Control the Issue

Posted on November 5, 2014 by Marty Ryan

webeagleI rediscovered a valuable lesson after Tuesday’s election.  Don’t let the opposition determine the issue.

Bruce Braley’s campaign for the U.S. Senate was poorly run.  That’s my opinion.  It began when he spoke to a group of trial attorneys in Texas, stating that if the Democrats lost the majority in the U.S. Senate, “a farmer from Iowa who never went to law school” would become the next Chair of the Senate Judiciary Committee.  He apologized within a day of the tape being aired on television.  That was his first big mistake.  He didn’t need to apologize; he stated a fact.

At that point, he allowed the Republicans and media to define the issue.

Twenty years ago, I was studying to become a legal assistant.  The class in Advanced Legal Research and Writing was given an assignment.  I can’t recall the specific assignment, but I do recall the case associated with the assignment – State v. Lake.  Kathy Lake, from Muscatine, took her case to the Iowa Supreme Court defending herself (pro se).  Here are the facts in the case:

On June 23, 1990, defendant, Kathy Lake, was a passenger in an automobile being driven on a public street in West Liberty. A police officer stopped the vehicle based on his belief that the driver was operating while intoxicated. The validity of that stop is not challenged. The driver brought the vehicle to a stop in a public parking lot. The officer ordered the driver out of the car.

At or near the time that the driver exited the vehicle, the defendant also stepped out of the vehicle and spoke to the officer. The officer directed defendant to re-enter the vehicle and, when she did not, told her to stay in the vicinity. Based on the officer’s observations of defendant, she was charged with public intoxication in violation of Iowa Code section 123.46 (1989).

Notice that Lake was “outside” of the vehicle when she was charged with public intoxication.  The issue in the case was whether “defendant [Lake] was in a “public place” even while she remained within the automobile.”  Evidently, without knowing any more information other than provided in the written opinion, it appears as though Kathy Lake controlled the issue.  There was an alternative question for the court to answer – “that she entered a public place when she exited the car.”

If you read this case, you will realize that Lake determined the issue.  When I read this case almost 20 years ago, I had to read it more than once.  It came in handy for two reasons.  First, the State attempted for years to change the law so that “the interior of a motor vehicle is public place for the purposes of public intoxication”.  Imagine how detrimental that law would have been if it were enacted?  I did everything I could to stop that legislation from becoming law, and it seems like I had to do that for six or eight straight years. In the end, a couple of government entities quit introducing it – I won!  Second, it taught me that I should be able to decide what the issue is for discussion, not someone else.  That’s how I try to lobby.

Braley did not insult Grassley; he stated a fact.  Yet, he succumbed to what the opposition considered to be an insult.  Or, was that the game all along?  Make it appear as though he insulted the senior senator from Iowa.

The media rose again to condemn a statement made by Senator Tom Harkin.  Harkin said “that Ernst wasn’t fit to be Iowa’s senator just because she’s ‘really attractive and she sounds nice.’”

In addressing fellow Democrats in Ames, Harkin said:  “I don’t care if she’s as good looking as Taylor Swift or as nice as Mr. Rogers, but if she votes like Michele Bachmann, she’s wrong for the state of Iowa.”  Within a day Senator Harkin is saying that he regretted those remarks.  Why?

In politics, the opposition always says unflattering things about you.  How ironic that Senator-elect Ernst wouldn’t talk to media outlets in Iowa because they wrote negative editorials about her, but she used CNN to express her distaste for what Harkin said.  She controlled the issue.

Besides, the double standard was very obvious in this campaign. Why is it that Joni Ernst did not apologize for her husband’s remarks on Facebook about Hillary Clinton being a hag? Or that he posted a supposed joke that displayed violence against women?  Neither the campaign nor Joni apologized.  These are instances in which an apology is appropriate. Again, she controlled the issue and the media allowed it.

What will happen now that Braley has been defeated and the Republicans take control of the U.S. Senate?  A “farmer from Iowa who never went to law school” will probably become the next Chair of the Senate Judiciary Committee.  It’s a fact.

I’m taking control of this issue. I will not apologize!

 

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Dennis Barnum 1934-2014

Posted on September 10, 2014 by Marty Ryan

webeagleDennis Barnum: Dennis, as in “Dennis the Menace”, and Barnum, as in “Barnum and Bailey Circus” (he purposefully left off the Ringling Brothers association); that’s how he introduced himself to me, and how I have heard him introduce himself to others. It worked. I can often miss someone’s name in an introduction. But I didn’t miss his.

I remember well the first and last time I spoke with Dennis.

Last June, he came to our home to take us out to lunch. Stephanie and I were just heading out the door to speak at an organization that is one of our clients. Had we known it was the last time we would see Dennis, we would have canceled the speaking engagement. Yes, he meant that much to us.

We live a mere two to three blocks from the Central Iowa Health Care System, known to most people as the Veterans Hospital in Des Moines. He was at the Hospital to have some treatment and decided to drop by and take us out to lunch – his treat. He looked pretty good. We were sure we would see him again. However, hindsight tells us that he was there to say goodbye. We didn’t get the hint, even though he told us what was wrong with him – Stage 4 cancer. Stephanie and I learned an extremely valuable lesson from this: friends are more important than events. Besides, one of us could have handled the speaking engagement while the other went to lunch with Dennis. But he understood. He was a proud man; but was humble in an altruistic way. He hugged each of us in our front yard as we parted. Stephanie got three hugs.

I originally met Dennis over the phone. I was working for the Iowa Civil Liberties Union in the mid-1990s when the executive director came up with a plan to find a new breed of directors for the board. We would advertise in the newsletter to see if any ACLU members in Iowa would like to come forward and be considered for nomination to the state affiliate’s board of directors. We received a few inquiries, but only one followed through – Dennis. I called to find his level of interest. Interesting, indeed.

We became good friends the minute he showed up for his first board meeting. He told me that he wanted to be the President of the ICLU someday; that he wanted to be the state affiliate’s representative on the ACLU National Board; and that he wanted to be appointed to the Iowa Civil Rights Commission. Dennis was a man who got things done. He accomplished all but the latter. And he wasn’t finished. After a few years, he wanted to be the President of Iowans Against the Death Penalty. He did that and recruited most of the board members.

But Dennis was more than an overachiever. He was a prolific fundraiser. Unlike most people, he enjoyed it. He traveled the state raising funds for the operation of the Iowa Civil Liberties Union. And put an emphasis on raise. He could take a $500-a-year donor and make them a $1500-a-year donor in a matter of minutes. I witnessed him raising a yearly contribution of $500 to a whopping $10,000 two-year commitment. He didn’t ask for money and head out the door. No, he visited, and he talked about civil liberties, the board, the staff, and a touch of politics. He was interested in the donor’s family. He provided feedback to the organization, which was always significant to establishing a close relationship between benefactor and recipient.

He held a session in which he taught the rest of the board members how to compete with him, and he began with Maslow’s triangle of hierarchy. It was weird, but effective. Under his leadership, goals were set thousands of dollars above what anyone thought was realistic. Yet, he managed to achieve each and every goal that was set while he was in a position of leadership. He just couldn’t get appointed to the Iowa Civil Rights Commission.

He gave me a letter to edit once. It took two days, a thesaurus and dictionary to get the job done. I sent him a letter once, not to edit, but to read. He returned it with editorial remarks. One thing that solidified our friendship was the fact that neither of us left a dangling participle or ended a sentence with a preposition.

I will miss him.

Dennis Barnum died on Wednesday, September 3, 2014 at Trinity Regional Medical Center in Fort Dodge, IA. He was 80 years-old. He got things done!

 

 

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Where Have All The Fireflies Gone?

Posted on August 22, 2014 by Marty Ryan

webeagleIt began with a simple question: Where did all the lightning bugs go? Some people call them fireflies. Anyway, I have yet to see one this year. Looking back, it’s been quite some time since I’ve seen one.

The answer will come later. But the simple question led to research, of course. As with some research we conduct, we got off on a tangent. One website led to another and before you know it we were at the National Wildlife Federation’s site. The NWF was founded by Iowan Jay “Ding” Darling in 1936. Our recent knowledge of the fragility of the environment drew our attention closer.

Stephanie read Silent Spring by Rachel Carson last spring. I began reading it earlier this summer. It has been instrumental in our commitment to not using chemicals on our yard and garden. Another catalyst in not using chemicals has been the loss of tomatoes, apples, green and wax bean plants, strawberries and several other fruits and vegetables eaten by deer, birds, squirrels, raccoons, opossums, woodchucks and other species of birds and mammals. Nothing touches the zucchini.

Since we have refrained from chemical activity we have noticed an influx of bees and butterflies (especially Monarchs) in our yard. Refraining from chemicals (maintaining sustainable gardening) is one of the criteria necessary to be designated as a Certified Wildlife Habitat. Other requirements are providing food and water for wildlife. Thanks to a thoughtful FL&R subscriber, we already have a few native prairie plants, many different types of berries, and several trees that provide food for animals.

We lacked a water source on the premises, but that didn’t stop Stephanie from creating a handmade birdbath and puddling areas for butterflies. A project we’ve had in mind for the past few years is a combination butterfly/rain garden. We’re going to begin working on that project this fall and through the winter.

We laughed when we saw the requirement that you have to provide cover for wildlife. We never intended to have that amenity for wildlife, but this spring a rabbit produced two litters of bunnies in our bean patch. Our bean patch is actually located in a 2×8 box of treated 2×12’s, and a nesting box is a qualifier for the certificate. We have a pile of branches that is also housing some creatures – probably woodchucks; or, quite possibly, another family of rabbits. The dog knows there is something in there.

We applied to be a Certified Wildlife Habitat through the NWF and have received our certification:

HabCert
In a few weeks are to receive a sign that designates the backyard as a certified wildlife habitat. We can hardly wait. If your yard or apartment meets the qualifications, you can get one, too. Go to: http://www.nwf.org/pdf/Certified-Wildlife-Habitat/CWH-application_0810.pdfhttp://

We do have some amazing photo opportunities. However, most of what we see remains in our memories. I never knew what a hummingbird looked like. Now, it’s a weekly occurrence. Once a year I will see a blue marten or more, and there isn’t a marten house in the neighborhood. When I first moved to this house, an owl flew onto a branch of a dead apple tree not far from where I stood on my deck. Cardinals are permanent residents of our backyard. I’m beginning to learn the names of birds I have never seen before, or more correctly, never noticed before.

With all the wildlife in this neighborhood, I’m still missing lightning bugs. Lightning bugs don’t exist in urban areas. They’re fading away from rural areas as well. There is too much light pollution, chemical application, and development. After living most of my life in small town Iowa, I saw my share of fireflies. It took a long time to realize I wasn’t seeing them, and hadn’t seen any in a very long time.

They say you can’t go home again. Heavy sigh!

http://www.examiner.com/article/lightning-bugs-and-fireflies-where-have-they-gone-1

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There Is No Cure For Addiction

Posted on August 14, 2014 by Marty Ryan

webeagle
Most Iowa Court of Appeals decisions that pertain to family law or juveniles are uninteresting or insignificant to anyone but those individuals who are directly involved in the case.  Occasionally, an attorney practicing family law or juvenile law should scan the decisions to find fine points of law used in the practice.  We rarely bother to read those cases.  However, one recent ruling raised our eyebrows.

A mother gave birth to her fourth child.  Within a month, the child was adjudicated a “child in need of assistance” [CINA] by the Iowa Department of Human Services.  The mother fought this adjudication for several reasons.  But first, let’s share some background.

The birth mother had a long history of drug offenses, bad choices and being in the wrong place at the wrong time.  The mother’s other children had all been adjudicated as CINA’s previously.  Those three children had witnessed an incident in which the driver of the vehicle they were in shot at police and fled.  Their mother was in the passenger seat.  Marijuana and methamphetamine were in her system.  This was not the first instance of drug possession, violence, or involvement with Human Services.

At the time of the youngest child’s adjudication as a CINA, the baby’s 3 older siblings were back living with their mother.  The mother was doing everything to turn her life around.  She successfully completed an inpatient substance abuse program, followed through on every service available to her, spent 2 months living with her children in Women’s and Children’s Center, and lived with her brother before she obtained and sustained suitable living for herself and her children.

Like an ad on late night television, “but that’s not all!”  She was participating in therapy “and made steady progress in both her recovery process and her relationship with her children”.  She changed her friends, secured a car, and, according to the guardian ad litem, took “the steps necessary for a complete rehabilitation and she is learning to parent sober.”

The Department of Human Services is relentless, cold and unforgiving.  The minute her fourth child was born the State petitioned to have the child adjudicated as a CINA based only upon the exhibits that were created during the mother’s troubled times.  The juvenile court granted the petition because, even though the mother “is working on her substance abuse issues . . . it is evident that she has not overcome her addiction.”  (Emphasis mine.)  No one overcomes an addition.  Day by day; minute by minute – that’s the only way to work a program.  Any addict can tell you about the difficult times of maintaining sobriety.  What did she have to do to convince the court that she was not the same mother that had the previous 3 children in need of assistance?

The chapter in the Iowa Code that pertains to juveniles, Chapter 232, lives by the premise of what is in “the child’s best interest”.  How could jerking the child away from this fragile mother be in the best interest of anyone?

In the end, this sane panel of three appellate judges concluded that the record “does not contain clear and convincing evidence the child is imminently likely to be abused or neglected or to suffer harmful effects as a result of a lack of supervision.”  Good for them!

 

 

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The Government Makes A Lousy Babysitter

Posted on August 3, 2014 by Marty Ryan

webeagle

A couple from Clive, Iowa hired an independent contractor to replace windows in their home.  The contractor, Nadir Topic, was paid a $6,000 down payment of the total estimate of $9,080.  He never replaced the windows, nor did he ever purchase them.  “The State charged Topic with second-degree theft” and “theft-by-deception”.

The second charge was dropped by the State prior to trial.  A jury found Topic guilty of the second-degree theft charge and he appealed.  The Iowa Court of Appeals heard the case and rightfully overturned the conviction.  The reversal was based upon the fact that “the State failed to establish that the $6,000 check belonged to the” couple.  State v. Topic.  You can’t be accused of theft if someone gave you something.  Evidently, the check is the focus of the crime, and Topic didn’t steal the check.

This action by the State (charging Topic with theft) is the result of a law that is the epitome of too many crimes.  This matter should have been dealt with in a court of equity.  The couple should have sued Topic for “specific performance” rather than have the State intervene.  It’s a matter of contract law.  Specific performance is the “remedy of performance of a contract in the specific form in which it was made, or according to the precise terms agreed upon.”

After reading this case, I decided to do just a small amount of research.  I checked to see if Mr. Topic had any previous convictions for similar circumstances, or if he had been sued for failure to perform a service.  Anyone can easily and freely obtain this information at http://www.iowacourts.gov/For_the_Public/Court_Services/Docket_Records_Search/index.asp

Next, I went to the Iowa Better Business’ website to see if Nadir Topic was an accredited window installer.  http://www.bbb.org/iowa/accredited-business-directory   I couldn’t find his name anywhere on this site.

There are three lessons here.  First, before you hire someone for a significant project around the home or business, check the two websites I just mentioned.  Someone may be the lowest bidder on a job, but “Buyer Beware”!  The lowest bid is not necessarily the best ‘bang for the buck’.

Second, this case may be appealed to the Iowa Supreme Court.  If not, the decision stands.  It proves that you should not rely upon the government to bail you out of a bad choice.  If the High Court overturns this case, my suggestion still stands.

Finally, because the Iowa Attorney General and Polk County Attorney lost this case we predict that the a legislative bill will be introduced next session to tighten up the current law that defines “second-degree theft under the theft-by-taking alternative set forth in Iowa Code section 714.1(1)”.  Fawkes-Lee & Ryan will be there to argue that these cases should not tie up criminal courts; that they should be settled in courts of equity; and that Iowa’s criminal code is fat enough without having the government hold hands with property owners who make awful decisions.

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Looking Ahead

Posted on July 30, 2014 by Marty Ryan

webeagle

We are always on the lookout for issues that may be coming up in the form of a legislative bill.  Most people think that the Iowa Legislative Session begins in January and ends when the legislators adjourn for the year, which is known as sine die (Latin meaning go home and don’t come back until next year).  Actually, the session may have ended, but the process never stops.

Often, we can predict with some accuracy what sort of proposed legislation we will see in the first month or two of the next session just by keeping up with the Iowa courts.  For instance, we know that an opinion by the Iowa Supreme Court that will interpret a statute in a way that sends the case back to the district court will have an effect on prosecutors.  The County Attorney Association or the Iowa Attorney General will have a bill introduced that amends the language of that particular statute to comply with what they had thought it meant.  Is that good?  Sometimes.

On July 18, the Iowa Supreme Court handed down State v. Lyle, a case that nullifies a mandatory minimum sentence for a person who committed a crime as a juvenile.  On Wednesday, the Iowa Court of Appeals handed down five cases that we will be looking at over the next few weeks, along with the Lyle case.

We’ll review each case and report on what we anticipate as we move through July and August.  However, the Iowa Supreme Court is cleaning its docket, and some of its more interesting cases will be handed down on Fridays from now through mid-August.  Another interesting opinion may be substituted for one of those we have planned.

We’ll be blogging about State v. Nadir Topic in a blog later this week or early next week.  Nadir Topic agreed to replace some windows in a home owned by a couple in Polk County.  He was paid upfront approximately 2/3 of the total cost of replacement.  He never bought the windows and a jury found him guilty of second-degree theft by a home improvement contractor.  The Iowa Court of Appeals “Reversed” the case and “Remanded” it to the district court in order to enter a judgment of acquittal.

How does this enter into Fawkes-Lee & Ryan’s programs?  We’ll tell you in the next blog.

 

 

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