author: CARTER, Justice.

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Charles R. NAYLOR, Jr., Respondent.
    No. 00-1977.
    Supreme Court of Iowa.
    March 21, 2001.
    Norman G. Bastemeyer and David J. Grace, Des Moines, for complainant.
    Charles R. Naylor, Jr., Dubuque, pro se.
   CARTER, Justice.

This matter is before us for review of a report of the Grievance Commission of this court concerning a disciplinary complaint against respondent, Charles R. Naylor, Jr. We review these matters pursuant to Court Rule 118.10 and consider anew both the facts and the appropriate discipline to be imposed. Although the Grievance Commission has recommended revocation of respondent’s license to practice law, our review convinces us that a one-year suspension is a more appropriate sanction for the ethical violations found to have occurred.

The complaint against respondent alleged that, while his license was under suspension for failing to comply with the continuing legal education requirements imposed by Court Rule 123.4, he continued to place his name in the local telephone yellow pages under the listing of practicing attorneys. The facts produced by the Iowa Supreme Court Board of Professional Ethics and Conduct show that respondent’s license was suspended effective November 21, 1997. The evidence further shows that while this suspension was in effect his name was listed as a practicing attorney in the yellow pages of the Du-buque telephone directory for the years 1999-2000 and 2000-2001.

The board’s complaint against respondent has been met with absolute indifference on his part. He has failed to respond to the board’s request for admissions, was unavailable to participate in a conference call to establish a hearing date, and did not appear at the hearing before the Grievance Commission, despite the fact that he had been advised of the time and place of the hearing by personal service.

The Grievance Commission found that respondent violated Disciplinary Rules 1-102(A)(5) and 1-102(A)(6) of the Iowa Code of Professional Responsibility for Lawyers by holding himself out as practicing law while under suspension. It also found that his failure to cooperate throughout the disciplinary proceeding was itself a violation of the Code of Professional Responsibility. DR 1-102(A)(6). We are in complete agreement with the Grievance Commission’s findings on these violations.

By a majority vote, the Grievance Commission recommended that respondent’s license be revoked. We note that revocation of an attorney’s license was ordered in Iowa Supreme Court Board of Professional Ethics & Conduct v. Palmer, 563 N.W.2d 634, 635 (Iowa 1997), in which, like the present case, the attorney approached the disciplinary proceeding with complete indifference. In Palmer, however, the underlying claim was far more serious than the violation asserted in the complaint against this respondent. We have recognized that lack of cooperation is itself a violation of the Code of Professional Responsibility and warrants discipline. Comm, on Profl Ethics & Conduct v. Horn, 379 N.W.2d 6, 9 (Iowa 1985). We are convinced, however, that a sanction of revocation is not justified in the present case.

Although we give respectful consideration to the recommendation of the Grievance Commission in this case, we are convinced that respondent’s transgressions are best dealt with by imposing a one-year suspension with the condition that he must satisfy this court upon seeking reinstatement to the practice that his past misdeeds will not be repeated, that he has corrected the situation involving the telephone directory listing, and that he is prepared to conduct himself as a responsible member of the bar.

We order that the license of attorney Charles R. Naylor, Jr. be suspended indefinitely with no possibility of reinstatement for one year from the date of the filing of this opinion. Upon application for reinstatement, respondent must show to this court’s satisfaction that his past indifference to our disciplinary system will not be repeated, that he has corrected the situation involving the telephone directory listing, and that he is prepared to conduct himself as a responsible member of the bar. He must also show that he has fully complied with the requirements of Court Rule 123.4, which led to his prior suspension, that he has refrained from all facets of the practice of law as specified in Court Rule 118.12, and that he has met the requirements for client notification set forth in Court Rule 118.18. Costs of the disciplinary proceeding are assessed against respondent and shall be paid prior to any application for reinstatement.

LICENSE SUSPENDED.


source: Caselaw Access Project

author: TERNUS, Justice.

license: Public Domain

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Frank B. ADAMS, Respondent.
    No. 00-1760.
    Supreme Court of Iowa.
    March 21, 2001.

      Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for complainant.
    Frank B. Adams, Mason City, respondent, pro se.
   TERNUS, Justice.

The Grievance Commission of the Iowa Supreme Court recommends that the court suspend the license of attorney Frank B. Adams for no less than thirty days based on his multiple violations of the Iowa Code of Professional Responsibility. Although we agree with the Commission’s findings with respect to the ethical violations, we believe that Adams’ conduct warrants a more severe sanction. Therefore, we suspend Adams’ license to practice law for three months.

I, Factual Background.

Adams does not dispute the facts giving rise to this disciplinary action. Adams has practiced law in Iowa since 1991 and at the time of the events giving rise to this matter conducted his practice in Mason City, Iowa.

In March 1999, John and Rebecca Bab-cock and John’s parents, Lloyd and Edna Babcock, employed Adams to file bankruptcy petitions on their behalf. Adams stated that if there were no problems, it would take about two months to obtain a discharge in bankruptcy. The Babcocks completed questionnaires to assist Adams in preparing the bankruptcy petitions and advanced $175 per couple for court costs. Later they signed the petitions prepared by Adams and each couple paid a $600 retainer. Adams deposited the funds paid to him by the Babcocks into his general checking account and not into a trust account as defined in Iowa Code of Professional Responsibility DR 9-102(A).

Although Adams never filed the bankruptcy petitions, he told the Babcocks on several occasions that he had. He misrepresented to them that a meeting of creditors had been scheduled, then told them that it had been cancelled. Similarly, he falsely told the Babcocks that a court hearing had been scheduled, but then informed them that it had been rescheduled. In September 1999, shortly before the second fabricated court date, Adams told Rebecca Babcock that the bankruptcy court did not have their bankruptcies on its docket and that he would find out why. He called back to say that the court had lost their file. Rebecca then called the bankruptcy court herself and found out that the petitions had never been filed.

In addition to these numerous misrepresentations, Adams repeatedly failed to return phone calls from the Babcocks. Moreover, after the Babcocks had signed the petitions and been assured that the petitions had been filed, they told their creditors, falsely as it turned out, that they had filed for bankruptcy.

Upon learning that the bankruptcy petitions had not been filed, John and Rebecca Babcock terminated their relationship with Adams and employed another attorney to handle their bankruptcy. They obtained a discharge within forty-five days. Lloyd and Edna also terminated their relationship with Adams but were so disillusioned with attorneys that, even as of the date of the hearing in this matter, they had not sought advice from another lawyer. Upon the Babcocks’ request, Adams refunded their retainers and the court costs they had advanced.

Although the Babcocks requested their file, it was never returned to them. Adams said that he would give them the questionnaires they had completed, but not his notes. But even the questionnaires were not provided to the Babcocks because Adams had lost their file sometime in April or May 1999. Adams did not admit this loss until he responded to a request for production of documents in this disciplinary case.

Adams has suffered from depression for fifteen to twenty years, with the depression being worse in the last three to four years. Although he has sought treatment for his illness in the past, he did not think it had been successful or helpful. He has neither sought nor received treatment in the last two to three years. He has no present plans to obtain help in dealing with his illness.

II. Commission’s Findings and Recommendations.

The Grievance Commission concluded that Adams had violated six disciplinary rules: DR 1-102(A)(1) (“A lawyer shall not [violate a disciplinary rule.”); DR 1-102(A)(4) (“A lawyer shall not [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”); DR 2-110(A)(2) (“[A] lawyer shall not withdraw from employment until reasonable steps have been taken to ... deliver[ ] to the client all papers and property to which the client is entitled....”); DR 6-101(A)(3) (“A lawyer shall not [n]egleet a client’s legal matter.”); DR 7-101(A)(l) (“A lawyer shall not intentionally [flail to seek the lawful objectives of a client through reasonably available means permitted by law ....”); and DR 9-102(A) (“All funds of clients paid to a lawyer ... shall be deposited in one or more identifiable interest bearing trust accounts .... ”). The Commission recommended that Adams’ license be suspended for thirty days.

Our review is de novo. See Ct. R. 118.11; Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Plumb, 589 N.W.2d 746, 748 (Iowa 1999). The Board must establish the violations by a convincing preponderance of the evidence. See Plumb, 589 N.W.2d at 748.

III. Ethical Violations.

Upon our de novo review of the record, we agree with the Commission’s conclusion that Adams violated the six disciplinary niles noted above. Adams’ failure to complete the work he had undertaken for his clients, his multiple misrepresentations to his clients, his failure to deposit advances for court costs and retainers into a trust account, and his failure to return his clients’ files as requested provide convincing factual support for this conclusion. See Iowa Supreme Ct. Bd. of Prof l Ethics & Conduct v. Jay, 606 N.W.2d 1, 4 (Iowa 2000) (DR 7-101(A)); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Winkel, 599 N.W.2d 456, 459 (Iowa 1999) (DR 9-102(A)); Plumb, 589 N.W.2d at 748 (DR 2-110(A)(2)); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Stein, 586 N.W.2d 523, 526 (Iowa 1998) (DR 1-102(A)(4)); Iowa Supreme Ct. Bd. of Prof l Ethics & Conduct v. Lesyshen, 585 N.W.2d 281, 285 (Iowa 1998) (DR 6-101(A)(3)). Any personal problems that may have contributed to Adams’ conduct do not operate as an excuse for these ethical violations. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Thompson, 595 N.W.2d 132, 134 (Iowa 1999) (“As for Thompson’s depression and alcoholic conditions, we do not recognize such problems as an excuse for unethical conduct.”). We now turn to the appropriate discipline.

IV.Discipline.

“While we give respectful consideration to the commission’s findings and recommendations, we are not bound by them.” Winkel, 599 N.W.2d at 460. Ultimately, it is the court’s duty to decide what discipline is appropriate under the circumstances. See Lesyshen, 585 N.W.2d at 283.

“The appropriate discipline in a particular case turns on ‘the nature of the alleged violations, the need for deterrence, protection of the public, maintenance of the reputation of the [bar] as a whole, and the respondent’s fitness to continue in the practice of law.’ ” Iowa Supreme Ct. Bd. of Prof l Ethics & Conduct v. Freeman, 603 N.W.2d 600, 603 (Iowa 1999) (quoting Comm, on Prof'l Ethics & Conduct v. Havercamp, 442 N.W.2d 67, 69 (Iowa 1989)). We also consider both aggravating and mitigating circumstances. See id.

The genesis of the violations in this case was Adams’ neglect of his clients’ legal matters, which was compounded by a series of lies to cover up this neglect. These acts and omissions were neither inadvertent nor the result of a good faith error in judgment. See Comm. on Prof'l Ethics & Conduct v. Rogers, 313 N.W.2d 535, 536 (Iowa 1981) (stating that “[n]e-glect cannot be found if the acts or omissions complained of were inadvertent or the result of an error of judgment made in good faith”). An aggravating circumstance is that the Babcocks were harmed by this conduct in that their discharges in bankruptcy were considerably delayed. See Freeman, 603 N.W.2d at 604 (noting that a more serious sanction is required when a client is harmed by the attorney’s neglect). In addition to these acts, we must consider Adams’ knowing violations of the trust account requirements and his failure to return the Babcocks’ property to them, both of which are independent breaches of Adams’ ethical obligations.

All told, there is no question that these cumulative violations and their impact warrant a suspension. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Reedy, 586 N.W.2d 701, 703 (Iowa 1998) (noting that “[a]lthough the various violations standing alone might warrant” a reprimand, “the cumulative impact of the offenses ... warrants suspension”); see also Lesyshen, 585 N.W.2d at 288 (noting multiple violations of our disciplinary rules call for enhanced disciplinary sanctions). Moreover, the fact that Adams used misrepresentations and deceit to cover up his neglect warrants a more serious sanction than that recommended by the Commission. See Stein, 586 N.W.2d at 526. We also note an aggravating circumstance: Adams received a reprimand in May 1999 as a result of his neglect of probate matters. See Lesyshen, 585 N.W.2d at 288 (holding that court may consider prior violations in imposing sanctions). On the other hand, Adams has admitted his wrongdoing and cooperated in the disciplinary process.

Adams asks us to take into account his “self-imposed” suspension for failing to file his continuing legal education (CLE) certification. He asserts that although he had completed the necessary CLE hours, he did not file the required form because he believed that he should not continue fo practice until resolution of the pending disciplinary case. As a result of this failure his license has been suspended since November 2000. We do not consider Adams’ current suspension as a mitigating factor that can serve to reduce the discipline otherwise warranted by his misconduct.

In considering all relevant factors, including the need for deterrence and the need to maintain the reputation of the bar, we conclude that Adams should be suspended from the practice of law in this state indefinitely with no possibility of reinstatement for three months. This suspension applies to all facets of the practice of law. See Ct. R. 118.12. Upon any application for reinstatement, Adams must establish that he has not practiced law during the suspension period and that he has in all other ways complied with the requirements of Court Rule 118.18. In addition, he must demonstrate his compliance with our CLE requirements. Costs of this action shall be taxed to the respondent pursuant to Court Rule 118.22.

LICENSE SUSPENDED.


author: LARSON, Justice.

text:
    Robert DUNN, June Tenhagen, David Van Patten, Raymond E. Phillips, Jr., Steve Klinefelter, Peg Klinefelter, William Don Harbert, Jim Shelley, Emmy Shelley, Wayne Jones, Jo Jones, Bruce Strain, Debbie Cunningham, Car Cunningham, Warren County, Iowa, and The Iowa Rural Rights Association, et al., Appellants, v. CITY DEVELOPMENT BOARD OF the STATE OF IOWA, Appellee.
    No. 99-0579.
    Supreme Court of Iowa.
    March 21, 2001.

      James E. Van Werden and Alexander R. Rhoads of Van Werden & Hefner, Adel, for appellants individual petitioners and Iowa Rural Rights Association.
    Robert H. Freilich of Freilich, Leitner & Carlisle, Kansas City, MO, and Kevin Parker, County Attorney, for appellant Warren County, Iowa.
    Thomas J. Miller, Attorney General, Cristina Kuhn and Christie J. Scase, Assistant Attorneys General, for appellee State.
    Mark Godwin, Deputy City Attorney, and Roger K. Brown, Assistant City Attorney, Des Moines, for intervenor City of Des Moines.
   LARSON, Justice.

When the City of Des Moines filed a petition with the City Development Board to involuntarily annex land adjoining the city, a group of objectors attempted to have the petition dismissed for lack of an accurate legal description. The board refused to dismiss the petition, and the objectors, petitioners in this action, sought judicial review in the district court. The district court dismissed the petition as premature, and this appeal followed. We affirm.

I. Facts and Prior Proceedings

In June 1998 the City of Des Moines (city) filed with the City Development Board (board) a petition for the involuntary annexation of approximately fifteen square miles of land. In August 1998 Warren County, the Iowa Rural Rights Association, and several property owners filed motions to dismiss the city’s annexation petition on the basis of several alleged defects in the petition, including a defective legal description. The individual petitioners are citizens of Warren County residing within the annexation area. They are also members of the Iowa Rural Rights Association, a citizen organization comprised of persons “who are interested in the protection and preservation of rural areas in the State of Iowa.” Warren County, also a petitioner, is the county in which a substantial portion of the area is located. The City Development Board is the administrative board established to exercise administrative jurisdiction over annexation petitions. See Iowa Code section 368.9 (1997).

At the same time petitioners were preparing to file their motion to dismiss, the city realized the legal description was defective, and on August 5, 1998, the city filed a motion to amend the petition. The annexation opponents resisted the motion to amend on the ground the board lacked authority to grant an amendment with regard to the boundaries of an involuntary annexation petition, that the city had no authority to seek a boundary amendment, and the board had no authority itself to amend the boundaries. The board denied the petitioners’ motion to dismiss and accepted the petition as it was originally submitted.

On October 9, 1998, the petitioners filed a petition for writ of certiorari in the Warren County District Court, challenging the board’s decision to accept the annexation petition. The board filed a motion to dismiss the certiorari action. The city also filed motions to intervene and to dismiss. On November 6, 1998, the petitioners filed a petition for judicial review of the board’s decision, requesting injunctive relief, a declaratory judgment, and writs of certiorari and prohibition. The board moved to dismiss the petition, alleging the court lacked jurisdiction to review the board’s decision to accept the city’s annexation petition. The board contended its action in accepting the city’s annexation petition was only a preliminary decision, and intermediate or interlocutory review of such agency action was not allowable. On March 9, 1999, the district court granted the board’s motion to dismiss. The petitioners filed a notice of appeal, and on May 17, 1999, this court entered an order directing the issue on appeal be “limited to the correctness of the district court’s determination that the petition for judicial review was premature due to a failure to show an exhaustion-of-remedies requirement.”

II. The Issue.

The petitioners contend the annexation petition was defective on several grounds: the legal description was inaccurate, the proposed annexation would bisect platted subdivision lots, the petition failed to include formal agreements required by Iowa Code chapter 368, and it would create “islands” in the annexation area, all contrary to chapter 368. The city and board respond that these alleged defects were nonexistent, insignificant, or correctable in later annexation proceedings. In any event, the petitioners’ remedy must be sought through traditional appeal procedures under our administrative procedure act, Iowa Code chapter 17A. To allow unsuccessful parties in administrative proceedings to appeal every decision by the agency would frustrate the orderly process of judicial review, according to them.

The issue before us is not whether the petition was fatally defective in any of the particulars claimed or whether there is any merit to the annexation petition itself. The issue is simply whether at the stage of the board’s acceptance of the petition the district court could obtain subject matter jurisdiction in a judicial review proceeding. For the reasons that follow, we conclude the petition for judicial review was premature.

III. The Annexation Statute.

Iowa Code chapter 368 governs annexation proceedings and establishes procedures for city development and annexation matters. The board is established by Iowa Code section 368.9, and the procedures for annexation, both voluntary and involuntary, are established by other sections of chapter 368.

Proceedings for involuntary annexation are established by Iowa Code sections 368.11 and following. A petition for involuntary annexation may be filed with the board by persons or entities such as cities or boards of supervisors in the area to be annexed. Iowa Code section 368.11 requires notice before filing the petition:

At least ten days before a petition for involuntary annexation is filed as provided in this section, the petitioner shall make its intention known by sending a letter of intent by certified mail to the council of each city whose urbanized area contains a portion of the territory, the board of supervisors of each county which contains a portion of the territory, the regional planning authority of the territory involved, each affected public utility, and to each property owner listed in the petition. The written notification shall include notice that the petitioners shall hold a public meeting on the petition for involuntary annexation prior to the filing of the petition.

Also, under section 368.11,

[bjefore a petition for involuntary annexation may be filed, the petitioner shall hold a public meeting on the petition. Notice of the meeting shall be published in an official county newspaper in each county which contains a part of the territory at least five days before the date of the public meeting. The mayor of the city proposing to annex the area, or that person’s designee, shall serve as chairperson of the public meeting. The city clerk of the same city or the city clerk’s designee shall record the proceedings of the public meeting. Any person attending the meeting may submit written comments and may be heard on the petition. The minutes of the public meeting and all documents submitted at the public meeting shall be forwarded to the board by the chairperson of the meeting.

It is only at the point at which these documents are forwarded to the board that the board becomes involved in the annexation process. At that point, the board has two choices: (1) it may dismiss the petition under section 368.12 because it “does not meet the requirements of this chapter” or a similar proposal has been rejected within the past two years; or (2) if the board does not dismiss the petition, it is to proceed with the next step: directing “the appointment of local representatives to serve with board members as a committee to consider the proposal.” Iowa Code § 368.14. (This committee is not given a name in the statute, and parties to this appeal simply call it “the committee.”) The committee is to be made up of the members of the board and representatives of affected cities and counties. Id. In this case, the board elected not to dismiss the petition but rather take the next step by directing the appointment of the committee members.

Under section 368.15, “[t]he committee shall conduct a public hearing on a proposal as soon as practicable,” serving notice of a hearing to the city council, boards of supervisors, and regional planning authorities affected. In addition, under section 368.15, the committee is to publish notice “which includes a brief description of the proposal and a statement of where the petition or plan is available for public inspection.” Section 368.15 then provides:

Any person may submit written briefs, and in the committee’s discretion, may be heard on the proposal. The board may subpoena witnesses and documents relevant to their proposal.

(Emphasis added.) After the published notice and hearing, the authority of the committee is closely circumscribed. Section 368.16 provides that “[sjubject to section 368.17 [specific grounds that will bar approval], the committee shall approve any proposal which it finds to be in the public interest.” (Emphasis added.)

Iowa Code section 368.18, an amendment provision, is the subject of disagreement among the parties. The argument is whether this provision authorizes the committee to amend a petition by correcting the legal description. This section provides:

The committee may amend the petition or plan. If a petition or plan is substantially amended, the committee shall continue the hearing to a later date and serve and publish a notice describing the amended petition or plan, as required in section 368.15.

The board and city contend this section allows the committee to amend any defect in the petition, including the legal description, so when the board refused to allow the city’s amendment, it was not a final decision as to the description.

After the final hearing,

[t]he committee shall approve or disapprove the petition or plan as amended, within ninety days of the final hearing, and shall file its decision for record and promptly notify the parties to the proceeding of its decision. If a petition or plan is approved, the board shall set a date not less than thirty days nor more than ninety days after approval for a special election on the proposal....

Iowa Code § 368.19 (emphasis added). After the commissioner of elections certifies the result of the election, the board serves and publishes notice of the results and files copies of the proceedings with the Secretary of State and various local entities. Iowa Code § 368.20.

IV. The Right to Appeal.

To determine whether the appeal to the district court was proper, we look to the provisions of Iowa Code sections 368.22 and 17A.19. Under Iowa Code section 17A.19(1), the administrative decision must be final, and an aggrieved party must have exhausted all available administrative remedies before obtaining judicial review. The petitioners argue the board’s decision to accept a “defective” petition is a final decision for judicial review purposes. Further, they claim they have no adequate administrative remedy because the committee cannot amend the legal description.

The board and city respond that, regardless of the merits of the petitioners’ claim of fatal defects in the petition, that claim is not ripe for judicial review because the petitioners have failed to satisfy the finality and exhaustion requirements of section 17A.19(1).

The appeal process under chapter 368 appears in the first unnumbered paragraph of section 368.22:

A city, or a resident or property owner in the territory or city involved may appeal a decision of the board or committee, or the legality of an election, to the district court of a county which contains a portion of any city or territory involved.

The fourth unnumbered paragraph of section 368.22 provides:

The judicial review provisions of this section and chapter 17A shall be the exclusive means by which a person or party who is aggrieved or adversely affected by agency action may seek judicial review of that agency action.... The court may reverse and remand a decision of the board or a committee, with appropriate directions. The following portions of section 17A.19 are not applicable to this chapter:
1. The part of subsection 2 which relates to where proceedings for judicial review shall be instituted.
2. Subsection 5 [relating to stays],
3. Subsection 8 [relating to hearing procedures].

The petitioners concede that, ordinarily, Iowa Code section 17A.19(1) requires both a final agency decision and a showing the appealing party has exhausted all administrative remedies. While they acknowledge this general rule, they argue (1) the board is a separate legal entity from the committee, and section 368.22 allows immediate judicial review of the board’s decision; and (2) the exhaustion requirement does not bar their appeal as they have no adequate administrative remedy because the committee cannot amend a legal description. Also, they claim section 368.22 does not “expressly or impliedly require that administrative remedies be exhausted before resort to the [c]ourts,” and public policy considerations favor granting judicial review at this stage.

We believe the statutory scheme of chapter 368 is clear: the functions of the board and committee are intertwined, and their decision-making functions cannot be compartmentalized for judicial review purposes. The board retains considerable responsibility and authority even after the appointment of the committee. For example, once the committee becomes involved, the committee is to conduct a public hearing and publish notice. However, it is the board that issues any subpoenas for witnesses or documents. Iowa Code § 368.15. If the committee approves the petition, the board sets a date for a special election. Iowa Code § 368.19.

In determining if agency action is final the question is “whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties.” Franklin v. Massachusetts, 505 U.S. 788, 797, 112 S.Ct. 2767, 2773, 120 L.Ed.2d 636, 648 (1992) (applying federal administrative procedure act). It is clear from Iowa Code chapter 368 that the action of a board in not dismissing an involuntary petition for annexation and appointing a committee is only a preliminary step in an annexation proceeding. It is not a “final” decision for judicial review purposes, and petitioners must exhaust the remedies and procedures available through the entire annexation process. Section 368.22 does not create an immediate right to judicial review, rather it merely requires that a final decision of the board or the committee be appealed within thirty days to the district court of a county that contains a portion of any city or territory involved. It is equally clear Iowa Code section 368.22 supersedes section 17A.19 only as to those specific portions of section 17A.19 identified in section 368.22 and not the exhaustion-of-remedies requirement of section 17A.19(1).

As to the exhaustion requirement of section 17A.19(1), the petitioners have means of challenging the annexation within the processes of chapter 368. They may attack the merits of the proposal by appearing at the mandatory public hearing and furnishing briefs in support of their position prior to the time any petition is approved. The committee may, under section 368.18, remedy defects in the petition’s legal description. Eventually, if the committee approves the petition, an election must be held, and the plaintiffs will have an opportunity to attack the proposal at that level. If the petitioners fail to obtain relief through the administrative proceeding they will then have the right to seek judicial review.

We agree with the district court that the plaintiffs have not established their right to judicial review because they have not satisfied the finality or exhaustion requirements of Iowa Code section 17A.19(1), which remain unmodified by section 368.22.

V. The Constitutional Issues.

The petitioners challenge chapter 368 on the ground it is an unconstitutional delegation of legislative authority to an administrative agency. The determination of annexation boundaries is a legislative function, and if the board or commission amends a description, it amounts to an unconstitutional infringement on the powers of the city council, according to the petitioners. They cite State ex rel. Klise v. Town of Riverdale, 244 Iowa 423, 57 N.W.2d 63 (1953), in which we said:

The incorporation of a municipality is purely a legislative function. The power to create municipalities cannot be delegated to the judicial branch of government. The power to extend the boundaries of a municipality is an exercise of the power to create a municipality and is within the exclusive power of the legislative branch of government.

Klise, 244 Iowa at 428, 57 N.W.2d at 66. Klise held that a statute effectively delegating annexation decisions to the courts was unconstitutional. Id. at 441-42, 57 N.W.2d at 74.

Klise predated home rule and chapter 368, which specifically give the board and committee the power to make decisions on annexation issues. In a ease decided after Klise, Polk County v. Iowa State Appeal Board, 330 N.W.2d 267 (Iowa 1983), we discussed a delegation issue analogous to the present one and made two points that are relevant here:

It is a well-settled principle that statutes are presumed to be constitutional. Additionally, Iowa is among the states which have relaxed the formerly strict requirements of delegation.
The test — not always easy to apply — is whether such delegation is a reasonable one permitting the administrative body only to “fill in the details” to accomplish a general purpose or policy announced by the legislature itself or whether it abdicates to the administrative body the right to legislate.
... [T]he presence or absence of procedural safeguards is important in determining whether this delegation is reasonable.

Id. at 273-74 (citation omitted) (quoting Elk Run Tel. Co. v. Gen. Tel. Co., 160 N.W.2d 311, 316-17 (Iowa 1968)).

While we believe the principles just discussed tend to diminish the strength of the petitioners’ constitutional argument, we do not address that issue. That issue, as well as those previously discussed, are premature in the procedural posture of this case. The petitioners must await the conclusion of administrative proceedings and, if not satisfied, seek judicial review on all of their claims at that time.

AFFIRMED.

      . The City of Des Moines objects to much of the petitioners’ statement of facts because the full record was not forwarded to the district court in the judicial review proceedings. The board states in its brief: "An agency record was never transferred to the district court. The Board does not contest that the materials cited by the Petitioners in the appendix were part of the agency record.” Even when we consider the record as stated by the petitioners, we conclude the petitioners are not entitled to prevail, so the scope of the record is not a critical issue.


author: LAVORATO, Chief Justice.

text:
    Richard BERNTSEN and Bernard Berntsen, Appellants, v. COOPERS & LYBRAND, L.L.P., A Limited Liability Partnership f/k/a Coopers & Lybrand, A General Partnership, Appellee.
    No. 99-0434.
    Supreme Court of Iowa.
    March 21, 2001.
    Thomas H. Dahlk of Blackwell Sanders Peper Martin, Omaha, Nebraska, and James P. Craig of Moyer & Bergman, P.L.C., Cedar Rapids, for appellants.

      Jerrold L. Strasheim and Mary Leiter Swick of Baird, Holm, McEachen, Peder-sen, Hamann & Strasheim, Omaha, Nebraska, for appellee.
   LAVORATO, Chief Justice.

Following a jury trial, the district court sustained the defendant’s motion for judgment notwithstanding the verdict on several grounds. One of those grounds was that Iowa’s savings statute, Iowa Code section 614.10 (1995), did not apply to save the plaintiffs’ action from being time-barred. Because we agree that section 614.10 does not apply under the facts of this case, we affirm.

I. Background Facts and Proceedings.

Coopers & Lybrand, L.L.P. (C & L), a national accounting firm, audited the consolidated financial statements of Capitol Group and its wholly owned operating subsidiary, Capitol Supply, Inc. (collectively Capitol), as of and for the period ending December 31, 1988. C & L issued to Capitol an unqualified opinion on the 1988 financial statements (1988 audit report) on April 12, 1989. Capitol Supply is a large plumbing supply company with warehouses in Nebraska and Iowa. Mark Chesen was its CEO, and Gerry Chesen was the Chairman of the Board of Directors.

Richard and Bernard Berntsen owned Plumbing Products & Supply, Inc. (PP & S), a plumbing products supply business located in Marion, Iowa. In September 1988, the Berntsens listed PP & S with GVA Financial Group (GVA) to find a buyer for PP & S.

In September 1989, Ron Hyde of GVA introduced the Berntsens to Mark and Gerry Chesen. The parties thereafter began negotiations for Capitol Group to purchase PP & S.

On September 28, 1989, Mark Chesen faxed a letter to the Berntsens proposing that Capitol Supply or a new holding company purchase PP & S for $775,000. According to the letter, the purchase price would consist of $450,000 in cash and $325,000 in the form of a note drawing ten percent interest. After setting out the terms of payment, the letter stated that Capitol Supply would “provide [the Bernt-sens] with audited financial statements on Capitol [Supply] during the due diligence process.”

On October 2, the Berntsens accepted the terms of the letter of intent. That day, Mark Chesen faxed to the Bernstens a copy of the 1988 audit report. This was the first time that Capitol Group had provided this information to the Berntsens.

Thereafter, the parties negotiated the terms of a definitive agreement for the sale of PP & S. The closing took place on January 11, 1990. At that time, Capitol Supply transferred $425,000 in cash to the Berntsens and executed two notes to the Berntsens totaling $325,000. In return, the Berntsens transferred all stock in PP & S to Capitol Supply. Immediately following the closing, Capitol caused PP & S to be merged into Capitol Supply.

During these negotiations, C & L was in the process of beginning to audit the consolidated statements of Capitol as of and for the period ending December 31, 1989. Sometime in February 1990, C & L uncovered material overstatements of Capitol Supply’s inventory brought about by Mark Chesen. The overstatements meant that the 1988 audit financial condition was materially overstated.

In July 1990, Capitol filed for bankruptcy in Omaha, Nebraska.

On January 8, 1992, the Bernstens filed separate fraud actions against C & L in federal district court in Nebraska. The federal court dismissed both actions for lack of diversity jurisdiction.

Before the federal court had dismissed the actions, the Berntsens filed separate actions against C & L in the Nebraska District Court of Douglas County based on negligence and fraud. The Nebraska District Court dismissed Bernard’s petition on January 7, 1994 and Richard’s petition on February 8, 1994. In both cases, the court ruled that the Nebraska statute of limitations barred the claims. On April 25, 1996, the Nebraska Supreme Court affirmed the dismissals. See Berntsen v. Coopers & Lybrand, 249 Neb. 904, 912, 546 N.W.2d 810, 815 (1996).

On October 11, 1996, the Berntsens filed the present action in the Linn County District Court on the same facts as alleged in the Nebraska action. They claimed that the savings statute, Iowa Code § 614.10, saved their case from the Iowa statute of limitations because they filed the present proceedings within six months of the Nebraska Supreme Court decision.

District Judge William Eads overruled C & L’s motion for summary judgment as to the savings-clause issue. The court determined that the savings statute applied but concluded that there were disputed facts precluding summary judgment. Those facts pertained to the Berntsens’ negligence in pursuing the Nebraska action.

The parties tried the ease to a jury. The court submitted the case against C & L on theories of fraudulent and negligent misrepresentation. The court also instructed the jury to determine whether the Berntsens and their lawyers were free from negligence in prosecuting the Nebraska suit. This instruction allowed the jury to determine whether the savings statute saved the case from the Iowa statute of limitations.

The jury returned a verdict finding that (1) the Berntsens and their lawyers were not negligent in pursuing the Nebraska state court action; (2) C & L was at fault, and its fault was a cause of the Berntsens’ damage; and (3) the Berntsens were also at fault, which fault was also a cause of their damage. The jury found C & L was fifty percent at fault. The jury also found the Berntsens were fifty percent at fault. The jury, however, awarded no damages to the Berntsens.

C & L filed a motion for judgment notwithstanding the verdict, and the Bernt-sens filed a motion for additur or new trial. District Judge L. Vern Robinson, who had presided over the trial, granted C & L’s motion for judgment notwithstanding the verdict and entered judgment for C & L and against the Berntsens. Among other things, the court concluded that, despite the earlier ruling of Judge Eads, the savings clause did not apply. See Carroll v. Martir, 610 N.W.2d 850, 857 (Iowa 2000) (holding that, until the district court has rendered a final order or decree, it has the power to correct any of the rulings, orders or partial summary judgments it has entered).

II. The Issue.

Although C & L raises several issues on appeal, one is decisive: whether the savings statute applies.

A district court’s ruling on a motion for judgment notwithstanding the verdict is reviewed for correction of errors at law. Iowa R.App. 4; Gibson v. ITT Hartford, 621 N.W.2d 388, 391 (2001). “ ‘A judgment notwithstanding the verdict must stand or fall on the grounds stated in the motion for directed verdict. On appeal, our review is limited to those grounds.’ ” Gabelmann v. NFO, Inc., 571 N.W.2d 476, 480 (Iowa 1997) (quoting Johnson v. Dodgen, 451 N.W.2d 168, 171 (Iowa 1990)).

Iowa Code section 614.1 (Supp.1995) establishes time limitations for a variety of causes of action. Iowa Code section 614.10, the savings statute, provides:

If, after the commencement of an action, the plaintiff, for any cause except negligence in its prosecution, fails therein, and a new one is brought within six months thereafter, the second, shall, for the purposes herein contemplated, be held a continuation of the first.

This statute has remained substantially in this form since 1851. See Iowa Code § 1668 (1851).

There is no dispute that, when the Berntsens filed the Iowa petition on October 11, 1996, it was time-barred by Iowa’s statute of limitation. There also is no dispute that the Berntsens brought the present proceeding within six months of the Nebraska Supreme Court decision. The fighting issue is whether Iowa Code section 614.10 saves the Berntsens’ Iowa action from being time-barred.

In its motion for directed verdict and motion for judgment notwithstanding the verdict, C & L urged several grounds why section 614.10 did not apply. One of those grounds, which C & L argues here, we find decisive: section 614.10 is not applicable because the statute cannot be used to continue an earlier case that itself was filed after the statute of limitations had run and was subsequently dismissed for that reason.

This court has held that the savings statute cannot continue an earlier case that itself was barred by the statute of limitations. See Cooley v. Maine, 183 Iowa 560, 563, 165 N.W. 1015, 1016 (1918) (citing Dist. Township of Spencer v. Dist. Township of Riverton, 62 Iowa 30, 31-32, 17 N.W. 105, 105-06 (1883)); see also 51 Am. Jur.2d Limitation of Actions § 276, at 627 (2000) (“To claim the application of a savings statute, a plaintiff must have timely commenced the original action under the applicable statute of limitations; if the original action was properly dismissed as time-barred, the savings statute does not apply.”). This is because the savings statute does not enlarge the statute of limitations for the original action. Phoenix Ins. Co. v. Fuller, 216 Iowa 1201, 1204, 250 N.W. 499, 501 (1933).

This court has also held that the savings statute applies only when no final judgment upon the merits has been entered in a prior action. Phoenix, 216 Iowa at 1203-04, 250 N.W. at 501; see also 51 Am.Jur.2d Limitation of Actions § 288, at 635 (“Some savings statutes apply only if the original action was dismissed otherwise than on the merits.”). The word “continuation” in section 614.10 implies a resumption of an action that has not been finally concluded. See Webster’s Third New International Dictionary 493 (unabr. ed.1993) (defining “continuation” as “the action of carrying on or resuming”). When there has been a final judgment on the merits in the original action, there is nothing to continue. In such circumstances, the commencement of a new action within the prescribed period cannot be a continuance of the original action for purposes of Iowa Code section 614.10.

A decision that a cause of action is barred by the statute of limitations constitutes a final judgment on the merits for the purposes of the savings statute. Cooley, 183 Iowa at 563, 165 N.W. at 1016; see also 51 Am.Jur.2d Limitation of Actions § 288, at 635 (“A dismissal of the original action as time-barred constitutes a dismissal on the merits for the purposes of a savings statute.”). Here, the Nebraska Supreme Court held that the Berntsens’ state court actions in Nebraska were time-barred and that the Nebraska District Court, on that basis, properly sustained C & L’s demurrers and dismissed the Bernt-sens’ causes of action. Berntsen, 546 N.W.2d at 315. That decision was a final judgment on the merits. For that reason, Iowa’s savings statute did not apply to the present proceeding.

Nevertheless, the Berntsens assert that, although their Nebraska actions were time-barred, those actions were filed in Nebraska at a time when, had they been filed in Iowa, would not have been time-barred. They argue that, in applying the time-bar rule to the original cause of action, the court must apply the statute of limitations that would have been in effect in the state where the second action was subsequently filed. Essentially, the Berntsens are asserting that, although their actions were untimely in Nebraska, they were not untimely under Iowa law, and for that reason, the prior-action time-bar rule does not apply to the Iowa action.

We see nothing in the language of section 614.10 that would support such an interpretation. Additionally, the interpretation is contrary to our own interpretation of section 614.10. Moreover, the Bernt-sens’ interpretation would allow the savings statute to enlarge our statute of limitations, which had already run when the Iowa action was filed.

III. Disposition.

We conclude the district court correctly sustained the motion for judgment notwithstanding the verdict on the ground that the savings statute did not apply. Accordingly, we affirm.

AFFIRMED.


text:
    STATE of Iowa, Appellee, v. Dee Daniel HICKMAN, Appellant.
    No. 99-1576.
    Supreme Court of Iowa.
    March 21, 2001.

      Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, William E. Davis, County Attorney, and Robert Weinberg, Assistant County Attorney, for appellee.
   LARSON, Justice.

Dee Daniel Hickman was convicted and sentenced for first-degree robbery and willful injury, and the court of appeals affirmed. On further review, we vacate the decision of the court of appeals and affirm the conviction of first-degree robbery. We vacate the sentence for willful injury, which was merged in first-degree robbery, and remand the case for entry of an order dismissing the willful injury charge.

I. Facts.

On April 6, 1998, Hickman and three other men met to make plans to rob a man named John Thorpe by taking marijuana from him. Hickman made several telephone calls to Thorpe to arrange a meeting to “buy” the marijuana. During the phone conversations, Hickman asked Thorpe if he would be alone, and Thorpe assured him he would be. Hickman told the others they would not need money for the marijuana because they would just take it. One of the men, Marcus Gay, agreed to sit in the front seat with Thorpe and hit him while the others took the marijuana.

When the men arrived at the rendezvous site, Hickman got in the backseat of Thorpe’s car and sat directly behind Thorpe. Gay sat in the front passenger seat next to Thorpe. Thorpe weighed the marijuana on a scale on the passenger side floor. When Thorpe sat up, he felt what he thought was a gun in his ear. One of the men told him he was being “jacked.” Gay hit Thorpe in the face, and Thorpe reached for a gun under his left thigh but decided to let go of it because he was afraid he would be shot. Even though Thorpe released his weapon, Hickman shot him in the back of the head. The bullet entered Thorpe’s head near his right ear and exited through the roof of his mouth, but he survived.

According to a witness who saw the men after the event, Hickman and Gay had guns, and one of the other men had the marijuana in a plastic bag. The men appeared jumpy and nervous, and Hickman warned the witness not to talk about the incident.

On May 20, 1999, the State charged Hickman with first-degree robbery under Iowa Code section 711.2 (1997) (count I), attempted murder under section 707.11 (count II), willful injury under section 708.4 (count III), and assault while participating in a felony under section 708.3 (count IV). A jury found him guilty of first-degree robbery and willful injury. On the charge of attempted murder, the jury found Hickman guilty of the lesser included offense of assault with intent to inflict serious injury. At sentencing, the district court merged the assault into the willful injury conviction. Hickman was sentenced to an indeterminate twenty-five-year prison term for first-degree robbery and an indeterminate ten-year prison term for willful injury, with the sentences to run consecutively. Hickman did not object at trial or at sentencing to the court’s failure to merge willful injury into the first-degree robbery conviction, the subject of this appeal.

II. The Issues.

Hickman raises two issues: (1) sufficiency of the evidence and (2) failure of the court to merge willful injury into the robbery conviction as required by Iowa Code section 701.9.

III. Sufficiency of the Evidence.

We review a jury verdict for substantial evidence. In deciding whether the evidence is substantial, we view the evidence in the light most favorable to the State and make all reasonable inferences that may fairly be drawn from the evidence. As such, a challenge of the sufficiency of the evidence is for correction of errors at law. Inherent in our standard of review of jury verdicts in criminal cases is the recognition that the jury was free to reject certain evidence, and credit other evidence. Consequently, where the record contains substantial evidence, we are bound by the jury’s finding of guilt.

State v. Button, 622 N.W.2d 480, 483 (Iowa 2001) (citations omitted). Viewed in the light most favorable to the verdict, the evidence of Hickman’s guilt was overwhelming. He planned the “jacking” and called the victim to arrange it, making sure the victim would be alone. Hickman took a gun and used it when the victim showed his own gun. Although Hickman contends he shot the victim in self-defense, the facts, including Hickman’s shooting the victim in the back of the head, tend to belie that scenario. In any event, the jury found Hickman guilty, and that verdict is supported by substantial evidence. We reject his sufficiency-of-the-evidence argument.

IV. Merger.

The court submitted willful injury to the jury in two ways: as an included offense in first-degree robbery under instruction No. 39 and as a stand-alone offense under instruction No. 44. The jury found him guilty of both first-degree robbery and willful injury.

The defendant argues that willful injury should have been merged into the first-degree robbery conviction under Iowa Code section 701.9. The State responds that Hickman failed to object at trial or at sentencing to the court’s failure to merge the offense, so the argument has been waived. Hickman rejoins in two ways: (1) the sentence for willful injury was void, so normal rules of error preservation and waiver are not applicable, and (2) the State failed to object to the court’s robbery instruction under which willful injury was listed as an included offense, so merger became the law of the case. Because we resolve the merger issue on the first ground, it is not necessary to address the defendant’s law-of-the-case argument. See State v. Halliburton, 539 N.W.2d 339, 343 (Iowa 1995) (holding a sentence that is contrary to Iowa Code section 701.9 is void and therefore the court’s error in imposing sentence is not subject to normal rules of error preservation and waiver).

Under our merger statute,

[n]o person shall be convicted of a public offense which is necessarily included in another public offense of which the person is convicted. If the jury returns a verdict of guilty of more, than one offense and such verdict conflicts with this section, the court shall enter judgment of guilty on the greater of the offenses only.

Iowa Code § 701.9.

The issue of whether, under the statute, willful injury is “necessarily included” in first-degree robbery is the principal issue on appeal. In determining whether a lesser offense is included in a greater one, we look to the elements of each and determine if the greater offense can be committed without also committing the lesser offense. If the greater offense cannot be committed without also committing the lesser offense, the lesser is included in the greater. We call this the “impossibility” test. See State v. Coffin, 504 N.W.2d 893, 894 (Iowa 1993). The so-called “elements” test for included offenses is applied only as an aid in using the impossibility test and is fully subsumed in it. Id. at 894-95. In applying the impossibility test, we first decide

“whether if the elements of the greater offense are established, in the manner in which the State sought to prove those elements, then the elements of any lesser offense have also necessarily been established.” And it is not necessary that the elements of the lesser offense be described in the statutes in the same way as the elements of the greater offense.

Id. at 895 (quoting State v. Turecek, 456 N.W.2d 219, 223 (Iowa 1990)).

Under instruction No. 37, the court listed the elements of robbery in the first degree:

1. On or about the 6th day of April, 1999, the defendant Dee Daniel Hickman, or someone he aided and abetted, had the specific intent to commit a theft.
2. To carry out this intention ... the defendant, or someone he aided and abetted:
a. Committed an assault ... on John Eugene Thorpe; or
b. Threatened John Eugene Thorpe with, or purposely put John Eugene Thorpe in fear of immediate serious injury; or
c. Threatened to immediately commit willful injury....
3. The defendant, or someone he aided and abetted:
a. Purposely inflicted or attempted to inflict a serious injury on John Eugene Thorpe-, or
b. Was armed with a dangerous weapon.

(Emphasis added.)

The marshaling instruction for willful injury, No. 39, listed the elements of that crime:

1. On or about the 6th day of April, 1999, the defendant, or someone he aided and abetted, shot John Eugene Thorpe in the head.
2. The defendant, or the person he aided and abetted, specifically intended to cause a serious injury to John Eugene Thorpe.
3. John Eugene Thorpe sustained a serious injury.
4. Neither the defendant nor any person he aided and abetted was justified in their actions.

(Emphasis added.)

If the greater offense is defined alternatively and the State charges both alternatives, the test for included offenses must be applied to each alternative. See State v. Johnson, 328 N.W.2d 918, 920 (Iowa 1983); State v. Pettyjohn, 436 N.W.2d 65, 68 (Iowa Ct.App.1989). Here, the pertinent alternative for committing first-degree robbery, as instructed by the court, is that the defendant “purposely inflicted or attempted to inflict a serious injury on John Thorpe.” See Iowa Code § 711.2 (listing alternative means for committing first-degree robbery). On the other hand, willful injury requires proof the defendant “intended to cause ... serious injury.” Iowa Code § 708.4. The State argues the word “purposely” under the first-degree robbery statute does not equate with “intended” under the willful-injury statute. According to the State, “intended” is a specific-intent element; “purposefully,” on the other hand, has been held to be a general-intent element. See State v. Neuzil, 589 N.W.2d 708, 711 (Iowa 1999).

It is true, as the State argues, we said in Neuzil that “purposefully” engaging in certain conduct was a general-intent element. Under Neuzil the crime of stalking is established if

[t]he person purposefully engages in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to, or the death of, that specific person or a member of the specific person’s immediate family.

Id. at 710. In Neuzil we said “[t]he statute’s focus is not on the defendant’s mental state but on the result defendant’s purposeful acts cause in a reasonable person,” concluding:

We agree with the State’s contention that if the Iowa legislature intended to make stalking a specific-intent crime, it would have defined the offense as a course of conduct “intended to place” the victim in reasonable fear of bodily injury or death. In the absence of such express terminology, we presume the legislature intended to criminalize the proscribed act itself, without further proof related to the defendant’s subjective desires.

Id. at 711 (citation omitted).

Whether an intent or purpose requirement connotes general or specific intent depends on the context in which the words appear. See Neuzil, 589 N.W.2d at 711 (“[T]he determination of whether a statute requires general or specific intent turns on the language of the act, read in the light of its manifest purpose and design.”). Similarly, in State v. Royer, we held the reckless use of fire was an included offense in first-degree arson, which required a showing that the defendant “caused” a fire. We said, “[i]n the context of the statutes, both terms [‘causing’ fire and ‘using’ fire] required the utilization of fire with intent to harm or endanger.” 436 N.W.2d 637, 641-42 (Iowa 1989) (emphasis added).

In State v. Waller, the issue was whether “intent” under our burglary statute was sufficiently similar to the word “purpose” under our criminal trespass statute to make criminal trespass an included offense of burglary. We concluded it was:

Intent has been defined as the design or purpose of an individual in acting. Thus, the word “purpose” as contained in section 716.7(2)(c) is synonymous with “intent.” Although the words are different, the thought conveyed in these contexts is the same. A person whose act evidences intent to commit a felony, assault, or theft under the burglary statute necessarily has also evinced the purpose of unduly interfering with the use of the property by others. Thus, it is impossible to commit the greater offense without committing the lesser offense. As a result, the offense of burglary under the entering alternative cannot be committed without also committing criminal trespass pursuant to section 716.7(2)(c).

State v. Waller, 450 N.W.2d 864, 866 (Iowa 1990) (citations omitted).

Applying the pragmatic approach of Waller and Royer, we conclude the words “purposely inflicts ... a serious injury” under the first-degree robbery statute and “intended to cause ... serious injury” under the willful-injury statute, convey the same thought: the defendant intended to cause serious injury to the victim (specific intent), not just to do the act that resulted in serious injury (general intent). Under this analysis, it is impossible to commit first-degree robbery under the purposely-infhcts-serious-injury alternative without also committing willful injury.

The two offenses are therefore merged under Iowa Code section 701.9, and the separate judgment and sentence for willful injury must be vacated. Because we have resolved the merger issue on the basis of Iowa Code section 701.9, we do not address Hickman’s alternative argument that merger became the law of the case.

We vacate the decision of the court of appeals, affirm the judgment and sentence for first-degree robbery, vacate the judgment and sentence for willful injury, and remand the case for entry of an order dismissing the willful injury charge.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT AND SENTENCE FOR FIRST-DEGREE ROBBERY AFFIRMED; JUDGMENT AND SENTENCE FOR WILLFUL INJURY VACATED; CASE REMANDED FOR ENTRY OF AN ORDER DISMISSING WILLFUL INJURY CHARGE.


author: SNELL, Justice. TERNUS, Justice

text:
    Charles E. CALLENDER, Appellee, v. Rebecca D. SKILES, Appellant, Rick L. Skiles, Respondent.
    No. 00-0069.
    Supreme Court of Iowa.
    March 21, 2001.

      R. Douglas Wells of Wells & Wells, P.L.C., Davenport, for appellant.
    M. Leanne Tyler of Tyler & Associates, P.C., Davenport, for appellee.
    Jill A. Cirivello, Davenport, for minor child.
   SNELL, Justice.

Rebecca D. Skiles, the mother of Samantha Skiles, appeals the amount of visitation of her daughter that was granted to the biological father. She argues the district court conducted an improper best interest of the child analysis. She also appeals the district court’s order mandating when to tell the child of her true lineage. On appeal, we find that the amount of visitation was proper and supported by the child’s best interest. However, we agree with the mother that the act of telling the child of her parentage should not have been ordered by the court. Accordingly, we affirm the district court’s decision as modified.

I. Factual Background and Procedure

This case involves the application of its predecessor decided by our court. Callender v. Skiles, 591 N.W.2d 182 (Iowa 1999) (Callender I). In that case, we reversed and remanded the putative father’s previously denied attempt to obtain standing to establish a relationship with his daughter. We sent the case back to the district court for a determination of whether overcoming paternity and granting visitation to the putative father was warranted. Id. at 192.

The background described in Callender I necessary to this appeal is as follows. Charles Callender and Rebecca Sidles had an intimate relationship while Rebecca was separated from her husband, Rick Skiles. Rick and Rebecca reconciled, but not before Rebecca became pregnant with another man’s child. Rick accepted the child as his own, and the couple and their other children now live together with baby Samantha as a family. Within six months of Samantha’s birth, Charles sought to prove he was the biological father to obtain custody, visitation, and establish child support. The district court ordered that a blood test be performed, which established with a statistical certainty that Charles was Samantha’s biological father.

Charles was then allowed minimal visitation with his daughter at a neutral site. Charles became unsatisfied with this arrangement and sought greater interaction, as well as the termination of Rick Skiles’s parental rights to Samantha. Rick and Rebecca argued that Charles had no standing to challenge paternity, and the district court agreed the relevant statute did not provide Charles with the right to pursue this action.

Callender I addressed whether Charles had standing to challenge paternity. See Iowa Code ch. 600B (1997). We found that this chapter foreclosed Charles from making a challenge because he was neither an “interested” person nor the “established father.” However, this was not fatal because we held such an outcome violated Charles’s right to due process.

We remanded the case to the district court to determine if paternity should be established in Charles and if a relationship between Charles and Samantha was warranted. Our court asked the district court to ensure that: (1) Charles had not waived his right to challenge paternity; (2) Paternity could be established in Charles; and (3) A relationship between Charles and Samantha was in her best interest. Our holding was sufficiently limited in Callen-der I to standing, but we directed the „ district court where it should look for guidance on remand.

We only hold our statute must provide a procedural mechanism for claims to be brought. We leave the substantive claim of parenting for further determination under the similar standards governing the challenge of an established father, including the best interest of the child.

Callender I, 591 N.W.2d at 192 (referring to Iowa Code § 600B.41A(6)(a)(2)).

On remand, the district court terminated the parental rights of Rick. It established paternity of then four-year-old Samantha with Charles and determined a visitation schedule to begin immediately. Rebecca appeals. Specifically, she argues that the district court improperly considered factors outside the parameters of section 600B.41A. She asserts that Callender I does not authorize the use of Iowa Code section 598.41’s presumption in tandem with the factors in section 600B.41A(6)(a)(2). Rick did not appeal the disestablishment of his paternal relationship with Samantha.

II. Scope and Standard of Review

Questions of paternity are reviewed on legal error. Id. at 184. As such, we are bound by only those factual findings made by the trial court based upon substantial evidence. Iowa R.App. P. 14(f)(1). However, where our review requires us to pass judgment on the reasonableness of the court’s visitation and custody award, we utilize a de novo review. In re Marriage of Forbes, 570 N.W.2d 757, 759 (Iowa 1997); Dye v. Geiger, 554 N.W.2d 538, 539 (Iowa 1996) (“Decisions ancillary to the question of paternity, such as support, are reviewed by this court de novo.”). We need only give weight to the trial court’s factual findings, but are not bound by them. See Iowa R.App. P. 14(f)(7); In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983).

Rebecca is appealing the amount of visitation directed and the order to tell Samantha of her true father following the court’s disestablishment of paternity. Because we believe she is not challenging the disestablishment per se, but rather the ancillary decisions from that, we will employ a de novo review.

III. Issue on Appeal

The question here concerns the best interest of a child whose biological father is not the person she knows as her father. Specifically, because Charles is now the established father, what type of relationship between Charles and Samantha is in her best interest? Callender I directed the district court to consult the factors found in section 600B .41 A(6) (a)(2) for a determination of what type of relationship is appropriate. The statutory factors include:

In determining the best interest of the child, the court shall consider all of the following:
(a) The age of the child.
(b) The length of time since the establishment of paternity.
(c) The previous relationship between the child and the established father, including but not limited to the duration and frequency of any time periods during which the child and established father resided in the same household or engaged in a parent-child relationship as defined in section 600A.2.
(d) The possibility that the child could benefit by establishing the child’s actual paternity.
(e) Additional factors which the court determines are relevant to the individual situation.

Iowa Code § 600B.41 A(6)(a)(2) (emphasis added).

This section does not purport to be exclusive in listing the factors in a best interest determination. The language of section 600B.41A(6)(a)(2)(e) authorizes the court to consider other relevant factors outside its language. As such, there is no standard test for what is in every child’s best interest in every case.

A. The Best Interest Standard

Rebecca alleges that the district court impermissibly considered the presumption found in section 598.41. This presumption states:

The court, insofar as is reasonable and in the best interest of the child, shall order the custody award, including liberal visitation rights where appropriate, which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents ....

Id. § 598.41(l)(a). Rebecca believes that section 598.41 should not be applied in the instant case because it is a provision utilized in normal custody disputes between two parents who are divorcing. This section places an emphasis on the tenet that a continuation of already established contact with both parents is likely to be in a child’s best interest.

Here, we have a unique and complicated situation. Samantha knows Rick as her father and has an established relationship with him in his home. Charles, the biological father, has not had visitation with Samantha since she was two and one-half years old, and now has only just begun to visit Samantha after establishing his paternity. Under these facts, Rebecca maintains that section 598.41’s preference for maximum contact is an inappropriate factor to determine what amount of visitation is appropriate.

On this matter, the court stated:

The Court’s initial impression was to treat the amount of visitation like a “typical” dissolution — alternate weekends, alternate major holidays, Father’s Day, alternate the child’s birthday, and extended summer visitation. But the Court also needs to consider, among other things, the other three children and what effect and disruption Samantha’s visitation schedule will have on them and on her relationship with them. Because of these factors, the Court finds that it would not be appropriate to grant the same visitation that is typically granted in a dissolution.

In reading the court’s opinion as a whole, we do not find that the presumption noted in section 598.41 was applied. When it is in the best interest of the child-to do so, the court may consider maximum contact with both parents. In deciding visitation rights using a best interest of the child analysis under section 600B.41A(6)(a)(2), it is not improper for a court to consider other established principles of visitation. Some have been codified in section 598.41, others have been delineated in our prior cases.

B. The Best Interest of Samantha

Rather than follow a more usual blueprint for visitation, the court imposed a somewhat lesser schedule. The visitation schedule is as follows:

1. For the first three months Charles was allowed the first and third Saturday of each month from 10:00 a.m. to 5:00 p.m.

2. Thereafter, Charles was allowed the first and third weekends of each month from 10:00 a.m. Saturday to 5:00 p.m. Sunday.

3. Charles was granted every Thanksgiving weekend from 5:00 p.m. Friday to 5:00 p.m. Sunday.

4. Charles was allotted the period from the day after winter break begins at 9:00 a.m. to 10:00 p.m. Christmas Eve.

5. Charles received one week each summer to begin the summer of 2001, increasing to two weeks each summer in 2004. ■

Notably, Charles was not allowed any major holidays to spend with Samantha. The summer vacation award was also fairly conservative. Finally, Charles was not provided the Wednesday night visitation often granted.

The district court’s opinion appears to be well thought out and mindful of the parties’ anguish. Because our review on this issue is de novo, we give considerable weight to the court’s factual findings, but are not bound by them. Samantha’s age, her relationship with Rick, the length of this relationship, and the benefit of establishing paternity are all subsumed in our determination.

The record contains the expert findings of a psychologist. His testimony, as well as his reports, indicate an intricate knowledge of the parties and their situation. He recommended that a relationship with Charles was in Samantha’s best interest. There was also favorable evidence detailing Charles’s lifestyle and his ability to care for Samantha, as well as his voluntary payment of child support. Unfavorable evidence in the record regarding the behavior of Charles’s parents is a relevant factor in determining the amount of visitation awarded to Charles. As bearing on visitation, we also give consideration to the consequent disruption to the Skiles home.

In sum, we find that the facts support the visitation awarded by the court. Such an arrangement is a necessary way to create normalcy and consistency in the life of a young child whose biological parents have never been married to each other, but who are both capable and willing to be involved in their child’s life. The district court did not find this situation was identical to that of a child of divorcing parents, nor do we. Our determination is solely founded on what is in the best interest of Samantha.

C. Disclosure of Parentage

The district court also determined that Samantha should be informed that Charles is her father before kindergarten begins. It concluded Samantha’s best interest dictated a court-imposed timeline for telling her of her true lineage. Rebecca argues that this ruling interferes with the family’s autonomy.

We have “recognizefd] that the government is ill-equipped to dictate the details of social interaction among family members.” Olds v. Olds, 356 N.W.2d 571, 574 (Iowa 1984). This statement was made in relation to court-ordered, grandparent visitation. “[T]he parenting right, is a fundamental liberty interest that is protected against unwarranted state intrusion.” Id.

Other jurisdictions have also recognized the autonomy of the family in child matters. “The trial court does not have the responsibility or the authority or the ability to create ideal circumstances for the family.” In re Marriage of Littlefield, 133 Wash.2d 39, 940 P.2d 1362, 1371 (1997). Moreover, “the best interests test is not intended to allow the court to micromanage a child’s custody from the entry of the final judgment until the child becomes an adult.... [Tjhese decisions should usually be made by the parents in private.” Chant v. Chant, 725 So.2d 445, 448 (Fla.Dist.Ct.App.1999).

We can find no instance where we have upheld a court-ordered timeline for telling a child of her ancestry. Similarly, there is no statutory authority to do this. The court is able to establish paternity and visitation by viewing what is in a child’s best interest, but this does not mean that it should necessarily dictate when the child must be told of her paternity.

Accordingly, upon our de novo review we affirm the trial court’s establishment of a relationship and visitation schedule for Charles and Samantha. The district court did not use an improper standard or im-permissibly rely on section 598.41. We believe the presumption in section 598.41 is a relevant factor among many for determining what is in a child’s best interest. Clearly, if such a preference is not within a child’s best interest, it would be inappropriate to grant maximum visitation. Looking at all facts present in the record, the visitation schedule of less than maximum visitation is -in Samantha’s best interest at this time.

We modify the court’s determination regarding when Samantha should be told of her parentage. Although we may agree that she needs to be told sooner rather than later, we leave the decision to Rebecca as the sole custodial parent.

The parties shall be responsible for their own attorney fees. Costs of this appeal are assessed against the appellant.

AFFIRMED AS MODIFIED.

All justices concur except TERNUS, J., who concurs in part and dissents in part and is joined by CARTER and CADY, JJ.

TERNUS, Justice

(concurring in part and dissenting in part).

I concur in the court’s opinion with the exception of the majority’s instruction that Rebecca Skiles shall make the decision as to when Samantha should be told of her true parentage. I respectfully dissent from that portion of the court’s opinion.

As the majority recognizes, “the government is ill-equipped to dictate the details of social interaction among family members.” Olds v. Olds, 356 N.W.2d 571, 574 (Iowa 1984). As the majority also states, “[t]he trial court does not have the responsibility or the authority or the ability to create ideal circumstances for the family.” In re Marriage of Littlefield, 940 P.2d 1362, 1371 (Wash. 1997). In accordance with these principles, the majority finds fault with the district court for “dictating] when the child must be told of her paternity.” (Emphasis added.) Nonetheless, the majority proceeds to dictate who will make the decision with respect to telling the child of her paternity.

I cannot concur in this decision for two reasons. First of all, the court is unfairly inconsistent in criticizing the trial court for micromanaging the family and then proceeding to do just that. We should exercise judicial restraint by not enmeshing the court in personal decisions best left to the parties to sort out without court involvement. In addition, the court’s decision is unenforceable. The reality is that neither this court nor Rebecca Skiles can prevent persons not a party to this lawsuit from telling Samantha that Charles is her father. This fact merely illustrates that the court is indeed “ill-equipped to dictate the social interaction among family members.” We should not attempt to do so here.

CARTER and CADY, JJ., join this concurrence in part and dissent in part.


author: TERNUS, Justice. CARTER, Justice SNELL, Justice

text:
    STATE of Iowa, Appellee, v. Terry Lee SANDERS, Appellant.
    No. 00-704.
    Supreme Court of Iowa.
    March 21, 2001.

      James M. Metcalf of Metcalf Law Offices, Waterloo, and Brian G. Sayer of Dunakey & Klatt, P.C., Waterloo, for appellant.
    Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, T.J. Heronimus, County Attorney, and Bradley Harris, Assistant County Attorney, for appellee.
   TERNUS, Justice.

The defendant, Terry Sanders, sought discretionary review of a district court order permitting the State to subpoena his medical records. Upon our review of the record and the governing legal principles, we hold that the subpoena should have been quashed. Therefore, we reverse and remand.

I. Background Facts and Proceedings.

On July 7, 1999, Sanders was involved in a two-vehicle accident that resulted in the death of the occupant of the other car. His blood was tested for alcohol content pursuant to Iowa’s implied consent law. In addition, a separate blood test was done by the hospital where he was taken for purposes of treating his injuries.

On August 2, 1999, the State charged Sanders with vehicular homicide in violation of Iowa Code section 707.6A(1) (1999). This statute makes it a class “B” felony to “unintentionally cause [ ] the death of another by operating a motor vehicle while intoxicated.” Iowa Code § 707.6A(1). Several months after commencement of the criminal prosecution the prosecuting attorney obtained a subpoena directed to the hospital commanding it to produce Sanders’ medical records from July 7 and July 8,1999.

Sanders filed a motion to quash. The district court ruled that the records fell within the physician/patient privilege but were not protected from discovery by Iowa Code section 622.10 because the subpoena did not seek testimony. See Chidester v. Needles, 353 N.W.2d 849, 852 (Iowa 1984) (holding that section 622.10 did not prevent a county attorney from obtaining a precharge subpoena for medical records because the subpoena did not require the disclosure of “privileged communications by the giving of testimony”); Iowa Code § 622.10 (prohibiting a physician “in giving testimony” from disclosing “any confidential communication”). The court also rejected the defendant’s contention that the county attorney could not use his subpoena power pursuant to Iowa Rule of Criminal Procedure 5(6) in a postindictment context. We granted the defendant’s request for discretionary review.

II. Scope of Review and Issues.

The district court’s ruling rested on its interpretation of relevant rules and statutes. Therefore, we review for the correction of errors of law. See State v. McCoy, 618 N.W.2d 324, 325 (Iowa 2000) (reviewing interpretation and application of statute for correction of legal error); cf. Hasselman v. Hasselman, 596 N.W.2d 541, 543 (Iowa 1999) (reviewing district court’s interpretation of rules of civil procedure for correction of errors of law). Because we conclude that the rules of criminal procedure do not allow the county attorney to use a rule 5(6) subpoena in the situation under consideration here, we do not consider the impact of section 622.10 on the matter before us.

III. Discussion.

Iowa Rule of Criminal Procedure 5(6) provides for the issuance of a subpoena duces tecum upon the request of a prosecuting attorney:

The clerk of the district court, on written application of the prosecuting attorney and the approval of the court, shall issue subpoenas including subpoenas duces tecum for such witnesses as the prosecuting attorney may require in investigating an offense, and in such subpoenas shall direct the appearance of said witnesses before the prosecuting attorney at a specified time and place. Such application and judicial order of approval shall be maintained by the clerk in a confidential file until a charge is filed, in which event disclosure shall be made, unless the court in an in-camera hearing orders that it be kept confidential.

Iowa R.Crim. P. 5(6). At first blush, the references in this rule to the investigation of an offense and the maintenance of confidentiality “until a charge is filed” suggest that a rule 5(6) subpoena is solely a prein-dictment tool. In fact, in Chidester, our court noted that a rule 5(6) subpoena “is part of a county attorney’s general investigatory power for use in lieu of a grand jury proceeding.” 353 N.W.2d at 852. Reading this rule in the context of the entire rules of criminal procedure leads us to the conclusion, however, that a rule 5(6) subpoena is not limited to the precharge phase of a criminal prosecution.

Rule 13(1) pertains to discovery in a criminal case and more particularly to “witnesses examined by the prosecuting attorney.” This rule states:

When a witness subpoenaed by the prosecuting attorney pursuant to R.Cr.P.5 is summoned by the prosecuting attorney after complaint, indictment or information, the defendant shall have a right to be present and have the opportunity to cross-examine any witnesses whose appearance before the county attorney is required by this rule.

Iowa R.Crim. P. 13(1) (emphasis added). The reference in rule 13(1) to the use of a rule 5(6) subpoena “after complaint, indictment or information” indicates that our rules contemplate that a rule 5(6) subpoena can be used after a charge has been filed against the defendant. It is also clear, however, that rule 13(1) qualifies the county attorney’s rule 5(6) subpoena power when that power is exercised postin-dictment. That brings us to the determinative issue in this case: Does the remainder of rule 13 governing discovery in a criminal case likewise limit the scope of a rule 5(6) subpoena when used in conjunction with a pending criminal action? We turn now to that issue.

Rule 13(3) governs the disclosure of evidence by the defendant. It provides in pertinent part:

a. Documents and Tangible Objects. If the court grants the relief sought by the defendant under subsection 2, paragraph “b”, subparagraph (1), of this rule, the court may, upon motion of the state, order the defendant to permit the state to inspect and copy books, papers, documents, statements other than those of the accused, photographs or tangible objects which are not privileged and are within the possession, custody or control of the defendant and which the defendant intends to introduce in evidence at trial.
b. Reports of Examinations and Tests. If the court grants [the] relief sought by the defendant under subsection 2, paragraph “b”, subparagraph (2), of this rule, the court may, upon motion of the state, order the defendant to permit the state to inspect and copy the results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant and which the defendant intends to introduce in evidence at the trial or which were prepared by a witness whom the defendant intends to call at the trial when such results or reports relate to his or her testimony.

Iowa R.Crim. P. 13(3)(a), (b) (emphasis added). As is evident from this rule, the State’s discovery of materials under the defendant’s control is limited once a criminal charge has been filed. Thus, the first question we must answer is whether the records at issue here fall within rule 13(3).

We think that the requested medical records are within the scope of rule 13(3)(b). Release of the defendant’s hospital records is subject to “the medical profession’s self-imposed standard of conduct, originating in the Hippocratic oath, that a physician not disclose a patient’s confidences without the patient’s consent.” Roosevelt Hotel Ltd. P’ship v. Sweeney, 394 N.W.2d 353, 355 (Iowa 1986) (emphasis added) (refusing to compel the plaintiff/patient to execute a waiver of the physician-patient privilege to allow the defendant’s counsel to talk privately with plaintiffs physicians and obtain plaintiffs hospital records). By virtue of this consent requirement, the defendant, subject to statutory law and court order, controls the release of his medical records. Because the records are within the control of the defendant, their discovery by the State is subject to the conditions set forth in rule 13(3)(b). There is nothing in the record to show that these conditions have been met here. Therefore, the State would not be entitled to a court order pursuant to rule 13(3)(b) requiring the defendant to allow the State to inspect and copy these records.

Our conclusion that the defendant’s medical records would not ordinarily be discoverable by the State in this criminal proceeding brings us to the pivotal question in this case: Can the county attorney use his rule 5(6) subpoena power to avoid the restrictions on discovery imposed by rule 13(3) when a criminal prosecution has already been initiated? We think he may not. To hold otherwise would virtually gut rule 13(3). Any time the State wanted to discover materials in the defendant’s possession, custody, or control, the prosecuting attorney could simply obtain a rule 5(6) subpoena and bypass the requirements of rule 13(3). This result should not be permitted. We hold, therefore, that when the State seeks materials falling within the scope of rule 13(3) in a pending criminal prosecution, the State must comply with the prerequisites of that rule.

Based on our interpretation of the rules of criminal procedure, we conclude the district court erred in refusing to grant the defendant’s motion to quash. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

All justices concur except CARTER, J., who concurs specially, and SNELL, J., who concurs specially in a separate opinion, and NEUMAN, J.,who joins in this special concurrence.

CARTER, Justice

(concurring specially).

I concur in all aspects of the majority opinion and agree that it provides a proper basis for deciding this appeal. I believe, however, that the issue of privilege, which was argued in both the district court and this court, should also be addressed.

The district court concluded that the medical records which the prosecutor sought to subpoena under the authority of Iowa Rule of Criminal Procedure 5(6) were not privileged. It based this conclusion on our decision in Chidester v. Needles, 353 N.W.2d 849 (Iowa 1984). Although Chi-dester appears to support the district court’s conclusion, I believe that case was wrongfully decided. It should be overturned before other district courts rely upon it to permit the acquisition of privileged documents or information.

The opinion in Chidester relies in part on the following dictum from Noble v. United Benefit Life Ins. Co., 230 Iowa 471, 297 N.W. 881 (1941):

An analysis of the statute and the cases thereon ... clearly indicates that the purpose of this statute is to prohibit the giving of testimony in a court or some proceeding where the witness is under oath. In other words, there is a distinction between the disclosure of a fact and to testify to a fact.

Noble, 230 Iowa at 475, 297 N.W. at 884. The discussion in the Noble opinion draws a distinction between disclosure to private parties outside of a judicial proceeding and disclosure made as a witness in a proceeding in which the witness is under oath.

Our opinion in Chidester mistakenly applied the Noble dictum to a situation in which the issue was whether a county attorney’s subpoena issued pursuant to rule 5(6) may be used to obtain medical records of a patient’s condition to which the doctor who made those records would be prohibited from testifying by Iowa Code section 622.10. The opinion in Chidester concludes that the medical records are not testimony and thus may be obtained through a section 5(6) subpoena. I submit that this is clearly incorrect.

We stated in Newman v. Blom, 249 Iowa 836, 89 N.W.2d 349 (1958):

[Medical records] are inadmissible against a patient or his privy in interest being within statutes making a position physician incompetent to testify regarding matters of which he acquires knowledge while acting in his professional capacity. The introduction of the records would obviously be an evasion of such statutes, for although the physician would not actually testify, yet the privileged matter sought to be barred would in fact be effectively placed in evidence.

Id. at 843, 89 N.W.2d at 354 (quoting 58 Am.Jur. Witnesses § 543, at 304). The conclusion thus expressed represents the scope that must be given the privilege in order to accommodate the purposes of the privilege.

Section 622.10 does not only pertain to communications made to physicians. It also applies without distinction to communications made to lawyers. It would be abhorrent for this court, as the constitutionally established tribunal of the organized bar, to approve prosecutorial invasion of lawyer’s files in an attempt to obtain information to be used against the lawyer’s client. It is no less abhorrent to grant such approval to raids by prosecutors on medical files.

The Chidester opinion attempted to bolster its conclusion on the ground that information obtained by reason of a county attorney’s subpoena may not be used to perpetuate testimony. That conclusion is debatable. The statement in State v. Hamilton, 309 N.W.2d 471, 478 (Iowa 1981), indicating that rule 5(6) may not be used to perpetuate testimony is clearly dictum because the subpoenas in that case were invalidly issued. Hamilton does recognize that evidence obtained through such subpoenas may be used at trial for some purposes and nothing in that opinion places any limitation on the use of documents in a criminal trial. Indeed, rule 5(6) implicitly allows the use of documents obtained through a county attorney’s subpoena after criminal charges have been brought.

In the final analysis, the fact that there may be some limitation on the prosecutor’s use of the subpoenaed information at trial does not provide a basis for aborting the privilege. The privilege is designed to protect confidential communications from disclosure, and that purpose is frustrated nearly as much by compelled disclosure for investigatory purposes as by compelled disclosure for use as trial evidence.

I would consider the privilege issue argued by the parties and overrule the Chi-dester opinion.

SNELL, Justice

(concurring specially).

I agree that Sanders’s motion to quash should have been sustained by the district court. However, I believe Iowa Rule of Criminal Procedure 5(6) is a pre-indictment power available to the State only prior to the filing of the charges against the defendant. Rule 5(6) sets out the investigative power of the prosecuting attorney. The Rule reads:

The clerk of the district court, on written application of the prosecuting attorney and the approval of the court, shall issue subpoenas including subpoenas duces tecum for such witnesses as the prosecuting attorney may require in investigating an offense .... Such application and judicial order of approval shall be maintained by the clerk in a confidential file until a charge is filed .... The prosecuting attorney shall have ... the services of the clerk of the grand jury_The rights and responsibilities of such witnesses and any penalties for violations thereof shall be the same as a witness subpoenaed to the grand jury.

Iowa R.Crim. P. 5(6) (emphasis added).

Rule 5(6) is only available to the State as a pre-charge tool to obtain the evidence necessary to file an information. Once charges have been filed against a defendant, the investigatory subpoena power no longer exists, and the. State becomes bound by the rules of discovery. Rule 5(6) talks about this power in the context of an investigation, not discovery. The Rule is limited by its title, “Information.” The Rule further gives the State the same power it would have in a grand jury investigation, as well as the same rights and penalties a subpoenaed witness would have before a grand jury.

In Chidester, our court recognized: “A subpoena duces tecum issued under [R]ule 5(6) is part of a county attorney’s general investigatory power for use in lieu of a grand jury proceeding. Information obtained under this rule may not be used to perpetuate testimony for trial.” Chidester v. Needles, 353 N.W.2d 849, 852 (Iowa 1984) (emphasis added) (citations omitted). We recognized that this is not a tool that can be used in place of discovery. This investigatory power is necessary to obtain enough evidence to file a charge against a defendant, not to obtain a conviction. “Moreover, documents produced in response to a county attorney’s subpoena remain confidential unless and until a criminal charge is filed ....” Id. at 852-53 (emphasis added).

As Chidester recognized, this subpoena power is used when a grand jury is not utilized. A grand jury only sits to determine if charges are to be filed. It follows then that the investigatory subpoena power is similarly limited to pre-charge situations.

Further, I disagree with the assertion that Iowa Rule of Criminal Procedure 13(1) contemplates an investigatory subpoena being used post-indictment. Rule 13(1) merely allows the State to summon a previously subpoenaed witness. This Rule states:

When a witness subpoenaed by the prosecuting attorney pursuant to R. Cr. P. 5 is summoned by the prosecuting attorney after complaint, indictment or information, the defendant shall have the right to be present and have the opportunity to cross-examine any witnesses whose appearance before the county is required by this rule.

Iowa R.Crim. P. 13(1) (emphasis added). This Rule requires that the witness first be subpoenaed pre-indictment. After charges have been filed, the witness can later be summoned with full rights of cross-examination assured to the defendant.

A summons is different from a subpoena. To summon means: “To order to appear in court by the issuance of a summons.” American Heritage Dictionary 1212 (2d ed.1982). A summons is a “note issued to a person summoning him to report to court as a juror or witness.” Id. This is a procedure used post-indictment to require a witness to provide testimony for trial. A subpoena in the context of Rule 5(6) is not meant to perpetuate trial testimony. As such, anything obtained from it remains confidential until an information is on file. If we allow the State to use its Rule 5(6) authority post-charges, a defendant would not receive the confidentiality protection inherent in this subpoena power.

Accordingly, I would sustain Sanders’s motion to quash because the State has no Rule 5(6) subpoena power after a defendant is charged.

NEUMAN, J., joins this special concurrence.

      . Rule 13(2)(b)(l) allows the court, upon the defendant's motion, "to permit the defendant to inspect ... items seized by the State in connection with the alleged crime." The court may also allow the defendant "to inspect and copy books, papers, documents, statements, photographs or tangible objects which are within the possession, custody or control of the state,” provided that such items are material to the defendant's preparation of his defense or "are intended for use by the state as evidence at the trial, or were obtained from or belong to the defendant.” Iowa R.Crim. P. 13(2)(b)(l).

      . Rule 13(2)(b)(2) allows the court, upon the defendant’s motion, to order the State "to permit the defendant to inspect and copy ... any results or reports of physical or mental examinations, and of scientific tests or experiments” if such items were "made in connection with the particular case” and are "within the possession, custody or control of the state.”

      . The State argues that the defendant has waived the physician-patient privilege by his alleged intent to introduce expert testimony rebutting the State's evidence of the defendant’s intoxication. The defendant responds that his expert does not intend to rely on the medical records at issue here in giving his opinions. Although the State’s waiver argument is addressed to the applicability of section 622.10, an issue we do not address, we consider the State's argument anyway because it is also relevant to the issue of whether the defendant has waived his right to control the release of his medical records. We think it is clear that the defendant's action in rebutting the State's evidence would not serve to waive the statutory privilege. See Chung v. Legacy Corp., 548 N.W.2d 147, 150 (Iowa 1996) (holding that "[t]he denial of an element or factor of one’s opponent’s case” does not operate as a waiver of the section 622.10 privilege). Similarly, we hold that the defendant’s anticipated expert testimony with respect to his alleged intoxication does not waive the confidentiality of his medical records under the circumstances of this case where the expert has not used or relied on the records in reaching his opinion.