in the supreme court of iowa supreme court no 13...

IN THE SUPREME COURT OF IOWA

SUPREME COURT NO 13-1502

CITY OF SIOUX CITY,

Plaintiff - Appellee,

vs.

MICHAEL JON JACOBMSA,

Defendant - Appellant.

APPEAL FROM THE IOWA DISTRICT COURT FOR WOODBURY COUNTY THE HONORABLE JEFFREY NEARY

Woodbury County District Court No. SCCICV150989

APPELLANT'S BRIEF IN FINAL FORM

Michael J. Jacobsma, Pro se JACOBSMA & CLABAUGH PLC P.O. Box 226 Sioux Center, Iowa 51250 Ph: 712-722-3453 Fax:712-722-3470 Email: [email protected] ATTORNEY FOR APPELLANT

FILED MAY 0 5 2014

CLERK SUPREME COURT

ATTORNEY'S COST CERTIFICATE

I hereby certify that the actual cost of printing the Appellant's Brief in Final Form was the sum of $168.00.

CERTIFICATE OF SERVICE AND CERTIFICATE OF FILING

On the 1st day of May, 2014 I, the undersi Appellant's Brief in Final Form and Argument appeal by mailing eighteen (18) copies thereof Clerk and two (2) copies to the respective counsel

Supreme Court Clerk Judicial Branch Building 1111 East Court Avenue Des Moines, IA 50319

Amber L. Hegarty Justin Vondrak Assistant Sioux City Attorney PO Box 447 Sioux City, IA 51102

gned, did serve the within all other parties to this

the Iowa Supreme Court for said parties:

cn to

JACOBSMA & CLABAUGH P.L.C.

ovvL-\ Michael J. Jacobkma PO BOX 226 Sioux Center, IA 51250 Phone: 712-722-3453 Fax: 712-722-3470 Email: [email protected]

AT0003935

ATTORNEY FOR APPELLANT

i

TABLE OF CONTENTS

Attorney Cost Certificate i

Certificate of Service and Certificate of Filing i

Table of Contents ii

Table of Authorities iv

Statement of Issues Presented for Review vi

Routing Statement 1

Statement of the Case 3

Arguments 6

I. The District Court erred when it found that the Sioux City ordinance did not violate the protections granted to the defendant under Article I § 1 of the Iowa Constitution 6

A. Preservation of Error 6

B. Standard and Scope of Review 6

C. Discussion 7

II. The district court erred when it failed to hold that the ordinance contains and irrational and unfair presumption that is in violation of the rights guaranteed the defendant under the due process clause of the U.S. and Iowa constitution 12

A. Preservation of Error 13

B. Standard and Scope of Review 13

C. Discussion 13

III. The district court erred when it failed to hold that sections 3(b) and (c) of the ordinance is preempted by Iowa law.

A. Preservation of Error.

B. Standard and Scope of Review

C. Discussion.

Conclusion

Oral Argument Requested.

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17

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Certificate of compliance with type-volume limitation, typeface requirements and typestyle requirements .23

in

TABLE OF AUTHORITIES

United States Supreme Court Cases

W. &A.R.R. v. Henderson, 279 U.S. at 642 15

United States Federal Court Cases

Agomo v. Fenty, 916 A.2d 181 (D.C.2007) 2

McNeill v. Town of Paradise Valley, 44 Fed. App'x 871 (9th Cir.2002) (Fourth Amendment) 2

Shavitz v. City of High Point, 270 F.Supp.2d 702 (M.D.N.C.2003), 2

Shavitz v. Guilford County Bd. ofEduc., 100 Fed. App'x 146 (4th Cir.2004) 2

Iowa Cases:

Beganovic v. Muxfeldt, 775 N.W.2d 313, 318 fn. 4 (Iowa 2009) 10-11

Calkins v. Adams County Coop Elec. Co., 144 N.W.2d 124, 128-29 (Iowa 1966) 15

City of Davenport v. Seymour, 755 N.W.2d 533 (Iowa 2008) 1, 18, 20-21

Gacke v. PorkXtra, LLC, 684N.W.2d 168, 175-76 (Iowa 2004) 7

Hagen v. Texaco Refining and Marketing, Inc., 526 N.W.2d 531, 537 (Iowa 1995) 8

Hensler v. City of Davenport, 790 N.W.2d 569 (Iowa 2010) 14-16, 18-19

Moritz by and through Moritz v. Maack, 437 N.W.2d 898 (Iowa 1989).... 17

Santiv.Santi, 633 N.W.2d 312, 316 (Iowa 2001) 7, 13, 18

Slimmer v. Merry, 23 Iowa 90, 1867 WL 278 *3 (Iowa) 9

iv

State v. Cronkhite, 613 N.W.2d 664, 666 (Iowc. 2000) 7, 13, 18

State v. Keene, 629 N.W.2d 360, 363 (Iowa 2001) 7, 13, 18

State v. Keene, 629 N.W.2d at 364

Sullivan v. Mississippi and Missouri RR Co., 11 (Iowa)

.7, 13, 18

Iowa 421, 1861 WL 126 *2 10

Other State Cases:

Leonte v. ACS State & Local Solutions, Inc., 12j$ Cal.App.4th 521, 19 Cal.Rptr.3d 879 (2004)

Iowa Constitutional Provisions:

Iowa Const, art. I § 1

Statutes:

Iowa Code § 321,

Iowa Code § 321.285.



.1-2, 6, 8, 12

.1,21

.19-20

Ordinances:

Sioux City Code of Ordinances § 10.12.080

Rules:

lowa R. App. P. 6.1101(2)(a).

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.11,20

.3-4

Iowa R. App. P. 6.1101(2)(c).

Iowa R. App. P. 6.1101(2)(d)

Other Authorities

https.V/www.sioux-city.org 5

Andrew W.J. Tarr, Picture It: Red Light Cameras Abide by the Law of the Land, 80 N.C. L.Rev. 1879, 1886 (2002) 1-2

Black's Law Dictionary 934 (8th ed. 2004) 10

Mary Lehman, Are Red Light Cameras Snapping Privacy Rights, 33 U. Tol. L.Rev. 815 (2002) 2

Quentin Burrows, Scowl Because You're on Candid Camera: Privacy and Video Surveillance, 31 Val. U.L.Rev. 1079(1997) 2

Steven Tafoya Naumchik, Stop I Photographic Enforcement of Red Lights, 30 McGeorge L.Rev. 833 (1999) 2

Story on Agency, Section 452, and notes 11

STATEMENT OF ISSUES PRESENTED FOR REVIEW

I. Whether the District Court erred when it found that the Sioux City ordinance did not violate the protections granted to the defendant under Article I § 1 of the Iowa Constitution.

Iowa Cases:

Beganovic v. Muxfeldt, 775 N.W.2d 3,13, 318 fn. 4 (Iowa 2009)

Gacke v. PorkXtra, LLC, 684 N.W.2d 168, 175-76 (Iowa 2004)

Hagen v. Texaco Refining and Marketing, Inc., 526 N. W.2d 531, 537 (Iowa 1995)

Santi v. Santi, 633 N.W.2d 312,316 (Iowa 2001)

Slimmer v. Merry, 23 Iowa 90, 1867 WL 278 *3 (Iowa)

State v. Cronkhite, 613 N.W.2d 664, 666 (Iowa 2000)

VI

State v. Keene, 629 N.W.2d 360, 363 (Iowa 2001)


Sullivan v. Mississippi and Missouri RR Co., \ \ Iowa 421, 1861 WL 126 *2 (Iowa)

Iowa Constitutional Provisions:

Iowa Const, art. I § 1

Statutes:

Iowa Code § 321.493

Other Authorities:

Black's Law Dictionary 934 (8th ed. 2004)

Story on Agency, Section 452, and notes

II. Whether the district court erred when it failed to hold that the ordinance contains and irrational and u nfair presumption that is in violation of the rights guaranteed the process clause of the U.S. and Iowa constitution

defendant under the due

United States Supreme Court Cases:

W. & A.R.R. v. Henderson, 279 U.S. at 642

Iowa Cases:

Calkins v. Adams County Coop Elec. Co., 144 N 1966)

W.2d 124, 128-29 (Iowa

Hensler v. City of Davenport, 790 N.W.2d 569 (ibwa 2010)

Moritz by and through Moritz v. Maack, 437 N.W.2d 898 (Iowa 1989)

vn

Santi v. Santi, 633 N.W.2d 312, 316 (Iowa 2001)




III. Wehter the district court erred when it failed to hold that sections 3(b) and (c) of the ordinance is preempted by Iowa law .

Iowa Cases:

City of Davenport v. Seymour, 755 N.W.2d 533 (Iowa 2008)

Hensler v. City of Davenport, 790 N.W.2d 569 (Iowa 2010)

Santi v. Santi, 633 N.W.2d 312, 316 (Iowa 2001)




Statutes:




viii

ROUTING STATEMENT

This case should be retained by the Supreme Court for the following

reasons: First, this case presents substantial consti utional questions as to the

validity of an ordinance. See Iowa R. App. P. 6.1 |01(2)(a). The Sioux City

ordinance at issue imposes liability on the owner cf a vehicle without requiring any

causal connection or relationship to the perpetrator

speeding). The appellant/defendant has challenged this ordinance based on the

protections granted under Article I § 1 of the Iowa

of the wrongful act (excessive

Constitution as well the due

process clause of the Fourteenth Amendment to the U.S. Constitution.

Secondly, this case presents substantial issues of first impression. See Iowa R

App. P. 6.1101(2)(c). The appeal presently before the court involves the validity

of how Sioux City's automated traffic enforcement (ATE) ordinance is

implemented. This court has previously addressed the validity of an ATE

ordinance in City of Davenport v. Seymour, 755 N.W.2d 533 (Iowa 2008).

However, the court's analysis in that case was limited to the narrow question of

whether the ATE ordinance at issue was preempted

Seymour, this court specifically held that:

by Iowa Code Chapter 321. In

We also recognize that a number of statutory and constitutional questions have been raised to ATE ordinances that are not presented in this appeal. ATE ordinances have been attacked as amounting to an unlawful revenue raising measure or as improperly delegating government authority to a private vendor. Andrew W.J. Tarr, Picture

1

It: Red Light Cameras Abide by the Law of the Land, 80 N.C. L.Rev. 1879, 1886 (2002) (issue of unlawful revenue raising); see also Leonte v. ACS State & Local Solutions, Inc., 123 Cal.App.4th 521, 19 Cal.Rptr.3d 879 (2004) (delegation of power). Academic commentators have debated whether ATE ordinances violate rights of privacy. See, e.g., Quentin Burrows, Scowl Because You're on Candid Camera: Privacy and Video Surveillance, 31 Val. U.L.Rev. 1079 (1997); Mary Lehman, Are Red Light Cameras Snapping Privacy Rights, 33 U. Tol. L.Rev. 815 (2002); Steven Tafoya Naumchik, Stop! Photographic Enforcement of Red Lights, 30 McGeorge L.Rev. 833 (1999). ATE ordinances also have been attacked on due process, Fourth Amendment, and equal protection grounds. See, e.g., McNeill v. Town of Paradise Valley, 44 Fed. App'x 871 (9th Cir.2002) (Fourth Amendment); Shavitz v. City of High Point, 270 F.Supp.2d 702 (M.D.N.C.2003), vacated on other grounds sub nom. Shavitz v. Guilford County Bd. of Educ, 100 Fed. App'x 146 (4th Cir.2004) (equal protection); Agomo v. Fenty, 916 A.2d 181 (D.C.2007) (due process).

All of the above questions are not raised in this appeal, and we consequently express no view on them. This court is not a roving commission that offers instinctual legal reactions to interesting issues that have not been raised or briefed by the parties and for which the record is often entirely inadequate if not completely barren. We decide only the concrete issues that were presented, litigated, and preserved in this case.

Seymour, 755 N.W.2d at 544-45. Here, the defendant did raise and preserve

questions related to the constitutionality of Sioux City's ATE ordinance under the

Iowa Constitution, Article I § 1, and due process grounds under the fourteenth

amendment to the U.S. Constitution. This court has not previously addressed the

validity of ATE ordinances on the constitutional grounds that defendant raised to

challenge the Sioux City ordinance in this case.

2

Thirdly, given the constitutional implications of this case it also presents

fundamental issues of broad public importance requiring ultimate determination by

the supreme court. See Iowa R. App. P. 6.1101(2)(d). ATE ordinances are

becoming more wide spread throughout the nation

such systems may seek to ensure greater safety on

municipalities cannot implement these programs without any restriction

whatsoever as to whom and how they impose liabi

and throughout Iowa. Although

the public highways,

ity for the traffic violations.

This court should retain review of this case to provide guidance to municipalities

as they seek to lawfully use their police power to provide greater public safety

bearing in mind they must be respectful of the indh

state and federal constitutions.

STATEMENT OF THE

idual rights guaranteed by our

CASE

The defendant seeks review of a district court ruling on the defendant's

appeal of a magistrate court's decision where the district court affirmed the

magistrate court's denial of the defendant's motion o dismiss the civil infraction

proceeding file against him by the City of Sioux City.

STATEMENT OF FACTS AND COURSE OF PROCEEDINGS

The City of Sioux City has enacted an ordinance authorizing the use of video

and photo cameras to enforce speed restrictions within the city limits. Sioux City

3

Code of Ordinances § 10.12.080, the relevant portions to this case, reads

follows:

1. General. The City of Sioux City, acting pursuant to the police powers authorized it by the state of Iowa for governing safe traffic flow, authorizes the chief of police to deploy or cause to have deployed an automated traffic speed enforcement system for making photographs, video, or digital images of vehicles that fail to obey speed limits on roadways within the city limits of Sioux City. The system shall be managed by the private contractor that owns and operates the requisite equipment with supervisory control vested in the city^ s police department. Photographs, video, or digital images shall be provided to the police department by the contractor for review. The police department will determine which vehicle owners are in violation of the city-- s speed enforcement ordinance and are to receive a notice of violation for the offense.

2. Definitions. As used in this section the following terms mean: a. Automated traffic speed enforcement system-" means an electronic system consisting of a photographic, video, or electronic camera and a vehicle sensor installed to measure vehicle speed and to automatically produce photographs, video, or digital images of each vehicle violating the applicable speed limit, b. -* Vehicle owner* means the person or entity identified by the Iowa Department of Transportation, or registered with any other state vehicle registration office, as the registered owner of a vehicle.

3. Violation defined.

a. A violation occurs when a vehicle traveling on a public roadway exceeds the applicable speed limit.

4

b. The vehicle owner or nom liable for a civil penalty as imposed of this section. Notice of the violation issuance of an automated speed enforcement by ordinary mail to the vehicle owner

inated party shall be in subsection (4) (a)

shall be by citation sent

c. The violation may be rebutted by showing that a stolen vehicle report was made on the vehicle encompassing the period in question (emphasis added).

d. The citation will not be sent or reported to the Iowa Department of Transportation or similar department of any other state for the purpose of being added to the vehicle owner* s driving record.

App A-4. See also htips://www.sioux-city.org where municipal code is

published.

On August 6, 2012, a vehicle registered to the defendant was traveling

northbound on 1-29 near mile marker 151.0 in Sioux City. App A-36. The City's

ATE system was deployed and it photographed the vehicle registered to the

defendant traveling 67 mph in a 55 mph zone. App A-36.

A civil municipal infraction citation was filed against the defendant for the

speed violation and defendant sought dismissal of t tie citation on constitutional

grounds. App A-35; App A-4. The motion to dismiss was denied by the

magistrate court, App A-30, and the defendant was found liable on stipulated facts.

App A-32; App A-35. The stipulated facts upon which the defendant was found

liable as set forth in the magistrate's order of disposition were that "he is the

registered owner of a motor vehicle that was photographed exceeding the speed

limit, and that said vehicle was travelling 67 mph when it was photographed by the

automated traffic speed enforcement system as enumerated in the plaintiff's civil

municipal infraction citation. " App A-32. No other facts were found by the

magistrate to impose liability.

The defendant appealed the magistrate court's order to the district court and

the district court affirmed the magistrate court's ruling. App A-49. The defendant

filed a motion to enlarge findings of fact and conclusions of law which the district

court sustained, but still affirmed the magistrate court's decision. App A-51; App

A-58. The defendant filed an Application for Discretionary Review to the supreme

court which was granted. App A-60.

ARGUMENT

I. The District Court erred when it found that the Sioux City ordinance did not violate the protections granted to the defendant under Article I § 1 of the Iowa Constitution.


The defendant's argument was properly raised before the magistrate which was

ruled upon and then timely appealed to the district court which ruled upon the

defendant's arguments. A timely application for discretionary review was filed

with this court and granted, thus, error has been preserved.

B. Standard and Scope of review.

6

The supreme court reviews constitutional challenges to a statute de novo. State

v. Keene, 629 N.W.2d 360, 363 (Iowa 2001); State v. Cronkhite, 613 N.W.2d 664,

666 (Iowa 2000). In doing so, we must remember that statutes are cloaked with a

presumption of constitutionality. Santi v. Santi, 633 N.W.2d 312, 316 (Iowa

2001); Keene, 629 N.W.2d at 364. The challenger

must prove the unconstitutionality beyond a reasonable doubt. Keene, 629 N. W.2d

at 364.Moreover, "the challenger must refute every reasonable basis upon which

bears a heavy burden, because it

the statute could be found to be constitutional." Id.

capable of being construed in more than one manner, one of which is

constitutional, we must adopt that construction. Santi, 633 N.W.2d at 316

C. Discussion.

The first section ofthe Iowa's Constitution's

Furthermore, if the statute is

declaration of rights provides:

All men are, by nature, free and equal, inalienable rights among-which are those defending life and liberty, acquiring, property, and pursuing and obtaining safety

and have certain of enjoying and

possessing and protecting a|nd happiness.

See Iowa Const. Article I § 1. This provision of the Iowa Constitution was

intended by its drafters to secure common law rights pre-dating the constitution.

Gacke v. PorkXtra, LLC, 684 N.W.2d 168, 175-76 (Iowa 2004). The

constitutional protection embodied in Iowa's Inalienable Rights Clause is not a

mere glittering generality without substance or meaning. Id., 684 N.W.2d at 176

The rights guaranteed by this provision are subject to reasonable regulation by the

state in the exercise of its police power. Id. Thus, in determining whether the

challenged ordinance violates Article I § lof the Iowa Constitution, the court must

determine (1) whether the right asserted by the defendant is protected by this

clause, and (2) whether subsections 3(b) and (c) of the ordinance are a reasonable

exercise of the state's police power. See id.

As to the first element, existence of a protected right, the right being asserted

by the defendant is a liberty interest. That is, the right to be free from being found

civilly liable for an act or event without the plaintiff proving a causal connection

between the defendant and the act or event, or, at least proving a special

relationship between the defendant and the person committing the wrongful act.

The ordinance at issue here holds an owner of a vehicle strictly liable or, perhaps

more accurately, vicariously liable, for the speeding violation without any

requirement on the part of the city to prove a causal connection between the

vehicle owner and the excessive speeding. Nor does the ordinance require proof

any kind of relationship between the owner and driver.

Our courts have always held that even in cases of strict liability causation is

required. See Hagen v. Texaco Refining and Marketing, Inc., 526 N.W.2d 531,

537 (Iowa 1995) (In common-law strict liability cases, we have consistently

required the defendant's actions be a proximate cause of the plaintiffs damages).

8

This has been true since the early days of our statehood. See Slimmer v. Merry, 23

Iowa 90, 1867 WL 278 *3 (Iowa) (The rule which

upon high seas to a strict liability also applies to carriers of inland waters for injury

that results from operation of the vessel).

The district court found that the magistrate's decision was "supported by

hold common carriers in vessels

substantial evidence and correctly applies the law/

found that the statute does not create strict liability

' App A-49. The magistrate

because the statute provides

that a "nominated party" may be liable for the citation in lieu of the registered

owner. The ordinance makes only one reference to a "nominated party" and does

not define what a nominated party is. Section 3(b)

vehicle owner or nominated party shall be liable for a civil penalty..." This is the

only reference to a "nominated party". Section 2 ofthe ordinance contains

definitions but provides no definition of a "nomina

of the ordinance states "The

ed party". Further, the

ordinance does not limit liability only to this nominated party. The ordinance

states that the "vehicle owner or nominated party shall be liable". The ordinance

nowhere states that this "nominated party" shall or may be liable "in lieu o f the

vehicle owner and further requires no proof of causation on the part of the vehicle

owner. Therefore, the magistrate erred in its findings and conclusions and the

district court erred in its ruling.

Vicarious liability is broadly defined as liability a person bears for the

actionable conduct of another person because of a relationship between the two

parties (emphasis added). See Beganovic v. Muxfeldt, 775 N.W.2d 313, 318 fn. 4

(Iowa 2009) citing Black's Law Dictionary 934 (8th ed. 2004). At common law, a

person was, generally, only liable for the torts of another in a master-servant

setting. Beganovic, 775 N.W.2d at 318. Over the years, however, various

exceptions have been crafted to the common-law rule, including the motor vehicle

consent statute, otherwise known as the owner's responsibility law. Id.

This basic principle that one can only be held vicariously liable for the acts

of another based on a special relationship predates our state's constitution and, at

common law, was only based on the principal - agent relationship under the

doctrine of respondeat superior. In Sullivan v. Mississippi and Missouri RR Co.,

11 Iowa 421, 1861 WL 126 *2 (Iowa) our supreme court held as follows with

respect to vicarious liability based on this doctrine:

As a general rule, the maxim "respondeat superior" obtains; and under it the principal is held liable in a civil suit for damages which third persons may sustain from the wrongful acts of the agent done in the course of his employment, whether the principal authorized it or not. Story on Agency, Section 452, and notes. To this general rule there is an exception as well settled and as authoritatively established by the uniform current of authority in this country and England, as the rule itself...

10

See id. As the above quote clearly shows, at common law one could only be held

vicariously liable for the acts of another based on a special relationship, more

particularly, a principal - agent relationship. Even in that circumstance, the

wrongful act had to be committed within the course of the agent's employment. In

other words, liability was only imposed in a context in which the principal could

reasonably have contemplated the agent's action ar d only during the course of

conduct authorized by the principal.

This common law requirement has been modified slightly by statute in the

context of a motor vehicle owner who permits another to operate the vehicle and

the driver commits negligence. See Iowa Code § 321.493. However, permitting

liability on the part of the vehicle owner pursuant tc this statute is still grounded in

the relationship forged between the owner and the driver to whom the owner

entrusted his vehicle and, like the principal - agent relationship, liability is only

imposed in a context which can reasonably be contemplated by the owner and only

in the course of conduct authorized by the vehicle owner. As the court reasoned in

Beganovic, the rationale for imposing liability on a consent owner is consistent

with the rationale for creating an exception to the co mmon law rule of vicarious

liability for the master - servant relationship. The owner of a motor vehicle has

the ability to control its use and to entrust the vehicle

Beganovic, 115 N.W.2d at 318.

to competent drivers.

11

Contrary to the principles of vicarious liability in the master -servant

relationship or the consent owner - driver relationship, the Sioux City ordinance

imposes liability upon the owner of the motor vehicle without requiring any

relationship be found. Since the common law only allowed one to be held

vicariously liable based on a particular relationship that was established, i.e.,

principal - agent, and only when the wrongful act was committed in a

contemplated circumstance, i.e., the course of the agent's employment, the Sioux

City ordinance imposes liability on a vehicle owner arbitrarily without any rational

relationship required to be found between the owner and the driver who exceeds

the speed limit.

Thus, whether the liability imposed by the Sioux City ordinance is

characterized as strict liability or vicarious liability, the ordinance violates the

common law protections guaranteed to persons under Article I § 1 of the Iowa

Constitution and is an unreasonable exercise of the City's police power because the

ordinance makes no requirement that liability on the part of the owner be grounded

in a causal connection to the wrongful act by the vehicle owner nor based on a

special relationship which provides a rationale to hold the vehicle owner liable.

II. The district court erred when it failed to hold that the ordinance contains and irrational and unfair presumption that is in violation of the rights guaranteed the defendant under the due process clause of the U.S. and Iowa constitution.

12


The defendant's argument was properly raised

ruled upon and then timely appealed to the district

before the magistrate which was

court which ruled upon the

defendant's arguments. A timely application for discretionary review was filed

with this court and granted, thus, error has been preserved





presumption of constitutionality. Santi v. Santi, 633

2001); Keene, 629 N.W.2d at 364. The challenger bears a heavy burden, because it

must prove the unconstitutionality beyond a reasonable doubt. Keene, 629 N.W.2d

at 364.Moreover, "the challenger must refute every

the statute could be found to be constitutional." Id.

N.W.2d312, 316 (Iowa

reasonable basis upon which

'urthermore, if the statute is


constitutional, we must adopt that construction. Santi, 633 N.W.2d at 316

C. Discussion.

Subsection 3(b) of the above ordinance create s an invalid presumption when

it makes the vehicle owner liable for the speeding violation. There are only two

possible presumptions that the ordinance can make: 1) the vehicle owner was the

13

operator of the vehicle at the time and, thus, committed the speeding violation. Or,

2) the vehicle owner consented to the operation of the vehicle by the individual

who committed the speeding violation. If the ordinance presumes neither and

makes no presumption, then it is even more irrational and unreasonable as

discussed above.

Both instances presume an act on the part ofthe vehicle owner and both

instances presume that the owner's action causes the speeding violation. These

presumptions are indicated by the language of the ordinance in subsection 3(c)

which only allows the violation to be rebutted by showing a stolen vehicle report

was made on the vehicle encompassing the period in question.

Our supreme court struck down an unfair and irrational presumption

contained in a municipal ordinance enacted by the City of Davenport in Hensler v.

City of Davenport, 790 N.W.2d 569 (Iowa 2010). In that case the city of

Davenport enacted a Parental Responsibility Ordinance imposing a duty upon

parents to exercise sufficient control over their minor children to prevent them

from committing unlawful acts. The ordinance established a rebuttable

presumption that a parent failed to exercise control of his or her minor child upon

the happening of an occurrence. Id. 790 N.W.2d at 576. A violation of the

ordinance was a municipal infraction. Id.

14

The court outlined the law as it relates to presumptions in a civil case. A

presumption in a civil case violates the Due Process of the United States

Constitution if it is arbitrary or operates to deny a fair opportunity to rebut it. Id

790 N.W.2d at 586 citing W. &A.R.R. v. Henderson, 279 U.S. 639, 642, 49 S.Ct.

445, 447, 73 L.Ed. 884, 888 (1929). See also Calkins v. Adams County Coop Elec.

Co., 144 N.W.2d 124, 128-29 (Iowa 1966). The rlason for this rule is simple -

'legislative fiat may not take the place of fact in a_ udicial determination of issues

involving life, liberty or property." Hensler, 790 N.W.2d at 586-87 quoting W. &

A.R.R. 279 U.S. at 642.

In Hensler, the court reviewed its prior holding in Calkins and noted that in

Calkins the presumption at issue in that case presumed both negligence and

causation and held that the presumption violated the defendant's due process rights

because the presumption was arbitrary and had no reasonable relationship to the

facts ofthe case. Hensler, 790 N.W.2d at 587 citing Calkins, 144 N.W.2d at 128-

29. The court held that it is irrational to allow a fact finder to use the mere

occurrence of an incident to presume a person was negligent and the cause of the

incident. Hensler, 790 N.W.2d at 587. The court reasoned that the presumption

contained in the Davenport ordinance was just as arbitrary and irrational as the

presumption in an ordinary negligence case and concluded that there can be many

causes for a child to commit an occurrence under the ordinance.

15

Thus, the court held that:

[AJllowing a fact finder to presume negligence and causation based on the happening of an "occurrence", rather than finding negligence and causation based on the facts, is arbitrary and irrational in light of the multiple factors that can cause the "occurrence" as defined by the statute.

Id., 790 N. W.2d at 588. Like the ordinance in Hensler, the Sioux City ordinance

presumes causation based on the happening of an occurrence, rather than finding

causation based on the facts. The occurrence that happens is that a vehicle is

photographed exceeding the speed limit. The presumption made is that the

vehicle's registered owner was the cause of the excessive speeding. This is

arbitrary and irrational in light of the fact that it is entirely possible that some other

person besides the registered vehicle owner can be the cause of the excessive speed

of the vehicle.

Obviously an owner of a vehicle does not have to be the driver when a

vehicle exceeds the speed limit. The irrationality and arbitrariness of that

presumption is plain. A presumption that the vehicle owner consented to operation

of the vehicle by the individual who exceeded the speed limit is also irrational and

arbitrary. It is entirely possible for a person to drive another person's vehicle

without first gaining the vehicle owner's express consent. Requiring that this

presumption can only be rebutted if the owner has made a stolen vehicle report for

16

the period in question as set forth in subsection 3( c) of the ordinance ignores the

fact that a person's vehicle that was driven without the owner's consent may have

been returned to the owner and never stolen. There are many instances where a

friend or acquaintance may "borrow" another person's car without ever asking

permission. Also, there are many cases where a non-owner is granted permission

to drive an owner's car and then the original permi ttee grants permission to another

person without the owner's consent. See E.g. Moritz by and through Moritz v.

Maack, 437 N.W.2d 898 (Iowa 1989). Thus, limiting a vehicle owner's ability to

rebut the presumption of liability only by showing

made does not provide a fair opportunity to rebut the presumption and is a denial

of due process.

Therefore, subsection 3(b) an (c) should be severed from the ordinance and

declared unconstitutional as an irrational and arbitrary presumption in violation of

the due process clause of the U.S. and Iowa Constitutions.

that a stolen vehicle report was

III. The district court erred when it failed and (c) of the ordinance is preempted


to hold that sections 3(b) by Iowa law.

The defendant's argument was properly raised before the magistrate which was

ruled upon and then timely appealed to the district court which ruled upon the

defendant's arguments. A timely application for dij cretionary review was filed

with this court and granted, thus, error has been preserved.

17





presumption of constitutionality. Santi v. Santi, 633 N.W.2d 312, 316 (Iowa

2001); Keene, 629 N.W.2d at 364. The challenger bears a heavy burden, because it

must prove the unconstitutionality beyond a reasonable doubt. Keene, 629 N.W.2d

at 364.Moreover, "the challenger must refute every reasonable basis upon which

the statute could be found to be constitutional." Id. Furthermore, if the statute is


constitutional, we must adopt that construction. Santi, 633 N.W.2d at 316.

C. Discussion.

Implied-conflict preemption occurs when a local ordinance prohibits an act

permitted by a statute or permits an act prohibited by a statute. Hensler 790

N.W.2d at 585 citing City of Davenport v. Seymour, 755 N.W.2d 533, 538 (Iowa

2008).

The theory of this branch of implied preemption is that even though an ordinance may not expressly pre-empted by the legislature, the ordinance cannot exist harmoniously with a state statute because the ordinance is diametrically in opposition to it.

18

Id. For conflict preemption to apply, the local ordinance must be "irreconcilable"

with state law, meaning the conflict must be "obvi ous, unavoidable, and not a

matter of reasonable debate." Id. quoting Seymour, 755 N.W.2d at 539.

Iowa Code Section 321.285 addresses speed restrictions and states as

follows:

1. Any person driving a motor vehicle on a highway shall drive the same at careful and prudent speed not greater than or less than is reasonable and proper... (emphasis added).

The remainder of the statute goes on to describe the various speed limits

Subsection 7 provides that "A person who violates this section for excessive speed

in violation of a speed limit commits a simple miscemeanor..." The Sioux City

ordinance is in conflict with section 321.285 of the Iowa Code because it prohibits

and penalizes a person for something which section 321.285 does not, that is it

makes one responsible for the speeding violation arid provides a penalty simply by

virtue of being an owner of the vehicle and does no\ require the owner be the

actual driver as required by section 321.285.

The only place in the Iowa Code that makes a vehicle owner vicariously

liable for the action of a driver, civilly, is in section

section 321.484. However, there are two very important distinctions between

section 321.493 and the Sioux City ordinance which make them conflict. First of

all, section 321.493 requires that the driver of the vehicle cause damage to another

321.493 and criminally in

19

person based on the driver's negligence. Secondly, the statute requires that the

owner consent to his or her vehicle being driven by the driver. Thus, in order to

make an owner liable, there must be actual damage to another person and consent

by the owner to the operation of the motor vehicle causing the damage as well as

negligence committed by the driver. The Sioux City ordinance prohibits

something that section 321.493 permits. Nowhere in the Sioux City ordinance

does it require that the owner of the vehicle provide consent to the driver to operate

the vehicle, thus making the owner liable simply on the basis of the owner's status.

Secondly, the Sioux City ordinance does not require that any damage be caused to

another person.

Section 321.484 imposes criminal liability upon an owner for a driver's

moving violation if the vehicle owner requires or knowingly permits the operation

of such vehicle upon a highway in any manner contrary to the law. By requiring a

lesser state of mind for an owner to be culpable of the same offense, the Sioux City

ordinance is inconsistent with the stated legislative policy regarding culpability of

owners under Chapter 321. See Seymour, 755 N. W.2d at 547 (J. Wiggins

dissenting).

The ordinance is in obvious conflict with the Iowa Code and is preempted.

The court should dismiss the charge on that basis as well.

20

Implied -field preemption occurs when the legislature has "so covered a

subject by statute as to demonstrate a legislative intent that regulation in the field is

preempted by state law." Seymour, 755 N.W.2d at 539. Although the court in

Seymour upheld a similar ordinance challenged on conflict preemption principles,

the court was incorrect in its analysis. This court should re-examine its decision in

Seymour and it should follow the analysis of Justice Wiggins in his dissenting

opinion set forth in Seymour and abrogate that decision.

CONCLUSION

For all the foregoing reasons stated in this brief, the defendant requests that

this court declare that sections 3(b) and (c) of the S ioux City ordinance are

unconstitutional and invalid both on its face and as applied to the defendant.

Defendant further requests that this court vacate the ruling of the district court

which affirmed the decision of the magistrate and further requests that this court

reverse the decision of the magistrate court and dismiss the civil infraction charge

against the defendant with all costs taxed to the pla ntiff.

REQUEST FOR ORAL ARGUMENT

The defendant requests oral argument on all issues "aised in his brief.

21

JACOBSMA & CLABAUGH P.L.C.

Michael Jacobsma AT0003935 PO BOX 226 " V _ y

Sioux Center, IA 51250 Phone: 712-722-3453 Fax: 712-722-3470 Email: mj a cobs m a@n w i o wa law, com ATTORNEY FOR APPELLANT

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE-STYLE

REQUIREMENTS

This brief complies with the type-volume 6.903(1 )(g)(l) because this brief contains 5, of the brief exempted by Iowa R. App. P. 6

limitation of Iowa R. App. P. 019 words, excluding the parts 903(l)(g)(l).

2. This brief complies with the typeface requir ements of Iowa R. App. P. 6.903(l)(e) and the type-style requirements af Iowa R. App. P. 6.903(l)(f) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word in 14 point size Times New Roman.

Signature X 5-1-14

Date

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