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Iowa Supreme Court Reverses Gay Workers’ Compensation Commissioner’s Jury Verdict and $1.5 Million Damage Award

Posted on: July 3rd, 2021 by Art Leonard No Comments

Christopher J. Godfrey, an out gay man who served as Iowa’s Workers Compensation Commissioner beginning in 2006, won a jury verdict in 2019 of $1.5 million dollars on claims of sexual orientation discrimination and retaliation by Governor Terry Branstad, Branstad’s legal counsel, and the state government.  The jury found a violation of the state’s statutory ban on sexual orientation discrimination in employment, and a violation of Godfrey’s constitutional due process rights.  But on June 30, the Iowa Supreme Court reversed the jury verdict in Godfrey v. State of Iowa, 2021 WL 2671324, 2021 Iowa Sup. LEXIS 92, finding that the trial judge should have ruled that the defendants, now-former Governor Branstad, his Legal Counsel Brenna Findley, and the State of Iowa were entitled to judgment as a matter of law, and that the judge should not have submitted the case to the jury for decision. Justice Christopher McDonald wrote the opinion for the court.

Godfrey was appointed to a full six-year term as Commissioner of Workers Compensation by Governor Chet Culver, a Democrat, and was confirmed unanimously by the state Senate in 2009.  He was openly gay at the time.  He had previously received interim appointments to that position beginning in 2006 from prior Governor Tom Vilsack, also a Democrat who served as Secretary of Agriculture in the Obama Administration (a position to which he was appointed again this year by President Biden), and Godfrey was reappointed to an interim vacancy as Commissioner by Governor Culver, before receiving the full-term appointment.

In 2010, Republican Terry Branstad, a former Iowa governor who had taken a position as a university president, came out of political retirement and defeated Governor Culver’s bid for reelection.  As was customary with a change of administration, his staff notified all Commissioners who had been appointed by Branstad’s Democratic predecessors to submit letters of resignation, leaving the decision to the governor-elect whether to continue them in office.

Godfrey refused to submit such a letter, telling Governor-Elect Branstad (in the only in-person meeting he ever had with Branstad) that he was appointed and confirmed for a full six-year term and intended to serve the full term through 2015.  Under Iowa law, Governor Branstad could not replace Godfrey on his own initiative, but Godfrey could be removed by the Executive Council of the state, made up of the governor and several other top executive branch officials, for causes specified by statute which were not present in this situation.  So Branstad was stuck with Godfrey if Godfrey would not resign.

Upon taking office, Branstad turned his attention to other matters, but at the end of the legislative session on June 30, 2011, he returned to the Godfrey situation, having received complaints about Godfrey’s perceived “anti-business” stance from the leadership of the Iowa Association of Business and Industry (ABI), the state’s chamber of commerce, who told Branstad that the Commission was creating an adverse climate for business in the state.  In consultation with his staff, Branstad determined that he could reduce Godfrey’s salary, hoping that would induce him to quit.  State law specified a salary range for Commissioners and Godfrey was being paid at the top of the range at $112,070.  Branstad decided to reduce his salary to the bottom of the range, $73,250, if he rejected another request to resign.  Two members of the governor’s staff met with Godfrey to reiterate the governor’s demand for his resignation, which Godfrey refused.  He was then told the Governor had decided to reduce his salary to the bottom of the statutory range.

Godfrey quickly let others know about his salary reduction, contacted the attorney general seeking possible intervention, and contacted legislators to see if they would intervene.  Senator William Dotzler phoned one of Branstad’s aides, saying “you guys might want to consider the action you’re taking on Chris Godfrey.  He is an openly gay man, and that can be an issue down the road.”  When Godfrey announced publicly the next day that he was being subjected to sexual orientation discrimination, Branstad claimed that he, the sole decision-maker in reducing Godfrey’s salary, had not known that Godfrey was gay until the day after the salary reduction was communicated to Godfrey, when Godfrey leveled his public accusation.

Godfrey sued the State, Branstad and other executive branch officials in January 2012, asserting claims under the Iowa Civil Rights Act, which bans employment discrimination because of sexual orientation, and the Iowa Constitution.  Before the case came to trial, various pretrial motions came up to the Supreme Court involving immunity claims by particular state officials and the question whether Godfrey could sue for damages against Branstad and other officials on his constitutional claims.  One question that did not come up in those proceedings was whether the Iowa Civil Rights Act’s ban on employment discrimination and retaliation applied to a state agency commissioner who was appointed by the governor and confirmed by the Senate for a fixed term.

Much of the focus of the trial, which is described in great detail in Justice McDonald’s opinion, went to the question whether Branstad personally knew that Godfrey was gay when he took action to pressure Godfrey to resign by reducing his salary.  Branstad insisted that he had not known, but evidently the jury did not believe him, relying on testimony from numerous witnesses about how Godfrey’s sexual orientation was known and reported in the press when he was appointed by Vilsack and Culver, was known to the Senators who voted to confirm him (and even came up at one point in a confirmation hearing), was known by the lieutenant governor (now Governor Reynolds since Branstad’s retirement to become Ambassador to China in the Trump Administration), who had actually been introduced to Godfrey’s husband, and was known by members of Branstad’s staff and the staff of the ABI.

Godfrey also put in plenty of evidence about the anti-LGBT stance of the Iowa Republican Party, about the vicious campaign against members of the Iowa Supreme Court who were denied retention by the voters after they had unanimously ruled in favor of same-sex marriage under the state constitution, about the party’s platform in Branstad’s election campaign seeking to amend the constitution to overrule the court’s marriage decision and to amend the Civil Rights Act to remove sexual orientation and gender identity as prohibited grounds of discrimination.  There was also substantial evidence, which was not contested by the defendants, about the emotional distress that Godfrey suffered as a result of the pressure campaign to get him to resign.

At the end of the trial, the defendants moved for judgment as a matter of law, but Jasper County District Judge Brad McCall denied the motion.  The jury awarded Godfrey $500,00 in emotional distress damages on his claims for sexual orientation discrimination and retaliation against the state, and $1 million in emotional distress damages against Governor Branstad and one of his aides on Godfrey’s constitutional claims.  The defendants appealed to the state Supreme Court.

The court concluded that the trial record showed no direct evidence that Branstad was personally aware that Godfrey was gay.  Branstad had served as governor before Vilsack.  When he left office, he became president of Des Moines University, an “osteopathic school of medicine,” and, wrote Justice McDonald, “At the time he was hired, Branstad committed to the trustees of the university that he would stay out of and away from politics while serving in the position.”  He claimed that he paid no attention to whom Vilsack or Culver was appointing as Commissioners, and that he was personally unaware of Godfrey until during his campaign to defeat Culver for re-election, when ABI officials first complained to him about Godfrey’s anti-business bias, but that they did not mention that Godfrey was gay.  Indeed, although he was surrounded by people who knew Godfrey was gay, Branstad swore that the first he heard of that was when Godfrey accused him of sexual orientation discrimination after the salary reduction was communicated to Godfrey.

The court decided that all of Godfrey’s evidence on this point was circumstantial, none of it directly showing that Branstad knew Godfrey was gay, and therefore, since Branstad was the sole decision maker on dealing with Godfrey, the case should have been dismissed as a matter of law for lack of evidence of discriminatory motive.  The court also rejected the constitutional due process claim, finding no denial of Godfrey’s procedural due process rights.

Dissenting Justice Brent Appel objected to the court substituting its judgment for that of the jury.  He agreed with the court’s disposition of the constitutional claim, but pointed out that under the Civil Rights Act a plaintiff can win a discrimination case based on circumstantial evidence, and it was up to the jury to weigh all the evidence and decide whether the defendants violated the statute.  Appel conceded that it was possible that a jury could find for Branstad, but taking account of all the evidence, it was also possible that a reasonable jury could decide for Godfrey, and it was inappropriate for an appellate court to make that determination.  Contested questions of fact are supposed to be decided by juries, unless it would be impossible for a reasonable jury to resolve such questions in favor of the plaintiff.  Appel argued that the evidence about the Republican Party’s anti-LGBT stance was relevant to the jury’s determination of the motive for attempting to force Godfrey from his position.

Chief Justice Susan Christensen and Justice Matthew McDermott, while also agreeing with the majority as to the ultimate outcome of the case in favor of defendants, argued in an opinion by McDermott that the claims under the Civil Rights Act should have been dismissed on the ground that Godfrey, as an appointed and Senate-confirmed officer of the state government, was not an “employee” within the meaning of the Act, and thus that the Act’s employment discrimination provisions did not apply to him.

Godfrey did not serve out his full term as Commissioner, eventually resigning to take a position in the Obama Administration at the Employees’ Compensation Appeals Board (ECAB), where he continued to serve until January 20, 2021, when he was sworn in to his current position as Director of the Office of Workers’ Compensation Programs in the U.S. Department of Labor.

Godfrey is represented by Roxanne Conlin, Devin Kelly, and Jean Mauss of Roxann Conlin & Associates, Des Moines.

Iowa Supreme Court Bars Wrongful Imprisonment Suit by HIV-Positive Man Whose Conviction Was Vacated by That Court

Posted on: May 2nd, 2016 by Art Leonard 2 Comments


In an unfortunate turnabout, the Iowa Supreme Court unanimously ruled on April 15 that Nick Rhoades, whose guilty-plea conviction to one count of criminal transmission of HIV was reversed by that court in 2014, could not bring an action for damages against the state under its Wrongful Imprisonment Statute because the statute does not allow claims by those who pled guilty. Rhoades v. State of Iowa, 2016 WL 1533519, 2016 Iowa Sup. LEXIS 47.  The court declined to follow rulings in some other states interpreting similar statutes that had allowed such lawsuits when a guilty plea was vacated on appeal.

Rhoades met A.P. through a social networking website. After exchanging messages, A.P. invited Rhoades to his home and they had unprotected oral sex and anal sex with a condom.   A.P. believed Rhoades to be HIV-negative based on his online profile, and they did not discuss the issue before having sex.  When A.P. subsequently learned that Rhoades was HIV-positive, he contacted law enforcement and Rhoades was charged with criminal transmission of HIV under Iowa Code sec. 709(C).1, a statute that was subsequently repealed in part due to the publicity surrounding this case, and replaced with a statute that better reflects current science on HIV transmission.  Rhoades pled guilty to the charge and was sentenced to 25 years in prison, lifetime parole, and a requirement to register as a sex offender.  No evidence was presented that A.P. was infected with HIV, and the statute at that time did not require evidence of actual transmission, merely exposure that could cause transmission.

Rhoades filed a motion to reconsider the sentence, stressing the lack of transmission, and the district court suspended the prison sentence and placed him on five years’ probation. Then Rhoades filed an application for postconviction relief.  He claimed his trial counsel provided ineffective assistance by letting him plead guilty when there was, in his view, no factual basis for the charge.  Rhoades argued that as his viral load was virtually undetectable at the time he had sex with A.P., the chance that he would transmit the virus, even through unprotected anal sex, was slight, and certainly not sufficient to meet the standard of guilt under the statute, which required “the intentional exposure of the body of one person to a bodily fluid of another person in a manner that could result in the transmission of the human immunodeficiency virus.”  This was described in the statute as “intimate contact.”  At the time of his guilty plea, the trial judge asked Rhoades if he had engaged in “intimate contact” with A.P., without any explanation by the judge or Rhoades’ trial counsel of the meaning of that term.  Indeed, without an explanation, Rhoades could have believed he had violated the statute without having engaged in any penetrative sex.  Although the trial and intermediate appellate courts rejected his motion, the Iowa Supreme Court reversed because, as Justice Appel writes in the current decision, “We concluded that the district court had used technical terms from the statute but that such conclusory terms were insufficient to establish that the defendant acknowledged facts consistent with the completion of the crime.  We further noted the minutes of testimony and the presentence investigation report did not provide a factual basis for the element of intimate contact.”

The Supreme Court had also concluded that “in light of advances in medicine” the record contained “insufficient evidence to show that Rhoades exchanged bodily fluids with A.P. or intentionally exposed A.P. to the disease.” By vacating the guilty plea, the court was not concluding that Rhoades was innocent, but rather that a new trial was needed to determine his guilt, either through a properly informed guilty plea or a trial.  “Because it was possible the State may have been able to establish the necessary factual basis,” wrote Justice Brent R. Appel, “we directed the district court to give the State an opportunity to do so.  If the State was unable to do so, we stated that the plea must be withdrawn and the State could proceed accordingly.  On remand, the State dismissed the charges against Rhoades.”

In the current lawsuit, Rhoades asserted a claim under Iowa Code chapter 663A for “wrongful imprisonment.” That provision provides relief if two tests are met: “the individual did not plead guilty to the public offense charged, or to any lesser included offense, but was convicted by the court or by a jury of an offense classified as an aggravated misdemeanor or felony,” and the claimant proves “by a clear and convincing preponderance of the evidence that the claimant is actually innocent.”  Thus, the legislature was not authorizing a damage claim by somebody who had been officially charged and convicted but then got off on some technicality or procedural flaw.  The Supreme Court pointed out that if it were to hold that Rhoades’ guilty plea was not disqualifying in this case, he would still have to prove his innocence under the repealed statute before he could receive relief.  The focus of this appeal, however, was on interpretation of the guilty plea language.

Rhoades argued, with support from some cases in other jurisdictions, that a guilty plea that is vacated or nullified as the result of an appellate ruling should not stand in the way of a “wrongful imprisonment” claim, but, after a lengthy consideration of the issue, including review of the various state wrongful imprisonment statutes, the court decided to reject his claim. First, it pointed out, the statutory language was clear and did not include any statement, as was found in other state’s laws, softening the guilty plea bar in certain circumstances.  Justice Appel pointed out that in a separate provision the legislature had provided that somebody who is vindicated and proved innocent through DNA evidence may seek relief despite having pled guilty, and “the difference in linguistic approach between Iowa’s DNA statute and the wrongful imprisonment statute offers at least some support for the view that if the legislature intended to provide relief to those who plead guilty, it knows how to do it.”  There was also the contention that the state “should not pay for convictions for which the accused is in part responsible.”  The court also noted that the overwhelming majority of criminal charges are resolved through plea bargaining resulting in a guilty plea in exchange for an agreed sentence, and “the legislature could rationally believe that allowing one who pleads guilty to later seek compensation from the state unduly unravels the benefit of the bargain.”  The court observed that as a result of the guilty plea, there is no trial record in the case, so no basis relatively contemporary with the charged acts for a court to determine whether the claimant can prove actual innocence.  The court also noted the fiscal consequences of allowing such claims by defendants who pled guilty.

While acknowledging at some length the flaws in its arguments attempting to justify disqualifying Rhoades, the court ultimately retreated into a narrow view of its role in matters of statutory interpretation. “Although there are substantial arguments that a guilty plea should not disqualify a claimant from seeking compensation for wrongful imprisonment in all instances,” wrote Justice Appel, “we conclude … that the legislature made a different judgment in 1997” when it enacted the statute.  “Our job is to do the best we can in interpreting the meaning of legislation.  We do not expand the scope of legislation based upon policy preferences.  In balancing all the considerations, we think the best interpretation of Iowa Code section 663A.1(1)(b) is that it categorically excludes all persons who plead guilty from Iowa’s wrongful imprisonment statute.  This interpretation leads to a narrow but not impractical or absurd result.  As we have stated before, if we have missed the mark, the legislature may respond to correct it.”  The court upheld the lower courts’ dismissal of Rhoades’ claim.

Justice Thomas Waterman, specially concurring, opined that most of Justice Appel’s decision was unnecessary because the clear language of the statute excludes those who plead guilty from relief. Justice Bruce Zager also concurred, having dissented in the earlier case in which the court had vacated Rhoades’s guilty plea, and continuing to take the view that “the record, when viewed as a whole and allowing all reasonable inference, provided an ample factual basis for his guilty plea.”

Rhoades is represented in this appeal by attorney Dan Johnston of Des Moines. Since the case revolves entirely around an interpretation of an Iowa statute, there appears no basis to seek further review from the U.S. Supreme Court.

Iowa Supreme Court Reinterprets HIV Exposure Statute to Reflect Current Science

Posted on: June 13th, 2014 by Art Leonard No Comments

In a triumph for science and common sense, the Iowa Supreme Court has voted in Rhoades v. State, No. 12-0180, to reinterpret that state’s HIV exposure statute to bring it into line with the current scientific evidence about HIV transmission, vacating the conviction of Nick Rhoades, who had originally been sentenced to up to 25 years in prison because he hadn’t disclosed his HIV status to a partner before engaging in sex. The June 13 ruling found that Rhoades received ineffective representation from his defense attorney, who counseled him to plead guilty even though his conduct was very unlikely to have risked transmitting HIV to his sexual partner.

Rhoades was represented on appeal by Lambda Legal and cooperating attorneys from Iowa, who argued that by the time of his trial in 2009, the science had advanced to the point where Rhoades could have argued that it was inappropriate to apply the criminal statute to his case. A dissenting justice argued that this result was unfair to Rhoades’ trial attorney, since his advice at the time was consistent with prior Iowa court decisions upholding convictions on similar facts.

Rhoades was diagnosed HIV-positive in 1998, and began receiving medical treatment in 2005. By the spring of 2008, retroviral therapy had reduced his HIV viral load to the undetectable level. By then, there was an emerging scientific consensus that people with an undetectable viral load were not really contagious.

On June 26, 2008, Rhoades met another gay man on a social network and they got together for sex. Rhoades’s on-line profile listed him as HIV-negative, and they evidently did not discuss the matter before having sex. They had oral sex, without using condoms, and anal sex with condoms. A few days later, Rhoades’s sex partner learned that Rhoades might be HIV-positive and contacted the police. The local prosecutor charged Rhoades with criminal transmission of HIV, in violation of an Iowa statute that applies if a person who knows he is HIV-positive “engages in intimate contact with another person.” The statute defines “intimate contact” as “the intentional exposure of the body of one person to a bodily fluid of another person in a manner that could result in the transmission of the human immunodeficiency virus.” Rhoades subsequently apologized to the sexual partner for not having disclosed his HIV-status.

In cases decided prior to Rhoades’s prosecution, Iowa courts had accepted the generally held view that anybody who was infected with HIV could transmit the virus to another person by exposing them to body fluids. Given the circumstances, it is not surprising that Rhoades’ attorney advised him to plead guilty, hoping that the court would be lenient, and the initial 25 year prison sentence was a shock. Rhoades filed a motion to reconsider the sentence, and the trial judge suspended the 25 year sentence and instead placed Rhoades on probation for five years. Nonetheless, he was left with a criminal record and was listed on the sex offender registry. As he had pled guilty, he did not file a direct appeal of his sentence.

On March 15, 2010, Rhoades applied for post-conviction relief, arguing that his trial attorney was ineffective. In light of the scientific evidence then available, Rhoades argued, the attorney should have had him challenge the factual basis for the charges against him, since a person with an undetectable viral load does not present a risk of transmitting HIV to a partner through oral sex or protected anal sex. The trial court and the Iowa Court of Appeals rejected this argument, but the Supreme Court concluded that it had merit.

Writing for the Court, Justice David Wiggins explained, “In considering the definition of ‘intimate contact,’ we have previously defined ‘could’ in the criminal transmission statute as requiring ‘that transmission of HIV from the infected person to the exposed person was possible considering the circumstances'” in a 2001 ruling. “Although there are multiple definitions of ‘possible,’ we have not previously elaborated on what ‘possible’ means here. First, ‘possible’ may mean something that ‘may or may not occur.’ This definition is broad, and some courts have recognized the word ‘possible’ in certain contexts may mean allowing any likelihood of occurrence, no matter how remote. Second, ‘possible’ may mean ‘having an indicated potential by nature or circumstances,'” citing Webster’s 3rd New International Dictionary. “This definition considers the reality of a thing occurring, rather than a theoretical chance.” He continued that some courts have adopted “an inherent reasonableness consideration in construing the meaning of ‘possible’ in the context of certain statutes.”

“We find the second definition is more appropriate in the context of this criminal statute for at least two reasons,” he continued. “First, we recognize this statute requires expert medical testimony on the likelihood of transmission of HIV. Experts are not required to testify in absolutes when it comes to causation. Second, and more importantly, we would not want to deprive a person of his or her liberty on the basis the defendant’s actions caused something that can only theoretically occur. Causation must be reasonably possible under the facts and circumstances of the case to convict a person of criminal transmission of HIV” under the Iowa statute.

In this case, the court concluded, Rhoades’s attorney “allowed Rhoades to plead guilty when no factual basis existed for the plea and then counsel failed to subsequently file a motion in arrest of judgment.” This is not effective representation. “If trial counsel permits a defendant to plead guilty and waives the defendant’s right to file a motion in arrest of judgment when there is no factual basis to support the defendant’s guilty plea, trial counsel breaches an essential duty,” Wiggins continued. “It is well-settled law that under these circumstances we presume prejudice. At the time of the guilty plea, the record must disclose facts to satisfy all elements of the offense.”

After reviewing the transcript of what was said in court during Rhoades’s guilty plea and scouring the records of his case, the Supreme Court found no evidence to support the charge that Rhoades had engaged in the conduct coming within its current understanding of the statute. Although in the past the Iowa Supreme Court had allowed trial court judges to take “judicial notice” of the “fact” that exposure to an HIV-positive person’s bodily fluids imposed the risk of transmission of a deadly infection, it was no longer willing to allow that practice. “The evidence at the postconviction relief hearing shows there have been great strides in the treatment and the prevention of the spread of HIV from 2003 to 2008. It was not apparent in 2009, at the time of the plea, that this fact was ‘capable of accurate and ready determination by resort to sources whose accuracy’ could not reasonably be questioned,” wrote Wiggins. “Further, while this fact may have been a commonly held belief within the territorial jurisdiction of the trial court, we note the purpose of judicial notice is to show the fact is not subject to reasonable dispute.”

“Here,” continued Wiggins, “we find the fact was subject to reasonable dispute. At the time of the plea, Rhoades’s viral count was nondetectable, and there is a question of whether it was medically true a person with a nondetectable viral load could transmit HIV through contact with the person’s blood, semen or vaginal fluid or whether transmission was merely theoretical. The judicial notice we took in previous cases is subject to reasonable dispute here; thus, it is improper for us to similarly take judicial notice in this case. With the advancements in medicine regarding HIV between 2003 and 2008, we are unable to take judicial notice of the fact that HIV may be transmitted through contact with an infected individuals’ blood, semen or vaginal fluid, and that sexual intercourse is one of the most common methods of passing the virus to fill in the gaps to find a factual basis for Rhoades’s guilty plea.”

Under these circumstances, the plea should not have been offered, and “trial counsel was ineffective for allowing the district court to accept the plea without a factual basis.”

Justice Bruce Zager, dissenting, found this analysis unfair to Rhoades’s trial attorney, imposing on him an obligation to anticipate future developments in the face of existing case precedents. “Comparing actual counsel’s performance, given the realities of criminal defense practice, to imagined counsel’s performance under abstract, sterile conditions is not our task,” Zager insisted, criticizing the “distorting effects of hindsight” in evaluating an attorney’s performance. “In a manner not inconsistent with our caselaw, the majority bases its conclusion the guilty plea was not factually supported on the cold record developed at the guilty plea hearing, without regard to other considerations an attorney might have when evaluating a criminal case.” He felt that the court’s analysis “undervalues attorneys’ knowledge, skill, and experience. It also undervalue’s the client’s knowledge and judgment in evaluating the case and making an informed decision about whether to plead guilty.”

Two justices submitted a concurring opinion, pointing out that the court “has an expansive view of ineffective assistance of counsel,” using it “as a substitute for a plain error rule.” Justice Edward Mansfield said that by joining the majority opinion, he was not being critical of trial counsel. “Thus, even as we use the terminology ‘ineffective assistance’ as a tool to review criminal convictions, I think it is especially important that we not appear to be criticizing counsel when we are talking about a legal construct of this court. I join the majority opinion in this case, but I do so without finding fault in the performance of Rhoades’ defense counsel.”

The Supreme Court vacated the court of appeals decision and reversed the judgment of the district court, ordering that court to set aside its sentence of Rhoades. “Because it is possible the State can establish a factual basis, the district court should order the court in the criminal case to give the State the opportunity to establish a factual basis. The district court should further order if the State cannot establish a factual basis, the plea is withdrawn and the State can proceed accordingly.” This would mean the prosecutor would either have to withdraw the charges and drop the prosecution, or proceed to trial, where it would bear the burden of proving beyond a reasonable doubt that Rhoades’s conduct had actually placed his sexual partner at risk of HIV transmission. Under the Supreme Court’s understanding of the science, this would be a difficult burden to meet.

The Iowa legislature recently amended the HIV exposure law to narrow its range of application, by giving a defendant the ability to avoid the highest level of liability by showing they did not intend to expose their sex partner to a risk of HIV infection, and to escape liability entirely by showing through medical testimony that they had an undetectable viral load. Perhaps the legislature will think further about this issue in light of the court’s opinion.

Rhoades was represented on this appeal by Lambda Legal attorneys Chris Clark and Scott Schoettes and local counsel in Des Moines, Joseph C. Glazebrook and Dan L. Johnson of Glazebrook & Moe LLP.

Iowa Supreme Court Rules for Lesbian Couple in Birth Certificate Dispute

Posted on: May 6th, 2013 by Art Leonard No Comments

The Iowa Supreme Court ruled on May 3 that a state law providing that the husband of a married woman who gives birth to a child is the presumptive father is unconstitutional to the extent that it doesn’t also provide such a presumption of parentage for married lesbian couples.  Although the court rejected a lower court ruling interpreting the statute to lead to such a result, the court affirmed the lower court using its alternative constitutional ruling.  The ruling in Gartner v. Iowa Department of Public Health also evidences the changes in the court due to the defeat of three members in a retention election the year after the court ruled in favor of same-sex marriage.

Melissa and Heather Gartner have been a couple since December 2003.  They held a commitment ceremony in 2006 and decided to have children together, with Heather becoming pregnant through anonymous donor insemination.  When their child was born, they went through a second-parent adoption ceremony, obtaining a substitute birth certificate showing both women as parents of the child. 

After Heather became pregnant a second time using the same anonymous donor, the unanimous Iowa Supreme Court ruled in Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009), that same-sex couples are entitled to marry.  Shortly thereafter but before their second child was born, Melissa and Heather were married.  After the birth of their child, they applied for a birth certificate showing both women as parents, on the assumption that a child born to a married woman would also be deemed the child of the mother’s spouse.  But the State Health Department issued a certificate listing only one parent, Heather, and the Department insisted that if Melissa wanted to be listed on the birth certificate, she would have to go through an adoption proceeding.

Polk County District Judge Eliza J. Ovrom ruled in favor of the Gartners’ claim that both women should be listed on the birth certificate, construing state law to require it.  She was interpreting Iowa Code sec. 144.13(2), which provide that if a “mother was married at the time of conception, birth, or at any time during the period between conception and birth, the name of the husband shall be entered on the certificate as the father of the child unless paternity has been determined otherwise by a court of competent jurisdiction, in which case the name of the father as determined by the court shall be entered by the department.”  Relying on another statute that provides that state laws should be interpreted as applying to both men and women when only one gender was used in the statute, and in light of the Iowa Supreme Court’s ruling that same-sex couples were entitled to the same marital rights as different-sex couples, Judge Ovrom found that the statute should be construed in a gender neutral manner, requiring the listing of the birth mother’s spouse regardless of sex.  The state appealed.

Writing for the Supreme Court, Justice David Wiggins found that the trial court’s interpretation was inconsistent with the statutory language and the law.  While the Iowa Code does provide for gender neutral interpretation when a statute refers to a particular gender, he found, this principle of gender neutral interpretation is not used when a statute refers to both genders.  The parental presumption statute refers to both the mother and the father, each having a distinct role, so Justice Wiggins asserted that these nouns could not be given gender-neutral meanings in construing the statute.

Thus, the Supreme Court needed to address an issue that the trial court had avoided: whether the statute is constitutional.  And the court found that it was not, applying a straightforward equal protection analysis.  Noting that the state was not asking the court to reconsider its same-sex marriage decision in this case, Justice Wiggins noted that in Varnum the court had ruled that cases of discrimination on account of sexual orientation are subject to heightened scrutiny under Iowa’s constitution.  This put the burden on the state “to show the statutory classification is substantially related to an important governmental objective,” because the statute was treating like classes differently.  Under the statute, when a married woman bears a child through anonymous donor insemination, her husband is listed as the father on the birth certificate, but her wife is not listed as the mother.  (Indeed, the parents are not required by law to disclose to the state that whether the husband is the biological father of the child, as the statute is indifferent to this  unless the biological father comes forward to rebut the presumption.)  Married lesbians and married heterosexual women who become pregnant through donor insemination are similarly situated, as are their spouses.

The state argued some purported state interests to justify differential treatment, but the court made mincemeat out of them.  The state’s three “interests” were “accuracy of birth certificates, efficiency and effectiveness of government administration, and the determination of paternity.” 

As to the first, the court pointed out that the current system “does not always accurately identify the biological father,” since a married woman who becomes pregnant through donor insemination has no obligation to reveal that fact to the state.  Her husband is presumed to be the father and will be listed as such.  “In that situation,” wrote Wiggins, “the Department is not aware the couple conceived the child by an anonymous sperm donor.”  Requiring a lesbian mother’s spouse to adopt does not provide for any more accuracy on birth certificates in terms of identifying the child’s lawful parents.

Turning to the issue of administrative efficiency and effectiveness, the court opined that requiring married lesbian co-parents to go through adoption procedures is less efficient, not more efficient, than just automatically listing the legal spouse on the certificate.  As to the part of the provision involving rebuttal of the presumption, the court wrote that it is rare for a sperm donor to come forward to rebut the presumption of paternity, and of course it never happens with anonymous donors, who are not informed about the use of their sperm.

As to establishing paternity, the court said, “When a lesbian couple is married, it is just as important to establish who is financially responsible for the child and the legal rights of the nonbirthing spouse.  It is important for our laws to recognize that married lesbian couples who have children enjoy the same benefits and burdens as married opposite-sex couples who have children.  By naming the nonbirthing spouse on the birth certificate of a married lesbian couple’s child, the child is ensured support from that parent and the parent establishes fundamental legal rights at the moment of birth.  Therefore, the only explanation for not listing the nonbirthing lesbian spouse on the birth certificate is stereotype or prejudice.”  Indeed, the term “stereotype or prejudice” occurred several times in the opinion, as the court concluded that each of the state’s proffered reasons fails and the Department’s refusal to list Melissa on the birth certificate was due to “stereotype or prejudice.”

The trial court had ordered the Department to issue the requested birth certificate to the Gartners, but had stayed its order regarding any other lesbian couples.  In affirming the trial court on constitutional grounds, the court also lifted that stay.

Although there was no dissent, the three justices who were appointed in 2011 in place of the three who were denied retention by the voters in 2010 did not join the court’s opinion.  One was noted as not participating in this case.  The other two, in a brief “special concurrence,” observing that the state “accepts the decision in Varnum v. Brien for purposes of this appeal,” agreed that “if Varnum is the law, then Iowa Code section 144.13(2) cannot be constitutionally applied to deny Melissa Gartner’s request to be listed as parent on the birth certificate of the child delivered by her same-sex spouse.”  Not to put too fine a point on it, these justices are leery about appearing to accept the validity of the Varnum decision, although the successful retention last fall of another member of the Varnum majority should have put their fears to rest.

Lambda Legal represents the Gartners in their quest for a proper birth certificate for their second child, with attorneys from Lambda’s Chicago office, Camilla B. Taylor and Kenneth D. Upton, Jr., joined by local counsel Sharon K. Malheiro of Davis, Brown, Koehn, Shors & Roberts P.C. of Des Moines.  Amicus support came from the National Association of Social Workers, Iowa Chapter, the ACLU, and an amicus on behalf of family law professors by attorneys from National Center for Lesbian Rights.  Of course, the anti-gay Iowa Family Policy Center weighted in on behalf of the Department of Public Health.