respectfully dissent from division III and would hold
Christensen, C.J., and Appel, J., join this concurrence in part and dissent in part.