“This record makes it impossible for [defendant] to muster sufficient evidence to satisfy his burden of demonstrating prejudice. His claim should be preserved for postconviction proceedings.”
How later courts described this case
- “This record makes it impossible for [defendant] to muster sufficient evidence to satisfy his burden of demonstrating prejudice. His claim should be preserved for postconviction proceedings.”
- “If fairly possible, a statute will be construed to avoid doubt as to constitutionality.”
- “[S]ubject matter jurisdiction should not be confused with authority.” (quoting State v. Yodprasit, 564 N.W.2d 383, 385 (Iowa 1997))
- “There is no federal constitutional basis for the right of appeal.”
Written by the judges who cited it.
The opinion
IN THE SUPREME COURT OF IOWA
No. 19–2082
Submitted October 14, 2020—Filed May 7, 2021
STATE OF IOWA,
Appellee,
vs.
TYJAUN LEVELL TUCKER,
Appellant.
Appeal from the Iowa District Court for Polk County, Lawrence P.
McLellan, Judge.
A defendant challenges his guilty plea to theft in the second degree.
APPEAL DISMISSED.
McDonald, J., delivered the opinion of the court, in which
Waterman, Mansfield, and Oxley, JJ., joined, and in which Christensen,
C.J., and McDermott, J., joined as to divisions I–III, V, and VI. McDermott,
J., filed a special concurrence, in which Christensen, C.J., joined. Appel,
J., filed a special concurrence.
Andy Dunn (argued) of Parrish Kruidenier Dunn Boles Gribble
Gentry Brown & Bergmann, L.L.P., Des Moines, for appellant.
2
Thomas J. Miller, Attorney General, Tyler J. Buller (argued),
Assistant Attorney General, John P. Sarcone, County Attorney, and
Amanda L. Johnson, Assistant County Attorney, for appellee.
3
McDONALD, Justice.
Tyjaun Tucker pleaded guilty to theft in the second degree, in
violation of Iowa Code sections 714.1 and 714.2(2) (2019). In this direct
appeal, Tucker contends his plea was not knowingly and voluntarily made
and his counsel was ineffective for nonetheless allowing Tucker to plead
guilty. In addition to those issues, Tucker challenges the constitutionality
of new legislation that limits the ability of a defendant to appeal as a matter
of right from a conviction following a guilty plea and that directs all claims
of ineffective assistance of counsel be presented and resolved in the first
instance in postconviction relief proceedings rather than on direct appeal.
See 2019 Iowa Acts ch. 140, §§ 28, 31 (codified at Iowa Code
§§ 814.6(1)(a), .7 (2020)). Tucker contends the new legislation violates his
right to equal protection of the laws and the separation-of-powers doctrine.
I.
The minutes of testimony show Tucker was employed as a
technician of a cable communications company. In that capacity, Tucker
entered the residences of the company’s customers to replace modems or
receivers. On one occasion, Tucker stole $2750 in cash from a customer.
The customer reported the theft to the police, and the police contacted
Tucker to obtain his side of the story. Tucker denied taking the money.
He was eventually arrested and charged with theft in the second degree.
The parties reached a plea agreement. Tucker agreed to plead guilty
to theft in the second degree, as charged, with the sentence to be served
consecutive to a sentence in another matter. The parties agreed the
sentences would be suspended due to Tucker’s willingness to take
accountability for his criminal conduct and agreed Tucker would be placed
on probation for three years. Tucker’s counsel confirmed the substance
of the plea agreement on the record.
4
The district court’s plea colloquy was thorough. The district court
informed the defendant of his trial rights and obtained Tucker’s waiver of
the same. The district court informed Tucker he had no right to appeal
absent a showing of good cause:
THE COURT: Mr. Tucker, by pleading guilty today, your
appellate rights after today will be that you can ask the Court
for permission to file an appeal. You have to establish that
good cause exists before the Court could grant you that right.
So knowing what your appellate rights would be after today,
do you still wish to plead guilty?
THE DEFENDANT: I do.
THE COURT: I didn’t hear you.
THE DEFENDANT: Yes.
THE COURT: Okay. And are you pleading guilty today
voluntarily and of your own free will?
THE DEFENDANT: Yes.
The district court accepted the defendant’s guilty plea.
The defendant wished to proceed to immediate sentencing. The
district court informed Tucker he had the right to delay sentencing, and
Tucker stated he understood the right and waived the same. The district
court informed Tucker he had the right to have a presentence investigation
report prepared prior to sentencing, and Tucker stated he understood the
right and waived the same. The district court also advised Tucker he had
the right to file a motion in arrest of judgment and if Tucker proceeded to
immediate sentencing, he would waive that right and “never be able to
challenge [his] plea.” Tucker stated he understood the right and intended
to waive the same. The district court imposed the bargained-for sentence.
Judgment was entered on November 20, 2019.
5
II.
In 2019, the general assembly passed and the governor signed an
omnibus crime bill effective July 1, 2019. See 2019 Iowa Acts ch. 140.
The new legislation applies to this appeal because judgment and sentence
was entered after the effective date of the bill. See State v. Draine, 936
N.W.2d 205, 206 (Iowa 2019); State v. Macke, 933 N.W.2d 226, 231 (Iowa
2019). There are two provisions of that legislation at issue in this appeal.
First, the new legislation limits a defendant’s ability to appeal as a
matter of right from a conviction following a guilty plea. Iowa Code section
814.6(1)(a) now provides:
1. Right of appeal is granted the defendant from:
a. A final judgment of sentence, except in the following
cases:
(1) A simple misdemeanor conviction.
(2) An ordinance violation.
(3) A conviction where the defendant has pled guilty.
This subparagraph does not apply to a guilty plea for a class
“A” felony or in a case where the defendant establishes good
cause.
Prior to the change in law, all defendants had an appeal as a matter of
right (except in cases of simple misdemeanor and ordinance violations)
without regard to whether the conviction was obtained after a trial or
pursuant to a guilty plea. See Iowa Code § 814.6(1)(a) (2018).
Second, the new legislation requires all claims of ineffective
assistance of counsel be decided in the first instance in postconviction
relief proceedings rather than on direct appeal. The new statute provides:
An ineffective assistance of counsel claim in a criminal
case shall be determined by filing an application for
postconviction relief pursuant to chapter 822. The claim need
not be raised on direct appeal from the criminal proceedings
in order to preserve the claim for postconviction relief
6
purposes, and the claim shall not be decided on direct appeal
from the criminal proceedings.
Iowa Code § 814.7 (2019). Prior to the change in law, a defendant could
raise a claim of ineffective assistance of counsel on direct appeal and this
court had the authority to either decide the claim or preserve it for further
development in postconviction relief proceedings. See Iowa Code
§ 814.7(2), (3) (2018).
III.
Tucker contends the new law violates his federal and state
constitutional rights to equal protection of the laws. Specifically, Tucker
contends section 814.6(1)(a)(3) makes an unconstitutional distinction
between those convicted after trial and those convicted after a guilty plea.
Our review is de novo. See State v. Mitchell, 757 N.W.2d 431, 434 (Iowa
2008) (applying de novo review to equal protection claims).
The United States and Iowa Constitutions guarantee the equal
protection of the law to all persons. The Fourteenth Amendment to the
United States Constitution provides, “No State shall . . . deny to any person
within its jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV, § 1. The Iowa Constitution provides, “All laws of a general
nature shall have a uniform operation; the general assembly shall not
grant to any citizen, or class of citizens, privileges or immunities, which,
upon the same terms shall not equally belong to all citizens.” Iowa Const.
art. I, § 6. We have interpreted this provision of the Iowa Constitution to
mean “similarly situated persons [should] be treated alike under the law.”
In re Det. of Williams, 628 N.W.2d 447, 452 (Iowa 2001) (en banc).
Generally, “[w]e apply the same analysis in considering the state equal
protection claim as we do in considering the federal equal protection
claim.” In re Morrow, 616 N.W.2d 544, 547 (Iowa 2000) (en banc) (quoting
7
State v. Ceaser, 585 N.W.2d 192, 196 (Iowa 1998), overruled on other
grounds by State v. Bruegger, 773 N.W.2d 862 (Iowa 2009)). At its core,
the federal and state “equal protection guarantee requires that laws treat
all those who are similarly situated with respect to the purposes of the law
alike.” Varnum v. Brien, 763 N.W.2d 862, 883 (Iowa 2009) (emphasis
omitted).
The first step in our equal protection analysis is to determine
whether the challenged law makes a distinction between similarly situated
individuals with respect to the purposes of the law. See id. at 882. This
is a threshold test. See id. If the defendant “cannot show as a preliminary
matter that [he is] similarly situated, [we] do not further consider
whether . . . different treatment under a statute is permitted.” Id.
Tucker has failed to establish he is similarly situated to a relevant
comparator with respect to the purposes of the law. He argues section
814.6(1)(a)(3) makes an arbitrary distinction between the appellate rights
afforded those convicted after trial and those convicted pursuant to a
guilty plea. However, those convicted after trial and those convicted
pursuant to a guilty plea are not similarly situated for the purposes of
appellate review. See Reed v. Hannigan, 295 F.3d 1061, 1064 (10th Cir.
2002) (“Moreover, the fact that a petitioner who has pled guilty is treated
differently than a petitioner who was tried and convicted by a jury does
not violate equal protection because the petitioners are not similarly
situated.”). A guilty plea waives all defenses and challenges not intrinsic
to the voluntariness of the plea. See State v. Antenucci, 608 N.W.2d 19,
19 (Iowa 2000) (en banc). “A plea of guilty is more than a confession which
admits that the accused did various acts; it is itself a conviction; nothing
remains but to give judgment and determine punishment.” Boykin v.
Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 1711–12 (1969). A guilty
8
plea puts a lid on the box and presumably concludes a case. See State v.
Mann, 602 N.W.2d 785, 789 (Iowa 1999) (“Once a defendant has waived
his right to a trial by pleading guilty, the State is entitled to expect finality
in the conviction.”). “[P]ersons who plead guilty have either acknowledged
their guilt or agreed to waive their constitutional rights, so the need for an
appeal is not present in the same way as it is after a trial.” Stellner v.
Romanowski, No. 1:07-cv-503, 2008 WL 2949225, at *6 (W.D. Mich.
July 29, 2008).
Those who plead guilty voluntarily place themselves in a different
class for the purposes of the equal protection guarantees than those who
choose to defend and go to trial. See Shaw v. Martin, 733 F.2d 304, 317
(4th Cir. 1984) (“As to Shaw’s equal protection argument, he cites no
authority that finds an equal protection violation in a state scheme such
as this, which allows jury sentencing after jury trials and requires judicial
sentencing after a defendant pleads guilty.”); People v. Smith, 548 P.2d
603, 605 (Colo. 1976) (en banc) (rejecting challenge to rule that treated
those convicted following a guilty plea differently, stating “[t]he defendant
in this case has not been treated differently than any other defendant that
falls within the rule,” and holding the defendant “was not denied equal
protection or due process of law”); Robinson v. State, 373 So. 2d 898, 901–
02 (Fla. 1979) (rejecting defendant’s equal protection challenge to statute
that prohibited direct appeal from guilty plea and that required initial
review of guilty plea be in postconviction relief proceeding); Smith v. State,
659 S.E.2d 380, 381 (Ga. 2008) (“Smith has failed to show that [convicted
defendants and defendants who plead guilty] are similarly situated.
Indeed, they are not; while a defendant who pleads guilty admits
committing a crime, a convicted defendant has not done so.”).
9
The Court of Appeals of Oregon rejected a similar challenge in State
v. Freudenthaler, 734 P.2d 894 (Or. Ct. App. 1987). In that case, the
defendant challenged a statute that limited a defendant’s right to appeal
from a conviction following a guilty plea. See id. at 895. The defendant
argued the statute impermissibly distinguished between defendants
convicted after trial and defendants convicted after a guilty plea. See id.
The court rejected the challenge, concluding the defendant was not
similarly situated to those who went to trial:
Here, by contrast, defendant could freely choose whether to
put himself within the class for which he now claims unequal
and more favorable treatment. He had the choice to bring
himself within the “favored class” created by the statute by
pleading not guilty. Having chosen to plead guilty, he has all
the privileges which are available to all others who have
chosen to put themselves within that class. [The statute] does
not create impermissible distinctions.
Id. at 896. We agree with this analysis.
Because Tucker failed to make a threshold showing he is similarly
situated to those convicted following trial, we need not determine whether
there is a fundamental right to direct appeal following a guilty plea or
whether there is a constitutionally valid justification for the distinction
drawn in the statute. See State v. Dudley, 766 N.W.2d 606, 616 (Iowa
2009) (“If a plaintiff cannot show preliminarily that persons in the two
classes are similarly situated, we have concluded the court need not
determine whether there is a constitutionally adequate basis for the
persons’ different treatment.”). Requiring those who plead guilty to
establish good cause to pursue a direct appeal as a matter of right does
not violate federal or state guarantees of equal protection of the laws. See
Morrow, 616 N.W.2d at 548 (“If people are not similarly situated, their
dissimilar treatment does not violate equal protection.”); see also People v.
Ivester, 286 Cal. Rptr. 540, 542–43 (Ct. App. 1991) (rejecting equal
10
protection challenge to statute denying appeal from a judgment of
conviction upon a plea of guilty unless the defendant filed a written
statement of reasonable grounds that challenge the legality of the plea).
IV.
Tucker raises a separation-of-powers challenge to sections
814.6(1)(a)(3) and 814.7. Tucker argues sections 814.6(1)(a)(3) and 814.7
unlawfully strip this court of jurisdiction over convictions entered upon a
plea of guilty and over claims of ineffective assistance of counsel.
On questions involving the separation of powers “this court shall
make its own evaluation, based on the totality of circumstances, to
determine whether [a] 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.
A.
“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
11
departments shall exercise any function appertaining to either
of the others, except in cases hereinafter expressly directed or
permitted.
Iowa Const. art. III, Three Separate Departments, § 1.
As we recently explained in State v. Thompson, the separation-of-
powers doctrine has three general aspects. 954 N.W.2d 402, 410 (Iowa
2021). The separation-of-powers doctrine prohibits one department of the
government from exercising powers that are clearly forbidden to it,
prohibits one department of the government from exercising powers
granted by the constitution to another department of the government, and
prohibits one department of the government from impairing another in the
performance of its constitutional duties. See id. The demarcation between
a legitimate exercise of power and an unconstitutional exercise of power is
context specific. “The separation-of-powers doctrine . . . has no rigid
boundaries.” Klouda, 642 N.W.2d at 260.
In resolving this context-specific question, we look first to the
constitution to determine whether there is a textual allocation of power to
a particular department of the government. See Thompson, 954 N.W.2d
at 410. We look at the “text of the document through the prism of our
precedent, tradition, and custom.” Id. (quoting State v. Brown, 930 N.W.2d
840, 861 (Iowa 2019) (McDonald, J., concurring specially)). Historical
practice is of particular importance in resolving separation-of-powers
questions. See id. “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.” Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610, 72 S. Ct. 863, 897 (1952)
(Frankfurter, J., concurring). Thus, a history of deliberate practice among
the different departments of the government can evidence a constitutional
settlement among them regarding the constitutional division of powers.
12
B.
We first address Tucker’s challenge to section 814.6(1)(a)(3). Tucker
contends the statute is unconstitutional because it deprives this court of
appellate jurisdiction. He further argues the new law expresses the
legislature’s view “that a guilty plea cannot be worthy of an appeal” and
thus “dictates to [Iowa’s appellate] courts how it should treat guilty pleas.”
He argues the “legislature’s judgment on this issue is wrong.”
To resolve the question, it is first necessary to understand what the
new law does. Under the new law, those convicted of any offense (other
than a simple misdemeanor or ordinance violation) after trial may file a
direct appeal as a matter of right. See Iowa Code § 814.6(1)(a) (2019).
Under the new law, those convicted of a class A felony upon a guilty plea
may file a direct appeal as a matter of right. See id. § 814.6(1)(a)(3). Under
the new law, those convicted of any offense (other than a simple
misdemeanor or ordinance violation) upon a guilty plea may file a direct
appeal as a matter of right upon a showing of “good cause.” Id. We have
liberally interpreted “good cause” to mean the defendant need only show a
“legally sufficient reason.” See State v. Boldon, 954 N.W.2d 62, 69 (Iowa
2021); State v. Damme, 944 N.W.2d 98, 104 (Iowa 2020). A legally
sufficient reason is a ground that potentially would afford the defendant
relief. The new law thus restricts only a narrow class of defendants from
pursuing a direct appeal as a matter of right: those who plead guilty to
non-class A offenses and cannot articulate a legally sufficient reason to
pursue a direct appeal. More bluntly, the new law prohibits those who
plead guilty to non-class A offenses from pursuing frivolous appeals as a
matter of right.
The text of the Iowa Constitution does not support Tucker’s claim
that this narrow restriction on who may appeal as a matter of right violates
13
the separation-of-powers doctrine. To the contrary, the text of the Iowa
Constitution undermines Tucker’s claim. The Iowa Constitution explicitly
provides this court’s appellate jurisdiction is subject to “such restrictions
as the general assembly may, by law, prescribe.” Iowa Const. art. V, § 4.
And article V, section 14 of the Iowa 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.” Pursuant to this explicit constitutional
allocation of power to the legislative department, “when the legislature
prescribes the method for the exercise of the right of appeal or supervision,
such method is exclusive, and neither court nor judge may modify these
rules without express statutory authority, and then only to the extent
specified.” Home Sav. & Tr. Co. v. Dist. Ct., 121 Iowa 1, 5, 95 N.W. 522,
524 (1903). “Our appellate jurisdiction must be exercised according to
law.” Id. “It is our duty to reject an appeal not authorized by statute.”
Crowe v. De Soto Consol. Sch. Dist., 246 Iowa 38, 40, 66 N.W.2d 859, 860
(1954).
Historical practice confirms our textual understanding. Since the
founding of our state, the legislative department has exercised its
constitutional authority to create, expand, and restrict the right to appeal.
In 1855, this court held the legislative department’s power to restrict
jurisdiction, as it appeared in the 1846 Constitution, allowed the
legislature to foreclose the right of appeal in certain categories of cases:
This court, however, only has appellate jurisdiction. How is
this jurisdiction to be exercised, and what are the restrictions
upon its exercise? The above provision of the constitution
expressly states, that this court is to have this jurisdiction,
“under such restrictions as the General Assembly may by
law prescribe.” Here, then the power is clearly given to the
General Assembly, to restrict this appellate jurisdiction. If
under this provision, the legislature would not have the power
to confer final jurisdiction on the District Court in particular
cases, and thus restrict the appellate jurisdiction of this court,
14
it is difficult to perceive what, if any, power it would have in
this respect. We think that power has been exercised in this
instance, and its propriety, we have neither the right nor
disposition to question.
Lampson v. Platt, 1 Iowa (1 Clarke) 556, 560 (1855).
The legislature has adjusted appellate jurisdiction since the
founding of the state. Statutes from the territorial government and early
period of statehood show the legislature limited appeal as a matter of right
in capital cases. In those cases, appeal was discretionary only. See Iowa
Code §§ 3088, 3090–3091 (1851); Iowa Rev. Stat. ch. 47, §§ 76–77 (Terr.
1843); Iowa Stat. Laws, Courts §§ 76–77 (Terr. 1839). In 1924, the
legislature granted defendants the right to appeal to this court “any
judgment, action, or decision of the district court in a criminal case” for
indictable and nonindictable offenses. Iowa Code §§ 13607, 13994 (1924).
In 1972, the legislature established the modern unified court system and
eliminated appeal as a matter of right for nonindictable offenses. See 1972
Iowa Acts ch. 1124, § 73(1) (“No judgment of conviction of a nonindictable
misdemeanor . . . shall be appealed to the supreme court except by
discretionary review as provided herein.”). It also divested this court of the
authority to review acquittals in nonindictable cases. See id. In 1979, the
legislature allowed appeals as a matter of right from all “final judgment[s]
of sentence” except for simple misdemeanors and ordinance violations,
which are subject to discretionary review only. Iowa Code § 814.6(1)(a)
(1979). Limiting appeal as a matter of right for those who plead guilty in
the absence of good cause no more violates the separation-of-powers
doctrine than do any of the historical limitations on appellate rights.
At the same time we recognize the legislative department’s
constitutional and historical authority to prescribe appellate jurisdiction,
we note the authority is not unlimited. “[T]he legislature cannot exercise
15
judicial powers, and cannot reverse, vacate, or overrule the judgment or
decree of a court.” Wilcox v. Miner, 201 Iowa 476, 478, 205 N.W. 847, 848
(1925). Nor can the legislature “arbitrarily decree that courts are without
subject matter jurisdiction in a certain class of cases then pending in the
courts.” Schwarzkopf v. Sac Cnty. Bd. of Supervisors, 341 N.W.2d 1, 6
(Iowa 1983) (en banc). Nor can the legislative department “change the
character of the court” such that it shall be something other than “a court
for the correction of errors at law.” Wine v. Jones, 183 Iowa 1166, 1177,
168 N.W. 318, 321 (1918) (second quoting Andrews v. Burdick, 62 Iowa
714, 721, 16 N.W. 275, 279 (1883)). Ultimately, “[f]or the judiciary to play
an undiminished role as an independent and equal coordinate branch of
government nothing must impede the immediate, necessary, efficient and
basic functioning of the courts.” Webster Cnty. Bd. of Supervisors, 268
N.W.2d at 873.
Tucker has not carried his burden of establishing the new law
impedes the immediate, necessary, efficient, and basic functioning of the
courts. There is long-standing authority stating there is not a federal
constitutional right to direct appeal. See Griffin v. Illinois, 351 U.S. 12, 18,
76 S. Ct. 585, 590 (1956) (“[A] State is not required by the Federal
Constitution to provide . . . a right to appellate review . . . .”); State v.
Hinners, 471 N.W.2d 841, 843 (Iowa 1991) (“There is no federal
constitutional basis for the right of appeal.”).1 We have also held that a
waiver of the right to appeal as part of a plea agreement is valid and
enforceable. See Hinners, 471 N.W.2d at 844. And, we have said that as
1Justice Appel’s special concurrence raises many issues involving the right to
direct appeal and the effective assistance of counsel not raised or briefed by the parties.
The only question presented in this appeal is whether the new law violates the
constitutional separation of powers as set forth in article III, section 1 of the Iowa
Constitution and equal protection under the Federal and State Constitutions. We need
not and do not address any other issues.
16
a general rule, “Once a defendant has waived his right to a trial by pleading
guilty, the State is entitled to expect finality in the conviction.” Mann, 602
N.W.2d at 789. In addition, other state legislatures have limited guilty
plea appeals. See, e.g., Cal. Penal Code § 1237.5 (West 2021) (requiring a
statement “showing reasonable constitutional, jurisdictional, or other
grounds going to the legality of the proceedings” and a certificate of
probable cause from the trial court).
Given all this, we cannot conclude the legislature impeded the basic
functions of this court when it decided to disallow those who plead guilty
from pursuing frivolous appeals as a matter of right. This is particularly
true given this court’s existing practice with respect to frivolous appeals.
This court already restricts appeals following a plea of guilty through the
enforcement of the frivolous appeal rule. See Iowa R. App. P. 6.1005. As
a result, under current practice, this court dismisses many guilty plea
appeals without full submission of the case on the merits. There may turn
out to be little substantive difference between Iowa Code section
814.6(1)(a)(3) and our frivolous appeal rule. Going forward, rather than
dismissing “frivolous” appeals from guilty pleas, this court may instead
dismiss appeals from guilty pleas where there is not “good cause” to
appeal. The difference may be largely procedural. Rule 6.1005 starts with
a presumption that the appeal is nonfrivolous and places the burden on
appellate counsel to demonstrate the appeal is frivolous. Under section
814.6(1)(a)(3), however, the defendant bears the burden of establishing
good cause for the appeal to go forward. See Iowa Code § 814.6(1)(a)(3)
(2019); Damme, 944 N.W.2d at 104.
C.
We next address Tucker’s claim that section 814.7 violates the
separation-of-powers doctrine. Tucker contends the new law “purports to
17
make a judgment that no claim for ineffective assistance of counsel is ever
strong enough to be decided on direct appeal.” Tucker argues this
legislative judgment was incorrect and the legislature’s decision to route
all claims of ineffective assistance of counsel to postconviction relief
proceedings in the first instance strips this court of jurisdiction.
The new law does not deprive this court of jurisdiction. Instead, the
new law requires claims of ineffective assistance of counsel be first filed in
“an application for postconviction relief pursuant to chapter 822” rather
than asserted on direct appeal. Iowa Code § 814.7. The new law also
prohibits claims of ineffective assistance of counsel from being decided on
direct appeal. See id. These are questions of authority and not
jurisdiction. See State v. Emery, 636 N.W.2d 116, 119 (Iowa 2001)
(“[S]ubject matter jurisdiction should not be confused with authority.”
(quoting State v. Yodprasit, 564 N.W.2d 383, 385 (Iowa 1997))). Section
814.7 simply does not deprive this court of jurisdiction.
Regardless, section 814.7 does not violate the separation-of-powers
doctrine. “Section 814.7 is not a ‘statute [ ] controlling [an] appeal[ ]’ so
much as it is a statute describing the procedure to bring a claim of
ineffective assistance of counsel.” Hannan v. State, 732 N.W.2d 45, 51
(Iowa 2007) (alterations in original). The Iowa Constitution explicitly
provides the legislature with authority to provide for a general system of
practice in all the courts of this state. See Iowa Const. art. V, §§ 4, 14.
The decision to divert claims of ineffective assistance of counsel to
postconviction relief proceedings is allowed by the textual allocation of
power to the legislative department.
Further, the new law does not impede the immediate, necessary,
efficient, and basic functioning of the courts. The statute does not divest
the appellate courts of the judicial power. Nor does the statute transfer
18
judicial power to another department of the government. The statute does
not direct the appellate courts how to decide a particular case. Nor does
the statute change the character of the appellate courts to something other
than courts for the correction of errors at law. Instead, the law merely
diverts all claims of ineffective assistance of counsel to postconviction relief
proceedings and requires they be resolved there in the first instance.
Other courts have affirmed the constitutionality of statutes requiring
certain claims be pursued in the first instance in postconviction relief
proceedings. See Wrenn v. State, 121 So. 3d 913, 914–15 (Miss. 2013)
(holding that defendant’s conviction following a guilty plea could only be
challenged under the postconviction statute rather than on direct appeal);
State v. Rettig, 416 P.3d 520, 521 (Utah 2017) (rejecting claim that “the
legislature lacks the constitutional power to require that [the defendant]
pursue his claim through the Post-Conviction Remedies Act”).
Not only does the new law not impede the basic functioning of this
court, the new law is consistent with our practice. Our cases recognize
claims of ineffective assistance of counsel can rarely be resolved on direct
appeal and generally must be preserved for and developed in
postconviction relief proceedings. See Brown, 930 N.W.2d at 844 (“We
normally preserve ineffective-assistance-of-counsel claims for
postconviction-relief proceedings.”); State v. Straw, 709 N.W.2d 128, 138
(Iowa 2006) (“In only rare cases will the defendant be able to muster
enough evidence to prove prejudice without a postconviction relief
hearing.”); Manning v. State, 654 N.W.2d 555, 562 (Iowa 2002) (recognizing
that when an ineffective-assistance-of-counsel claim is raised in
postconviction proceedings “an evidentiary hearing on the merits is
ordinarily required” (quoting Foster v. State, 395 N.W.2d 637, 638 (Iowa
1986))); Watson v. State, 294 N.W.2d 555, 556 (Iowa 1980) (stating that an
19
evidentiary hearing for ineffective-assistance-of-counsel claims allows
parties to develop all the “circumstances attending counsel’s
performance . . . which may be pertinent but are not a part of the criminal
trial record”); State v. Smith, 282 N.W.2d 138, 143–44 (Iowa 1979) (“[T]he
question of trial counsel’s competency is more properly presented on
postconviction relief.”). The new law merely codifies, albeit more strongly,
a judicial practice stretching back for almost a half-century.
Further, the legislative department’s determination that claims of
ineffective assistance of counsel should be resolved in the first instance in
postconviction relief proceedings is supported by a variety of legitimate
interests. Among others:
Considering a claim of ineffective assistance of counsel on
direct appeal (1) deprives the State, in responding to the
defendant’s arguments, of the benefit of an evidentiary
hearing, including trial counsel’s testimony; (2) places [the
appellate courts] in the role of factfinder with respect to
evaluating counsel’s performance; . . . and (4) constitutes a
significant drain on [appellate court] resources in responding
to such claims.
State v. Nichols, 698 A.2d 521, 522 (Me. 1997), holding modified by
Petgrave v. State, 208 A.3d 371 (Me. 2019).
D.
We hold sections 814.6(1)(a)(3) and 814.7, whether considered in
isolation or in tandem, do not violate the separation-of-powers doctrine.
The Iowa Constitution provides this court’s appellate jurisdiction is subject
to such restrictions as the legislature may prescribe. Iowa Const. art. V,
§ 4. The Iowa Constitution also tasks the legislature with the primary duty
to provide for a system of practice in all Iowa Courts. See id. § 14. Here,
the legislative department determined that defendants who plead guilty to
non-class A offenses should not have the right to pursue an appeal without
a showing of good cause. See Iowa Code § 814.6(1)(a)(3). The legislature
20
also determined all claims of ineffective assistance of counsel must be
resolved in the first instance in postconviction relief proceedings rather
than on direct appeal. See id. § 814.7. These decisions were within the
legislative department’s prerogative and not in derogation of the judicial
power.
V.
Having concluded sections 814.6(1)(a)(3) and 814.7 are
constitutional and applicable to this appeal, we turn to whether Tucker
established good cause to pursue this appeal as a matter of right. Tucker
“bears the burden of establishing good cause to pursue an appeal of [his]
conviction based on a guilty plea.” Damme, 944 N.W.2d at 104; see also
Iowa Code § 814.6(1)(a)(3) (stating that the provision prohibiting an appeal
from a conviction where the defendant pleaded guilty does not apply “in a
case where the defendant establishes good cause” (emphasis added)).
The statute does not define “good cause.” In State v. Damme, we
stated that “good cause” in section 814.6 means a “legally sufficient
reason.” 944 N.W.2d at 104. We explained that what constituted a legally
sufficient reason was context specific. See id. There, we held “that good
cause exists to appeal from a conviction following a guilty plea when the
defendant challenges his or her sentence rather than the guilty plea.” Id.
at 105. We explained that “[a] sentencing error invariably arises after the
court has accepted the guilty plea” and “[t]his timing provides a legally
sufficient reason to appeal notwithstanding the guilty plea.” Id.
Tucker contends we should expand the concept of good cause and
hold that a claim that a plea is not intelligently or voluntarily made
constitutes good cause to appeal as a matter of right. We respectfully
disagree. A legally sufficient reason to appeal as a matter of right is a
reason that, at minimum, would allow a court to provide some relief on
21
direct appeal. Here, there is no such possibility. Tucker pleaded guilty
and requested immediate sentencing. He waived his right to file a motion
in arrest of judgment. His failure to file a motion in arrest of judgment
precludes appellate relief. See Iowa R. Crim. P. 2.24(3)(a) (“A defendant’s
failure to challenge the adequacy of a guilty plea proceeding by motion in
arrest of judgment shall preclude the defendant’s right to assert such
challenge on appeal.”). We thus cannot provide relief on direct appeal.
We have recognized two exceptions to this bar, but neither exception
would allow for the possibility of relief on the facts of this case. First, we
have recognized a defendant may challenge his guilty plea on direct appeal
despite not filing a motion in arrest of judgment where the district court
failed to adequately advise the defendant of the necessity for filing a motion
in arrest of judgment and the consequences of not filing a motion in arrest
of judgment. See State v. Loye, 670 N.W.2d 141, 149–50 (Iowa 2003)
(stating court’s failure to comply with rule 2.8(2)(d) and advise of the
consequences of the failure to file a motion in arrest of judgment operates
to reinstate the defendant’s right to appeal the legality of his plea). Here,
Tucker was adequately advised and waived the right.
Second, we have allowed a defendant to indirectly challenge his
guilty plea on direct appeal despite not filing a motion in arrest of judgment
“if the failure to file a motion in arrest of judgment resulted from ineffective
assistance of counsel.” Straw, 709 N.W.2d at 133. Of course, because we
have just upheld the constitutionality of section 814.7, this court is
without the authority to decide ineffective-assistance-of-counsel claims on
direct appeal. Thus, the second exception no longer provides an avenue
for relief on direct appeal.
Tucker has not advanced a legally sufficient reason to pursue an
appeal as a matter of right. He was adequately advised of the necessity of
22
filing a motion in arrest of judgment to challenge his guilty plea and the
consequences of failing to do so. Upon being properly advised of his right
and the consequences for waiving that right, Tucker waived the right and
proceeded to immediate sentencing. He has no right to assert a claim of
ineffective assistance of counsel on direct appeal, and this court has no
authority to decide a claim of ineffective assistance of counsel on direct
appeal. Under the circumstances, the appellate courts cannot provide
relief. Tucker has thus not established good cause to pursue his appeal
as a matter of right.
VI.
Because Tucker has not established good cause to invoke this
court’s appellate jurisdiction, the appeal must be dismissed.
APPEAL DISMISSED.
Waterman, Mansfield, and Oxley, JJ., join this opinion and
Christensen, C.J., and McDermott, J., join divisions I–III, V, and VI.
McDermott, J., joined by Christensen, C.J., concur specially. Appel, J.,
concurs specially.
23
#19–2082, State v. Tucker
APPEL, Justice (concurring specially).
Under our law prior to the enactment of S.F. 589, 2019 Iowa Acts
ch. 140, there is no basis for us to consider the merits of Tyjuan Tucker’s
claim that his plea was involuntary. The claim Tucker raises clearly
requires the development of an evidentiary record. See, e.g., State v. Petty,
925 N.W.2d 190, 196 (Iowa 2019) (recognizing that the showing of
ineffective assistance of counsel of guilty plea “often requires a more
thorough record than the one provided on direct appeal”); State v. Bearse,
748 N.W.2d 211, 219 (Iowa 2008) (“This record makes it impossible for
[defendant] to muster sufficient evidence to satisfy his burden of
demonstrating prejudice. His claim should be preserved for postconviction
proceedings.”); State v. Straw, 709 N.W.2d 128, 138 (Iowa 2006) (“In only
rare cases will the defendant be able to muster enough evidence to prove
prejudice without a postconviction relief hearing.”). As a result, aside from
S.F. 589, Tucker is not entitled to relief and must pursue his claim in
postconviction relief. This appeal challenging the merits of the guilty plea
cannot be decided on direct appeal under our law without any
consideration of the constitutionality of various provisions of S.F. 589.
So, that should be it. There is no point in addressing the
constitutional issues, particularly in light of our well-established doctrine
of constitutional avoidance. See State v. Iowa Dist. Ct., 843 N.W.2d 76, 85
(Iowa 2014) (“The doctrine of constitutional avoidance suggests the proper
course in the construction of a statute may be to steer clear of
‘constitutional shoals’ when possible.”); Simmons v. State Pub. Def., 791
N.W.2d 69, 74 (Iowa 2010) (“If fairly possible, a statute will be construed
to avoid doubt as to constitutionality.”); State v. Fuhrmann, 261 N.W.2d
475, 477 n.1 (Iowa 1978) (en banc) (“An appellate court should refrain from
24
a constitutional analysis of statutes if a case may be disposed of on other
grounds.”). But the majority attaches the dispositive but narrow
nonconstitutional disposition as a caboose to its opinion. It then moves
to the forefront its constitutional essay.2
2As the United States Supreme Court recognized in Steel Co. v. Citizens for Better
Environment, under federal law, there is a hypothetical jurisdiction doctrine that suggests
that federal courts should consider jurisdictional issues before considering the merits of
a case. 523 U.S. 83, 94–95, 118 S. Ct. 1003, 1012 (1998). The general notion is that if
there is no subject matter jurisdiction in a case, any discussion of the merits is only an
advisory opinion. One of the negative effects of hypothetical jurisdiction is that it denies
“state courts the autonomy that Congress, as well as the framers of the Constitution,
sought to preserve.” Ely Todd Chayet, Hypothetical Jurisdiction and Interjurisdictional
Preclusion: A “Comity” of Errors, 28 Pepp. L. Rev. 75, 84 (2000). The Steel Co. doctrine
thus restricts the degree that federal courts of limited jurisdiction invade what ordinarily
might be considered the province of state courts.
In In re Guardianship of Matejski, 419 N.W.2d 576 (Iowa 1988) (en banc) and
Heartland Express v. Gardner, 675 N.W.2d 259 (Iowa 2003), we embraced the Steel Co.
concept. In In re Matejski, we stated that the nature of subject matter jurisdiction makes
the issue “an abstract inquiry unrelated and precedent to the rights of the parties to a
particular case.” Id. at 579. And, in Heartland Express, we cited Steel Co. favorably for
the proposition that jurisdiction goes to the core of the judicial power and must exist prior
to the time that judicial power is exercised. 675 N.W.2d at 266. In these cases, we simply
cited the federal precedent and cut and pasted the citations into the Iowa cases without
any consideration of the reasons for the Steel Co. doctrine or its potential limitations.
In the federal courts, however, a consensus has developed that Steel Co. applies
only to Article III standing and does not implicate hypothetical statutory jurisdiction. See
Joshua S. Stillman, Hypothetical Statutory Jurisdiction and the Limits of Federal Judicial
Power, 68 Ala. L. Rev. 493, 510 (2016). Of course, there is no Article III in the Iowa
Constitution, and our state courts are courts of general jurisdiction, not limited
jurisdiction. And, to the extent the hypothetical jurisdiction doctrine of Steel Co. was
designed to protect the autonomy of state courts, that rationale does not apply to cases
pending in state courts. Thus, the incorporation of the Steel Co. doctrine to state law
statutory jurisdictional questions is problematic because its purpose of protecting state
court autonomy does not apply when state courts of general jurisdiction are considering
issues on the merits. And, if the claimed desirability of uniformity with federal precedent
is the principle at work, the federal courts have now abandoned the doctrine except for
Article III constitutional claims and, applying the uniformity reasoning, so should we. .
In any event, the Steel Co. doctrine should not apply in this case. We should
recognize that the Steel Co. doctrine was fashioned for federal and not state courts and
has now evolved to apply narrowly only to questions of subject matter jurisdiction of
federal courts under Article III of the United States Constitution. Further, in this case,
the potential disposition that avoids a constitutional determination is not a holding on
the merits but is procedural in nature and based on preexisting law. Under these
circumstances, the notion that we should address statutory jurisdiction first has no
application.
25
I concur in the result in this case only because under our prior law,
Tucker’s claim cannot be addressed on direct appeal. But because the
majority has painted on a large constitutional canvas in a way I find misses
important parts of the constitutional landscape, I address some of the
hypothetical constitutional issues addressed in the majority opinion.
I. Limited Scope of Constitutional Claims In This Case.
At the outset, I think it is important to emphasize the issues in play
in this case. The majority has decided that S.F. 589 does not violate
separation-of-powers principles and does not violate state and federal
concepts of equal protection.
The majority opinion does not consider whether the restrictions of
S.F. 589 violate due process of law and the right to counsel. For instance,
an argument may be made that notwithstanding ancient precedent, a
person convicted of a crime is entitled by due process to at least one appeal
as a matter of right. See Marc M. Arkin, Rethinking the Constitutional Right
to a Criminal Appeal, 39 UCLA L. Rev. 503, 521–33 (1992); Cassandra
Burke Robertson, The Right to Appeal, 91 N.C. L. Rev. 1219, 1259, 1263–
64 (2013). If there is a due process right to one appeal, the first appeal for
a defendant asserting an ineffective-assistance-of-counsel claim under
S.F. 589 would be a petition for postconviction relief under Iowa Code
Chapter 822. See Martinez v. Ryan, 566 U.S. 1, 13–15, 132 S. Ct. 1309,
1318–19 (2012). If the petition for postconviction relief is the first appeal
as a matter or right, an indigent defendant would be entitled to the
assistance of counsel at state expense. See Douglas v. California, 372 U.S.
353, 355–56, 83 S. Ct. 814, 815–16 (1963) (holding that an indigent
defendant is constitutionally entitled to representation of counsel in a first
appeal as a matter of right); Grinols v. State, 74 P.3d 889, 894–95 (Alaska
2003) (recognizing a due process clause right to counsel in postconviction-
26
relief proceedings under the Alaska Constitution); Deegan v. State, 711
N.W.2d 89, 98 (Minn. 2006) (en banc) (holding that a defendant is entitled
to counsel in one appeal as a matter of right under Douglas and the
Minnesota Constitution); State v. Quixal, 70 A.3d 749, 755–56 (N.J. Super.
Ct. App. Div. 2013) (holding that there is a right to counsel in a first appeal
whether on direct appeal or through postconviction proceedings).
But the provisions of Iowa Code chapter 822 arguably do not
adequately provide for assistance of counsel in a timely and effective
manner. First, under chapter 822, a person seeking to file a petition may
not be provided with the right to assistance of counsel when drafting the
petition, a critical stage in the postconviction-relief process. See Iowa Code
ch. 822 (2019).3 Yet, in the development of a postconviction-relief claim,
a lawyer is critical in evaluating the record and doing necessary
investigation. See generally Ken Strutin, Litigating from the Prison of the
Mind: A Cognitive Right to Post-Conviction Counsel, 14 Cardozo Pub. L.,
Pol’y, & Ethics J. 343, 383 (2016) (discussing the difficulties a pro se
litigant faces in postconviction proceedings); Kathyrn E. Miller, The
Attorneys Are Bound and the Witnesses Are Gagged: State Limits on Post-
Conviction Investigation in Criminal Cases, 106 Calif. L. Rev. 135 (2018)
(discussing the important role of attorneys in conducting investigations for
postconviction-relief proceedings). The requirements of Iowa Code section
822.3 and section 822.4 include specific pleading, the attachments of
documents, and inclusion of affidavits, records, and other evidence.
Complying with these provisions will be very difficult for an indigent,
unschooled defendant without a lawyer’s help.
3Iowa Code section 822.5 provides that “legal representation shall also be made
available to the applicant in the preparation of the application.” But the statute provides
no mechanism for the appointment of counsel prior to the filing of the application for
postconviction relief.
27
Second, under the postconviction-relief statute, a petition may be
dismissed by the court. Iowa Code § 822.6(2), (3). Thus, an unartfully
drafted petition prepared without the help of a lawyer is subject to
dismissal without further ado.
Third, the appointment of counsel under Iowa Code section 822.5 is
discretionary. See Leonard v. State, 461 N.W.2d 465, 467 (Iowa 1990);
Furgison v. State, 217 N.W.2d 613, 615 (Iowa 1974), superseded by statute
on other grounds by Iowa Code § 822.3A (2020). Thus, a court may decline
to appoint counsel based on the nature of the pleading prepared by an
unschooled indigent defendant who does not provide a reliable baseline to
the court for deciding a claim. Any refusal to appoint counsel in a
postconviction-relief action that amounts to a first appeal as a matter of
right would raise significant constitutional concerns.
Fourth, there are issues of institutional ability to deliver trained
lawyers to handle postconviction-relief cases. The administrative rules
provide payment of $63 for postconviction-relief work, subject to various
caps. Iowa Admin. Code r. 493—12.4, .6. There is a disturbing history in
some cases of inordinate delay in postconviction-relief cases that may not
reflect well on appointed counsel. See Linn v. State, 929 N.W.2d 717, 727–
28 (Iowa 2019) (noting seven years elapsed from filing of application for
postconviction relief to erroneous district court dismissal of case); Mablin
v. State, 2019 WL 4297860, *7 (Iowa Ct. App. Sept. 11, 2019) (noting that
a trial was held nearly eight years after the postconviction-relief
application).
These substantial questions, however, and no doubt others, are not
presented in this case. The above discussion takes no view on the merits
but simply illustrates the outer boundaries of the majority opinion.
28
II. S.F. 589, Legislative Limitations on Subject Matter
Jurisdiction, and Separation of Powers.
A. Introduction.
1. Nature of the problem: Legislative override of judicial precedents
controlling docket. S.F. 589 limits a defendant’s access to direct appeal in
two ways. First, S.F. 589 limits the ability of a criminal defendant to
directly appeal ineffective-assistance-of-counsel claims. 2019 Iowa Acts
ch. 140, § 31 (codified at Iowa Code § 814.7 (2020)). And second, the
legislature has stated that direct appeal of a conviction based upon a guilty
plea is not permitted unless the case involves a class “A” felony or for “good
cause.” Id. § 28 (codified at Iowa Code § 814.6(1)(a)(3) (2020)). The
question arises whether the legislature, structuring the nature of this
court’s appellate docket, violates separation-of-powers concepts of the
Iowa Constitution.
2. Relevant Iowa constitutional provisions. The Iowa Constitution
expressly vests the judicial power with the courts. Specifically, article V,
section 1 provides, “The judicial power shall be vested in a supreme court,
district courts, and such other courts, inferior to the supreme court, as
the general assembly may, from time to time, establish.” Iowa Const. art.
V, § 1. Under the Iowa Constitution, the judicial power is vested in courts.
While the concept of separation of powers is not expressly stated in the
United States Constitution, article III, section 1 of the Iowa Constitution
provides, “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.” Id. art. III, Three Separate
Departments, § 1.
29
There are a number of additional Iowa constitutional provisions
related to the exercise of judicial power. Article V, section 4 relates to
jurisdiction of the supreme court. It provides,
The supreme court shall have appellate jurisdiction only in
cases in chancery, and shall constitute a court for the
correction of errors at law, under such restrictions as the
general assembly may, by law, prescribe; and shall have
power to issue all writs and process necessary to secure
justice to parties, and shall exercise a supervisory and
administrative control over all inferior judicial tribunals
throughout the state.
Id. art. V, § 4. Under article V, section 4, the question arises as to the
scope of the legislature’s power to impose “restrictions” on courts that
exclusively exercise the judicial power in light of their broad power “to
issue all writs and process necessary to secure justice” and to “exercise
supervisory and administrative control over inferior judicial tribunals.” Id.
Article V, section 6 relates to the jurisdiction of the district court. It
provides,
The district court shall be a court of law and equity, which
shall be distinct and separate jurisdictions, and have
jurisdiction in civil and criminal matters arising in their
respective districts, in such manner as shall be prescribed by
law.
Id. art V, § 6.
Finally, article V, section 14 provides, “It shall be the duty of the
general assembly to provide for the carrying into effect of this article, and
to provide for a general system of practice in all the courts of this state.”
Id. art. V, § 14. Thus, while the supreme court is given supervisory and
administrative authority over inferior courts, the general assembly is
directed to develop a general system of practice for the courts.
3. Larger constitutional context. Before considering the specific
provisions of the Iowa Constitution, it is essential to recognize and
30
acknowledge the constitutional context in which the specific provisions
related to the judicial function appear. Article I, the first substantive
provision of the Iowa Constitution, is the Iowa Bill of Rights. Id. art. I. The
Iowa Bill of Rights includes an expansive Declaration of Rights provision
in article I, section 1 and proceeds to provide a series of provisions
commonly found in one form or another in various state constitutions and
in the first amendments to the United States Constitution. Id. art. I, § 1.
Those who believe history matters in constitutional interpretation
will recognize that the placement of the Bill of Rights in the very first
article, as well as insertion of the Declaration of Rights provision as the
very first section of the first article, were intentional acts of the framers.
The sequencing of the provisions of the Iowa Constitution was not the
product of chance. As the chair of the committee that developed the Iowa
Bill of Rights in the 1857 Constitution stated, the Bill of Rights is the most
important section of the Iowa Constitution. The Iowa Bill of Rights was
the product of a highly individualistic age where the need to protect the
individual against government overreach was considered of prime
importance. The limitations in the Iowa Bill of Rights were stated as first
principles which could not be offended or invaded by acts of the executive
or legislative branches.
If nothing else, the Iowa framers were practical individuals. So, if
the Iowa Bill of Rights contain first principles that cannot be offended or
invaded by the executive or legislative branches, how did the framers
ensure that the primacy would be realized under the Iowa Constitution?
The answer is clear. An independent judicial branch is vested exclusively
with the judicial power. This independent third branch of government is
given the power to decide constitutional questions and ensure that the
31
Iowa Bill of Rights is observed by the legislative and executive branches of
government.
If the Iowa constitutional structure is to be preserved, the legislature
cannot have the power to prevent the Iowa courts from performing their
essential constitutional role. If the Iowa legislature had the power, for
instance, to enact legislation preventing the Iowa courts from considering
constitutional matters, the entire structure of the Iowa Constitution,
including the primacy of the Iowa Bill of Rights and the concepts of
separations of power, would collapse. If the legislature had the power to
strip constitutional matters from judicial review, there would be no
meaningful article V independent judiciary. The ability of courts to enforce
the Iowa Bill of Rights—provisions specifically designed to control and
contain majoritarian branches of government—would, in a remarkable act
of legal jujitsu, become a matter of legislative grace. Such a development
would come as a great shock to the founding generation and would
dramatically alter the nature of our constitutional government.
B. State Separation-of-Power Precedents.
1. Overview of state separation of powers cases. There has been a
wide variety of state court cases involving application of separation-of-
powers concepts to legislation designed to control the operations of the
judicial branch. Some of the cases involve legislative attempt to control
the manner in which the judicial branch conducts its business. See In re
Petition of Governor, 846 A.2d 1148, 1155 (N.H. 2004) (per curiam) (noting
that if the statute were upheld, it “would effectively grant the legislature
free license to alter the means of appointment and the term of the chief
justice based upon the politics of the moment”); see also Solomon v. State,
364 P.3d 536, 547 (Kan. 2015) (noting the legislative control of
appointment is “at odds with the ‘clear lines of responsibility and authority’
32
advocated by the legislature’s own Judicial Study Advisory Committee”
which are meant “to reduce ‘fragmentation of judicial power’ ”); Op. of the
Justices to the Senate, 376 N.E.2d 810, 813–14 (Mass. 1978) (“As to
attorneys admitted to practice before the courts of the Commonwealth, we
retain the ultimate authority to control their conduct in the practice of
law. . . . If the judicial department promulgates a rule imposing standards
higher than or in conflict with those imposed by the legislation, the judicial
rule would prevail.” (citations omitted)).
A number of cases from other states have considered whether
legislative efforts to control judicial processes offend separation of powers.
See, e.g., Solimito v. State, 122 N.E. 578, 578 (Ind. 1919) (“This court has
power to make its own rules as to briefs, and as to the conduct of business
before the court. It is not a legislative function to make rules for the court,
or to say what the court shall consider a sufficient brief.”); Coate v. Omholt,
662 P.2d 591, 593–97 (Mont. 1983) (invalidating several statutes which
imposed time limitations for rendering a decision and imposed sanctions
for violations of the prescribed time limits); State v. LaFrance, 471 A.2d
340, 346 (N.H. 1983) (per curiam) (“[T]he power of the judiciary to control
its own proceedings, the conduct of its participants, the actions of officers
of the court and the environment of the court is a power absolutely
necessary for a court to function effectively and do its job administering
justice.”). Specifically, many states have held that court procedural rules
trump legislative acts so long as the rule does not implicate a substantive
right. See, e.g., Duff v. Lee, 439 P.3d 1199, 1206–08 (Ariz. Ct. App.)
(holding that a statute which required courts adopt mandatory arbitration
was in direct contrast to and could not be harmonized with the supreme
court procedural rule which implemented the Fast Trial and Alternative
Resolution Program and therefore in violation of separation of powers),
33
aff’d in part, vacated in part, 476 P.3d 315 (Ariz. 2019); State v. Rollinson,
526 A.2d 1283, 1289 (Conn. 1987) (“General Assembly lacks the power to
enact rules governing [court] procedure . . . .”); Borer v. Lewis, 91 P.3d
375, 380–81 (Colo. 2004) (en banc) (holding that if a legislative act were
read to override a court procedural rule, it would be an unconstitutional
“infringement on the judiciary’s authority to promulgate procedural
rules”); J. T. v. O’Rourke, 651 P.2d 407, 410 n.2 (Colo. 1982) (en banc)
(“The court is free to consider and evaluate procedural enactments of the
General Assembly; though, in cases of conflict, the court’s procedural rule
would necessarily control a procedural statute.”); Commonwealth v.
DeWeese, 141 S.W.3d 372, 377 (Ky. 2003) (“[I]t would be a violation of
separation of powers for the legislature to promulgate rules of practice and
procedure for the court.”); People v. Watkins, 818 N.W.2d 296, 308 (Mich.
2012) (“In accordance with separation-of-powers principles, this Court’s
authority in matters of practice and procedure is exclusive and therefore
beyond the Legislature’s power to exercise.”); Berkson v. LePome, 245 P.3d
560, 565 (Nev. 2010) (en banc) (“[T]he legislature may not enact a
procedural statute that conflicts with a pre-existing procedural rule,
without violating the doctrine of separation of powers, and . . . such a
statute is of no effect.” (omission in original) (quoting State v. Second Jud.
Dist. Ct. ex rel. Cnty. of Washoe, 11 P.3d 1209, 1213, (Nev. 2000));
Ammerman v. Hubbard Broad. Inc., 551 P.2d 1354, 1359 (N.M. 1976)
(“[U]nder our Constitution the Legislature lacks power to prescribe by
statute rules of evidence and procedure, this constitutional power is vested
exclusively in this court, and statutes purporting to regulate practice and
procedure in the courts cannot be binding.”).
All of the above cases must be read with caution. In particular, there
is a variety of language used in state constitutions related to the
34
intersection of judicial and legislative powers. The above cases, however,
collectively demonstrate the difficulty in drawing the line between the
powers of the legislative and judicial branches in a variety of contexts.
2. State separation-of-powers cases related to subject matter
jurisdiction. A number of other states have grappled with the question of
whether the legislature has the power to restrict the subject matter
jurisdiction of constitutionally established courts. For example, the
Wisconsin Constitution provides that the circuit courts “except as
otherwise provided by law, . . . shall have original jurisdiction in all matters
civil and criminal within this state.” Wis. Const. art. 7, § 8. The obvious
question is whether the legislature has the power, under the “except as
otherwise provided by law” language, to eliminate by statute subject
matter jurisdiction from the Wisconsin courts. In Mueller v. Brunn, the
Wisconsin Supreme Court said no. 313 N.W.2d 790, 792 (Wis. 1982)
abrogated on other grounds by Vill. of Trempealeau v. Mikrut, 681 N.W.2d
190 (Wis. 2004). The Mueller court emphasized that the subject matter
jurisdiction to entertain actions is vested in the courts by the Wisconsin
Constitution. Id. As a result, subject matter jurisdiction is
constitutionally established. See id. The Mueller court, however,
recognized that the legislature under the “except as otherwise provided by
law” language has the authority to abolish statutory causes of action
altogether, thereby indirectly eliminating subject matter jurisdiction, and
to set standards for exhaustion of administrative remedies or for
establishing primary jurisdiction prior to invocation of the court system’s
subject matter jurisdiction. Id.; see also Mikrut, 681 N.W.2d at 195.
Other state jurisdictions have held that the legislature cannot
impact the subject matter jurisdiction vested in the courts by state
constitutions. See, e.g., Osborn v. Zoning Bd. of App., 11 Conn. Supp. 489,
35
491 (Conn. Super. Ct. 1943) (stating that the Connecticut constitution
“confers no power on the General Assembly to define the jurisdiction of a
superior court”); Clifton v. State, 53 Ga. 241, 241 (1874) (holding the
Georgia constitutional provision providing courts with jurisdiction in all
cases “except as otherwise provided in this Constitution” does not provide
basis for general assembly to remove jurisdiction from superior courts);
Am. Beauty Homes Corp. v. Louisville & Jefferson Cnty. Plan. & Zoning
Comm’n, 379 S.W.2d 450, 453–54 (Ky. 1964) (holding that “the legislature
can neither reduce nor enlarge the scope of the judicial function”); Smith
v. S. Union Gas Co., 269 P.2d 745, 747 (N.M. 1954) (“We have held in many
cases the district court gets its jurisdiction from the Constitution, and it
is not to be circumscribed or restrained by the legislature.”); Mitchell v.
Cornwall, 314 S.W.2d 437, 439 (Tex. Civ. App. 1958) (“[C]onstitutional
jurisdiction of a district court cannot be taken away [by] any legislative
act.”).
The above cases involve legislative efforts to impair the subject
matter jurisdiction established by state constitutions at the trial court
level. But the same reasoning applies to efforts to eliminate jurisdiction
in constitutionally established appellate courts. For instance, in
Mackensie & Shea v. Rhode Island Hospital Trust, the Rhode Island
Supreme Court emphasized that the Supreme Court’s “final revisory and
appellate jurisdiction upon all questions of law and equity . . . cannot be
curtailed nor impaired by statute.” 122 A. 774, 776 (R.I. 1923).
There is, however, authority to the contrary. For example, a Hawaii
appellate court has declared that the legislative power under the Hawaii
Constitution includes “the power to establish the subject matter
jurisdiction of [the] state court system.” Alaka‘i Na Keiki Inc. v. Hamamoto,
257 P.3d 213, 219 (Haw. Ct. App. 2011) (quoting Sherman v. Sawyer, 621
36
P.2d 346, 348 (Haw. 1980)), judgment vacated by Alaka‘i Na Keiki, Inc. v.
Mayatoshi, 277 P.3d 988 (Haw. 2012).
Some state constitutions explicitly provide for curtailing of the
subject matter jurisdiction of constitutional courts by the legislature. For
example, the Idaho Supreme Court has noted that under a constitutional
provision that provides for appellate court jurisdiction “as may be
conferred by law,” the legislature can curtail subject matter jurisdiction so
long as the jurisdiction is no less broad than the constitution explicitly
mandates. Fox v. Flynn, 150 P. 44, 46 (Idaho 1915). The Indiana Supreme
Court has held that under article VII, section 8 of the state constitution
which provides courts with civil and criminal jurisdiction “as may be
prescribed by law,” the legislature may remove “certain types of cases [from
constitutional courts] to courts peculiarly constituted” by the legislature
for the determination of selected issues. State ex Rel. Gannon v. Lake Cir.
Ct., 61 N.E.2d 168, 172 (Ind. 1945).
C. Iowa Separation-of-Power Precedents Regarding Subject
Matter Jurisdiction. The first case involving jurisdiction of courts in
Iowa arose under the Iowa Constitution of 1846. In Hutton v. Drebilbis,
the court emphasized that,
We do not understand by this article that the legislature have
the right to limit or restrict the jurisdiction thus conferred
upon the district courts by the constitution, but merely to
define and regulate the manner in which that jurisdiction
shall be employed.
2 Greene 593, 594–95 (Iowa 1850). The Hutton court went on to observe
that “[t]he fundamental law of the state has fixed the jurisdiction of the
district courts, and it is not within the power of the legislature to change
or modify it.” Id. at 595.
37
The principles of Hutton were applied under the Iowa Constitution
of 1857 in Laird Bros. v. Dickerson, where the court stated,
It is . . . clear, beyond question, that the District Courts have
general jurisdiction of all matters brought before them. But
the manner of the exercise of this general and inherent
jurisdiction is prescribed by law. The legislature may not
deprive the District Court of its jurisdiction, nor, in the least,
limit it; all that it is authorized to do is to prescribe the manner
of its exercise.
40 Iowa 665, 670 (1875).
The Laird court went on to affirm legislation that provided that in
cases involving the attachment of property when the defendant is not
served, the action must be brought in the county where the property
attached or part of it was located. Id. at 670–71. According to the Laird
court, such a provision would not deprive the district court of its general
jurisdiction over the subject matter. Id. at 670. The court distinguished
the attachment statute as a manner of exercising a lawsuit rather than
deprivation of judicial power from the courts because a court still had
jurisdiction even if the suit was brought in the wrong county. Id. at 671.
The thrust of Hutton and Laird is unmistakable. The legislature may
not remove subject matter jurisdiction from state courts. The strength of
the constitutional provisions related to jurisdiction of district court was
affirmed in In re Guardianship of Matejski, 419 N.W.2d 576, 577–78 (Iowa
1988) (en banc). In Matejski, the court considered whether the district
court had subject matter jurisdiction over a controversy involving the
proposed sterilization by a guardian of a person with an intellectual
disability. Id. at 576. There was no legislative authorization of subject
matter jurisdiction over such disputes. Id. at 580. The court held that
under article V, section 6, the district courts had jurisdiction over such
38
claims notwithstanding the lack of legislative action. Id. The court cited
with favor the Hutton and Laird precedents. Id. at 577.
D. Discussion. In my view, under the Iowa Constitution and the
applicable precedents, the legislature may not engage in jurisdiction
stripping of Iowa courts on constitutional matters under an expansive view
of its power to impose “restrictions” on constitutional courts. The meaning
of the Restrictions Clause must be understood in the larger constitutional
context. A broad interpretation of permissible restrictions that would
prevent this court from considering constitutional questions would
jeopardize the independence of the judicial branch and undermine the
effective enforcement of constitutional limitations on the executive and
legislative branches.4 If the legislature had the power to strip jurisdiction
of the courts over constitutional matters, the Iowa constitutional structure
of limited government enforced by judicial review would be undermined.
See Henry P. Monaghan, Jurisdiction Stripping Circa 2020: What The
Dialogue (Still) Has to Teach Us, 69 Duke L.J. 1, 22 (2019) [hereinafter
Monaghan, Jurisdiction Stripping]. As noted by Henry Hart in his classic
work many years ago considering the scope of the Exceptions Clause of
the United States Constitution, sensible people do not “read[] the
Constitution as authorizing its own destruction.” Henry M. Hart, Jr., The
Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in
Dialectic, 66 Harv. L. Rev. 1362, 1365 (1953) [hereinafter Hart, The
Dialogue]. See generally Monaghan, Jurisdiction Stripping, 69 Duke L.J.
at 17–18 (discussing why the Exceptions Clause should not be read in an
4For purposes of jurisdiction stripping, there is a distinction between
constitutional claims, which may not be stripped, and statutory claims which can be
created and extinguished by the legislature. See Webster v. Doe, 486 U.S. 592, 603–05,
108 S. Ct. 2047, 2053–54 (1988) (construing congressional action to bar judicial
consideration of statutory but not constitutional claims to avoid jurisdiction stripping
difficulties.).
39
overbroad manner, and quoting James Madison as writing “[a]n
interpretation that destroys the very characteristic of the government
cannot be just”).5
The question remains, however, whether the provisions of S.F. 589
are really jurisdiction stripping or are they simply permissible
“restrictions” that the general assembly may prescribe under article I,
section 3 of the Iowa Constitution. Under S.F. 589, the courts remain the
ultimate arbitrators of all ineffective-assistance-of-counsel claims and all
constitutional claims arising from guilty pleas. The legislation does not
deny any judicial forum for a claim of ineffective assistance of counsel or
for constitutional claims arising from plea bargaining.
Yet, prior to the enactment of S.F. 589, some claims of ineffective
assistance of counsel, and some challenges to guilty pleas, were permitted
5There is a rich literature regarding the power of Congress to engage in jurisdiction
stripping of federal courts under the Exceptions Clause of the United States Constitution.
United States Constitution, Article III, Section 2, Clause 2. See generally Richard H.
Fallon, Jr., Jurisdiction-Stripping Reconsidered, 96 Va. L. Rev. 1043 (2010) (discussing
various views on federal jurisdiction stripping and how the United States Supreme Court
has not squarely determined the constitutional boundary of congressional power to strip
jurisdiction); Tara Leigh Grove, The Article II Safeguards of Federal Jurisdiction, 112
Colum. L. Rev. 250 (2012) (discussing the limits of congressional power to strip
jurisdiction and the Executive Branch’s role in protecting the autonomy of the judiciary);
Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated
Guide to the Ongoing Debate, 36 Stan. L. Rev. 895 (1984) (discussing congressional power
under the Exceptions Clause and various theories on the limitation of congressional
power over the judiciary); Hart, The Dialogue, 66 Harv. L. Rev. 1362 (discussing the scope
of the Exceptions Clause and congressional power to limit jurisdiction); Alexander K.
Hooper, Jurisdiction-Stripping: The Pledge Protection Act of 2004, 42 Harv. J. on Legis. 511
(2005) (discussing the issues surrounding one proposed specific jurisdiction stripping
act); Monaghan, Jurisdiction Stripping, 69 Duke L.J. 1 (discussing the changes in the
jurisdiction stripping literature since Hart’s dialogue); Howard M. Wasserman,
Jurisdiction, Merits, and Non-Extant Rights, 56 U. Kan. L. Rev. 227 (2007) (discussing the
history of jurisdiction stripping and various models analyzing congressional power to
strip jurisdiction); Theodore J. Weiman, Comment, Jurisdiction Stripping, Constitutional
Supremacy, and the Implications of Ex Parte Young, 153 U. Pa. L. Rev. 1677 (2005)
(discussing the theory of constitutional supremacy to limit the power of congress to strip
jurisdiction). Most recently, the Supreme Court rejected an attempt by Congress to
restrict its habeas corpus jurisdiction in Boumediene v. Bush, 553 U.S. 723, 796-98, 128
S. Ct. 2229, 2276–77 (2008).
40
to be presented and decided on direct review without further factual
development. For years, such claims were considered as within the
subject matter jurisdiction of the supreme court.
Whether the legislature cannot strip away this long acknowledged
jurisdiction is a close question. If the Iowa Constitution establishes that
district courts are constitutionally courts of general jurisdiction, not
subject to legislative contraction, and the Iowa Supreme Court is
constitutionally the appellate court of all inferior tribunals, it logically
follows that the Iowa Supreme Court has the subject matter jurisdiction
to consider on direct appeal any issue where the record is sufficient to
permit resolution.
The treatment of guilty pleas under S.F. 589 is also in tension with
our supervisory authority over inferior courts. In the exercise of our
supervisory authority over inferior tribunals, we have promulgated Iowa
Rule of Criminal Procedure 2.8(2)(d). The purpose of the rule is in part to
ensure due process in the guilty plea process; namely, to ensure that a
criminal defendant who pleads guilty does so on a knowing and voluntary
basis. But the rule goes beyond that. It is designed to ensure that district
courts establish the appropriate record for the entry of a guilty plea. See
McCarthy v. United States, 394 U.S. 459, 464–66, 89 S. Ct. 1166, 1170–
71 (1969). On appeal, it is not difficult to determine whether the district
court complied with the rule. All that is required is examination of the
court’s colloquy with the defendant. See, e.g., State v. Fisher, 877 N.W.2d
676, 681 (Iowa 2016). And we have determined that such cases may be
reviewed on direct appeal and that prejudice inheres in the failure of the
district court to substantially comply with the rule. Id. at 682–83. There
is literally no rationale for diverting these cases to postconviction-relief
proceedings.
41
Under our constitutional arrangement, the Iowa Supreme Court has
the supervisory authority over inferior tribunals. Iowa Const. art. V, § 4.
Iowa Rule of Criminal Procedure 2.8(2)(d) and its implementation are
plainly part of our supervisory power over inferior tribunals. See, e.g.,
State v. Dahl, 874 N.W.2d 348, 351, 353 (Iowa 2016). The legislature does
not have the power to override this rule by declaring that a defendant must
show that it is “more likely than not” that the defendant would have gone
to trial but for the noncompliance with the rule. By attempting to override
our approach to guilty pleas in Iowa Rule of Criminal Procedure 2.8(2)(d),
the legislature is sitting in the courthouse and exercising power over
inferior tribunals.
Further, remarkably, it is the State’s position that in order to
determine whether there is “good cause” to avoid the statute’s prohibition
of direct appeals, the court needs to promulgate procedures to enable it to
make an early determination on the issue separate from consideration of
the merits of an appeal. The state believes, apparently, that the legislature
can by statute require this court to promulgate rules regarding the manner
in which it exercises its constitutional responsibilities. The separation-of-
powers implications are obvious.
As I see it, the majority opinion permits the legislature to engage in
jurisdiction stripping of the Iowa Supreme Court and of the district courts
and to invade the supervisory powers of this court. If the legislature has
the power to jurisdiction strip this court in the area of constitutional
claims, it has the power to destroy the role of the courts in enforcing
constitutional norms. This simply cannot be permitted consistent with
separation of powers. Although the restriction of supreme court subject
matter jurisdiction in this case is relatively narrow, the principle appears
unlimited. The power to limit or restrict subject matter jurisdiction of
42
constitutional claims would permit the legislature to eliminate the role of
the supreme court in our constitutional system.
And, when it comes to ensuring that constitutional norms are
enforced, the supreme court has the constitutional authority to adopt
rules. The legislature does not have such authority. We have adopted
Iowa Rule of Criminal Procedure 2.8(2)(b) to implement due process
requirements in guilty pleas. That is something for us to do, not the
legislature.
III. Challenges to Classifications in S.F. 589 Based on Due
Process and Equal Protection.
1. Introduction. S.F. 589 is a classification scheme. Ineffective-
assistance-of-counsel claims and certain guilty plea claims are treated
differently than other constitutional or statutory claims that may be
brought on direct appeal. And, guilty pleas resulting in conviction of a
class “A” felony are treated differently than guilty pleas resulting in
convictions of other crimes. Equal protection analysis applies to
classifications in criminal procedure, including an appeal system. See,
e.g., Schilb v. Kuebel, 404 U.S. 357, 364–65, 92 S. Ct. 479, 484–85 (1971)
(applying equal protection analysis to bail statute); People v. Wright, 725
N.E.2d 811, 814 (Ill. App. Ct. 2000) (noting that a system of appeal must
comply with equal protection).
2. Similarly situated compared to what? In its equal protection
analysis, the majority declares that the various categories of guilty pleas
are not similarly situated because they are different. But that is not equal
protection analysis. As we have noted, “no two groups are identical in
every way.” Quest v. Iowa State Bd. of Tax Rev., 829 N.W.2d 550, 561
(Iowa 2013). Men and women are different, but that does not mean that
all classifications that treat men and women differently pass equal
43
protection muster. A person who can lift one hundred pounds is different
from a person who can lift twenty-five pounds, but that does not mean a
classification that provides greater pay for one group based on sedentary
work requiring no lifting passes muster.
You simply cannot engage in equal protection analysis unless you
identify the purpose of the classification. And the majority does not
identify the purpose of the classification. Why is it, exactly, that ineffective
assistance and guilty pleas are treated differently from other claims? Why
is it that guilty pleas arising out of class “A” felonies are treated differently
than other guilty pleas?
But to treat the guilty pleas differently because they have some
differences from other cases without understanding the underlying
purpose of the statute leads nowhere. As noted by the United States
Supreme Court, the first step is to identify the objective of the statute and
then the second step is to determine whether the classifications are
rationally related to the purposes of the statute. Reed v. Reed, 404 U.S.
71, 75–76, 92 S. Ct. 251, 253–54 (1971). We have made a similar
observation, noting that the relationship between two classes must be
evaluated “in relation to any particular goal” (emphasis added) of the
legislation. Bierkamp v. Rogers, 293 N.W.2d 577, 584 (Iowa 1980)
(en banc). The majority skips the first step.
The reason why no purpose has been identified may be because
there is no purpose that rationally supports the classification. If the
purpose is conservation of judicial resources, the classifications seem hard
to justify. As we have noted, “preserving ineffective assistance of counsel
claims that can be resolved on direct appeal wastes time and resources.”
State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004). If it is true that
preserving cases for postconviction relief that can be decided on direct
44
appeal wastes time and resources, what purpose do the classifications in
S.F. 589 advance? The majority opinion does not tell us.
If the purpose is elimination of frivolous appeals, the classification
permitting challenges to convictions based on guilty pleas based on class
“A” felonies but not other crimes with lesser punishment is clearly invalid
under existing equal protection precedent. Indeed, in Rinaldi v. Yeager,
the United States Supreme Court stated that a classification based on the
level of punishment has no relationship to the purpose of discouraging
frivolous appeals. 384 U.S. 305, 309–10, 86 S. Ct. 1497, 1500 (1966).
And, is it permissible to put a penalty on valid claims in order to stem
frivolous claims that can be quickly identified and appropriately handled
by an appellate court rather than commencing a new postconviction-relief
proceeding?
The above questions are not considered in the majority opinion.
Under the approach of the majority, the implication is that legislative
purpose is not important and that any legislative classification that
disadvantages those who plead guilty is valid. That is not equal protection
analysis under Reed or Bierkamp. It is a conclusion only.
3. Level of scrutiny. A question in conventional equal protection
analysis is: What level of scrutiny should be applied in evaluating the
classification involved? If there is a due process right to a first appeal, and
if the postconviction-relief alternative does not provide effective assistance
of counsel, as I also maintain, then strict scrutiny would be the
appropriate equal protection test because the legislature would be
depriving the litigants affected by S.F. 589 of a fundamental right. See
State v. Hernandez-Lopez, 639 N.W.2d 226, 238 (Iowa 2002) (stating that
when the asserted right is fundamental, strict scrutiny is the appropriate
analysis). Of course, the classification would already be void as violating
45
due process and the right to effective assistance of counsel, and the equal
protection analysis would be of little additional consequence.
Yet, it is possible that strict scrutiny of the classifications created by
S.F. 589 would not be applied if the only claim relates to the differences in
procedure of a nonconstitutional dimension. If the challenge to the
classification has no constitutional dimension, an argument may be made
that the incidental burdens resulting from S.F. 589 should be evaluated
under a rational basis test.
Even so, our review of the rational relationship between the
classifications and the purpose of the statute is deferential but not
toothless. Racing Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 9 (Iowa
2004). “[T]he court will undertake some examination of the credibility of
the asserted factual basis for the challenged classification rather than
simply accepting it at face value.” Id. at 8 n.4. Thus, defenders of a statute
cannot simply declare that a statute has a legitimate goal and
triumphantly conclude its validity. While the distinctions created by S.F.
589 would likely not survive strict scrutiny under a valid constitutional
challenge, they also might fail under a heightened rational basis test. But
again, we cannot conduct rational basis review unless we understand the
purpose of the statute.
4. Equal protection precedents. There are four important United
States Supreme Court equal protection cases involving classifications in
criminal procedure. The first case is Rinaldi v. Yeager, 384 U.S. 305, 86
S. Ct. 1497. Here, a statute imposed transcript costs on indigents
unsuccessful on appeal who were incarcerated but not on those who were
on probation or only paid a fine. Id. at 308, 86 S. Ct. at 1499. The Rinaldi
court found that the distinction based on punishment had no relationship
to the purpose of the statute of deterring frivolous appeals. Id. at 309–10,
46
86 S. Ct. at 1500. As noted by the court, “[b]y imposing a financial
obligation only upon inmates of institutions, the statute inevitably
burdens many whose appeals, though unsuccessful, were not frivolous,
and leaves untouched many whose appeals may have been frivolous
indeed.” Id. at 310, 86 S. Ct. at 1500. The level of punishment had no
relationship to the question of stemming frivolous appeals. Id. at 309–10,
86 S. Ct. at 1500. In other words, with respect to the purpose of the
statute, it was both over inclusive and under inclusive to the point that it
did not survive rational basis scrutiny.
In a second case, Groppi v. Wisconsin, the Supreme Court
considered a statute that permitted a change of venue in felony cases but
not for misdemeanors. 400 U.S. 505, 507, 91 S. Ct. 490, 492 (1971). The
court found that this statute deprived those on trial for misdemeanors the
opportunity to show community prejudice might require a change in
venue. Id. at 511, 91 S. Ct. at 494.
In Mayer v. City of Chicago, the United States Supreme Court
considered an Illinois Supreme Court rule which provided trial transcripts
only in felony cases. 404 U.S. 189, 190–93, 92 S. Ct. 410, 412–14 (1971).
Relying on Groppi, the Supreme Court considered the classification
between felony and other cases as an “unreasoned distinction.” Id. at 196,
92 S. Ct. at 415. The Mayer Court also emphasized that there was a
prohibition against pricing an indigent party out of an appeal. Id. at 196–
97, 92 S. Ct. at 416.
Finally, in Schilb v. Kuebel, the Supreme Court considered a bail
scheme where defendants awaiting trial had a series of options to gain
release. Schilb, 404 U.S. at 358–64, 92 S. Ct. at 481–84. One option
involved a 1% handling fee. Id. at 360–61, 92 S. Ct. at 482. The Supreme
Court regarded the detail as incidental only and therefore the classification
47
did not give rise to an equal protection problem. Id. at 365–71, 92 S. Ct.
at 485–87.
5. Discussion. If S.F. 589 violates due process and the right to
counsel, then strict scrutiny would likely apply to the classifications.
Hernandez-Lopez, 639 N.W.2d at 238. On the other hand, if there are no
fundamental rights or interests at stake on due process and the right to
counsel, then something less than strict scrutiny would apply. As noted
by one court, “[W]hen a statute affects the right to bring an appeal, the
rational basis test applies to those portions of a statute that do not affect
the fundamental right to appeal but merely regulate it.” See State v.
Ramirez, 871 P.2d 237, 243 (Ariz. 1994) (in banc). Here, Tucker did not
raise the due process and right to counsel issues arising from the
postconviction-relief procedure reviewed earlier, and as a result, the
opinion today does not consider a challenge based upon those unraised
questions.
Regardless of the standard to apply, we must explore the purpose of
the statute in equal protection analysis. Without understanding the
purpose of a classification, it is impossible to measure its rationality. Is
the purpose conservation of judicial resources? Is there a rational basis
for directing all ineffective-assistance-of-counsel provisions to
postconviction relief? For those cases currently handled by this court on
direct appeal, it certainly imposes an additional burden on defendants and
the courts by injecting another layer of judicial review with its attendant
delay and additional cost.
The second classification involves separating cases involving guilty
pleas for class “A” felonies from other guilty pleas. Again, apparently, the
purpose is to save judicial resources. This distinction is problematic. The
level of the punishment has nothing to do with the question of whether
48
there have been legal infirmities in the guilty plea. At least two broad
categories of guilty pleas—those that involve the question of whether there
is a factual basis to support a conviction, and those involving compliance
with Iowa Rule of Criminal Procedure 2.8(2)(b)—raise purely legal issues.
It is pointless to send these cases to postconviction relief. As applied to
these broad categories, the distinction made in S.F. 589 between guilty
pleas for class “A” felonies and other guilty pleas does not have a rational
basis, at least to the extent that saving judicial resources is the purpose
for the distinction. The distinction between guilty pleas for class “A” and
other felonies runs dead into the teachings of Rinaldi and Mayer. See
Rinaldi, 384 U.S. at 309–10, 86 S. Ct. at 1500; Mayer, 400 U.S. at 196, 92
S. Ct. at 415. To the extent the majority opinion is to the contrary, it is
erroneous.
But, in this case, there is no need for equal protection analysis
because under pre-S.F. 589 law, Tucker’s claim would be handled in the
same fashion as it is today. Thus, the majority’s ruling on equal protection
is a hypothetical one. So, I would hold our fire for another day. In any
event, we cannot declare broadly that the statutory classifications survive
equal protection analysis in all their applications with an analysis that
simply declares that the members of the classifications in the statute are
not similarly situated because they are different without considering the
underlying purpose of the statute. And, whatever the statutory purpose,
an equal protection challenge based upon the right to a first appeal and
right to counsel has not been decided, even hypothetically, by today’s
ruling.
IV. Conclusion.
On the narrow ground that the guilty plea in this case cannot be
resolved on direct appeal because it raises factual issues, I concur in the
49
result. That is all that is needed to decide this case. I dissent, however,
from the majority’s constitutional excursions in this case for the reasons
expressed in this opinion.
50
#19–2082, State v. Tucker
McDERMOTT, Justice (concurring specially).
I join the majority opinion except as to division IV, in which I concur
in the result. Although I reach the same result as the majority on Tucker’s
separation-of-powers arguments, I break with the majority’s separation-
of-powers analysis that adopts the approach in State v. Thompson, 954
N.W.2d 402 (Iowa 2021).
As I discussed in my dissent in Thompson, I disagree that our court’s
examination of an alleged separation-of-powers violation requires the
“three aspects” analysis that the majority describes. See generally id. at
419–25 (McDermott, J., concurring in part and dissenting in part). Stated
simply, 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 thus 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 majority correctly recites that the Iowa Constitution directs the
legislature “to provide for a general system of practice in all the courts of
this state.” Iowa Const. art. V, § 14. But this provision doesn’t bestow
upon the legislature exclusive power to dictate the court’s rules of practice.
See Iowa C.L. Union v. Critelli, 244 N.W.2d 564, 569 (Iowa 1976) (en banc).
The legislature may not, for example, infringe core judicial functions
through the implementation of procedural rules. “Certain implied powers
must necessarily result to our Courts of justice from the nature of their
51
institution.” United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32,
34 (1812). Danger lies not only when one branch “directly and completely”
performs the functions of a separate branch but also 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) (Jacob E. Cooke ed., 1961).
But in this case, both statutes that Tucker challenges concern
appellate jurisdiction to hear his case in the first place. The Iowa
Constitution provides that the supreme court “shall have appellate
jurisdiction only in cases in chancery, and shall constitute a court for the
correction of errors at law, under such restrictions as the General
Assembly may, by law, prescribe.” Iowa Const. art. V, § 4. The legislature
in section 814.6(1)(a) provides a “restriction” for appeals in which the
defendant pleaded guilty to crimes other than class “A” felonies or
otherwise can’t establish “good cause” for the appeal. Iowa Code
§ 814.6(1)(a) (2019). And the legislature in section 814.7 provides a
“restriction” for direct appeal of ineffective assistance of counsel claims in
criminal cases. Id. § 814.7. In answering our two inquiries in this case,
the particular “power” exercised (and challenged) is the power to decide
which avenue of appellate review is deemed appropriate for particular
types of cases. Shortridge v. State, 478 N.W.2d 613, 615 (Iowa 1991),
superseded by statute on other grounds, 1992 Iowa Acts ch. 1212, § 38
(codified at Iowa Code § 822.9 (1993)). This power appropriately rests with
the legislature. Id.
The framers warned of the legislature’s ability to “mask under
complicated and indirect measures, the encroachments which it makes”
on the other branches. The Federalist No. 48, at 334 (James Madison).
Restrictions of this court’s appellate jurisdiction under article V, section 4
52
violate separation-of-powers principles if they “disarm the court of the
means required to fulfill the core judicial power” secured in the Iowa
Constitution. Thompson, 954 N.W.2d at 421. But these two statutes
effectuate no such disarmament. 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.” Plaut v. Spendthrift Farm,
Inc., 514 U.S. 211, 239, 115 S. Ct. 1447, 1463 (1995). Testing the
challenged statutes using a different tool than the majority, I nonetheless
arrive at the same conclusion as the majority and thus concur specially in
division IV of the majority’s holding that neither section 814.6(1)(a) nor
section 814.7 violates separation of powers principles, and I concur in all
other parts of the majority’s opinion.
Christensen, C.J., joins this special concurrence.