Opinion

Tiffany v. County Board of Review Ex Rel. Greene County

  • 188 N.W.2d 343
Court
Supreme Court of Iowa
Filed
Jun 17, 1971
Status
Published
Author
Stuart
On the bench
Rees, Stuart, Mason, Son
Cited by
14 cases
Authority
More cited than 9.4%

The opinion

STUART, Justice

(concurring specially).

The law has long recognized two distinct concepts of burden of proof and I believe we should make it clear which meaning we are applying to the last paragraph of section 1, Chapter 354, Laws of the Sixty-second General Assembly.

In a strict sense burden of proof refers to the quantum of evidence by which a party pleading an issue must prove it — the burden of persuasion. In a secondary sense, it is used as the necessity of going forward with the evidence after a party has made a prima facie case by evidence, rule or statute. Wilson v. Findley (1937), 223 Iowa 1281, 1299-1300 , 275 N.W. 47, 56-57 ; Hoover v. First American Fire Insurance Co. (1934), 218 Iowa 559, 570-571 , 255 N.W. 705, 711 ; 29 Am.Jur.2d, Evidence, §§ 123-124, pp. 154-156; 31A C.J.S. Evidence § 103, pp. 164 — 166.

In my opinion the legislature in the above cited section used the term burden of proof in the sense of going forward with the evidence. Although we have recognized in one class of cases that the burden of persuasion may shift, In re Estate of Lundvall (1951), 242 Iowa 430, 440 , 46 N.W.2d 535, 540 , I believe statutory language should indicate a clear legislative intent to depart from the traditional rule that the burden of proof, in the strict sense, remains on the party pleading the issue.

The majority opinion does not resolve the question. I would settle it as indicated above.

MASON, J., joins this special concurrence.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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