State of Iowa v. Howard J. Thompson

• Court: Supreme Court of Iowa
• Decided: February 5, 2021
• Docket: 19-1259
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 19–1259

Submitted September 17, 2020—Filed February 5, 2021

STATE OF IOWA,

Appellee,

vs.

HOWARD J. THOMPSON,

Appellant. _______________________________________________________________________

Appeal from the Iowa District Court for Scott County, Henry W.

Latham II, Judge.

The defendant challenges his convictions for attempting to obtain a

prescription drug by deceit and conspiracy to commit a nonforcible felony

and challenges a statute disallowing represented parties from filing pro se

supplemental documents. CONVICTIONS AFFIRMED.

McDonald, J., delivered the opinion of the court, in which Waterman, Mansfield, and Oxley, JJ., joined. McDermott, J., filed an

opinion concurring in part and dissenting in part in which Christensen,

C.J., and Appel, J., joined.

Kent A. Simmons, Bettendorf, for appellant.

Thomas J. Miller, Attorney General, Thomas J. Ogden, Assistant Attorney General, Michael Walton, County Attorney, and Nathan Repp and

Jonathan Noble, Assistant County Attorneys, for appellee. 2

McDONALD, Justice.

Howard Thompson was convicted of two counts of attempting to

obtain a prescription drug by deceit, as a habitual offender, in violation of

Iowa Code section 155A.23(1) (2019), and one count of conspiracy to

commit a nonforcible felony, in violation of Iowa Code section 706.3(2).

Thompson raises two challenges in this direct appeal. First, Thompson

contends the district court abused its discretion in admitting evidence

regarding Thompson’s residential address, which was offered to prove Thompson’s knowledge, motive, and intent. Second, Thompson challenges

the constitutionality of a newly-enacted law that prohibits a represented

defendant from filing pro se documents.

I.

On June 5, 2017, Thompson and his friend, Markita Elverton, drove

together to a local grocery-store pharmacy. Elverton entered the store

alone and presented to the pharmacy technician a prescription for

Elverton for oxycodone. After dropping off the prescription, Elverton went

to the customer service counter and mailed a letter. The return address

on the letter was Markita Elverton, 1303 14th Street, DeWitt, Iowa. After

mailing the letter, Elverton returned to the vehicle where Thompson was

waiting. An employee of the pharmacy called the doctor’s office identified

in the prescription and learned the prescription was fraudulent. A

manager of the pharmacy notified law enforcement.

After Elverton returned to the vehicle where Thompson was waiting,

she and Thompson drove across the street to a different pharmacy. This

time, Thompson entered the store alone, and Elverton waited in the vehicle. Thompson dropped off a prescription for Claudia Williamson for

hydrocodone. Hailey Drobushevich, the pharmacy technician, asked 3

Thompson for an address. Drobushevich testified Thompson gave the

address 1303 6th Street, Dewitt, Iowa. Thompson then returned to the

vehicle where Elverton was waiting. An employee of the pharmacy called

the doctor’s office identified in the prescription and learned the

prescription was fraudulent. A manager notified law enforcement.

After Thompson returned to the vehicle, he and Elverton drove back

across the street to the first pharmacy. Although Everton dropped off the

prescription just moments before, Thompson entered the store to pick up

the prescription. While Thompson was standing by the pharmacy counter, he was approached by responding officer Cristina Thomas. Officer Thomas

first asked, “Hey man, what’s going on? Do you have an ID on you, sir?”

Thompson replied, “No.” Officer Thomas asked, “Do you know why I’m

here?” And Thompson said, “No.” “Okay, the reason I’m here is because,

apparently, you’re trying to pick up a fraudulent prescription,” Thomas

stated. Thompson denied he was picking up a prescription, stating, “How

I’m trying to pick it up though?” Thomas asked, “Are you trying to pick

up a prescription, a prescription, for an [Overton/Elverton]?” And

Thompson replied, “No.” Thomas then asked Thompson, “Okay. Do you

have any weapons on you or anything, sir?” Thompson then bolted out of

the store. Thomas chased him out of the store, across the parking lot, and

through the neighboring properties but to no avail. Thompson escaped.

Thompson was arrested several months later and charged with two

counts of attempting to obtain a prescription drug by deceit, as a habitual

offender, and conspiracy to commit a nonforcible felony. At trial,

Thompson’s defense was wrong place, wrong time.

Elverton testified on Thompson’s behalf. Elverton testified she had stolen prescription pads from a doctor’s office a few years prior to this

incident. She testified the prescriptions she and Thompson presented 4

were written on the stolen prescription pads and were fraudulent. She

forged the prescriptions to obtain drugs because she had an addiction.

According to Elverton, Thompson was only involved because she asked

him to help her drop off and pick up prescriptions. She testified she did

not tell Thompson there was anything improper about the prescriptions.

She testified Thompson did not know the prescriptions were fraudulent.

She testified that she pleaded guilty to criminal charges arising out of this

incident and that she wanted to clear Thompson of any responsibility.

Elverton’s attempt to exculpate Thompson was not credible. For example, Elverton testified she wrote the prescriptions for the two drugs

because of her drug addiction, but she could not remember the name of

one of the drugs to which she allegedly was addicted and for which she

forged a prescription. As another example, one of the prescriptions

Elverton forged was for Claudia Williamson, but, when pressed, Elverton

testified she had “no clue” who Claudia Williamson was. Also, according

to Elverton, Thompson was dropping off prescriptions for Elverton, but

Thompson presented the prescription for Williamson without ever asking

who Williamson was. (Although not material to our resolution of the issues

in this appeal, the presentence investigation report shows Claudia

Williamson is Thompson’s biological mother.)

The jury found the defendant guilty of all charges. The district court

concluded the sentence for the conspiracy offense merged with the

sentences for attempt to obtain a prescription drug and sentenced

Thompson to a term of incarceration not to exceed fifteen years.

II.

We first address Thompson’s evidentiary challenge. Our review is for an abuse of discretion. See State v. Martin, 704 N.W.2d 665, 671 (Iowa

2005); Jensen v. Sattler, 696 N.W.2d 582, 585 (Iowa 2005). Evidentiary 5

decisions will be given “wide latitude regarding admissibility” so long as

the district court did not ignore the established rules of evidence. State v.

Sallis, 574 N.W.2d 15, 16 (Iowa 1998).

Because Elverton conceded the prescriptions were forged, the

primary issue at trial was whether Thompson knowingly participated in

the crime either as a principal or as an aider and abettor. One of the ways

in which the State attempted to prove Thompson’s knowledge, intent, and

motive was to show Thompson gave false residential address information

to pharmacy technician Drobushevich. To prove this, the State tried to show the address Thompson gave to Drobushevich was not his address.

The State first called Officer Herve Denain. Denain was dispatched

to Walgreens to investigate the incident and create a police report. Denain

testified Thompson gave the address 1303 6th Street, DeWitt, when

presenting the prescription. Denain stated this address differed from the

address Denain entered on the complaint. Denain did not testify how he

obtained Thompson’s residential address information, specifically, when

completing the complaint. But he did testify how he usually obtained

residential address information for a defendant when filling out a

complaint. When the prosecutor asked Denain the address on the

complaint, Denain could not recall. The prosecutor was allowed, over

defendant’s objection, to refresh Denain’s memory by presenting him a

copy of the complaint. Denain testified the residential address entered on

the complaint was 1303 14th Street, DeWitt. This is the same address as

the return address on the envelope Elverton placed in the mail.

The State also tried to prove Thompson gave a false address to the

pharmacy technician by showing the address given differed from that on Thompson’s written arraignment and plea of not guilty. To lay foundation

for the exhibit, the State called a judicial specialist from the clerk of court’s 6

office. The written arraignment and plea of not guilty was a form

document. Question two of the form stated, “My name, current mailing

and residence addresses, and telephone number are,” which was followed

by a blank space. The blank space was completed and stated Thompson’s

mailing and residence addresses were “1303 14th Street, DeWitt, IA

52744.” The arraignment was signed by Thompson. The exhibit was

admitted over the defendant’s objection.

Thompson contends Denain’s testimony regarding the address on

the complaint and the arraignment form were not relevant. “Iowa has adopted a broad view of relevancy . . . .” State v. Scott, 619 N.W.2d 371,

375 (Iowa 2000) (en banc). “Evidence is relevant if . . . [i]t has any

tendency to make a fact more or less probable than it would be without

the evidence” and “[t]he fact is of consequence in determining the action.”

Iowa R. Evid. 5.401. “Whether the necessary minimum level of logical

connection between the offered evidence and the fact to be proven exists

is a legal question lying within the broad discretion of the trial court.”

State v. Tracy, 482 N.W.2d 675, 680–81 (Iowa 1992) (en banc).

We conclude the district court did not abuse its broad discretion in

determining the evidence was relevant and admitting the same over

Thompson’s objections. The State was required to prove the defendant

acted with the specific intent to obtain a prescription drug by deceit either

as a principal or as aider and abettor. The unchallenged marshaling

instruction provided the State was required to prove the defendant did so

by one or more of the following methods: (1) fraud, (2) deceit,

(3) misrepresentation, (4) subterfuge, or (5) using a false name or gave a

false address. The district court could have reasonably concluded the defendant’s provision of the address tended to show the defendant did

have the requisite mens rea. The evidence was relevant to show Thompson 7

was living with Elverton and was thus more likely to be in on the fraud. It

also showed Thompson gave false information. He provided the pharmacy

technician with the house number “1303” but a street name different than

his own. It would be highly coincidental if Thompson and Williamson each

resided at house number “1303” but on different streets. The jury was

free to infer from this that Thompson provided false address information

for himself or false address information for the made-up Williamson.

Thompson implicitly concedes the evidence was relevant. In his

brief, Thompson acknowledges the evidence “was low in probative value.” Probative value “gauges the strength and force” of relevant evidence. State

v. Cromer, 765 N.W.2d 1, 8, (Iowa 2009) (quoting State v. Plaster, 424

N.W.2d 226, 231 (Iowa 1988) (en banc)). After implicitly conceding the

evidence was relevant, Thompson argues the evidence should have been

excluded for a variety of reasons. For example, Thompson questions what,

specifically, the pharmacy technician asked. He questions how the officer

obtained Thompson’s residential address information to complete the

complaint. Thompson raises the issue of whether the residential address

information in the arraignment was the same residential address

Thompson had on the day of the offense. These types of objections go to

the weight and not the admissibility of the evidence and do not serve as a

basis for excluding the evidence. See De Long v. Brown, 113 Iowa 370,

373, 85 N.W. 624, 625 (1901) (“[T]he weight to be given to evidence and its

admissibility are different matters.”).

Thompson also argues the evidence should have been excluded

because it was unfairly prejudicial. Iowa Rule of Evidence 5.403, provides

relevant evidence may be excluded if its probative value is “substantially outweighed by a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or 8

needlessly presenting cumulative evidence.” “Weighing probative value

against prejudicial effect ‘is not an exact science,’ so ‘we give a great deal

of leeway to the trial judge who must make this judgment call.’ ” State v.

Putman, 848 N.W.2d 1, 10 (Iowa 2014) (quoting State v. Newell, 710

N.W.2d 6, 20–21 (Iowa 2006)).

We reject Thompson’s argument that the evidence was unfairly

prejudicial. Thompson argues the evidence was unfairly prejudicial

“because it was the only evidence offered to show Mr. Thompson had any

knowledge [Elverton] was acting in fraud.” Thompson misapprehends the nature of the inquiry. All “[r]elevant evidence is inherently prejudicial in

the sense of being detrimental to the opposing party’s case.” State v.

Delaney, 526 N.W.2d 170, 175 (Iowa Ct. App. 1994). The relevant inquiry

is not whether the evidence is prejudicial or inherently prejudicial but

whether the evidence is unfairly prejudicial. Unfairly prejudicial means

the “evidence has an undue tendency to suggest a decision on an improper

basis.” Id. The evidence here does not suggest a decision on an improper

basis.

Given the latitude afforded the district court in matters of evidence,

we cannot conclude the district court abused its broad discretion in

admitting the evidence over the defendant’s objection.

III.

A.

The constitutional question in this case involves filing and motion

practice in this court. Thompson is represented by counsel in this appeal.

Nonetheless, Thompson filed his own brief in addition to the brief filed by

counsel. The Iowa Rules of Appellate Procedure allow a represented party to file a pro se supplemental brief. See Iowa R. App. P. 6.901(2) (setting

forth rules regarding pro se supplemental briefs). Thompson’s counsel 9

filed a motion requesting the clerk of the supreme court accept

Thompson’s pro se supplemental brief for filing.

The State filed a resistance to Thompson’s pro se supplemental brief.

In its resistance, the State contended a recently-enacted law now prohibits

a represented party from filing any pro se document in any Iowa court.

See 2019 Iowa Acts ch. 140, § 30 (codified at Iowa Code § 814.6A) (2020).1

The new law provides:

A defendant who is currently represented by counsel shall not file any pro se document, including a brief, reply brief, or motion, in any Iowa court. The court shall not consider, and opposing counsel shall not respond to, such pro se filings.

Iowa Code § 814.6A(1). The State requested the clerk of the supreme court

strike Thompson’s pro se supplemental brief pursuant to section 814.6A.

We ordered the motion and resistance be submitted with this appeal

and ordered the parties to brief the issue. In their briefing, the parties

contest the constitutionality of the new legislation. Thompson contends

the new statute violates the separation-of-powers doctrine and is therefore

unconstitutional and void. The State contends the new statute is a proper

exercise of the legislative department’s constitutional authority to regulate

practice and procedure in Iowa’s courts. Because the specific issue in this case is whether the clerk of the supreme court is required to strike

Thompson’s pro se supplemental brief, we focus our inquiry on the

constitutionality of the law as applied in this appeal.2

1The law provides an exception and allows a represented party to file a motion to disqualify counsel. See Iowa Code § 814.6A(3). 2The dissent contends section 814.6A has “constitutional problems” because the law prohibits the filings of briefs pursuant to Anders v. California, 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967), and Iowa Rule of Appellate Procedure 6.1005. Given the doctrine of constitutional avoidance, we doubt section 814.6A would prohibit the filing of Anders briefs. Even if it did, however, the “constitutional problem” presented would be in the nature of due process and not separation of powers. Regardless, we need not and do not answer these questions today. This case does not involve an Anders brief, and neither party raised or briefed the issue. The dissent’s search for reasons to declare 10

B.

Where, as here, the separation-of-powers question arises out of

proceedings in this court, “this court shall make its own evaluation, based

on the totality of circumstances, to determine whether that 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.

C.

“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

section 814.6A unconstitutional is contrary to the adversarial process. “[O]ur system ‘is designed around the premise that [parties represented by competent counsel] know what is best for them, and are responsible for advancing the facts and argument entitling them to relief.’ ” United States v. Sineneng-Smith, ___ U.S. ___, ___, 140 S. Ct. 1575, 1579 (2020) (second alteration in original) (quoting Castro v. United States, 540 U.S. 375, 386, 124 S. Ct. 786 (2003) (Scalia, J., concurring in part and concurring in judgment)). “[C]ourts are essentially passive instruments of government. They do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.” Id. (alterations in original) (citation omitted) (quoting United States v. Samuels, 808 F.2d 1298, 1301 (8th Cir. 1987) (Arnold, J., concurring)). The dissent’s search for reasons to declare this statute unconstitutional is also contrary to this court’s long-standing approach to the resolution of constitutional questions. See McGuire v. Chi., B. & Q.R. Co., 131 Iowa 340, 348, 108 N.W. 902, 905 (1906), aff’d, 219 U.S. 549, 31 S. Ct. 259 (1911) (“While it is an imperative duty, from which no court will shrink, to declare void any statute the unconstitutionality of which is made apparent, due regard to the boundary between the legislative and judicial departments of our government requires that this prerogative be exercised with the greatest caution, and only after every reasonable presumption has been indulged in favor of the validity of the act.”). 11

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 departments shall exercise any function appertaining to either of the others, except in cases hereinafter expressly directed or permitted.

Iowa Const. art. III, § 1.

The separation-of-powers doctrine has at least three aspects. First,

the doctrine prohibits a department of the government from exercising “powers that are clearly forbidden” to it. Klouda, 642 N.W.2d at 260

(quoting State v. Phillips, 610 N.W.2d 840, 842 (Iowa 2000) (en banc)).

Second, the doctrine prohibits one department of the government from

exercising “powers granted by the constitution to another branch.” Id.

Third, “[e]ach department of government must be and remain independent

if the constitutional safeguards are to be maintained.” Webster Cnty. Bd.

of Supervisors, 268 N.W.2d at 873. Stated differently, one department of

the government cannot “impair another in the performance of its

constitutional duties.” Klouda, 642 N.W.2d at 260 (emphasis omitted).

1.

We first address the question of whether the enactment of section

814.6A violates the first two aspects of the separation-of-powers doctrine.

That is, whether the legislative department exercised “powers that are

clearly forbidden” to it or exercised “powers granted by the constitution to

another branch.” Klouda, 642 N.W.2d at 260. In answering the question,

“we first look to the words used by our framers to ascertain intent and the

meaning of our constitution and to the common understanding of those words.” Chiodo v. Section 43.24 Panel, 846 N.W.2d 845, 851 (Iowa 2014);

see also Allison v. State, 914 N.W.2d 866, 884 (Iowa 2018) (“Lawyers and 12

judges who believe constitutional text matters must give the additional

Iowa constitutional language its full meaning.”). We look at the “text of the

document through the prism of our precedent, tradition, and custom.”

State v. Brown, 930 N.W.2d 840, 861 (Iowa 2019) (McDonald, J.,

concurring specially); see also The Federalist No. 37, at 179 (James

Madison) (Garry Wills ed., 1982) (stating legal meaning must “be liquidated

and ascertained by a series of particular discussions and adjudications”).

The constitutional duty of the judicial department is to exercise the

judicial power to provide for the fair and impartial administration of justice. The constitution vests the judicial power in the “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.

5, § 1. “The judicial power is ordinarily defined to be the power to construe

and interpret the Constitution and laws, and to apply them and decide

controversies . . . .” Hutchins v. City of Des Moines, 176 Iowa 189, 205,

157 N.W. 881, 887 (1916). It “is the power to decide and pronounce a

judgment and carry it into effect.” Klouda, 642 N.W.2d at 261.

The power of appellate review is one aspect of the judicial power. It

is the power of an appellate court to correct legal error in the lower courts.

The power of appellate review is vested in this court by the constitution.

See Iowa Const. art. V, § 1 (stating the supreme court “shall have appellate

jurisdiction only in cases of chancery, and shall constitute a court for the

correction of errors at law”). The power of appellate review is vested in the

court of appeals by statute. See Iowa Code §§ 602.5101 (establishing the

Iowa Court of Appeals “as an intermediate court of appeals”), .5103(1)

(“The court of appeals has appellate jurisdiction only in cases in chancery, and constitutes a court for the correction of errors at law.”). To execute

these powers, Iowa’s appellate courts have the power to issue all writs and 13

process necessary to exercise and enforce their jurisdiction and to secure

justice to the parties. See Iowa Const. art. V, § 1 (regarding the supreme

court); Iowa Code § 602.5103(4) (regarding the court of appeals).

The judicial department has several fonts of authority to regulate

court practice and procedure in all Iowa courts. The judicial department

has constitutional authority to supervise and administer “all inferior

judicial tribunals throughout the state.” Iowa Const. art. V, § 4. The

judicial department has statutory authority to “prescribe all rules of

pleading, practice, evidence, and procedure, and the forms of process, writs, and notices, for all proceedings in all courts of this state.” Iowa Code

§ 602.4201(1). The judicial department possesses inherent authority to

craft protocols and procedures in its courts. See State v. Dahl, 874 N.W.2d

348, 353 (Iowa 2016) (exercising supervisory authority to create protocol

for appointment of a private investigator for an indigent defendant); see

also Hammon v. Gilson, 227 Iowa 1366, 1373, 291 N.W. 448, 451–52

(1940) (“[C]ourts have the inherent power to prescribe such rules of

practice . . . to facilitate the administration of justice . . . .”). Moreover, the

judicial department possesses residual common law authority to meet its

“independent constitutional and statutory responsibilities.” Iowa C.L.

Union v. Critelli, 244 N.W.2d 564, 569 (Iowa 1976) (en banc).

However, the constitutional text reserves to the legislative

department authority to regulate the practice and procedure in all Iowa

courts, including Iowa’s appellate courts. Article V, section 4 of the Iowa

Constitution grants the supreme court appellate jurisdiction “under such

restrictions as the general assembly may, by law, prescribe.” Article V,

section 6 provides the district court shall have jurisdiction “as shall be prescribed by law.” And article V, section 14 of the constitution provides

it is “the duty of the general assembly . . . to provide for a general system 14

of practice in all the courts of this state.” The judicial department’s

constitutional, statutory, inherent, and common law authority to regulate

practice and procedure in its courts thus must give way where the

legislative department has acted. See Iowa Const. art. V, § 14; Iowa Code

§ 602.4202(4) (“If the general assembly enacts a bill changing a rule or

form, the general assembly’s enactment supersedes a conflicting provision

in the rule or form as submitted by the supreme court.”); Critelli, 244

N.W.2d at 569. In short, the constitutional text supports the State’s

position that the legislative department has the authority to prohibit the filing of pro se supplemental briefs on appeal.3

Historical practice also supports the conclusion that the legislative

department has the authority to prohibit the filing of pro se supplemental

briefs. Practice and procedure in Iowa’s courts historically has been

governed by the legislative department through statutes rather than by the

judicial department through court rules.

For example, in the Code of 1860, the legislative department enacted

a complete Code of Civil Practice and Code of Criminal Practice. See 1860

Iowa Code, Code Editor’s Preface (discussing wholly new codes of civil and

criminal practice); Part III, Of the Courts and the Procedure Therein; Part

IV, Of Crimes and Punishments, and Proceedings in Criminal Cases. The

Codes of Civil Practice and Criminal Practice were plenary, regulating every

aspect of practice and procedure in all Iowa courts. Iowa Code § 4424

(1860) (“The provisions of this act shall regulate the proceedings in all

3The dissent recognizes the text of our constitution grants the legislature the

power to regulate practice and procedure in all Iowa courts. The dissent contends this grant of power is not exclusive, citing Critelli. We agree the legislature does not have exclusive authority to regulate practice and procedure in all Iowa courts. Where, however, the legislature’s exercise of constitutional authority conflicts with this court’s common law powers, the legislative power prevails. See Critelli, 244 N.W.2d at 569 (stating courts have the power adopt rules “[w]here the legislature has not acted”). The dissent disregards this qualifying language in Critelli. 15

prosecutions in all the courts of this state from and after the first day of

September, A.D., 1860.”). The code included direct regulation of the

conduct of the supreme court. The code directed where the supreme court

shall hold court. See id. § 2623. The code directed how many terms the

supreme court shall hold and when each of those terms is to commence.

See id. § 2624. The code directed how many judges shall constitute a

quorum to transact business. See id. § 2627. The code defined this court’s

appellate jurisdiction. See id. §§ 2631, 2632. The legislative department

specifically directed how opinions must be decided and filed, providing all opinions of the court, including dissenting opinions, must be reduced to

writing and filed with the clerk of court. See id. §§ 2636, 2637.

While early code provisions did provide this court with the authority

to make rules of procedure in civil matters, the rule making power was to

“carry out the general spirit and intent of the system of practice” the

legislature adopted and to “carry out the purposes of the statute.” Iowa

Code §§ 1588–1591 (1851). The court’s statutory rulemaking power was

thus an interstitial power to fill in gaps in the legislative department’s

statutory edifice. This was widely understood to be the constitutional

division of powers between the two departments with respect to governing

practice and procedure in Iowa’s courts. See Note, Judicial Rule Making:

Propriety of Iowa Rule 344(f), 48 Iowa L. Rev. 919, 925 (1963) [hereinafter

Judicial Rule Making] (“On the contrary, the court has felt that it could not

promulgate comprehensive rules without legislative authority.”); James

McCauley Stewart, Rules of Court in Iowa, 13 Iowa L. Rev. 398, 402 (1928)

(“It would seem then, that if the courts of this state are to enjoy rule-

making power they must seek legislative authority for so doing.”). For example, in 1928 the Iowa State Bar Association rejected a proposal for

the enactment of a statute for this court to make rules of pleading and 16

practice on the ground, among others, the Iowa Constitution reserves this

authority to the legislative department. See Iowa State Bar Ass’n,

Proceedings of the Thirty-Fourth Annual Meeting of the Iowa State Bar

Association, 1928, Report on the Committee of Law Reform 103–07.

This was the state of affairs until the 1930s. In 1934, Congress

passed an act delegating to the Supreme Court the power to prescribe rules

of civil procedure. See Act of June 19, 1934, Pub. L. No. 73-415, 48 Stat.

1064 (1934). The power to promulgate rules of criminal procedure was

conferred by the Act of June 29, 1940. See Pub. L. 76-675, 54 Stat. 688 (1940). Both acts are now codified under 28 U.S.C. § 2072 (2018).

Following the federal model, in 1941, the general assembly enacted a

statute authorizing this court to prescribe all rules of pleading, practice,

and procedure for all proceedings of a civil nature. See 1941 Iowa Acts ch.

311 (codified at Iowa Code §§ 684.18, .19 (1946)). The legislation directed

this court to report any proposed rules to the general assembly, and,

subject to legislative revision, the proposed rules would take effect

following the adjournment of the legislature. Id. ch. 311, § 2 (codified at

Iowa Code § 684.19 (1946). The legislature continued to expand this

court’s rulemaking authority over the years. The legislature gave this

court the authority to enact criminal rules of procedure in 1976 and rules

of evidence in 1981. See 1976 Iowa Acts ch. 1245, ch. 2, § 1303 (codified

at Iowa Code § 813.4) (Supp. 1977)); 1981 Iowa Acts ch. 203 (codified at

Iowa Code § 681.18 (1983)). This statutory division of authority has

remained largely unchanged with two exceptions. First, between 1946 and

1983, this court’s rules were actually in the code or appended to the end

of the code as session laws. That practice changed in 1982–83. See 1982 Iowa Acts ch. 1061, § 4 (codified at Iowa Code § 14.12(7) (1983)); 1983

Iowa Code, Code Editor’s Note, at 3667 (explaining court rules shall be 17

omitted from the Iowa Code). Second, in 1983, the legislature amended

the code to specify that this court only had to report rule changes to the

legislative council and the chairs and ranking members of the house and

senate judiciary committees rather than the entire general assembly. See

1983 Iowa Acts ch. 186, §§ 5201, 5202 (codified at Iowa Code §§ 602.4201,

.4202 (1983 Supp)).

Even with the legislative delegation of rulemaking power to this

court, practice and procedure in Iowa’s courts remain a mix of statutes

and rules. As relevant here, the legislative department continues to legislate on the topics of who can participate in judicial proceedings, what

information or evidence can be presented in judicial proceedings, and what

information or evidence can be considered in judicial proceedings.

Consider just a sentencing proceeding—the quintessential judicial

function. The legislature prohibits sentencing courts from ordering or

considering a presentence investigation report when conducting

sentencing for a class “A” felony. See Iowa Code § 901.2(2)(a) (2019). The

legislature requires district courts to order a presentence investigation

report when sentencing for class “B,” “C,” and “D” felonies. See id.

§ 901.2(2)(b). The legislative department requires sentencing courts to

examine presentence investigations prior to determining sentence. See id.

§ 901.5 unnumbered para. 1. At the time of sentencing, the legislature

has directed that “the court shall consider the provisions of 21 U.S.C.

§ 862, regarding the denial of federal benefits to drug traffickers.” Id.

§ 901.5(10). At the time of sentencing for particular offenses, the

legislature provides the district shall consider a validated risk assessment.

See id. § 901.11. In youthful offender review proceedings, the legislative department has instructed courts “shall hear evidence by or on behalf of

the youthful offender, by the county attorney, and by the person or agency 18

to which custody of the youthful offender was transferred.” Id. § 907.3A(2).

The same provision directs the district court to consider particular

information when making its decision. See id. With respect to victims,

the legislative department has determined that victims have the right to

participate in sentencing proceedings. See id. § 915.21. It has determined

how victim impact statements can be presented to the sentencing court.

See id. § 915.21(1)(a)–(e). The legislative department has determined that

the victim’s attorney or designated representative shall have the right to

make a statement in lieu of the victim. See id. § 915.21(1)(e). The legislative department has also instructed courts how to treat victims,

directing that “[a] victim shall not be placed under oath and subjected to

cross-examination at the sentencing hearing.” Id. § 915.21(3). These are

just examples. Iowa Code Title XVI (Criminal Law and Procedure), Subtitle

3 (Criminal Corrections) is littered with musts and must nots and shalls

and shall nots that directly regulate the practice and procedure in district

courts. None of these enactments have been held to contravene the

constitutional separation of powers.

This brief survey of the relevant history shows the legislative

department has always established the rules for practice and procedure in

Iowa’s courts. Initially, the legislature did so directly through statutes.

More recently, the legislature has done so indirectly through delegation of

the rulemaking power to this court subject to legislative oversight and

amendment. Pursuant to this historical practice, this court has repeatedly

recognized the constitutionality of legislation regulating practice and

procedure in Iowa’s courts. In State v. Olsen, we recognized the legislative

department could set the deadlines by which a party could seek appellate review. 180 Iowa 97, 99–100, 162 N.W. 781, 782–83 (1917). In doing so,

we stated, “The right of appeal is purely statutory. To invoke the appellate 19

jurisdiction of this court, the statute must be followed.” Id. at 99, 162

N.W. at 782. In Andrews v. Burdick, we rejected an argument that the

legislative department could not restrict the appellate power in cases

involving an amount less than one hundred dollars. 62 Iowa 714, 721, 16

N.W. 275, 279 (1883). In Root v. Toney, we recognized “the legislature’s

limited role in our appellate process includes the power to prescribe by

statute the time allowed to file an appeal and to provide for a one-day

extension when the deadline falls on a day our clerk of court is closed in

whole or in part.” 841 N.W.2d 83, 87 (2013). And in Wine v. Jones, we held the legislative department did not violate the separation of powers

when it prohibited this court from requiring the parties to file an

assignment of error. 183 Iowa 1166, 1177–78, 168 N.W. 318, 321 (1918).

We reasoned that the statute passed constitutional muster because it

merely prohibited the filing of a pleading but did “not undertake to

prescribe the manner of arguing errors complained of, in presenting a

cause to this court.” Id. at 1178, 168 N.W. at 321.

The constitutional grant of authority to the legislative department to

provide for a general system of practice in Iowa’s courts and historical

practice distinguishes this case from the Klouda v. Sixth Judicial District

Department of Correctional Services decision on which Thompson relies.

Klouda involved a challenge to a statute that “create[d] a pilot project in

the sixth judicial district whereby judges in that district transfer[red]

jurisdiction over probation revocation cases to an administrative parole

and probation judge (ALJ).” 642 N.W.2d at 257. We concluded the statute

violated the separation-of-powers doctrine and was unconstitutional. See

id. at 263. In reaching the conclusion, we explained that “sentencing . . . falls within the realm of judicial power.” Id. at 261. We explained that the

statute was unconstitutional because it vested executive department 20

administrative law judges with substantive sentencing power exclusively

vested in the judicial department. See id. at 263. Klouda is a case that

involved the divestment of the judicial sentencing power from the courts

and the transfer of that power to another branch of government. That

transfer of power violated the first and second aspects of the separation-

of-powers doctrine. That case is not this case. Here, the statute does not

divest this court of any power and transfer the same to a coordinate branch

of government.

In light of the foregoing, it is apparent Thompson has not carried his heavy burden of showing beyond a reasonable doubt the legislative

department did, in prohibiting represented parties from filing pro se

supplemental briefs on appeal, exercise “powers that are clearly forbidden”

to it or exercise “powers granted by the constitution to another branch.”

Klouda, 642 N.W.2d at 260. The constitution explicitly vests the legislative

department with the power “to provide for a general system of practice in

all the courts of this state.” Iowa Const. art. V, § 14. Pursuant to this

grant of constitutional authority, the legislative department has exercised

and continues to exercise regulatory authority over practice and procedure

in Iowa’s courts. This historical practice is of great significance in

determining separation-of-powers questions:

To be sure, the content of the three authorities of government is not to be derived from an abstract analysis. The areas are partly interacting, not wholly disjointed. 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. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610, 72 S. Ct. 863, 897 (1952) (Frankfurter, J., concurring). Pursuant to the constitutional 21

text and historical practice, our precedents continue to recognize the

“legislature possesses the fundamental responsibility to adopt rules of

practice for our courts.” Butler v. Woodbury Cnty., 547 N.W.2d 17, 20

(Iowa Ct. App. 1996).

2.

This brings us to the third aspect of the separation-of-powers

question—whether section 814.6A impedes the immediate, necessary,

efficient, and basic functioning of our appellate courts. At the same time

we have honored the legislative department’s fundamental responsibility to regulate practice and procedure in Iowa’s courts, we have also

recognized the legislative department’s authority is not unlimited. Under

the guise of regulation, the “[l]egislature cannot exercise 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).

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, 183 Iowa at 1177, 168 N.W. at 321. Ultimately,

“[f]or the judiciary to play an undiminished role as an independent and

equal coordinate branch of government nothing[, including the legislative

department,] must impede the immediate, necessary, efficient and basic

functioning of the courts.” Webster Cnty. Bd. of Supervisors, 268 N.W.2d

at 873.

Thompson argues section 814.6A impairs the essential function of the appellate courts because the new law violates a defendant’s right to

present legal claims on appeal. Contrary to Thompson’s assertion, there 22

is no independent right that requires a represented party be allowed to file

pro se documents on appeal. Iowa Rule of Appellate Procedure 6.901(2)

allowed a criminal defendant or applicant for postconviction relief to file a

pro se supplemental brief. That was allowed, however, as a matter of

grace. There is no constitutional right to hybrid representation on direct

appeal from a criminal conviction or on appeal from a postconviction relief

proceeding. See United States v. Turner, 677 F.3d 570, 578 (3d Cir. 2012)

(“Pro se litigants have no right to ‘hybrid representation’ because ‘[a]

defendant does not have a constitutional right to choreograph special appearances by counsel.’ ” (alternation in original) (quoting McKaskle v.

Wiggins, 465 U.S. 168, 183, 104 S. Ct. 944, 953 (1984)).

The United States Court of Appeals for the Third Circuit explained:

Even were this not the case, Fontanez’s claims fail substantively. The thrust of his complaint concerns a Pennsylvania litigant’s right to represent himself on appeal. But there is no such right under the federal constitution. Although such a right does exist at the trial level, the United States Supreme Court has made clear that this right does not extend to appeals. And rules limiting hybrid representation (in which a litigant proceeds simultaneously by counsel and pro se) are constitutionally acceptable in both the appellate and trial contexts.

Fontanez v. Pennsylvania, 570 F. App’x 115, 116 (3d Cir. 2014) (per

curiam) (citations omitted).

Other courts that have considered the issue agree there is no

constitutional right to hybrid representation on appeal. See United States

v. Hunter, 932 F.3d 610, 620 (7th Cir. 2019) (stating “there is no Sixth

Amendment right to file a pro se brief when the appellant is represented

by counsel” (quoting Hayes v. Hawes, 921 F.2d 100, 102 (7th Cir. 1990)

(per curiam))); United States v. Montgomery, 592 F. App’x 411, 415 (6th Cir. 2014) (“Accordingly, we have stated that there is no ‘constitutional

entitlement to submit a pro se appellate brief on direct appeal in addition 23

to the brief submitted by appointed counsel.’ ” (quoting McMeans v.

Brigano, 228 F.3d 674, 684 (6th Cir. 2000))); United States v. Washington,

743 F.3d 938, 941 n.1 (4th Cir. 2014) (stating a party has no right to raise

substantive issues while represented by counsel); Trimble v. State, 157

So.3d 1001, 1006 (Ala. Crim. App. 2014) (stating “courts in other

jurisdictions have held that a defendant is not entitled to file pro se

pleadings or motions when represented by counsel” and citing cases);

Brewer v. State, 268 S.W.3d 332, 333 (Ark. 2007) (per curiam) (“An

appellant is not entitled to accept appointment of counsel to represent him, and also proceed pro se. Moreover, this court will not permit an

appellant to compete with his attorney to be heard in an appeal.” (citation

omitted)); Eagle v. State, 440 S.E.2d 2, 5 (Ga. 1994) (declining to address

arguments in pro se brief and stating “[n]either our State Constitution nor

the Federal Constitution provide a defendant with a right to simultaneous

representation by counsel and self-representation”); LeBaron v.

Commonwealth, 985 N.E.2d 822, 822 (Mass. 2013) (stating the defendant

had no constitutional right to file pro se documents on appeal); People v.

White, 539 N.E.2d 577, 583 (N.Y. 1989) (“Indeed, good appellate practice

might require a retained attorney to take a different approach from that

urged by the client when experience has proven that the attorney’s

approach is in the client’s best interest. Thus, we see no reason why the

rule that defendant has no right to hybrid representation at the pretrial

and trial stages should not carry over to the appellate stage.”);

Commonwealth v. Blakeney, 108 A.3d 739, 762 (Pa. 2014) (per curiam)

(“Indeed, no defendant has a constitutional right to hybrid representation,

either at trial or on appeal.”); Jones v. State, 558 S.E.2d 517, 517 (S.C. 2002) (“There is no constitutional right to hybrid representation either at

trial or on appeal.”); Marshall v. State, 210 S.W.3d 618, 620 n.1 (Tex. Crim. 24

App. 2006) (declining to address arguments in pro se brief on the ground

“appellant has no right to hybrid representation”); State v. Debra A.E., 523

N.W.2d 727, 737 (Wis. 1994) (stating a “a defendant does not have a

constitutional right to hybrid representation on appeal or review” and

collecting cases). To the best of our knowledge, no court has reached a

contrary conclusion.

We cannot conclude section 814.6A, as applied to appellate courts,

impedes the essential functioning of the appellate courts. The statute does

not divest the appellate courts of judicial power. Nor does the statute transfer judicial power to another department of the government. The

statute does not direct the appellate courts how to decide a particular case.

The statute does not change the character of the appellate courts to

something other than courts for the correction of errors at law. The statute

does not deprive the defendant of any fundamental right. Section 814.6A

does not cross any of the constitutional lines demarcated in our cases. As

in Wine, the statute simply prohibits certain documents from being filed

in the appellate courts.

The fact that section 814.6A also provides the courts “shall not

consider . . . such pro se filings” does not change the constitutional

calculus. The “shall not consider” language is not of independent

constitutional consequence. As a practical matter, the court cannot

consider any document not accepted for filing. The “shall not consider”

language is merely tautological surplusage. As Justice Scalia and Brian

Garner explained, “Sometimes drafters do repeat themselves and do

include words that add nothing of substance, either out of a flawed sense

of style or to engage in the ill-conceived but lamentably common belt-and- suspenders approach.” Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts 176–77 (2012) (emphasis in original). This 25

fact, they warned, counseled against rigid application of the surplusage

canon. See id. (“So like all other canons, this one must be applied with

judgment and discretion, and with careful regard to context. It cannot

always be dispositive because . . . the underlying proposition is not

invariably true.” (emphasis in original)). Here, context demonstrates the

“shall not consider” language is a belt-and-suspenders approach. The

statutory language simply mirrors Iowa Rule of Appellate Procedure

6.901(2), which provides untimely pro se supplemental briefs “will not be

considered by the court.” The legislature’s use of mirroring language to extend our rule prohibiting the consideration of untimely pro se

supplemental briefs to all pro se supplemental briefs is a quite common

belt-and-suspenders approach and does not evidence any intent to impede

the essential function of the appellate courts. See Ethan J. Leib & James

J. Brudney, The Belt-and-Suspenders Canon, 105 Iowa L. Rev. 735, 738,

742 (2020) (explaining it is common for legislative drafters to employ a

redundant belt-and-suspenders approach in drafting legislation and

“[e]ven more broadly, legislatures may opt for redundant drafting in

relation to previously enacted statutes”).

Section 814.6A is merely another example of the legislative

department’s constitutional and historical prerogative to regulate practice

and procedure in Iowa’s courts. There are legitimate regulatory reasons

why the legislature would seek to restrict represented parties from filing

pro se documents on appeal. Requiring that briefs be filed only by counsel

“ensure[s] that counsel and client speak with one voice.” Turner, 677 F.3d

at 579. “When a client seeks to raise additional issues, counsel must

evaluate them and present only the meritorious ones, rather than simply seeking leave for the client to file a supplemental brief. This promotes

effective advocacy because it prevents counsel from allowing frivolous 26

arguments to be made by the client.” Id. The prohibition against

represented parties also reduces procedural confusion. See Montgomery,

592 F. App’x at 416 (“Indeed, the prohibition against hybrid representation

is intended to prevent the exact type of procedural confusion presented in

this appeal.”). The legislative department’s decision to advance these

interests does not impede the immediate, necessary, efficient, and basic

functioning of our appellate courts.

D.

The demarcation between a legitimate regulation of court practice and procedure and an unconstitutional encroachment of the judicial

power is context specific. “The separation-of-powers doctrine . . . has no

rigid boundaries.” Klouda, 642 N.W.2d at 260. In this specific context,

we hold section 814.6A, as applied to prohibit the filing of pro se

supplemental briefs on appeal, does not violate any aspect of the

separation-of-powers doctrine. See id.; Webster Cnty. Bd. of Supervisors,

268 N.W.2d at 873. It is the legislative department’s constitutional

prerogative to establish a general system of practice in all Iowa courts so

long as those restrictions and regulations do not impede the immediate,

necessary, efficient, or basic functioning of the appellate courts. Section

814.6A, as applied to pro se supplemental briefs on appeal, does not

impede the immediate, necessary, efficient, or basic functioning of the

appellate courts. Instead, section 814.6A merely restricts represented

parties from filing documents in the appellate courts and thus regulates

the manner in which legal claims and arguments can be presented to the

appellate courts for resolution. The legislature has exercised its

constitutional power to decide that the claims and arguments of all represented parties on appeal should be advanced by counsel rather than

the litigants. This does not offend the separation-of-powers doctrine. The 27

new legislation thus supersedes Iowa Rule of Appellate Procedure 6.901(2).

See Iowa Code § 602.4202(4); Judicial Rule Making, 48 Iowa L. Rev. at 924

(explaining Iowa’s “judicial rules will be invalid when in conflict with a

statute”).4

IV.

For these reasons, we affirm Thompson’s convictions for attempting

to obtain a prescription drug by deceit. We reject Thompson’s

constitutional challenge to Iowa Code section 814.6A. Thompson’s motion

to accept his pro se supplemental brief is denied. The clerk of the supreme court is directed to strike the pro se supplemental brief.

CONVICTIONS AFFIRMED.

Waterman, Mansfield, and Oxley, JJ., join this opinion. McDermott,

J., files a separate opinion concurring in part and dissenting in part in

which Christensen, C.J., and Appel, J., join.

4“Infor a calf is not always in for a cow.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 358, 115 S. Ct. 1511, 1524 (1995) (Ginsburg, J., concurring). The dissent raises hypotheticals that are not before us and that we need not address to resolve the actual question presented. While we conclude section 814.6A is constitutional on its face and as applied in this appeal, we agree there are constitutional limits to the legislative department’s authority to regulate practice and procedure in Iowa’s courts. 28

#19–1259, State v. Thompson

McDERMOTT, Justice (concurring in part and dissenting in part).

The legislature’s statute challenged in this appeal erases the court’s

own long-standing appellate rule inviting pro se supplemental briefs from

criminal defendants. By its language, Iowa Code section 814.6A (2020)

forbids a represented defendant from filing “any pro se document . . . in

any Iowa court” and commands that the “court shall not consider . . . such

pro se filings.” The constitutional question the statute provokes is simply

stated: Does the legislature violate the separation of powers by passing a law that denies the court the opportunity to request and consider a pro se

criminal defendant’s own filings in cases properly before the court?

The Iowa Constitution establishes the “Jurisdiction of supreme

court” and assigns to the supreme court the power to provide for “the

correction of errors at law” and to “issue all writs and process necessary

to secure justice to parties.” Iowa Const. art. V, § 4. As the majority

recites, the judicial powers enumerated in the constitution thus

encompass “the power to decide and pronounce a judgment and carry it

into effect.” Klouda v. Sixth Jud. Dist. Dep’t of Corr. Servs., 642 N.W.2d

255, 261 (Iowa 2002). Like the United States Constitution, the Iowa

Constitution embraces separation of powers between legislative, executive,

and judicial departments, and the powers of each were to remain distinct:

“[N]o person charged with the exercise of powers properly belonging to one

of these 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 (emphasis added).

The separation of powers among the three branches preserves the balance established in the constitution to prevent “a gradual concentration

of the several powers in the same department.” The Federalist No. 51, at 29

349 (James Madison) (Jacob E. Cooke ed., 1961). Under the separation of

powers, the judicial branch holds “the ‘province and duty . . . to say what

the law is’ in particular cases and controversies.” Plaut v. Spendthrift

Farm, Inc., 514 U.S. 211, 218, 115 S. Ct. 1447, 1453 (1995) (alteration in

original) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)).

Courts “derive from the Constitution itself, once they have been created

and their jurisdiction established, the authority to do what courts have

traditionally done in order to accomplish their assigned tasks.” Chambers

v. NASCO, Inc., 501 U.S. 32, 58, 111 S. Ct. 2123, 2140 (1991) (Scalia, J., dissenting).

The majority correctly recites that the Iowa Constitution provides

this court jurisdiction “under such restrictions as the General Assembly

may, by law, prescribe.” Iowa Const. art. V, § 4. But determinations of

who may file documents with the courts to enable the courts to do their

work on a pending case, and the sources from which the courts may

consider arguments, isn’t a question of court jurisdiction. The challenged

statute doesn’t grant or deprive any court of jurisdiction to hear a case.

And there’s certainly no suggestion criminal cases like this one aren’t

properly before the court.

The majority also 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. Contrary to the majority’s claim,

this “general system” provision does not bestow upon the legislature

exclusive power to adopt the court’s rules of practice. In Iowa Civil

Liberties Union v. Critelli—a case cited by the majority—we recognized the 30

courts’ fundamental power to adopt rules of practice to fulfill the courts’

constitutional duties:

We do not think the constitutional assignment of a duty to the legislature to provide a general system of practice for the courts vests the power to adopt rules of practice in the legislature exclusively. Where the legislature has not acted, courts possess a residuum of inherent common-law power to adopt rules to enable them to meet their independent constitutional and statutory responsibilities. We find Article V, § 14, of the Constitution, read with the separation of powers clause, Article III, § 1, does not manifest a plain intention to abrogate the inherent common-law power of courts to adopt rules of practice.

244 N.W.2d 564, 569 (Iowa 1976) (en banc).

At common law, the inherent power of courts to make rules

governing practice and procedure “was firmly established.” Id. at 568. In

Hammon v. Gilson, we upheld a court’s procedural order under “the

recognized rule that courts have the inherent power to prescribe such

rules of practice and rules to regulate their proceedings . . . to facilitate

the administration of justice.” 227 Iowa 1366, 1373, 291 N.W. 448, 451–

52 (1940). We see the legislature’s implicit recognition of this power in the

Iowa Code. Iowa Code section 602.4201(1) provides that the “supreme

court may prescribe all rules of pleading, practice, evidence, and

procedure, and the forms of process, writs, and notices, for all proceedings in all courts of this state.” (Emphasis added.) Section 602.6101 states

that the “district court has all the power usually possessed and exercised

by trial courts of general jurisdiction, and is a court of record,” and we’ve

previously said adopting a rule of practice is such a power. Id. § 602.6101

(emphasis added); Critelli, 244 N.W.2d at 569.

As the majority notes, section 602.4202(1) also puts in place a rulemaking procedure requiring that the supreme court submit a

prescribed rule of practice to the legislative counsel and report the rules 31

to the chairs and ranking members of the judiciary committees in both

chambers of the legislature. Iowa Code § 602.4202(1). And as the majority

notes, if the general assembly enacts a bill changing a rule, that enactment

supersedes a conflicting provision in the supreme court’s proposed rule.

Id. § 602.4202(4).

But section 602.4202 doesn’t apply to all rules of appellate

procedure. Instead, the legislature carved out a small subset of rules that

the legislature makes subject to its oversight: rules 6.101 through 6.105,

6.601 through 6.603, and 6.907. Id. § 602.4201(3)(d). Not among them is the rule that addresses pro se supplemental briefs, residing in rule

6.901(2). Stated differently, the legislature only included nine numbered

rules in those it made subject to the legislative notice requirements of

section 602.4202, leaving for the supreme court to adopt all other

appellate rules. See Iowa R. App. P. 6.1301(2) (“The amendment of all

other appellate rules shall be by court order and shall take effect at such

time as the court prescribes.”).

The majority’s claim that the challenged statute “simply mirrors” the

court’s own appellate rule 6.901(2) when it commands courts “shall not

consider” pro se briefs blurs two very different concepts. Let’s be clear:

Rule 6.901(2) expressly permits pro se supplemental briefs. Iowa R. App.

P. 6.901(2)(a). Those briefs, like virtually all briefs, must be filed by a

prescribed deadline. Rule 6.901(2)(a) simply says that pro se

supplemental briefs submitted beyond the deadline “will not be

considered.” Only in a funhouse mirror could the challenged statute that

prohibits any filing of a pro se supplemental brief and any consideration

of it mirror rule 6.901(2), which invites a timely pro se supplemental brief from a criminal defendant and permits the court’s consideration of it. 32

The “three aspect” separation-of-powers analysis the majority

stitches from some of our prior cases strikes me as overwrought. 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

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 potential of one branch’s action “to effect important change in

the equilibrium of power is not immediately evident, and must be

discerned by a careful and perceptive analysis.” Morrison, 487 U.S. at 699,

108 S. Ct. at 2623. The judiciary bears the constitutional duty to decide

cases and, thus, must have access to the tools that are part and parcel to

carrying out this responsibility. By restricting who can file briefs, the

legislature limits the courts’ sources of knowledge—source inextricably

intertwined with the courts constitutional power to decide cases.

Richardson v. Fitzgerald, 132 Iowa 253, 255, 109 N.W. 866, 867 (1906)

(“[A]ny direction by the Legislature that the judicial function shall be

performed in a particular way is a plain violation of the Constitution.”).

Another branch can’t be permitted, through a statute implementing a rule

of practice or otherwise, to disarm the court of the means required to fulfill

the core judicial power. Madison warned in The Federalist No. 48 not only

of the danger presented when one branch “directly and completely” performs the functions of a separate branch but also of the danger when

one branch “posses[es], directly or indirectly, an overruling influence over 33

the others in the administration of their respective powers.” The Federalist

No. 48, at 332 (James Madison). “Certain implied powers must necessarily

result to our Courts of justice from the nature of their institution.” United

States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 34. These powers

must include an ability by the judiciary to summon and consider

information for its decision.

Our prior cases are of little help in resolving the separation of powers

question presented in this case. In Critelli, we held the court had residual

inherent common law power to adopt the procedural rule challenged in that case. 244 N.W.2d at 569. But that case didn’t involve any question

about whether a rule of practice enacted by the legislature usurped the

judiciary’s power to determine for itself the sources of information it could

request or consider in deciding cases.

The majority cites four other cases to suggest we’ve previously

recognized the constitutionality of legislative regulations on court practices

or procedures. Not so. Each of the cases addresses subjects other than

the one in the problematic statute here. Two of the cases, Root v. Toney

and State v. Olsen, analyzed statutes that set certain appellate deadlines.

841 N.W.2d 83, 89–90 (2013); 180 Iowa 97, 99, 162 N.W. 781, 783 (1917).

Neither deadline impacted the court’s ability to perform core powers “to

decide and pronounce a judgment and carry it into effect,” as does the

statute in this case. Klouda, 642 N.W.2d at 261. A third cited case,

Andrews v. Burdick, addressed a challenge to a statute that set a

requirement for the amount in controversy for appeals. 62 Iowa 714, 721,

16 N.W. 275, 279 (1883). That statute thus involved a jurisdictional

limitation about when a case was properly before the court, not a procedure that restricted courts’ abilities to receive and consider briefs.

And the fourth case, Wine v. Jones, analyzed a statute that imposed a filing 34

requirement on an appealing party to separately number and cite the

points of error in the lower court’s ruling. 183 Iowa 1166, 1175, 168 N.W.

318, 320–21 (Iowa 1918). Again, this requirement doesn’t raise potential

impediments to the court’s ability to interpret and decide issues properly

before it.

The majority completely passes on the “shall not consider” language

in the second sentence of Iowa Code section 814.6A(1) and instead focuses

solely on the prohibition on the filing of the briefs in the first sentence.

The majority’s conclusion—that the “shall not consider” directive “is merely tautological surplusage”—rests on a faulty textual analysis. Our

long-established canons of interpretation—fittingly named “The

Surplusage Canon” by Justice Scalia and Bryan Garner in their treatise

Reading Law: Interpretation of Legal Texts—require that every word and

every provision in a statute or constitutional text is to be given effect, if

possible, and not deemed mere surplusage. Antonin Scalia & Bryan A.

Garner, Reading Law: Interpretation of Legal Texts 174 (2012) [hereinafter

Scalia & Garner]. No word should be ignored, and no provision should

needlessly be given an interpretation that causes it to duplicate another

provision or to have no consequence. Id.; accord United States v. Butler,

297 U.S. 1, 65, 56 S. Ct. 312, 319 (1936) (“These words cannot be

meaningless, else they would not have been used.”). The principle is so

well established it’s commonly referred to by its Latin phrase verba cum

effectu sunt accipienda. Scalia & Garner, at 174. Our court has relied on

this principle—that we do not interpret the legislature’s language in

statutes as meaningless or redundant—throughout our jurisprudence.

See, e.g., Iowa Auto Dealers Ass’n v. Iowa Dep’t of Revenue, 301 N.W.2d 760, 765 (Iowa 1981); Petition of Chapman, 890 N.W.2d 853, 857 (Iowa

2017). To do so—to ignore the legislature’s dictates as mere “tautological 35

surplusage”—puts the court on its own collision course with the

separation of powers. The majority’s break with this long-established

judicial interpretive canon brings into focus the problem with the “shall

not consider” language in this statute: If we don’t ignore it, we’re faced with

the intractable separation of powers problem it presents.

The majority asserts that we have allowed criminal defendants to file

pro se supplemental briefs “as a matter of grace.” I resist the view that

appellate rule 6.901(2) was some exercise of the court’s largesse to give

defendants a token chance to file something. Courts are too busy and time too limited. Rather, I view the rule as the court’s invitation to receive

directly from criminal defendants arguments the court deemed potentially

relevant—and potentially useful—to its decision-making process. See,

e.g., State v. Hanes, 790 N.W.2d 545, 556–57 (Iowa 2010) (evaluating, and

finding merit in, arguments offered in the defendant’s pro se supplemental

brief). I can’t say that section 814.6A’s briefing prohibition doesn’t create

some potential efficiencies; nor can I say that it does. But even if the

challenged statute provides useful procedural prescriptions, it doesn’t

follow that they are constitutional. “[T]hat a given law or procedure is

efficient, convenient, and useful in facilitating functions of government,

standing alone, will not save it if it is contrary to the Constitution,” for

“[c]onvenience and efficiency are not the primary objectives—or the

hallmarks—of democratic government.” Free Enter. Fund v. Pub. Co. Acct.

Oversight Bd., 561 U.S. 477, 499, 130 S. Ct. 3138, 3156 (2010) (alteration

in original) (quoting Bowsher v. Synar, 478 U.S. 714, 736, 106 S. Ct. 3181,

3193 (1986)).

Under the Iowa Constitution, the supreme court constitutes 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 legislative 36

power to control the court’s jurisdiction is the power to control what

parties and cases may come before the court and when. See In re Marriage

of Mantz, 266 N.W.2d 758, 759 (Iowa 1978); Franklin v. Bonner, 201 Iowa

516, 518, 207 N.W. 778, 779 (1926). But once a case is before the court,

the legislature doesn’t have the power to control the arguments the parties

may make, just as it doesn’t have the power to control what courts may

use, or consider, in arriving at their decisions. A statute that purports to

restrict both the court’s sources of information and what courts may

contemplate in the decision-making process necessarily infringes the judiciary’s ability to interpret the law.

As Justice Scalia said in Plaut v. Spendthrift Farm, Inc., 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.” 514 U.S. at 239, 115 S. Ct. at 1463. I find the majority’s holding

today troubling, not only for the separation of powers violation it approves

in this case but also for the constitutional safeguards it removes in future

cases.

Could the legislature now tell the judiciary it shall not permit and

shall not consider briefs of amicus curiae? Could the legislature tell the

judiciary it shall not permit and shall not consider oral arguments? Or

could the legislature forbid or add other particular sources of information

to a court’s decision-making sources? After all, if the legislature can forbid

consideration of a brief in toto, it arguably can forbid consideration of

particular components of briefs. For example, could the legislature tell the

judiciary it “shall not consider” citations to law review articles in deciding cases? Or that courts “shall not consider” arguments in briefs that the

words in a law should be given their ordinary meanings at the time the law 37

was enacted (i.e., an antioriginalist requirement)? Having now permitted

the legislature to dictate the sources of information the court may solicit

and use in its decision-making process, it’s hard to see how any of these

things are off-limits. And once this particular separation-of-powers

safeguard is removed, a wide assortment of constitutional abuses becomes

possible.

In response, the majority in a footnote demurs that these

hypotheticals are not before us but then offers this: “[W]e agree there are

constitutional limits to the legislative department’s authority to regulate practice and procedure in Iowa’s courts.” This concession is, of course, a

correct statement of Iowa constitutional law, but it can’t be reconciled with

the incorrect statement the majority enunciates and relies on for its

holding in this case: that the Iowa constitution “reserves to the legislative

department authority to regulate the practice and procedure in all Iowa

courts.” Again, that’s not what the constitution says—rather, it vests the

legislature with the power “to provide for a general system of practice” for

the courts but nowhere empowers the legislature to implement procedural

rules that restrict what courts may consider in deciding cases. Iowa Const.

art. V, § 14 (emphasis added). And it’s not what the constitution does—

rather, it limits one branch’s “exercise of powers properly belonging to”

another branch through the constitutional separation of powers. Iowa

Const. art. III, Three Separate Departments, § 1.

The majority’s suggestion in the footnote that in the future we might

decide differently challenges to these hypothetical legislative commands is

faint consolation. Precedent matters. See Youngblut v. Youngblut, 945

N.W.2d 25, 44 (Iowa 2020) (McDonald, J., dissenting) (“A compelling reason to change the law ‘require[s] the highest possible showing that a

precedent should be overruled before taking such a step.’ ” (alteration in 38

original) (quoting Brewer-Strong v. HNI Corp., 913 N.W.2d 235, 249 (Iowa

2018))). As Justice Scalia wrote:

For when, in writing for the majority of the Court, I adopt a general rule, and say, “This is the basis of our decision,” I not only constrain lower courts, I constrain myself as well. If the next case should have such different facts that my political or policy preferences regarding the outcome are quite the opposite, I will be unable to indulge those preferences; I have committed myself to the governing principle.

Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175,

1179 (1989). The majority today commits to a governing principle with

unconstitutional moorings that the majority itself appears unable to

reconcile.

In addition, in some contexts, the legislature’s refusal to permit a

defendant to file a supplemental brief when represented by counsel may

give rise to serious constitutional problems. For instance, when a criminal

defendant’s lawyer files an Anders brief arguing that any potential issues

in the appeal are frivolous, the Constitution likely entitles the defendant

to file a pro se response. See Anders v. California, 386 U.S. 738, 744–45,

87 S. Ct. 1396, 1400 (1967). Under Anders v. California, an attorney who

wishes to withdraw must file a motion “accompanied by a brief referring to anything in the record that might arguably support the appeal,” including

grounds the counsel thinks frivolous, and provide a copy of the brief to the

defendant. Id. at 744, 87 S. Ct. at 1400. The defendant is then allowed

“to raise any points that he chooses”—either pro se or by other counsel—

supporting the appeal for the court to consider. Id.

Iowa Rule of Appellate Procedure 6.1005 formulates the Anders

briefing process in Iowa. If defense counsel files a motion to withdraw, we

direct that a defendant desiring to continue with the appeal “shall . . . rais[e] any issues [the defendant] wants to pursue” directly with the 39

supreme court. Iowa R. App. P. 6.1005(3)(b). Although states have

modified other aspects of the Anders framework, “notifying the defendant

of [the] withdrawal motion and giving him an opportunity to respond

remain a standard component of state withdrawal procedures.” 3 Wayne

R. LaFave et al., Criminal Procedure § 11.2(c), at 721 n.122 (4th ed. 2020).

Yet under Iowa Code section 814.6A, the clerk of the supreme court would

be directed not to accept the defendant’s filing. So when the defendant’s

champion has asked to withdraw and urged the court to dismiss the

appeal, the statute now prevents the criminal defendant from registering a protest.

No one would suggest that the judiciary could tell the legislature

what kind of communications it could consider in the exercise of its

constitutional responsibilities. For instance, no one would suggest that

this court could tell the legislature to consider only communications

through registered lobbyists and not directly from citizens in the crafting

of legislation. The legislature has no power to engage in similar

interventions in the judicial process and override a duly promulgated rule

of this court relating to what it may consider. For those who prize an

independent judiciary, free of unconstitutional transient intervention by

political branches, this case takes us in an undeniably undesirable

direction.

The framers recognized “parchment barriers” alone were insufficient

to check another branch’s “encroaching spirit of power.” The Federalist

No. 48, at 333 (James Madison). The constitutional system’s actors thus,

it was hoped, would assert and defend their powers acting with “the

necessary constitutional means, and personal motives, to resist encroachments of the others.” The Federalist No. 51, at 349 (James

Madison). In this way, the actors in each branch would serve as a “centinel 40

over the public rights.” Id. And nowhere was the framers’ concern for

potential overreach aimed more directly than at the legislature, since with

“[i]ts constitutional powers being at once more extensive and less

susceptible of precise limits, it can with the greater facility, mask under

complicated and indirect measures, the encroachments which it makes”

on the other branches. The Federalist No. 48, at 334 (James Madison).

An approach to the law that extols a bedrock principle but

repeatedly compromises on the edges leads to the washing away of the

principle along with the edges. If a statute and the constitution conflict, “then courts must resolve that dispute and, . . . follow the higher law of

the Constitution.” Seila Law LLC v. Consumer Fin. Prot. Bureau, 591 U.S.

___, ___, 140 S. Ct. 2183, 2219 (2020) (Thomas, J., concurring in part and

dissenting in part) (alteration in original) (quoting Murphy v. Nat’l

Collegiate Athletic Ass’n, 584 U.S. ___, ___, 138 S. Ct. 1461, 1486 (2018)

(Thomas, J., concurring)). In the challenged statute, a judicial power is

being exercised by the legislature. I concur in the majority’s opinion in

division II on the evidentiary issues presented. But I respectfully dissent

from division III and would hold section 814.6A unconstitutional as a

violation of the separation of powers.

Christensen, C.J., and Appel, J., join this concurrence in part and

dissent in part.