author: KAPSNER, Justice.

text:
    2004 ND 201
    STATE of North Dakota, Plaintiff and Appellant v. Michael DONOVAN, Defendant and Appellee.
    No. 20040066.
    Supreme Court of North Dakota.
    Nov. 2, 2004.

      James 0. Johnson, Stanton, ND, for plaintiff and appellant.
    Gregory L. Lange, Hazen, ND, for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] The State appealed from a trial court’s suppression of evidence, arguing the evidence was obtained under proper execution of a valid search warrant and should be admitted in the subsequent criminal trial. We affirm the trial court’s suppression order.

I.

[¶ 2] Mercer County law enforcement officials responded to a domestic disturbance call at the rural Hazen home of Jeff Coffin and Veronica Gascoine Sr. on August 9, 2003. Coffin was arrested and taken to jail. Gascoine, who was intoxicated and injured, was interviewed by Sheriff Dean Danzeisen. During the course of the interview she volunteered information about narcotics located within the home. Gascoine granted consent to search, and drug paraphernalia was discovered. The sheriff then called in Deputy Eric Harmel, a member of the local drug task force. Gascoine was read her Miranda rights before the interview continued. She stated Michael Donovan had 20 bales of marijuana buried in his back yard, and she had observed him manufacturing methamphetamine. Gascoine also described a car allegedly involved in drug operations and told Danzeisen and Harmel where the car could be found.

[¶ 3] Danzeisen and Harmel confirmed the location of the vehicle. Harmel also contacted a special agent who had interacted with Gascoine on two previous occasions. One was when a pen tube with methamphetamine residue was found in Gascoine’s car. She claimed the pen tube was not hers, and a passenger admitted ownership. The second encounter occurred when Gascoine testified in a narcotics trial. The sole purpose of her testimony at the narcotics trial was to provide an alibi for her accused daughter. Harmel’s affidavit seeking a search warrant included these two encounters as further proof of Gascoine’s credibility, but failed to mention both that the information was obtained second-hand and the nature of Gascoine’s testimony.

[¶ 4] The warrant was issued and Donovan’s house was searched. The officers did not find marijuana or signs of methamphetamine production. Evidence of other drug violations was found, and Donovan was charged.

[¶ 5] Donovan moved to suppress the evidence, arguing it was obtained as the result of a search warrant based on false information from an informant whose reliability was not established. Gascoine testified at the suppression hearing she did not remember telling the officers about Donovan’s alleged drug activities. She further testified she had never seen marijuana bales in his back yard or any evidence of methamphetamine production. The district court in Mercer County granted Donovan’s motion, and the State appealed.

II.

[¶ 6] “The Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, and Article I, § 8 of the North Dakota Constitution require searches and seizures to be reasonable and warrants to be issued only upon a showing of probable cause.” State v. Ballweg, 2003 ND 153, ¶ 11, 670 N.W.2d 490. “Probable cause to search exists ‘if the facts and circumstances relied on by the magistrate would warrant a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched.’ ” Id. (quoting State v. Thieling, 2000 ND 106, ¶ 7, 611 N.W.2d 861). Whether probable cause to issue the warrant exists is a question of law. Ballweg, at ¶ 11. The magistrate’s decision is deferred to “so long as there was a substantial basis for the conclusion, and doubtful or marginal cases should be resolved in favor of the magistrate’s determination.” Id. at ¶ 12.

[¶ 7] Donovan argued the affidavit was misleading because it failed to mention it was based on second-hand information or the nature of Gascoine’s testimony. A defendant who believes a search warrant was issued on the basis of a false or misleading affidavit can request a Franks hearing:

[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

Ballweg, 2003 ND 153, ¶ 14, 670 N.W.2d 490 (quoting Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)). “ ‘A false affidavit statement under Franks is one that misleads the neutral and detached magistrate into believing the stated facts exist, and those facts in turn affect the magistrate’s evaluation of whether or not there is probable cause.’ ” State v. Jones, 2002 ND 193, ¶ 10, 653 N.W.2d 668 (quoting State v. Rangeloff, 1998 ND 135, ¶ 9, 580 N.W.2d 593).

[¶ 8] The defendant has the burden to prove false statements were made intentionally or with reckless disregard for the truth, and whether this burden was met is reviewed under the clearly erroneous standard. State v. Schmitt, 2001 ND 57, ¶ 11, 623 N.W.2d 409 (citing State v. Damron, 1998 ND 71, ¶ 10, 575 N.W.2d 912); see also State v. Morrison, 447 N.W.2d 272, 275 (N.D.1989). “A finding of fact is clearly erroneous when it is induced by an erroneous view of the law, when there is no evidence to support it, or when, although there is some evidence, on the entire evidence, the Court is left with a definite and firm conviction a mistake has been made.” Jones, 2002 ND 193, ¶ 11, 653 N.W.2d 668 (citing Schmitt, at ¶ 12). A “[large] number of allegedly] false statements support an inference of reckless disregard for the truth.” Schmitt, at ¶ 14. “[R]eckless disregard for the truth may be proved inferentially ‘from circumstances evincing “obvious reasons to doubt the veracity” of the allegations.’ ” Id. at ¶ 15 (quoting United States v. A Residence Located at 218 Third St, 805 F.2d 256, 258 (7th Cir.1986)). “Mere negligence by the affiant, however, does not constitute reckless disregard for the truth.” Schmitt, at ¶ 15 (citing Franks, 438 U.S. at 171, 98 S.Ct. 2674).

[¶ 9] The district court found Donovan met his burden because he was able to show the affidavit was written in a manner that misled the magistrate regarding Gascoine’s credibility. Reliability of an informant who is a “eriminal[], drug addict[], or even pathological liar[]” must be established. State v. Holzer, 2003 ND 19, ¶ 11, 656 N.W.2d 686 (quoting State v. Dahl, 440 N.W.2d 716, 718 (N.D.1989)). The officers who interviewed Gascoine had already discovered evidence of her narcotics involvement, making her a member of the “criminal milieu” whose reliability needed to be established.

[¶ 10] The officers attempted to establish Gascoine’s credibility through verification of her description of a car parked in a public parking lot with the owner’s name displayed in the windshield. Credibility cannot be established by the use of “easily obtainable facts and conditions existing at the time of the tip.” State v. Thompson, 369 N.W.2d 363, 370 (N.D.1985). The district court found “[t]he location and ownership of the blue car were easily obtainable facts existing at the time of the tip.”

[¶ 11] Gascoine testified she did not remember saying anything to the officers about drug activity at Donovan’s. However, another officer testified to overhearing her statements, so the district court found she clearly made them. This finding by the district court is sufficient to show Har-mel did not falsify Gascoine’s statements in his affidavit. See Schmitt, 2001 ND 57, ¶ 13, 623 N.W.2d 409 (the district court failed to make findings on the credibility of the witnesses, so it was not proven that the officer knowingly included false information in his affidavit).

[¶ 12] The district court did find, however, an important part of the affidavit was written in such a manner it likely misled the magistrate:

The most troubling statement in the affidavit is found in paragraph 8. That paragraph reads:
“Deputy Harmel has reason to believe that Veronica Gascoine Sr. has been truthful due to the fact that Veronica Gascoine Sr. has answered questions truthfully on incident’s that have happened almost a year ago, and that Veronica Gascoine Sr. has testified under oath in a jury trials on the cases involving several narcotics users.”
There are two problems with the assertions in paragraph 8. First is that a reasonable person would read the paragraph to mean that Gascoine had testified in more than one jury trial involving a number of narcotics users. Gascoine testified in one trial. Harmel said the plurals in the sentence are typos, but there is no way a magistrate would know that without asking, and there is no record that the magistrate asked. More significant is what is not said. A reasonable person would think that the sentence meant that Gascoine had testified against narcotics users because the whole purpose of the paragraph is to establish Gascoine’s truthfulness. Had the magistrate known Gascoine’s one appearance at a jury trial was an attempt to establish an alibi for her accused daughter, it is unlikely he would have been convinced that she was therefore credible. On the contrary, the omission of this information very likely misled the magistrate into thinking she had testified in more than one trial against narcotics users.

The district court’s finding that Harmel’s statements were misleading was not clearly erroneous.

III.

[¶ 13] Once statements have been found false or misleading, those statements should be set aside and the remainder of the affidavit looked at to determine if there was probable cause to issue the warrant. Ballweg, 2003 ND 153, ¶ 14, 670 N.W.2d 490 (quoting Franks, 438 U.S. at 155-56, 98 S.Ct. 2674). “Whether there is probable cause to issue a search warrant is a question of law.” Jones, 2002 ND 193, ¶ 14, 653 N.W.2d 668. The requirements for probable cause are as follows:

“Probable cause to search does not require the same standard of proof necessary to establish guilt at a trial; rather, probable cause to search exists if it is established that certain identifiable objects are probably connected with criminal activity and are probably to be found at the present time at an identifiable place.” All the information presented to establish probable cause should be taken together, not analyzed in a piecemeal fashion. The magistrate is to make a practical, commonsense decision on whether probable cause exists to search that particular place....
We apply the totality-of-the-circumstances test to review whether information before the magistrate was sufficient to find probable cause, independent of the trial court’s findings. More than “bare-bones” information must be presented to the magistrate in order to establish probable cause.

Jones, at ¶ 14 (citations omitted). When a search warrant is issued based on information provided by an informant, the informant’s credibility is very important in determining whether probable cause exists. Dahl, 440 N.W.2d at 718; see also Holzer, 2003 ND 19, ¶ 11, 656 N.W.2d 686. There is no presumption of reliability when the informant is someone who is a member of the “criminal milieu.” Dahl, at 718.

[¶ 14] Gascoine’s credibility was not sufficiently established if the misleading statements are stricken from the affidavit. As previously stated, an easily obtainable fact cannot be used to establish informant credibility. Thompson, 369 N.W.2d at 370. There is no question the existence of the car described by Gascoine was an easily obtainable fact. Since Gascoine was a member of the criminal milieu, something more ■ substantial was needed to establish her credibility. The trial court concluded there was not probable cause to issue a search warrant without the informant’s credibility being established. The.finding that credibility had not been established was not clearly erroneous.

IV.

[¶ 15] We affirm the trial court’s suppression of the evidence.

[¶ 16] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.


source: Caselaw Access Project

author: CARTER, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Rusty Shannon Lee KEMP, Appellant.
    No. 03-1785.
    Supreme Court of Iowa.
    Nov. 10, 2004.

      Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Bruce C. Kempkes, Assistant Attorney General, John P. Sarcone, County Attorney, and Stephan Bayens, Assistant County Attorney, for appellee.
   CARTER, Justice.

Defendant, Rusty Kemp, appeals, following a bench trial, from his conviction of possession of marijuana in violation of Iowa Code section 124.401(5) (2001). He contends that the district court erred in failing to grant his motion for judgment of acquittal. Specifically, defendant argues the district court relied on an impermissible presumption to support his conviction and that when properly viewed the evidence does not support the court’s finding of guilt. After reviewing the record and considering the arguments presented, we vacate the judgment and sentence and remand this matter to the district court for further proceedings.

The facts viewed most favorably toward the State include the following. On May 26, 2003, two Clive police officers were dispatched to a Polk County storage business to investigate a complaint of suspicious activity. Upon arriving, the officers found three individuals, including defendant, working on an automobile located in a storage garage. Two other vehicles, a Chevrolet Caprice and a Dodge Intrepid were parked near the storage garage. The Caprice was parked perpendicular to the garage with the passenger side of the vehicle facing the three individuals working on the automobile. A fourth individual, Eric Johnson, was sitting in the passenger side of the Caprice. The passenger door was open, and Johnson was sitting sideways with his feet on the ground facing the three other individuals working on the car.

The defendant was identified as the owner of the Caprice. Defendant gave the officers consent to search his vehicle. Johnson was asked to exit the Caprice. When Johnson stepped out of the car, one of the officers observed a bag of marijuana in plain view underneath the passenger’s seat where Johnson had been sitting. Upon further inspection of the vehicle, a second bag of marijuana was discovered under the driver’s seat. It was not discovered in plain view. Next to the second bag of marijuana, one of the officers also found a small bag with rock cocaine, located between the driver’s and passenger’s seats. Defendant’s vehicle also contained rolling papers used for smoking marijuana. The rolling papers were discovered in the vehicle’s center console. Defendant denied any knowledge of the illegal drugs found in his car but admitted to ownership of the rolling papers. Johnson admitted placing the bag of rock cocaine in defendant’s automobile but denied any knowledge of the marijuana found in the car.

Defendant was charged with possession of a controlled substance. He waived his right to a jury trial. After hearing the evidence, the district court found the defendant guilty as charged, concluding he was unable to rebut the presumption of possession created by his ownership and operation of the Chevrolet Caprice in which marijuana was discovered under the driver’s seat.

I. Whether Being the Owner or Recent Driver of a Vehicle in Which Drugs Are Discovered Creates a Rebuttable Presumption of Possession.

Defendant contends that the district court utilized an unwarranted and impermissible presumption of his possession of the marijuana by reason of his ownership of the motor vehicle in which it was found. In its “Conclusions of Law,” the district court indicated that this court in State v. Atkinson, 620 N.W.2d 1, 3 (Iowa 2000), “suggested that ownership or operation created a rebuttable presumption of possession.” The district court further concluded that “the defense offers no other credible evidence that would rebut the presumption of possession created by the defendant’s ownership and operation of the Chevrolet.” To the extent that the district court relied on such a rebuttable presumption to sustain its finding that defendant had knowledge of and control over the marijuana found in his motor vehicle this was error.

Contrary to the district court’s assertion, we did not suggest in Atkinson that ownership or operation of a vehicle in which drugs are discovered creates a re-buttable presumption of possession. The language from the opinion on which the district court relied was referring to the decisions of other courts and to legal treatises. The ownership of the vehicle was only one factor among several that we considered in determining whether the facts allowed a reasonable inference that the defendant in Atkinson knew of the drugs’ presence and had control and dominion over them. See Atkinson, 620 N.W.2d at 4; see also State v. Cashen, 666 N.W.2d 566, 571 (Iowa 2003).

In the present case, persons other than the defendant had access to his car. Courts from other states have given sound reasons for not allowing a rebuttable presumption of possession under such circumstances. See Hughes v. State, 215 Ga.App. 6, 449 S.E.2d 547 (1994); State v. Booth, 11 S.W.3d 887 (Mo.Ct.App.2000).

Where immediate and exclusive possession of an automobile ... is shown, the inference is authorized that the owner of such property is the owner of what is contained therein, and this inference has been referred to as a rebuttable presumption. However, as to automobiles, the rule does not apply where there is evidence in the case that the defendant has not been in possession of the vehicle for a period of time prior to the discovery of the contraband or that others have had access to it.... Where it is established that other persons had equal access to the vehicle, the application of a presumption of possession of any contraband found in it is not a sound, abstract principle of law and is a dangerous rule for the numerous owners [or drivers] of motor vehicles.

Hughes, 449 S.E.2d at 549 (citations omitted).

Since our society recognizes the varied use of automobiles, the exclusive possession of premises rule has been modified when automobiles are involved because of the reality of the contemporary use of the automobile as a means of social accommodation. ... In the case of automobiles the full effect of [the exclusive possession] rule is tempered by evidence of equal access by persons, other than the owner, to the vehicle. In eases where there is joint control, a defendant is still deemed to have possession and control where there is additional evidence connecting him with the controlled substance.

Booth, 11 S.W.3d at 891 (citations omitted).

Because it appears that the district court relied on an unwarranted presumption in reaching its finding of guilt in the present case, the defendant’s judgment and sentence must be vacated. Defendant contends that, absent the presumption the evidence is insufficient to sustain a finding of guilt, and a judgment of acquittal is in order. For reasons that are discussed in the following division, we disagree with that contention and conclude that the remedy to which he is entitled is a remand of the case to the district court for reconsideration of the evidence against him without applying the unwarranted presumption that was referred to in the court’s initial decision.

II. Sufficiency of the Evidence.

A. Scope of review. Sufficiency-of-the-evidence claims are reviewed for correction of errors at law. Iowa R.App. P. 6.4; State v. Webb, 648 N.W.2d 72, 75 (Iowa 2002). An appellate court reviews a trial court’s findings in a jury-waived case as it would a jury verdict. State v. Weaver, 608 N.W.2d 797, 803 (Iowa 2000). A verdict will be upheld if it is supported by substantial evidence. Webb, 648 N.W.2d at 75. Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. Id. at 76. The evidence is reviewed in the light most favorable to the State, and all of the evidence presented at trial, not just evidence that supports the verdict, is considered. Id. The State has the burden to prove every fact necessary to constitute the crime with which the defendant is charged, and the evidence presented must raise a fair inference of guilt and do more than create speculation, suspicion, or conjecture. Id.

B. Evidence of possession. Defendant argues that the State presented insufficient evidence to support a finding that he possessed the marijuana discovered under the driver’s seat of his car. In order to prove unlawful possession of a controlled substance, it must be shown that the defendant: (1) exercised dominion and control over the contraband, (2) had knowledge of its presence, and (3) had knowledge that the material was a controlled substance. State v. Bash, 670 N.W.2d 135, 137 (Iowa 2003) (citing State v. Reeves, 209 N.W.2d 18, 21 (Iowa 1973)). Possession can be either actual or constructive. Bash, 670 N.W.2d at 138. “Actual possession occurs when the controlled substance is found on the defendant’s person. Constructive possession occurs when the defendant has knowledge of the presence of the controlled substance and has the authority or right to maintain control over it.” Id. (citations omitted). Because no drugs were found on the defendant’s person, this matter concerns constructive possession.

Furthermore,

if the premises on which such substances are found are in the exclusive possession of the accused, knowledge of their presence on such premises coupled with his ability to maintain control over such substances may be inferred.... But ivhere the accused has not been in exclusive possession of the premises but only in joint possession, knowledge of the presence of the substances on the premises and the ability to maintain control over them by the accused ivill not be inferred but must be established by proof.

Reeves, 209 N.W.2d at 23 (emphasis added). Under such circumstances, several factors are considered for determining whether a defendant had constructive possession of contraband. These factors include: (1) incriminating statements made by the defendant, (2) incriminating actions of the defendant upon the police’s discovery of drugs among or near the defendant’s personal belongings, (3) the defendant’s fingerprints on the. packages containing the drugs, and (4) any other circumstances linking the defendant to the drugs. Cashen, 666 N.W.2d at 571.

Additionally, in a motor-vehicle case, a court may also consider these factors: (1) was the contraband in plain view, (2) was it with the defendant’s personal effects, (3) was it found on the same side of the car seat or next to the defendant, (4) was the defendant the owner of the vehicle, and (5) was there suspicious activity by the defendant. Atkinson, 620 N.W.2d at 4 (citing Plotts v. State, 297 Ark. 66, 759 S.W.2d 793, 795 (1998)). All of these factors are only to be used as a guide in determining whether the State has established constructive possession. Cashen, 666 N.W.2d at 571. “Even if some of these facts are present, we are still required to determine whether all of the facts and circumstances ... allow a reasonable inference that the defendant knew of the drugs’ presence and had control and dominion over the contraband.” Id.

Defendant correctly points out that the district court found that the marijuana under the driver’s seat was not discovered in plain view, it was not discovered near any of his personal effects, he made no incriminating statements, and he did not act in an overtly suspicious manner. However, the evidence presented also shows defendant was the owner of the vehicle in which the marijuana was discovered and was the most recent driver of the vehicle. A smaller bag of marijuana was discovered in plain view near the passenger’s seat of the car. More marijuana was found directly under the driver’s seat in a position where it might have been placed by the driver. Rolling papers used for smoking marijuana were found in the vehicle’s center console along with other personal effects belonging to the defendant. Defendant told the officers that the rolling papers were his. We are satisfied that this evidence was sufficient for a finder of fact to reasonably infer that the defendant knew of the drugs’ presence and exercised control and dominion over them.

We have considered all issues presented and conclude that the evidence presented was sufficient to permit but not require a trier of fact to find that defendant knew of the presence of the marijuana under the seat of his automobile and exercised control and dominion over same. Because of the district court’s application of an unwarranted presumption in making that finding, we vacate defendant’s judgment and sentence and remand this matter to the district court for reconsideration of the issue of defendant’s guilt based on a legal standard consistent with this opinion.

JUDGMENT VACATED AND CASE REMANDED.


author: TERNUS, Justice.

text:
    Steve L. PFISTER and Scott Mariner, Plaintiffs, v. IOWA DISTRICT COURT FOR POLK COUNTY, Defendant.
    No. 02-1513.
    Supreme Court of Iowa.
    Nov. 10, 2004.

      Scott A. Sobel of Sobel Law Firm, Des Moines, for plaintiffs.

      Thomas J. Miller, Attorney General, John R. Lundquist and Chantelle C. Smith, Assistant Attorneys General, and Josh Henningsen, Student Legal Intern, for defendant.
   TERNUS, Justice.

In the 2002 legislative session, the Iowa General Assembly adopted several amendments to the Iowa Code addressing the appointment of state-paid counsel for indigent persons alleged to have violated parole. In the matter before us, the district court ruled the amendments were unconstitutional to the extent they denied court-appointed counsel to indigent parolees who would otherwise be entitled to such counsel under the principles set forth in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). The court concluded, however, that the amendments eliminating the involvement of the public defender’s office in providing representation and removing authorization for payment of court-appointed counsel from that office’s budget did not violate parolees’ constitutional rights. Based on these conclusions, the court denied court-appointed counsel’s motions to withdraw in these parole revocation proceedings, but held “such representation shall not be reimbursed from any public funding source.”

This court granted the plaintiffs’ petition for writ of certiorari. We think the district court erred in concluding court-appointed counsel was not entitled to be compensated by the state. Finding no other illegality in the district court’s ruling, we sustain the writ in part and annul the writ in part. We remand the case for further proceedings.

I. Background Facts and Proceedings.

Prior to the 2002 legislative session, Iowa Code section 908.2 required that an alleged parole violator “be advised of the right to appointed counsel under rule 26 of the rules of criminal procedure.” Iowa Code § 908.2 (2001). Iowa Rule of Criminal Procedure 26 (renumbered as rule 2.28) provided that every indigent defendant was “entitled to have counsel appointed to represent the defendant at every stage of the proceedings ... including probation and parole revocation hearings.... ” To ensure that such counsel was readily available, the general assembly had authorized the public defender to “provide for the representation of indigents in proceedings instituted pursuant to chapter 908,” the chapter governing violations of parole and probation. Iowa Code § 13B.4(1) (2001). Costs associated with such representation were authorized to be paid from funds appropriated to the state public defender’s office. See id. § 815.11 (authorizing payment of costs “incurred under ... the rules of criminal procedure on behalf of an indigent”).

In 2002 the legislature amended several code provisions in an apparent effort to eliminate the right to counsel previously granted parolees in Iowa. Iowa Code section 908.4(2) (2001) was amended to provide that an alleged parole violator “shall not have the right to appointed counsel.” 2002 Iowa Acts ch. 1067, § 21 (codified at Iowa Code § 908.4(2) (2003)). (The right to counsel in parole revocation hearings found in Iowa Rule of Criminal Procedure 2.28 was subsequently removed from that rule.) At the same time, the requirement that alleged parole violators be advised of their right to appointed counsel at their initial appearance was taken out of section 908.2. Id. § 20 (codified at Iowa Code § 908.2 (2003)). The 2002 legislation also eliminated the statutory authority for the state public defender’s office to provide legal representation for indigent parolees, as well as the funding for such representation previously included in the budget for that office. Id. §§ 1, 18 (codified at Iowa Code §§ 13B.4(1), 815.11 (2003)).

In response to these statutory changes, the state public defender’s office instructed its contract attorneys to decline appointment for indigent representation in parole revocation matters after July 1, 2002, the effective date of the new legislation, and to seek to withdraw from any appointments made after this date. See generally Iowa Code § 13B.4(3) (2003) (“The state public defender may contract with persons admitted to practice law in this state for the provision of legal services to indigent persons.”).

In early July 2002 contract attorney Scott Sobel was appointed to represent Steve Pfister and Scott Mariner in parole revocation proceedings. As directed by the state public defender’s office, Sobel filed applications to withdraw as counsel in both cases, citing the recent statutory amendments. The district court considering the applications was concerned the amendments did not comport with an alleged parole violator’s constitutional rights under the Gagnon case and so set the applications for hearing. In response to the order setting a hearing, the Iowa Board of Parole filed a response, contending the amendments were constitutional.

After the scheduled hearing, the district court ruled that the amendments to Iowa Code sections 908.2 and 908.4(2) were squarely at odds with Gagnon because “parolees are neither provided a vehicle to request counsel in those cases where counsel may be required, nor would they be appointed counsel where they would otherwise be entitled to representation.” The court concluded these amendments violated the United States and Iowa Constitutions to the extent the amendments denied alleged parole violators their right to court-appointed counsel. The district court held the amendments pertaining to funding and the involvement of the state public defender’s office in parole revocation proceedings did not violate parolees’ constitutional rights and therefore should stand. In supplemental orders the court held that “any required court appointments in parole revocation proceedings may be of any attorney licensed to practice in the state of Iowa” and that the responsibility of appointing counsel, when required, would rest with the judicial officer presiding over the alleged violator’s initial appearance. With respect to attorney So-béis applications to withdraw, the court denied his applications and held that any fees or costs associated with such representation would not be paid by the State.

During the time Sobel’s applications were under consideration by the district court, the plaintiffs were brought to hearing on their alleged parole violations. Both appeared without counsel. An administrative law judge (ALJ) revoked Pfister’s parole, and based on the record before us, it appears his sentence was completed a short time later. The determination on Mariner’s parole revocation was continued by the presiding ALJ pending disposition of criminal charges in another matter. The record does not reveal that the issue of whether Mariner’s parole should be revoked has been resolved.

The plaintiffs filed a petition for writ of certiorari, which the board resisted. See generally Iowa R.App. P. 6.301 (providing for original certiorari proceedings in supreme court). This court granted the writ, and the matter proceeded to briefing.

The plaintiffs appear to argue in their brief that all indigent alleged parole violators have a constitutional right to representation, not just some indigents as held by the district court. In addition, the plaintiffs challenge the court’s determination that the State is not obligated to pay for such representation. The plaintiffs ask that this court give no effect to the amendments denying the right to counsel to indigent alleged parole violators in parole revocation proceedings, and that we provide for reimbursement of counsel appointed to represent these parolees.

The Attorney General of Iowa filed a brief on behalf of the nominal defendant, the Iowa District Court for Polk County. Although ostensibly representing the district court, the Attorney General espouses the position of the Iowa Board of Parole in his brief. Therefore, we will refer to the board as the putative defendant.

The board points out that under Gagnon not all parolees have a constitutional right to appointed counsel in parole revocation matters. The board further asserts the amendment removing the requirement that alleged violators be advised of the right to appointed counsel is constitutional. Finally, the board asks this court to uphold the remainder of the district court’s decision that the legislature constitutionally eliminated the responsibility of the state public defender’s office for the legal fees of court-appointed counsel for indigent alleged parole violators.

II. Scope and Principles of Review.

A writ of certiorari lies where a lower board, tribunal, or court has exceeded its jurisdiction or otherwise has acted illegally. For this reason, this court “may examine only the jurisdiction of the district court and the legality of its actions.” “Illegality exists when the court’s findings lack substantial eviden-tiary support, or when the court has not properly applied the law.” Our review of the district court’s action is therefore for correction of errors of law.

State Pub. Defender v. Iowa Dist. Ct. for Black Hawk County, 633 N.W.2d 280, 282 (Iowa 2001) (citations omitted). If constitutional issues are raised, however, we independently evaluate the totality of the evidence, and our review is de novo. Brummer v. Iowa Dep’t of Corr., 661 N.W.2d 167, 171 (Iowa 2003).

When the constitutionality of a statute is challenged, “we presume the statute is constitutional and ‘give it any reasonable construction necessary to uphold it.’” State v. Anspach, 627 N.W.2d 227, 231 (Iowa 2001) (citation omitted). The party challenging the constitutionality of a statute has the burden to demonstrate there is no reasonable basis upon which the statute can be sustained. Id.

III. Constitutionality of 2002 Amendments to Chapter 908.

A. Right of indigent alleged parole violators to court-appointed counsel. We first address the constitutional parameters of this issue. The district court stated the challenged statutes violated the Sixth Amendment right to counsel under the United States Constitution and the comparable right to counsel found in article I, section 10 of the Iowa Constitution. See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall ... have the Assistance of Counsel for his de-fence.”); Iowa Const. art. I, § 10 (“In all criminal prosecutions, and in cases involving the life, or liberty of an individual the accused shall have a right ... to have the assistance of counsel.”). The same constitutional provisions are cited by the plaintiffs. Nonetheless, both the district court and the plaintiffs rely on case law discussing a parolee’s rights, including the right to representation, as a component of due process: Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). See generally U.S. Const. amend. XIV (prohibiting states from depriving “any person of life, liberty, or property, without due process of law”); Iowa Const. art. I, § 9 (“no person shall be deprived of life, liberty, or property, without due process of law”). Therefore, we limit our consideration of this issue to the requirements of the federal and state Due Process Clauses. Because the parties have articulated no basis for distinguishing these clauses for purposes of determining a parolee’s right to counsel, our discussion of the federal due process claim applies equally to the claim made under the Iowa Constitution. See Maghee v. State, 639 N.W.2d 28, 30 (Iowa 2002) (refusing to distinguish due process right to counsel in disciplinary proceedings under Iowa Constitution from federal due process right to counsel); cf. In re Detention of Garren, 620 N.W.2d 275, 280 (Iowa 2000) (refusing to deviate from federal analysis in considering state constitutional claim because appellant “ha[d] suggested no legal deficiency in the federal principles ..., nor ha[d] he offered an alternative test or guidelines”). We turn now to the decisions of the United States Supreme Court addressing the due process rights of an alleged parole violator.

In Morrissey, the Supreme Court held the Due Process Clause requires a two-step process before an individual’s parole can be revoked. 408 U.S. at 485, 92 S.Ct. at 2602, 33 L.Ed.2d at 496-97. First, there must be some minimal inquiry in the nature of a preliminary hearing to decide whether probable cause exists that the arrested parolee has committed a violation of his conditions of parole. Id. at 485, 92 S.Ct. at 2602, 33 L.Ed.2d at 496. Should a finding of probable cause be made, a revocation hearing must then be held to determine whether the facts show that a violation occurred and that revocation of parole is warranted. Id. at 487, 92 S.Ct. at 2603, 33 L.Ed.2d at 497-98. The Court held the parolee must have an opportunity to be heard at both hearings. Id. at 487-88, 92 S.Ct. at 2603, 33 L.Ed.2d at 497-98.

In Gagnon, the Supreme Court considered whether indigent parolees and probationers were entitled to the assistance of appointed counsel during proceedings instituted to revoke parole or probation. The Court noted the effectiveness of the protections guaranteed by Morrissey “may in some circumstances depend on the use of skills which the probationer or parolee is unlikely to possess.” Gagnon, 411 U.S. at 786, 93 S.Ct. at 1762, 36 L.Ed.2d at 664. Concluding states were not “under a constitutional duty to provide counsel for indigents in all probation or parole revocation cases,” the Court held a case-by-case determination must be made. Id. at 787, 93 S.Ct. at 1762, 36 L.Ed.2d at 664. The Court rejected the adoption of precise and detailed guidelines for when counsel was required, stating:

The facts and circumstances in preliminary and final hearings are susceptible of almost infinite variation, and a considerable discretion must be allowed the responsible agency in making the decision. Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself.

Id. at 790, 93 S.Ct. at 1764, 36 L.Ed.2d at 666 (emphasis added).

From these cases, we conclude the federal constitution requires that alleged parole violators be informed of their right to request counsel. In addition, when the circumstances of a particular case meet the standard set forth in Gag-non, due process requires that counsel be appointed to represent indigent parolees.

B. Assessment of 2002 amendments to chapter 908 under constitutional requirements of Due Process Clause. We think the board is correct when it argues the legislature intended the 2002 amendments to eliminate the blanket right to counsel previously granted parolees under Iowa law. We disagree, however, with its assertion that the amendment to section 908.4(2) can be interpreted as removing the statutory right to counsel, but leaving intact the limited constitutional right to counsel recognized in Gagnon. Amended section 908.4(2) states unequivocally that an alleged parole violator “shall not have the right to appointed counsel.” If applied as written, which the courts are obligated to do, the statute leaves no room for the appointment of counsel in any parole revocation proceeding. See generally Teggatz v. Ringleb, 610 N.W.2d 527, 530 (Iowa 2000) (holding “if the terms of the statute are explicit, the plain meaning of the language will be applied [and] we will simply give effect to the statute as written” (citation omitted)). Therefore, we agree with the district court that the amendment to section 908.4(2) violates the due process rights of indigent parolees who meet the test for appointment of counsel set forth in Gagnon.

On the other hand, we reject the plaintiffs’ contention that the statute is unconstitutional in all applications. The plaintiffs’ underlying premise — that all indigent alleged parole violators have the right to appointed counsel — is simply wrong. The Supreme Court made it clear in Gagnon that not all parolees have a due process right to counsel. See Gagnon, 411 U.S. at 787, 93 S.Ct. at 1762, 36 L.Ed.2d at 664 (stating “the Court of Appeals erred in accepting respondent’s contention that the State is under a constitutional duty to provide counsel for indigents in all probation or parole revocation cases”). Therefore, the legislature did not violate the constitution by eliminating a right to counsel for indigent parolees who do not meet the Gagnon criteria. See Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 174 (Iowa 2004) (holding statute “may be enforced to the extent it operates constitutionally”); accord Iowa Code § 4.12 (2003).

In view of the fact that not all alleged violators have a right to court-appointed counsel, there is no constitutional infirmity in the amendment to section 908.2 eliminating the requirement that parolees be informed of their right to appointed counsel. We note, however, that all parolees should be advised at their initial appearance that they have a right to request counsel. Only then will a parolee be in a position to assert a right to counsel, so as to trigger an inquiry by the court into whether the circumstances show the parolee is in fact constitutionally entitled to representation.

IV. Funding of Courtr-Appointed Counsel for Indigent Parolees.

The district court ruled the amendments revoking authority for the state public defender to represent indigent alleged parole violators and removing authorization to pay for such representation from the appropriation made to the state public defender’s office were constitutional. The court also concluded that with the elimination of this source for payment, there was no public funding available to pay for constitutionally required indigent defense in parole revocation proceedings.

The plaintiffs do not challenge the constitutionality of the amendment directed to the participation of the state public defender in providing representation where mandated by Gagnon, but they do assert it violates parolees’ due process rights when the state refuses to pay for appointed counsel. The board responds that while it has no stake in the issue of payment for appointed counsel, “there is support for the district court’s decision that no source [for payment] exists.” Notwithstanding such support, the board does not dispute that funding may be available elsewhere. It argues, however, that because “[t]he district court only considered funding mechanisms set forth in Iowa Code chapter 815,” this court should not go beyond that chapter in searching for possible funding sources.

Unlike our analysis of the right-to-counsel issue, which applied equally to the federal and state constitutional claims, our discussion of the issue of payment for court-appointed counsel focuses on state constitutional law. We rely on cases interpreting state constitutional requirements because, as our subsequent discussion explains, these cases require that court-appointed attorneys in proceedings instituted by the state be compensated from the public fisc. Therefore, we need not consider whether the federal constitution requires a state to pay for constitutionally mandated counsel. See Bolyard v. Berman, 274 N.J.Super. 565, 644 A.2d 1122, 1129 (N.J.Super.Ct.App.Div.1994) (holding “Gagnon does not require that counsel assigned to represent indigent parolees be compensated by the State”).

Initially, we note the inapplicability of the Maghee case upon which the board relies for its statement that there exists support for the district court’s decision that the state has no obligation to pay court-appointed counsel. See Maghee, 639 N.W.2d at 31. In Maghee, we determined that inmates did not have a constitutional right to counsel in disciplinary proceedings. Id. at 30. This court went on to state that even if the district court had “the inherent power to appoint counsel to assist the court in conducting a proceeding,” that power did not necessarily carry “with it the power to order the state to compensate counsel thus appointed.” Id. at 31 (emphasis added). Thus, the issue in Maghee was whether the court had inherent power to appoint counsel and to order counsel’s payment at public expense. In contrast, here, we are concerned with whether constitutionally required counsel must be paid by the state. Maghee is inapposite.

More on point is our decision in McNabb v. Osmundson, 315 N.W.2d 9 (Iowa 1982). In McNabb, we held an indigent facing a possible jail sentence for contempt for nonpayment of child support had a due process right to an attorney. 315 N.W.2d at 11, 14. We concluded this entitlement included a right to court-appointed counsel in an original certiorari action in the supreme court to challenge the district court’s decision in the contempt action. Id. at 15. Although no statutory authority existed for payment of the indigent’s attorney fees in the appellate court proceeding, we noted that “[s]inee 1850 Iowa has stood among that strong minority of states ... holding lawyers compelled to represent indigents must receive reasonable compensation.” Id. at 16. We concluded, therefore, that when the constitution mandates the appointment of counsel, the state has a concomitant responsibility to pay the court-appointed attorney. Id. at 16-17. Although this obligation is limited to those proceedings brought by the state in the public interest, see Lalla v. Gilroy, 369 N.W.2d 431, 433-34 (Iowa 1985), it applies to fees incurred in district court proceedings, as well as fees incurred in the appellate courts, see Lunde v. Ruigh, 356 N.W.2d 566, 568 (Iowa 1984). See generally State Pub. Defender v. Iowa Dist. Ct. for Muscatine County, 594 N.W.2d 38, 40 (Iowa 1999) (holding counsel appointed under McNabb reasoning must be compensated using as a benchmark rates set in Iowa Code section 815.7).

Notwithstanding the state’s obligation to pay the fees of constitutionally required counsel, there is no constitutional infirmity in the amendment to section 815.11, which eliminates the state public defender’s responsibility for court-appointed counsel fees in parole revocation matters. This conclusion is based on the fact there continues to be statutory authority for the payment of such fees. Iowa Code section 815.1, entitled “Costs payable by state in special cases,” provides:

All costs and fees incurred in a parole revocation proceeding ... are waived if the prosecution fails, or if the person liable to pay the costs and fees cannot pay the costs and fees. An award of attorney fees to a court-appointed attorney incurred in these cases shall be paid out of the state treasury from the general fund if the prosecution fails or if the person liable to pay the attorney fees cannot pay them.

Iowa Code § 815.1 (2003) (emphasis added). Thus, there is statutory authority for payment from the general fund of court-appointed counsel’s fees in parole revocation proceedings when the parolee is indigent. See generally State v. Iowa Dist. Ct. for Lyon County, 348 N.W.2d 221, 224 (Iowa 1984) (noting in cases specified in section 815.1, State is liable for attorney fees); State v. Iowa Dist. Ct. of Sioux County, 286 N.W.2d 22, 24 (Iowa 1979) (same).

Even though we disagree with the district court’s conclusion that the legislature has not provided for payment of court-appointed counsel in these matters, we find no error in the district court’s ultimate ruling that the amendments to section 13B.4(1) and section 815.11 are constitutional. These amendments simply changed the mechanics of providing and paying counsel for indigent parolees; instead of relying on the state public defender’s office and budget, the court must now appoint private attorneys who will be paid from the general fund. Because the court is not precluded from appointing counsel when constitutionally required or from providing for payment of such counsel, there is no infringement on parolees’ due process rights by the amendments to sections 13B.4(1) and 815.11.

Y. Summary.

Amended section 908.4(2) violates the Due Process Clause only insofar as it denies court-appointed counsel to indigent parolees entitled to representation under the Gagnon decision. To the extent the amended statute eliminates the right to counsel of parolees who are not constitutionally entitled to an attorney, the amendment is effective. Although due process does not require that alleged parole violators be advised they have a right to appointed counsel, they must be advised at their initial appearances that they have the right to request counsel. If representation is requested and the court determines that counsel is warranted under the Gagnon standards, an attorney must be appointed by the court and paid by the state. Based on these conclusions, we sustain the writ with respect to the district court’s ruling that court-appointed counsel’s fees are not payable with public funds. We annul the writ in all other particulars.

WRIT SUSTAINED IN PART AND ANNULLED IN PART. CASE REMANDED.

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


author: LARSON, Justice.

text:
    Roy Gene KLOBNAK and Catherina Sue Klobnak, Appellants, v. WILDWOOD HILLS, INC., Wildwood Hills Ranch, and David Nadler, Appellees.
    No. 03-1505.
    Supreme Court of Iowa.
    Nov. 10, 2004.
    A. Zane Blessum, Winterset, and Catherine K. Levine, Des Moines, for appellants.
    Dennis P. Ogden and Margaret C. Callahan of Belin Lamson McCormick Zumbach Flynn, a P.C., Des Moines, for appellees.
   LARSON, Justice.

Plaintiffs, Roy and Catherina Klobnak, sued Wildwood Hills, Inc., Wildwood Hills Ranch, and David Nadler (collectively Wildwood) for damages sustained when the plaintiffs’ car struck two horses owned by Wildwood. The district court dismissed the suit on the ground that Iowa no longer has a statute prohibiting animals from running at large, and the defendants therefore owed no duty of care to the plaintiffs. We reverse and remand.

I. Facts and Prior Proceedings.

Because this case arises under the defendants’ pretrial motion to dismiss for failure to state a claim, we consider only the facts as set out in the petition. Robinson v. State, 687 N.W.2d 591, 593 (Iowa 2004). We view the facts alleged in the light most favorable to the plaintiff. According to the petition, the plaintiffs were traveling on a rural road in Madison County when the horses ran onto the roadway and were struck by the plaintiffs’ car. As a result of the collision, both plaintiffs sustained serious injuries.

The plaintiffs alleged Wildwood was negligent in two respects: failing to test and identify the conditions of its fences and failing to take the necessary precautions to make the confinement safe. The defendants moved to dismiss the petition for failure to state a claim, contending that, because the Iowa legislature had repealed Iowa Code chapter 169B (the “fencing in” statute), Wildwood had no duty to fence the horses. Further, it contended, “[sjince no duty to erect a fence exists at common law, Plaintiffs cannot assert breach of any such duty on the part of Wildwood based on the condition of the fence, or a failure to keep the fence safe and secure when confining livestock.” The district court’s calendar entry simply stated: “Defendant’s motion to dismiss is granted. Dismissal is without prejudice.”

II. Principles of Review.

A motion to dismiss is properly granted only if a plaintiffs petition on its face shows no right of recovery under any state of facts. Our review of the district court’s ruling ... is limited to the correction of errors at law. We are bound by the district court’s findings of fact unless not supported by substantial evidence. However, we are not bound by the district court’s application of legal principles or its conclusions of law. Ultimately, our decision to overrule or sustain a motion to dismiss must rest on legal grounds.

Trobaugh v. Sondag, 668 N.W.2d 577, 580 (Iowa 2003) (citations and internal quotations omitted).

It is true the defendants had no statutory duty to restrain their horses because our “fencing in” statute has been repealed. See 1994 Iowa Acts eh. 1173, § 42(1) (repealing Iowa Code ch. 169B). It is also true that no specific duty to restrain livestock exists at common law. See Wagner v. Bissell, 3 Iowa (Clarke) 396 (1856). Wildwood argues that, absent a statute imposing liability, owners may permit their horses to roam at large, free from any liability. It appears to us, however, that the specter of livestock running at large in our motorized society brings into question the rationality of such a rule. Our cases have established that animal-owner liability is not solely based on statute; there have been two potential bases for liability: the “fencing in” statute and a breach of ordinary care. As our cases have made clear, extinguishment of the statutory duty does not affect the duty to exercise ordinary care.

Flesch v. Schlue, 194 Iowa 1200, 191 N.W. 63 (1922), was decided before the general “fencing in” statute was passed. In that case, we recognized a claim based on a breach of ordinary care under facts that were nearly identical to those in this case: the defendant’s horse was loose on the highway and was struck by the plaintiffs car. The issue of liability in Flesch did not turn on a statute because one did not exist at that time. Instead, the issue was “whether the presence of the horse upon the highway resulted from a want of care on the part of the defendant.... ” Flesch, 194 Iowa at 1201, 191 N.W. at 63. We approved the following jury instruction:

Ordinary care by the defendant of his horse would be such care as an ordinarily prudent and careful farmer exercises under like circumstances. If the ordinary, careful, and prudent farmer puts his horse in a barn, and shuts and latches the doors thereto, or puts it in the yard, properly fenced, and properly closes and secures the gates, then that would be ordinary care.

Id. at 1201-02, 191 N.W. at 63. We concluded that substantial evidence supported the jury’s finding of a breach of care and affirmed a judgment for the plaintiff. Id. at 1202,191 N.W. at 63-64.

In 1924, soon after Flesch, the Iowa legislature passed a statute that created a specific duty for owners to restrain their animals, see Wenndt v. Latare, 200 N.W.2d 862, 865 (Iowa 1972) (discussing Iowa Code § 2980 (1924)), and versions of this law remained in effect until its 1994 repeal. The statute merely added a new dimension in animal-owner liability: prima facie evidence of negligence. See, e.g., Ritchie v. Schaefer, 254 Iowa 1107, 1113-14, 120 N.W.2d 444, 447-48 (1963) (holding that evidence that an animal was at large on the highway was prima facie evidence of the defendant’s negligence); Hansen v. Kemmish, 201 Iowa 1008, 1015, 208 N.W. 277, 280 (1926) (same); Stewart v. Wild, 196 Iowa 678, 685, 195 N.W. 266, 268-69 (1923) (same); Strait v. Bartholomew, 195 Iowa 377, 379-80, 191 N.W. 811, 812 (1923) (same). None of our cases have suggested that the statute supplanted the common-law duty of ordinary care; it merely complimented it.

The independent statutory and common-law duties were clearly articulated in the case of Weber v. Madison, 251 N.W.2d 523 (Iowa 1977). In Weber the defendant’s geese were roaming at large on a highway and caused the plaintiff to swerve and wreck his car. 251 N.W.2d at 524-25. The plaintiff sued under two theories: (1) the defendant’s breach of his statutory duty to restrain the flock, and (2) breach of his common-law duty of ordinary care in allowing the flock to be on the highway. Id. at 525. We held that the defendant did not breach a statutory duty because the relevant statute, Iowa Code section 188.2, did not cover geese. Id. at 526 (“[T]he 1924 legislature in enacting [the statute] did not intend its prohibition to include fowl.”).

On Weber’s common-law negligence claim, we said

[t]he [defendant’s] asserted right to permit geese to run at large must be examined in light of the common-law obligation of every person to use that reasonable care under the circumstances to avoid injury to another which an ordinarily prudent person would exercise in a like situation.

Id.

We noted that, while past cases had held that geese enjoyed a “free commoner” status, id. at 527, “there has been a revolution in our transportation,” justifying a different rule. Id. at 528.

The tendency of modern decisions is to restore the old common-law rule imposing liability with respect to all free-ranging animals....
A flock of large geese on the highway obviously presents a more dangerous hazard to today’s fast-moving vehicles with under-slung chassis and minimal fender clearance....
We hold neither the “free commoner” status of geese nor the failure of the legislature to statutorily prohibit the owner from permitting geese to run at large will excuse an owner from negligently permitting them to be unattended on a traveled highway if their presence there creates a hazard to the motoring public.

Id. (citations omitted). In Weber we reversed a district court’s grant of a motion to dismiss, holding that, even though the fencing-in statute did not apply, an owner still has a duty to use ordinary care when harboring animals and may be liable if he could reasonably anticipate that injury may occur if they roam at large. Id. at 528-29.

Cases from other jurisdictions support this view. See, e.g., Drew v. Gross, 112 Ohio St. 485, 147 N.E. 757, 759 (1925) (holding defendant hable at common law); Eixenberger v. Belle Fourche Livestock Exch., 75 S.D. 1, 58 N.W.2d 235, 237 (1953) (recognizing that at common law an animal owner was not required to restrain the animal, but he could be liable if he “should reasonably have anticipated that injury would result from its being so at large on the highway” (internal quotations omitted)), cited with approval in Pexa v. Clark, 85 S.D. 37, 176 N.W.2d 497, 499 (1970) (noting proximity of animals to road as a factor to be considered); Smith v. Whitlock, 124 W.Va. 224, 19 S.E.2d 617, 619-20 (1942) (recognizing common-law duty of care by animal owners and noting that a specific duty to restrain animals should be created by the legislature, not the courts). The court in Drew summarized the rules with respect to animal-owner liability in the absence of a statutory duty:

The owner of a domestic animal is responsible for negligence in its keeping whereby damage is occasioned. The principal test, as to whether the owner is or is not negligent, is whether he could or could not reasonably have anticipated the occurrence which resulted in the injury. It is a question of fact for the jury whether an owner of horses who turns them loose unattended into a field adjacent to a much-traveled highway in the nighttime, the fence of which field is in such defective condition that the horses may easily stray out onto the highway, could have anticipated that one of the horses would stray out onto the highway and collide with an automobile thereon.
A statute is not always required to establish the duty of ordinary care. The duty may arise from statute, or it may arise from ordinance, from contract, or from the relation of the parties. Apart from specific statute the law imposes upon every person the duty of using his own property so as not to injure his neighbor. As conditions change and modes of life alter, the duty to observe ordinary care in the use of one’s own property, while not altering in its essentials, will alter in its details. What ordinary care demands depends always upon the circumstances of the case....

Drew, 147 N.E. at 758-59.

The common-law duty of care recognized by us in Weber is the standard articulated in most legal treatises and encyclopedias. See, e.g., 61A C.J.S. Motor Vehicles § 1296, at 192 (2002) (“[T]he owner of animals has a duty to care for [them] in a reasonable fashion, and may be liable for injuries resulting from collisions with his or her animals due to his or her negligence in permitting them to be on the highway.”); James L. Rigel-haupt, Jr., Annotation, Liability of Owner of Animal for Damage to Motor Vehicle or Injury to Person Riding Therein Resulting from Collision with Domestic Animal at Large in Street or Highway, 29 A.L.R.4th 431, 443-49 (1984) (stating that, in light of modern traffic conditions, most courts have held that, at a minimum, an animal owner will be liable for injuries caused by his animal wandering onto a highway when he should reasonably have anticipated that injury would result if the animal were to stray there). The Restatement of Torts uses the situation in this case as an example:

There may, however, be circumstances under which it will be negligent to permit an animal to run at large, even though it is of a kind that customarily is allowed to do so and under other circumstances there would be no negligence. Thus if a horse is turned loose in a field that abuts upon a public highway, and there is no fence to keep him off the highway, it may reasonably be anticipated that he will wander onto it, and that, particularly in the night time, his presence there may constitute an unreasonable danger to traffic. In these cases there may be liability for negligence upon the same basis as in other negligence cases.

Restatement (Second) of Torts § 518 cmt. k (1977).

Wildwood owed the plaintiffs a duty of ordinary care, despite the absence of a fencing-in statute. We hold it was error for the district court to dismiss the petition and therefore reverse and remand for further proceedings.

REVERSED AND REMANDED.


author: LAVORATO, Chief Justice.

text:
    Theresa J. STOTTS, Appellant, v. Daniel C. EVELETH, Northwood-Kensett Community School District, Thomas Spear, Kenneth Williams, and BCLUW Community School District, Appellees.
    No. 03-1435.
    Supreme Court of Iowa.
    Nov. 10, 2004.

      James L. Sayre of James L. Sayre, P.C., Clive, for appellant.
    Randall E. Nielsen of Pappajohn, Shri-ver, Eide & Nicholas P.C., Mason City, for appellee Eveleth.
    Joel J. Yunek of Laird, Heiny, McMani-gal, Winga, Duffy & Stambaugh, P.L.C., Mason City, for appellee Northwood-Ken-sett Community School District.
    Kirke C. Quinn and C. Ann Jordan of Jordan, Mahoney, Jordan & Quinn, P.C., Boone, for appellees Thomas Spear, Kenneth Williams, and BCLUW Community School District.
   LAVORATO, Chief Justice.

The question here is whether there is any civil liability arising out of a sexual relationship between a high school student and a teacher. The student appeals from a district court order granting summary judgment to the teacher and from the court’s order dismissing the student’s claim against several remaining defendants. We affirm.

I. Background Facts.

The BCLUW Community School District (BCLUW) employed Daniel C. Evel-eth as a licensed and certified teacher from 1984 through 1997. During the 1996-97 school year, a complaint of sexual harassment was filed against Eveleth. Following their investigation, investigators believed the complaint was true.

Thereafter, Eveleth and Thomas Spear, BCLUW superintendent, reached a settlement. Eveleth would resign in return for a positive letter of recommendation. In addition, BCLUW would not file a complaint with the Iowa board of educational examiners (board), and BCLUW staff and school board members would not tell Evel-eth’s prospective employers about the investigation. Eveleth resigned, the school district did not file a complaint, and Spear and Kenneth Williams, BCLUW High School principal, signed a positive letter of recommendation.

Following his resignation, Eveleth applied for a teaching position with the Northwood-Kensett Community School District (Northwood-Kensett) during the summer of 1997. Eveleth neglected to tell Northwood-Kensett about what happened at BCLUW. Nor did Williams tell Jerry Melntire, Northwood-Kensett’s superintendent, about what happened when Mcln-tire contacted Williams about Eveleth’s application. Williams simply told Mclntire that Eveleth had resigned and did not tell him that Eveleth had been asked to leave.

Northwood-Kensett employed Eveleth as a teacher starting with the 1997-98 school year. Eveleth taught junior high while employed by Northwood-Kensett. Although the junior high and high school were in the same building, they were separated from each other.

Theresa J. Stotts was a senior at North-wood-Kensett during the 1999-2000 school year. A sexual relationship developed between Eveleth and Stotts beginning in February 2000. By that time, Stotts had reached the age of eighteen. Eveleth was not and had not been one of Stotts’s teachers. Nor was he an advisor or coach for any of her activities. When the couple engaged in sex, it was always away from the school premises, and it was always consensual.

Northwood-Kensett learned of the sexual relationship when Stotts’s mother sent the school district a complaint. On North-wood-Kensett’s behalf, an investigation was conducted that determined the complaint was true. Following the investigation, Northwood-Kensett requested and received Eveleth’s resignation. North-wood-Kensett also filed a complaint with the board. Thereafter, Eveleth voluntarily turned in his teaching license.

II. Proceedings.

In January 2002 Stotts sued Eveleth and Northwood-Kensett. Stotts alleged Eveleth was negligent and breached fiduciary duties by initiating and continuing a sexual relationship with her. Stotts also alleged that Eveleth was negligent per se by maintaining the sexual relationship in violation of statute and of educational and professional standards. Stotts alleged that Northwood-Kensett was negligent and breached fiduciary duties by failing to properly investigate Eveleth’s background.

Following discovery, during which Stotts learned about Eveleth’s behavior while employed by BCLUW, she added as additional defendants BCLUW, its superintendent (Spear), and its high school principal (Williams). She alleged these defendants were negligent and breached fiduciary duties by (1) failing to forward to the board a complaint found to be true, (2) deliberately suppressing the information they had concerning Eveleth, and (3) misrepresenting the facts concerning educational matters.

Later, Eveleth filed a motion for summary judgment as to Stotts’s theories of negligence and breach of fiduciary duty. The district court sustained the motion, concluding that Stotts had neither a statutory nor common-law cause of action against Eveleth. Concluding that a fiduciary duty does not automatically exist between a teacher and a student, the court found as a matter of law that a fiduciary duty did not exist between Eveleth and Stotts.

Following the district court’s ruling, the remaining defendants filed motions to dismiss. The thrust of their motions was simply that if Eveleth owed no duty to Stotts, they owed no duty to her either. The court sustained the motions.

Stotts appealed from both rulings.

III. Issues.

Stotts contends the district court erred in concluding that Eveleth owed her no duty that would give rise to an actionable claim for negligence. In support of her contention, Stotts argues that the duty Eveleth owed her derives from statutes and administrative regulations and common law.

In addition, Stotts contends that the student-teacher relationship between Eveleth and her imposed upon Eveleth a fiduciary duty to act in her best interest. Eveleth breached that duty when he took sexual advantage of her.

Finally, Stotts contends the district court erred in sustaining the remaining defendants’ motions to dismiss. In support of this contention, Stotts relies on her arguments concerning Eveleth’s statutory, common-law, and fiduciary duties to her.

IV. Scope of Review.

We recently summarized rules governing our review of summary judgment rulings in Hegeman v. Kelch:

We review a summary judgment ruling for correction of errors at law. Summary judgment is appropriate under Iowa Rule of Civil Procedure 1.981 only when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. We examine the record before the district court to determine whether any genuine issue of material fact exists and whether that court correctly applied the law. Summary judgment is the appropriate remedy where questions of statutory interpretation are involved.

666 N.W.2d 531, 533 (Iowa 2003) (citations omitted).

Stotts’s appeal raises the issue whether a duty existed. Because the existence of a duty is a legal issue for the court, summary judgment is a proper vehicle to resolve the issue. Kolbe v. State, 625 N.W.2d 721, 725 (Iowa 2001).

We review rulings on motions to dismiss for correction of errors at law. Iowa R.App. P. 6.4; Bauman v. Maple Valley Cmty. Sch. Dist., 649 N.W.2d 9, 12 (Iowa 2002).

V. Negligence.

As mentioned, Stotts alleged in her petition that Eveleth was negligent by initiating and continuing a sexual relationship with her. An actionable claim of negligence includes “ ‘the existence of a duty to conform to a standard of conduct to protect others, a failure to conform to that standard, proximate cause, and damages.’ ” Van Essen v. McCormick Enters. Co., 599 N.W.2d 716, 718 (Iowa 1999) (citations omitted). We look to legislative enactments, prior judicial decisions, and general legal principals as a source for the existence of a duty. Id.

Stotts claims the duty that Eveleth owed her is derived from (1) statutes and administrative regulations and (2) the common law.

A. Statutory duty. As for the statutory duty, Stotts relies on Iowa Code sections 272.1 and .2 (Supp.2003) and Iowa Administrative Code rule 282-12.2(l)(c) (2003).

Section 272.1(13) defines a student for our purposes to mean “a person who is enrolled in a course of study at a school.... ” Iowa Code § 272.1(13). Iowa Code section 272.1(15) defines a teacher as a

licensed member of a school’s instructional staff who diagnoses, prescribes, evaluates, and directs student learning in a manner which is consistent with professional practice and school objectives, shares responsibility for the development of an instructional program and any coordinating activities, evaluates or assesses student progress before and after instruction, and who uses the student evaluation or assessment information to promote additional student learning.

Id. § 272.1(15).

Iowa Code section 272.2 creates the board of educational examiners and gives the board “exclusive authority” to license teachers; enforce the board’s rules through revocation or suspension of a license, or by other disciplinary action; establish and adopt rules; deny or revoke a license; and manage other responsibilities enumerated in section 272.2. Iowa Code § 272.2(1), (4), (12), (13), (14), (15). Rule 282 — 12.2(l)(c) provides that it is unprofessional and in violation of the board’s criteria for a teacher to be sexually involved with a student, even if the sexual involvement is consensual. Iowa Admin. Code r. 282 — 12.2(l)(c). According to the rule, sexual involvement includes, among other things, commission of any sex act as defined in Iowa Code section 702.17. Id.

At the time of the alleged acts of negligence, it is uncontroverted that Stotts was a student within the meaning of section 272.1(13), Eveleth was a teacher within the meaning of section 272.1(15), the two engaged in sex acts as defined in section 702.17, and the sex acts were consensual.

However, this is not the end of the inquiry because even if the statutes and regulation upon which Stotts relies create a duty, violation of that duty does not necessarily give rise to a tort claim. Sanford v. Manternach, 601 N.W.2d 360, 371 (Iowa 1999). Such a violation gives rise to a private cause of action only when the statute, explicitly or implicitly, provides for such an action. Id.

There is no provision expressly providing a private cause of action in either Iowa Code chapter 272 or Iowa Administrative Code rule 282-12.2(l)(e) for a teacher initiating and continuing a sexual relationship with a student. We therefore employ the following four-factor test to determine whether a private cause of action could be implied from Iowa Code chapter 272:

(1) Is the plaintiff a member of the class for whose benefit the statute was enacted? (2) Is there any indication of legislative intent, explicit or implicit, to either create or deny such a remedy? (3) Would allowing such a cause of action be consistent with the underlying purpose of the legislation? (4) Would the private cause of action intrude into an area over which the federal government or a state administrative agency holds exclusive jurisdiction?

Kolbe, 625 N.W.2d at 726-27. No implied private cause of action exists if any one of these four factors is not satisfied. Id. at 727. In addition, if we do not infer a private cause of action for statutory violations, we likewise refuse to infer such an action from the violation of a rule enacted to carry out statutory directives. Id.

The district court applied the four-factor test and concluded there was no indication of legislative intent to implicitly create a private cause of action — the second factor of the four-factor test. For reasons that follow, we agree.

Iowa Code section 272.2 gives the board the exclusive authority to “[ejnforce rules adopted by the board through revocation or suspension of a license, or by other disciplinary action against” a teacher “licensed by the board.” Iowa Code § 272.2(4). Section 272.2 also gives the board exclusive authority to “[ajdopt rules to determine whether an applicant is qualified to perform the duties for which a license is sought.” Id. § 272.2(14). Iowa Code section 272.2(14) directs that such rules shall include, among other things, the board’s authority to deny a license or revoke the license “of a person upon the board’s finding by a preponderance of evidence that either the person has been convicted of a crime or that there has been a founded report of child abuse against the person.” Id. § 272.2(14)(a). Finally, Iowa Code section 272.2(14) requires that such rules “shall require the board ... to revoke the license of a person” who has been found guilty or has pled guilty to a number of criminal offenses “established pursuant to Iowa law,” including sexual contact with a child or minor as set out in Iowa Code chapter 709. Id. § 272.2(14)(6 )(l)(b). The Iowa criminal code defines a child as “any person under the age of fourteen years.” Id. § 702.5 (2003). Pursuant to Iowa Code section 599.1, “[t]he period of minority extends to the age of eighteen years.” Id. § 599.1 para. 1. For purposes of juvenile law, a child is a person under eighteen years of age. Id. § 232.2(5) (Supp.2003).

The administrative rule upon which Stotts relies states that it is unprofessional and in violation of the board’s criteria for a teacher to be sexually involved with a student, even if the sexual involvement is consensual. Iowa Admin. Code r. 282— 12.2(l)(c).

Section 272.2 clearly suggests that this provision was intended to be a regulatory measure designed to provide the board with authority to suspend or revoke a teacher’s license in those situations when violations of its provisions occur. Section 272.2 provides not even a hint that the legislature intended to provide a private cause of action for such violations. Cf. Kolbe, 625 N.W.2d at 727 (holding that statutory provisions were intended as regulatory measures limiting the driving privileges of those incapable of operating a motor vehicle safely and were devoid of any suggestion of a private remedy).

Additionally, section 272.2 gives the board exclusive authority to enforce its rules, which signals the legislature’s intent to deny court enforcement through a private cause of action. Moreover, concerning the fourth factor of the four-factor test, allowing such an action would be tantamount to an intrusion into an area over which a state administrative agency holds exclusive jurisdiction.

Because we do not infer a cause of action for violation of section 272.2, we likewise do not infer such an action for the violation of rule 282-12.2(l)(e), implemented to carry out this statutory provision. Our reason for not inferring a cause of action from the rule is that administrative rules cannot go any further than the law permits. Kolbe, 625 N.W.2d at 727.

Stotts further argues that changes in the law concerning sexual exploitation by a school employee, effective July 1, 2003, long after the events in question, recognize a cause of action already exists. See Iowa Code §§ 614.1(12), 709.15. Because Stotts did not secure a district court ruling on the issue, she failed to preserve the issue for our review. See Meier v. Senecaut, 641 N.W.2d 532, 540 (Iowa 2002) (error preservation “requires a party seeking to appeal an issue presented to, but not considered by, the district court to call to the attention of the district court its failure to decide the issue”).

Although we conclude sections 272.1 and .2 and rule 282-12.2(l)(c) do not provide Stotts with a private cause of action against Eveleth, we still must decide whether Eveleth owed Stotts a common-law duty, a breach of which would entitle her to pursue a claim for money damages against him.

B. Common-law duty. Apart from statute, in any tort case, the threshold question is whether the defendant owes a legal duty to the plaintiff. J.A.H. ex rel. R.M.H. v. Wadle & Assocs., P.C., 589 N.W.2d 256, 258 (Iowa 1999). “A legal duty ⅛ defined by the relationship between individuals; it is a legal obligation imposed upon one individual for the benefit of another person or particularized class of persons.’ ” Id. (citation omitted). Whether, under the particular facts of a case, such a duty exists is a question of law. Id.

In deciding this question of law, three factors govern our analysis: (1) the relationship between the parties, (2) reasonable foreseeability of harm to the person who is injured, and (3) public policy considerations. We use these factors under a balancing approach and not as three distinct and necessary elements. In the end, whether a duty exists is a policy decision based upon all relevant considerations that guide us to conclude a particular person is entitled to be protected from a particular type of harm.

Id. (citations omitted).

Stotts contends that under this approach a person’s status as a teacher imposes upon that person a legal duty to refrain from any sexual contact with a student. This duty exists regardless of whether or not there is a teacher-student relationship. Thus, Stotts argues Eveleth owed her a legal duty to refrain from engaging in any type of sexual contact with her while she was a student.

At all times during her consensual sexual relationship with Eveleth, Stotts was at least eighteen years old, which is above the age of consent as far as our criminal statutes are concerned. So, for all intents and purposes, what we have here is a sexual relationship between two consenting adults that was not contrary to any law at the time. Moreover, Stotts was never a student of Eveleth, and Eveleth never exercised any authority or influence over her. Finally, all of the sexual contact took place away from school premises. Given these facts, should we as a matter of public policy find that Eveleth owed Stotts a duty to refrain from any sexual contact with her simply because she was a student?

One court has considered this precise issue under similar facts. See Hei v. Holzer, 139 Idaho 81, 73 P.3d 94 (2003). Hei involved a relationship between a student and her physical education teacher and coach. Id. at 97. The student also helped the teacher as a teacher’s aide. Id. One month after the student turned eighteen, she and the teacher began a romantic relationship that eventually involved sexual intercourse. Id. The student and her parents sued the teacher and several others. Id. at 98. Of particular relevance here is the student’s negligence claim against the teacher. The Idaho Supreme Court sustained the trial court’s grant of summary judgment on this claim, holding:

While we have recognized a duty of care owed by teachers to students, we have not recognized such a duty for students who have reached the age of majority and entered into a consensual relationship with a teacher that is otherwise legal.

Id. (citation omitted). Implicit in this holding is the court’s refusal to recognize as a matter of public policy such a duty.

We likewise refuse to find a duty of care here. At the time, the sexual contact was not contrary to any criminal or civil statute. Moreover, there was no special teacher-student relationship between Evel-eth and Stotts. Thus, Eveleth was not in a position to exert pressure on Stotts to engage in sex at the risk of dire consequences if she refused. So there was no reasonable foreseeability of harm to Stotts simply because at the time of the sexual contact Eveleth was a teacher and Stotts was a student. While Eveleth’s behavior in having sexual relations with a student is offensive, that offensiveness is not enough to create a duty on the part of Eveleth to refrain from such relations with Stotts.

VI. Breach of Fiduciary Duty.

Stotts also contends that a fiduciary relationship existed between Eveleth and her, and for that reason Eveleth owed Stotts a duty to refrain from sexual contact with her. That duty, she argues, is based on a teacher’s general duty to act in the best interest of a student. Stotts asserts that Eveleth abused his position as a teacher and the trust she as a student placed in him by taking sexual advantage of her. Therefore, Stotts concludes, the district court erred in finding (1) that a fiduciary duty does not automatically exist between a teacher and student and (2) as a matter of law no such duty existed between Eveleth and her.

A fiduciary relationship is one in which a person is under a duty to act for the benefit of another as to matters within the scope of the relationship. Mendenhall v. Judy, 671 N.W.2d 452, 455 (Iowa 2003). We have considered a fiduciary relationship as a very broad term

“embracing both technical fiduciary relations and those informal relations which exist wherever one man trusts in or relies upon another. One founded on trust or confidence reposed by one person in the integrity and fidelity of another. A ‘fiduciary relation’ arises whenever confidence is reposed on one side, and domination and influence result on the other; the relation can be legal, social, domestic, or merely personal. Such relationship exists when there is a reposing of faith, confidence and trust, the placing of reliance by one upon the judgment and advice of the other.”

Econ. Roofing & Insulating Co. v. Zumaris, 538 N.W.2d 641, 647 (Iowa 1995) (citation omitted). Because the circumstances giving rise to a fiduciary duty are so diverse, whether such a duty exists depends on the facts and circumstances of each case. Id. at 648.

Here, it is uncontroverted that Eveleth was not Stotts’s teacher and never had been. In addition, Stotts generated no genuine issue of material fact on whether she reposed faith, confidence, and trust in Eveleth; that she relied on his judgment and advice; or that he dominated and influenced her. The uncontroverted facts are that the relationship was simply one of a sexual nature between two consenting adults. We therefore agree with the district court that as a matter of law no fiduciary duty existed.

VII. Remaining Defendants.

As mentioned, the district court granted the remaining defendants’ motions to dismiss. The motions were premised on the theory that if Eveleth had no duty to Stotts then the remaining defendants likewise had no duty to her. The district court agreed and sustained the motions.

These defendants chose to file motions to dismiss rather than motions for summary judgment. Before the district court can sustain a motion to dismiss, it must conclude that no state of facts is conceivable under which the plaintiff might show a right of recovery. Unertl v. Bezanson, 414 N.W.2d 321, 324 (Iowa 1987). In making this determination, the court must accept as true all the allegations of the petition. O’Hara v. State, 642 N.W.2d 303, 305 (Iowa 2002). Stotts’s claim against these defendants is premised on Eveleth owing her a statutory and common law duty as well as a fiduciary duty. The district court would therefore have to accept these allegations as true thereby preventing it from sustaining the motion. That would leave us no choice but to reverse and remand to allow these defendants to file a motion for summary judgment. To conserve judicial resources, we treat the motion to dismiss as a motion for summary judgment. See Troester v. Sisters of Mercy Health Corp., 328 N.W.2d 308, 311 (Iowa 1982) (“in motions to dismiss ‘where matters outside the pleadings are relied upon in support of the motion, the proper procedure is to treat the motion as one for summary judgment’ ”) (quoting Allan D. Vestal & Philip Willson, Iowa Practice § 1506(1) (1974)).

Stotts contends the district court erred in holding that the remaining defendants did not have a statutory and common-law duty as well as a fiduciary duty to her when the court dismissed her claims against these defendants. In support of her contention, Stotts relies on her arguments that Eveleth had a statutory and common-law duty to her as well as a fiduciary duty. Stotts acknowledges, as she must, that if Eveleth had no statutory and common-law duty and no fiduciary duty to her, then the remaining defendants likewise had no such duty. In short, there cannot be a right of recovery against these defendants if Eveleth committed no tort. Cf. Schoff v. Combined Ins. Co. of America, 604 N.W.2d 43, 53 (Iowa 1999) (holding theories of negligent hiring and supervision apply only when the employee committed an actionable tort).

VIII. Disposition.

In sum, we conclude Eveleth owed Stotts neither a statutory nor common-law duty. Nor did he owe her a fiduciary duty. The district court therefore correctly sustained Eveleth’s motion for summary judgment on her claims against Eveleth. Treating the remaining defendants’ motions to dismiss as motions for summary judgment, we conclude the remaining defendants likewise owed her no such duties. The district court therefore correctly dismissed Stotts’s claims against these defendants. For all of these reasons, we affirm the district court rulings as to all of the defendants.

AFFIRMED.