author:
STREIT, Justice.
      WIGGINS, J.

text:
    In re the Marriage of Jody L. KEENER and Connie H. Keener. Upon the Petition of Jody L. Keener, Appellant, and Concerning Connie H. Keener, Appellee.
    No. 05-1257.
    Supreme Court of Iowa.
    Feb. 9, 2007.

      Robert F. Wilson, Cedar Rapids, for appellant.
    Daniel Bray of Bray & Klockau, P.L.C., Iowa City, for appellee.
   STREIT, Justice.

When two people cannot get along, sometimes it is better for both of them to just pick up their toys and leave. Unfortunately in this ease, that was not so easy. During their marriage, Jody and Connie Keener founded a very successful toy company. The district court awarded all of the stock in the company to Connie but required her to pay Jody nearly $7 million over eleven years in order to equalize the property division. Jody complained the court should have awarded interest and provided security for this judgment. The court of appeals agreed, awarding Jody interest at the statutory rate and giving him an equitable lien on the business and all of its assets. On further review, we find Jody did not prove the value of certain intangible assets of the corporation. We find the value of the corporate stock to be $10,169,171 and order Connie to pay Jody $4,280,650 over six years. We further order interest be paid on the judgement rendered herein and Connie’s obligation to her ex-husband be secured by a UCC lien on the corporate stock.

I. Facts and Prior Proceedings

Connie and Jody were married in 1992 in Cedar Rapids, Iowa. They do not have any children together. Jody filed for dissolution in 2002.

Connie is fifty-eight years old. She was born in Hong Kong and lived there until she came to the United States in 1975. In Hong Kong she worked as a cashier, in hotel management, in the travel agency business, in an employment agency, and finally at a bank. While living in California, she worked as a secretary and a commercial bank loan assistant. She has two children. This is her second marriage.

Jody is fifty-two years old and a native of Iowa. He has five children and this is his third marriage. Jody has an unusual background. He quit school at the age of twelve to work for various carnivals. While in the carnival business, Jody began buying and selling closeout toys and furniture. He left the carnival business around the age of twenty and began manufacturing and distributing furniture. In 1988, Jody was charged with and pled guilty to felony conspiracy to defraud the United States and two violations of misdemeanor willful failure to file federal income taxes for 1981 and 1982. While in prison, Jody completed his GED. Upon his release in May 1991, Jody worked for the Dove Imports company which was formed by a group of pastors and friends in Marion, Iowa. The business bought and sold furniture and toys.

While on a business trip to California for Dove Imports, Jody met Connie. After a short courtship, Connie moved to Cedar Rapids, the two were married, and they started their own business. In July 1992, the day before they were married, Jody and Connie incorporated Alpha International. Connie was the sole shareholder. However, the business was their joint venture from the beginning. Jody was responsible for purchasing merchandise, sales, marketing, contract negotiations, and arranging toy manufacturing. Connie was involved in the financial aspects of the business — invoicing, writing checks, keeping the books and tracking finances. The company started in the couple’s garage but grew rapidly and became very successful. At its peak, Alpha employed approximately one hundred people. Originally, Alpha was primarily involved in the wholesale distribution of closeout toys and collectibles. After acquiring two other companies, Alpha began manufacturing and designing toys as well. During their marriage, the Keeners purchased a great deal of real estate, all of which was placed in Connie’s name alone. Alpha does not own any real estate although it rents office and warehouse buildings from Connie.

In late 2001, the Keeners began experiencing marital difficulties. In May 2002, Alpha’s board fired Jody. Thereafter, Jody reactivated and incorporated a company called J. Lloyd International. J. Lloyd is in the business of reselling closeout inventories and also consults on toy manufacturing.

Trial was held between March 23, 2004 and April 8, 2004. The district court issued its dissolution decree on March 14, 2005. The value of Alpha was the biggest point of contention. The district court valued Alpha at $15,169,171 and awarded the business to Connie. The court awarded Connie all of the real estate used by Alpha. The district court valued J. Lloyd at $1 million and awarded it to Jody. Connie also received the marital home. Jody was awarded most of the remaining real estate.

The property division was heavily skewed in Connie’s favor. Connie received $18,086,095 in property whereas Jody’s property award was worth $4,524,786. Thus, “[i]n order to equalize the property division,” the district court ordered Connie to pay Jody $6,780,650 in installments. The court ordered Connie to pay Jody $600,000 per year by May 1 of each year beginning in 2006, until the amount is paid in full.

Both parties filed motions to enlarge. In response, the court clarified its characterization of the payments Connie owes Jody by amending the decree with this additional language:

Because the total judgments ordered herein to be paid by Connie Keener to Jody Keener involve periodic payments, judgments for the periodic payments, as ordered by the court, will become judgments of record as the periodic payments (or installments) are due. [Jody] shall be paid judgment interest on due and unpaid installments.

The court otherwise denied Jody’s request for interest on the $6,780,650. The district court refused Jody’s request for a lien on Alpha and the company’s assets. The court also declined Connie’s request to lower its valuation of Alpha.

Both parties appealed. Jody argued for interest and security on the payments Connie owes him. Connie argued the district court overvalued Alpha. The court of appeals ruled in Jody’s favor. It concluded the cash payments to Jody from Connie should bear annual interest from the date of the decree at a rate set by Iowa Code sections 535.3(1) and 668.13(3) (2005), “because Jody will otherwise be inequitably deprived of the use of his payments equalizing the property division.” The court of appeals also concluded “it is inequitable to deny Jody’s security in the property division” and granted an equitable lien against Alpha and its corporate assets. The court denied Connie’s request to decrease the valuation of Alpha and increase the valuation of J. Lloyd. On further review, Connie argues (1) the trial court’s valuation of Alpha is in part “speculative in nature,” (2) an equitable lien is inappropriate in this case, (3) interest on the cash award is also inappropriate, and (4) the court of appeals erred by not considering the tax consequences caused by the equitable lien and interest award.

II. Scope of Review

We review dissolution cases de novo. In re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006). “ ‘Although we decide the issues raised on appeal anew, we give weight to the trial court’s factual findings, especially with respect to the credibility of the witnesses.’ ” Id. (quoting In re Marriage of Witten, 672 N.W.2d 768, 773 (Iowa 2003)).

III. Merits

Iowa is an equitable distribution state. Id. (citing In re Marriage of Schriner, 695 N.W.2d 493, 496 (Iowa 2005)). This means our courts equitably divide all of the property owned by the parties at the time of divorce except inherited property and gifts received by one spouse. Id.; see Iowa Code § 598.21. Courts determine what is fair and equitable based on the particular circumstances of the parties. Schriner, 695 N.W.2d at 496. The Iowa Code provides a list of factors that must be considered. See Iowa Code § 598.21(1). “Although an equal division is not required, it is generally recognized that equality is often most equitable.” In re Marriage of Rhinehart, 704 N.W.2d 677, 683 (Iowa 2005) (citing In re Marriage of Conley, 284 N.W.2d 220, 223 (Iowa 1979)).

Before dividing the marital property, a court must identify all of the assets held in the name of either or both parties as well as the debts owed by either or both of them. In re Marriage of Hagerla, 698 N.W.2d 329, 333 (Iowa Ct.App.2005). The assets should then be given their value as of the date of trial. Id. “The purpose of determining the value is to assist the court in making equitable property awards and allowances.” In re Marriage of Moffatt, 279 N.W.2d 15, 19 (Iowa 1979).

As we have already alluded, the parties owned substantial assets (with some corresponding debts) which were divided by the district court. For purposes of this appeal, we need not detail each asset. The important thing is each party was awarded property worth approximately $11,305,400 taking into account the cash award Connie is to pay Jody. We agree with the district court it was equitable to divide the property equally because both parties were instrumental in making Alpha a success. We now turn to the issues Connie raises on further review.

A. Valuation of Alpha

Each party had an expert testify regarding the value of Connie’s stock in Alpha — Shannon Shaw, C.P.A. for Connie and accredited senior appraiser Wayne Brown for Jody. Both concluded the appropriate method for valuing the stock was the asset approach. Both assessed Alpha’s worth as a going concern, meaning the business would stay in operation as opposed to being ordered to dissolve and liquidate. The district court found Brown’s testimony much more credible than Shaw’s.

The district court adopted Brown’s opinion of the value of Alpha’s tangible assets, which was $10,169,171. Connie does not dispute this valuation. However, she argues the district court’s valuation of Alpha’s intangible assets (i.e. trademarks and other intellectual property rights) is “speculative” and “beyond the evidence of the record.” Alpha owns approximately one hundred trademarks, most of which were acquired when Alpha purchased the assets of Empire of Carolina, Inc. at a bankruptcy court auction. At trial, Connie’s expert, Shaw, testified these trademarks had no value. Jody’s expert, Brown, on the other hand, testified these trademarks had significant value and the district court agreed. Prior to trial, Alpha sold one trademark, “Buddy L,” for $7.7 million and another trademark, “Yo-Yo Balls,” for $475,000.

The district court relied on rough justice to determine the value of Alpha’s intangible assets. Brown was unable to offer a firm opinion on the value of Alpha’s intangible assets because he had not received financial documentation to review. Using the “Buddy L” sale as a guide, Brown estimated the remaining trademarks were worth between $20 million and $30 million. Jody offered a similar estimate.

The district court determined the value of Alpha’s trademarks and other intangibles to be $5 million. The district court combined the value it assigned to Alpha’s tangible assets with the value it assigned to Alpha’s intangible assets in order to determine Connie’s stock was worth $15,169,171.

The district court was placed in the unenviable position of determining Alpha’s value. We have previously said, the “market value for the stock in a closely held corporation can rarely be ascertained.” In re Marriage of Moffatt, 279 N.W.2d at 19. Because of the difficulty surrounding valuation, appellate courts give much leeway to the trial court. In re Marriage of Steele, 502 N.W.2d 18, 21 (Iowa Ct.App.1993) (citing In re Marriage of Dennis, 467 N.W.2d 806, 808 (Iowa Ct. App.1991)). A trial court’s valuation will not be disturbed when it is within the range of evidence. See In re Marriage of Wiedemann, 402 N.W.2d 744, 748 (Iowa 1987). Moreover, appellate courts defer to a trial court’s valuations when accompanied by supporting credibility findings or corroborating evidence. In re Marriage of Vieth, 591 N.W.2d 639, 640 (Iowa Ct.App.1999).

Based on the testimony at trial, it appears Alpha’s intangible assets have at least some value. Connie testified these assets are crucial to the future success of the company. She conceded the intangible assets Alpha acquired from Empire will probably add value to Alpha in the future.

Although Alpha owns many trademarks, the testimony at trial focused on the value of “Grand Champions” and “Big Wheels.” Since 2003, Alpha has been marketing toys under both names. Additionally, Alpha is developing new product lines under those names. Moreover, the company is pursuing litigation in an effort to protect both brands. One lawsuit concerns trademark and trade dress infringement of “Grand Champions.” The other alleges a company stole some of the “Big Wheels” tooling prior to Alpha acquiring Empire’s assets. This evidence supports Jody’s contention the intangible assets have value because Alpha would not expend significant resources if these brands are worthless.

However, the record lacks sufficient evidence concerning a specific dollar amount to attach to these assets. Jody acknowledges “[t]he inadequacy of the record” with respect to the value of Alpha’s intangible assets. Connie’s expert testified the intangible assets had no value. Jody’s expert stated the intangibles had value but could only offer a haphazard guess on valuation based on the fact Alpha sold other trademarks for considerable money.

Eric Deininger, a business consultant for Alpha, testified he would not recommend Alpha sell “Grand Champions” for $5 million. When pressed, he explained:

I believe [Grand Champions] has potential. If we can build back the customer base that it once had, it has potential to be earning very solid revenues.

Based on this testimony, it is fair to say Deininger believes “Grand Champions” may in the future be worth in excess of $5 million if Alpha successfully revitalizes the brand. The deficiency here is he was never asked the essential question — what is “Grand Champions” worth now? He simply opined “Grand Champions” may be valuable to Alpha in the future. He was never asked to give his opinion of the present fair market value and we cannot infer such information. Without more, Deininger’s testimony is not enough to determine the fair market value of “Grand Champions” at the time of trial.

Similarly, Jody’s testimony is insufficient to uphold the district court’s $5 million valuation of Alpha’s intangible assets. Although not an owner of Alpha, Jody is certainly qualified as an expert in the toy business. For his testimony to be considered sufficient evidence, it must be more than mere conjecture. Jody made a con-clusory statement Alpha’s intangible assets are worth between $25 million and $30 million. He testified he was offered $4.5 million for “Grand Champions” while still working for Alpha. He also claimed another toy company offered Alpha $5 million for “Grand Champions” trademark and $2 million for Alpha’s “Grand Champions” inventory. However, he made no attempt to substantiate these claims or use this information in determining today’s fair market value. Jody says with pride “there is always money in confusion.” While Jody’s fast moving, unorthodox style may suit him well in the business world, the courtroom is no place to make money “in confusion.”

This anecdotal evidence is simply an insufficient basis upon which to determine fair market value. Alpha’s intangible assets — particularly “Grand Champions” and “Big Wheels” — likely have present value and consequently add to the value of Connie’s stock. Unfortunately, there is a lack of proof in this case. There is not adequate evidence in the record to measure the fair market value of Alpha’s intangible assets. The district court erred by speculating as to the value of these assets. Accordingly, we reduce the value of Connie’s Alpha stock to $10,169,171.

After taking into account this reduction, Connie owes Jody $4,280,650 in order to equalize the property division. Because this amount is considerably less than the amount awarded by the district court, Connie should be given less time to pay Jody. We believe six years is fair and equitable to both parties. We therefore order Connie to pay Jody a minimum of $725,000 principal plus interest per year commencing on May 1, 2006 until the $4,280,650 judgment is paid. She shall be given credit for any amounts previously paid.

B. Interest

The court of appeals found “not allowing interest from the date of the decree on such a large distribution spread over ten or more years is not equitable to Jody.” Although we have reduced both the amount of the cash award and the length of repayment, we nevertheless agree interest is appropriate in this case.

Interest may not be necessary in every case, but it certainly is here. See In re Marriage of Conley, 284 N.W.2d 220, 223 (Iowa 1979) (holding district court’s failure to award interest on $90,000 award which was to be paid over nine years unfair because “the property division fell substantially short of the trial court’s goal of an approximately equal division of assets”); In re Marriage of Briggs, 225 N.W.2d 911, 913 (Iowa 1975) (affirming no interest on cash award of $50,000 over an eleven-year period because lack of interest was a factor the district court considered in determining the amount). The district court intended an equal property division. However, the court did not consider the time value of money in determining Jody’s interest-free cash award. Consequently, Jody was given a much smaller award than Connie in contradiction to the district court’s stated goal of equal property division.

We hold the $4,280,650 cash award to Jody shall bear 5.03% in annual interest from March 14, 2005, the date of the original dissolution decree. See Iowa Code §§ 535.3(1), 668.13(3). This interest shall be paid annually in addition to any principal paid.

C. Security

The court of appeals found it inequitable to deny Jody security for the money Connie owes Jody. It granted an equitable lien against Alpha and all of its corporate assets. An equitable lien may be created when the predicate conditions for a judgment lien do not exist. Under Iowa Code section 624.23, judgments are automatic liens against the real estate owned by the judgment debtor. A judgment lien requires a final, valid and subsisting judgment by a duly authorized court for payment of a defined and certain amount. Schuling v. Tilley, 454 N.W.2d 899, 900 (Iowa Ct.App.1990) (citing Slack v. Mullenix, 245 Iowa 1180, 1184, 66 N.W.2d 99, 101 (1954)). Orders under a dissolution decree, if sufficiently defined and certain, are considered judgments and attach to real property as provided by section 624.23. Baratta v. Polk County Health Servs., Inc., 588 N.W.2d 107, 110-11 (Iowa 1999).

The original decree satisfied the requirements for a judgment lien. It stated:

In order to equalize the property division, Connie Keener shall pay Jody Keener a total of $6,780,650.00. This judgment in Jody’s favor shall not carry interest. Connie shall pay Jody $600,000 per year by no later than May 1st beginning in the year 2006, until such time as the judgment is paid in full.

(Emphasis added.) The quoted language provided a final judgment for a sum certain. Thus, Jody would have had a judgment lien against Connie’s real property. The dissolution decree awarded Connie $2.06 million in real estate.

The district court subsequently modified the decree so Jody only has a judgment for each $600,000 payment as it becomes due. The district court added the following language:

Because the total judgment ordered herein to be paid by Connie Keener to Jody Keener involve periodic payments, judgments for the periodic payments, as ordered by the court, will become judgments of record as the periodic payments (or installments) are due.

We think Jody is entitled to a judgment lien for the entire amount Connie owes him. We therefore remand this case to the district court so the language added to the decree via the July 5, 2005 order can be stricken. Jody will then have a judgment lien on Connie’s real estate as provided by Iowa Code section 624.23.

The judgment lien awarded to Jody shall be subordinate to any refinancing on any real estate subject to the judgment lien if the refinancing is for an amount equal to or less than the existing mortgage balance. Connie shall inform Jody in writing of any refinancing that occurs. If necessary, Jody shall execute and deliver to Connie any documents required to subordinate the judgment lien under the provisions of this paragraph.

We now consider the appropriateness of an equitable lien. The court of appeals gave Jody an equitable lien against Alpha and its corporate assets. An equitable lien “is a right not recognized at law, to have a fund or specific property, or its proceeds, applied in whole or in part to the payment of a particular debt or class of debts.” Smith v. Village Enters., Inc., 208 N.W.2d 85, 38 (Iowa 1973) (quoting 51 Am.Jur.2d Liens § 22 (1970)). In other words, an equitable lien may be created when the predicate conditions for a judgment lien do not exist or where the debtor does not own sufficient real estate to satisfy the debt. An equitable lien merely requires a debt, a duty of one person to pay another person, and a res to which that obligation attaches. Fed. Land Bank of Omaha v. Boese, 373 N.W.2d 118, 121 (Iowa 1985) (quoting 53 C.J.S. Liens § 4(a) (1948)). Equitable liens may be placed on both real and personal property. See Nelson v. Pampered Beef-Midwest, Inc., 298 N.W.2d 281, 286 (Iowa 1980) (holding unsecured creditors had equitable lien which followed personal and real property into the hands of newly formed corporation); In re Marriage of Blume, 473 N.W.2d 629, 634 (Iowa Ct.App.1991) (upholding equitable lien on farm). In contrast, a judgment lien only attaches to real property.

On further review, Connie overreacts to the court of appeals creation of an equitable lien. She claims “attach[ing] an equitable lien to the business assets of a company is to place the creditor in full control of the company” and prohibits a company from even “paying a UPS driver or its employees.”

Connie’s concerns are unfounded. Contrary to Connie’s assertions, an equitable lien does not affect arms-length transactions made in the regular course of business. Luedecke v. Des Moines Cabinet Co., 140 Iowa 223, 229, 118 N.W. 456, 458 (1908); accord Nachazel v. Mira Co. Mfg., 466 N.W.2d 248, 253 (Iowa 1991); Nelson, 298 N.W.2d at 285-86; Smith, 208 N.W.2d at 39-40. Connie’s misunderstanding may be due to the nebulous nature of an equitable lien, which is perhaps best suited for unjust enrichment situations. See Nachazel, 466 N.W.2d at 253. Nevertheless, a district court in a dissolution case has the authority to secure future performance by imposing an equitable lien. In re Marriage of Hettinga, 574 N.W.2d 920, 923 (Iowa Ct.App.1997).

While an equitable lien is certainly appropriate in this case, we find a UCC lien to be a better mechanism to secure Jody’s judgment under these circumstances where the main asset is corporate stock. See generally Siragusa v. Brown, 114 Nev. 1384, 971 P.2d 801 (1998). We therefore order Connie to execute all necessary papers to give Jody a lien in accordance with Iowa Code chapter 554. The lien shall only be against Connie’s Alpha stock. The court of appeals erred by creating a lien against Alpha and its assets because Connie only owns stock in the company.

The district court gave Connie the opportunity to pay Jody over time so she could continue to run Alpha as opposed to selling the business. However, if Connie does not make timely payments, then Jody is entitled to some recourse so he does not have to wait indefinitely for money that is rightly his. If Connie decides to sell her stock or discontinue the company’s operation, we see no reason to delay Jody receiving his money. Thus, we find an acceleration clause to be appropriate. On remand, we direct the district court to add the following clause to the decree:

Jody may elect to declare the whole amount due and collectible at once and proceed in any manner authorized by law to enforce the collection of the full balance declared due if any one of the following occurs: (1) Connie is more than one hundred and twenty (120) days late on any payment (including paying less than the amount owed), (2) Connie sells a controlling interest in Alpha (more than 50% of Alpha’s stock), (3) Connie dissolves or liquidates the corporation, or (4) Connie otherwise jeopardizes Jody’s security or secured interest.

This acceleration clause shall become effective May 1, 2008 in order to allow Connie time to catch up on her payments.

D. Tax Consequences

Finally, Connie argues the court of appeals erred by “not considering] the tax consequences to each party caused by [an] equitable lien and interest award.” Indeed, tax consequences are among the litany of things a court shall consider when dividing marital property. See Iowa Code § 598.21(1)(j); see also In re Marriage of Hogeland, 448 N.W.2d 678, 680-81 (Iowa Ct.App.1989) (holding income tax consequences of sale should have been considered by trial court where payment of lump sum of cash to wife would in all probability require liquidation of capital assets). However, Connie did not raise this issue before the district court, the court of appeals, or herein with much specificity, despite Jody’s request for interest and security in all courts. Connie therefore failed to preserve this issue for our review or has waived it. See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002) (holding “we will not consider a substantive or proce: dural issue for the first time on appeal, even though such issue might be the only ground available to uphold a district court ruling”).

IV. Conclusion

This is a somewhat unusual case. During their marriage, the parties were able to create a substantial amount of wealth in a relatively short period of time through their toy company. Because Connie was given all of the stock in the business, the district court ordered her to pay Jody $6,780,650 in order to equalize the property division. We find the district court’s valuation of Alpha’s stock was not supported by the evidence adduced at trial and reduce Jody’s judgment to $4,280,650. Interest and an acceleration clause are ordered. Instead of the equitable lien created by the court of appeals, we find the combination of a judgment lien and UCC lien to be more appropriate. We remand to the district court so the decree may be modified to reflect our changes.

DECISION OF THE COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED.

All justices concur except Wiggins, J., who concurs in part and dissents in part, and HECHT and APPEL, JJ., who take no part.

WIGGINS, J.

(concurring in part and dissenting in part).

I dissent only from the part of the decision allowing Connie’s real estate debt to remain superior to Jody’s judgment lien in the event of refinancing. I do so for two reasons. First, Connie provided no evidence that her ability to refinance is impaired by the judgment lien. Second, because Jody has no right to control the terms and conditions of any refinancing, his security is in jeopardy.

      . Jody and Connie put all of their assets in Connie’s name in order to avoid Jody’s creditors.

      . The district court valued 100% of the stock in Alpha and refused to take into account the fact Connie gave .5% of her ownership interest to her son after Jody filed for dissolution, We agree it was appropriate to ignore Connie’s gift to her son.

      . The district court did not articulate the basis for this figure. Although not necessary, it would have been helpful if the court had explained how it arrived at $5 million.


source: Caselaw Access Project

author: HECHT, Justice.

license: Public Domain

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellee, v. Martha JOHNSON, Appellant.
    No. 06-1062.
    Supreme Court of Iowa.
    Feb. 16, 2007.

      Robert C. Oberbillig, Des Moines, for appellant.
    Charles L. Harrington and Wendell J. Harms, Des Moines, for appellee.
   HECHT, Justice.

The Grievance Commission has recommended attorney Martha Johnson’s license to practice law in Iowa be suspended for six months for violations of DR 1-102(A)(1) (a lawyer shall not violate a disciplinary rule), DR 9-101(B) (a lawyer shall not accept private employment in a matter in which she had “substantial responsibility” while serving as a public employee), and DR 1-102(A)(5) (a lawyer shall not engage in conduct that is prejudicial to the administration of justice). Although we agree with the Commission’s finding that Johnson violated these provisions of the Iowa Code of Professional Responsibility for Lawyers, we conclude the appropriate sanction in this case is a public reprimand.

I. Factual and Procedural Background.

Johnson was first licensed to practice law in 1994. She engaged in private practice in Des Moines until January of 1999, when she was hired as an assistant county attorney in the juvenile division of the Polk County Attorney’s office. In August of 2001, she was assigned to work as the attorney in the intake unit within that office. In that capacity, she reviewed and signed petitions in emergency removal and child-in-need-of-assistance cases, appeared as counsel for the State in contested removal hearings, and advised the Department of Human Services in such cases. In the summer of 2002, she applied and was interviewed for the position of executive director of the Youth Law Center (YLC), a non-profit organization that employs attorneys who are available for appointment as guardians ad litem in Polk County juvenile cases.

Before offering the job to Johnson, the YLC’s board of directors, including three seasoned attorneys, assessed the potential for a conflict of interest arising from the interface between Johnson’s past work as an assistant county attorney and the duties of the YLC’s executive director. The directors contemplated, but did not make, a request of the Iowa State Bar Association’s Committee on Professional Ethics and Standards for an ethics opinion on the question of whether Johnson’s past employment would disqualify her from representing the YLC’s clients. The board concluded Johnson would be able to avoid conflicts of interest for herself and the YLC if she and other YLC lawyers prospectively avoided involvement in cases in which she had been substantially involved previously as an assistant county attorney and offered the position to her.

Johnson made inquiries in an effort to determine whether acceptance of employment with the YLC would create substantial conflict of interest problems. She first consulted Ray Blase, her supervisor in the juvenile division of the county attorney’s office. Blase suggested Johnson should request a waiver of any conflicts of interest from the Department of Human Services, the agency Johnson frequently advised during her service as assistant county attorney. Johnson also requested a meeting with the four judges who presided in Polk County juvenile court cases to discuss how potential conflicts of interest might be dealt with if she should be hired as the YLC’s director. Although such a joint meeting with judges was never held, Johnson did discuss with at least two other juvenile court judges her intention to apply for the position. Those judges were very supportive of the idea and encouraged Johnson to pursue it. Johnson also spoke to an attorney employed by the Board of Professional Ethics and Conduct, who noted conflict of interest issues are evaluated on a case-by-case basis and observed generally that a conflict of interest could arise if Johnson were to perform legal services as an employee of the YLC in cases in which she had substantial responsibility as an assistant county attorney.

Johnson accepted the YLC’s offer of employment. Before she began work for the YLC in January of 2003, Johnson reviewed certain ethics opinions issued by the Bar Association’s Committee on Professional Ethics and Standards and read opinions of this court addressing conflicts of interest. She also took other measures intended to shield her from cases that might present a conflict of interest. Johnson prepared and delivered to the YLC a list of cases in which she believed she had assumed substantial responsibility as an assistant county attorney. She also pre- , pared a form for use by other YLC attorneys to prompt their vigilance for and identification of any cases handled by Johnson in her former employment. Consistent with Mr. Blase’s suggestion, Johnson requested and received a letter in which DHS purportedly waived any conflict of interest arising as a consequence of her former employment and her new position with the YLC.

Johnson quickly immersed herself in the management of the YLC and its substantial caseload. Unfortunately, her pre-em-ployment attentiveness to the potential for conflicts of interest waned. Johnson and the YLC failed to implement an effective Chinese Wall to shield her from juvenile cases with which she had been substantially involved as an assistant county attorney. She appeared at hearings in March and May of 2003 as guardian ad litem in two separate juvenile cases in which she previously had substantial involvement as an assistant county attorney.

Although the State did not object to Johnson’s involvement as guardian ad li-tem in those two cases, counsel for parents eventually did claim Johnson and her lawyer-colleagues at the YLC should be disqualified from involvement in cases in which Johnson had been substantially involved as an assistant county attorney. After hearings on the issue were held in Polk County District Court, Johnson and the YLC’s other lawyers were disqualified in numerous cases. The district court found disqualification was required in those cases because case-by-case litigation of the conflict of interest issue would “threaten[] the timely disposition and finality of hundreds of [juvenile] cases in Polk County.” Johnson subsequently resigned her employment with the YLC.

The district court reported Johnson’s disqualification based on conflict of interest to the Board of Professional Ethics and Conduct. An investigation was undertaken, and the Board notified Johnson on March 18, 2004 that she would be

publicly reprimanded for undertaking employment with the Youth Law Center, a private non-profit organization representing juveniles in Child in Need of Assistance matters, notwithstanding [her] “substantial responsibility” for such matters on behalf of the State while a member of the [Polk] County Attorney’s Office, contrary to DR 9-101(B) of the Iowa Code of Professional Responsibility for Lawyers.

On April 15, 2004, Johnson took written exception to the public reprimand and asserted she had accepted the position with the YLC in good faith after undertaking the measures recounted above. After reviewing Johnson’s exception to the public reprimand, the Board notified her by letter dated June 10, 2004 of its intent to file a complaint with the Grievance Commission. The Commission held a hearing and found Johnson violated DR 9 — 101(B) (accepting private employment in a matter in which she had substantial responsibility as an attorney for a governmental entity), DR 1-102(A)(5) (engaging in conduct prejudicial to the administration of justice), and DR 1-102(A)(1) (violating a disciplinary rule), and recommended suspension of Johnson’s license to practice law for a period of six months.

II. Scope and Standards of Review.

Our review of attorney disciplinary proceedings is de novo. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Walker, 712 N.W.2d 683, 684 (Iowa 2006) (citation omitted). We give respectful consideration to the Commission’s factual findings and discipline recommendations, but we are not bound by them. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Winkel, 599 N.W.2d 456, 460 (Iowa 1999) (citation omitted). The Board must prove attorney misconduct by a convincing preponderance of the evidence. Walker, 712 N.W.2d at 684 (citation omitted). This burden is less than proof beyond a reasonable doubt, but more than the preponderance standard generally applied in civil cases. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004) (citation omitted). If misconduct is proved, we “may impose a lesser or greater sanction than the discipline recommended by the grievance commission.” Id. (citations omitted).

III. Discussion.

The professional conduct at issue in this case occurred in 2003. We must therefore determine whether Johnson violated provisions of the Iowa Code of Professional Responsibility for Lawyers which were then extant.

In Sorci, we concluded a lawyer assumes substantial responsibility as an attorney when in the course of representing a client, she gives legal advice, signs a pleading, or appears at a hearing. Sorci v. Iowa Dist. Ct., 671 N.W.2d 482, 486 (Iowa 2003). We find, by a convincing preponderance of the evidence, that Johnson signed CINA petitions as an assistant county attorney in two juvenile cases, and she later appeared as guardian ad litem for the children whose interests were at stake in those eases. We conclude Johnson’s conduct did violate DR 9-101(B) and DR 1-102(A)(1). Because her conduct provoked significant disruption of the administration of numerous juvenile cases in Polk County, see Sorci, 671 N.W.2d at 487-89, we also find Johnson engaged in conduct prejudicial to the administration of justice in violation of DR 1-102(A)(5).

Johnson does not seriously take issue with the proposition that she had substantial responsibility as an assistant county attorney in CINA cases in which she signed pleadings. She urges us to conclude nonetheless that she did not violate DR 9-101(B) because (1) her acceptance of employment with the YLC was not unethical; (2) as an assistant county attorney and as a guardian ad litem, her consistent objective was to promote the best interests of the children who were the subjects of juvenile cases, (3) consistent with court rules and customary practice, all information gained in juvenile cases as an attorney for the State was routinely shared with all parties and therefore not confidential, (4) DHS waived in writing any conflict of interest, and (5) she acted in good faith by exploring the potential for conflicts of interest before accepting employment with the Center and by taking reasonable measures during that employment to avoid conflicts of interest. We conclude, however, that these facts do not preclude our determination that a violation of our ethical rules occurred.

1. Accepting employment with YLC. We agree with Johnson’s assertion that her acceptance of her employment with YLC did not constitute a violation of our Rules of Professional Responsibility. But her employment as the executive director of the YLC is not the ground of the alleged ethical violation in this case. It is Johnson’s failure to avoid involvement as a guardian ad litem in cases in which she had substantial responsibility as an assistant county attorney which forms the basis for the sanction urged by the Board and recommended by the Commission in this case.

2. Best interests of clients. It is undisputed that the best interests of children must be a primary concern to both attorneys representing the State and those who serve as guardians ad litem. In this broad sense, the objectives of counsel for the State and guardians ad litem are consistent in juvenile court proceedings. But we are not persuaded that the apparent consistency of the parties’ objectives precludes a sanction for violation of DR 9-101(B) and DR 1 — 102(A)(1) here, for in a narrower sense the State’s conception of a child’s best interests may diverge from that of the child who may reasonably urge his guardian ad litem to advance an outcome not preferred by the State. The potential for divergent understandings of the best interests of the parties in juvenile cases persuades us to reject Johnson’s contention that, as a matter of law, the commonality of the former and latter clients’ interests precludes the finding of an ethical violation under the circumstances of this case. Indeed, DR 9-101(B) categorically prohibits the acceptance of private employment in matters in which Johnson previously had substantial responsibility as an attorney for a governmental entity. The rule makes no exceptions for juvenile cases or other proceedings in which a lawyer’s former and current clients may have some broadly stated common objectives or interests. We are not inclined to dilute the important purposes of the categorical prohibition by recognizing the “clients’ best interests exception” advanced by Johnson.

3. Confidences of clients. Johnson urges us to conclude she did not violate ethical rules in this case because any information to which she became privy as an assistant county attorney in juvenile cases was routinely shared with other attorneys and their clients. She notes that the new Iowa Rules of Professional Conduct restrict a lawyer who has information that she knows is “confidential government information about a person” from representing “a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.” Iowa R. of Profl Conduct 32:l.ll(c) (2005). Although we have no occasion in this case to interpret or apply this new rule, which was adopted after Johnson provided legal services as a guardian ad litem in the two juvenile cases referred to above, we note that the rule’s plain language does not confine the prohibition against representation to matters in which a former government lawyer gained confidential information about a person. See Iowa R. of Profl Conduct 32:l.ll(a)(2). Similarly, the plain language of DR 9-101(B) that we apply in this case makes no exception allowing a former public employee-lawyer to accept private employment in a case in which she had substantial responsibility as a government lawyer so long as she gained no confidential information in the former representation.

J. Consent of the former client. Johnson contends we should find no violation of DR 9-101(B) and DR 1-I02(A)(1) because she obtained DHS’s consent in writing to her representation of juveniles in the cases that form the basis for the ethical complaint against her. She urges us to consider that new rule 32:1.11 expressly authorizes a lawyer who was formerly employed by the government to represent a client in a matter notwithstanding the lawyer’s pri- or substantial participation on behalf of the government in connection with the same matter if the appropriate government agency gives its informed written consent to the representation. See Iowa R. of Profl Conduct 32:l.ll(a)(2). As we have already noted, the new rule is not controlling in this case. Furthermore, we have previously decided consistent with a formal opinion of the Iowa Supreme Court Board of Professional Ethics and Conduct that under the rules prevailing at the time of Johnson’s conduct, the conflict of interest was not subject to waiver. Sorci, 671 N.W.2d at 494 (citing Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct, Formal Op. 98-09 (1998)).

5. Johnson’s good faith. Johnson posits that we should find no ethical infraction in this case because she believed in good faith that her conduct did not violate the rules in question. To her credit, she considered the potential conflicts of interest that could arise if she accepted employment with the YLC. However, Johnson cites no authority for the proposition that a violation of DR 9-101(B) and DR 1-102(A)(1) cannot be found in the absence of a lawyer-actor’s bad faith, and we find no merit in it. We do, however, consider Johnson’s good faith as a circumstance in our determination of the appropriate sanction in this case.

IV. Sanction Imposed.

Having found that Johnson’s conduct violated certain ethical rules, we next consider the appropriate sanction. “Any violation of the Code of Professional Responsibility necessarily reflects adversely on the fitness of an attorney to practice law.” Comm. on Prof'l Ethics & Conduct v. Durham, 279 N.W.2d 280, 285 (Iowa 1979). In determining the sanction, “we consider the respondent’s fitness to continue in the practice of law, deterrence of others from similar conduct, and the assurance to the public that the courts will maintain the ethics of the profession.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Zenor, 707 N.W.2d 176, 185 (Iowa 2005) (citation omitted) (internal quotation marks omitted). We also consider any aggravating and mitigating circumstances. Id.

We find that Johnson is fit to continue in the practice of law. The record discloses that she is well-regarded by judicial officers and fellow members of the bar as a competent lawyer who was willing and able to competently undertake difficult juvenile cases. We do not believe under the circumstances of this case that a license suspension is necessary to deter similar future conduct. Indeed, we conclude a public reprimand will amply assure the public that the courts will maintain the ethical standard for lawyers who leave government service and undertake private representation of parties in matters for which the lawyers had substantial responsibility in their former government service. Our decision to impose a public reprimand rather than the suspension recommended by the Commission is also strongly influenced by the fact that Johnson has no prior disciplinary record, and by the fact that she considered and took some steps to avoid potential conflicts before she began her employment with the YLC. Costs shall be taxed to Johnson.

RESPONDENT REPRIMANDED.

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

      . We have approved the deployment of so-called "Chinese Walls” as a means of overcoming imputed disqualification of associates of attorneys affected by a conflict of interest in certain circumstances. See Doe v. Perry Cmty. Sch. Dist., 650 N.W.2d 594, 601 (Iowa 2002).

      . In a conversation with a district associate judge, Johnson requested a meeting with juvenile court judges to discuss how potential conflicts of interest might be managed if she were to accept employment with the Center. The judge declined to participate in such a meeting on the ground that the court might be required to rule on conflict of interest issues that could arise if Johnson accepted employment with the Center. The judge also recommended that Johnson seek an opinion from the Bar Association's Committee on Professional Ethics and Standards.

      .We subsequently decided that a conflict of interest of the type alleged against Johnson in this case "may not be waived.” See Sorci v. Iowa Dist. Ct., 671 N.W.2d 482, 494 (Iowa 2003). We nonetheless make reference to the letter because it provides background information evidencing Johnson’s pre-employment concerns about potential conflicts of interest and her intention to address them before they arose. We acknowledge that under the Iowa Rules of Professional Conduct, which became effective July 1, 2005, consent to a conflict may be obtained.

      . In each case, Johnson had signed a petition as an assistant county attorney alleging one or more children were in need of assistance.

      . An account of the history of the controversy and litigation surrounding Johnson’s conflict of interest and the several orders disqualifying Johnson and the YLC’s other employee-lawyers in certain juvenile cases may be found in our decision in Sorci, 671 N.W.2d at 485-88, and will not be repeated here.

      . The Iowa Rules of Professional Conduct became effective July 1, 2005.


author: TERNUS, Chief Justice. LARSON, Justice

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Charles K. BORTH, Respondent.
    No. 06-1017.
    Supreme Court of Iowa.
    Feb. 23, 2007.

      Charles L. Harrington and Teresa A. Vens, Des Moines, for complainant.
    John D. Brown, Emmetsburg, for respondent.
   TERNUS, Chief Justice.

This disciplinary case against assistant Clay County Attorney Charles K. Borth is the third in a series of disciplinary cases involving alleged misconduct by prosecutors in Clay County. See Iowa Supreme Ct. Attorney Disciplinary Bd. v. Zenor, 707 N.W.2d 176 (Iowa 2005); Iowa Supreme Ct. Attorney Disciplinary Bd. v. Howe, 706 N.W.2d 360 (Iowa 2005). The respondent here is charged with (1) representing a criminal defendant while serving as an assistant county attorney, (2) amending traffic citations to cowl-lamp violations not supported by probable cause, and (3) negotiating plea bargains that required defendants to contribute to various funds, including funds maintained by governmental subdivisions, contrary to the terms of Iowa Code section 907.13(2) (2003). See generally Iowa Code § 907.13(2) (allowing court to require charitable donation in lieu of community service imposed as a condition of probation).

The Iowa Supreme Court Grievance Commission concluded Borth had violated the Iowa Code of Professional Responsibility for Lawyers in several respects. The Commission recommended he be given a public reprimand. We agree Borth violated our ethics rules, and we concur in the Commission’s recommendation to publicly reprimand the respondent.

I. Scope of Review.

The supreme court reviews a report of the Commission de novo. Howe, 706 N.W.2d at 366. “Under this standard of review, we give weight to the factual findings of the Commission, especially with respect to witness credibility, but we find the facts anew.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Beckman, 674 N.W.2d 129, 131 (Iowa 2004). “Although we respectfully consider the discipline recommended by the Commission, the final decision on the appropriate sanction is for this court.” Howe, 706 N.W.2d at 366. The complainant, the Iowa Supreme Court Attorney Disciplinary Board, must prove its allegations of misconduct by a convincing preponderance of the evidence. Id.

II. General Factual Background.

Charles Borth has been licensed to practice law in this state since 1995. After clerking for the Third Judicial District for two years, in 1997 he joined the Spencer law firm of Zenor & Houchins. At the same time, Borth became an assistant Clay County attorney, a position he continues to hold. As an assistant county attorney, Borth prosecutes criminal offenses and handles juvenile cases for the county.

The record establishes that Borth is active in his community, hardworking, and respected by other lawyers and judges in the area. He has not previously been disciplined for an ethical violation.

On January 4, 2005, the disciplinary board filed a three-count complaint against Borth. We will discuss each charge separately.

III. Count I: Defense of Kenneth John Borth.

On March 29, 2002, in Spencer, Clay County, Iowa, the respondent’s father, Kenneth John Borth, was charged with public intoxication, a violation of a Spencer municipal ordinance. On April 3, 2002, respondent entered a plea of not guilty on behalf of his father. Subsequently, respondent communicated with Brad Howe, the assistant city attorney, and negotiated a disposition of the charge against Kenneth Borth. On May 2, 2002, a deferred prosecution was ordered on the public intoxication charge, and on November 1, 2002, the criminal case was dismissed. The respondent was an assistant county attorney when he defended his father on this criminal charge.

The Board alleged this conduct violated DR 8-101(B), which provides: “County attorneys and assistant county attorneys shall not engage in the defense of an accused in any criminal matter during the time they are holding this public office.” The Commission concluded Borth violated DR 8-101 (B), and we agree.

IV. Count II: Misdemeanor Charges Not Supported by Probable Cause.

In his capacity as an assistant county attorney, Borth negotiated plea agreements to traffic citations. In approximately seventy-four cases between 1998 and 2004, he facilitated the amendment of a simple misdemeanor traffic violation to a nonmoving violation under the cowl-lamp statute, Iowa Code section 321.406. See generally Iowa Code § 321.406 (stating motor vehicles may be equipped with no more than two side cowl or fender lamps). As in the plea bargains involved in Howe and Zenor, the arresting officer, the defendant, and the presiding judge concurred in the amendment. Everyone involved, including Borth, knew the cowl-lamp charges were not supported by probable cause. In fact, there was no factual basis for the charges at all because vehicles no longer have cowl or fender lamps.

The Board charged Borth with violating several ethics rules in negotiating these plea bargains and presenting them to the court for approval. In Howe, we held identical conduct “clearly violated” DR 7-103(A), which “states that a prosecutor ‘shall not institute or cause to be instituted criminal charges when the lawyer knows or it is obvious that the charges are not supported by probable cause.’ ” 706 N.W.2d at 368 (quoting DR 7-103(A)). The Commission concluded Borth violated DR 7-103(A), and again, we agree.

V. Count III: Plea Bargains Requiring Charitable Contributions.

In several of the cases in which Borth agreed to reduce a traffic citation to a cowl-lamp violation, the negotiated plea bargain included a requirement that the defendant make a charitable contribution to a designated entity. In three cases, the defendants were required to contribute to the Clay County Canine Fund; in another case, a contribution was made to the Clay County DARE Program. In a fifth case, the defendant was ordered to make contributions to the canine fund and to the Clay County Crime Stoppers.

Iowa law allows courts to include charitable donations in a defendant’s sentence under specified circumstances. Iowa Code section 907.13 permits a court to “establish as a condition of probation that the defendant perform unpaid community service for a time not to exceed the maximum period of confinement for the offense of which the defendant is convicted.” Iowa Code § 907.13(1). If the court imposes such a condition, the defendant, in cooperation with his probation officer and the department of correctional services, must prepare a plan to implement the community service condition. Id. This plan is submitted to the court for approval or modification. Id. § 907.13(2). One modification option available to the court is to allow the defendant to satisfy some or all of the community service obligation “through the donation of property to a charitable organization other than a governmental subdivision.” Id.

The charitable contributions negotiated by Borth in the cases described above were not authorized by section 907.13, as he forthrightly admitted at the hearing. The defendants in these cases were not placed on probation and were not ordered to complete community service. Even if these prerequisites had been met, section 907.13 only permits the court to order contributions to nongovernmental entities. Both the Clay County Canine Fund and the Clay County DARE Program were accounts of the Clay County sheriff, a governmental entity.

The Board alleged the charitable contribution required by the respondent in these cases constituted an illegal sentence. It claims Borth’s negotiation of illegal sentences violated DR 1-102(A)(5), which provides that a lawyer shall not engage in conduct prejudicial to the administration of justice. See Iowa R. Prof'l Conduct 32:8.4(d) (stating it is “professional misconduct for a lawyer to ... engage in conduct that is prejudicial to the administration of justice”).

The Commission determined there was no statutory authority for the respondent’s demand that the defendants in the cited prosecutions agree to make a charitable contribution as part of them negotiated sentences. Notwithstanding this determination, the Commission concluded the Board had failed to prove “the contribution requirements injured the administration or efficiency of the judicial system.”

Borth contends on appeal that the Commission correctly concluded he did not act unethically in negotiating the plea bargains in question. While he acknowledges the plea agreements were not authorized by section 907.13(2), he claims that defect does not equate to an ethical infraction because he had no wrongful intent and believed at the time that the plea agreements were appropriate dispositions of the criminal charges.

We first reject the argument that the Board must show the respondent knew his conduct constituted a violation of the ethics rules or that the respondent acted with an improper purpose or motive. Neither intent, knowledge, nor wrongful motive is required to establish a violation of DR 1-102(A)(5). Cf. Iowa Supreme Ct. Attorney Disciplinary Bd. v. Johnson, 2007 WL 490915, 728 N.W.2d 199, 202 (Iowa 2007) (holding attorney’s good-faith belief that her conduct did not violate conflict-of-interest rule contained in DR 9-101(B) was not a defense); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Walters, 603 N.W.2d 772, 775 (Iowa 1999) (stating it was “not necessary to show that the lawyer acted with bad or fraudulent intent” in order to establish lawyer violated DR 5-104(A) by soliciting loan from former client); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Apland, 577 N.W.2d 50, 56 (Iowa 1998) (concluding respondent committed an ethical violation by misappropriating client’s funds even though the misappropriation “was not intentional given the uncertainty at the time about whether such fees were subject to trust account requirements”); Comm. on Prof'l Ethics & Conduct v. Davidson, 398 N.W.2d 856, 859 (Iowa 1987) (concluding attorney committed an ethical violation despite the attorney’s “apparent lack of culpability” where office staff error resulted in commingling of client funds for two years). In rejecting a similar defense many years ago, this court said:

If all individuals are presumed to know the law and cannot use ignorance as a defense, respondent, a trained professional with the basic skills and tools to acquaint himself with the legal significance of the facts, cannot insulate himself from censure simply by claiming ignorance.

Comm. on Prof'l Ethics & Conduct v. Zimmerman, 354 N.W.2d 235, 238 (Iowa 1984). Similarly, here, Borth’s unawareness that the charitable contributions he negotiated were not authorized by law is not a defense to the Board’s charges.

We now turn to the Commission’s determination that Borth’s conduct was not unethical. In explaining its conclusion, the Commission observed:

There is evidence in the record that this type of sentence was agreed to by other prosecutors in other counties, many with more years of experience than Mr. Borth. None of the contributions benefited Mr. Borth personally in any way. The contributions were all approved by the court and administered through the clerk of court’s office. There is no question that the funds were put to their intended purpose. There is no evidence that the contributions were applied only in cases where the defendants were wealthy.

We have no disagreement with the Commission’s observations, as the evidence fully supports them. We are persuaded, however, that these facts do not avoid the prejudice to the administration of justice inherent in Borth’s action.

“[Tjhere is no typical form of conduct that prejudices the administration of justice.” See Iowa Supreme Ct Bd. of Prof'l Ethics & Conduct v. Steffes, 588 N.W.2d 121, 123 (Iowa 1999). Generally, acts that have been deemed prejudicial to the administration of justice have “hampered the efficient and proper operation of the courts or of ancillary systems upon which the courts rely.” Id.

In the present case, Borth’s actions facilitated the imposition of several illegal sentences. See Tindell v. State, 629 N.W.2d 357, 359 (Iowa 2001) (holding an illegal sentence is “one not authorized by statute”). Illegal sentences are void and can be challenged at any time. See State v. Woody, 613 N.W.2d 215, 218 (Iowa 2000) (“An illegal sentence is void and ‘not subject to the usual concepts of waiver ....’ Because an illegal sentence is void, it can be corrected at any time.” (quoting State v. Ohnmacht, 342 N.W.2d 838, 843 (Iowa 1983))). The potential use of court time to address such challenges in the cases at issue here would divert judicial resources from other matters and thereby hamper the efficient and proper operation of the courts. See Johnson, 728 N.W.2d at 211 (holding attorney’s conflict of interest that resulted in numerous challenges to her participation in pending cases and the potential for many similar challenges was conduct prejudicial to the administration of justice). We need not wait for such challenges to be made to conclude Borth’s actions were prejudicial to the administration of justice. Accordingly, we hold Borth’s illegal plea agreements violated DR 1-102(A)(5).

VI. Discipline.

The Commission recommends that Borth be given a public reprimand. The Board argues a more severe sanction is warranted.

To determine the appropriate sanction,

we consider the nature and extent of the respondent’s ethical infractions, his fitness to continue practicing law, our obligation to protect the public from further harm by the respondent, the need to deter other attorneys from engaging in similar misconduct, our desire to maintain the reputation of the bar as a whole, and any aggravating or mitigating circumstances.

Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Kallsen, 670 N.W.2d 161, 164 (Iowa 2003). Upon our consideration of these factors, we agree with the Commission that a public reprimand is an adequate sanction.

Although Borth should have known better than to represent his father in a criminal case, it appears his violation of DR 8-101(B) is isolated. Borth’s other ethical violations — negotiation of guilty pleas to cowl-lamp charges and imposition of unauthorized charitable donations— were practices that had not been addressed by this court at the time Borth engaged in this conduct. This fact militates in favor of a public reprimand. See Howe, 706 N.W.2d at 380 (noting public reprimand would be sufficient sanction for filing cowl-lamp charges since court had not “given guidance on the limitations placed on plea-bargained charges by DR 7-103(A)” prior to that case); Apland, 577 N.W.2d at 60 (imposing public reprimand for attorney’s unethical handling of advance fee payment because court had not previously addressed the proper handling of such payments).

Other circumstances also indicate that a public reprimand is adequate discipline in this case. Borth ceased negotiating plea bargains to cowl-lamp charges and stopped asking defendants to agree to make charitable contributions immediately upon learning these practices were questionable. He has had no other ethical violations, enjoys a good reputation in the legal community, and cooperated fully with the Board during its investigation. For these reasons, we think Borth is unquestionably fit to practice law, and there is no need to protect the public from further harm at his hands. Finally, we believe a public reprimand will serve as a sufficient deterrent to other lawyers and will demonstrate to the public that lawyers will be held accountable for unethical conduct.

We publicly reprimand Charles K. Borth for his ethical violations. The costs of this proceeding are taxed against the respondent.

ATTORNEY REPRIMANDED.

All justices concur except LARSON, J., who concurs in part and dissents in part, and APPEL, J., who takes no part.

LARSON, Justice

(concurring in part; dissenting in part).

I concur in the majority opinion, except for Division IV, and I concur in the sanction imposed. However, I dissent from Division IV, finding a violation of DR 7-103(A) for accepting guilty pleas to non-moving violations for the reasons set out in my dissent in Iowa Supreme Court Attorney Disciplinary Board v. Howe, 706 N.W.2d 360, 382 (Iowa 2005).

      . When Borth first joined the Zenor & Houchins law firm, Michael Zenor was the county attorney, and Michael Houchins was an assistant county attorney. At the time this matter was heard in May 2006, Houchins was the county attorney, and Zenor was an assistant county attorney.


author: APPEL, Justice.

text:
    STATE of Iowa, Appellant, v. Randall Fredrick MUHLENBRUCH, Appellee.
    No. 05-2028.
    Supreme Court of Iowa.
    Feb. 23, 2007.

      Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, Jennifer Miller, County Attorney, and Michael Salvner, Assistant County Attorney, for appellant.
    Barry S. Kaplan and Melissa A. Nine of Kaplan & Frese, L.L.P., Marshalltown, for appellee.
   APPEL, Justice.

In this appeal, we must decide if Iowa Code section 728.12(3) (2003) creates a single criminal offense for possession of a computer that contains pornographic depictions of minors, regardless of the number of images, or whether the statute establishes a separate offense for each pornographic image stored in or accessible on a single computer. We join the appellate courts in Kansas and Arizona in holding that, under a statute that prohibits possession of a computer or other medium that depicts pornographic images, only one offense arises from possession of one computer or medium, regardless of the number of images stored on the system.

I. Background Facts and Proceedings.

In this case, defendant Randall Muhlen-bruch possessed a computer containing pornographic images of minors. The images were discovered by the defendant’s wife, who asked a friend to copy the images onto a computer disk and turn them over to the police for investigation. A subsequent examination of the defendant’s computer led to the recovery of 3⅜8 pornographic images of sexual activity by minors.

The State charged Muhlenbruch with ten counts of sexual exploitation of a minor under Iowa Code section 728.12(3). Iowa Code section 728.12(3) states:

It shall be unlawful to knowingly purchase or possess a negative, slide, book, magazine, computer, computer disk, or other print or visual medium, or an electronic ... storage system ... which depicts a minor ... engaging in a prohibited sexual act or the simulation of a prohibited sexual act.

The information filed by the State reveals that each count was based on the downloading of prohibited sexual images onto his computer on different days. The images also involved different minors.

Muhlenbruch filed a motion to adjudicate law points, arguing that because he possessed only one computer containing depictions of prohibited sexual acts, he could be charged with only one count under section 728.12(3). The district court, in a thorough opinion, granted the motion. The district court noted that “the plain reading of the Iowa statute under which Defendant is charged fails to criminalize each image of child pornography on a computer or computer disk.”

The State appeals, contending that the district court erred in concluding that Muhlenbruch could be charged under Iowa Code section 728.12(3) with only one offense for possession of a computer where the computer contained multiple pornographic images.

II. Standard of Review.

This court reviews a trial court’s ruling on a motion to adjudicate law points for correction of legal error. State v. Iowa Dist. Ct., 616 N.W.2d 575, 577-78 (Iowa 2000). The appropriateness of the district court’s action turns on the correctness of its interpretation of the relevant statutes, which are reviewable for correction of errors at law as well. Id

III. Discussion.

Over one hundred years ago, this court stated:

Criminal statutes are ... inelastic, and cannot by construction be made to embrace cases plainly without the letter though within the reason and policy of the law.

State v. Lovell, 23 Iowa 304, 304 (1867). This century old principle controls the outcome in this case.

Iowa Code section 728.12(3) prohibits the “possession” of a “computer” or “other print or visual medium” that depicts a minor engaged in prohibited sexual acts. The statute plainly does not define the crime as possession of a pornographic image involving a minor. It defines the crime as possession of a “computer” or “other print or visual medium” that contains such an image.

It is undisputed that Muhlen-bruch possessed only one computer and, as a result, it would seem to follow that he could be charged only with one crime. The State seeks to avoid this result by asserting that the phrase “other print or visual medium” should be expansively defined to include individual pornographic images. Iowa Code section 728.12(3) does not define the term “medium.” In the absence of a legislative definition, words in a statute are given their ordinary meaning. State v. White, 545 N.W.2d 552, 555 (Iowa 1996). A medium is ordinarily the instrumentality of expression rather than the expression itself. Webster’s Third International Dictionary 1403 (unabr. ed. 2002). In the field of computer science, a medium is an “object or device ... on which data is stored.” The American Heritage Dictionary of the English Language (4th ed. 2000). Using these ordinary definitions, it is the possession of the computer or other instrumentality that contains certain images, and not the possession of each individual pornographic image, that defines the crime.

The State, however, cites State v. Kidd, 562 N.W.2d 764 (Iowa 1997), in support of its position. In Kidd, the defendant possessed three sawed-off shotguns that were bundled together in a sleeping bag. The State charged the defendant with three separate crimes under Iowa Code section 724.3, a statute which prohibited knowing “possession] of an offensive weapon.” On appeal we upheld the multiple convictions. Among other things, this court noted that “an” connotes a singular item in contrast to the word “any,” which may be plural. Id. at 765-66.

When read in context, Kidd supports the view that Muhlenbruch may be charged only with one crime for possession of one computer containing pornographic materials. In Kidd, the unit of prosecution was “possession] of an offensive weapon.” Here, the unit of prosecution is “possession] ... of a computer ... or other visual or print medium.” If Muhlenbruch had three computers, bundled together, which each contained pornographic material, he could have been charged with three separate criminal offenses, as was the defendant in Kidd. In this ease, however, it is undisputed that Muhlenbruch possessed only one computer.

We note that other appellate courts have reached the same result in interpreting similar statutes that prohibit possession of computers or other visual mediums. For instance, the Kansas Court of Appeals has held that under a Kansas statute that prohibited “possessing” of “other printed or visual medium” in which a visual depiction of a child engaging in sexually explicit conduct is shown or heard, a criminal defendant may be charged with only one offense for possession of each medium, regardless of the number of images contained. State v. Donham, 29 Kan.App.2d 78, 24 P.3d 750, 755 (2001). In so holding, the Kansas court noted that “[i]f the legislature had intended to criminalize possession of each sexually explicit image of a child contained on a floppy disk, the legislature would have included language such as possession of any image stored or retrieved from a floppy disk as a means of violating the statute.” Id. (emphasis added).

Similarly, an Arizona appellate court has held that a defendant possessing a single roll of film with multiple pornographic images may only be charged with one offense under a statute that prohibited “possessing ... any visual or print medium in which minors are engaged in sexual conduct.” State v. Valdez, 182 Ariz. 165, 894 P.2d 708, 711-13 (Ct.App.1994). Among other things, the Arizona court contrasted the state law provision with 18 U.S.C. §§ 2251 and 2252, which Congress amended in 1984 to delete references to “visual or print medium” and substitute the phrase “visual depiction.” Id. at 713 n. 4.

The State cites a number of cases from other jurisdictions in support of its position. These cases, however, are plainly distinguishable. For example, the Wisconsin Court of Appeals upheld a defendant’s conviction on twenty-eight counts of possession of child pornography based on images found on two computer disks where the statute prohibited possession of a “pictorial representation.” State v. Multaler, 246 Wis.2d 752, 632 N.W.2d 89, 94 (Ct.App.2001). The Minnesota Court of Appeals has also found that a statute prohibiting possession of, among other things, “a pornographic work” supported multiple convictions for possession of illicit images in a single medium. State v. Bertsch, 689 N.W.2d 276, 280-81 (Minn.Ct.App.2004), aff'd in part, rev’d in part on other grounds, 707 N.W.2d 660 (Minn.2006). The Iowa statute, however, does not prohibit possession of a “pictorial representation” or “a pornographic work,” but only-possession of a computer or other visual medium that contains a pornographic image.

While we find that the meaning of the statutory language is clear, even if the State could convince us that the statute is ambiguous as suggested at oral argument, it would not change the result in this case. Like nearly all state supreme courts, this court has repeatedly held that penal statutes are to be interpreted strictly with doubts therein resolved in favor of the accused. State v. Welton, 300 N.W.2d 157, 160 (Iowa 1981); State v. Lawr, 263 N.W.2d 747, 750 (Iowa 1978); State v. Conley, 222 N.W.2d 501, 502 (Iowa 1974). Sometimes referred to as the rule of lenity, this court has recognized that strict construction of criminal statutes should be applied in cases where there is doubt regarding the allowable unit of prosecution. Kidd, 562 N.W.2d at 765. As a result, even if Iowa Code section 728.12(3) were ambiguous on the question of the allowable unit of prosecution, our settled law requires that any doubt be resolved in favor of Muhlenbrueh.

The State zealously asserts policy reasons for multi-count criminal liability under the facts of this case. For example, the State notes that each child photographed in a sexually explicit manner is a victim and that Muhlenbrueh should be punished accordingly. Our task, however, is to enforce the statute as written. Any recasting of the scope of criminal liability under Iowa Code section 728.12(3) is the province of the legislature, not this court. Lovell, 23 Iowa at 304.

Muhlenbrueh also asserts that multiple prosecutions under Iowa Code section 728.12(3) for possession of a single computer violates the Double Jeopardy and Cruel and Unusual Punishment Clauses of the United States Constitution. The record reveals that the motion to adjudicate law points was based solely on “the wording of the statute” and, as a result, the constitutional issues have not been preserved. Meier v. Senecaut, 641 N.W.2d 532, 537-38 (Iowa 2002). In any event, our resolution of the case eliminates the need to address them.

IV. CONCLUSION.

The district court correctly concluded that under the facts presented Muhlen-bruch could be charged with only one offense under Iowa Code section 728.12(3).

AFFIRMED.


author: STREIT, Justice.

text:
    BITUMINOUS CASUALTY CORPORATION, An Illinois Insurance Company, Movant, v. SAND LIVESTOCK SYSTEMS, INC., a Nebraska Corporation; Sand Systems, Inc., a Nebraska Corporation; Furnas County Farms, a Nebraska General Partnership; and Cori A. Gossage, Individually and as Administrator of the Estate of Raymond Charles Gossage, Jr., and as Next Friend and Mother of Brian M. Gossage, Respondents.
    No. 05-1063.
    Supreme Court of Iowa.
    Feb. 23, 2007.

      Timothy W. Hamann and Jared Knapp of Clark, Butler, Walsh & Hamann, Waterloo, for movant.
    Donald H. Molstad, Sioux City, and Patrick W. O’Bryan, Des Moines, for respondent Sand Livestock Systems, Inc.
    Robert A. Burnett, Jr., Des Moines, for respondent Gossage.
    Laura A. Foggan of Wiley, Rein & Fielding, Washington, D.C., and David N. May of Bradshaw, Fowler, Proctor & Fair-grave, P.C., Des Moines, for amicus curiae Complex Insurance Claims Litigation Association.
   STREIT, Justice.

Is carbon monoxide pollution? Sand Livestock was sued for wrongful death after a man died of carbon monoxide poisoning in a hog confinement facility the company designed and built. Sand Livestock’s insurer, Bituminous Casualty, sought a declaration that Sand Livestock’s insurance did not cover the incident because of a pollution exclusion provision. In response to a certified question, we find the provision unambiguously excludes coverage. We do not decide whether a reasonable policy holder would expect the exclusion to only pertain to “traditional environmental pollution.”

I. Facts and Prior Proceedings

Sand Livestock constructed a hog confinement facility in Ida County, Iowa for Furnas County Farms. During the construction, Sand Livestock installed a propane power washer in the facility’s washroom. In 2002, Raymond Gossage, an employee of Furnas County Farms, was working at the facility. While using the toilet in the washroom, Gossage was overcome by carbon monoxide fumes. The propane gas heater for the pressure washer produced the fumes. Furnas was later cited by the Iowa Occupational Safety and Health Administration for having a propane device in a room without an outside air supply. According to the autopsy, Gossage died as a result of asphyxiation due to carbon monoxide poisoning.

In 2003, Gossage’s widow filed a wrongful death suit against Sand Livestock in the Ida County, Iowa district court. Sand Livestock requested its insurer, Bituminous Casualty, provide a legal defense and indemnification pursuant to two insurance policies. Bituminous had issued Sand Livestock a “Commercial Lines Policy” and a “Commercial Umbrella Policy” for the time of Gossage’s death.

The Commercial Lines Policy contained an endorsement entitled “Total Pollution Exclusion with a Hostile Fire Exception,” which stated:

This insurance does not apply to:
f. Pollution
(1) “Bodily injury” or “property damage” which would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of “pollutants” at any time.

“Pollutants” are defined in the policy as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.”

The Commercial Umbrella Policy contained an endorsement entitled “Pollution Exclusion” which stated:

It is agreed that this policy does not apply:
A. to any liability for “bodily injury,” “property damage” or “personal and advertising injury” arising out of the actual, alleged or threatened discharge, dispersal, release or escape of “pollutants at any time.”
C. to any obligation of the “insured” to indemnify or contribute to any party because of “bodily injury,” “property damage” or “personal and advertising injury” arising out of the actual, alleged or threatened discharge, dispersal, release or escape of “pollutants.”
D. to any obligation to defend any “suit” or “claim” against any “insured” alleging “bodily injury,” “property damage” or “personal and advertising injury” and seeking damages for “bodily injury,” “property damage” or “personal and advertising injury” arising out of the actual, alleged or threatened discharge, dispersal, release or escape of “pollutants.”
“Pollutants” means any solid, liquid, gaseous, or thermal irritants or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste....

In 2004, Bituminous filed a complaint in federal court seeking a declaration it has no duty to pay damages to Mrs. Gossage or to defend or indemnify Sand Livestock for the death of Gossage because of the pollution exclusions contained in both policies. A year later, Bituminous filed a motion for summary judgment. Bituminous claimed the pollution exclusions in the policies preclude coverage. Sand Livestock and Mrs. Gossage argued the exclusions do not apply to the particular facts of this case and Bituminous is obligated to defend Sand Livestock and cover any losses that may arise if Sand Livestock is found to be liable.

In its ruling, the federal court noted that because we have not interpreted a pollution exclusion in an insurance policy in this particular context, it must “predict” how we would do so. The federal court stated “courts throughout the United States have interpreted pollution exclusions such as those contained in the policies at issue, and have reached a dizzying array of results.” See Claudia G. Catalano, Annotation, What Constitutes “Pollutant, “Contaminant, ” “Irritant, ” or “Waste” Within Meaning of Absolute or Total Pollution Exclusion in Liability Insurance Policy, 98 A.L.R.5th 193 (2002). After reviewing other courts’ approaches to this issue, the federal court concluded “both parties’ positions are supported by case law from other jurisdictions, and there is no Iowa case either directly on point or sufficiently definitive to allow this court to predict how the Iowa Supreme Court would decide the issue presented here.” Consequently, the federal court certified to us the following question:

Do the total pollution exclusions in the policies issued by Bituminous to Sand Livestock relieve Bituminous from any obligation to defend or indemnify Sand Livestock, or to pay damages to Mrs. Gossage, for claims arising out of the death of Raymond Gossage?

II. Merits

The issue before us is whether the pollution exclusions found in Sand Livestock’s insurance policies exclude coverage for a death caused by the release of carbon monoxide fumes inside a hog confinement facility.

Mrs. Gossage and Sand Livestock urge us to find the policies in question provide coverage for Gossage’s death. Mrs. Gos-sage argues the pollution exclusions are ambiguous because it is unclear whether their scope extends beyond “traditional environmental pollution.” Mrs. Gossage reminds us an ambiguous provision is construed in favor of the insured. Under slightly different reasoning, Sand Livestock argues the doctrine of reasonable expectations applies. Sand Livestock argues a reasonable policyholder would expect the pollution exclusions to prevent coverage for “traditional hog confinement problems associated with pollution wastes and smells, and not wrongful death claims based on an alleged negligent design of a hog confinement facility which allowed carbon monoxide to accumulate.” Bituminous argues the pollution exclusions clearly and succinctly prevent coverage for carbon monoxide poisoning and Bituminous urges us to hold it has no duty to defend or indemnify Sand Livestock.

A. Whether the Pollution Exclusions are Ambiguous

We begin with our rules of contract interpretation peculiar to insurance policies.

The cardinal principle in the construction and interpretation of insurance policies is that the intent of the parties at the time the policy was sold must control. Except in cases of ambiguity, the intent of the parties is determined by the language of the policy. “An ambiguity exists if, after the application of pertinent rules of interpretation to the policy, a genuine uncertainty results as to which one of two or more meanings is the proper one.” Because of the adhesive nature of insurance policies, their provisions are construed in the light most favorable to the insured. Exclusions from coverage are construed strictly against the insurer.

LeMars Mut. Ins. Co. v. Joffer, 574 N.W.2d 303, 307 (Iowa 1998) (citations omitted).

“[W]hen an insurer has affirmatively expressed coverage through broad promises, it assumes a duty to define any limitations or exclusionary clauses in clear and explicit terms.” Grinnell Mut. Reins. Co. v. Jungling, 654 N.W.2d 530, 536 (Iowa 2002) (citing Amco Ins. Co. v. Haht, 490 N.W.2d 843, 845 (Iowa 1992)). Words that are not defined in the policy are given “their ordinary meaning, one that a reasonable person would understand them to mean.” Id. (citing A.Y. McDonald Indus. v. Ins. Co. of N. Am., 475 N.W.2d 607, 619 (Iowa 1991)). This is because we interpret insurance policies from the standpoint of an ordinary person, not a specialist or expert. Id. (citing Haht, 490 N.W.2d at 845).

Where the meaning of terms in an insurance policy is susceptible to two interpretations, the one favoring the insured is adopted. However, the mere fact that parties disagree on the meaning of terms does not establish ambiguity. The test is an objective one: Is the language fairly susceptible to two interpretations?

N. Star Mut. Ins. Co. v. Holty, 402 N.W.2d 452, 454 (Iowa 1987) (citations omitted).

Bituminous argues the pollution exclusions unambiguously apply to the facts of this case. It claims carbon monoxide is a “pollutant” as defined by the policy and Gossage’s death was clearly due to “dispersal,” “release,” or “escape” of this “pollutant.” The exclusions define “pollutant” as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.” According to Bituminous, “[t]here is nothing in this broad definition which would exclude carbon monoxide.” Bituminous characterizes carbon monoxide as a gaseous irritant or contaminant. Carbon monoxide is defined in the dictionary as “a colorless odorless very toxic gas.” Webster’s Third New International Dictionary 336 (unabr. ed. rev. 2002).

We agree with Bituminous that carbon monoxide falls within the extremely broad language of the policies’ definition of “pollutants.” It is difficult to say the exclusions are “fairly susceptible to two interpretations,” which is required for us to find the exclusions ambiguous.

Mrs. Gossage argues the exclusion is ambiguous because it is unclear whether the exclusion extends beyond “traditional environmental pollution.” She claims her position is supported by the original purpose of pollution exclusions. One commentator explained “the available evidence most strongly suggests that the absolute pollution exclusion was designed to serve the twin purposes of eliminating coverage for gradual environmental degradation and government-mandated cleanup such as Superfund l’esponse cost reimbursement.” Jeffrey W. Stempel, Reason and Pollution: Correctly Construing the ‘Absolute” Exclusion in Context and in Accord with Its Purpose and Party Expectations, 34 Torts & Ins. L.J. 1, 32 (Fall 1998); see Am. States Ins. Co. v. Koloms, 177 Ill.2d 473, 227 Ill.Dec. 149, 687 N.E.2d 72, 81 (1997) (“Our review of the history of the pollution exclusion amply demonstrates that the predominate motivation in drafting an exclusion for pollution-related injuries was the avoidance of the ‘enormous expense and exposure resulting from the “explosion” of environmental litigation.’ ”); Bernhardt v. Hartford Fire Ins. Co., 102 Md.App. 45, 648 A.2d 1047, 1049-50 (1994) (detailing the evolution of pollution exclusions). But the plain language of the exclusions at issue here makes no distinction between “traditional environmental pollution” and injuries arising from normal business operations. See Cincinnati Ins. Co. v. Becker Warehouse, Inc., 262 Neb. 746, 635 N.W.2d 112, 120 (2001).

The Supreme Court of Illinois, which analyzed a nearly identical exclusion, acknowledged:

A close examination of this language reveals that the exclusion (i) identifies the types of injury-producing materials which constitute a pollutant, i.e., smoke, vapor, soot, etc., (ii) sets forth the physical or elemental states in which the materials may be said to exist, i.e., solid, liquid, gaseous or thermal, and (iii) specifies the various means by which the materials can be disseminated, i.e., discharge, dispersal, release or escape. To that extent, therefore, the exclusion is indeed “quite specific,” and those courts wishing to focus exclusively on the bare language of the exclusion will have no difficulty in concluding that it is also unambiguous.

Koloms, 227 Ill.Dec. 149, 687 N.E.2d at 79. Although the court in Koloms looked beyond the “bare language of the exclusion” to find ambiguity, we find it inappropriate and unwise to do so. An ambiguity exists only if the language of the exclusion is “susceptible to two interpretations.” Holty, 402 N.W.2d at 454. We may not refer to extrinsic evidence in order to create ambiguity. Becker Warehouse, 635 N.W.2d at 120; Quadrant Corp. v. Am. States Ins. Co., 154 Wash.2d 165, 110 P.3d 733, 742 (2005). Instead, we must enforce unambiguous exclusions as written. Leuchtenmacher v. Farm Bureau Mut Ins. Co., 461 N.W.2d 291, 294 (Iowa 1990). The plain language in the exclusions encompasses the injury at issue here because carbon monoxide is a gaseous irritant or contaminant, which was released from the propane power washer. See Assicurazioni Generali, S.p.A. v. Neil, 160 F.3d 997, 1006 (4th Cir.1998) (finding pollution exclusion unambiguously barred coverage for carbon monoxide poisoning); Essex Ins. Co. v. Tri-Town Corp., 863 F.Supp. 38, 41 (D.Mass.1994) (same); Bernhardt, 648 A.2d at 1052 (same).

B. Whether a Reasonable Policyholder Would Expect Coverage Under These Facts

Sand Livestock argues Bituminous should be required to provide coverage based on the doctrine of reasonable expectations, which Iowa recognizes. Sand Livestock claims an ordinary lay person would not comprehend the breadth of the pollution exclusions. An insured may utilize the doctrine of reasonable expectations to avoid an exclusion that “ ‘(1) is bizarre or oppressive, (2) eviscerates a term to which the parties have explicitly agreed, or (3) eliminates the dominant purpose of the policy.’ ” Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Federated Mut. Ins. Co., 596 N.W.2d 546, 551 (Iowa 1999) (quoting Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995)). However, in order for the doctrine to apply, the insured must show “ ‘circumstances attributable to the insurer that fostered coverage expectations’ or that ‘the policy is such that an ordinary layperson would misunderstand its coverage.’ ” Id. (quoting Benavides, 539 N.W.2d at 357).

Because this case comes to us as a certified question from the federal district court, this issue is not properly before us. Iowa Code section 684A.1 (2003) gives this court the power to answer certified “questions of law.” The applicability of the doctrine of reasonable expectations is a question of fact that is not within the scope of chapter 684A. Wright v. Brooke Group Ltd., 652 N.W.2d 159, 170 n. 1 (Iowa 2002). Sand Livestock and Mrs. Gossage are free to argue the doctrine of reasonable expectations to the federal district court.

III. Conclusion

We find the pollution exclusions in Sand Livestock’s insurance policies bar coverage for Gossage’s death, which was caused by carbon monoxide poisoning. Accordingly, our answer to the certified question is “yes.”

CERTIFIED QUESTION ANSWERED.