author: KLAPHAKE, Judge.

text:
    STATE FARM FIRE AND CASUALTY COMPANY, Appellant, v. Gary Harold SCHWICH, Respondent, Jeanne Carol Stone, Respondent, Brandon Mitchell Hackbarth, as Trustee for the Next of Kin of Alicia Sue Hackbarth, Respondent.
    No. A07-1093.
    Court of Appeals of Minnesota.
    May 20, 2008.

      C. Todd Koebele, William L. Moran, Scott G. Williams, Murnane Brandt, St. Paul, MN, for appellant.
    Samuel A. McCloud, McCloud & Heef-ner, P.A., Shakopee, MN, for respondent Schwich.
    Jeanne Carol Stone, Minnesota Correctional Facility, Attn: Warden Mark Carey, Shakopee, MN, pro se respondent.

      Sharon L. Van Dyck, Schwebel, Goetz & Sieben, Minneapolis, MN, Michael D. Swor, Swor & Gatto, P.A., St. Paul, MN, for respondent Hackbarth.
    Considered and decided by SCHELLHAS, Presiding Judge; KLAPHAKE, Judge; and HALBROOKS, Judge.
   OPINION

KLAPHAKE, Judge.

In this declaratory judgment action, appellant State Farm Fire and Casualty Company challenges the district court’s grant of summary judgment to its insured, respondent Gary Harold Schwich. The district court ruled that appellant had a duty to defend and indemnify Schwich under the terms of his homeowners’ policy for the wrongful death of Alicia Sue Hack-barth. Schwich provided Hackbarth with methamphetamine for injection, which was a partial cause of her death.

Because intentional, willful, and malicious acts are excluded from coverage and intent to injure can be inferred from the facts and circumstances of Hackbarth’s death, and because it is against public policy to require a general liability insurance policy to cover deliberate and serious criminal acts, we reverse.

FACTS

State Farm Fire and Casualty Company (State Farm) began a declaratory judgment action to determine its duty to defend and indemnify its insured, respondent Gary Harold Schwich, for the death of Alicia Sue Hackbarth. For purposes of summary judgment, State Farm, Schwich, and respondent Brandon Mitchell Hack-barth, who was trustee for the next of kin of Alicia Hackbarth, stipulated to three facts, in addition to the other evidence presented: (1) Schwich provided Hack-barth with methamphetamine (meth) on the night she died; (2) the meth was at least one of the causes of Hackbarth’s death; and (3) although Schwich intentionally gave Hackbarth the drug, he did not intend to kill her.

In granting summary judgment in favor of respondents, the district court concluded that (1) Hackbarth’s death was not intentional and therefore her death was an accident or occurrence under the policy; (2) liability for Hackbarth’s death was not excluded as an intentional, willful, or malicious act, because the harm in question was not substantially certain to result from the insured’s conduct; and (3) appellant failed to show that insurance coverage for a criminal act should be void as against public policy.

At the time of her death in March 2005, Hackbarth lived at Sehwich’s home and had resided there intermittently for about nine months. While living with Schwich, Hackbarth drank heavily, smoked marijuana, and snorted meth, possibly on a daily basis. On March 10, 2005, another friend of Schwich’s, Jeanne Carol Stone, moved in; Stone also habitually used meth. Unlike Hackbarth, both Schwich and Stone preferred to inject meth rather than to snort or smoke it, accelerating the onset of the drug’s effect. On March 10, after injecting meth with breakfast, Schwich left for work; despite his heavy meth habit, Schwich continued to work full time as a well contractor. The two women spent the day together. Hackbarth snorted meth twice and drank steadily all day long. When Schwich returned home in the evening, he ingested his second dose of meth and then left with Stone to run errands and to stop at some bars. Hackbarth remained at home and continued to drink.

After Schwich and Stone returned home, Schwich had a third dose of meth. Stone requested meth from Schwich for herself and for Hackbarth. Stone testified that Schwich pressured Hackbarth to try injecting, rather than snorting, the meth and that he prepared two syringes of meth. Stone helped Hackbarth inject the meth, after which Stone retired for the night.

Schwich fell asleep in the master bedroom while Hackbarth sat in a Jacuzzi located in the master bathroom. Schwich woke after a couple of hours, heard the jets in the Jacuzzi and, upon investigating, found Hackbarth floating face down in the Jacuzzi. He called Stone, who attempted to resuscitate Hackbarth. Stone testified that initially Schwich assisted her with Hackbarth, but then he left the room and scurried around the house, disposing of drugs and paraphernalia, and putting his meth-tainted robe in the washing machine. Stone called 911 and continued CPR until the paramedics arrived some ten minutes later. According to the coroner’s report, Hackbarth died of cardiac arrhythmia, caused by the underlying factors of acute meth and ethanol intoxication, and ar-rhythmogenic right ventricular cardiomyo-pathy, with contributing factors of chronic alcoholism and cigarette smoking.

Schwich had used meth for at least ten years, without apparent ill effects. He testified that he did not consider it to be a dangerous drug and had never heard of anyone overdosing or dying from use of meth, although he acknowledged that a former girlfriend had gone through drug treatment twice; it was an expensive habit; and he would not want his daughter to use it. Schwich clearly knew that meth was illegal; his house and grounds were monitored by closed-circuit cameras and protected by various measures, including hidden microphones and a locked gate.

Schwich was tried and convicted for aiding and abetting third-degree murder: causing the death of another by administering a schedule I controlled substance without intent to cause death. Minn.Stat. § 609.195(b) (2004). Stone pleaded guilty to third-degree unintentional murder. Hackbarth’s next of kin initiated a wrongful death action against Schwich, who referred the lawsuit to his insurer, State Farm. State Farm began defending Schwich under a reservation of rights and initiated this declaratory judgment action.

ISSUES

1. Is liability for Hackbarth’s death excluded from coverage as an intentional act?

2. Is liability for Hackbarth’s death excluded from coverage as a willful and malicious act?

3. As a matter of public policy, should a general liability insurance policy provide coverage for liability resulting from a serious criminal act?

ANALYSIS

Construction of an insurance contract is a question of law subject to de novo review. B.M.B. v. State Farm Fire & Cas. Co., 664 N.W.2d 817, 821 (Minn.2003). When construing a contract, courts give words their plain and ordinary meaning and resolve any ambiguity in favor of the insured. Am. Family Ins. Co. v. Walser, 628 N.W.2d 605, 609 (Minn.2001). We interpret exclusions from coverage under general rules of contract construction, as well; we construe the language of the exclusion in accordance with the expectations of the insured and strictly against the insurer. Id. at 613.

Intentional Act Exclusion

Schwieh’s homeowners’ policy provides coverage for an “occurrence,” which it defines as an “accident,” and excludes coverage for expected injuries or injuries caused by intentional acts. Although the policy provides no definition of “accident,” Walser defines “accident” as “an unexpected, unforeseen, or undesigned happening or consequence,” the opposite of “intentional conduct,” by which it means conduct “where there is a specific intent to cause injury.” Id. at 611-12. The questions of whether an injury is the result of an accident and whether coverage is excluded because the injury is the result of an intentional act are “for all practical purposes, identical issues.” Tower Ins. Co. v. Judge, 840 F.Supp. 679, 690 (D.Minn.1993). Thus, the policy excludes coverage when the insured acts with specific intent to cause injury. B.M.B., 664 N.W.2d at 821.

An insurer may establish intent by offering proof of actual intent to injure. Id. In Walser, although the insured intended the act (pulling a fellow student from the rim of a basketball hoop), he intended no injury, even though the injury was the natural and probable consequence of the insured’s action. 628 N.W.2d at 613-14. The supreme court concluded that the resulting injury was unintended or unexpected, and thus not intentional; therefore, the injury was covered under the policy. Id. at 612-13.

But when actual intent to injure is lacking, an insurer may prove intent to injure by inferring intent as a matter of law. B.M.B., 664 N.W.2d at 822; State Farm Fire & Cas. Co. v. Wicka, 474 N.W.2d 324, 329 (Minn.1991). “The general rule is that intent is inferred as a matter of law when the nature and circumstances of the insured’s act are such that harm is substantially certain to result.” B.M.B., 664 N.W.2d at 822 (quotation omitted).

Generally, courts infer intent to injure as a matter of law when the injury involves a criminal act of a serious nature. See Diocese of Winona v. Interstate Fire & Cas. Co., 89 F.3d 1386, 1391 (8th Cir.1996) (continuing to give known pedophile pastoral assignments); Woida v. North Star Mut. Ins. Co., 306 N.W.2d 570, 573 (Minn.1981) (shooting at an occupied truck with a high-powered rifle); Iowa Kemper Ins. Co. v. Stone, 269 N.W.2d 885, 887 (Minn.1978) (wrapping fist with belt and buckle before engaging in fist fight); Cont’l Western Ins. Co. v. Tool, 309 Minn. 169, 177-78, 244 N.W.2d 121, 126 (1976) (committing armed robbery); State Farm Fire & Cas. Co. v. Neises, 598 N.W.2d 709, 712 (Minn.App.1999), review denied (Minn. Nov. 17, 1999) (disinterring, dismembering, and displaying child’s corpse).

The parties stipulated that although he intentionally gave Hackbarth meth, Schwich did not intend to kill her. Schwich further testified that he did not believe meth to be harmful or that death could result from using meth, although he acknowledged that a person could become addicted and that it is illegal. When the act is egregious enough, however, courts decline to consider whether the actor thought his actions were harmless. See, e.g., Am. Family Mut. Ins. Co. v. Peterson, 405 N.W.2d 418, 421 n. 4 (Minn.1987) (opining that “insured’s subjective view that his sexual overtures were not harmful is deemed irrelevant” and citing several supportive cases). Rather, the court must weigh whether the actor “knew or should have known that there was substantial probability that certain consequences will result from his actions.... The results cease to be expected and coverage is present as the probability that the consequences will follow decreases and becomes less than a substantial probability.” Diocese of Winona, 89 F.3d at 1391 (quotation omitted). The record includes exhibits about the dangers of meth and such information is widely available in public service brochures, on billboards, and in the media; purchase of medications containing the meth precursor drug pseudoephedrine is restricted. It strains credibility for Schwich to assert that he was unaware of the serious dangers posed by meth use. Further, Schwich actively encouraged Hackbarth to inject meth, a potentially more dangerous means of consuming the drug.

We hold that when an insured has knowingly provided an injured party with methamphetamine, by preparing a syringe and encouraging the injured party to inject the drug, intent to injure is inferred as a matter of law, and therefore coverage under the policy is excluded.

Willful and Malicious Act

Schwich’s policy also excludes coverage for willful and malicious acts, which are not defined by the policy. As a legal matter, an act that a person knows is wrong and unlawful is malicious and willful. Neises, 598 N.W.2d at 712 (quotation omitted). The malicious act exclusion is applied to harm resulting from an act, without regard to whether the act was directed at the injured party. Id.

In some ways, this exclusion parallels our discussion of inferred intent. In Walser, the court stated that the purpose of the intentional act exclusion is to exclude coverage for wanton and malicious acts; in such a case, absent specific intent, a court may infer intent to injure as a matter of law. 628 N.W.2d at 613. Cases involving malicious acts are usually “factually more extreme”: the actor knows or should have known that harm was substantially certain to result, but acts with a deliberate and calculated indifference to the risk of injury. Id. at 613-14 (quotation omitted); see, e.g., State Farm Fire & Cas. Co. v. Williams, 355 N.W.2d 421, 425 (Minn.1984) (concluding that sexual assault on a physically disabled person was an intentional act as a matter of law); Neises, 598 N.W.2d at 712 (holding that disinterring, dismembering, and displaying child’s corpse was malicious and willful act).

Schwich provided meth to Hackbarth; although he stated that he did not think meth was dangerous, he did know that it was unlawful. In addition, although Hackbarth previously had only inhaled meth, Schwich pressured her to inject herself with meth, a more dangerous delivery method. Schwich knew that providing Hackbarth with meth was unlawful, but he did so regardless of its illegality, see Neises, 598 N.W.2d at 712, and did it with a deliberate and calculated indifference to the risk of injury. See Walser, 628 N.W.2d at 613. Under either analysis, we conclude that his providing Hackbarth with meth and pressuring her to inject it was a malicious and willful act, within the meaning of the exclusion. Therefore, the district court erred by finding coverage under the policy.

Public Policy

Finally, State Farm argues that it should be against public policy to provide coverage for serious criminal acts. Courts may declare a contract void as against public policy, but it is “a very delicate power” invoked only in “cases free from doubt.” United Steelworkers of Am., Local 6115 v. Quadna Mtn. Corp., 435 N.W.2d 120, 122-23 (Minn.App.1989), review denied (Minn. Mar. 29, 1989).

Despite this limitation, we will declare an insurance contract void as against public policy under certain circumstances. One consideration stems from the nature of the insurance contract. An insured and an insurer enter into a contract to protect the insured against the occurrence of certain hazards; the insurer spreads the risk across a large pool of insureds to provide liability coverage at reasonable rates. But an insured is not, by commission of an intentional act, permitted to consciously control the risks covered by a policy. Diocese of Winona, 89 F.3d at 1391; Rohrer v. Rick, 529 N.W.2d 406, 409 (Minn.App.1995). The mutual understanding of the parties limits coverage to the hazards they intended to be covered by contract. Id. at 408. When an insured demands coverage for a serious criminal act, the insurer must spread this risk among the entire pool of insureds, forcing it to pay for a deliberate and avoidable act that was outside the scope of occurrences either party intended to be covered in the insurance contract.

Further, it is against public policy to “licens[e] intentional and unlawful harmful aet[s].” Stone, 269 N.W.2d at 887. Minnesota courts have repeatedly declined to find liability coverage for unlawful conduct and serious criminal acts. See R.W. v. T.F., 528 N.W.2d 869, 873 (Minn.1995) (refusing, on public policy grounds, to “promote the abdication of personal responsibility by providing insurance coverage” for knowing transmission of sexually transmitted disease); Peterson, 405 N.W.2d at 422 (stating that purpose of intentional act exclusion is “to deny insured license to commit wanton and malicious acts” and noting that “we are not inclined to create a situation where the more drunk an insured can prove himself to be, the more likely he will have insurance coverage”); Nat’l Union Fire Ins. Co. v. Gates, 530 N.W.2d 223, 227 (Minn.App.1995) (denying on public policy grounds coverage for criminal acts of physical and sexual abuse), review denied (Minn. June 23, 1995).

Although we have not addressed directly the question of liability coverage for injury as the result of providing a Schedule I drug, courts of other jurisdictions have declined to find coverage for injuries related to their use on public policy grounds. In State Farm Fire & Cas. Co. v. Baer, 745 F.Supp. 595, 597 (N.D.Cal.1990), the court held that the insured’s act of providing an illegal drug to another, despite the fact that the insured intended no harm, precluded coverage as against public policy. The court noted that Schedule I drugs are the most dangerous illegal drugs, with high potential for abuse, no accepted medical use, and no accepted safe standards for use. Id. Although the drug at issue in Baer was “Ecstasy,” the same reasoning applies to meth, also a Schedule I drug.

Likewise, in Minnesota Fire & Cas. Co. v. Greenfield, 579 Pa. 333, 855 A.2d 854, 866 (2004), the Pennsylvania Supreme Court held that an insurance policy provides no coverage for injuries resulting when an insured provided the injured party with heroin, a Schedule I drug. The court commented that the public interest in controlling the spread of Schedule I drugs demands the invalidation of insurance coverage related to heroin use on public policy grounds. Id. at 867.

Insurance policies are intended to protect an insured from the consequences of unintended and accidental actions, even those undertaken with breathtaking stupidity and resulting in serious injury. But they are not intended to relieve an insured from the consequences of serious criminal acts, and we, as a matter of public policy, cannot condone coverage for such acts. We therefore hold that extending liability coverage for the act of providing an injured party with meth by preparing a syringe and pressuring the injured party to inject the drug is against public policy.

DECISION

Schwich’s act of supplying the victim, Alicia Hackbarth, with meth, by preparing a syringe and urging her to inject the drug, is both a willful and malicious act and an act for which intent may be inferred. Further, coverage for such acts is against public policy. We therefore conclude that this act is excluded from liability coverage under Schwich’s homeowners’ policy, and we therefore reverse.

Reversed.

      . In limited circumstances, courts decline to find inferred intent despite an actor's commission of a serious criminal act. Generally, this occurs when the actor is deemed to be unable to form the requisite intent because of serious mental illness. See B.M.B., 664 N.W.2d at 826 (answering certified question by concluding that question of whether insured could form intent to injure despite mental illness must be submitted to jury); Wicka, 474 N.W.2d at 331 (holding no inferred intent where the mentally ill actor was unable to discern nature or wrongfulness of act or to control conduct). Courts also decline to infer intent when a potentially criminal act involves minor or reflexive conduct. See Brown v. State Auto. & Cas. Underwriters, 293 N.W.2d 822 (Minn.1980) (holding that question of whether insured struck baggage clerk reflexively or intentionally during struggle over baggage should be submitted to jury for purposes of determining insurance coverage); Fanners Ins. Exchange v. Sipple, 255 N.W.2d 373, 377 (Minn.1977) (question of whether insured struck another intentionally or reflexively during a heated exchange should be submitted to jury for purposes of determining insurance coverage).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Robert Raymond LOEFFEL, Appellant.
    No. A07-1148.
    Court of Appeals of Minnesota.
    May 20, 2008.

      Lori Swanson, Attorney General, and Kenneth R. White, Office of Lawyers Professional Responsibility, St. Paul, MN, for respondent.
    Carson J. Heefner, McCloud & Heefner P.A., Shakopee, MN, for appellant.
    Considered and decided by KLAPHAKE, Presiding Judge; STONEBURNER, Judge; and WRIGHT, Judge.
   OPINION

KLAPHAKE, Judge.

After appellant Robert Loeffel was charged with second-degree driving while impaired (DWI) under Minn.Stat. § 169A.25 (2006), he challenged the district court’s ruling allowing the enhanced charge based on a prior 2002 civil license revocation in Wisconsin. He claims that enhancement was improper because Wisconsin, unlike Minnesota, does not afford a person suspected of driving under the influence with any right to consult with counsel before submitting to chemical testing. Because State v. Schmidt, 712 N.W.2d 530, 539 (Minn.2006), allows a pri- or foreign conviction that was based on a chemical test decision made without the limited right to counsel to be used to enhance a later Minnesota DWI offense, we conclude that the rationale of Schmidt is applicable when the underlying enhancement offense was civil in nature, and we affirm.

FACTS

The facts of this case are not in dispute. On August 6, 2006, a Nicollet County peace officer discovered appellant near his vehicle and noticed indicia of his intoxication. The officer required appellant to submit to an Intoxilyzer test that revealed an alcohol concentration of .28. Appellant was charged by amended complaint with second-degree DWI under Minn.Stat. § 169A.25 (2006), as well as less serious offenses stemming from the same conduct. The district court denied appellant’s motion to dismiss the second-degree charge based on his claim that a 2002 civil license revocation in Wisconsin could not be used to enhance the DWI charge to a second-degree offense. Appellant entered a guilty plea under State v. Lothenbach, 296 N.W.2d 854 (Minn.1980), stipulating to the facts to preserve the right to appeal the charge enhancement issue.

ISSUE

Did the district court err in declining to dismiss appellant’s enhanced charge of second-degree DWI when the enhancement was based on a prior civil license revocation in Wisconsin?

ANALYSIS

Applying the DWI statute to undisputed facts involves a question of law, and this court reviews questions of law de novo. State v. Wiltgen, 737 N.W.2d 561, 566 (Minn.2007). Under Minnesota law, the state may use a “[qualified prior impaired driving incident” to enhance a current DWI charge when the prior incident is either an “impaired driving conviction[ ]” or an “impaired driving-related loss[ ] of license.” Minn.Stat. § 169A.03, subd. 22 (2006). The statute specifically states that a prior license “revocation” is a prior impaired driving-related loss of license. Id. at subd. 21. Thus, under the plain language of Minn.Stat. § 169A.03 (2006), appellant’s license revocation in Wisconsin for operating a motor vehicle while intoxicated qualifies as a basis for charge enhancement in Minnesota. Appellant contends, however, that his Wisconsin revocation should not be used to enhance his Minnesota charge because it was achieved without his having the right to consult with an attorney prior to deciding whether to submit to testing, a requirement under Minnesota law. See Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn.1991) (allowing a limited right to counsel before a defendant is asked to submit to chemical testing).

This issue was addressed in State v. Schmidt, 712 N.W.2d 530 (Minn.2006). There, the supreme court ruled that a defendant’s prior South Dakota DWI convictions, which were based on chemical test decisions that were made without the limited right to counsel, could be used to enhance the defendant’s Minnesota DWI charge. Id. at 539. The Schmidt court stated that Minnesota’s “interest in preserving” the limited right to counsel granted in Friedman “is not sufficient to prohibit the use of’ foreign convictions to enhance a Minnesota DWI charge. Schmidt, 712 N.W.2d at 539.

Appellant relies on State v. Bergh, 679 N.W.2d 734 (Minn.App.2004), a case issued by this court two years prior to the issuance of Schmidt. In Bergh, this court held that a Colorado driver’s license revocation based on an uncounseled decision to submit to chemical testing could not be used to enhance a later Minnesota DWI charge. Id. at 738. Appellant contends that because appellant’s prior revocation was civil, as in Bergh, rather than criminal, as in Schmidt, the district court erred by allowing enhancement of his charge to a second-degree offense. In Schmidt, however, the supreme court’s holding was not specifically based on whether the underlying offense was civil or criminal, and the court noted that enhancement of an impaired driving offense could be based on “a prior impaired driving conviction or an impaired driving-related loss of license.” Schmidt, 712 N.W.2d at 533. For this reason, we decline to read Schmidt in the narrow manner urged by appellant. We therefore conclude that Bergh is no longer controlling law-even in Bergh this court declined to distinguish between civil and criminal offenses for purposes of later enhancement of criminal charges, stating that “although some cases have alluded to a distinction between civil and criminal labels in determining enhancement issues, we deem such an approach to be specious.” Bergh, 679 N.W.2d at 737. Because the plain language of Minn.Stat. ch. 169A and Schmidt support enhancement of appellant’s DWI charge, we observe no error in the district court’s decision allowing enhancement of the charge.

DECISION

We affirm the district court’s ruling allowing enhancement of appellant’s DWI charge.

Affirmed.


author: CRIPPEN, Judge.

text:
    STATE of Minnesota, Appellant, v. Dale Lee UNDERDAHL, Respondent, Timothy Arlen Brunner, Respondent.
    Nos. A07-2293, A07-2428.
    Court of Appeals of Minnesota.
    May 20, 2008.

      Lori Swanson, Attorney General, St. Paul, MN and James C. Backstrom, Dakota County Attorney, Jessica A. Bierwerth, Helen R. Brosnahan, Assistant County Attorneys, Hastings, MN, for appellant.
    Jeffrey S. Sheridan, Strandemo, Sheridan & Dulas, P.A., Eagan, MN, for respondent Dale Lee Underdahl.
    Derek A. Patrin, Meaney & Patrin, P.A., Hopkins, MN, for respondent Timothy Ar-len Brunner.
    Considered and decided by PETERSON, Presiding Judge; TOUSSAINT, Chief Judge; and CRIPPEN, Judge.
   OPINION

CRIPPEN, Judge.

In this consolidated appeal from pretrial orders granting defense motions for disclosure of the computer source code for the Minnesota Model of the Intoxilyzer 5000EN, the state argues that the district court abused its discretion in ordering discovery because respondents failed to show that the source code is relevant and in the state’s possession or control. The state asserts that due process does not require disclosure of the source code. Because respondents made an insufficient showing that the source code may relate to their guilt or innocence, we reverse.

FACTS

These appeals are taken from the district court’s decisions to grant respondents’ motions to discover the source code for the Minnesota Model of the Intoxilyzer 5000EN (Intoxilyzer), the machine used to test respondents’ breath for alcohol concentration. Respondents Timothy Arlen Brunner and Dale Lee Underdahl were each charged with driving while impaired after the Intoxilyzer tests registered an alcohol concentration above .08. During pretrial proceedings, respondents anticipated the state’s evidence of the Intoxilyzer test readings and moved for discovery of the computer source code, the original text of the computer program by which the instrument operates.

The state opposed respondents’ motions, arguing that the source code was not relevant and, in any event, was not within its possession or control. The district court disagreed in both cases, finding the source code discoverable and rejecting the state’s possession or control argument. The court found that respondent Brunner “cannot assess the reliability of the testing method without access to the software that controls the testing process.” In its conclusion regarding respondent Underdahl, the court stated that “[b]eeause the Intoxi-lyzer [ ] provides the only evidence of [Un-derdahl’s] alcohol concentration that may be used to prove his guilt, evidence regarding the operation of that instrument is relevant to this case.” The state appeals from both decisions.

ISSUE

Did respondents make an adequate showing that the Intoxilyzer source code may relate to their guilt or innocence so as to require the state to disclose it?'

ANALYSIS

The state argues that the district court in each case erred in granting additional discovery because respondents have not shown that the source code is relevant. They also assert that the source code is not in the state’s possession or control, that it is available to respondents, and that due process does not require that the source code be disclosed.

The district court has wide discretion in granting or denying a discovery request and, absent a clear abuse of discretion, that decision will generally be affirmed. State v. Willis, 559 N.W.2d 693, 698 (Minn.1997); Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 921 (Minn.1990). We review a district court’s evidentiary rulings for an abuse of discretion, determining whether “the district court acted arbitrarily, capriciously, or contrary to legal usage.” State v. Profit, 591 N.W.2d 451, 464 n. 3 (Minn.1999) (quotation omitted).

The rules of criminal procedure allow for broad discovery. See State v. Paradee, 403 N.W.2d 640, 642 (Minn.1987). And limitations on discovery imposed through interpretation of the rules must rest on sound policy grounds. State v. Deal, 740 N.W.2d 755, 763 (Minn.2007) (quoting Anderson v. Florence, 288 Minn. 351, 357, 181 N.W.2d 873, 877 (1970)). Nonetheless, “discovery rules are not meant to be used for fishing expeditions.” State v. Hunter, 349 N.W.2d 865, 866 (Minn.App.1984).

Minn. R.Crim. P. 9.01 controls disclosure by the prosecution in gross misdemeanor and felony cases, and makes certain disclosures mandatory. Other disclosures are discretionary and may be ordered by the court. See id., subd. 2. Under the rule, the district court may exercise its discretion and require the prosecution to disclose material and information if the defendant shows “that the information may relate to the guilt or innocence of the defendant or negate the guilt or reduce the culpability of the defendant as to the offense charged.” Id., subd. 2(3). We have held that the request must call for relevant material and must be reasonably specific. State v. Lynch, 443 N.W.2d 848, 852 (Minn.App.1989), review denied (Minn. Sept. 15, 1989).

The state argues that the results of an Intoxilyzer breath test are presumed to be reliable under Minn.Stat. § 634.16 (2006), which allows the results of a breath test to be admitted “in evidence without antecedent expert testimony that an ... approved breath-testing instrument provides a trustworthy and reliable measure of the alcohol in the breath.” Indeed, the Minnesota Supreme Court recently referred to the statute’s “presumption of reliability.” In re Comm’r of Pub. Safety, 735 N.W.2d 706, 711 (Minn.2007) (Underdahl I).

In Underdahl I, the supreme court affirmed this court’s denial of the commissioner’s petition for a writ of prohibition to prevent the district court from enforcing its order granting Underdahl’s motion for discovery of the source code. Id. at 708. But the court did not, as respondents claim, determine that the source code had been shown to “relate to the guilt or innocence of the defendant,” under Minn. R.Crim. P. 9.01, subd. 2(3). The supreme court in Underdahl I, reviewing only the denial of a petition for prohibition, and thus examining whether the district court could act on challenges to the Intoxilyzer, did not reach the question of what showing of relevancy might be necessary to entitle a driver, in either a criminal or implied consent proceeding, to discovery of the source code. See id. at 711 (holding that the implied consent statute permits a challenge to the reliability of the test, and that a declaratory judgment action is not the sole means of challenge).

The Underdahl I court addressed the commissioner’s argument that the “presumption of trustworthiness” provided in Minn.Stat. § 634.16 “[took] away the district court’s jurisdiction over challenges to the reliability of individual [Intoxilyzer] breath results.” Underdahl I, 735 N.W.2d at 710. The court noted that a driver may challenge the reliability of the test method under Minn.Stat. § 169A.53, subd. 3(b)(10). Id. at 711. The court held that “the commissioner’s argument that the district court lacks jurisdiction” over such a challenge “necessarily fails.” Id. But the court did not decide, nor did it discuss the extent of the showing that a driver making a challenge under that statute might be required to make in order to obtain discovery of the source code.

In these cases, respondents Brun-ner and Underdahl made inadequate showings in the district court on the relevancy of the source code to a plausible challenge to the reliability of the Intoxilyzer. Respondent Brunner provided the district court with a copy of the written testimony of Dr. David Wagner, a computer scientist, before a congressional committee inquiring into computerized voting systems. Although this testimony includes some explanation of what a “source code” is in general, it has no specific application to the Intoxilyzer or to the operation of breath-testing instruments. Respondent Brunner did not provide any affidavit from an expert on the design or operation of the Intoxilyzer or breath-testing instruments more generally. Accordingly, the district court was without any record from which to determine that the disclosure of the source code would “relate to the guilt or innocence of the defendant,” or would lead to the discovery or development of admissible evidence on the reliability of the In-toxilyzer.

Respondent Underdahl also failed to make an adequate record in the district court. Underdahl did not even make a showing on the background of source codes generally, which the Wagner document in the Brunner file at least provides. As in the Brunner file, the only expert affidavit bearing directly on the Intoxilyzer source code comes from Glenn Hardin, a BCA toxicology supervisor, stating that the BCA conducted extensive instrument validation testing as part of the Intoxilyzer approval process, that the results of the testing provided no reason to doubt the accuracy and reliability of the test results, and that the validation testing “was performed without access to the source code.”

We have no occasion on these records to attempt defining what showing would be necessary to justify requiring disclosure of the Intoxilyzer source code. As the Underdahl record confirms, the Intoxilyzer instrument underwent significant testing in an accepted process prior to approval for statewide use. See generally Jasper v. Comm’r of Pub. Safety, 642 N.W.2d 435, 438-40 (Minn.2002). And each time the instrument is used, diagnostic tests are performed to ensure the reliability of the test results. See Kramer v. Comm’r of Pub. Safety, 706 N.W.2d 231, 236 (Minn.App.2005).

As prescribed by statute, the Intoxilyzer delivers a test result with the appearance of scientific reliability, without any expert witness being required to testify to the reliability of the result or the reason for each step in the process. Respondents’ arguments in effect compare the instrument to a scientific laboratory and the source code to a procedure performed in such a laboratory. Without a more detailed showing of the relevancy of the source code, their arguments tend to aim more at the validity of an automated testing process, rather than at the need for discovery of one of its component pieces. And even if the Intoxilyzer is compared to an independent scientific laboratory conducting measurable operations, the supreme court has rejected the view that the defense is entitled to disclosure of every aspect of those operations. See State v. Traylor, 656 N.W.2d 885, 900 (Minn.2003) (holding that DNA PCR-STR test results were admissible despite the defense’s lack of access to test-kit primer sequences or validation studies that the state’s experts also lacked access to); cf. State v. Alt, 504 N.W.2d 38, 48-49 (Minn.App.) (holding that denial of access to the FBI lab’s DNA data bases did not make its test results inadmissible), review granted and remanded on other grounds, 505 N.W.2d 72 (Minn.1993).

Thus, respondents have not shown what an Intoxilyzer “source code” is, how it bears on the operation of the Intoxilyzer, or what precise role it has in regulating the accuracy of the machine. Accordingly, there is no showing as to what possible deficiencies could be found in a source code, how significant any deficiencies might be to the accuracy of the machine’s results, or that testing of the machine, which defendants are permitted to do, would not reveal potential inaccuracies without access to the source code.

Anticipating that they may not have met their burden for a rule 9 showing that the source code may relate to their guilt or innocence, respondents argue that their burden is actually less — that they merely have to show that the source code is relevant because it is something an expert would ordinarily explore in assessing the reliability of a testing instrument. But respondents also have failed to meet this lesser burden; they have not established that they need the source code to see whether it might be relevant. Were we to hold that respondents’ speculations satisfy their burden under rule 9, this case would be a prelude to similar, speculative challenges on other aspects of the design and manufacture of Intoxilyzers. Rule 9 is not authority for obtaining information on a mere assertion that it has something to do with the defendant’s guilt.

DECISION

Granting respondents’ motions to discover the Intoxilyzer source code was an abuse of discretion. Because we conclude that respondents failed to show that the source code is relevant and thereby discoverable, we do not reach appellant’s remaining arguments.

Reversed.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

      . When it came to discussing whether the source code was "clearly not discoverable,” the standard for a writ of prohibition, the court discussed whether the source code was in the "possession or control” of the commissioner, but not whether, or to what degree, it might be relevant. Underdahl I, 735 N.W.2d at 711-12.

      . As suggested in this opinion, the record shows that the state went through an extensive testing process before it approved the Intoxilyzer as an appropriate breath testing instrument for use in DWI proceedings. See Minn. R. 7502.0420, subp. 3 (2007); see also Minn.Stat. § 169A.75(c) (2006) (authorizing the Commissioner of Public Safety to approve instruments for preliminary screening or chemical tests for intoxication). This process was performed without access to the source code. Respondents’ argument, therefore, is essentially a challenge to the state's approval process.


author: APPEL, Justice.

text:
    STATE of Iowa, Appellee, v. Guy Edward FREMONT, Appellant.
    No. 06-1443.
    Supreme Court of Iowa.
    May 2, 2008.
    Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson, Assistant Attorney General, and Jeffrey H. Greve, County Attorney, for appellee.
   APPEL, Justice.

In this case, we consider whether the search and seizure provisions of the United States and Iowa Constitutions require the suppression of evidence obtained where a search warrant was approved by a magistrate who, at the time of the execution of the warrant, simultaneously represented a party in a family law proceeding adverse to one of the warrant’s named parties. We hold under the facts of this case that the magistrate was not “neutral and detached” as required by the Fourth Amendment and that the doctrine of harmless error does not apply. As a result, the motion to suppress should have been granted. The conviction of the defendant, therefore, is vacated and the case remanded to the district court.

I. Background Facts and Proceedings.

In August 2005, Mike and Amy Wilson contacted Worth County Deputy Sheriff Dan Fank regarding their granddaughter. The Wilsons told Fank that when they visited their granddaughter, the baby’s clothing smelled of marijuana. Additionally, Amy told Fank that when the baby’s mother, Destiny Fremont, visited the Casey’s store where Amy worked, she exhibited bloodshot eyes and acted “goofy.” When confronted about being stoned, Amy reported that Destiny merely looked away and giggled. Fank told the Wilsons that they should contact the Department of Human Services and report any further incidents to law enforcement.

The following month, Amy contacted another Worth County deputy sheriff, Jan Langenbau. Amy advised that after she and her husband picked up the child, they opened the baby’s blanket and found a leafy substance they believed to be marijuana. Langenbau collected the substance. Tests later confirmed that it was indeed marijuana.

In January 2006, T.C. Simon contacted Fank. Simon was at the time dating Lacy Nelson, Destiny’s sister, and had recently lived with Nelson, Destiny and their parents. Simon admitted that he had smoked marijuana at the residence. Simon additionally told Fank that the Fremonts periodically purchased marijuana, that everyone in the home smoked it, and that they possibly also used methamphetamines. Simon expressed concern about the small children who resided at the home.

Two weeks after receiving the report from Simon, Fank and Northwood Police Officer Jesse Luther removed a bag of garbage from the sidewalk in front of the Fremont residence. In the garbage, the officers discovered an envelope addressed to the defendant Guy Fremont, Destiny’s father, numerous stems and seeds, and a used package of Zig-Zag rolling papers. The stems later tested positive as marijuana.

On January 19, 2006, Fank presented an application for a search warrant to Douglas Krull, a part-time magistrate. The application included an affidavit by Fank, a report by Langenbau, and photos of the items recovered from the garbage bag. Among other persons, Destiny Fremont was listed on the search warrant as residing in the home.

Krull immediately recognized Destiny’s name. Destiny and Bryce Sehnulle were the unmarried parents of the Wilsons’ granddaughter. Krull, in his capacity as a private attorney, had previously filed a paternity, custody, and child support action on behalf of Sehnulle against Destiny. Two months prior to the warrant application, Sehnulle through Krull, sought temporary child support. The court denied the motion, and ordered Sehnulle to pay temporary support. The matter was still pending at the time the warrant was issued.

Krull decided to sign the warrant even though he was aware of his representation adverse to Destiny. Krull reasoned that the evidence was overwhelming, physical in nature, and did not require him to evaluate the credibility of witnesses. The search warrant was executed on the same day Krull signed the warrant.

The search produced substantial evidence against the adults living in the home. Upon entering, Fank immediately recognized the overwhelming smell of burnt marijuana. Searches conducted on the adults present produced additional marijuana and rolling papers. When Fank pulled Guy aside and asked if there was additional contraband in the house, Guy directed officers to two trays of marijuana in an upper cabinet in the kitchen. In addition, marijuana was seized from an upstairs bedroom and methamphetamine and marijuana paraphernalia were discovered, including pipes with residue in the room next to where small children were playing. Guy also admitted he sold marijuana, but only to make a life for his family.

In light of the evidence, the State charged Guy with possession of marijuana with intent to deliver, failure to affix a drug tax stamp, and child endangerment.

Guy filed a motion to suppress the evidence seized in the search, asserting that Krull was not a neutral and detached magistrate as required by Article I, section 8 of the Iowa Constitution and the Fourth Amendment of the United States Constitution. The district court held that because probable cause was so clearly established, no constitutional infirmity was present. Guy was later convicted of all charges. The defendant appealed.

II. Standard of Review.

Constitutional claims are reviewed de novo. State v. Freeman, 705 N.W.2d 293, 297 (Iowa 2005). In an action involving a structural challenge to the validity of a warrant, the burden of proof rests with the defendant. Franks v. Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667, 672 (1978).

III. Discussion on Merits.

A. Background of Requirement of a “Neutral and Detached” Magistrate in Search and Seizure Context. The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const., amend. IV.

The Iowa Constitution has a search and seizure provision with nearly identical language. Iowa Const. art. I, § 8. These two constitutional provisions are generally “deemed to be identical in scope, import, and purpose.” State v. Groff, 323 N.W.2d 204, 207 (Iowa 1982). No party has suggested that the Iowa constitutional provision should be interpreted differently than its federal counterpart on the contested issues in this appeal and, as a result, we interpret the Iowa Constitution similarly to its federal counterpart. In re Detention of Garren, 620 N.W.2d 275, 280 n. 1 (Iowa 2000) (refusing to deviate from federal analysis in considering state constitutional claim because appellant “ha[d] suggested no deficiency in the federal principles ... nor ha[d] he offered an alternative test or guideline”).

The second clause of the Fourth Amendment, known as the Warrants Clause, is silent on the question of who may issue a valid warrant. As a result, while the language suggests an intent to limit the power of police to engage in searches and seizures that are unreasonable or not based on probable cause and to limit the scope of warrants authorizing intrusions into private lives, there can be no resort to a textual analysis of the Fourth Amendment to provide guidance on the question of who may issue a valid warrant. Lloyd L. Weinreb, Generalities of the Fourth Amendment, 42 U. Chi. L.Rev. 47, 47 (1974).

The drafting history of the Fourth Amendment is also of little help. While James Madison’s original draft of the Warrants Clause was directed solely at the substantive requirements for a valid warrant, the draft was changed by Congress to include the Reasonableness Clause. Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 Wm. & Mary L.Rev. 197, 208-09 (1993). There is simply nothing of relevance on the question of magistrate qualifications that can be teased from this drafting history.

In light of the language and limited legislative history, it is not surprising that authorities have resorted to vague generalities in characterizing the commands of the Fourth Amendment. Leading Fourth Amendment scholars declare that the Fourth Amendment embodies “a spiritual concept” in the value of privacy and a “value judgment” about privacy and security in a free and open society. See Jacob W. Landynski, Search and Seizure and the Supreme Court: A Study in Constitutional Interpretation 47 (1966); Anthony Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L.Rev. 349, 403 (1974). These declarations, however, provide little specific guidance on how Fourth Amendment values should be implemented in the real world.

B. United States Supreme Court Approach to Neutrality and Detachment of Magistrates Under the Fourth Amendment.

1. “Neutral and detached” magistrate. Left with the broad language of the Fourth Amendment and the unilluminating historical context, the burden of translating the generalized constitutional commands of the Fourth Amendment into a workable body of law has fallen on the United States Supreme Court. The first clear pronouncement by the United States Supreme Court that a warrant under the Fourth Amendment must be issued by a “neutral and detached” magistrate surfaced in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). In Johnson, Justice Robert Jackson emphasized that the inferences drawn from evidence to determine whether probable cause existed to engage in a search must be made by “a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Id. at 14, 68 S.Ct. at 369, 92 L.Ed. at 440. As originally formulated by Justice Jackson, the requirement of a “neutral and detached” magistrate was tied to the concept of separation of powers — the magistrate approving the warrant must not be an eager (or sullen) police apparatchik or agent. Id.

The requirement of a “neutral and detached” magistrate announced in Johnson has been subsequently repeated, usually as background dicta, in dozens of United States Supreme Court cases. In light of the Supreme Court’s stated preference for searches based on warrants issued by magistrates upon a showing of probable cause, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the inherently vague concept of probable cause, the ex parte nature of the proceeding, and limited appellate review of probable cause determinations only for abuse of discretion, academic commentators have stated that the securing of a warrant from a “neutral and detached” magistrate has evolved into the “centerpiece,” “cornerstone,” and “critical protection” of the Fourth Amendment. Silas J. Wasserstrom & Louis Michael Seidman, The Fourth Amendment as Constitutional Theory, 77 Geo. L.J. 19, 34 (1988) (centerpiece); Robert B. Mosteller, Testing the Testimonial Concept and Exceptions to Confrontation: “A Little Child Shall Lead Them,” 82 Ind. L.J. 917, 973 n. 208 (2007) (cornerstone) [hereinafter Mosteller]; George R. Nock, The Point of the Fourth Amendment and the Myth of Magisterial Discretion, 23 Conn. L.Rev. 1, 21 (1990) (cornerstone).

2. Separation of powers. The Johnson case involved a question of the separation of power between the police seeking a warrant and the magistrate reviewing it for legal sufficiency. Johnson, 333 U.S. at 14, 68 S.Ct. at 369, 92 L.Ed. at 440. In addition to Johnson, three other United States Supreme Court cases have developed the neutral-and-detached-magistrate requirement in the separation of powers context. In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the state attorney general issued a search warrant even though he was actively in charge of the investigation and was later to be the chief prosecutor at trial. 403 U.S. at 450, 91 S.Ct. at 2028, 29 L.Ed.2d at 573. The Supreme Court held that “there could hardly be a more appropriate setting than this for a per se rule of disqualification rather than a case-by-case evaluation of all the circumstances.” Id.

The notion of separation of powers was further explored in Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972). In this case, the Supreme Court held that a court clerk who was an employee of the judicial branch was sufficiently disassociated from the role of law enforcement to issue arrest warrants for violators of municipal ordinances. 407 U.S. at 350-51, 92 S.Ct. at 2123, 32 L.Ed.2d at 789. The court noted that “[w]hatever else neutrality and detachment might entail, it is clear that they require severance and disengagement from activities of law enforcement.” Id. at 350, 92 S.Ct. at 2123, 32 L.Ed.2d at 789.

Similarly, in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979), a town justice signed a warrant to search an adult book store, and then accompanied police in order to make a case-by-case determination of obscenity. 442 U.S. at 321, 99 S.Ct. at 2322, 60 L.Ed.2d at 925. The Supreme Court held that by becoming part of the prosecution team, the magistrate could not be considered neutral and detached for Fourth Amendment purposes. Id. at 327, 99 S.Ct. at 2325-26, 60 L.Ed.2d at 929.

Johnson, Coolidge, Lo-Ji Sales, and Shadwick suggest that the warrant requirement reflects “a preference for one sort of government officer — a judge — over the far more competitively charged police officer” when it comes to making the discretionary decisions that authorize searches. Mosteller, 82 Ind. L.J. at 973 n. 208. The issue posed by this case, however, is whether a constitutional attack may be mounted on the neutrality or detachment of a magistrate based on other grounds of bias not rooted in separation of powers concepts.

3. Direct, personal, substantial, pecuniary interest. In one case, the United States Supreme Court demonstrated a willingness to consider a constitutional challenge to the neutrality and detachment of a magistrate on grounds other than traditional separation of powers. In Connally v. Georgia, 429 U.S. 245, 97 S.Ct. 546, 50 L.Ed.2d 444 (1977), the police sought and obtained a warrant to search a home for controlled substances from a justice of the peace. 429 U.S. at 246, 97 S.Ct. at 546, 50 L.Ed.2d at 446. Under Georgia law, justices of the peace were not salaried, but were compensated five dollars for every warrant issued but nothing in cases where the warrant was denied. Id. at 246, 97 S.Ct. at 546-47, 50 L.Ed.2d at 446. In a per curiam opinion, the Supreme Court invalidated the warrant on the ground that the magistrate was not neutral and detached as required by the Fourth Amendment. Id. at 249-50, 97 S.Ct. at 549, 50 L.Ed.2d at 448.

Although the compensation scheme in Connally could have been characterized as making the magistrate a paid agent of law enforcement and therefore violating separation-of-powers principles, the Supreme Court did not rely on a separation-of-powers analysis. Instead, the Supreme Court noted that the magistrate had “ ‘a direct, personal, substantial, pecuniary interest’ ” in his decision to issue the warrant. Id. at 250, 97 S.Ct. at 548, 50 L.Ed.2d at 448 (quoting Bennett v. Cottingham, 290 F.Supp. 759, 762-68 (N.D.Ala.1968)). This “direct, personal, substantial, pecuniary interest” had the potential of distorting the magistrate’s judgment in a fashion that offended Fourth Amendment values. Arguably, Connally opened the door to an analysis of the neutral-and-detached-magistrate requirement that extends beyond ensuring that the magistrate is not an agent of the state or otherwise engaged in the prosecutorial process.

4. Incorporation of due process principles. Another important feature of Connally is its incorporation of due process principles into the analysis of the Fourth Amendment. Specifically, Connally relied primarily on the due process analysis provided in Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) and Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972) in resolving the Fourth Amendment question of whether a magistrate was “neutral and detached.”

In Tumey, the court formulated a test of judicial impartiality for due process purposes. In language often quoted, the Supreme Court noted that the appropriate due process inquiry was whether the facts revealed a situation

which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the state and the accused.

Tumey, 273 U.S. at 532, 47 S.Ct. at 444, 71 L.Ed. at 758.

The Tumey test was further applied by the Supreme Court in the case of Ward, 409 U.S. at 57, 93 S.Ct. at 80, 34 L.Ed.2d at 267. In Ward, the Supreme Court held that an Ohio statute that authorized mayors to sit as judges with respect to ordinance violations and traffic offenses violated due process because a major portion of the village’s income came from the fines, fees, and costs imposed in the mayor’s court. 409 U.S. at 60, 93 S.Ct. at 83, 34 L.Ed.2d at 271. The Supreme Court concluded that this structure put the mayor in a position that “‘might lead him not to hold the balance nice, clear, and true between the state and the accused....’” Id. (quoting Tumey, 273 U.S. at 534, 47 S.Ct. at 444, 71 L.Ed. at 759). But see Dugan v. Ohio, 277 U.S. 61, 48 S.Ct. 439, 72 L.Ed. 784 (1928) (holding where mayor had only limited functions, the mayor’s relationship to the finances and financial policy of the city was too remote to give rise to due process concerns when the mayor acted as a judge and imposed fines on offenders).

Significantly, the Supreme Court in Connally did not simply discuss Tumey and Ward, but expressly embraced the application of the due process reasoning in Fourth Amendment cases involving chai-lenges to the neutrality and detachment of magistrates. The Connally court noted that the facts of its case were not precisely the same as in Tumey and Ward, but concluded that “the principle of those cases” is applicable to the Georgia system for issuance of search warrants. Connally, 429 U.S. at 250, 97 S.Ct. at 548, 50 L.Ed.2d at 448. In light of this unambiguous language, the Supreme Court has incorporated the Tumey-Ward due process principles into Fourth Amendment analysis. Thus, although the defendant has not expressly raised a due process challenge, his challenge to the magistrate’s impartiality based on due process concepts is fully preserved by his Fourth Amendment attack.

At least one due process case decided by the United States Supreme Court subsequent to Connally suggests that certain grounds for due process attack (and by implication any attack on the neutrality and detachment of a magistrate under the Fourth Amendment), which do not involve direct pecuniary interest of judges, may be narrow. In Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986), the Supreme Court considered a case where Justice Embry of the Alabama Supreme Court joined in a five-four opinion related to the availability of a bad faith cause of action in Alabama when he simultaneously was a plaintiff in an action against an insurance company seeking to recover based upon a bad faith claim. 475 U.S. at 816-17, 106 S.Ct. at 1583, 89 L.Ed.2d at 829. In Aetna, the Supreme Court rejected the notion that the general hostility of Justice Embry against insurance companies that were dilatory in paying claims was sufficient to raise a due process violation. Id. at 820, 106 S.Ct. at 1585, 89 L.Ed.2d at 832. Noting that not all claims of judicial qualifications involving “kinship, personal bias, state policy, [ ][or] remoteness of interest” are constitutional in dimension, the court emphasized that such bias or prejudice would rise to offend due process only in the most extreme of cases. Id. at 820, 106 S.Ct. at 1584, 89 L.Ed.2d at 831 (quoting Tumey, 273 U.S. at 523, 47 S.Ct. at 441, 71 L.Ed. at 754). The Supreme Court did, however, find a due process violation because Justice Embry had a “direct, personal, substantial, pecuniary interest” in the outcome of the case before the Alabama Supreme Court. That case would set binding precedent in the bad faith case wherein Embry was a named plaintiff. Id. at 822, 106 S.Ct. at 1586, 89 L.Ed.2d at 833.

In an important concurring opinion, however, Justice Brennan suggested in Aetna that the Court did not state that nonpecuniary interests could not arise to a due process violation. Id. at 829, 106 S.Ct. at 1589, 89 L.Ed.2d at 838 (Brennan, J., concurring). Justice Brennan noted that in In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955), the Supreme Court held that due process disqualified a judge who presided over a proceeding alleging contempt of a grand jury in which the same judge was the grand jury’s only member. Aetna, 475 U.S. at 830, 106 S.Ct. at 1580-90, 89 L.Ed.2d at 838. As noted by Justice Brennan, the judge in Murchison, had no direct or indirect pecuniary interest, but due process was nonetheless violated because of the conflicting roles assumed by the judge. Id. Justice Brennan noted that nothing in the Aetna opinion was inconsistent with Murchison’s assertion that the interests which trigger a due process problem “cannot be defined with precision.” Id.

C. Lower Court Application of Fourth Amendment Requirement of Neutral and Detached Magistrate Involving Nonpecuniary Interests.

1. Overview. While the cases are relatively rare, several courts have implemented the Connally framework in nonpecuniary settings. For example, in State v. Burnam, 66 Or.App. 132, 672 P.2d 1366, 1368 (1983), a state court found that a personal interest prevented a magistrate from being neutral and detached when the warrant related to the rape of his clerk. In another case, State v. Edman, 281 Conn. 444, 915 A.2d 857, 867 (2007), another state court found that where a former court employee had recently threatened to sue a judge over an employment dispute, that judge could not function as a “neutral and detached magistrate” regarding a search of the employee’s residence. A result similar to Edman was reached in People v. Lowenstein, 118 Mich.App. 475, 325 N.W.2d 462, 467 (1982), where a magistrate previously prosecuted the defendant and was sued by the defendant was held not be neutral and detached.

These decisions by implication recognize the holding of Connally that due process concepts apply to Fourth Amendment challenges to the neutrality and detachment of magistrates. These cases also appear consistent with the United States Supreme Court’s due process holding in Murchison that constitutional challenges to the impartiality of a judge may include nonpecuniary interests that must be evaluated in the specific factual context of a given case.

The courts have been careful, however, to set clear limits to claims that nonpecuniary interests defeat magistrate neutrality and detachment under the Fourth Amendment. For example, mere past association or knowledge of a defendant is generally not deemed to give rise to a constitutional infirmity. As was colorfully stated in United States v. Heffington, 952 F.2d 275 (9th Cir.1991),

Assuming that an appearance of partiality may lurk in the fact that judges and police officers in rural counties often know more about local criminal recidivists than their more urban colleagues, we are not prepared to disqualify small town judges on demand.

952 F.2d at 279. Similarly, past legal representation either on behalf of or adverse to a defendant is not ordinarily grounds for attacking the neutrality or detachment of a magistrate. United States v. Guthrie, 184 Fed.Appx. 804, 807 (10th Cir.2006) (holding that there was no Fourth Amendment violation where magistrate represented, several years earlier, son of owner of private residence to be searched); United States v. Outler, 659 F.2d 1306, 1312 (5th Cir.1981) (holding no nexus between magistrate’s prior prosecution of the defendant and subsequent proceedings); State v. Mandravelis, 114 N.H. 634, 325 A.2d 794, 795 (1974) (noting that before becoming a judge the magistrate represented the accused on several charges, some of which resulted in conviction, and had knowledge of defendant’s problems with drugs when younger). Remote claims of bias also have little prospect of success in the Fourth Amendment context. United States v. Czuprynski, 46 F.3d 560, 564 (6th Cir.1995) (holding that evidence of employment dispute thirteen years earlier too remote). The above cases generally stand for the proposition that there is no Fourth Amendment requirement for the perfect or best “neutral and detached magistrate.” Heffington, 952 F.2d at 279-80.

The closest case to the facts presented here is State v. Slaughter, 252 Ga. 435, 315 S.E.2d 865 (1984). In that case, a magistrate who issued a search warrant in a drug case was also the attorney of record in a civil case against the defendant. Slaughter, 315 S.E.2d at 866. After a productive search, the defendant was charged with drug offenses. Id. The defendant claimed that his arrest on criminal charges provided grounds for his impeachment in the civil case and hampered his ability to vigorously participate in his defense. Id.

In Slaughter, the Georgia Supreme Court rejected the challenge to the search warrant. Id. at 869-70. The court noted that the fact of representation adverse to the defendant alone might be sufficient to show that a magistrate is not neutral and detached in some cases it does not necessarily require disqualification in all cases. Id. The court emphasized, however, that it was quite possible that the magistrate did not even recognize the name of the defendant when the search warrant was issued. Id. at 870.

2. Role of canons of judicial ethics. The defendant claims that Iowa Code of Judicial Ethics 3(D)(1) establishes the standard for determining whether a magistrate is “neutral and detached” under the Fourth Amendment. This canon provides that a judge should disqualify himself or herself in a proceeding if “the judge’s impartiality might be reasonably questioned.” See State v. Mann, 512 N.W.2d 528, 532 (Iowa 1994). The State challenges this approach, arguing that the demands of the Fourth Amendment are fundamentally different than the canon requirements.

Some cases have held that the canons of ethics define the Fourth Amendment standard for a neutral and detached magistrate. Commonwealth v. Brandenburg, 114 S.W.3d 830, 832 (Ky.2003) (holding “appearance of impropriety” test is incorporated into Fourth Amendment). Other cases, however, have suggested that the judicial canons are not incorporated wholesale into Fourth Amendment analysis. United States v. Murphy, 768 F.2d 1518, 1540 (7th Cir.1985).

We reject the wholesale incorporation of Canon 3(D)(1) for a number of reasons. The canons of judicial ethics are designed not to protect individual defendants, but to protect the judiciary from charges of partiality. Id. The canons of judicial ethics thus often extend further than what is constitutionally required. Aetna, 475 U.S. at 821, 106 S.Ct. at 1585, 89 L.Ed.2d at 832 (noting most matters relating to judicial qualification do not rise to a constitutional level); Fed. Trade Comm’n v. Cement Inst., 333 U.S. 683, 702, 68 S.Ct. 793, 804, 92 L.Ed. 1010, 1035 (1948) (same). A number of the canons of judicial ethics, particularly those involving “appearances of impropriety,” are not bright-line tests which are easy to apply in individual factual settings. The last thing that Fourth Amendment law needs is another amorphous test lacking in predictability.

Finally, the contours of what is constitutionally required are not subject to the vagaries of rulemaking in the various jurisdictions. The scope of constitutional protections does not depend upon whether a jurisdiction has adopted certain model codes of judicial ethics. We thus conclude that while ethical guidelines may be instructive, they are not determinative on the constitutional question of whether a particular magistrate is neutral and detached under the Fourth Amendment.

D. Application of Fourth Amendment Principles. In light of the above, we must now consider whether the facts of this case establish a Fourth Amendment violation. The magistrate in this case was simultaneously representing the putative father against one of the targets of the search in a child custody proceeding. A successful search of the home, which sought to find evidence of drug offenses, could make the position of the mother more difficult in the child custody matter and advance the position of the father.

The case is thus similar to Ward, where the mayor did not receive a direct benefit when he engaged in judicial acts adverse to defendants, but the city that the mayor served was benefited by the mayor’s actions. Ward, 409 U.S. at 57, 93 S.Ct. at 80, 34 L.Ed.2d at 267. Moreover, this case contrasts with situations where the magistrate was involved in past representations of parties affected by the warrant decision, and thus the decision could have no impact on the outcome of the prior proceedings or where a challenge is based upon the mere acquaintance of judge with the accused. Guthrie, 184 Fed.Appx. at 804; Outler, 659 F.2d at 1312; Mandravelis, 325 A.2d at 794.

We also believe this case is distinguishable from Slaughter, 315 S.E.2d at 865. Here, there is a clear nexus between the current representation and the issuance of a search warrant. The issuance of the warrant could lead to a drug charge against Destiny Fremont. A drug charge in a child custody dispute is a serious matter and goes to the core of the fundamental question in child custody matters— the best interests of the child. Further, unlike in Slaughter, the magistrate in this case was aware of his representation adverse to one of the accused.

Under the unusual circumstances of this case, we conclude that the magistrate had a nonpecuniary personal interest in the matter that objectively cast doubt on his ability to hold the balance, nice, clear, and true, between the state and the accused. Tumey, 273 U.S. at 532, 47 S.Ct. at 444, 71 L.Ed. at 758. A probable cause determination must be made by a person unfettered by other potentially conflicting professional commitments. Cf. People v. Payne, 424 Mich. 475, 381 N.W.2d 391, 395 (1985) (holding that magistrate’s status as a deputy sheriff rendered him incapable of satisfying the neutral-and-detached requirement). The magistrate’s simultaneous and conflicting dual roles rendered him unable to meet the requirements of a neutral and detached magistrate under the Fourth Amendment. Id. As the court in Tumey emphasized, a situation where one person “occupies two practically and seriously inconsistent positions, one partisan and the other judicial, necessarily involves a lack of due process of law in the trial of defendants charged with crimes before him.” Tumey, 273 U.S. at 534, 47 S.Ct. at 445, 71 L.Ed. at 759.

We agree with the State that the defendant has made no showing of actual prejudice in this ease. In Tumey, Connally, and Murchison, however, the Supreme Court did not require such a showing. These cases stand for the proposition that some conflicts are just so fraught with danger that a showing of actual prejudice is not required. We hold that the facts in this case present such an occasion.

Because of this Fourth Amendment violation, the evidence seized as a result of the execution of the warrant is subject to suppression. Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 416, 9 L.Ed.2d 441, 453 (1963); State v. Leto, 305 N.W.2d 482, 484 (Iowa 1981).

E. Avoidance of Exclusionary Rule through Harmless Error. The State urges that the district court was correct when it held that because there was ample probable cause for the warrant, any constitutional Infirmities in its execution are irrelevant.

Even if we were to agree with the State that there were ample grounds to support a finding of probable cause based on the affidavit presented to the magistrate in this case, that is not the end of the matter. As noted by Justice Jackson in Johnson,

[a]ny assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers.

Johnson, 333 U.S. at 14, 68 S.Ct. at 369, 92 L.Ed. at 440. An invalid warrant is the equivalent of no warrant at all. Coolidge, 403 U.S. at 450-51, 91 S.Ct. at 2030, 29 L.Ed.2d at 574. As a result, Justice Jackson’s admonition is fully applicable to this case and harmless error analysis does not apply. Cf. Chapman v. California, 386 U.S. 18, 23 n. 8, 87 S.Ct. 824, 828 n. 8, 17 L.Ed.2d 705, 710 n. 8 (1967) (holding that harmless error rule does not apply to charge of a partial judge). The lack of a neutral and detached magistrate is a structural defect that defeats any application of the harmless error doctrine.

F. Summary. We hold that when a magistrate approves an application for a search warrant at a time when the magistrate knows he or she is engaged in legal representation against a target of the search warrant in a child custody matter which could be impacted in favor of the magistrate’s client if the search is successful, a violation of the Fourth Amendment requirement that a magistrate be neutral and detached occurs. Further, the doctrine of harmless error has no application where a warrant is issued by a magistrate lacking the required neutrality and detachment. We reach these conclusions under the Fourth Amendment of the United States Constitution and independently under Article I, section 8 of the Iowa Constitution.

We recognize that some may not regard this case as presenting an egregious violation of the Fourth Amendment. As observed by Justice Bradley over one hundred years ago in the seminal Fourth Amendment case of Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), abrogated on other grounds by Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974):

It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely: by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as it is consisted more in sound than substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.

Boyd, 116 U.S. at 635, 6 S.Ct. at 535, 29 L.Ed. at 752.

IV. Conclusion.

The ruling of the district court denying the motion to suppress is reversed and the conviction in this case is vacated. The case is remanded to the district court for further proceedings.

REVERSED AND REMANDED.

All justices concur except STREIT, J., who takes no part.


author: WIGGINS, Justice.

text:
    CITY OF WATERLOO, Appellee, v. Lee BAINBRIDGE, Irene Bainbridge, Ronald Wood, and Joyce Wood, Defendants, HLS U.S. Bank, Appellant.
    No. 06-2076.
    Supreme Court of Iowa.
    May 23, 2008.

      Deana K. Walocha, Omaha, Nebraska, for appellant.
    David R. Zellhoefer, Assistant City Attorney, Waterloo, and Jared R. Knapp of Clark, Butler, Walsh & Hamann, Waterloo, for appellee.
   WIGGINS, Justice.

A purchaser of a tax sale certificate appeals a district court order eliminating its tax lien on property to which the city obtained title under Iowa Code section 657A.10A (2005). We affirm the judgment of the district court because we agree section 657A.10A(5) defeats the certificate holder’s lien.

I. Background Facts and Proceedings.

Pursuant to Iowa Code section 657A.10A, the City of Waterloo filed a petition in May 2006 requesting ownership of an abandoned piece of property located in Waterloo. HLS U.S. Bank had an interest in the property because it purchased the tax sale certificate to the property at a Black Hawk County public bidder sale in June 2003.

In its answer, HLS claimed section 657A.10A is unconstitutional on its face. At the bench trial HLS did not challenge the characterization of the property at issue as being abandoned pursuant to section 657A.10A(3). HLS argued if section 657A.10A is interpreted as the city suggests, the statute will be in direct contradiction with section 445.28. During the trial, HLS faded to make its constitutional argument.

The trial court granted the city title to the properties free and clear of any claims, liens, or encumbrances held by HLS. In one sentence of its ruling, without providing any analysis or authority, the district court also held section 657A.10A constitutional.

HLS appeals.

II. Scope of Review.

The district court tried this case in equity. We apply a de novo review to cases tried in equity. In re Marriage of Beecher, 582 N.W.2d 510, 512-13 (Iowa 1998).

III. Issues.

HLS raises three issues on appeal: (1) whether the legislature intended section 657A.10A(5) to override the lien created by section 445.28; (2) whether section 657A.10A(5) applies to tax liens created before its effective date; and (3) whether section 657A.10A is constitutional under the Iowa Constitution.

Although HLS claimed section 657A.10A is unconstitutional on its face, it failed to cite any provision of either the United States or Iowa Constitutions in support of its position. At trial HLS presented no evidence or arguments to support its constitutional claims. Even without any evidence or argument, the district court found the statute to be constitutional. However, the district court did so without any analysis or citation to authority. In its brief on appeal, HLS claims section 657A.10A violates the due process clause of the Iowa Constitution, but it fails to cite to any authority in support of its position.

HLS’s failure to make a record during the trial and its failure to cite any authority in this appeal precludes us from deciding the constitutional issue. See Olson v. Sumpter, 728 N.W.2d 844, 849 (Iowa 2007) (holding the failure of a party to cite authority for an issue on appeal precludes us from reviewing that issue); State v. Tobin, 333 N.W.2d 842, 844 (Iowa 1983) (stating “[t]he general rule is that issues, including constitutional issues, which are not raised in the trial court cannot be raised on appeal”). Therefore, we will only reach the first two issues.

IY. Discussion and Analysis.

A. Statutory Framework. Our analysis requires us to interpret and apply two separate provisions of the Code. The first section implicated in this appeal is section 445.28, which provides in relevant part, “Taxes upon a parcel are a lien on the parcel against all persons except the state.” Iowa Code § 445.28. A similar provision has appeared in our Code since 1851. See Iowa Code § 495 (1851) (stating “taxes upon real property are hereby made a perpetual lien thereupon against all persons except the United States and this state”). We have interpreted section 445.28 to create a tax lien superior to all liens except those of the state. Merv E. Hilpipre Auction Co. v. Solon State Bank, 343 N.W.2d 452, 455 (Iowa 1984). HLS, as purchaser of a tax certificate, held the tax lien on the property at the time the court awarded title to the property to the city. Iowa Code § 446.29.

Section 657A.10A allows a city the opportunity to obtain title to property containing an abandoned building. Iowa Code § 657.10A(1). To do so the city must file a petition naming the owner, mortgagees of record, lienholders of record, and other known persons who have an interest in the property as respondents. Id. The city is required to give these parties notice of the petition. Id. No sooner than sixty days after filing its petition, the city may request a hearing on the petition. Id. § 657A.10A(2). If a person with an interest in the property does not make a good faith effort to comply with an order of a local building inspector or the city proves the property has been abandoned, the court will award title to the city free and clear of any claims, liens, and encumbrances held by the respondents. Id. § 657A.10A(5). Section 657A.10A became effective on May 17, 2004. 2004 Iowa Acts eh. 1165, § 11.

B. Whether the Legislature Intended Section 657A.10A(5) to Override the Lien Created by Section 445.28. When confronted with the task of determining the meaning of a statute, we have stated:

The goal of statutory construction is to determine legislative intent. We determine legislative intent from the words chosen by the legislature, not what it should or might have said. Absent a statutory definition or an established meaning in the law, words in the statute are given their ordinary and common meaning by considering the context within which they are used. Under the guise of construction, an interpreting body may not extend, enlarge, or otherwise change the meaning of a statute.

Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004) (citation omitted).

HLS urges us to use the principles of statutory construction to determine section 657A.10A(5) does not override the lien created by section 445.28. We apply the rules of statutory construction when a statute is ambiguous. In re N.V., 744 N.W.2d 634, 637 (Iowa 2008). When the language of a statute is plain and its meaning is clear, the rules of statutory construction do not permit us to search for a meaning beyond the statute’s express terms. Id. A statute or rule is ambiguous if reasonable minds could differ or be uncertain as to the meaning of the statute. Carolan v. Hill, 553 N.W.2d 882, 887 (Iowa 1996). In this case, the language of the statute is plain, clear, and susceptible to only one meaning.

Section 657A.10A(5) clearly mandates that if the court awards title of the property to the city, title to the property “shall be free and clear of any claims, hens, or encumbrances held by the respondents.” There is no room in the language of the statute for us to exempt a tax lien from this mandate.

Our interpretation of section 657A.10A(5) is also consistent with its legislative history. The legislative history of a statute is instructive of legislative intent. State v. Dohlman, 725 N.W.2d 428, 431-32 (Iowa 2006).

Prior to the enactment of section 657A.10A, the city could petition the court to appoint a receiver to take possession and control of a building considered to be a public nuisance. Iowa Code § 657A.4. The receiver would then be able to manage the property and take the necessary steps to abate the nuisance and bring the building into compliance with housing and building regulations and ordinances. Id. § 657A.6. If the receiver’s mortgage is properly perfected, the receiver’s mortgage constitutes a first lien on the property and is superior to all prior or subsequent liens on the property except those for taxes and assessments. Id. § 657A.7.

The legislature enacted section 657A.10A to give the city an opportunity to obtain title to the property rather than have a receiver appointed to manage the property. H.F. 2291 Explanation, 80th Gen. Assemb., Reg. Sess. (Iowa 2004). In order to accomplish this goal, the city must take title free and clear of all liens. The legislature recognized this by mandating the court to pass title of the property to the city free and clear of all liens, including tax liens. Iowa Code § 657A.10A(5). This mandate is in clear contrast to the legislature’s language in section 657A.7 that a receiver’s mortgage is subordinate to a tax lien. Id. § 657A.7.

If the city cannot obtain clear title, a city would have little incentive to take title to the property. Once a city takes possession of the property, it must expend time and money to make the property safe. If the city had to pay the tax lien, there would be less money for the city to recoup its costs when it eventually transferred the property for development. If the city kept the property, the tax lien would add to the city’s own development cost. Accordingly, we find the legislature intended section 657A.10A(5) to override the lien created by section 445.28.

C. Does Section 657A.10A(5) Apply to Tax Liens Created Before its Effective Date? Statutes are generally presumed to apply prospectively absent an expressed indication by the legislature to the contrary. Iowa Code § 4.5. However, remedial or procedural statutes are exceptions to this rule and may be applied retrospectively. Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Shell Oil Co., 606 N.W.2d 370, 375 (Iowa 2000).

A substantive statute creates, defines, and regulates rights. Schmitt v. Jenkins Truck Lines, Inc., 260 Iowa 556, 560, 149 N.W.2d 789, 791 (1967). A substantive statute also takes away a vested right. In re Estate of Parsons, 272 N.W.2d 16, 18 (Iowa 1978). A procedural statute affords the practice, method, procedure, or legal machinery by which a person may enforce the substantive law. State ex rel. Turner v. Limbrecht, 246 N.W.2d 330, 332 (Iowa 1976). A remedial statute gives an injured person a private remedy for a wrongful act. Baldwin v. City of Waterloo, 372 N.W.2d 486, 491 (Iowa 1985). Generally, a remedial statute is designed to correct an existing law or redress an existing grievance. Id.

HLS argues section 657A.10A(5) is substantive because it takes away its vested rights. On the other hand, the city claims section 657A.10A(5) is not substantive and may be applied retrospectively.

We have acknowledged that a tax sale certificate conveys vested rights. Where a person applied for a writ of mandamus to compel a county treasurer to execute a tax deed when he purchased a tax certificate and the redemption period had expired, our court held, “[t]he moment the purchaser paid the tax he acquired certain vested rights.” Jones v. Welsing, 52 Iowa 220, 221, 2 N.W. 1106, 1107 (1879). As holder of the tax certificate, HLS did not have the right of possession over the property until after the expiration of the right of redemption. Witmer v. Gibbs, 234 Iowa 725, 730, 13 N.W.2d 802, 804 (1944). However, the owner of the tax certificate has the right to be reimbursed the price the owner paid for the tax certificate plus interest if the property is redeemed. Iowa Code § 447.1. If the property is not redeemed, the certificate holder is entitled to acquire the deed to the property. Id. § 448.1. The holder of the tax certificate also has a lien on the property, which is superior to all liens except those of the state. Id. § 445.25.

In order for a certificate holder to receive any return on the tax sale certificate, the purchaser must serve a notice of the right of redemption. Id. § 447.9. If the holder of the certificate has not filed an affidavit within three years from the time of the tax sale stating that it served the notice, the treasurer shall cancel the sale. Id. § 446.37. If the sale is canceled, the tax certificate expires. Id. The tax lien expires with the certificate. Id. § 446.29.

The passage of section 657A.10A(5) did not affect HLS’s right to file a notice of redemption and begin the process of realizing a return on its investment in the certificate. HLS acquired the tax sale certificate in June 2003. One year and nine months later in March 2005 HLS could have served the notice of the right of redemption. Id. § 447.9. This notice would have given the persons served an additional ninety days from the completion of service to redeem the property. Id. If the property was redeemed within this period, HLS would have received reimbursement for the amount it paid for the certificate plus interest. Id. § 447.1. If the property was not redeemed, the county treasurer would have made out a tax deed conveying the property to HLS. Id. § 448.1. HLS would have received the deed upon its payment of the appropriate fee to the treasurer. Id. After the issuance of the tax deed, HLS would have filed an affidavit with the county recorder. Id. § 448.15. All claims not made against the title within 120 days from the date HLS filed the affidavit would have been barred. Id. § 448.16. By December 2005 HLS could have had clear title to the property. The city did not file its petition until May 2006. The court did not give the city title until November 2006.

For some unknown reason, HLS sat on its rights and did not serve a notice to redeem the property. HLS did this knowing the legislature passed a law, effective May 17, 2004, making its hen inferior to that of the city if the city began a procedure to obtain title to the property under section 657A.10A. HLS also knew it had until June 2006 to file an affidavit stating it served a notice of redemption, or the treasurer would cancel the tax sale and it would lose its hen. Instead of protecting its interest in the property by serving a notice of redemption, it took a chance that the city would not exercise its rights under section 657A.10A.

It is possible HLS did not pursue title to the property because if it had taken title and left the property in the condition it was in at the time the city filed its petition, the action filed by the city would have divested HLS of title to the property. HLS’s failure to give notice of the right of redemption should not put it in a better position than if it had given notice.

The facts of this case are analogous to our rule when the legislature shortens a statute of limitations to enforce a right. In that situation the rule is “‘that the period of limitation in effect at the time suit is brought governs in an action even though it may lengthen or shorten an earlier period of limitation.’” In re Estate of Weidman, 476 N.W.2d 357, 363-64 (Iowa 1991) (citation omitted). The enactment of section 657A.10A(5) did not in and of itself defeat HLS’s interest in the property. Prior to the enactment of section 657A.10A, the outside limitation to preserve its interest in the property was three years. The passage of section 657A.10A shortened that period if the property was or became abandoned under the terms of the statute. After the passage of section 657A.10A, HLS should have known the condition of the property and realized that if it was or became abandoned pursuant to the statute, there was a chance the city would step in and remedy the situation. Therefore, the consequence of passing section 657A.10A(5) was that HLS was not allowed to hold on to the tax certificate while the property’s condition deteriorated. The passage of section 657A.10A(5) had the effect, like a statute of limitations, of shortening the time for HLS to exercise its option to give notice of the right of redemption. Therefore, section 657A.10A(5) is not a substantive statute.

To determine whether a procedural or remedial statute is applied retrospectively, we apply a three-part test. Shell Oil Co., 606 N.W.2d at 375.

First, we look to the language of the new legislation; second, we consider the evil to be remedied; and third, we consider whether there was any previously existing statute governing or limiting the mischief which the new legislation was intended to remedy.

Emmet County State Bank v. Reutter, 439 N.W.2d 651, 654 (Iowa 1989).

In applying the first part of the test, the language of the statute requires the statute to be applied to all properties that meet the definition of “abandoned” contained in section 657A.10A(3). The statute does not require the conditions in section 657A.10A(3) to exist after the date of the statute’s enactment. The statute does not limit the city’s right to obtain title only to property abandoned after the effective date of the statute, but allows the city to obtain title to property that has been abandoned at any time.

Secondly, the evil to be remedied is the existence of unsafe abandoned buildings. A building abandoned before the effective date of the statute creates the same unsafe condition as a building abandoned after the effective date of the statute. The unsafe condition created by abandoned buildings, regardless of when they became abandoned, is the evil to be remedied.

Finally, there are no other statutes that allow the city to obtain title to abandoned property in this manner. Thus, if we give section 657A.10A a retrospective application, the application would not be repugnant to any existing statute.

Accordingly, section 657A.10A fits squarely within the three-part test for retrospective application. Therefore, section 657A.10A(5) applies to tax liens created before its effective date. Consequently, the district court was correct when it awarded title of the property to the city free and clear of HLS’s tax lien.

V. Disposition.

Because Iowa Code section 657A.10A(5) overrides the lien created by section 445.28 and section 657A.10A(5) can be applied retrospectively, we affirm the judgment of the district court.

AFFIRMED.

All justices concur except BAKER, J., who takes no part.

      . Under this record, if HLS did not take any action the tax sale would have been cancelled in June 2006, approximately one month after the city began its action. The record does not indicate if the tax sale was cancelled.