State v. Izzolena

policy any not in- applies concluded the umbrella was insurance that to a covered supplant primary coverage tended to event that will serve to reduce the amount policy. of the Farm Id. City exposure. & umbrella insurer’s Al- policy, lied’s primary, which qual- would LeMars, Vigilant relies on claiming its ify as underlying insurance under that all policy umbrella is excess as to other definition because it would reduce policies, including Allied’s. Allied re- damages Vigilant might be called on to sponds provi- that the “other insurance” pay, up liability $500,- limit Allied’s Vigilant’s policy inap- sion of umbrella 000. We policy conclude Allied’s is “un- plicable because of this sentence derlying purposes apply- insurance” for Vigilant policy: ing Vigilant’s coverage umbrella your Policy This [umbrella] therefore affirm summary judgment provides you liability coverage with Vigilant. your underlying excess of insurance anywhere in world unless stated AFFIRMED. applies.

otherwise or an exclusion justices All except LAVORATO, concur added.) (Emphasis J., part. who takes no “you” Allied and “your” claims the provision Joseph this refer McGrath

because he named was the insured under Vigilant policy. According to Allied’s

argument, Joseph because was not an in-

sured policy, policy under Allied’s “your” meaning insurance within the

Vigilant’s provision. insurance other Therefore, it, according Vigilant’s policy Iowa, Appellee, STATE of

was not excess as to Allied.

When “you” “your” language Vigilant’s isolation, policy is read IZZOLENA, Appellant. Anne E. Allied urges, gives support some to its No. 99-683. argument that excess Vigilant’s insurance applicable clause is not to Allied. Howev- Supreme Court of Iowa. er, argument rejected in light must of the language policy when it is April 2000.

read as a Specifically, whole. the umbrella

coverage policy provides in Vigilant’s it is

“in underlying excess of all insurance cov-

ering It damages.” provides those then coverage,”

definition of “underlying quoted

above, that clearly poli- includes the Allied Also, LeMars,

cy. as in we look to the

intent of parties umbrella policy: policy purchased as the final tier of

coverage, one “intended to be excess over

all other available insurance.” Annotation, 16).

(quoting A.L.R.4th at

We believe policy language ques-

tion, provides coverage in excess of insurance,”

“your underlying should be in-

terpreted policy to mean the is excess as Office,

Jeffrey T. Mains Benzoni Law P.L.C., Moines, appellant. Des Miller, General, Attorney Thomas J. Boesen, Martha Attorney E. Assistant General, Sarcone, County P. Attor- John ney, Weeg, County and Joe Assistant At- torney, appellee.

CADY, Justice. Anne appeals Izzolena from the sentence imposed by following the district court her involuntary manslaughter conviction for 707.6A(2)(a) violation Iowa Code section (Supp.1997).1 She claims the restitution award imposed by the district under court pro- Code section 910.3Bviolates due cess, jeopardy, prohibition double and the against excessive fines. We affirm. Background I. Facts and Proceed- ings.

Anne driving Izzolena was her Volvo automobile on a rural road southeast Polk County early morning hours of January a night drinking after alcoholic beverages. Steve Shank occu- pied the passenger seat of He the vehicle. was not wearing a seatbelt. weather The warm, unseasonably was visibility was and clear. approached

Izzolena a “T”-intersection traveling while approximately fifty miles per hour. The intersection was marked stop with a sign which directed Izzolena to stop at proceed- the intersection. Izzolena ed through apply- the intersection without ing the of the brakes vehicle and smashed the front into of the vehicle a tree a short roadway. impact distance off forced engine of the into the vehicle Code, 1. All references lo the Iowa Code in deci- unless otherwise noted. Supplement are sion to the 1997 the Iowa crime, violently to the victims of the passenger compartment ties and to the court. occupants threw the forward. clerk of See Iowa Code 910.2. activities, for criminal Restitution there- Numerous law enforcement and medical fore, broadly by defined statute to not personnel arrived the scene “payment pecuniary mean transported crash. was to Des Izzolena to a but also hospital Moines air ambulance med- victim” by ical was from treatment. Shank extricated fines, surcharges, penalties, and the con- hy- with mangled vehicle the aid local tribution funds to a anticrime draulic He scene. equipment. died at the provided organization assistance case, to law enforcement in an offender’s hospital A urine obtained at sample payment compensa- of crime victim had an revealed Izzolena alcohol concen- reimbursements, program tion ... court tration of .184. Shank died with a blood including court-appointed ... costs at- alcohol .340. content of fees, or torney’s expense public of a charged Izzolena with vehicular defender, and performance pub- of a 707.6A(1) homicide by lic service offender an amount 707.6A(2)(a). to a right She waived her set the court by when the offender can- agreed trial to a jury and bench trial on reasonably pay all stipulated court evidence. district costs including court-appoint- court ... found her uninten- guilty crime of fees, attorney’s expense ed or the of a tionally by the death causing of another public defender. operating a vehicle in a motor reckless 910.1(4). §Id. 707.6A(2)(a). manner in of section violation “Pecuniary damages” by is defined our by Izzolena was sentenced the district to legislature mean court to an term indeterminate of incarcer- damages paid by all to the extent an years. ation not to ten exceed The district insurer, which a victim could recover court also a victim restitution against offender in civil action $150,000. award under section 910.3B of event, out arising of the same facts or appeal. Izzolena filed an She claims except punitive and damages damages imposed by victim award restitution pain, suffering, anguish, for mental and Jeopar- district court violates the Double loss of consortium. Fines, dy, Excessive and Due Process 910.1(3). § Id. Pecuniary damages also Clauses of the States United “damages wrongful include for death and Constitutions. expenses incurred psychiatric psy- or chological counseling services or or other Scope II. of Review. counseling for the victim which became We review constitutional de issues necessary as direct result of the criminal Hamrick, novo. State v. activity.” by Id. A victim defined stat- person ute mean “a has to who suffered damages

pecuniary as a result of the of- III. Victim Restitution. 910.1(5). § activities.” Id. fender’s compre- Our legislature legislature recently expanded enacted a Our scope hensive scheme for restitution in all crimi- restitution require to offender nal cases which result in a of a in judgment felony resulting convicted death to conviction, simple except pay misdemeanor at least in restitution to the 910.3B(1). § traffic generally convictions. See Iowa victim’s estate. Id. This chapter Code ch. 910. in requires This award addition to victim restitution sentencing court to order pecuniary damage offenders under section 910.1(4). provides: make restitution for their criminal activi- The statute facts. arising action from the same in the of- civil cases which In all criminal 910.3B(2). Id. felony entry § which Evidence of the convicted of fender is by the offend- act or acts committed award and the amount of a restitution person, death of another caused the er in any subsequent award is inadmissible determined to the amount addition arising action from the same set civil paid to a to be payable and ordered hand, an offender Id. On the other facts. defined pecuniary damages, as victim for under section pay ordered 910.1, un- and determined section precluded denying from the ele- 910.3B is 910.3, shall also the court der section in the ments of the offense which resulted at least one pay offender to order the civil action aris- any subsequent award in restitu- fifty thousand dollars hundred Id. from the same facts or event. obli- estate. The tion to the victim’s 910.3B(3). § A restitution award under amount shall pay the additional gation against any judg- chapter 910 is also offset any proceeding dischargeable not be subse- ment in favor of a victim Pay- Act. Bankruptcy under the federal arising civil action from the same quent have amount shall ment of the additional (1997).2 Id. facts. 910.8 priority payment of a vic- the same pecuniary damages under tim’s challenges Izzolena 910.2, plan in the offender’s for restitu- by the district court as a award entered tion. order. claims sentencing She Id. fíne in the award constitutes an excessive Amendment of violation award under sec The restitution and article United States Constitution supersede impede does not tion 910.3B She in a section 17 of the Iowa Constitution. right pursue damages additional expenses they cover these must be reasonable be recovered in a 2. The Born, necessary, Ege 212 Iowa wrongful are the stat death action limited 1138, 1149, 75, (1931); finally right bring 236 N.W. 82 the ac ute which creates the 215, expenses § are recoverable at 276 interest on funeral tion. 22A Am.Jur.2d Death well, Haw, 501, 506, Iowa, (1988). Brady v. wrongful action as see 187 Iowa In a death 331, (1919) (since brought by an 174 N.W. 332 funeral the decedent and is survives life, this would have occurred sometime in administrator for the estate. See Iowa Code it; only Although general, only accelerated entitled to interest § brief and 611.20. expense). In addition to provided the courts with the abili on reasonable burial 611.20 has wrongful damages estate ty death the administrator of the to determine the details of estate, Note, Wrongful loss of Death can recover on behalf actions in Iowa. See Iowa, 666, damages by the Damages 667- consortium are recoverable 48 Iowa L.Rev. (1963). by surviving spouse, individually, as well as jury award for one 68 The ultimate sum, surviving jury generally children. See Iowa Code 613.15 however the instructed (allows injured person to recover "the following damages: loss of future on the (the support spouse and as or earnings amount the deceased would value of services both”); parent, or see also Audubon-Exira have contributed to the estate reduced Mix, R.R., Co., value), Ready Inc. v. Cent. present v. 247 Illinois see Soreide Vilas & Gulf 1139, 41, 148, (Iowa 1983) (action 1153, (1956); 152 on 78 N.W.2d 335 N.W.2d Iowa 49 (if surviving brought by ad past earnings did behalf of children loss of the decedent not estate). work), re immediately of Parents also die and was unable to see ministrator Lines, Inc., McCoy cover loss of consortium Miller v. 243 Iowa Truck 483, 491, 62, (1952) children. See Iowa R. Civ. P. (personal 66 death of minor 52 N.W.2d ("A parents, may analogous damage parent, sue for the injury with 8 or accident services, award); compan suffering damages, expense actual of pain see and loss and Fitz Hale, 1194, 1205, resulting injury ionship society from gerald 247 78 and v. Iowa child.”). 509, (hot Finally, wrongful death a minor if a of N.W.2d 515 willful, action, person wanton, another's analogous dies as a result of death but an action actions, punitive suffering dam pain the decedent had or malicious and after died); Berenger ages may be recovered as well. See expenses incurred as a result of the 388, 1982); Frink, (Iowa act, including hospital v. N.W.2d 393 wrongful bills, medical and 314 94, Wood, Buesch, 1064, 246 Iowa 100- see also Sebastian v. see Railsback v. 253 Iowa 01, 841, (1954). (1962), N.W.2d 844-45 order to re- 66 920 States, 602, 609-10, alleges Jeopar- it violates the Double 509 U.S. also 113 S.Ct. 2801, 2805, (1993); as well dy of both constitutions as Clauses H.E.W., Inc., Due under the Process Clause. In re rights her N.W.2d (Iowa 1995). Thus, the term not “fine” IY. Constitutional Claims. monetary embraces those sanctions case, in a traditionally criminal A. Excessive Fine. but pun other sanctions which constitute The of the United Amendment ishment for an offense. United States v. Constitution reads: “Excessive bail States U.S. shall not be nor required, excessive fines (1998). 141 L.Ed.2d punish- and imposed, be nor cruel unusual I, Similarly, ment inflicted.” article sec- Support for principles these is found in tion 17 of the Iowa Constitution reads: history Excessive Fines Clause. required; “Excessive bail shall ex- The Eighth Amendment was based direct- imposed, cessive fines shall not be ly upon Virginia article section 9 of the punishment cruel and unusual not be shall of Rights, Declaration which was derived similarity The the two inflicted.” between from the 1689 English Declaration of permits interpre- to look to the clauses us Rights. Browning-Ferris, 492 See Supreme tations the Unites States 106 L.Ed.2d at 233. guidance interpreting Court for our own Rights Section 10 of the Bill English See Davenport clause. Water Co. ought states “Excessive bail not be re- Comm’n, State Commerce quired, fines imposed; nor excessive nor punishment cruel unusual inflicted.” Mary Wm. & 2d ch. Sess. 3 Stat. at Supreme specifically The Court has not (1689). 440, 441 Large It adopted victim considered whether restitution or- curb English judges under the Stuarts’ of a sentence in criminal dered reigns heavy imposing upon from fines implicates case the Excessive Fines king’s Schwoerer, enemies. See L. fact, Supreme Court Clause. (1981). Rights, Declaration at 91 opportunities to ap- had few consider the framers our constitution were plication of the Excessive Fines Clause. Indus, aware of the that led abuses Browning-Ferris Kelco Dis- Bill Story, Rights. See J. Commen- Inc., 257, 265, 109 posal, taries on the Constitution the United 219, 232 (T. 1873) (the Cooley States 624 4th ed. Nevertheless, helpful a prin few Eighth adopted an Amendment “was as ciples can be distilled from those cases to all na- departments admonition of the First, have addressed clause. government, tional to warn them against apply the Excessive Clause not Fines does such as had taken proceedings violent punitive pri in damages cases between in place England arbitrary in reigns Instead, parties. vate See id. the clause Stuarts”). some of the a steps govern was intended to limit the Additionally, ment take an in at the time of the against individual enact Amendment, imposing ment word monetary excessive sanctions. 275, 2920, at “payment sovereign 109 L.Ed.2d “fine” connoted a as S.Ct. 106 Second, implicated punishment at Bajakaji 238. the clause is for some offense.” an, 327, 2033, at 141 government power when its 524 118 at exercised U.S. S.Ct. payments punishment Browning-Ferris, to extract as for an L.Ed.2d at (quoting 325 offense, 265, 2915, proceed whether the 492 at at 106 underlying U.S. 109 S.Ct. 232).3 “Fines,” then, now, criminal. civil or v. L.Ed.2d at ing is Austin United accepted meanings Browning-Ferris, essentially 3. the same. of "fine” 1680's 10, 10, England 267 S.Ct. at and 1780’s Colonial America were 492 U.S. at n. 109 2916 n. 548 responsibility to instill designed ac- and is criminal

were sanctions Haines, 265, at v. 360 492 U.S. criminal offenders. State Browning-Ferris, tions.4 (Iowa 1985). 2915, 791, L.Ed.2d at 232. at 106 795 109 S.Ct. N.W.2d common under history and This “forces the defendant to con- Restitution articulate used to language standing front, terms, the harm his concrete reveals that Fines Clause the Excessive penalty will actions have caused. Such framers of our the clear concern of than a differently the defendant affect government’s limit the was to constitution fine, paid to the State as traditional Austin, at 609- 509 U.S. power punish. and of- impersonal entity, abstract and 497; 2805, at 10, L.Ed.2d at 125 113 S.Ct. regard direct ten calculated without 265, at 109 Browning-Ferris, 492 U.S. the defendant has caused. the harm 2915, at 232. The at 106 L.Ed.2d S.Ct. Similarly, the direct relation between ability govern to limit the clause served punishment res- gives the harm and the powers to prosecutorial ment to use its precise deterrent effect titution a more monetary sanctions. impose excessive than a traditional fine.” 275, at 109 Browning-Ferris, (quoting at Mayberry, 415 N.W.2d 646-47 Thus, 2920, at 238. at 106 L.Ed.2d S.Ct. Robinson, 10, 36, 49 n. Kelly v. U.S. whether a developed to determine the test n. 93 L.Ed.2d 107 S.Ct. the Exces particular sanction falls within Note, Victim Resti- (citing 228 n. 10 as a “fine” is whether sive Fines Clause A Proce- tution in the Criminal Process: Austin, is, part, punishment. at least Analysis, dural 97 Harv. L.Rev. 937- 2805-06, at at U.S. (1984))). 498; Bajakajian, 524 L.Ed.2d at at Moreover, specific an examination of the 325.5 re- restitution award under section 910.3B punitive It veals several elements. previously have acknowl We separate in addition to awarded edged always that it clear whether pecuniary damages. Iowa Code for claim, fine, a civil restitution constitutes 910.3B(1). Although pecuniary damages hybrid. Mayberry, or some State normally excludes some recovera- (Iowa 1987). fact, we actions, no-indication ble in civil there is recognized purpose have that the of resti legislature our intended restitution It not serves to tution is two-fold. place take the section 910.3B to protect public by compensating victims pe- from for activities, damages excluded criminal but it also serves to Furthermore, cuniary damages. restitu- rehabilitate the defendant. State Klues ner, tion under section 910.3B establishes amount of beyond recovery revenue minimum threshold goes Restitution (referencing 106 L.Ed.2d at 233 n. 10 n. 6 (citing Cunningham, E. Coke 126b and 2 T. Institutes apply jeop- double We decline Complete-Law-Dic- A New and ardy analysis a to determine whether sanction tionary respective (unpaginated) punishment a under the Excessive constitutes 'Tine'')). definitions of Fines Fines Clause. The Excessive Clause parallel to to or never been understood be English immediately prior to the 4. case law Jeopardy Clause. even related to the Double Rights enactment of the 1689 Bill of stressed Ursery,518 U.S. 116 United States v. damages between civil the difference 549, L.Ed.2d 567 S.Ct. 135 Hughes, Lord Townsend v. criminal fines. See 150, (1996). (C.P.1677). justify The differences in the clauses Eng. Rep. 2 Mod. 86 994 287, separate analysis. See id. at a urges adopt 5. The State us to the more exten- 2147, (Supreme at Court at 135 L.Ed.2d 567 jeopardy analysis to determine sive double analysis apply to under Excessive declined pun- particular constitutes whether a sanction jeopardy jurispru- to double Fines Clause the Excessive Fines Clause. ishment under dence). States, 93, 522 U.S. 99- See Hudson v. United

549 cases, required proof impact punishment of evi- on the all with no to the damages excluded from support Browning-Ferris, to individual. See 492 dence 275, 2920, damages. Ad- pecuniary the definition of U.S. at 109 S.Ct. at imposed under at ditionally, the restitution 238. We do not believe the State can dischargeable section 910.3B is not make an end run around the Excessive bankruptcy. Mayberry, by simply making punish- 415 N.W.2d Fines Clause a payable at 646. ment to a victim. important recognize It is also to that though a sanction serve Even likely fines in criminal cases evolved from a purpose, subject remedial it is still to the restitution, paid when amounts to criminal if only Excessive Fines Clause it can payable to

victims as restitution became explained punish. to serving king (citing instead. See id. at 647 Austin, 621-22, at 509 U.S. 113 S.Ct. at Hart, 128, 1113, State v. 299 Or. 699 P.2d 2812, L.Ed.2d at Accordingly, 125 505. we (1985)); Wolfgang, see also Victim conclude the restitution award under sec Compensation in Crimes Personal Vio- tion not 910.3B does serve a remedial lence, Minn. L.Rev. purpose purposes but also serves other Thus, restitution and fines share com- normally punishment associated with such in criminal history mon as sanctions case. as retribution and deterrence. The award is a “fine” within Amendment Notwithstanding, argues the State of the United States Constitution and arti punishment payable that a must be to the cle section 17 of the Iowa Constitution. under the Exces State constitute fine sive Fines Clause. Restitution under sec Having determined 910.3B, course, payable tion to the applies Excessive Fines victim Clause victim. awards, the question turns to whether the sanction is excessive. The Ex rejecting a claim that the penalty test is whether “grossly applied Fines to an award cessive Clause disproportional gravity to the the defen punitive in a civil case between dant’s offense.” 524 U.S. at private parties, Supreme Court stated at at L.Ed.2d 331. “The Excessive Fines Clause was intended standard, only directly imposed to limit applying those fines Before to, by, payable government.” recognize important we must limi three Browning-Ferris, at judg tations. The first limitation is that appropriate pun at 106 L.Ed.2d at Al- concerning 5.Ct. 234. ments though monetary most sanctions in crimi- ishment for an offense rests in the first payable government, legislature. nal cases are instance with the 2037, 141 at greater concern of the Excessive Fines L.Ed.2d 330. Thus, financial deference gain give Clause was not the we must substantial government, prevent govern- penalties choice of legislators’ but to our Ramirez, power punish an criminal abusing ment from its offenses. State (Iowa 266-67, 1999); offender. Id. at 109 S.Ct. at 2915- see also Austin, 232-33; Lara, at 509 State (Iowa 1998) 606-07, entitled to (legislators are prescribing pun L.Ed.2d at to limit their 495. The idea was “wide latitude individual, government power punish (quoting ishments” v. Iowa 28 Simmons (8th Cir.1994))).6 necessarily power limit its to raise F.3d Thus, judicial any of limitation is that de- revenue. the focus the clause second Supreme only Bajakajian, 6. The Court has struck down a court. 524 U.S. at J., (Kennedy, fine under the Amend- 141 L.Ed.2d at 335 as excessive dissenting). history the ment on one occasion in the of (Iowa 1984) State, 212, 220 of a criminal v. 348 N.W.2d gravity termination (murder This, the imposes greatest harm to inherently imprecise. Id. offense victim). primacy among of human life course, in to our first The of relates virtually undisput- all other moral values is us not to substi limitation and reminds major religions, and the legis that of our ed the world’s for judgment tute our life is considered the by taking of innocent Finally, we are constrained lature. Roger C. authority. greatest wrong. universal See guiding the absence of Knowles, impression Crampton and Lori P. one of first issue we face is Profes- state, Secrecy Exceptions: Its we are unable to find sional in this Revisited, 83 Spaulding a similar v. Zimmerman in the nation with state Additionally, Minn. L.Rev. In the context our statute for restitution. caused, gravity of the harm of offenses Supreme Court has never United States unparalleled. test under section 910.3B is applied disproportionate the grossly to an under the Excessive Fines Clause in Finally, considering the broad in a criminal case. award of restitution legislature determining discretion of our in But see crime, penalties given for a we observe (Ken 2044, 141 at 339 S.Ct. at are numerous other crimes to which there (forfeitures J., in crimi nedy, dissenting) fines have been attached. enormous nature of nal cases are in the restitu crimes, apply These fines like those tion). 910.3B, which are covered under section proportionality applying the test devastating society. Iowa most case, recognize in we first the statute 124.401(l)(a) (fine up §§ Code apply that the restitution award does not major quantities one million dollars for in the death of resulting to all crimes 124.401(l)(b) (fine of not than drugs); less Rather, applies only to feloni- another. thousand dollars nor more than one five in death. See Iowa resulting ous acts for moderate hundred thousand dollars 910.3B(1). Although this includes Code (fine 124.401(l)(c) quantities drugs); involuntary manslaughter in violation of than one thousand dollars nor more less 707.5, previous- we have Code section fifty quan than thousand dollars for lesser necessary ly found recklessness remains drugs); tities also id. proof involuntary element of in all man- 455B.146A(1) (1997) (fine §§ of not more slaughter convictions. See State Con- per day pol than ten thousand dollars for 1980). ner, (Iowa 292 N.W.2d 455B.191(2) Iowa); luting quality air Thus, the restitution under the stat- award (fine twenty-five of not more than thou in a involv- ute could not be case per day pollution). sand dollars for water offender. ing negligent unintentional or helps fines for other The stiff these crimes Instead, it to an offender who is limited place penalty imposed by has demonstrated a willful and wanton dis- context, 910.3B in and reveals the vast regard rights of others the com- for parameters appropriate punishment Ayers, crime. mission of the See State Thus, a criminal offense. consider Crimes penalty, the excessiveness of a we must disregard committed with willful or wanton apply be alert to a constitutional standard persons for the other are ex- rights of recognizes the different roles be tremely serious. judiciary. and the legislature tween recognize is free to recognize legislature We also statute Our impose who committed a seriousness of certain crimes and applies to offenders punishment, as under greater death of another this stat crime which caused the harm, ute, supplement punishment criminal human. seriousness of this by imposing mandatory crimes res analysis, the final is unmatched serious titution. spectrum Lamphere broad of crimes. See offense,

Considering argues the nature of the the “restitution” award found in harm, fine, great actually punitive deference section 910.3B is in resulting nature, punishment. we conclude sec and thus additional legislature, afforded the violate the tion 910.3B does not on its face The Fifth Amendment of the United our state and Excessive Fines Clause of Constitution, commonly known States as minimum constitutions. The resti federal Clause, states, Jeopardy the Double “No $150,000 high, tution of but not award person subject shall ... be for the same disproportionate gravity to the of grossly put jeopardy to be twice in offence of life the offenses covered under the statute. ” Const, or limb.... U.S. amend. Y. This any make no determination whether We provision upon binding the states $150,000 restitution award excess of through the Fourteenth Amendment. See violate the Excessive Fines Clause. would Const, XIV, § U.S. amend. 1. any specific do not decide whether We also interpreted pro- This clause has been would render the circumstance of this case against tect three distinct abuses: a sec- applied to Izzolena restitution award as prosecution ond for the same offense after Fines violative of the Excessive Clause. acquittal; prosecution a second for the Izzolena did not raise the issue district conviction; after multi- same offense appeal. Notwithstanding, court or on ple punishments same offense. See case-specific analysis primarily would focus 435, 440, v. Halper, United States 490 U.S. punishment it on the amount of the as 1892, 1897, 109 S.Ct. L.Ed.2d of particular relates to the circumstances (1989); Wissing, State 528 N.W.2d the offense. Article section 12 of (test 2036, 141 at 329 L.Ed.2d protec- our constitution includes similar of proportionality of means the amount tions, person “No ac- stating, shall after punishment must bear some relation quittal, be tried for the same offence.” it is ship gravity the offense Const, I, § art. 12. designed punish). The manner in which particular impacts the amount of fine Important analysis particular offender is not the focus of the Jeopardy protects Double Clause is that it (Iowa Klawonn, test. 609 N.W.2d 515 imposition multiple against States, 2000); Alexander v. see United for the of punishments criminal same 113 S.Ct. U.S. Hudson, fense. 522 U.S. at denied, (1993), cert. Although 139 L.Ed.2d at 458. we 139 L.Ed.2d 120 have determined the award under section (1997) (the the forfei question is whether to be under the Exces punishment 910.3B light of the criminal ture was excessive Clause, we need not consider sive Fines offender); activity engaged punishment it under the whether is also Russell, 355, 356 also State v. 216 N.W.2d Jeopardy Double Clause. The Double (Iowa 1974) (rejected claim of excessive applies Jeopardy only multiple Clause imprisonment possibility sentence where criminal punishments. Restitution Klaver age ninety-six); until State v. Van part sentencing section 910.3B is a en, 867, 870-71, 208 Iowa 226 N.W. process. Alspach, See State v. (sentence not excessive because (Iowa 1996) (recognizing indi health). would undermine defendant’s gent right defendant’s to counsel at the hearing, of the sentenc Jeopardy. B. Double process); Wagner, State (Iowa imposition App.1992). While Iowa alleges Izzolena permits 910.7 a defendant to payable award Code section civil restitution award in a multiple pun challenge a restitution subse to Shank’s estate constitutes hearing, this does not quent offense. Izzolena ishments the same 552 award our attention to 910.7 which

change the fact the restitution Alspach, opportunity the defendant the provides of the initial sentence. See Thus, hearing a restitution at time imposition during the 554 N.W.2d at 883. pendency plan. the of the restitution See implicate award does not of restitution (1997). § 910.7 Iowa Code for the same offense. multiple punishments case, In Izzolena’s actions resulted process Procedural due re Through in the death of the enact- Shank. quires opportunity and notice 910.3B, the ment of Iowa Code section life, prior liberty, heard one of depriving expressly included a man- legislature has property. Knight Knight, or v. amount datory award restitution (Iowa 1994). 841, However, $150,000” payable “at to the victim’s least process conception “due ‘is not a technical sentencing. estate is assessed time, with fixed content unrelated to place ” 910.3B(1). § This is distin- See Iowa Code and circumstances.’ & Restau Cafeteria fine, after the guishable subsequent from a McElroy, rant Workers v. Union 367 U.S. have been im- conviction and sentence 895, 886, 1743, 1748, 6 81 S.Ct. L.Ed.2d v. posed. Department Revenue 1230, (1961) (quoting Joint Anti-Fas 784, Ranch, 767, Kurth 511 U.S. S.Ct. McGrath, Refugee cist v. Comm. 341 U.S. (1994) 1937, 1948, 767, 781-82 128 L.Ed.2d 817, 95 L.Ed. (“This drug punish- tax ... is a second (1951) (Frankfurter, J., concurring)). imposed ... during ment must be [and] Rather, it is “flexible and calls for such all.”). prosecution the first or not procedural protections particular as the Brewer, situation v. Morrissey demands.” award was not restitution subsequent proceeding, in a but rather as sentencing pro- original function of the Thus, Jeopardy the Double cess. Clause In Eldridge, Mathews v. implicated. find

was not We Izzolena’s (1976), L.Ed.2d 18 challenge jeop- on double section 910.3B Supreme Court identified relevant criteria ardy grounds has no merit. determining process to look for in what prior depriving property due one of a C. Due Process. procedural interest. The Court said a due challenges Izzolena (1) process analysis pri- must balance award under section as violative of 910.3B (2) affected, vate interest the risk of erro- process rights guaranteed by her due value, deprivation probable neous and if United States and Iowa Constitutions. any, procedural of additional or substitute Const, XIV, 1;§ Iowa See U.S. amend. safeguards, government’s and inter- Const, I, § process protec- art. 9.7 Due est. “procedur- can into tions be broken down at 33. process pro- al” due due and “substantive” facts, Applying this test to these rights. cess private property interest here is the inter-

Izzolena argues section 910.3B est the offender’s assets and financial provides opportunity no for a on hearing future. Section 910.3B mandates a mini- estate, prior imposition the amount of the mum award of and order, upon which renders uncon the financial ramifications the offend- responds by draw- stitutional. The State er are obvious. prohibits erty, Const, process

7. The federal Due Process Clause without due of law.” Iowa life, "depriv[ing] any person applied states from art. 9. We have the feder- liberty, property, process process protections equally or without due al and state due Const, XIV, § scope, import purpose. law.” U.S. amend. 1. The Exira Communi- State, per- ty Due Process Clause states that "no Sch. Dist. 512 N.W.2d 792-93 life, deprived liberty, prop- son shall be However, punishments penalties as it the risk of erroneous crimes Rubino, interest through of this sees fit. State deprivation (Iowa 1999); Lara, virtually non-exis procedures is 580 N.W.2d at 785. available However, to be im for this award can process tent. order due still be violated individual, beyond a posed upon guilt when such “tends to shock the sense of fair trial, States, must be shown at reasonable doubt play.” Howard v. United 372 F.2d (9th Cir.1967). accepted must be for the plea guilty or a We do find Additionally, underlying felonious offense. the award under section 910.3B “shocks the offense must have the commission of play” the fair that the defen- sense of such proximate the cause of the victim’s been any dant denied process rights. is due finally, the defendant is af death. And opportunity hearing for a once

forded the IV. Conclusion. order, restitution at the court issues the minimum We find the restitution award during pendency the of the order. any time payable the does not victim’s estate (1997).8 § Adding 910.7 See Iowa Code an fine constitute excessive under the fed- procedures to the additional or substitute Furthermore, eral and state constitutions. provide any would not additional process multiple punishment it is not a in violation defendant, to the as sufficient safeguards jeopardy protections. Finally, of double respect imposition of procedure with to the violate section 910.3B does not notions of in currently place. the award are process. due We affirm. in Finally, government’s the interest the AFFIRMED. light in process public is viewed of the Mathews, at interest. LAYORATO, justices except All concur in- at 47 L.Ed.2d at 40. This J., joined by who and is SNELL dissents burden and other cludes administrative TERNUS, JJ., CARTER, J., who with requiring societal costs associated part. takes no evidentiary hearing right as a matter of all cases. Id. The most obvious burden LAVORATO, (dissenting). Justice would be the increased number of hear- $150,- agree majority I with the that the Furthermore, pre-imposi- if ings. even 000 minimum restitution under Iowa Code provided, defendants hearing tion Eighth a “fine” within the section 910.4 is subsequent to a would also be entitled Constitu- Amendment to the United States pre-imposition hearing A hearing. 910.7 17 of the Iowa tion and article have little or no effect on the would also however, My agreement, Constitution. outcome because the award under section majority, I stops Contrary there. to the minimum mandatory 910.3B includes a lev- follow, believe, for reasons that el. and therefore unconstitu- fine is excessive provi- those constitutional recognize

We the broad discre tional fashioning sions. legislature tion we afford (offender, hearing. Code 910.7 or

8. While the district court would not be able to (as- award plan, address the amount of the 910.3B another associated with restitution ordered) However, suming modification). the minimum may petition for 910.7, hearing under section it would be constitutionality respect with adjust payment plan time able award, “the the section [of restitution focus during pendency of the order. State v. hearing] is not on whether a defendant 910.7 (Iowa Harrison, 1984) ability pay the entire amount of (court plan payment or review ability pay the due but on his peti- plan hearing). offender's in 910.7 The Blank, State v. current installments.” must, face,” for modification “on its tion (Iowa 1997); see also State hardship, inadequate income, a claim of demonstrate income, (Iowa Hoff, 415 N.W.2d v. Van change expenses, or a 1987). other circumstances sufficient to warrant time, Supreme years ago, granted Two for the first Court certiorari. Supreme applied the concluding United Court The Court had little trouble States provision Fines punish- Excessive Clause forfeiture constituted Baja States v. Amendment. See United ment and was therefore a “fine” within the 321, 327, kajian, 524 U.S. meaning of the Excessive Fines Clause. I think L.Ed.2d provides a of anal Bajakajian framework 329. reason, I think it ysis here. For that The Court next considered whether the me to detail. important for discuss precisely fine was the issue “excessive”— defendant, with his analy- in the before case us. Court’s family, attempted to leave the United began recognition sis with a that “[t]he required by without reporting, States un- inquiry touchstone constitutional (31 5316(a)(1)(A)), § federal law U.S.C. prin- der the Excessive Fines Clause is the $10,- transporting that than he was more ciple proportionality: of amount the The of in currency. Bajakajian, 524 U.S. at relationship forfeiture must bear some to 2031, at 141 L.Ed.2d at 323. gravity of the offense that it is de- provides in question The federal statute signed punish.” to Id. at at person willfully

that a convicted of violat- 2036, 141 L.Ed.2d at 329. reporting requirement this “shall be recognized The Court that until now it $250,000, impris- fined not more than or never a had articulated standard for deter- years, oned for not more than five or mining punitive whether a forfeiture is 5322(a). addition, § In both.” 31 U.S.C. constitutionally excessive. See id. The 982(a)(1) 18 U.S.C. directs the court adopted gross Court the standard of dis- imposing person sentence on a of convicted proportionality articulated in its cruel-and- violating reporting requirement to or- punishment precedents unusual under the der the defendant to forfeit “to the United 334-36, Eighth Amendment. Id. at any property, personal, States real or in- 2036-37, at S.Ct. L.Ed.2d at 330-31. offense, any property volved such adopted gross The Court rather than a property.” traceable to such disproportionality strict standard for two arrested, $357,144 Bajakajian When had First, “judgments reasons. ap- about the possession. Bajakajian, in cash in his propriate punishment for an offense be- U.S. at 118 S.Ct. at long legisla- the first instance to the pled guilty at 323. He to the failure-to- at ture.” Id. 118 S.Ct. at report at offense. Id. Second, “any judicial L.Ed.2d at 330. de- 2032, 141 L.Ed.2d at 324. Although sec- regarding gravity par- termination of a 982(a)(1) sentencing tion directed to courts ticular criminal inherently offense will be forfeiture, full impose the federal district imprecise.” Id. court concluded forfeiture of the en- tire grossly dispropor- would be The Court directed district courts and tionate to the in question offense and appeal apply the courts of on to how would violate therefore the Excessive standard: Fines Clause. Id. at at S.Ct. [They] compare must the amount of the 2032, 141 L.Ed.2d at 324. The court in- gravity forfeiture of the defen- $15,000, stead ordered forfeiture of in ad- dant’s offense. If the amount of the years pro- dition to sentence of three of grossly disproportional forfeiture is (the a fine of bation and maximum $5000 offense, gravity of the defendant’s Guidelines). Sentencing fine under the Id. is unconstitutional. government appealed, full for- seeking feiture, 336-37, 2037-38, and the Ninth Id. at Circuit Court S.Ct. Appeals affirmed. Id. L.Ed.2d at 331. standard, the

Using Contrary Court conclud- proportionality principles, $357,- Bajakajian’s ed that the forfeiture of (1) per the majority’s approach se gives no 144 would violate the Excessive Fines consideration as to how the offense oc- conclusion, support In Clause. Id. of its curred prevents any consideration gave following the court reasons. degree culpability. Today, this First, Bajakajian’s crime was solely re- court decides a case that why illustrates porting legally transport offense: He could the majority’s per approach se is not only money country report- out of the if he contrary proportionality principles but ed it. Id. Rohm, is unfair. See State v. Second, Bajakajian’s violation was unre- illegal lated to other activities. Rohm, a mother was convicted of L.Ed.2d at 332. involuntary manslaughter because of her money was proceeds legal activ- passive in allowing conduct alcohol to re- ity, Bajakajian going was to use the main accessible to minors. Two members money repay Bajaka- a lawful debt. Id. of this court believed the evidence

jian profile persons did not fit the sufficient to sustain the conviction. See id. whom the money statute was intended: (Ternus, J., dissenting). Given the circum- launderers, traffickers, drug and tax evad- stances surrounding the offense and the ers. Id. decision, closeness of the one could amake Third, Guidelines, under Sentencing the $150,000 compelling argument that the fine the maximum sentence that could have against assessed the defendant is exces- imposed been on Bajakajian was six Yet, sive. majority’s per -the se months, while the maximum fine was approach, she will never opportu- have the penal- Id. The Court viewed $5000. these nity argument. to make that ties “confirming] as a minimal level of The majority’s per approach se also de culpability.” 338-39, 118 S.Ct. at nies a defendant the opportunity to show 2038,141 L.Ed.2d at 332. $150,000 that the fine would deprive the Last, harm Bajakajian that caused defendant of a especial livelihood. This is was also minimal. Id. at ly important because the fine is nondis- 2039, 141 L.Ed.2d at 332. The only victim chargeable in bankruptcy. Although in Government, was the and the Government Bajakajian the defendant did not raise the was relatively affected in a way minor —it deprivation-of-livelihood argument, deprived $357,144 of information that Court hinted that such a consideration is country. had left the Id. relevant. See 524 U.S. at 340 n.15, 118 n.15, 141 analysis The Court’s S.Ct. at 2039 Bajakajian L.Ed.2d at makes clear that determining what is 333 n.15. The Court also hinted that a grossly disproportional and therefore ex- defendant’s wealth and income are rele cessive must be on case-by-ease done vant, they are on question puni sentencing basis court. This is in tive civil cases. Id. direct opposition to the majority’s conclu- Finally, legislature itself has indicat- $150,000 sion here that a fine per is se person ed that a involuntary convicted of constitutionally . acceptable every case. manslaughter may culpable not be so as to majority’s per approach se is also $150,000 merit a Apart fine. from the direct conflict Supreme with the Court $150,000 award, legislature pronouncement penalty per that “no se Helm, determined that the maximum constitutional.” fine Solem v. be for such a crime is 902.9(4). See Iowa Code $7500. $150,000 and the what amount of restitution is constitution- between disparity telling. ally appropriate. $7500 I would vacate the restitution order and TERNUS, JJ., join SNELL meaningful hearing remand the case for a dissent. order, on the at which and the defendant State should present argument

allowed to evidence and

as to what the restitution should be. Us- Bajakajian analysis, standard and district court then determine should

Case Details

Case Name: State v. Izzolena

Court Name: Supreme Court of Iowa

Date Published: Apr 26, 2000

Citation: 609 N.W.2d 541

Docket Number: 99-683

Court Abbreviation: Iowa