In Re MT

714 N.W.2d 278, 2006 WL 1359615
CourtSupreme Court of Iowa
DecidedMay 19, 2006
Docket05-0179
StatusPublished

This text of 714 N.W.2d 278 (In Re MT) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re MT, 714 N.W.2d 278, 2006 WL 1359615 (iowa 2006).

Opinion

714 N.W.2d 278 (2006)

In the Interest of M.T., M.T., and T.B., Minor Children.

No. 05-0179.

Supreme Court of Iowa.

May 19, 2006.

*280 Michelle M. Dreibelbis, Sioux City, for appellants, minor children.

Thomas S. Mullin, County Attorney, and David A. Dawson, Assistant County Attorney, for appellants, State of Iowa and Woodbury County Attorney.

Thomas J. Miller, Attorney General, and Bruce Kempkes, Assistant Attorney General, for appellee, Iowa Department of Human Services.

Martha M. McMinn, Sioux City, for appellee, The Winnebago Tribe of Nebraska.

Jeffrey S. Rasmussen of Olson, Allen & Rasmussen, L.L.C., Bloomington, Minnesota, Thomas D. Grabinski, Grinnell Wilford Stone of Lynch Dallas, P.C., Cedar Rapids, for amicus curiae, The Sac & Fox Tribe of the Mississippi in Iowa.

Molly Vakulskas-Joly, Sioux City, for the father of M.T. and M.T.

H. Allan Sturgeon, Sioux City, for the mother of the minor children.

TERNUS, Justice.

The district court allowed The Winnebago Tribe of Nebraska to intervene in this child-in-need-of-assistance action. The children's attorney and the Woodbury County Attorney challenge this ruling, claiming the Iowa Indian Child Welfare Act, under which the court authorized the tribe's intervention, is unconstitutional. We do not reach this issue, however, because we are compelled to conclude the appeal must be dismissed on jurisdictional grounds.

I. Background Facts and Proceedings.

The county attorney commenced this proceeding under Iowa Code chapter 232, alleging the minor children, M.T., M.T., and T.B., were children in need of assistance and asking that their care, custody, and control be transferred to DHS for placement in family foster care. More than twelve months after The Winnebago Tribe of Nebraska was notified of this action, it sought to intervene pursuant to the Iowa Indian Child Welfare Act ("Iowa ICWA"). See Iowa Code § 232B.4(3) (Supp.2003). Rejecting the constitutional challenges made to the Iowa ICWA by the children's attorney and the county attorney, the district court permitted the tribe to become a party to the proceeding. After the children's attorney's and the county attorney's motions to reconsider under Iowa Rule of Civil Procedure 1.904(2) were denied, these parties filed notices of appeal.

At this point, the Iowa Attorney General filed a statement with the Iowa supreme court, claiming the county attorney had improperly asserted authority to appeal on the State's behalf. The attorney general claimed, contrary to the position of the county attorney, that the Iowa ICWA could be defended against any constitutional challenge. Subsequently, the attorney general filed a motion to dismiss the appeal on the basis it was untimely. The attorney general claimed the appellants' post-ruling motions were not properly filed under rule 1.904(2) and so did not toll the time for appeal. Being unpersuaded by the county attorney's resistance to the attorney general's motion to dismiss, a three-justice panel of this court held the post-ruling motions did not toll the period for appealing and so dismissed the appeal. The dismissal order was filed on May 5, 2005, and procedendo was issued the next day on May 6, 2005, sending the matter back to the district court.

On May 11, 2005, the county attorney filed a petition for rehearing in the supreme court, arguing the panel had erred in dismissing the appeal. On June 14, 2005, the panel set aside the dismissal and *281 ordered the clerk of the supreme court to recall procedendo. The question of appellate jurisdiction was ordered to be submitted with the appeal.

The attorney general subsequently filed a motion to vacate this court's June 14, 2005 order, claiming the panel lacked authority to withdraw procedendo and reinstate the dismissed appeal. Alternatively, the attorney general claimed that even if the court had authority to recall procedendo, the circumstances of this case did not warrant the exercise of this extraordinary power. The county attorney responded that this court's "jurisdiction did not cease when procedendo was quickly, but mistakenly, issued on May 6, 2005."

Although the parties dispute whether the county attorney or the attorney general properly represents the interests of the State in this appeal, we need not resolve this dispute prior to determining our jurisdiction in this matter. Questions concerning this court's jurisdiction may be raised upon the court's own motion. See River Excursions, Inc. v. City of Davenport, 359 N.W.2d 475, 477 (Iowa 1984) ("Even though neither party has questioned our jurisdiction to hear and decide this case, we will sua sponte dismiss an appeal that is neither authorized by our rules nor permitted by court order."); Budde v. City Dev. Bd., 276 N.W.2d 846, 849 (Iowa 1979) ("Although petitioners moved to dismiss the appeal, we are obliged to do so even on our own motion when an appeal is not authorized by rule."). Therefore, the attorney general's standing to challenge our jurisdiction is irrelevant. Accordingly, we proceed directly to a consideration of the propriety of this court's recall of procedendo and reinstatement of this appeal.

II. Discussion.

An appellate court must have some method of remanding a case to the lower court after the reviewing court has made its decision. See State v. Banning, 205 Iowa 826, 828, 218 N.W. 572, 574 (1928). In Iowa, remand is accomplished by the issuance of a procedendo. See State v. Henderson, 215 Iowa 276, 278, 243 N.W. 289, 290 (1932) ("The bar and the courts of this state have uniformly referred to the order which goes from this court to the district court to proceed with the trial of a cause as a `procedendo.'"). See generally 62B Am.Jur.2d Procedendo § 1, at 579 (2005) ("In some jurisdictions, the term `procedendo' is used interchangeably with `remittitur' and `mandate' to denote the order issued by a court of review on the decision of a cause on appeal ...."). The issuance of procedendo is within the court's inherent power.[1]See Banning, 205 Iowa at 828, 218 N.W. at 574.

This court has adopted several appellate rules that address the issuance of procedendo. Iowa Rule of Appellate Procedure 6.30 states that no procedendo will issue "for 15 days after an opinion of the supreme court is filed, nor thereafter while a petition for rehearing, filed according to these rules, is pending." Iowa R.App. P. 6.30. In contrast, procedendo must issue immediately when the court denies an application for further review or renders a *282 decision in an abortion notification appeal. See Iowa Rs.App. P. 6.402(6), 6.502(3).

Once procedendo has issued, the jurisdiction of the supreme court ceases.[2]See Henderson, 215 Iowa at 278, 243 N.W. at 290; Iowa Code § 814.25 (providing in reference to criminal matters that "[t]he jurisdiction of the appellate court shall cease when procedendo is issued"); id. § 631.16(7) (setting forth same principle pertaining to discretionary review of small claims actions);

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Related

Budde v. City Development Board
276 N.W.2d 846 (Supreme Court of Iowa, 1979)
River Excursions, Inc. v. City of Davenport
359 N.W.2d 475 (Supreme Court of Iowa, 1984)
State v. Henderson
243 N.W. 289 (Supreme Court of Iowa, 1932)
State v. Banning
218 N.W. 527 (Supreme Court of Iowa, 1928)
State v. Waddell
254 N.W. 627 (Supreme Court of Minnesota, 1934)
In the Interest of M.T., M.T., and T.B., Minor Children
714 N.W.2d 278 (Supreme Court of Iowa, 2006)
Fenton v. Way
44 Iowa 438 (Supreme Court of Iowa, 1876)
Becker v. Becker
50 Iowa 139 (Supreme Court of Iowa, 1878)
Palmer v. Woods
39 N.W. 668 (Supreme Court of Iowa, 1888)
Hawaii Housing Authority v. Midkiff
463 U.S. 1323 (Supreme Court, 1983)

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Bluebook (online)
714 N.W.2d 278, 2006 WL 1359615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mt-iowa-2006.