author: PER CURIAM.

text:
    Darrell Chester THOMAS, Appellant, v. MARION COUNTY, Iowa, and Fareway Stores, Inc., Appellees.
    No. 01-1154.
    Supreme Court of Iowa.
    Oct. 9, 2002.

      D.M. Statton of Thomas J. Reilly Law Firm, P.C., Des Moines, for appellant.
    Andrew D. Hall and Clark I. Mitchell of Grefe & Sidney, P.L.C., Des Moines, for appellee Marion County.
    Sharon Soorholtz Greer of Cartwright, Druker & Ryden, Marshalltown, for appel-lee Fareway Stores, Inc.
   PER CURIAM.

Authorities in Marion County arrested the wrong man for writing a bad cheek. The innocent victim reacted to this outrage by suing the wrong defendants. This is an appeal from summary judgment dismissing the suit. We affirm.

The plaintiff, Darrell Chester Thomas, is the father of Darrell Lee Thomas, Father and son live at the same address. Darrell Lee wrote a check on insufficient funds to defendant Fareway Stores, Inc. When Darrell Lee failed to make reparations, Fareway filed a complaint with the Marion County attorney, correctly naming Darrell Lee as the writer of the check and correctly listing his address and social security number. The county attorney then filed fifth degree theft charges against Darrell Lee.

Darrell Chester thereafter paid Fare-way the amount of the check plus associated costs and was given a receipt. The county attorney was notified of this payment, but has a policy of ordinarily pressing forward with pending charges when reparations are not made until after charges are filed. Meanwhile, a judge found probable cause existed to support the charges against Darrell Lee.

For some reason the summons on the charges was issued by a deputy clerk of court, not to Darrell Lee, but incorrectly to Darrell Chester. When Darrell Chester failed to appear in response to the summons, the judge ordered the arrest of the person named in the complaint who of course was Darrell Lee. The same day the clerk issued an arrest warrant, again incorrectly naming Darrell Chester. Darrell Chester was arrested, taken to jail, booked, required to don jail attire, and brought before the judge. He pled not guilty and on the same day was released on his own recognizance. The charges were dismissed several days later.

Darrell Chester brought this suit against Fareway and Marion County, alleging negligence, false arrest and abuse of process. The trial court dismissed the suit against Fareway, holding the facts alleged did not amount to actionable negligence or abuse of process. Claims against Marion County were dismissed on a holding that Marion County was neither liable for any negligence perpetrated by the clerk of court nor responsible for the arrest. Our review is on error. McComas-Lacina Constr. Co. v. Able Constructors, 641 N.W.2d 841, 843 (Iowa 2002). We assume the facts to be as alleged in the petition. Kelly v. Iowa Mut. Ins. Co., 620 N.W.2d 637, 641 (Iowa 2000).

I. Darrell Chester’s claim against Fareway proceeds from his belief that Fareway violated a duty that arose only after he made good on his son’s bad check. He alleges four grounds of negligence: (1) Fareway’s failure to “dismiss the criminal charges,” (2) its failure to “notify Marion County that the check was paid,” (3) “causing [his] arrest by Marion County sheriffs office,” and (4) “failing to follow Marion County’s specific instructions concerning dismissal of criminal charges.... ”

The controlling question, a strictly legal one, is whether Fareway owed Darrell Chester a duty. Engstrom v. State, 461 N.W.2d 309, 315 (Iowa 1990). It is a fundamental principle of tort law “that violation of a legal right by a wrongdoer is a prerequisite to obtain redress for a claimed wrong.” Id. Both the facts and the law belie existence of any such duty here. No factual allegation suggests any conduct by Fareway that would implicate Darrell Chester. Fareway’s only conduct was to correctly charge that Darrell Lee wrote an insufficient-funds check. Fare-way was a complete stranger to the fiasco that drew Darrell Chester into the matter.

Clear Iowa law vests the county attorney with dominion over the filing of criminal charges. State v. Iowa Dist. Ct, 568 N.W.2d 505, 508 (Iowa 1997). The complainant (in this case, Fareway) certainly does not have any such dominion. The black letter rule of law is:

Ordinarily, the complainant has no right to withdraw the complaint, since it is the public which has been injured by the commission of a crime; and certainly the complainant should not be permitted to withdraw criminal charges in consideration of the payment of money.

22 C.J.S. Criminal Law § 333 at 398 (1989) (citations omitted).

Iowa has applied the rule even in rare prosecutions for adultery, which required a specific complainant to instigate charges. State v. Ronek, 176 N.W.2d 153, 157 (Iowa 1970); State v. Athey, 133 Iowa 382, 385, 108 N.W. 224, 225 (1906). The trial court was correct in dismissing the negligence claim against Fareway.

The abuse of process claim against Fareway also fails. There are three elements in such a claim: (1) the use of a legal process, (2) its use in an improper or unauthorized manner, and (3) resulting damages. Fuller A Local Union No. 106 of United Bhd. of Carpenters & Joiners of Am., 567 N.W.2d 419, 421-22 (Iowa 1997). Abuse of process claims routinely fail under the high burden we require for the second element. Id. at 422. Darrell Chester argues that Fareway filed the charge only to collect its debt and this was improper. We seriously doubt, under the facts alleged here, that mere filing satisfies the second element. We however rest our affirmance on the obvious fact that Darrell Chester’s damages in no way resulted from Fareway’s filing, but stemmed from mistakes made by the clerk’s office in acting on Fareway’s correct information. Summary judgment was properly entered for Fareway on this claim.

II. Plaintiffs claim against Marion County is in two counts. The first is again for alleged negligence. This claim, whatever its underlying merit, cannot be asserted against Marion County unless the mistakes of the clerk’s office can be ascribed to Marion County. They cannot be. Since 1983 the office of clerk of district court in all Iowa counties has been a part of the judicial branch of state government. Iowa Code § 602.1102(4) (2001). In order to disseminate court services to the public, clerk’s offices necessarily are housed in county courthouses. But they are not a part of county government. Clerks are appointed by district court judges and are subject to the rules, directives, and procedures of our branch of government. Iowa Code § 602.1215(1), (4). Like the trial court we can see no way Marion County should be called to answer for the negligence of one of our judicial officers.

III. Darrell Chester also asserts a claim against Marion County for false arrest. Such a claim has two elements: “(1) detention or restraint against one’s will, and (2) unlawfulness of the detention or restraint.” Kraft v. City of Bettendorf, 359 N.W.2d 466, 469 (Iowa 1984); Children v. Burton, 331 N.W.2d 673, 678-79 (Iowa 1983). The claim here fails on the second element. So far as Marion County is concerned, the arrest was lawful. The district court issued a warrant that was facially valid. This protected the arresting officer, acting for Marion County, from any liability. Wilson v. Lapham, 196 Iowa 745, 751-52, 195 N.W. 235, 238 (1923) (citing universal rule that, where arrest is made by an officer “in possession of a warrant regular and valid upon its face, and issued by a magistrate having jurisdiction of the subject matter,” it affords complete protection of officer and informant).

Summary judgment was correctly entered for Marion County.

IV. This case ultimately boils down to the fact that the source of Darrell Chester’s trouble is as easy to trace as it is impossible to justify. The wrong cannot be laid at the door of either defendant. We are not proud when mistakes by one of our officials cause harm to anyone. It would compound our chagrin, however, to shift the blame to others.

AFFIRMED.


source: Caselaw Access Project

author: NEUMAN, Justice.

license: Public Domain

text:
    Lucio CHAPA, Appellant, v. JOHN DEERE OTTUMWA WORKS, Appellee.
    No. 01-1361.
    Supreme Court of Iowa.
    Oct. 9, 2002.

      Vern M. Ball of Lynch Law Office, Bloomfield, for appellant.
    Joseph A. Quinn of Nyemaster, Goode, Voigts, West, Hansell & O’Brien, P.C., Des Moines, for appellee.
   NEUMAN, Justice.

The appellant, Lucio Chapa, suffers from a disabling hearing disorder called tinnitus. On this appeal from the denial of his claim for workers’ compensation benefits, the only question is whether the district court correctly affirmed the commissioner’s finding that Chapa’s claim is barred by the statute of limitations, Iowa Code section 85.26(1) (1997). Finding no error, we affirm.

I. Background Facts and Proceedings.

The facts are undisputed. Chapa worked for the appellee, John Deere Ot-tumwa Works, for thirty years. He was regularly exposed to factory noise. Chapa officially retired from Deere on December 31, 1995, although his last day of work was December 8,1995.

Routine audiometric testing revealed that Chapa sustained some hearing loss over the years, but never enough to qualify for compensation. In 1997, after Chapa had retired, a doctor diagnosed the ringing in his ears as tinnitus. He advised that the condition was most likely related to Chapa’s employment in a noisy factory.

Chapa filed a claim for a cumulative, work-related injury on December 24, 1997. His petition described the nature of his disability as “permanent hearing loss in upper tones and ringing in his ears.” Just prior to the hearing on his claim, Chapa amended his petition to seek benefits only for the tinnitus. Thereupon counsel for Deere was permitted to raise a statute of limitations defense on the ground Chapa’s claim was not filed within two years of the date of injury as required by Iowa Code section 85.26(1).

At the hearing on Chapa’s claim, it became evident that his counsel was unaware that Chapa’s last date of work was December 8, 1995, not December 31, 1995 (his official retirement date). So counsel sought relief under the discovery rule, insisting that Chapa did not become aware of the work-related nature of his condition until the diagnosis of tinnitus in 1997. Deere countered that Chapa was well aware of his condition and its probable connection to his work by 1983.

A deputy commissioner, affirmed on interagency appeal, determined that the last possible day the statute of limitations began to run was December 8, 1995, Cha-pa’s last day of work, thus his petition filed December 24, 1997 was plainly time barred. The chief deputy further found that the limitations period on Chapa’s claim may have begun running as early as 1983. In either event, his claim was barred under section 85.26(1).

Chapa sought judicial review under Iowa Code chapter 17A. In addition to the arguments made before the agency, Chapa argued he could not have recovered benefits for tinnitus until this court’s decision in Ehteshamfar v. UTA Engineered Systems Division, 555 N.W.2d 450 (Iowa 1996). In Ehteshamfar, this court held that tinnitus should be compensated as an injury to the body as a whole, rather than as a hearing loss, because the condition arises, not from an inability to hear, but from the perception of sounds that do not exist. 555 N.W.2d at 453.

The district court rejected all Chapa’s claims, agreeing that the record supported the commissioner’s findings and determining, as a matter of law, that Ehteshamfar did not toll the statute of limitations in Chapa’s case. This appeal by Chapa followed.

II. Scope of Review.

Our review is limited to the correction of errors at law. Herrera v. IBP, Inc., 633 N.W.2d 284, 286-87 (Iowa 2001). We are bound by the agency’s factual findings so long as they are supported by substantial evidence. Id. at 287. “Evidence is substantial if a reasonable person would find it adequate for reaching a conclusion, even though a reviewing court might reach a contrary inference.” Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824, 830 (Iowa 1992).

III. Applicable Law.

It is undisputed that Chapa’s claim arises under Iowa Code chapter 85. The pertinent statute of limitations for such claims is “two years from the date of the occurrence of the injury for which benefits are claimed.... ” Iowa Code § 85.26(1). Where, as here, the injury complained of is not traumatic but cumulative, the worker is entitled to the benefit of the discovery rule. See Herrera, 633 N.W.2d at 287. In such a case, the statute of limitations does not begin to run until the worker recognizes, or should recognize, the “nature, seriousness and probable compensable character” of the disability. Orr v. Lewis Cent. Sch. Dist., 298 N.W.2d 256, 257 (Iowa 1980); accord Herrera, 633 N.W.2d at 287. A worker’s knowledge of the three triggering factors may be actual or imputed from the record. Ranney v. Parawax Co., 582 N.W.2d 152, 154-55 (Iowa 1998).

IV.Analysis.

This case hinges on the determination of when Chapa knew or should have known the probable compensable nature of his claim for tinnitus. Chapa however poses two challenges to the commissioner’s ruling. First he argues the record fails to support the commissioner’s finding that he knew or should have known the relationship between his tinnitus and his work environment by 1983. He next contends his claim was not legally compensable at all until our 1996 Ehteshamfar decision because, until then, he could not have known the probable compensable nature of his claim. We shall consider the arguments in turn.

A. Evidentiary sufficiency. Given the record before us, there can be little doubt that a reasonable fact finder could conclude that Chapa was aware of the nature and seriousness of his injury long before his retirement from the company in 1995. Chapa admits first noticing a “very strange” ringing in his ears in 1983. He definitely associated the onset of the condition with the marriage of his daughter that same year. The sound awakened him from sleep, affecting his concentration at work. Because ringing in the ears is the nature of tinnitus, these facts support the finding that Chapa realized the nature of his injury in 1983.

Chapa also recognized the seriousness of the tinnitus by 1983. Because the condition affected his sleep, he felt tired and less alert at work. His ability to concentrate on tasks suffered. He felt the condition made him talk louder, negatively affecting communication with his co-workers. A reasonable person could find these effects, taken together, made Chapa aware of the seriousness of his injury. In fact that is the only conclusion to be drawn from this record.

The real question is when Chapa knew, or by reasonable inquiry, should have known the probable compensable nature of his injury. See Ranney, 582 N.W.2d at 155. From his conversations with the company audiologist and his co-workers, Chapa had concluded that the condition was something he would merely have to “live with.” He claims that he did not really understand the relationship between his tinnitus and noise exposure at the factory until the condition was formally diagnosed by his physician in 1997. In Ran-ney, however, this court reiterated the longstanding rule that a worker has a duty to investigate whether an injury — even a latent one — is work-related and, hence, potentially compensable. Id. Under this rule of inquiry notice, neither the lack of positive medical information nor lack of an expert opinion will prevent commencement of the statute of limitations. Id. at 155-56.

B. Ehteshamfar’s impact on compensability. Plainly Chapa realized or should have realized the connection between the tinnitus and his work environment in the mid-1980s. Yet he argues on appeal that until this court’s decision in Ehteshamfar, his condition would not have been compensable.

Chapa’s reliance on Ehteshamfar is misplaced. There we observed that tinnitus, although a condition related to hearing, does not meet the statutory definition of occupational hearing loss, that is, “permanent sensorineural loss of hearing in one or both ears in excess of twenty-five decibels.” Ehteshamfar, 555 N.W.2d at 453 (quoting Iowa Code § 85B.4(1)). Tinnitus in fact “causes a person to perceive sounds that do not exist.” Id. Because the condition, although disabling, involves no hearing loss, we held “it should be compensated under Code section 85.34(2)(u),” the catchall section for disabilities not specifically described in section 85.34(2)(a)-(t). Id.

Ehteshamfar did not hold, as Chapa suggests, that tinnitus would not have been compensable prior to the case’s filing in 1996. The case merely clarified the way in which the condition would be compensated — as an injury to the body as a whole, rather than as a hearing loss. Chapa is mistaken when he claims that the third prong of the three-part Orr test could not have been met until 1996. Had he filed his claim in 1983, when on inquiry notice concerning the serious nature of his injury and its relationship to his work, perhaps the controlling case on benefits for tinnitus would have been Chapa v. Deere, instead of Ehteshamfar.

The limitations period of section 85.26(1) is designed to protect both the claimant and the employer. Swartzendruber v. Schimmel, 613 N.W.2d 646, 649 (Iowa 2000). It protects the claimant by allowing time “to investigate the claim and establish grounds to file a petition,” while permitting the employer to avoid indefinite liability for potential claims. Id. But the burden of justifying an extension of the statute’s deadline based on the discovery rule falls on the worker asserting it. Ranney, 582 N.W.2d at 154. Chapa has failed to meet that burden here.

We affirm the district court’s decision on judicial review, thereby affirming the agency’s dismissal of Chapa’s petition.

AFFIRMED.


author: LAVORATO, Chief Justice.

text:
    STATE of Iowa, Appellee, v. Douglas Warren BIDDLE, Appellant.
    No. 01-1434.
    Supreme Court of Iowa.
    Oct. 9, 2002.

      Linda Del Gallo, State Appellate Defender and Stephan J. Japuntich, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, James Detaeye, Marshall County Attorney, and David S. Walker, Assistant County Attorney, for appellee.
   LAVORATO, Chief Justice.

A jury convicted defendant, Douglas Warren Biddle, for delivery of methamphetamine, more than five grams, in violation of Iowa Code section 124.401(l)(b)(7) (1999). Biddle appeals from his conviction and sentence. In his appeal, Biddle chai-lenges the district court’s rulings (1) allowing into evidence the methamphetamine he was accused of delivering and a lab report regarding the drug over his ehain-of-custo-dy objection, (2) denying his motion for judgment of acquittal based upon insufficiency of the evidence, (3) denying his motion for new trial based on his allegation that the district court failed to act in a neutral and detached manner, and (4) rejecting his constitutional challenges to Iowa Code sections 901.10(2) and 907.3(3)(e). We preserve for postconviction relief proceedings Biddle’s claim that his counsel was ineffective for failing to raise in district court the application of strict scrutiny to Biddle’s equal protection claim. We find the remainder of Biddle’s challenges without merit and therefore affirm.

I. Facts.

The jury could find the following facts. On October 31, 2000, Detective James Ulin, an officer with the Marshalltown Police Department and the Mid-Iowa Drug Task Force (Drug Task Force), set up a controlled buy of narcotics from Biddle. Previously, Ulin had observed Biddle at the residence of a known drug dealer. Based on his observations, Ulin suspected that Biddle might be involved in narcotics.

Confidential informant Tracy Cartee had an agreement with the Drug Task Force whereby pending charges against him in Story County, Iowa, would be dismissed in exchange for his cooperation. The Drug Task Force expected Cartee to set up two targets and buy approximately two “eight-balls” (½ of an ounce) of methamphetamine. Cartee, a methamphetamine user, informed Ulin that he had previously purchased drugs from Biddle.

On October 31, 2000, Ulin instructed Cartee to call Biddle and arrange to buy drugs from him. Cartee called Biddle and arranged to meet him at Wal-Mart to purchase $350 worth of methamphetamine, approximately a quarter of an ounce.

Before the meeting, Cartee and his girlfriend, Terri Norton (who was also under an agreement with the Drug Task Force), met Ulin and Deputy Hoffman at Lions Park to prepare for the controlled buy. Ulin performed a pat-down search of Car-tee, checking his pockets and waistband. Ulin checked the amount of cash Cartee was carrying and opened Cartee’s package of Camel Light cigarettes to look inside and verify that only cigarettes were there. According to Cartee, the officers searched his pockets, shirt, coat, boots, waistline, billfold, motorcycle, and motorcycle pouch. Cartee noted that the only place to carry anything on his motorcycle was in the leather pouch attached to the front.

According to Ulin, officers typically do not search the metal part of a motorcycle engine, or inside a person’s shoes because methamphetamine will melt in places that get exceedingly hot.

At the same time that Ulin was searching Cartee, Hoffman was searching Norton. Ulin and Hoffman had searched Cartee and Norton on a prior occasion. Hoffman and Norton were approximately three feet from Ulin and Cartee. Cartee did not closely watch Hoffman’s search of Norton. The officers found no controlled substances on Cartee, Norton, or the motorcycle. Following the search, Ulin placed a transmission wire on Cartee and provided him with the money to make the drug buy.

At 4:33 p.m., Cartee and Norton left the park on Cartee’s motorcycle and headed for Wal-Mart to meet Biddle. Ulin and Hoffman followed them. Cartee and Norton arrived at Wal-Mart at 4:39 p.m. On the way to Wal-Mart, the officers saw no furtive movements by either Cartee or Norton.

Deputy William Jorgensen followed Biddle, who was on a motorcycle, to the Wal-Mart parking lot. Cartee and Norton arrived before Biddle. Officer Matthew Hoskins, who was responsible for recording any conversations picked up by Car-tee’s wire, was parked in the Wal-Mart parking lot when Biddle arrived at about 4:44 p.m.

While Biddle, Cartee, and Norton were talking, a police officer drove a marked police car through the Wal-Mart parking lot. This officer’s presence was unrelated to the controlled buy. Biddle “got spooked by the cop” and told Cartee and Norton to follow him to another location to complete the drug transaction.

Cartee and Norton followed Biddle to Brown & Sons Camper Sales (Brown & Sons). They did not stop anywhere on the way. Cartee and Norton arrived at Brown & Sons at 4:52 p.m. Ulin estimated it takes three or four minutes to get from Wal-Mart to Brown & Sons. In the parking lot, Cartee and Norton gave Biddle the money, and Biddle handed Cartee the drugs in a GPC cigarette pack. Biddle told Cartee and Norton that he could get one more quarter ounce if they wanted it. They told Biddle they would contact him. Biddle left, and Cartee and Norton returned directly to Lions Park.

Jorgensen, Hoskins, and Ulin separately followed the motorcycles from Wal-Mart to the Brown & Sons lot and parked nearby. None of the officers observed any furtive movements by Cartee or Norton along the way. Hoskins lost sight of them for a short time. Ulin could not see Car-tee, Norton, or Biddle once they got to the Brown & Sons parking lot. Cartee’s wire picked up his and Norton’s conversation with Biddle. The tape, however, was muffled and hard to hear. Ulin next saw Cartee and Norton when they exited the Brown & Sons parking lot and headed back to Lions Park. Ulin followed them directly to the park and did not observe any furtive movements along the way. Cartee and Norton arrived at the park at 5:04 p.m.

At the park, Ulin received an empty pack of cigarettes with a “brown chunk powder substance” inside. According to Cartee, Ulin retrieved the pack from Norton’s pocket. However, according to Ulin, Cartee handed him the pack. Ulin and Hoffman searched Cartee and Norton again at 5:05 p.m. Cartee no longer had the money that Ulin had provided earlier. Thirty-eight minutes passed between the prebuy and postbuy searches. Ulin observed Cartee and Norton the entire time, except for approximately three to seven minutes during which Cartee and Norton were talking with Biddle in the Brown & Sons parking lot.

II. Proceedings.

On February 12, 2001, the State charged Biddle with delivery of more than five grams of methamphetamine, in violation of Iowa Code section 124.401(l)(b)(7). At trial, Cartee identified the package of methamphetamine he purchased from Biddle. According to a lab report, the package contained 6.67 grams of methamphetamine. Biddle objected to the introduction of the methamphetamine and the lab report on chain-of-custody grounds. After some discussion, the court admitted the challenged evidence.

At the close of the State’s case, Biddle moved for judgment of acquittal, arguing that the State had not proved its case due to the chain-of-custody issue. The district court denied the motion. The jury found Biddle guilty of delivery of more than five grams of methamphetamine.

In his motion for new trial, Biddle argued that the district court failed to act in a neutral and detached manner when it “assist[ed] the State by outlining the specific steps needed to overcome the chain-of-custody objection.” The court denied the motion.

Before he was sentenced, Biddle raised constitutional challenges to Iowa Code sections 901.10(2) and 907.3(3)(e). The district court denied the challenges and proceeded to sentence Biddle to an indeterminate twenty-five-year term of imprisonment. Biddle appeals.

III. Issues.

Biddle raises several issues on appeal. First, he argues the district court erred in admitting the cigarette pack containing the methamphetamine and the lab report over his chain-of-custody objection. Second, Biddle argues the district court erred in failing to grant his motion for judgment of acquittal based on insufficiency of the evidence. Third, he contends the district court erred in faffing to grant him a new trial based on the court’s failure to act in a neutral and detached manner. Last, he argues the district court erred in denying his constitutional objections to Iowa Code sections 901.10(2) and 907.3(3)(e). In the event that any of these issues were not adequately preserved, Biddle argues his trial counsel was ineffective in not preserving them.

IV. Chain-Of-Custody Issue.

The district court has considerable discretion in determining whether the State has shown the chain of custody necessary for admission of physical evidence. State v. Barger, 511 N.W.2d 632, 636 (Iowa Ct.App.1993). We review admission of such evidence over a chain-of-custody objection for abuse of discretion. State v. Bakker, 262 N.W.2d 538, 543 (Iowa 1978). Unless there is a clear abuse of discretion in such a ruling, we will not overturn it. Id.

Biddle contends the State’s failure to produce Norton as a witness at trial is a “fatal flaw” in proving chain of custody. Norton, Biddle argues, had an incentive to hide all or part of the methamphetamine allegedly purchased from Biddle before the alleged transaction, because she had some pending charges that would be dropped if she cooperated in this controlled buy. In addition, Biddle contends the Drug Task Force failed to provide a female law enforcement officer to search Norton before the controlled buy. Finally, Biddle contends that none of the officers witnessed the transaction, thus providing Norton with ample time to change and/or tamper with the methamphetamine. For these reasons, Biddle argues that the evidence is “highly unreliable,” and the district court therefore should not have admitted it.

It is true that “[failure to account for continuous custody or to negate any reasonable probability of tampering or substitution of evidence ordinarily is fatal to the State’s case.” Id. at 542. However, to establish a chain of custody adequate to justify admission of physical evidence, the State must show only “circumstances making it reasonably probable that tampering, substitution or alteration of evidence did not occur. Absolute certainty is not required.” Id. at 542-43. The burden is heavier when the evidence offered is an item that is very susceptible to tampering, like drugs. State v. Mehner, 480 N.W.2d 872, 877 (Iowa 1992). When the district court has determined that the State has established a sufficient foundation for the admission of the physical evidence, any speculation to the contrary affects the weight and not the admissibility of the evidence. State v. Orozco, 290 N.W.2d 6, 10 (Iowa 1980).

In this ease, we think the testimony of the State’s witnesses was sufficient to establish the chain of custody. As both Ulin and Cartee testified, Ulin conducted a thorough search of Cartee just before the controlled buy at 4:27 p.m. Deputy Hoffman, a male officer, searched Norton, a female. Ulin testified a male officer could conduct a thorough search of a female, “but minus, of course, the female cavities.” In a situation like the one here, Ulin testified that a male could search a female with another male officer present, “as long as there were the two of us.” Ulin and Hoffman had searched Cartee and Norton on a prior occasion, and Ulin testified that he had confidence in Hoffman’s search of Norton. Hoffman searched Cartee’s motorcycle, including the leather pouch attached to it. Ulin testified he “had no doubt” in his mind that there were no drugs on Cartee, Norton, or the motorcycle when they left the park at 4:38 p.m., en route to Wal-Mart.

Except for between three and seven minutes, during which the alleged transaction took place, officers observed Cartee and Norton during the operation and did not notice any furtive movements. Ulin received the pack of cigarettes with the methamphetamine at 5:04 p.m. from either Cartee or Norton. At 5:05 p.m., Ulin and Hoffman conducted another search of Car-tee and Norton and found nothing. The entire controlled buy operation took less than forty minutes.

Cartee, who had been dating Norton for approximately ten months, testified that Norton would have told him if she had any methamphetamine on her that day. • He observed Norton put the methamphetamine she received from Biddle in her pocket and give it'to.Ulin. Cartee testified there was no way Norton could have altered the drug after receiving it from Biddle .and before meeting the officers in Lions Park. He also testified he would have known if she made any movements while riding on the motorcycle with him. Finally, Cartee identified the methamphetamine the State was attempting to offer into evidence as the methamphetamine received from Biddle.

We conclude the State adequately showed “circumstances making it reasonably probable that tampering, substitution or alteration of evidence did not occur.” Bakker, 262 N.W.2d at 543. Any speculation to the contrary affected only the weight of the evidence and not its admissibility. See United States v. Beal, 279 F,3d 567, 571-72 (8th Cir.2002) (although officers may not have been able to see actual drug transaction occur and informant did not testify, chain of custody established where officer searched informant before controlled buy; transaction occurred in car on a public street, lasted less than one minute; and informant was under constant surveillance by several officers who communicated by radio to ensure their surveillance was not compromised).

V. Sufficiency of Evidence.

We review challenges to the sufficiency of the evidence supporting a guilty verdict for correction .of errors at law. State v. Webb, 648 N.W.2d 72, 75 (Iowa 2002). We allow a verdict to stand if substantial evidence supports it. Id. Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. Id. at 75-76.

We review the evidence in the light most favorable to the State, including legitimate inferences and presumptions that may fairly and reasonably be deduced from the record evidence. State v. Heard, 636 N.W.2d 227, 229 (Iowa 2001). We consider all the record evidence, not just the evidence that supports the verdict. Id.

Biddle’s sufficieney-of-the-evidence argument directly relates to his chain-of-custody argument. Biddle contends that, because the chain of custody was deficient as to the methamphetamine, the State did not prove beyond a reasonable doubt that he supplied Cartee and Norton with the drug or, in the alternative, five grams or more of it. Because we determine the district court did not abuse its discretion in admitting the methamphetamine over Biddle’s chain-of-custody objection, we conclude substantial evidence supports the jury’s guilty verdict.

VI. Neutral and Detached Judge.

The State contends Biddle failed to preserve error on this issue by objecting or moving for recusal at the time the district court allegedly improperly aided the prosecution in laying foundation for the admission of the methamphetamine and the lab report concerning it. See McKinley v. Iowa Dist. Ct., 542 N.W.2d 822, 827 (Iowa 1996) (counsel “promptly filed a motion to recuse” after judge’s comments in open court). To the extent Biddle failed to preserve error, he argues his trial counsel was ineffective.

Biddle first raised the issue in a motion for new trial. Clearly, that was too late. However, we need not reach the ineffee-tive-assistance-of-counsel issue if we determine the district court did not improperly aid the prosecution on the chain-of-custody issue. See State v. Phillips, 610 N.W.2d 840, 844 (Iowa 2000) (“Because we have rejected all of Phillips’ arguments on their merits, we need not address the claim of ineffective assistance of counsel she has raised to excuse her trial counsel’s failure to preserve error in the district court.”).

There is a constitutional right to have a neutral and detached judge. State v. Mann, 512 N.W.2d 528, 582 (Iowa 1994). “A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned .... ” Iowa Code of Judicial Conduct, Canon 3C(1). Before recusal is necessary, actual prejudice must be shown. McKinley, 542 N.W.2d at 827. “The test is whether a reasonable person would question the judge’s impartiality.” Id. Speculation is not sufficient, and “there is as much obligation for a judge not to re-cuse when there is no occasion for him to do so as there is for him to do so when there is.” Mann, 512 N.W.2d at 532 (citation omitted). The burden of showing grounds for recusal is on the party seeking it. Id.

As mentioned, Biddle objected to the introduction of the drugs allegedly delivered to Cartee and Norton on chain-of-custody grounds. The district court, after considering the arguments of the parties, explained to them — outside the jury’s presence — that it would overrule a chain-of-custody objection “if there was evidence in the record with respect to the time durations of the periods when the confidential informants were under surveillance.”

After the State presented additional testimony and again moved to admit the methamphetamine and the lab report, the court summoned both attorneys to the bench. During this conference — outside the hearing of the jury — the court recalled telling the prosecutor, “you know what you have to do if you’re going to get this evidence in; and if you cannot do that, then let’s move on.” The prosecutor recalled the conversation similarly: “[The judge] told me basically let’s move on unless we’re going to get the information we need.” Following the bench conference, the State presented additional testimony, and the court eventually admitted the challenged evidence. Biddle contends the court improperly advised the State how to remedy its foundational deficiencies, which demonstrates the court’s failure to act in a neutral and detached manner.

A judge is allowed to manage the trial, including the order of proof. Howard v. State, 766 S.W.2d 907, 908 (Tex.Ct. App.1989). In Howard, the appellate court concluded that the trial judge’s suggestion of a procedure that it would consider acceptable to support the admission of fingerprint records was not an abuse of discretion. Id.

The district court’s ruling on Biddle’s motion for new trial concerning this very issue more than adequately explains the court’s action and dispels any notion of judicial bias in favor of the State and a lack of neutrality on the part of the court:

In the instant case this Court believes it was well within its discretion to advise the parties during its ruling on the objection (which by request was being treated as a motion in limine) as to what it believed was lacking in the State’s chain of custody proof. Or placed conversely, this Court believes it had discretion to tell the State what was necessary to establish the appropriate foundation. It was up to the State to produce the evidence to meet those foundational requirements. If it could not do so, the drugs and the lab report would not have been admitted.
Even if the Court had not pointed out to the State where its foundation evidence was lacking, it would have been Defendant’s responsibility to do so, in order to preserve error.
A chain of custody objection is in essence an objection challenging the foundational basis to admit the exhibit. That being the case, had the State offered the drugs without a proper foundation, the Defendant would have been obliged, in order to preserve error, to illuminate the specific reasons why the foundation was deficient. “A party objecting to the offer of evidence for this reason [no proper foundation laid] must point out in what particular or particulars the foundation is deficient so the adversary may have an opportunity to remedy the alleged defect, if possible.”
Accordingly, insofar as the Court’s initial pronouncement about what type of foundation it considered necessary to admit the drugs, the Court is unconcerned that it overstepped the bounds of discretion, thereby coming to the State’s aid in its case presentation.

(Citations omitted.)

Additionally, all of the district court’s comments were outside the presence of the jury. The court was very careful to make sure no arguments or any response by the court were made in the jury’s presence. Cf State v. Hardy, 492 N.W.2d 230, 235 (Iowa Ct.App.1992) (“Jurors are particularly sensitive to the presiding judge’s views and may be unduly influenced by what they perceive those views to be.”). No reasonable person would question this trial judge’s impartiality during trial. Cf. State v. Glanton, 231 N.W.2d 31, 34-36 (Iowa 1975) (trial judge “assumed the partisan role of advocate for the defense” by directing defense counsel when and how to make objections and interposing objections of his own). We conclude the district court did not improperly aid the State on the chain-of-custody issue. Because we reach this conclusion, we need not address the ineffective-assistance-of-counsel issue.

VII. Constitutional Issues.

Biddle argues, as he did in the district court, that Iowa Code section 901.10(2) violates his right against self-incrimination and his right to a jury trial as guaranteed by the Fifth and Sixth Amendments of the United States Constitution and article I, sections 9 and 10 of the Iowa Constitution. In addition, he contends Iowa Code sections 901.10(2) and 907.3(3)(e) violate equal protection.

We review constitutional issues de novo. In re S.J.D., 641 N.W.2d 794, 797 (Iowa 2002). Because statutes are cloaked with a strong presumption of constitutionality, a party challenging a statute as unconstitutional carries a heavy burden of rebutting this presumption. Id. Such a party must negate every reasonable basis upon which the court could hold the statute constitutional. Klouda v. Sixth Judicial Dist. Dep’t of Corr. Servs., 642 N.W.2d 255, 260 (Iowa 2002). Such a party must also show beyond a reasonable doubt that a statute violates the constitution. Id.

The jury convicted Biddle of delivery of more than five grams of methamphetamine, a violation of Iowa Code section 124.401(l)(b)(7). He was therefore subject to the Iowa Code section 124.413 mandatory minimum sentence:

A person sentenced pursuant to section 124.401, subsection 1, paragraph ... “b,” ... shall not be eligible for parole until the person has served a minimum period of confinement of one-third of the maximum indeterminate sentence prescribed by law.

Iowa Code § 124.413.

Because the offense involved methamphetamine, Biddle was also subject to section 901.10(2), which provides in relevant part:

[I]f the sentence under section 124.413 involves a methamphetamine offense under section 124.401, subsection 1, paragraph “a ” or “b ”, the court shall not grant any reduction of sentence unless the defendant pleads guilty. If the defendant pleads guilty, the court may, at its discretion, reduce the mandatory minimum sentence by up to one-third.

Iowa Code § 901.10(2) (emphasis added). Biddle did not plead guilty. Therefore, the sentencing court had no discretion to reduce his sentence.

Finally, pursuant to Iowa Code section 907.3(3)(e), the sentencing court could not suspend Biddle’s sentence and place him on probation. See Iowa Code § 907.3(3)(e) (providing that the court shall not suspend the sentence and place defendant on probation if the offense is a violation of section 124.401(l)(a) or (b) and the controlled substance is methamphetamine).

A. Fifth and Sixth Amendments. Biddle contends section 901.10(2) unfairly punishes defendants for remaining silent and demanding a jury trial. In support of his contention, he argues that a criminal defendant must necessarily incriminate himself to be eligible for the one-third reduction in sentence, which violates the Fifth Amendment right against self-incrimination. See U.S. Const, amend. V (“No person shall ... be compelled in any criminal case to be a witness against himself. ...”). He also argues that the statute requires defendants to waive their Sixth Amendment right to a jury trial to be eligible for the reduction in sentencing. See U.S. Const, amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury....”). The Fifth and Sixth Amendments of the United States Constitution apply to the states through the Fourteenth Amendment Due Process Clause. See Duncan v. State of Louisiana, 391 U.S. 145,149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491, 496 (1968) (“[T]he Fourteenth Amendment guarantees a right of jury trial in all criminal cases which — were they to be tried in a federal court — would come within the Sixth Amendment’s guarantee.”); State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001) (“This right against self-incrimination is incorporated into the Due Process Clause of the Fourteenth Amendment and thus applies to the States”).

Biddle also contends the statute violates the equivalent rights guaranteed by article I, sections 9 (“[N]o person shall be deprived of life, liberty or property without due process of law.”) and 10 (“In all criminal prosecutions, ... the accused shall have a right to a speedy and public trial by an impartial jury ....”) of the Iowa Constitution. “Although this court is the final arbiter of the Iowa Constitution, similar provisions of the state and federal constitutions ‘are usually deemed to be identical in scope, import, and purpose.’ ” State v. Boland, 309 N.W.2d 438, 440 (Iowa 1981).

Biddle relies on two cases to support his arguments: United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), and State v. Nichols, 247 N.W.2d 249 (Iowa 1976). Both cases can be distinguished.

In Nichols, this court said:

A defendant’s right to demand a trial and to force the state to present its evidence to a fact finder is too fundamental to be so easily dismissed. The exercise of that right cannot be chilled by exacting a price therefor.

247 N.W.2d at 255. This court was addressing whether the district court based its sentence on an impermissible determining factor — the defendant’s failure to plead guilty. Id. at 250-51. Here, however, the legislature has explicitly limited the exercise of the sentencing court’s discretion in reducing a sentence. The question is whether the legislature acted unconstitutionally in doing so. The United States Supreme Court has squarely addressed this question in two cases we proceed to discuss.

In Jackson, the Supreme Court held unconstitutional the death sentence provided by the Federal Kidnapping Act. Jackson, 390 U.S. at 582-83, 88 S.Ct. at 1216-17, 20 L.Ed.2d at 147-48. The Act provided for the imposition of the death penalty only upon the recommendation of a jury. Id. at 571, 88 S.Ct. at 1210, 20 L.Ed.2d at 141 ¡ The statute set forth no procedure for imposing the death penalty upon a defendant who waived the right to jury trial or pleaded guilty; the maximum penalty for such defendants was life imprisonment. Id. Thus, only those insisting on a jury trial faced the possibility of a death sentence. The Court held the provisions were a needless encouragement to plead guilty or to waive a jury trial and declared the death penalty provisions unconstitutional. Id. at 582-83, 88 S.Ct. at 1216-17, 20 L.Ed.2d at 147-48.

The Supreme Court distinguished Jackson in Corbitt v. New Jersey, 439 U.S. 212, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978). In Corbitt, a New Jersey homicide statute provided a mandatory punishment of life imprisonment for those convicted by a jury of first-degree murder and punishment by a term of not more than thirty years for second-degree murder. 439 U.S. at 215, 99 S.Ct. at 495, 58 L.Ed.2d at 472. If a defendant entered a plea of non vult or nolo contendere, however, punishment was either life imprisonment or a thirty-year indeterminate term. Id.

Corbitt, after pleading not guilty to a murder indictment, was convicted of first-degree murder.- Id. at 216, 99 S.Ct. at 496, 58 L.Ed.2d at 472. On appeal, relying on Jackson, he argued the New Jersey statutory scheme violated his Fifth and Sixth Amendment rights. Id. The Supreme Court concluded that Jackson “does not require a reversal of Corbitt’s conviction” because (1) the death penalty, “unique in its severity and irrevocability,” was not involved, and (2) “although the punishment when a jury finds a defendant guilty of first-degree murder is life imprisonment, the risk of that punishment is not completely avoided by pleading non vult because the judge accepting the plea has the authority to impose a life term. New Jersey does not reserve the maximum punishment for murder for those who insist on a jury trial.” Id. at 217, 99 S.Ct. at 496-97, 58 L.Ed.2d at 473 (citations and footnotes omitted). The Court noted that

not every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right, is invalid. Specifically, there is no per se rule against encouraging guilty pleas.

Id. at 218-19, 99 S.Ct. at 497, 58 L.Ed.2d at 474 (footnote omitted). The Court upheld New Jersey’s sentencing scheme, noting that “a State may make due allowance for pleas in its sentencing decisions and that New Jersey has not exceeded its powers in this respect by its statutory provision extending the possibility of leniency to those who plead non vult in homicide cases.” Id. at 225 n. 15, 99 S.Ct. at 500 n. 15, 58 L.Ed.2d at 478 n. 15.

The statute here more closely resembles the statute in Corbitt. The death penalty is not involved. Additionally, section 901.10(2) gives the sentencing court discretion to reduce the mandatory minimum sentence of those pleading guilty. A defendant therefore could receive the mandatory minimum sentence whether or not he or she pleads guilty. The statute, we conclude, does not violate Biddle’s Fifth or Sixth Amendment rights under the Federal Constitution or his rights under the Iowa Constitution. The district court was correct in reaching the same conclusion.

B. Equal protection. Biddle contends that sections 901.10(2) and 907.3(3)(e) violate equal protection by treating methamphetamine users more harshly than users of other addictive and life-threatening hard drugs.

The Equal Protection Clause of the United States Constitution prohibits states from denying “to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. The Iowa Constitution prohibits laws that “grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.” Iowa Const, art. I, § 6. We usually deem the federal and state Equal Protection Clauses to be identical in scope, import, and purpose. Bowers v. Polk County Bd. of Supervisors, 638 N.W.2d 682, 689 (Iowa 2002). Therefore, we apply the same analysis in considering federal and state equal protection claims. Id.

The Equal Protection Clause requires that similarly situated persons be treated alike. Id. Any governmental classification of persons “must meet the applicable constitutional standard imposed under the Equal Protection Clause.” Id. (citation omitted).

The first step in an equal-protection analysis is to determine the appropriate standard of review. In re B.B., 516 N.W.2d 874, 880 (Iowa 1994). Unless a suspect class or fundamental right is involved, any classification made by the legislature need only have a rational basis. Bowers, 638 N.W.2d at 689.

In the district court, Biddle contended there was no rational basis to treat methamphetamine offenses different from other “hard” drug offenses such as crack cocaine or heroin. On appeal, Biddle argues for the first time that strict scrutiny should apply because “[t]he rights which are at stake in the instant matter are fundamental in nature and are explicitly articulated in the Bill of Rights.” Biddle failed to preserve error on the application of strict scrutiny by failing “to alert the district court to [his] contentions at trial.” State v. Kinkead, 570 N.W.2d 97, 102 (Iowa 1997). The rule of error preservation applies with equal strength to constitutional issues. Id.

Under the rational-basis standard, a statute “enjoys a presumption of constitutionality which can only be overcome by proof that the law is patently arbitrary and bears no rational relationship to a legitimate governmental interest.” Id. (citation omitted). A classification is reasonable

[i]f it is “based upon some apparent difference in situation or circumstances of the subjects placed within one class or the other which establishes the necessity or propriety of distinction between them.” A classification “does not deny equal protection simply because in practice it results in some inequality; practical problems of government permit rough accommodations....”

Id. (quoting State v. Mann, 602 N.W.2d 785, 792 (Iowa 1999) (citation omitted)).

The legislature enjoys broad discretion in defining and classifying criminal offenses. State v. Ceaser, 585 N.W.2d 192, 196 (Iowa 1998). The classification, however, “must be based on some apparent difference in situation or circumstance of the subjects placed within one class or the other which establishes the necessity or propriety of distinction between them.” Id. (citation omitted).

The State contends the statutes at issue “address the widely documented dramatic increase in the manufacture and use of methamphetamine in recent years.” Given this increase, “the legislature could reasonably conclude that the comparative impact on the community and highly addictive nature of methamphetamine outweighs that of other ‘hard drugs.’ ”

We agree with this analysis. Biddle fails to overcome the high burden he has to show these statutes'violate equal protection. The statutes are rationally related to the government’s interest in curbing the increasing and widespread use of methamphetamine, a highly addictive drug. As we noted in Ceaser, it is up to the legislature to determine the most appropriate method of punishing and deterring criminal activity. 585 N.W.2d at 199. The district court did not err in denying Biddle’s equal protection challenge to the sentencing statutes in question.

VIII. Ineffective Assistance of Counsel.

Biddle argues that to the extent his trial counsel failed to preserve error on any issues raised, his counsel was ineffective. As mentioned, Biddle failed to preserve error on the application of strict scrutiny to his equal protection claim.

To prove an ineffective assistance of counsel claim, “a defendant must prove by a preponderance of the evidence that (1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom.” Kinkead, 570 N.W.2d at 103 (citation omitted). Generally, we do not resolve claims of ineffective assistance of counsel on direct appeal. Id. Rather, we preserve such claims for postconviction relief proceedings, where an adequate record of the claim can be developed and the attorney charged with providing ineffective assistance may have an opportunity to respond to defendant’s claims. Id.

We preserve for postconviction relief proceedings Biddle’s claim that counsel was ineffective for failing to raise in district court the application of strict scrutiny to Biddle’s equal protection claim.

IX. Disposition.

In sura, we conclude the district court did not abuse its discretion in allowing into evidence the methamphetamine and lab report regarding it over Biddle’s chain-of-custody objection. The court correctly refused to grant Biddle’s motion for judgment of acquittal and did not improperly aid the State on the chain-of-custody issue. Finally, the district court correctly rejected Biddle’s constitutional challenges to the sentencing statutes in question. For all of these reasons, we affirm. However, we preserve for postconviction relief proceedings Biddle’s claim that counsel was ineffective for failing to raise in district court the application of strict scrutiny to Biddle’s equal protection claim.

AFFIRMED.


author: TERNUS, Justice.

text:
    In the Interest of C.M., Jr., a Minor Child, D.A., Mother, Appellant.
    No. 02-0304.
    Supreme Court of Iowa.
    Oct. 9, 2002.

      Letitia A.W. Turner, Assistant State Public Defender, for appellant mother.
    Amy D. Van Es, Mason City, guardian ad litem for minor child.
    Thomas J. Miller, Attorney General, M. Elise Pippin, Assistant Attorney General, Paul L. Martin, Cerro Gordo County Attorney and Gregg Rosenbladt, Assistant County Attorney, for appellee State.
   TERNUS, Justice.

This case involves a termination of parental rights under Iowa Code section 232.116(l)(p) and (d) (2001). The parents of the minor child, C.M., appealed, and the court of appeals affirmed the termination. Upon the mother’s application, this court granted further review for the sole purpose of addressing the constitutionality of the appellate procedures that governed her appeal. The appellant specifically complains that she was limited to raising her claims of error in a petition on appeal rather than in a traditional brief. Upon our consideration of the arguments of the parties, we hold that the failure of the Iowa Rules of Appellate Procedure to provide an opportunity for full briefing in all termination cases does not violate a parent’s constitutional rights to equal protection and due process.

I. Preservation of Error.

The appellant did not challenge the constitutionality of the governing rules in her petition on appeal. Constitutional questions must be preserved by raising them “at the earliest opportunity after the grounds for objection become apparent.” State v. Yaw, 398 N.W.2d 803, 805 (Iowa 1987); accord State v. Wages, 483 N.W.2d 325, 326 (Iowa 1992). Once the appellant filed her notice of appeal, the procedures at issue were applicable. Consequently, a challenge to the constitutionality of those procedures could have been made in the petition on review filed by the appellant. Having failed to include her constitutional claims in her petition, those issues are not preserved for review.

Anticipating an error preservation problem, the mother asserts counsel rendered ineffective assistance by failing to raise the constitutional issues earlier. See generally In re A.R.S., 480 N.W.2d 888, 891 (Iowa 1992) (“The test for ineffective assistance of counsel in termination eases is generally the same as in criminal proceedings.”). The elements of an ineffective-assistance claim are (1) counsel’s performance was deficient, and (2) actual prejudice resulted. Id. If either element is not proved, the claim of ineffective assistance of counsel fails. State v. Pace, 602 N.W.2d 764, 774 (Iowa 1999).

Counsel has no obligation to raise an issue that has no merit. See State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998) (stating “counsel is not incompetent in failing to pursue a meritless issue”). Because we determine the expedited appellate procedures do not violate the appellant’s rights to procedural due process or equal protection, we likewise conclude counsel’s failure to challenge the procedures on these bases did not constitute deficient legal representation. Therefore, the appellant cannot avoid her failure to preserve error on the basis of her counsel’s allegedly ineffective representation.

Although error has not been preserved, it is still necessary to address the merits of the constitutional challenges as a component of the appellant’s ineffective-assistance-of-eounsel claim. We begin our analysis with a review of the applicable appellate rules.

II. Appellate Procedures.

Iowa Code section 232.133 governs appeals from juvenile court orders, including orders terminating parental rights. Prior to July 1, 2001, it stated that “[t]he procedure for such appeals shall be governed by the same provisions applicable to appeals from the district court provided that when such order or decree affects the custody of a child the appeal shall be heard at the earliest practicable time.” Iowa Code § 232.133(2). Effective July 1, 2001, this statute was amended to add the following sentence: “The supreme court may prescribe rules to expedite the resolution of appeals from final orders entered pursuant to section 232.117.” Iowa Code § 232.133(2) (Supp.2002); see also id. § 232.117 (addressing disposition of termination-of-parental-rights proceedings).

The impetus for this amendment is a heightened concern at the federal level that permanency for children be accomplished as soon as feasible. The federal effort to encourage prompt resolution of termination proceedings was recently discussed by this court:

Our laws relating to the welfare of children have been driven for the last twenty-five years by policies and laws generally developed at the national level. Under the Adoption Assistance and Child Welfare Act of 1980, Public Law 96-272, 94 Statutes 500 (codified as amended in scattered sections of 42 U.S.C.), the concept of family preservation was established with a goal of reuniting children with their families after reasonable efforts by social services. Congress mandated services for families and children under the threat of ineligibility for federal matching funds to accomplish this goal....
Recently, the reasonable efforts requirement has undergone some transformation. This is because the family preservation concept [that] guided our federal national policy for the last two decades was found to be detrimental to children in some cases. Consequently, the Adoption and Safe Families Act of 1997, Public Law 105-89, 111 Statutes 2115 (codified as amended in scattered sections of 42 U.S.C.), now broadens the focus of reunification to place greater emphasis on the health and safety of the child, and mandates a permanent home for a child as early as possible. See 42 U.S.C. § 675(5)(C).... In response, our legislature recently enacted amendments to our comprehensive juvenile justice act to permit waiver of reasonable efforts when aggravating circumstances exist. These amendments ... recognize a child’s right to appropriate custodial care and the important element of time.

In re C.B., 611 N.W.2d 489, 493 (Iowa 2000) (citations omitted) (emphasis added). Thus, the new federal law shifted the focus from family reunification to “time-limited family reunification services.” See 42 U.S.C. § 629(a)(7).

In response to these developments, the Iowa Supreme Court adopted amendments to the Iowa Rules of Appellate Procedure to expedite the disposition of termination appeals. In relevant part, the rules now provide that the appellant in a termination case has fifteen days within which to file a notice of appeal, as opposed to thirty days in other appeals. See Iowa R.App. P. 6.5(2). In addition, the amended rules require the appellant’s trial counsel to prepare a petition raising issues for appeal rather than arguing issues in a traditional appellant’s brief. See Iowa Rs. App. P. 6.6(4), 6.151. The petition on appeal must be filed within fifteen days of filing the notice of appeal, see Iowa R.App. P. 6.6(4), and the opposing party then has fifteen days to serve a response, see Iowa RApp. P. 6.152(1). Relying on the appellant’s petition on appeal, any response to the petition, the juvenile court record, and the trial transcript, the appellate court then conducts a de novo review of the trial court’s termination order. Iowa R.App. P. 6.154(1). At that point, the appellate court may “affirm the juvenile court decision, reverse the juvenile court decision, remand the case to the juvenile court, or set the case for full briefing pursuant to rules 6.13 and 6.17 or as directed by the court.” Iowa R.App. P. 6.154(1). Thus, full briefing becomes available only at the option of the reviewing court. Moreover, refusal by the court of appeals to grant full briefing is not grounds for further review by this court. Iowa R.App. P. 6.154(2).

III. Scope and Standard of Review.

The mother challenges the new appellate procedure on two grounds: equal protection and procedural due process. Review of constitutional claims is de novo. Santi v. Santi, 633 N.W.2d 312, 316 (Iowa 2001). The party claiming the statute is unconstitutional must “negate every reasonable basis upon which the statute could be upheld.” Bowers v. Polk County Bd. of Supervisors, 638 N.W.2d 682, 688 (Iowa 2002).

IV. Equal Protection.

A. Appellant’s argument. The mother asserts the new appellate procedures im-permissibly distinguish between classes of appellants without a legitimate state purpose. More specifically, she claims the use of a petition on appeal in lieu of full briefing violates her right to equal protection of the law by restricting her access to the appellate courts in comparison to appellants in other civil and criminal cases. She states: “To permit the victim of a broken contract to fully participate in an appeal by filing a full brief with argument while prohibiting a mother seeking to preserve her right to be a part of her child’s life from doing the same is not a logical nor legitimate distinction and serves no legitimate state purpose.”

B. Applicable legal principles. The Fourteenth Amendment prohibits a state from “denyfing] to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. The principles of law governing equal protection claims are well established:

The Equal Protection Clause requires that similarly-situated persons be treated alike. “If people are not similarly situated, their dissimilar treatment does not violate equal protection.” Any government classification of persons, however, “must meet the applicable constitutional standard imposed under the Equal Protection Clause.” Unless a suspect class or a fundamental right is involved, any classification made by the legislature need only have a rational basis.

Bowers, 638 N.W.2d at 689 (citations omitted). When, however, “the challenged statute classifies persons in terms of their ability to exercise a fundamental right or when it classifies or distinguishes person by race or national origin,” the State must show “that the classification is narrowly tailored to serve a compelling government interest.” In re Detention of Williams, 628 N.W.2d 447, 452 (Iowa 2001).

“The first step in any equal protection analysis is to determine what level of scrutiny applies.” Id. Based upon the arguments made by the mother in her brief, it appears she has evaluated the appellate rules under a rational basis test, so we are free to apply that level of scrutiny. See In re Detention of Morrow, 616 N.W.2d 544, 548 n. 1 (Iowa 2000). Indeed, to the extent the new rules impact a party’s right to appeal, a rational basis standard would govern. That is because the right to appeal is not a fundamental right, nor even a constitutional right. See Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651, 657 (1977); State v. Dinners, 471 N.W.2d 841, 843 (Iowa 1991). Notwithstanding the fact that appeals are purely statutory in Iowa, “once the right of appeal has been established, ‘these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts.’ ” Dinners, 471 N.W.2d at 843 (quoting Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S.Ct. 1497, 1500, 16 L.Ed.2d 577, 581 (1966)).

Despite the mother’s apparent concession that a rational basis test applies, we have some concern that a higher level of scrutiny may be required. Because the new rules classify appellants based on whether or not they are involved in a termination-of-parental-rights case, one could argue that the classification impacts a parent’s fundamental right to the care, custody, and control of his or her child. See Santi, 633 N.W.2d at 317 (stating that “status of parents’ interest in the care, custody, and control of their children ... [is] ‘perhaps the oldest of the fundamental liberty interests recognized by [the United States Supreme] Court’ ” (quoting Troxel v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49, 56 (2000))). If strict scrutiny were mandated, then the State would have the burden to show the classification was narrowly tailored to serve a compelling governmental interest. In re Detention of Williams, 628 N.W.2d at 452. We find it unnecessary to decide which level of scrutiny applies, because even if the more stringent test is required, that test is met.

C. Discussion. The State has the duty “to assure that every child within its borders receives proper care and treatment, and must intercede when parents fail to provide it.” In re AC., 415 N.W.2d 609, 613 (Iowa 1987). This duty includes an obligation to establish child custody quickly so that children do not “suffer indefinitely in parentless limbo.” Id. The best interest of the children who are the subject of the termination proceeding is the State’s primary concern, see In re C.B., 611 N.W.2d at 492, and this court has recognized that delays in the resolution of termination eases is “decidedly antagonistic to the children’s best interest,” In re AC., 415 N.W.2d at 615. The recent federal legislation mandating a permanent home for a child as early as possible, see 42 U.S.C. § 675(5)(C), simply emphasizes the need for prompt disposition of such cases. We think the State’s interest in obtaining a permanent home for a child as soon as possible is a compelling governmental interest.

We also conclude that the expedited procedure embodied in the appellate rules is narrowly tailored to address the State’s compelling interest. The prompt resolution of appeals in termination cases directly impacts the State’s ability to fix custody quickly. And, while the appellate procedure under the new rules is streamlined, the reviewing court’s ability to thoroughly appraise the legality of the termination order is not compromised. The appellant is given a full opportunity to identify issues for review. The reviewing court has the entire juvenile court record and transcript before it when evaluating the merit of the issues raised by the appellant. And, finally, if additional analysis by the parties would be helpful, the appellate court has the ability to order full briefing. Thus, the procedures providing for an expedited review of termination orders is narrowly tailored to advance the State’s interest in providing a permanent placement for children as soon as reasonably possible. There is no equal protection violation.

V. Dm Process.

The mother also contends the new appellate procedure deprives her of an opportunity to fully participate in the appeal of a termination case and therefore constitutes a denial of due process under the federal and state constitutions. The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. Iowa’s Due Process Clause is virtually identical. See Iowa Const, art. I, § 9. We have generally interpreted our Due Process Clause to be identical in scope, import, and purpose to the federal clause. Bowers, 638 N.W.2d at 690.

This court has recently summarized the principles of law governing a procedural due process claim.

A person is entitled to procedural due process when state action threatens to deprive the person of a protected liberty or property interest. Procedural due process requires that before there can be a deprivation of a protected interest, there must be notice and opportunity to be heard in a proceeding that is “adequate to safeguard the right for which the constitutional protection is invoked.”

Id. at 690-91 (citations omitted). Thus, our first step is to determine whether a protected liberty or property interest is implicated in the challenged rules. Id. Clearly, a protected liberty interest is implicated. The procedure at issue here arises in the context of a termination proceeding and therefore threatens to deprive the appellant of her liberty interest in the care, custody and control of her child. Id. at 691 (stating that protected interests include those created by the federal constitution).

Because a protected interest is involved, we must decide what procedure is constitutionally required. Id. We do so by balancing three competing interests: (1) the private interest affected by the proceeding; (2) the risk of error created by the procedures used, and the ability to avoid such error through additional or different procedural safeguards; and (3) the countervailing governmental interests supporting use of the challenged procedures. See Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976). “ ‘No particular procedure violates [due process] merely because another method may seem fairer or wiser.’ ” Bowers, 638 N.W.2d at 691 (quoting 16B Am. Jur.2d Constitutional Law § 909, at 500 (1998)).

With respect to the first and third factors, we have already identified the interests at stake. A parent has an interest in the custody of his or her child. The State has an interest in finalizing the termination procedure in an expedient manner so as to meet the child’s emotional and psychological need for a permanent home, as well as to control the financial drain on the State caused by needlessly protracted proceedings. Interestingly, the parent in a termination case also has an interest in a speedy conclusion because of the potential of regaining custody.

The remaining factor is the risk of error created by the abbreviated procedure. A similar risk was considered by óur court of appeals in In re R.K., 649 N.W.2d 18 (Iowa Ct.App.2002). In that case, a parent claimed a due process violation because “the reduced time from when she received the transcript of the trial court proceedings to the time the petition was due prevented her counsel from thoroughly reviewing the transcript, fully researching the issues, and adequately drafting the petition for appeal.” In re R.K., 649 N.W.2d at 20. The court noted the parent’s trial counsel, who was present at and participated in the termination hearing, had a full opportunity to raise issues for appeal in the petition on appeal, and the appellate court had the “ability to review the full record and transcript of the underlying proceeding.” Id. at 21. The combination of these procedures, concluded the court, protected “both the parents and child against the risk of erroneous deprivation.” Id.

We think the same is true here, where the mother’s complaint is not focused so much on the reduced timetable on appeal as it is on the diminished opportunity for full briefing. Even though full briefing was not allowed in the appeal before us, the procedures that were available substantially minimized any risk of error. Counsel had the opportunity to identify the issues for review by the appellate court with supporting legal authority and the reviewing court had the entire record and trial transcript before it when conducting its de novo review. Balancing the relative interests and risks involved, we conclude that this procedure did not violate the due process rights of C.M.’s mother. Cf. United States v. Marines, 535 F.2d 552, 556 (10th Cir.1976) (holding summary calendar does not violate due process as long as defendant is able to properly present issues on appeal).

VI. Conclusion and Disposition.

We hold the expedited appellate procedure in termination-of-parental-rights cases that permits only a petition on review rather than full briefing does not violate constitutional requirements of procedural due process or equal protection. Therefore, the appellant’s counsel did not render ineffective assistance by failing to raise these constitutional issues in the petition on appeal. Accordingly, the appellant’s claim of ineffective assistance of counsel fails. We affirm the decision of the court of appeals and the judgment of the juvenile court.

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.

      . Notwithstanding the limited purpose for which further review was granted, this court has reviewed de novo the other arguments made by the mother in support of her request that the termination order be reversed. We agree with the court of appeal's decision on these matters and do not think an extended analysis of these issues in this opinion is necessary or would be helpful. Therefore, we confine our discussion to the constitutional challenges made to the procedure governing the appeal of termination orders.

      . Iowa Rule of Appellate Procedure 6.6(4) provides in pertinent part: “To perfect an appeal filed pursuant to rule 6.5(2) [an appeal in a chapter 232 termination case], the appellant must also file with the clerk of the supreme court a petition on appeal in conformance with rule 6.151.” Rule 6.151 provides in pertinent part:
      6.151(2) Elements. The petition on appeal shall include all of the following elements:

        a. A statement of the nature of the case and the relief sought.

        b. The date the judgment or order for which review is sought was entered.

        c. A concise statement of the material facts as they relate to the issues presented in the petition on appeal.

        d. A statement of the legal issues presented for appeal, including a statement of how the issues arose and how they were preserved for appeal. The issue statements should be concise in nature setting forth specific legal questions. General, concluso-ry statements such as "the juvenile court's ruling is not supported by law or the facts” are not acceptable.

        e. The petition should include supporting statutes, case law, and other legal authority for each issue raised, including authority contrary to appellant's case, if known.

        f. The petition on appeal shall have attached to it: (1) a copy of the petition (and any amendments) for termination of parental rights filed in the juvenile court proceedings; (2) a copy of the order, judgment, or decree terminating parental rights or dismissing the termination petition; and (3) a copy of any rulings on a motion for new trial as provided in Iowa R. Civ. P. 1.1007 or a motion as provided in Iowa R. Civ. P. 1.904(2).


author: CARTER, Justice.

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. N. Michael D’ANGELO, Respondent.
    No. 02-0704.
    Supreme Court of Iowa.
    Oct. 9, 2002.
    Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for complainant.
    Roger J. Kuhle, West Des Moines, for respondent.
   CARTER, Justice.

A division of the Grievance Commission of this court found that respondent, N. Michael D’Angelo, violated several disciplinary rules contained in the Iowa Code of Professional Responsibility for Lawyers. The violations that the commission found were (1) neglect of probate matters; (2) collecting fees without court authorization, prior to the time of entitlement under our rules, and in excess of the maximum fee allowable by law; (3) failure to diligently pursue a dissolution-of-marriage case, which was dismissed for want of prosecution; and (4) failing to respond to inquiries from the Iowa Supreme Court Board of Professional Ethics and Conduct (ethics board) concerning these matters. The commission recommended that we suspend respondent’s license for one year and that the suspension run concurrently with a three-year suspension imposed on November 16, 2000. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. D’Angelo, 619 N.W.2d 333 (Iowa 2000). We adopt the Grievance Commission’s recommendation with the addition of a prohibition against respondent handling probate matters in the event that he is subsequently reinstated to the practice unless he associates himself with a competent probate lawyer who is entrusted with the responsibility for completing the necessary work.

We separately consider the current charges against respondent.

I.The Sargent Estate.

The Olen Sargent Estate was opened in October 1995, and the second notice to creditors was published on October 30, 1995. Respondent was attorney for the executors. He failed to file an interlocutory report after eighteen months as required by Iowa Court Rule 7.7. He obtained several orders extending time for closing the estate, seeking such orders just prior to the time when the clerk would report a delinquency to the ethics board pursuant to Iowa Court Rule 7.6. These extensions were obtained on an ex parte basis and without notice to the beneficiaries. Respondent’s last extension of time for closing the Sargent Estate had expired prior to the time of his November 16, 2000 suspension, and the estate still had not been closed.

In addition to the substantial delay in processing the Sargent Estate, respondent took attorney fees from the estate without court approval and prior to the time that such fees were authorized under Iowa Court Rule 7.2. Moreover, the total amount of fees so taken exceeded the maximum statutory fee for ordinary services.

Although respondent claims that he spent an inordinate amount of time resolving disputes among the beneficiaries and coexecutors and thus was entitled to extraordinary fees, such fees may only be obtained upon a written application showing entitlement thereto and notice and hearing to interested parties. Iowa Ct. R. 7.2(2). No application showing entitlement was filed, and no notice or hearing was given with respect to these fees. None of the fees taken were authorized by court order. Given the poor quality of respondent’s overall performance in handling this probate matter, we seriously doubt that extraordinary fees would have been warranted.

Respondent was slow in accounting to the beneficiaries of the Sargent Estate for proceeds received from a sale of real estate. The ethics board’s investigation disclosed, however, that all sums had been distributed, although for some reason, not explained by respondent, there were slight discrepancies between the amount that each beneficiary received and the amount that would have represented an equal share of the distribution.

II. Neglect of Cass Countg Probate Matters.

Evidence was presented to the Grievance Commission establishing that respondent had neglected his responsibilities as attorney for the fiduciary in two conserva-torships and one estate in Cass County and had received numerous delinquency notices with respect thereto.

III. Neglect of Dissolution Case.

In 1998 a woman entrusted her dissolution case to respondent, and he filed a petition in June of that year. One and one-half years later the case was dismissed for want of prosecution.

The evidence indicated that the dissolution petitioner’s spouse was incarcerated and that respondent, after coming close to an agreement with that spouse on the disposition of the case, simply quit working on a disposition of the few matters that had not been agreed to and made no effort to resolve those areas of disagreement by communication with petitioner’s spouse or by application to the court.

IY. Failure to Comply With Prior Order of Suspension.

The evidence presented showed that respondent, although notifying most clients of his suspension on November 16, 2000, did not file the necessary proof of notification with the ethics board. It also appears that he failed to return certain files and failed to refund unearned fees following his suspension.

V. Failure to Cooperate With the Ethics Board.

The ethics board served separate notices of complaint upon respondent with respect to the Sargent Estate matter, the Cass County probate matters, and the marriage-dissolution matter. Respondent ignored all of the board’s notices.

We agree with the Grievance Commission that respondent’s conduct has violated Disciplinary Rule 6 — 101(A)(3) and Disciplinary Rule 7 — 101(A) of the Iowa Rules of Professional Responsibility for Lawyers [hereafter referred to as DRs] (neglect, failure to seek client’s lawful objectives, and failure to carry out contract of employment). See Comm, on Profl Ethics & Conduct v. Paulos, 410 N.W.2d 260, 261 (Iowa 1987). His conduct also violated DR 1 — 102(A)(5) and (6) (conduct prejudicial to administration of justice). Comm, on Profl Ethics & Conduct v. Haney, 435 N.W.2d 742, 743 (Iowa 1989). By taking unauthorized, premature, and excessive fees, respondent violated DR 2 — 106(A) (lawyer shall not collect illegal or clearly excessive fee). Iowa Supreme Ct. of Profl Ethics & Conduct v. Evans, 537 N.W.2d 783, 785 (Iowa 1995). His tardy and incomplete accounting on the distribution of the proceeds of the real estate sale in the Sargent Estate was a violation of DR 9— 102(B)(3) and (4) (lawyer required to make accountings to client and to promptly deliver any funds to which client is entitled). His inaction in the dissolution matter constituted a violation of DR 6 — 101(A)(3) and DR 7 — 101(A) (lawyer shall not intentionally fail to seek client’s objectives or carry out contract of employment). Comm, on Profl Ethics & Conduct v. Havercamp, 442 N.W.2d 67, 70 (Iowa 1989).

Other than respondent’s failure to adequately comply with our prior suspension order and failure to cooperate with the ethics board in the investigation of these current disciplinary matters, which is a violation of DR 1 — -103, the violations in question were part of the same pattern of conduct that led to respondent’s November 16, 2000 suspension and occurred at approximately the same time as the violations that led to that suspension. Had these additional matters been brought to our attention at that time, we seriously doubt that respondent’s prior suspension, which was for a minimum of three years, would have been enlarged. Although we recognize that the failure to comply with our suspension order on turning over files, failing to abide the implicit requirement that unearned fees be returned, and his failure to cooperate with the ethics board are new matters occurring since the prior suspension, we do not deem it necessary to increase the quite lengthy suspension that is currently in force. We accept the Grievance Commission’s recommendation that the sanction for the current violations be a suspension for a minimum of one year, which shall run concurrently with the prior suspension.

We suspend respondent N. Michael D’Angelo’s license to practice law in this state indefinitely and with no possibility of reinstatement for one year. This suspension shall run concurrently with the suspension imposed by this court on November 16, 2000. This suspension shall apply to all facets of the practice of law. See Iowa Ct. R. 35.12(3). In the event that respondent is reinstated to the practice of law, he shall not engage in the representation of clients on probate matters unless he associates himself with competent probate counsel who shall be entrusted with the responsibility for the proper completion of the work. Costs of this disciplinary proceeding are assessed to respondent.

LICENSE SUSPENDED.

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


author: LARSON, Justice.

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Ronald F. EICH, Respondent.
    No. 02-0730.
    Supreme Court of Iowa.
    Oct. 9, 2002.
    Norman G. Bastemeyer and David J. Grace, Des Moines, for complainant.

      Mark McCormick of Belin Lamson McCormick Zumbach Flynn, A P.C., Des Moines, for respondent.
   LARSON, Justice.

This is a review of a report by our disciplinary commission concerning the license of the respondent, Ronald F. Eich. See Iowa Ct. R. 35.10(1). We agree with the findings of fact by the commission and its recommendation for discipline. We order the suspension of the respondent’s license for sixty days.

I. Principles of Review.

Iowa Court Rule 35.10(1) directs that within fourteen days after a disciplinary commission report is filed with the clerk of this court, the clerk of the commission shall furnish the entire record. If no appeal is taken or application for permission to appeal is filed within ten days, we will review the matter de novo on the record made before the commission without oral argument or further notice to the parties. On review we may adopt, increase, or reduce the sanction recommended by the commission.

The Board of Professional Ethics and Conduct, as the complainant, must prove the allegations of its complaint by a convincing preponderance of the evidence. Iowa Supreme Ct Bd. of Prof'l Ethics & Conduct v. Postma, 555 N.W.2d 680, 681 (Iowa 1996).

II. The Facts.

Ronald Eich has practiced law in Carroll since 1970. At the time of the commission hearing, he was fifty-nine. He described his practice as largely an office practice, “an extensive income tax practice, probate, ... some bankruptcy work, real estate and [involvement] in the rest of the stuff, divorces, and a little bit of everything.”

This proceeding involves the respondent’s representation of members of a family named Pearson. The respondent drafted wills for Frank Hilding Pearson (Hilding)' and Hilding’s sister, Martha Pearson, in 1990. Both Pearsons were unmarried without children. In 1991 another brother, “Bert” Pearson, and Bert’s son, Andy, talked to Eich about conserva-torships and guardianships for both Hild-ing and Martha, who were both very elderly. A voluntary conservatorship petition was signed by Hilding. An involuntary conservatorship was proposed for Martha. Bert and Andy were to be conservators for both Hilding and Martha. Apparently on the same day the applications for appointment were drafted, Bert and Andy signed court officer deeds conveying Hilding’s and Martha’s land to the conservators. Andy candidly testified at the commission hearing that the transfer was motivated at least in part to deplete Hilding’s and Martha’s assets for purposes of making them eligible for Title XIX benefits. At the time the deeds were signed purporting to convey title from the conservatorships, the conservatorships had not even been officially opened. The respondent testified it was not his idea for the conservators to transfer title to themselves.

Shortly after the applications for appointment of conservators and the deeds were drafted, Bert, who was one of the proposed conservators, died. The conser-vatorship for Hilding proceeded with Andy as the sole conservator. Andy filed an inventory in the conservatorship, showing Hilding’s one-half interest in eighty acres of land, which Andy valued at $40,000. Andy pressed to get title to Hilding’s one-half interest, and the respondent drafted a real estate contract to accomplish the transfer. The contract provided a sale price of $40,000 with no down payment and no interest. Although the respondent drafted the contract, he doubted its legal effectiveness because it was unlikely a court would approve it in view of its unsatisfactory terms as to the ward. (Disapproval by the court was almost assured; a later appraisal set the value of the eighty acres at $152,000 — or $76,000 for Hilding’s undivided half interest.)

Under the proposed transfer, Andy was to acquire title by applying rental payments from the land (to which the ward was already entitled) to buy the land from the ward. Eich, however, did not advise Andy of the problems in the proposed transfer. In fact, he drafted a court officer deed to complete the transfer and, again, failed to submit it to the court in the conservatorship for approval. Nevertheless, the deed was recorded on June 26, 1992.

Hilding Pearson died on April 12, 1994. Eich drafted a final report in the conserva-torship, stating that Andy, as “executor” of Hilding’s estate, had received all of the assets of the conservatorship. Eich obtained an order approving the final report, which found that the executor of Hilding’s estate received the conservatorship assets, although in fact no estate for Hilding had even been opened. This was in 1995.

In 1998 the problems in the conservator-ship “transfer” surfaced when Andy attempted to use the land he thought he owned for security for a loan. The abstract showed no court approval for the sale. Eich said he would cure the problem by opening an estate for Hilding, but the necessary papers that Andy had signed were never filed.

Meanwhile, Martha Pearson, Hilding’s sister and the owner of the other half of the eighty-acre farm, needed help because of her declining health. Eich drafted a court officer deed from the Martha Pearson “conservatorship” to Andy conveying Martha’s half interest to Andy. However, no conservatorship had even been opened.

Andy, displeased with Eich’s representation, hired an Omaha lawyer, Richard D. Myers, who wrote to Eich on March 19, 1999, requesting the immediate completion of the probate matters. In September 1999 Myers referred the matter to a Council Bluffs lawyer, Jack Ruesch, to contact Eich about the conservatorship and estate matters. Ruesch pointed out to Eich that the statute of limitations on admitting Hilding’s will to probate had expired, and it could not be probated. The court officer deed from Martha’s nonexistent “conserva-torship” was also a problem raised by attorney Ruesch.

Andy’s father, Bert, had died on June 22, 1991, and the Iowa Department of Revenue and Finance was pursuing Andy, as executor, for approximately $29,000 in inheritance tax, interest, and penalties. Eich had failed to complete and file the inheritance tax return or pay the tax. (Andy, in his commission testimony, assumed some of the blame for the inheritance tax problem because he had insisted, erroneously, that his father’s estate would not be subject to Iowa inheritance tax because the beneficiary was a resident of Nebraska.)

Attorney Ruesch took over the probate matters, including payment of the inheritance tax. Penalty and interest had accrued, and at Ruesch’s request, Eich sent a check to cover them. As of the time of the commission hearing, Ruesch. testified he thought it might be necessary to file a quiet title action to clear title to the farm.

III. The Complaint.

The Board alleges the breach of several canons under our Code of Professional Responsibility. It alleges a violation of Canon 1 (lawyers to assist in maintaining integrity and competency of the legal profession); Canon 6 (lawyers should represent clients competently); and Canon 7 (lawyers should represent clients zealously within the bounds of the law).

We agree with the commission that the respondent violated DR 6-101(A)(3) (neglect of a client’s matter): (1) failing to establish a conservatorship for Martha Pearson and failing to file a timely inheritance tax return in her estate, (2) failing to initiate estate proceedings for Hilding Pearson, (3) failing to file a timely inheritance tax return in Bert’s estate, and (4) failing to respond to the revenue department’s repeated inquiries about it. We agree with the commission’s conclusion that the Board failed to prove a violation of DR 1-102(A)(4) regarding fraud and misrepresentations. However, Eich’s drafting of the receipt and waiver in Hilding’s con-servatorship, which purported to receipt for all assets in the conservatorship by the estate, when no estate had even been opened for Hilding, amounted to a violation of DR 7-102(A)(3) (failure to disclose information required to be disclosed).

IV. Disposition.

This respondent has been publicly reprimanded three times for conduct that parallels the present case. In 1986 he was reprimanded for “failing to make timely filings in a probate matter, ... failure to remove a delinquency after receiving notice thereof, and ... failure to respond to notice of complaint.” In 1988 he was reprimanded “for neglecting to make a timely application to modify a dissolution decree, in dismissing that application without consulting with [his] client, and ... failure to advise the client of that action.” In 1991 he was reprimanded for receiving a probate fee by withholding it from a disbursement to the executor, prior to court approval, and in an amount beyond that ultimately allowed by the court. We consider prior disciplinary matters as aggravating circumstances in determining the appropriate sanction. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Gonnerman, 601 N.W.2d 34, 35 (Iowa 1999); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Mattson, 558 N.W.2d 193, 195 (Iowa 1997).

On the other hand, lawyers from Eich’s community attested to his honesty, hard work, and general competence. Also a mitigating, but not excusing, circumstance here is that Eich was dealing with a headstrong client, Andy Pearson, who insisted that Eich draft papers in the Hilding Pearson estate under circumstances that Eich knew would not be approved by the court. This was at least part of the reason, we believe, the papers were never submitted to the court for approval. Andy also insisted his father’s estate was not subject to Iowa inheritance tax, and Eich chose not to confront him on this issue, although Eich believed Andy was wrong. Despite pressure from his client, Eich had a professional duty to properly pursue these matters, and if Andy could not be persuaded to allow Eich to properly complete the matters entrusted to him, Eich should have asked to be relieved of his responsibility. He should not have simply pursued the strategy of his client.

This case is one largely involving neglect of legal matters. As we have said, “[i]n respect to matters of neglect, each case must obviously be treated individually, and precedents are of little value.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bitter, 279 N.W.2d 521, 524 (Iowa 1979). However, we have noted that, while there is no prescribed sanction in disciplinary cases, “when neglect of a client’s legal matters is the principal violation, ‘discipline generally ranges from a public reprimand to a six-month suspension.’ ” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Grotewold, 642 N.W.2d 288, 294 (Iowa 2002) (quoting Iowa Supreme Ct. Bd. of Prof''l Ethics & Conduct v. Hohenadel, 634 N.W.2d 652, 655 (Iowa 2001)).

In Gonnerman the respondent had failed to properly administer an estate, failed to respond to twelve notices of delinquency by the clerk of the district court, and failed to respond to seven letters of inquiry sent by the Board. He also had been reprimanded once previously. We suspended his license for a minimum of one month. Gonnerman, 601 N.W.2d at 35.

In Iowa Supreme Court Board of Professional Ethics & Conduct v. Fleming, 602 N.W.2d 340 (Iowa 1999), the respondent had mishandled two estates, including taking fees without court approval, which resulted in financial loss to the beneficiaries. He also failed to cooperate in the Board’s investigation. We suspended his license for a minimum of six months, based in part on the fact he had been publicly reprimanded twice before. Fleming, 602 N.W.2d at 342.

In Iowa Supreme Court Board of Professional Ethics & Conduct v. Freeman, 603 N.W.2d 600 (Iowa 1999), the respondent had failed to properly handle a guardianship and conservatorship for a ward, failed to properly handle an estate, and failed to act in time to prevent the running of a statute of limitations in a discrimination case. He also failed to cooperate with the Board. He had no prior disciplinary sanctions. We suspended his license for a minimum of three months. Freeman, 603 N.W.2d at 605.

In Iowa Supreme Court Board of Professional Ethics & Conduct v. Jay, 606 N.W.2d 1 (Iowa 2000), the respondent neglected an estate, collected fees prematurely, and misrepresented the status of the proceedings to the court. Aggravating circumstances included the respondent’s persistent refusal to honor court orders with respect to the estate, causing financial prejudice to the distributees, a prior sixty-day suspension, and a prior reprimand. We suspended his license for a minimum of one year. Jay, 606 N.W.2d at 4.

In Grotewold the respondent had seriously neglected an estate and misrepresented its status to the court. Grotewold, 642 N.W.2d at 293. We suspended his license for sixty days. Id. at 296.

In view of the usual range of discipline in neglect cases (reprimand to six-month suspension, Grotewold, 642 N.W.2d at 294), the nature of the respondent’s violations, his prior discipline, and the recommendation of the commission, we suspend the respondent’s license for sixty days. This suspension applies to all aspects of the practice of law. Iowa Ct. R. 35.12(3). Reinstatement is governed by the automatic reinstatement provisions of Iowa Court Rule 35.13. Costs are taxed to the respondent pursuant to Iowa Court Rule 35.25.

LICENSE SUSPENDED.

      . The respondent suggests that in lieu of suspension we publicly reprimand him and order him to perform community service as we did in Iowa Supreme Court Board of Professional Ethics & Conduct v. Huisinga, 642 N.W.2d 283 (Iowa 2002). However, in Huisinga the respondent had "previously enjoyed an unblemished record of service to his profession and his community." Id. at 288. In contrast this respondent has been reprimanded three times. We believe another reprimand, even coupled with a requirement for public service, is not an adequate sanction.