author: MEIERHENRY, Justice.

text:
    2007 SD 76
    STATE of South Dakota, Plaintiff and Appellee, v. Ronald JENSEN, Defendant and Appellant.
    No. 24246.
    Supreme Court of South Dakota.
    Considered on Briefs on May 21, 2007.
    Decided July 25, 2007.

      Lawrence E. Long, Attorney General, Craig Eichstadt, Deputy Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Kenneth R. Dewell of Johnson Eiesland Law Firm, Rapid City, South Dakota, Attorneys for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] Ronald Jensen appeals his conviction for three counts of misuse or alteration of a brand, contending there was insufficient evidence to sustain the jury’s guilty verdict. He also claims that the State violated a pre-trial discovery order by presenting undisclosed evidence and witness testimony during rebuttal and submits that the trial court erred when it refused to incorporate his proposed jury instructions. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

[¶ 2.] On July 8, 2004, Virgil Rust noticed that one of his cows had recently been branded with a brand that he did not recognize. He reported the suspicious brand to Sheriff Jim Daggett for investigation. Daggett’s investigation revealed that the fresh brand belonged to Walter Schultz, Jr., who was a partner in the cattle business with Jensen. Upon further investigation, law enforcement identified three more cows with Rust’s brand in Jensen’s pasture located four miles away from Rust’s ranch. The differences in the brands were easily seen from a distance. One difference was that Rust’s cattle had single brands as opposed to the multiple brands on Jensen’s cattle. Another difference was the placement of the brand in that Rust’s cattle were branded on the right hip, and Jensen’s cattle were branded on the left rib.

[¶ 3.] Law enforcement eventually discovered a total of five cows with Rust’s brand. Each of the Rust-branded cows was paired with a calf branded with Jensen’s brand. DNA evidence confirmed that four of the five cow/calf pairs discovered were genetically cow/calf pairs. The DNA result for the other pair was “undetermined.” Neither Schultz nor Jensen could explain the cow/calf mismatched branding. Jensen admitted that he knew Rust’s brands but appeared mystified that he or others had not seen Rust’s brand when they recently moved the cattle to a new pasture. His only explanation was that cattle frequently stray but are returned when discovered.

[¶4.] The State charged Jensen and co-defendant Schultz with six counts of misuse or alteration of a brand. During trial, chief brand inspector Shorty Zilver-berg, who examines 75-125 cases per year, testified that he had never seen a case like Jensen’s where as many as five cows had different brands than their calves had. Another brand inspector, Ned Westphal, also testified that in his thirty-plus years of brand inspecting, he had never seen five cow/calf pairs bearing different brands. He testified that while accidents do occasionally occur, having five misbranded calves in a herd of 150 was unusual. The State also presented evidence that Jensen and Schultz both participated in the 2004 brandings on Jensen’s ranch when the mis-brandings occurred. Rust testified during the State’s case-in-chief that he was not present at any of the brandings, and that he was unaware of any specific branding dates.

[¶ 5.] Jensen’s defense was that the misbrandings were simply a mistake or that Rust had set him up by branding his own cattle with Jensen’s brand. In support of his defense, Jensen presented several witnesses who testified that Rust was present at the March 20, 2004 branding to ensure that Jensen and Schultz did not have any of his cattle. To refute Jensen’s claim that Rust was present at the March 20, 2004 branding, the State recalled Rust and presented two corroborative witnesses who both testified that Rust was in Scotts-bluff, Nebraska, 185 miles away from South Dakota on that date. The State substantiated the testimony with Rust’s canceled check and receipt for a haircut in Scottsbluff on March 20, 2004, at 11:43 a.m.

[¶ 6.] The jury convicted Jensen of three counts of misuse or alteration of a brand. Jensen appeals, raising three issues:

1. Whether the trial court erred in denying Jensen’s motion for judgment of acquittal based upon insufficiency of the evidence.
2. Whether the State violated a discovery order when it presented undisclosed witness testimony and evidence during rebuttal.
3. Whether the trial court abused its discretion when it denied Jensen’s proposed jury instructions.

STANDARD OF REVIEW

[¶ 7.] “The denial of a motion for judgment of acquittal presents a question of law, and thus our review is de novo.” State v. Berhanu, 2006 SD 94, ¶ 7, 724 N.W.2d 181, 183 (citation omitted). Accordingly, “[w]e must decide anew whether the evidence was sufficient to sustain a conviction.” Id. This Court’s standard of review in a challenge to the sufficiency of the evidence is well settled:

In determining the sufficiency of the evidence on appeal in a criminal case, the issue before this Court is whether there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt. In making that determination, we accept the evidence and the most favorable inferences fairly drawn therefrom, which will support the verdict. Moreover, the jury is ... the exclusive judge of the credibility of the witnesses and the weight of the evidence. Therefore, this Court does not resolve conflicts in the evidence, or pass on the credibility of witnesses, or weigh the evidence.

State v. Lewis, 2005 SD 111, ¶8, 706 N.W.2d 252, 255 (quoting State v. Pasek, 2004 SD 132, ¶ 7, 691 N.W.2d 301, 305). “[O]ur standard of review for the violation of a discovery order mirrors the standard applied when reviewing both mistrial motions and evidentiary issues,” and “[w]e presume the evidentiary rulings made by a trial court are correct, and review those rulings under an abuse of discretion standard.” State v. Krebs, 2006 SD 43, ¶ 19, 714 N.W.2d 91, 99. Finally, “[t]his Court reviews the refusal of proposed jury instructions under the abuse of discretion standard.” State v. Nuzum, 2006 SD 89, ¶ 9, 723 N.W.2d 555, 557 (citation omitted).

ANALYSIS AND DECISION

Sufficiency of the Evidence

[¶ 8.] Jensen argues that there was insufficient evidence to convict him of misuse or alteration of a brand pursuant to SDCL 40-19-25. Specifically, he argues that there was insufficient evidence presented to the jury regarding the necessary “intent to defraud” element required by SDCL 40-19-25, which provides in its entirety:

Any person who, with intent to defraud, brands or marks any cattle, horse, sheep, buffalo, or mule, not his own; intentionally brands over a previous brand or in any manner alters, defaces, or obliterates a previous brand; or cuts out or obliterates a previous brand on any cattle, horse, sheep, buffalo, or mule is guilty of a Class 5 felony.

(Emphasis added).

[¶ 9.] “All elements of a crime, including intent ..., may be established circumstantially.” State v. Guthrie, 2001 SD 61, ¶ 48, 627 N.W.2d 401, 421 (citing State v. Holzer, 2000 SD 75, ¶15, 611 N.W.2d 647, 651). Furthermore, “[n]o guilty verdict will be set aside if the evidence, including circumstantial evidence and reasonable inferences drawn therefrom, sustains a reasonable theory of guilt.” State v. Barry, 2004 SD 67, ¶ 6, 681 N.W.2d 89, 91-92 (citing State v. Knecht, 1997 SD 53, ¶ 22, 563 N.W.2d 413, 421).

[¶ 10.] A review of the record reveals that there was sufficient evidence of intent to support the jury’s verdict. Initially, Jensen admitted he did not own either the double-branded cow or the five calves bearing his brand. In addition, brand-inspector Westphal testified that the person applying the fresh brand would have seen the old brand because it was placed so close to the old brand that it distorted the old brand to the extent that a brand inspector would not be able to discern the original brand. In Westphal’s opinion, the old Rust brand had been altered. Sheriff Daggett also testified that branding over a previous brand is more than just carelessness.

[¶ 11.] Furthermore, the State presented testimony that five misbrandings in a herd the size of Jensen’s is very unusual. Likewise, the obvious difference between Rust’s brand and Jensen’s brand made it likely that Jensen knew Rust’s cattle were intermingled in his herd. On that point, Westphal testified that Jensen should have recognized that the cows were not his. Additionally, Daggett testified that it was unlikely the cows would wander four miles away from Rust’s property. Finally, the evidence also established that Jensen was present for all of the brandings on his ranch and was in charge of the branding of cows and calves he owned.

[¶ 12.] Although Jensen submitted that these misbrandings were simply mistakes, it is well established that “the jury is ... the exclusive judge of the credibility of the witnesses and the weight of the evidence.” Lewis, 2005 SD 111, ¶ 8, 706 N.W.2d at 255 (citation omitted). The jury was evidently not swayed by Jensen’s testimony and evidence. Thus, based on our standard of review, there was sufficient evidence from which a jury could reasonably infer that Jensen branded the calves and/or the double-branded cow with the intent to defraud Rust.

Violation of Discovery Order

[¶ 13.] Jensen claims his case was prejudiced because the State did not disclose the witnesses and evidence regarding Rust’s whereabouts on March 20, 2004, in violation of a discovery order. His claim is without merit. First, he fails to show that the State withheld evidence covered by a discovery order. The only signed discovery order in the record ordered the State to produce and allow inspection of the cattle and calves. It was not a general discovery order and did not encompass the testimony and evidence regarding Rust’s whereabouts on March 20, 2004. Jensen claims, however, that he was covered by an oral pronouncement made by the judge in response to co-defendant Schultz’s discovery motion. The record lends no support to his claim. Schultz filed a discovery motion, but there is no indication that Jensen joined in Schultz’s motion. During the motion hearing, Jensen’s attorney represented to the judge that he had filed no discovery motion and did not orally indicate that he was joining in Schultz’s discovery motion.

[¶ 14.] Second, even had Jensen been included in the discovery order requested by Schultz, Jensen failed to object to the evidence on those grounds. When the State presented the rebuttal testimony and evidence, Jensen objected on the grounds that there was “no verification of the time on the check as being accurate by the machine on the back.” Normally, objections to the admission of testimony upon different grounds than those specifically urged in the trial court will not be considered on appeal. See Rogen v. Monson, 2000 SD 51, ¶ 15, n. 2, 609 N.W.2d 456, 459-60, see also Whiffen v. Hollister, 12 S.D. 68, 80 N.W. 156, 158 (S.D.1899). “We generally do not reverse trial courts for reasons not argued before them.” Rogen, 2000 SD 51, ¶ 15, 609 N.W.2d at 460.

[¶ 15.] Jensen attempts to rely on Krebs in support of his argument, but there are several distinguishing characteristics of Krebs that are not present in this case. See 2006 SD 43, 714 N.W.2d 91. In Krebs, the State conceded that it violated a signed discovery order when it failed to provide inculpatory evidence. Id. ¶ 18, 714 N.W.2d at 98. Instead of arguing that there was no discovery violation, the State claimed that Krebs suffered no prejudice from the violation, a necessary element for reversal. Id. We determined that the withheld testimonial evidence that Kreb’s injuries were self-inflicted was inculpatory and completely undercut Kreb’s self-defense claim; thus, the discovery violation was prejudicial. Id. ¶¶ 20-21, 714 N.W.2d at 99.

[¶ 16.] In contrast, there is no signed discovery order or motion for discovery in the Jensen file. Furthermore, the testimony and exhibit that was withheld is not, standing alone, inculpatory evidence. It is also not evidence that completely undercuts the defense. Whether Rust was in Scottsbluff on March 20, 2004, and had a haircut at 11:43 a.m. does not completely undercut Jensen’s mistake defense. The State presented the evidence as rebuttal to impeach the credibility of the defense witnesses who testified that Rust was at the March 20, 2004, branding. “[T]he risk of prejudice from a discovery violation is reduced when the only value of the evidence is for impeachment.” State v. Belken, 633 N.W.2d 786, 796 (Iowa 2001) (citation omitted).

[¶ 17.] Furthermore, under South Dakota’s criminal procedure discovery statutes (chapter 28A-13 (Rule 16)), the defendant must request discovery, and the prosecuting attorney need only disclose what evidence the State intends to use in its case-in-chief. For example, SDCL 23A-13-3 provides:

Upon written request of the defendant, the prosecuting attorney shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings, or places, or copies or portions thereof, which are within the possession, custody, or control of the prosecuting attorney and which are material to the preparation of his defense or intended for use by the prosecuting attorney as evidence in chief at the trial, or were obtained from or belong to the defendant.

(Emphasis added). Here, Jensen made no written request, and the State did not use the undisclosed evidence in its case-in-chief. Accordingly, there was no violation of a discovery statute or discovery order in this case.

Jury Instructions

[¶ 18.] Jensen proposed three instructions. His first and second proposed instructions related to Jensen’s mere presence at the scene of the crime as insufficient to make him an aider and abetter. His third proposed instruction related to ignorance or mistake of fact, which was his theory of defense. The trial court, relying partially on State v. Johnston, 478 N.W.2d 281 (S.D.1991), rejected all of his proposed instructions because the substance of the proposed instructions was already contained in other instructions.

[¶ 19.] In Johnston, we said: “[j]ury instructions are to be considered as a whole, and if the instructions when so read correctly state the law and inform the jury, they are sufficient.” 478 N.W.2d at 283 (citing State v. Huber, 356 N.W.2d 468 (S.D.1984)). Clearly, it is not error for a trial court to refuse instructions offered only to amplify principles already embodied in the court’s instructions. Id. (citing State v. Weisenstein, 367 N.W.2d 201, 206 (S.D.1985)) (additional citation omitted).

[¶ 20.] In Johnston, this Court adopted the holding of the New Mexico Court of Appeals that “ ‘whenever an intent instruction involving the defendant’s mental state is given, the mistake of fact concept is automatically included and does not merit a separate instruction.’ ” Id. (quoting State v. Griscom, 101 N.M. 377, 683 P.2d 59 (N.M.Ct.App.1984)). Notably, Johnston involved the same facts and instructions as are currently before this Court. The trial court in Johnston instructed the jury on the elements of the crime of brand alteration, including the requisite intent for the crime; therefore, we held that a separate instruction pertaining to Johnston’s theory of defense (mistake of fact) was not warranted. Id. We held that the trial court’s instructions adequately covered any mistake of fact claim. Id.

[¶21.] In this case, the trial court instructed the jury on the elements of the crime, including the requirement that the defendant act with intent to defraud. The court also gave two other instructions defining “intent” and “intent to defraud.” There were also two instructions pertaining to aiding and abetting. One of those instructions specifically stated that “[t]he mere presence alone of the defendant at the scene of a crime is not sufficient to make that person an aider and abetter.”

[¶ 22.] Jensen’s proposed jury instructions, denied by the trial court, were merely cumulative in nature to the instructions properly given to the jury. Again, we do not require trial courts to provide repetitive instructions in order to amplify the defense. Johnston, 478 N.W.2d at 283. Therefore, because the principles embodied in Jensen’s requested instructions were substantially covered by the instructions given, the trial court did not err in denying them.

[¶ 23.] Affirmed.

[¶ 24.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.

      . Although not briefed or argued by Jensen, "[d]ue process under the Fourteenth Amendment ... requires the State to reveal exculpatory evidence to the defense.” Rodriguez v. Weber, 2000 SD 128, ¶ 14, 617 N.W.2d 132, 138 (citing Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218 (1963)). However, the evidence must be requested by the defendant and material to guilt or innocence. Ashker v. Solem, 457 N.W.2d 473, 477 (S.D.1990) (citing U.S. v. Peltier, 800 F.2d 772 (8thCir.1986); State v. Wilde, 306 N.W.2d 645 (S.D.1981)). Once again, Jensen did not request this evidence, and evidence that Rust was in Scottsbluff on March 20, 2004, and received a haircut at 11:43 a.m. was not material to whether Jensen was guilty or innocent of the crime charged, misuse or alteration of a brand. It merely rebutted the testimony offered by the defense that Rust was present at the Jensen branding.


source: Caselaw Access Project

author: STREIT, Justice. WIGGINS, Justice

license: Public Domain

text:
    Brittani RUCKER, Appellant, v. HUMBOLDT COMMUNITY SCHOOL DISTRICT, Humboldt High School, and Robert Hoffman, Band Director, Appellees.
    No. 06-0094.
    Supreme Court of Iowa.
    Aug. 17, 2007.
    Frederick W. James of The James Law Firm, P.C., Des Moines, for appellant.
    Stephen G. Kersten of Kersten Brown-lee Hendricks, L.L.P., Fort Dodge, for ap-pellees.
   STREIT, Justice.

Sometimes it pays to be a kid, but in this case it does not. When Brittani Ruck-er was sixteen years old, she collapsed and suffered injuries while participating in a parade with her high school’s marching band. Approximately two-and-a-half years later she filed suit against Humboldt Community School District, Humboldt High School, and the band director alleging their negligence caused her injuries. The defendants filed a motion for summary judgment arguing Rucker’s claim was untimely because she was required to file her claim within two years of her injury. Rucker countered Iowa Code section 614.8 (2005) extended the time to file her claim to one year after her eighteenth birthday. The district court ruled in favor of the defendants, holding section 614.8 does not apply to claims against municipalities under chapter 670. We affirm.

I.Facts and Prior Proceedings

Rucker was a member of the Humboldt High School Band. On May 27, 2002, Rucker marched with the band in the Humboldt Memorial Day Parade. It was hot and muggy. Following the band’s performance at the band shell in Bicknell Park, the band members were instructed to remain at attention and listen to the guest speeches. During one of these speeches, Rucker was injured when she collapsed and fell forward landing on her chin and face. She was sixteen years old at the time. Rucker turned eighteen on February 5, 2004.

Rucker filed this lawsuit on January 31, 2005. She alleged Robert Hoffman, the band director, was negligent in failing to supply water to the band members and failing to recognize the signs of heat stroke, heat exhaustion, and/or dehydration. She alleged the Humboldt Community School District and Humboldt High School were liable for Hoffman’s negligent acts under the doctrine of respondeat superior.

The defendants (hereafter collectively “Humboldt”) asserted the affirmative defense of the statute of limitations in their amended answer. Humboldt then moved for summary judgment. Humboldt argued Rucker’s claim was time barred because she failed to file it within two years of her injury. Rucker countered her claim was timely because she filed it within one year after her eighteenth birthday. The district court granted Humboldt’s motion for summary judgment, holding Iowa Code section 614.8, which tolls the statute of limitations for minors, does not apply to actions against municipalities. Rucker appealed.

II. Standard of Review

We review orders granting summary judgment for correction of errors at law. Green v. Racing Ass’n of Cent. Iowa, 713 N.W.2d 234, 238 (Iowa 2006) (citing Otterberg v. Farm Bureau Mut. Ins. Co., 696 N.W.2d 24, 27 (Iowa 2005)).

“A motion for summary judgment should only be granted if, viewing the evidence in the light most favorable to the nonmoving party, ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ”

Id. (quoting Otterberg, 696 N.W.2d at 27).

III. Merits

The issue before us is whether Iowa Code section 614.8, which tolls the statute of limitations for minors in some actions, applies to the present case. For the reasons that follow, we conclude it does not.

Iowa Code chapter 670 is the exclusive remedy for torts against municipalities and their employees. See Iowa Code § 670.4; City of Cedar Falls v. Cedar Falls Cmty Sch. Dist., 617 N.W.2d 11, 18 (Iowa 2000) (“Suits against the government may be maintained only to the extent immunity has been expressly waived by the legislature.”). Humboldt Community School District and Humboldt High School are “municipalities” as defined by Iowa Code section 670.1(2). Rucker’s claims against Hoffman are also subject to Iowa Code chapter 670 because Hoffman is being sued in his capacity as a municipal employee. See Iowa Code § 670.2.

Iowa Code section 670.5 provides a time period within which a plaintiff must file notice and bring suit against a municipal defendant:

Every person who claims damages from any municipality ... on account of any wrongful death, loss or injury within the scope of section 670.2 or section 670.8 or under common law shall commence an action therefor within six months, unless said person shall cause to be presented to the governing body of the municipality within sixty days after the alleged wrongful death, loss or injury a written notice stating the time, place, and circumstances thereof and the amount of compensation or other relief demanded.... No action therefor shall be maintained unless such notice has been given and unless the action is commenced within two years after such notice. The time for giving such notice shall include a reasonable length of time, not to exceed ninety days, during which the person injured is incapacitated by the injury from giving such notice.

We have previously held two portions of section 670.5 and its predecessor, section 613A.5, unconstitutional. In Harryman v. Hayles, 257 N.W.2d 631 (Iowa 1977), we held the requirement that an incapacitated plaintiff must sue within ninety days of an injury was a denial of equal protection. Harryman, 257 N.W.2d at 634-35. We held an incapacitated individual shall have sixty days following the termination of the incapacity to bring suit. Id. at 635. We left the rest of the statute intact. Id. In Miller v. Boone County Hospital, 394 N.W.2d 776 (Iowa 1986), we held the statute’s requirement that a plaintiff commence an action within six months after injury unless notice was provided to the municipality within sixty days was also a denial of equal protection. Miller, 394 N.W.2d at 780. There, we said “because section 613A.5 [now 670.5] is unconstitutional, we hold that Iowa Code chapter 614 is the applicable statute of limitations for all actions arising under chapter 613A [now 670].” Id. at 781.

In a later case, we clarified that our Miller opinion struck down only the provision requiring commencement of an action within six months if notice is not given within sixty days. Clark v. Miller, 503 N.W.2d 422, 425 (Iowa 1993). In Clark, we held a plaintiff suing a municipality under chapter 670 still had the option of providing “timely notice” to the municipality. Id.; see Perkins v. Dallas Center-Grimes Cmty. Sch. Dist., 727 N.W.2d 377, 381 (Iowa 2007) (stating “[t]imely notice, we believe, means notice within a reasonable time after the injury”). Under such a scenario, the limitation for filing suit under chapter 670 is “two years after timely notice of the claim has been given.” Clark, 503 N.W.2d at 425. If a plaintiff does not give timely notice of his claim to the municipality, then the applicable statute of limitations is found in chapter 614. Miller, 394 N.W.2d at 781. Iowa Code section 614.1(2) requires a plaintiff to file suit within two years from the date of injury.

In the present case, Rucker concedes she did not provide notice (timely or otherwise) to Humboldt. Thus, she was required to file suit within two years from May 27, 2002, the date of her injury. She did not do so. Consequently, her claim is barred.

Rucker argues our holding in Miller incorporated chapter 614⅛ tolling provision for minors with respect to claims against municipalities. Section 614.8(2) provides “[t]he times limited for actions in this chapter ... are extended in favor of minors, so that they shall have one year from and after attainment of majority within which to commence an action.” Under this theory, Rucker’s claim, which she filed on January 31, 2005, was timely because she had until February 5, 2005 to bring suit.

We recently rejected this argument in Perkins. There, we said:

[NJothing in Miller or any of our other cases has indicated that the tolling provision was intended to be read into section 670.5. In Conner v. Fettkether, 294 N.W.2d 61, 63 (Iowa 1980), we said the tolling provision of section 614.8 is “an extension, not a limitation,” so Miller’s reference to the limitation provisions of chapter 614 would necessarily exclude section 614.8(2). Moreover, we held in Harden v. State, 434 N.W.2d 881, 884 (Iowa 1989), that “the tolling provisions of section 614.8 do not apply to statutes of limitation outside of chapter 614. Section 614.8 states that it applies to the ‘times limited for actions herein,’ and is, therefore, limited by its own language to chapter 614.... ”

Perkins, 727 N.W.2d at 380. In short, we held “[t]he Iowa legislature has never indicated any intent to incorporate a tolling provision in chapter 670, and we decline[d] to do so by relying on the broad language of Miller. Id. at 381. We see no reason to revisit our holding in Perkins. See McElroy v. State, 703 N.W.2d 385, 394 (Iowa 2005) (noting “[w]e do not overturn our precedents lightly and will not do so absent a showing the prior decision was clearly erroneous”). Iowa Code section 614.8 does not save Rucker’s claim.

In Perkins, we noted “section 670.5 ha[d] not been amended to reflect the holdings in our eases of Harryman (decided in 1977) and Miller (decided in 1986).... We respectfully urge[d] the legislature to examine the statute and clarify its present status in view of our rulings.” Perkins, 727 N.W.2d at 381 n. 1. Shortly thereafter, the legislature did amend section 670.5. It now states:

Except as provided in section 614.8, a person who claims damages from any municipality or any officer, employee or agent of a municipality for or on account of any wrongful death, loss, or injury ... shall commence an action therefor within two years after the alleged wrongful death, loss or injury.

2007 Iowa Acts, S.F. 384, § 5. The legislature simplified the statute by removing the notice requirement. It also changed the statute so that the tolling provision for minors found in section 614.8 now applies to municipal tort claims. Likewise, section 614.8(2) was amended so that it now reads “the times limited for actions in this chapter, or chapter ... 670 ... are extended in favor of minors, so that they shall have one year from and after attainment of majority within which to file a complaint....” Id. % 2 (emphasis added). These amendments do not change the outcome in this case because they only apply to claims “arising out of an alleged death, loss, or injury occurring on or after July 1, 2007.” Id. § 6.

IY. Conclusion

Rucker’s claim against Humboldt is barred by the statute of limitations because she did not file her claim within two years of the date of her injury. The tolling provision for minors found in section 614.8 does not apply to claims brought under Chapter 670 for injuries occurring before July 1, 2007.

AFFIRMED.

All justices concur except WIGGINS, HECHT, and APPEL, JJ., who dissent.

WIGGINS, Justice

(dissenting).

I dissent. In Miller v. Boone County Hospital, this court held “because section [670.5] is unconstitutional, we hold that Iowa Code chapter 614 is the applicable statute of limitations for all actions arising under chapter [670].” 394 N.W.2d 776, 781 (Iowa 1986). In Perkins v. Dallas Center-Grimes Community School District, the majority resurrected part of Iowa Code section 670.5. 727 N.W.2d 377, 381 (Iowa 2007). There, the majority held if a claimant gave notice of an injury to a governmental entity, the claimant has two years from the date of giving notice to file an action.

In today’s decision, the majority completes section 670.5’s resurrection by holding if the claimant fails to give any notice, a two-year statute of limitations applies. Today’s decision is not only contrary to this court’s holding in Miller, but it also rewrites the statute in a manner inconsistent with the present legislative intent.

Prior to this court’s decision in Miller, the two-year limitation period contained in section 670.5 only applied if the claimant gave notice of an injury. Under the plain language of section 670.5, the statute shortened the limitations period to six months if the claimant did not give notice. Iowa Code § 670.5. In Miller, this court held “[ffeilure to commence an action within six months unless a notice is given within 60 days arbitrarily bars victims of governmental torts while victims of private torts suffer no such bar.” Miller, 394 N.W.2d at 780. Accordingly, in Miller this court held the six-month limitations period unconstitutional. Id.

It is not this court’s function to write a new statute when the court finds a portion of the statute unconstitutional. When the legislature fails to act after this court finds a statute to be unconstitutional, our proper function is to determine what statute of limitations applies under the facts presented.

For the reasons stated in my dissent in Perkins, sections 614.1(2) and 614.8(2) should apply to Rucker’s claim. See Perkins, 727 N.W.2d at 381-83 (Wiggins, J., dissenting). Sections 614.1(2) and 614.8(2) extend the time Rucker can file her claim for one year from and after her attainment of majority. Iowa Code §§ 614.1(2), 614.8(2).

Additionally, the application of chapter 614 to Rucker’s claim is consistent with the present legislative intent. Subsequent to our decision in Perkins, the legislature amended section 670.5 to extend a claimant’s statute of limitations for one year from and after the attainment of majority. 2007 Iowa Acts, S.F. 384, §§ 2, 5.

The majority discounts the enactment of this statute as evidencing legislative intent because its effective date was only to claims “arising out of an alleged death, loss, or injury occurring on or after July 1, 2007.” Id. § 6. I disagree. The legislature had to delay the enactment of the statute to avoid barring the claims of those persons who gave notice under the statute as resurrected by Perkins because those giving notice have two years from the date of giving notice to file a claim, rather than two years from the date of injury to file a claim.

Therefore, because Rucker was a minor, her statute of limitations is extended for one year from and after her attainment of majority. Iowa Code § 614.8(2).

HECHT and APPEL, JJ., join this dissent.


author: TERNUS, Chief Justice.

text:
    STATE of Iowa, Appellee, v. JoAnn Minnie KAMBER, Appellant.
    No. 05-1868.
    Supreme Court of Iowa.
    Aug. 17, 2007.
    Mark C. Smith, State Appellate Defender, Nan Jennisch and Dennis D. Hendrick-son, Assistant State Appellate Defenders, for appellant.
    Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, John P. Sarcone, County Attorney, and John H. Judisch, Assistant County Attorney, for appellee.
   TERNUS, Chief Justice.

The defendant, JoAnn Kamber, was sentenced to five years imprisonment, suspended, with two years probation after pleading guilty to theft in the second degree. Although the defendant had requested a deferred judgment, the district court determined she was ineligible for this sentencing option because she had been given deferred sentences for two pri- or theft convictions. The defendant appeals, claiming the court erred in concluding she was not eligible for a deferred judgment. We agree the defendant’s prior deferred sentences do not render her ineligible for a deferred judgment. Therefore, we vacate her sentence and remand for resentencing.

I.Background Facts and Proceedings.

On September 29, 2005, the defendant entered a plea of guilty to a charge of theft in the second degree in violation of Iowa Code sections 714.1 and 714.2(2) (2005). At her subsequent sentencing, her counsel asked the court to impose a deferred judgment. The State resisted this request, pointing out the defendant had two prior deferred sentences for theft. The State claimed these deferred sentences made the defendant ineligible for a deferred judgment under Iowa Code section 907.3(l)(c), which provides in relevant part:

1. With the consent of the defendant, the court may defer judgment and may place the defendant on probation upon conditions as it may require....
However, this subsection shall not apply if any of the following is true:
c. Prior to the commission of the offense the defendant had been granted a deferred judgment or similar relief, two or more times anywhere in the United States.

Iowa Code § 907.3(l)(c).

The district court concluded deferred sentences were “similar relief’ to deferred judgments within the meaning of section 907.3(l)(c), and therefore, the defendant was ineligible for a deferred judgment. The district court then sentenced the defendant to an indeterminate term not to exceed five years, suspended the sentence, and placed Kamber on probation for two years. The defendant was also fined and ordered to pay costs and fees.

Kamber appealed, asserting the district court erred in concluding she was ineligible for a deferred judgment. Her appeal was transferred to the court of appeals where the defendant’s sentence was affirmed. Like the district court, the court of appeals concluded that a deferred judgment and deferred sentence were “similar relief.” This court granted the defendant’s application for further review.

II. Scope of Review.

This case poses a question of statutory interpretation. Therefore, our review is for correction of errors of law. See State v. Wiederien, 709 N.W.2d 538, 540 (Iowa 2006).

III. Discussion.

The issue before this court is what sentencing options the legislature intended by its enactment of section 907.3(l)(e). We are guided by well-established rules of statutory construction:

[Legislative intent is expressed by what the legislature has said, not [by] what it could or might have said. When a statute’s language is clear, we look no further for meaning than its express terms. Intent may be expressed by the omission, as well as the inclusion, of statutory terms. Put another way,- the express mention of one thing implies the exclusion of other things not specifically mentioned.

State v. Beach, 630 N.W.2d 598, 600 (Iowa 2001) (citations omitted). Another rule of statutory interpretation that is useful in this particular case is the principle that a statute is interpreted as an integrated whole. See State v. Pickett, 671 N.W.2d 866, 870 (Iowa 2003). In other words, we consider the context of the provision at issue and interpret the provision consistent with the entire statute of which it is a part. Id. Finally, we keep in mind that the legislature may define the terms it uses, and when it does, those definitions are the foundation of our analysis. See State v. Durgin, 328 N.W.2d 507, 509 (Iowa 1983).

The parties focus the majority of their arguments on the similarities and dissimilarities of deferred judgments and deferred sentences. Clearly, these sentencing options are alike in some respects, but they are not synonymous. In chapter 907, the legislature has separately defined these terms:

As used in this chapter, unless the context otherwise requires:
1. “Deferred judgment” means a sentencing option whereby both the adjudication of guilt and the imposition of a sentence are deferred by the court....
2. “Deferred sentence ” means a sentencing option whereby the court enters an adjudication of guilt but does not impose a sentence....

Iowa Code § 907.1. While not conclusive, these distinct definitions signal the legislature’s intent that a deferred judgment is something different than a deferred sentence. At the same time, these sentencing options are somewhat similar in that they both allow a defendant to avoid the imposition of a sentence.

We turn, then, to the specific statutory provision we must interpret and examine the context within which the language at issue appears. The statute in which the subject language is found, section 907.3(1), has several paragraphs that limit a defendant’s eligibility for a deferred judgment. We quote portions of the statute that shed light on the meaning of paragraph (c):

1. With the consent of the defendant, the court may defer judgment and may place the defendant on probation upon conditions as it may require....
However, this subsection shall not apply if any of the following is true:
c. Prior to the commission of the offense the defendant had been granted a deferred judgment or similar relief, two or more times anywhere in the United States.
d. Prior to the commission of the offense the defendant had been granted a deferred judgment or similar relief in a felony prosecution anywhere in the United States within the preceding five years....
g. The offense is a violation of section 321J.2 and the person has been convicted of a violation of that section or the person’s driver’s license has been revoked under chapter 321J, and any of the following apply:
(3) If the defendant has previously received a deferred judgment or sentence for a violation of section 321J.2, subsection 1, or for a violation of a statute in another state substantially corresponding to section 321J.2, subsection 1.
h. Prior to the commission of the offense the defendant had been granted a deferred judgment or deferred sen- fence for a violation of section 708.2 or 708.2A which was issued on a domestic abuse assault, or was granted similar relief anywhere in the United States

Id. § 907.3(1) (emphasis added).

In another subsection of the same statute, the legislature states the circumstances under which the court may defer sentencing. See id. § 907.3(2). This subsection provides that the court may not defer sentence for a violation of section 708.2A “if the defendant has previously received a deferred judgment or sentence for a violation of section 708.2 or 708.2A which was issued on a domestic abuse assault, or if similar relief was granted anywhere in the United States ....” Id. § 907.3(2)(a) (emphasis added). Similarly, a deferred sentence is prohibited “[i]f the defendant has previously received a deferred judgment or sentence for a violation of section 321J.2, subsection 1, or for a violation of a statute in another state substantially corresponding to section 321J.2, subsection 1.” Id. § 907.3(2)(e )(3) (emphasis added).

When the statute is considered as an integrated whole, it is apparent that when the legislature intended to include both deferred judgments and deferred sentences, it expressly referred to both sentencing options. This view leads us to the conclusion that when the legislature did not use both terms, but only “deferred judgment,” it meant only deferred judgments and not deferred sentences. Accordingly, we think the legislature’s use of the phrase “similar relief’ in section 907.3(l)(c) was not a vague attempt to include deferred sentences within the scope of that provision. Rather, the phrase “similar relief’ was meant to describe sentences from “anywhere in the United States” in which “both the adjudication of guilt and the imposition of a sentence” were deferred even though the foreign jurisdiction may refer to such relief by a name other than “deferred judgment.”

IV. Summary and Disposition.

We hold section 907.3(l)(c) prohibits a defendant who has previously received two or more deferred judgments from obtaining another deferred judgment, but it does not prohibit a defendant who has only received two or more deferred sentences for prior offenses from receiving a deferred judgment. The district court erred in refusing to consider the option of a deferred judgment when it sentenced the defendant because the defendant’s prior convictions resulted in deferred sentences, not deferred judgments. We vacate the court of appeals’ contrary decision, vacate the defendant’s sentence, and remand this case for resentencing.

DECISION OF COURT OF APPEALS VACATED. SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.


author: WIGGINS, Justice. APPEL, J.

text:
    Robert SWANSON, Appellant, v. CIVIL COMMITMENT UNIT FOR SEX OFFENDERS (CCUSO) and Iowa Department of Human Services, Appellees.
    No. 05-0845.
    Supreme Court of Iowa.
    Aug. 17, 2007.

      Mark C. Smith, State Appellate Defender, and Matthew S. Sheeley, Assistant Public Defender, for appellant.

      Thomas J. Miller, Attorney General, and Mark Hunacek, Deputy Attorney General, for appellees.
   WIGGINS, Justice.

In this appeal, Robert Swanson, a patient in the Civil Commitment Unit for Sexual Offenders (CCUSO), seeks a ruling that the district court erred in denying his petition for judicial review. He claims he meets the definition of an “aggrieved person” under Iowa Code chapter 17A (2003) and that to deny him a contested case hearing violates his due process rights. Because we agree with the district court that Swanson is not an aggrieved person under chapter 17A and to deny him a contested case hearing does not violate his due process rights, we affirm the judgment of the district court dismissing his petition for judicial review.

I. Background Facts and Proceedings.

The Iowa department of human services (DHS) operates CCUSO. DHS presently houses Swanson in CCUSO’s facility. CCUSO “was created by the 1998 Sexually Violent Predators Act of Iowa to provide secure, inpatient treatment for sexual offenders who are believed to be a high risk for sexually reoffending.” Iowa Dep’t of Human Servs., Civil Commitment Unit for Sexual Offenders, http://www.dhs.state.ia. us/d hs_organization/other/civil_eommitment.html (2000) (last visited Aug. 14, 2007) [hereinafter DHS, CCUSO ].

Patients who are housed at the CCUSO facility are civilly committed under Iowa’s Sexually Violent Predator Act, chapter 229A of the Iowa Code. The Iowa legislature amended chapter 229A in 2002 directing DHS to “adopt rules pursuant to chapter 17A necessary to administer this chapter.” Iowa Code § 229A.15B (2003). Currently, DHS has not promulgated any rules. Instead, CCUSO developed a “Patient Handbook and Orientation Manual.” The handbook provides the rules and policies of CCUSO.

The handbook begins by explaining the mission and overview of the program. The mission of CCUSO is “to provide treatment for persons involuntarily committed to [CCUSO’s] care as sexual offenders who are deemed likely to reoffend. Treatment is the key objective of this program.” CCUSO patients “are afforded the same rights as other civilly committed patients.” The handbook presents CCUSO patients with twenty-four separate and distinct rights. Some of these rights are:

• the rights of full citizenship except as may be specifically limited by the constitution or statute;
• the right to file application for a writ of habeas corpus and the right to petition the court for release; and
• the right to an attorney and to judicial review of the hospitalization.

According to DHS, “[t]he program is structured to provide intrinsic incentives to motivate cooperation with treatment programming.” DHS, CCUSO. In order to accomplish this goal, the handbook states CCUSO created a phase system which “recognize[s] patients’ progress in the program and [ ] provide[s] further motivation to cooperate with program activities.”

The handbook explains the five phases of the program. Each phase adheres to a general time line of progression from one phase to the next. The first phase is the assessment and observation phase. The handbook describes this phase as the time patients and program staff have an opportunity to become acquainted and to develop a clear understanding about program expectations and rules. A patient is able to move to phase two once the patient has demonstrated a stable and cooperative behavioral pattern and completes each of the following requirements: (1) completion of all psychological testing; (2) admission of some sexual offense or completion of a clean polygraph; (3) completion of relaxation training and basic cognitive skills training; (4) orientation to the program and completion of the patient handbook; (5) thirty days of good behavior free from any major infractions; and (6) signing a phase two contract with request for placement in phase two.

In the second phase, the patient enters the core phase. The patient participates in a minimum one-year curriculum of psycho-educational groups. These groups are designed to teach concepts and skills that are fundamental to learning to control sexual impulses. In order to advance to level three, the patient must pass an oral or written exam over the curriculum and complete the following requirements: (1) satisfactory completion of four quarters of psycho-educational classes; (2) pass polygraph exams concerning minor victims, adult victims, and paraphilias; (3) freedom from major behavioral reports and close supervision for ninety days; (4) no ratings lower than three on the last ninety-day review; and (5) signing a phase three contract and submitting a written request for placement in phase three.

In the third phase, the patient enters the advanced phase. In this phase, the patient will work on applying the principles and concepts learned in phase two and achieving the goals established in an individualized treatment plan. Basic requirements for advancement are: (1) no ratings lower than five on the last ninety-day review; (2) absence of any major behavioral reports for the last four months; (3) completion of specific offense polygraphs, if requested; (4) development of an individualized treatment plan; (5) completion of victim sheets and victim letters; and (6) signing a phase four contract and submitting a written request for placement in phase four.

If the patient advances from phase three, the patient enters phase four, the honor phase. This phase requires the patient to demonstrate a high level of cooperation, insight, motivation, and application of the basic principles taught in the program. The patient is expected to model appropriate behavior and be able to function as a peer facilitator or leader in group discussion. In order to move to the fifth phase, the patient must meet the following requirements: (1) no ratings less than eight on the last ninety-day review; (2) absence of any major behavioral reports for the last six months; (3) completion of a detailed relapse prevention plan; (4) successful completion of a polygraph exam regarding recent sexual fantasies and behaviors; (5) demonstration of good sexual control and nondeviant sexual responses and absence of problematic sexual behavior for one year; (6) submission of a written request for phase five placement and signing the phase five contract; and (7) placement in a transitional living facility by the committing court.

Finally, the patient enters the fifth phase, the transition phase. Here, the patient is gradually given increasing opportunities to live in less restrictive settings. The patient is monitored closely, assessed clinically, and provided support as the patient takes on increasing responsibility for the patient’s own care. A patient is recommended to the court for final release from the program only after meeting the following requirements: (1) demonstrate the establishment of a strong social support network; (2) successfully maintain employment, or participation in a volunteer program if retired or unable to work, for at least one year; (3) demonstrate adequate financial support; (4) maintain contact with transitional counselors for two years; (5) fulfill all requirements included in the patient’s release contract for at least two years; (6) submit to and pass all random physiological assessments requested by the transitional counselors; and (7) complete a final discharge interview with the CCUSO staff and be recommended for release.

As one of many disciplinary procedures, CCUSO created a level system to provide rewards and increasing privileges to patients who participate in the treatment program and remain free of behavioral problems. The expectation of the CCUSO program is that patients who avoid behavioral reports and suspensions will advance rapidly to level four. As the level increases, so does the extent of the privileges. For example, a patient on level one may only make emergency phone calls and is only allowed legal visits without the prior approval of the director or his designee. In contrast, a patient who has advanced to level four is allowed unrestricted phone calls, except during treatment times, and contact visits twice a week with no approval specified.

In order for a patient to move from level one to level two, the patient must maintain seven consecutive days of good behavior, free of rule violations and suspensions. To move from level two to level three, the patient must maintain fourteen continuous days of good behavior, free of all unit rule infractions and suspensions. To move from level three to level four, the patient must maintain sixty days of continuous good behavior, free of infractions and suspensions.

CCUSO has three levels of behavior rule violations: minor, major, and felony. Minor violations include such things as violation of property, meal, medication, mail, clothing, or phone rules set out in the handbook. Major violations include such things as disobeying an order, disrespect, theft, misuse of property, disruptive behavior, debt incurrence, or harassment. Finally, felony infractions include assault, battery, sexual assault, escape or attempted escape, possession of dangerous contraband, or arson.

The handbook explains to the patient how violations are assessed and appealed. It states:

Violations of program rules can result in a suspension of level privileges, a loss of canteen allowance, loss of privileges due to placement in a lower level in the program, or other behavioral consequences depending upon the violation. The decision regarding such consequences will depend upon the type of violation but will generally be made by the Behavioral Investigator in accordance with CCUSO policies and procedures .... Rule violations will generally result in a suspension of level privileges by being restricted to your room for 2 to 8 hours without receiving a behavioral report. Treatment Program Supervisors reserve the right to increase or decrease sanctions imposed by staff as the facts and circumstances warrant it. Continuing behavior problems can result in additional sanctions, up to and including placement in seclusion.... The Investigator will gather the relevant facts and make a decision regarding any consequences deemed appropriate. Such decisions may be appealed to the CCU-SO Director or a designee, by the completion of a written appeal that summarizes the basis for the appeal within S days of the report. The appeal will be answered in writing by the Director or a designee within ten working days of the decision unless the need for a continuance of the final decision is docu mented prior to the expiration of the ten working-day period.

Further, patients have access to grievance procedures. A patient first is to attempt to resolve any concerns about mistreatment with the individual CCUSO staff who the patient feels acted wrongly. If the resolution is not satisfactory to the patient, a written grievance can be submitted to the supervisor. If this is unsatisfactory, the patient can submit a detailed written grievance to the director or director’s designee who will make a decision within three weeks of receiving it. There is no further appeal, but the handbook provides the patient may take the complaint to the courts if the patient so chooses.

From May 8 to November 19, 2003, Swanson was the subject of four behavioral reports for rule violations. Swanson appealed three behavioral reports to DHS. He claimed his due process rights were violated and requested that the department provide him with a contested case hearing.

The State filed motions to dismiss all three of Swanson’s appeals. The State claimed there was no basis under either Iowa Code chapter 17A, Iowa Administrative Code 441-chapter 7, or Iowa Administrative Code 481-chapter 10 to grant Swanson a contested case hearing. Swanson resisted the motions to dismiss.

The administrative law judge issued three identical proposed decisions dismissing each of Swanson’s requests for a contested case hearing. In each proposed decision the administrative law judge found the “[h]andbook [does] not expressly provide a CCUSO patient, after exhausting internal review procedures, with the right to appeal a behavioral report and disciplinary consequences pursuant to Iowa Code Chapter 17A or 441 IAC Chapter 7.” The administrative law judge further found Swanson was not an aggrieved person as contemplated by Iowa Administrative Code chapter 441. However, the administrative law judge recognized he had no authority to determine whether “by not providing [Swanson] with a contested case proceeding, [Swanson] is being denied due process” and preserved this issue for judicial review.

In all three cases Swanson requested review of the administrative law judge’s proposed decision. In response to this request, DHS adopted the proposed decision of the administrative law judge as its final decision in all three cases.

Swanson petitioned for judicial review of the agency’s decision and for equitable and declaratory relief. Relevant to this appeal Swanson claims, contrary to the administrative law judge’s findings, he is an aggrieved person for purposes of Iowa Administrative Code rule 441-7.1(9) and DHS’s action in denying his request for a contested case hearing violates his due process rights.

The district court affirmed the decision of the agency and dismissed the petition for judicial review. The district court held Swanson was not entitled to a contested case hearing because he was not an aggrieved person as defined by Iowa Administrative Code rule 441-7.1(9). The court also ruled Swanson’s due process rights were not violated when he was ■ denied a contested case hearing.

Swanson appeals the decision of the district court to our court.

II. Issues.

Swanson raises two issues on appeal. First, whether Swanson is an aggrieved person for purposes of contested case review under Iowa Administrative Code rule 441-7.1(9). Second, whether the denial of his request for a contested case hearing violates his due process rights.

III. Scope of Review.

Swanson claims the district court’s dismissal of his judicial review petition was an error of law because the agency’s action is reviewable under the judicial review provisions of Iowa Code chapter 17A. Therefore, our review of this claim is for correction of errors at law. Lewis Central Educ. Ass’n v. Iowa Bd. of Educ. Exam’rs, 625 N.W.2d 687, 689 (Iowa 2001).

Additionally, Swanson has raised and preserved constitutional issues relating to the denial of a contested case hearing. This court reviews constitutional issues raised in an agency proceeding de novo. ABC Disposal Sys., Inc. v. Dep’t of Natural Res., 681 N.W.2d 596, 605 (Iowa 2004). Under Iowa Code section 17A.19(10)(a) this court can grant relief from agency action if we determine a person’s substantial rights have been prejudiced because the agency’s action is unconstitutional on its face or as applied. Iowa Code § 17A.19(10)(a). This court will not give any deference to the agency’s view of the constitutionality of its statute or rule because this is exclusively within the role of the judiciary. ABC Disposal Sys., Inc., 681 N.W.2d at 605 (citing Iowa Code § 17A.19(11)(&)).

IV. Analysis.

A. Whether Swanson is an aggrieved person for purposes of a contested case review. Iowa Code section 17A.19(1) states: “A person or party who has exhausted all adequate administrative remedies and who is aggrieved or adversely affected by any final agency action is entitled to judicial review thereof under this chapter.” Iowa Code § 17A.19(1). In its rules, DHS defined “aggrieved person” as:

[A] person against whom the department has taken an adverse action. This includes a person who meets any of the following conditions:
9. For mental health and developmental disabilities, a person:
• Whose application for statement payment program benefits or state community mental health or mental retardation service funds has been denied or has not been acted upon in a timely manner.
• Who has been notified that there will be a reduction or cancellation of state payment program benefits or state community mental health or mental retardation service funds.
Individuals and providers that are not listed above may meet the definition of an aggrieved person if the department has taken an adverse action against that individual or provider.

Iowa Admin. Code r. 441-7.1(9) (emphasis added).

Neither party contends that DHS’s interpretation of “aggrieved person” is contrary to section 17A.19(1) or that Swanson does not suffer from a mental disability as required by the rule.

We will assume for the purposes of this decision, that DHS’s issuance and investigation of the behavioral reports and the sanctions that follow, are agency action. Therefore, the question we must decide is whether the behavioral reports were adverse to or aggrieved Swanson. If so, Swanson is entitled to a contested case hearing.

Swanson argues he is aggrieved because the long-term consequence of the major behavioral reports is a delay in his progression from one treatment phase to another. Moreover, the reports become part of a permanent record while he is in the treatment program. We disagree that Swanson is aggrieved.

One of the goals of Iowa Code chapter 229A is to provide treatment to a person placed in CCUSO. In re Detention of Betsworth, 711 N.W.2d 280, 288-89 (Iowa 2006). The handbook states the treatment used by the CCUSO staff is based on the cognitive-behavioral model. The goal of the treatment is to change a patient’s behavior so the patient no longer suffers from a mental abnormality, which makes the person likely to engage in predatory acts constituting sexually violent offenses. Successful treatment allows for the patient’s safe release or placement in a transitional program. Iowa Code § 229A.8. To achieve this treatment goal, the program consists of a series of phases. The patient is rewarded with advancement from phase to phase by completing all the requirements of each phase.

A patient’s progress through each phase can be lengthened if the patient fails to meet a goal of the phase or has behavioral problems. There is no set time in which a person is expected to complete the program. Chapter 229A does not require as a prerequisite to entering CCUSO that the treatment will be successful. In re Detention of Darling, 712 N.W.2d 98, 101 (Iowa 2006). If a patient does not follow the steps required in each phase or continually has behavioral problems, the patient will not progress through the phases. The failure of a person to progress because of the issuance of a major behavioral report is not an adverse action, but an integral part of the treatment under a cognitive-behavioral model. See Youngberg v. Romeo, 457 U.S. 307, 324-25, 102 S.Ct. 2452, 2463, 73 L.Ed.2d 28, 43 (1982) (holding “administrators [of a state mental institution], and particularly professional personnel, should not be required to make each decision [regarding the care of a patient] in the shadow of an action for damages”).

Consequently, Swanson is not an aggrieved person for purposes of contested case review under Iowa Administrative Code rule 441-7.1(9).

B. Whether the denial of Swanson’s request for a contested case hearing violates his due process rights. Swanson claims the denial of a judicial review proceeding violates his due process rights as guaranteed by the Fourteenth Amendment to the United States Constitution and article one, section nine of the Iowa Constitution. He argues the major behavioral reports he received necessarily lengthened the duration of his involuntary commitment at CCUSO. Swanson argues this practice violates due process because it denies him and other CCUSO residents meaningful access to an impartial tribunal.

The Due Process Clause of the United States Constitution prohibits states from “depriving] any person of life, liberty, or property without due process of law.” U.S. Const, amend. XIV, § 1. Although we have traditionally considered the federal and state due process provisions to be equal in scope, import, and purpose in deciding these constitutional issues, interpretations of the federal Due Process Clause are not binding on us when we are called upon to determine the constitutionality of Iowa statutes challenged under our own due process clause. Callender v. Skiles, 591 N.W.2d 182, 187 (Iowa 1999). However, our discussion of the Due Process Clause of the Fourteenth Amendment is equally applicable to Swanson’s Iowa constitutional claim because Swanson has not given us any reason to interpret the federal and Iowa due process clauses differently. State v. Bower, 725 N.W.2d 435, 441 (Iowa 2006).

1. Substantive due process.

Swanson claims he is being denied his fundamental right to access the courts. The right to access the courts typically concerns the right to counsel, Gideon v. Wainwright, 372 U.S. 335, 342-43, 83 S.Ct. 792, 795-96, 9 L.Ed.2d 799, 804 (1963), the right to state-provided transcripts for indigent persons, Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 590-91, 100 L.Ed. 891, 899 (1956), the right to file for divorce without the obligation of filing fees for indigent persons, Boddie v. Connecticut, 401 U.S. 371, 380-81, 91 S.Ct. 780, 787, 28 L.Ed.2d 113, 120-21 (1971), and prisoners’ rights to have adequate libraries and trained assistance, Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72, 83 (1977). In order to proceed under a substantive due process analysis concerning the right to access the courts, Swanson must specify a constitutionally required avenue that he has been denied. Swanson only argues he has been denied access to the courts because he has been denied proper procedure. Accordingly, we can only consider his procedural due process arguments.

2. Procedural due process.

“When a state action threatens to deprive a person of a protected liberty or property interest, a person is entitled to procedural due process.” Meyer v. Jones, 696 N.W.2d 611, 614 (Iowa 2005). To determine what process is due a person who has been deprived of a protected liberty or property interest we have adopted the test set out by the Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976). See State ex rel. Hamilton v. Snodgrass, 325 N.W.2d 740, 742 (Iowa 1982) (adopting and implementing the Mathews balancing test). In Mathews the Court held in order to determine what the “specific dictates of due process generally requires,” the court must consider three factors: (1) “the private interest that will be affected by the official action;” (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;” and (3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335, 96 S.Ct. at 903, 47 L.Ed.2d at 33.

We have found “no constitutional bar to the civil confinement of sexually violent predators with untreatable conditions when confinement is necessary to protect the public.” In re Detention of Darling, 712 N.W.2d at 101. However, those who are involuntarily committed retain a liberty interest in the requirements and procedures of chapter 229A. See In re M. T., 625 N.W.2d 702, 706 (Iowa 2001) (finding a person’s “liberty interests are at stake at an involuntary commitment hearing,” and “[therefore it is imperative that the statutory requirements and procedures be followed.”). Further, as the State concedes, the Supreme Court found the State has

a duty to provide adequate food, shelter, clothing, and medical care.... [This is because a patient involuntarily committed in a state institution] enjoys [the] constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests.

Youngberg, 457 U.S. at 324, 102 S.Ct. at 2462, 73 L.Ed.2d at 42-43. However, the Constitution only requires us to make certain that professional judgment was in fact exercised. We are not required, nor is it appropriate for us to specify which of several professionally acceptable choices should have been made. Finally, “a State may confer procedural protections of liberty interests that extend beyond those minimally required by the Constitution of the United States.” Mills v. Rogers, 457 U.S. 291, 300, 102 S.Ct. 2442, 2449, 73 L.Ed.2d 16, 23 (1982).

In considering the first factor of Mathews, the private interest that will be affected by the official action, Swanson argues “the handbook creates a liberty interest because it confers patients with the right to complete the treatment program within a minimum time frame — a time frame that is automatically extended upon receipt of a major behavioral report.” As previously discussed in this decision, the handbook does not create a minimum or maximum time frame for release from the treatment program. The handbook merely sets forth certain behaviors Swanson must achieve before he can graduate from the program. The time in which to complete the program is wholly dependant on the progress made by Swanson. Accordingly, Swanson has not identified a liberty interest beyond those discussed in Youngberg.

Under the second factor, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, is de minimis. The handbook provides Swanson with appropriate procedural safeguards. The handbook gives a patient the right to appeal a behavioral report. A behavioral report is investigated and the director, without a documented need for a continuance, must decide the appeal within ten working days of the appeal. Further, the patient has access to grievance procedures if he is dissatisfied with the appeals process or any other matter. If the resolution of the grievance is not satisfactory, the patient can submit a detailed written grievance to the director or director’s des-ignee who will make a decision within three weeks of receiving the written grievance. There is no further appeal of a grievance, but the handbook provides that a patient may take the complaint to the courts if the patient so chooses. These procedural safeguards ensure that there is a low risk of an erroneous deprivation of a patient’s liberty interest to “conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests.” Youngberg, 457 U.S. at 324, 102 S.Ct. at 2462, 73 L.Ed.2d at 42-43. In fact, during one of Swanson’s appeals the investigator dismissed Swanson’s misuse of property charge even though he fashioned a paper clip into a tool which was approximately four inches long, with a one-inch curved hook.

As to the third factor, the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail, it would be too costly for DHS to conduct judicial review hearings on every behavioral report. In this case alone, three contested case proceedings would be required with the possibility of judicial and appellate review of the contested cases. Not only would these proceedings be costly financially, they would interrupt Swanson’s treatment while the proceedings work through the court system.

Consequently, applying the Mathews factors we find no additional process is necessary to satisfy Swanson’s procedural due process rights under the federal and state constitutions.

V. Disposition.

Because Swanson is not an aggrieved person under chapter 17A and his due process rights were not violated when he was denied a contested case hearing, we affirm the judgment of the district court dismissing his petition for judicial review.

AFFIRMED.

All justices concur except APPEL, J., who concurs specially.

APPEL, J.

(specially concurring).

I specially concur in the outcome of this case. I write separately because I believe the majority applies the wrong legal framework to resolve the issue presented in this appeal.

In his petition, Swanson seeks judicial review of a final agency action, which held that he was not entitled to a contested case hearing in connection with disciplinary matters under the applicable administrative procedures. He desires an evidentia-ry hearing before the agency to determine the validity of the underlying discipline.

These claims were brought under the Iowa Administrative Procedures Act (IAPA). When a party seeks review of final agency action under the IAPA, two separate and distinct questions arise. The first question is whether the party seeking judicial review is “aggrieved” under the IAPA. The second question involves a judicial determination of the type of agency action involved, specifically, whether the matter involves a contested case proceeding or whether the matter involves “other agency action.” See Hurd v. Iowa Dep’t of Human Servs., 580 N.W.2d 383, 387-88 (Iowa 1998); Polk County v. Iowa State Appeal Bd., 330 N.W.2d 267, 277 (Iowa 1983).

In this case, the first question is whether Swanson was aggrieved by the final agency action, namely, the imposition of disciplinary sanctions. In my view, Swanson is so aggrieved. It is undisputed that as a result of the disciplinary reports, the department reduced Swanson’s level of privileges at the facility. In addition, Swanson was adversely affected in that the existence of disciplinary reports, even if they might not automatically or necessarily extend his confinement, would constitute a stigma that would make his early release less likely.

Swanson’s legal interest, therefore, in challenging the department’s imposition of discipline was sufficient to confer standing under the IAPA. The standard for determining whether a person is aggrieved under the IAPA is not demanding.

First, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision.... Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specifically and injuriously affected by the decision.

City of Des Moines v. Pub. Employment Relations Bd., 275 N.W.2d 753, 759 (Iowa 1979). I believe that Swanson has met this test.

The State argues that the discipline meted out against Swanson is “therapy” and as a result, Swanson cannot be considered “aggrieved” as a matter of law. There is nothing in the record to suggest that professional medical judgment was brought to bear on any of the disciplinary proceedings against Swanson. The proceedings were adjudications in the sense that they involved application of established principles of conduct to past actions. Higgs v. Carver, 286 F.3d 437, 438 (7th Cir.2002). The processes invoked under the handbook are akin to prison disciplinary proceedings, where a system of rewards and punishment are established to control behavior. As a result, resort to Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), misses the mark.

But the determination that Swanson met the relatively low requirements of “an aggrieved person” under the IAPA is not the end of the inquiry. Even assuming that Swanson was aggrieved, the question remains whether he was entitled to a contested case hearing under the IAPA. See Iowa Code § 17A.2(5) (2005) (definition of contested case). That is a fundamentally different question than whether he was aggrieved by the final agency action.

Swanson appears to claim he was entitled to an evidentiary hearing under the handbook. There is nothing in the handbook, however, that suggests that he is entitled to an evidentiary hearing in connection with disciplinary proceedings. As a result, there is no basis for Swanson’s claim that he was afforded the right to an evidentiary hearing by the agency’s adoption of a discretionary policy.

Under the IAPA, however, an aggrieved party is entitled to a contested case proceeding if he or she is entitled to an evi-dentiary hearing by statute or by constitution. Hurd, 580 N.W.2d at 388. Swanson does not claim that he was entitled to an evidentiary hearing by statute, and, as a result, his sole remaining argument is that, as a matter of constitutional law, he is entitled to an evidentiary hearing.

Whether due process entitles a person, who is subject to civil confinement under sexual predator statutes, to an evidentiary hearing on disciplinary matters is a question that has not been addressed by the courts. In the case of Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), however, a divided United States Supreme Court held that placing a prisoner in solitary confinement as a result of a disciplinary proceeding did not give rise to a liberty interest sufficient to trigger due process protections. The majority held that the change in privileges was insufficient to give rise to a liberty interest. The court further concluded that the mere fact that the disciplinary proceedings might be a factor in the discretionary decision to release the prisoner on parole was too attenuated to give rise to due process protections. Id. at 487, 115 S.Ct. at 2302, 132 L.Ed.2d at 432. Four justices dissented in Sandin, noting, among other things, that the stigma associated with the disciplinary proceedings was sufficient to give rise to a liberty interest.

The Sandin case is not directly applicable, however, as this case presents a civil commitment rather than a penal context. Nonetheless, based on Sandin, I conclude that the United States Supreme Court would reject any claim that the reduction in privileges experienced by Swanson as a result of the disciplinary proceedings in the civil commitment context gives rise to a liberty interest protected by due process. The question of whether the stigma that arises from the disciplinary proceedings is sufficient under the facts and circumstances of this case to give rise to a liberty interest is a somewhat closer question. It is undisputed that a person confined as a result of Iowa’s sexual predator statute, unlike the prisoner in Sandin, does not have a specific release date. But does this clear distinction make the stigma of discipline in this case even more powerful than that in Sandin?

In light of the strong language of the majority opinion in Sandin, however, I conclude that if the matter were presented to the United States Supreme Court today, the court would hold that the mere stigma associated with disciplinary proceedings is insufficient to give rise to a liberty interest and therefore does not form the basis for a contested case proceeding. Swanson has not argued that the interpretation of the due process clause under the Iowa Constitution should be approached differently and, as a result, we treat its proper interpretation as identical with its federal counterpart. Pfister v. Iowa Dist. CL, 688 N.W.2d 790, 795 (Iowa 2004). Therefore, Swanson loses on the central question he has presented on appeal — whether he was entitled to a contested case proceeding before the agency.

In this case, Swanson did not claim that he was entitled to judicial review of “other agency action” under the IAPA. The language in the majority opinion implying that Swanson was not sufficiently aggrieved under the IAPA to invoke review of “other agency action” is, in my view, incorrect and, in any event, is not necessary to the outcome of this case.

      . After the commencement of this appeal, on May 12, 2004, DHS amended Iowa Administrative Code rule 441-7.5(2)(a )(17) to state "[a] hearing shall not be granted when: [t]he appeal involves patient treatment interventions outlined in the patient handbook of the civil commitment unit for sexual offenders.” Iowa Admin. Code r. 441-7.5(2)(a )(17) (emphasis added).


author: MILLER, J.

text:
    LIBERTY BANK, F.S.B., Plaintiff-Appellee, v. BEST LITHO, INC. and ED Garcia, et al., Defendants-Appellants.
    No. 05-0791.
    Court of Appeals of Iowa.
    April 25, 2007.

      Andrew B. Howie and Michael P. Malla-ney of Hudson, Mallaney & Shindler, P.C., West Des Moines, for appellants.
    Bernard L. Spaeth, Thomas H. Burke, and Nicholas Cooper of Whitfield & Eddy, P.L.C., Des Moines, for appellee.
    Heard by SACKETT, C.J., and VOGEL and MILLER, JJ.
   MILLER, J.

Best Litho, Inc. and Ed Garcia, individually, Air Filter Engineers, Inc., De-signPoint, Inc. and Les M. McCoy, individually, and Davis Delivery Service, Inc. (collectively “renters”) appeal, following grants of interlocutory appeals, from the district court’s rulings denying their motions for summary judgment that asserted a lack of personal jurisdiction. We affirm and remand for further proceedings.

I. BACKGROUND FACTS AND PROCEEDINGS.

The summary judgment records reveal the following undisputed facts. Each renter entered into an Equipment Rental Agreement with NorVergence, Inc., a New Jersey corporation, to lease communications equipment. The rental agreements authorized NorVergence to assign its interest without notifying the renters and provided that the assignee would have the same rights as NorVergence. After the parties executed the rental agreements, NorVergence assigned the agreements to Liberty Bank, F.S.B., a federal savings bank with its primary place of business in West Des Moines, Iowa. NorVergence sent the renters notice the rental agreements had been assigned to Liberty Bank. The Notice of Assignment stated that “[a]ll terms and conditions remain unchanged with the exception that” payments must be made to Liberty Bank in Des Moines, Iowa.

Liberty Bank filed breach of contract suits in Polk County, Iowa, alleging the renters failed to make payments pursuant to the rental agreements. None of the renters are residents of Iowa. However, each rental agreement contained the following identical forum-selection clause in bold:

APPLICABLE LAW: ... This agreement shall be governed by, construed and enforced in accordance with the laws of the State in which Renter’s principal offices are located or, if this Lease is assigned by Renter, the State in which the assignee’s principal offices are located ... and all legal actions relating to this Lease shall be venued exclusively in a state or federal court located within that State, such court to be chosen at Rentor or Renter’s assignee’s sole option. ...

Each renter filed an answer, denying the material allegations of the petitions and asserting lack of personal jurisdiction as an affirmative defense. The renters subsequently filed motions for summary judgment, seeking dismissal of the actions for lack of personal jurisdiction. The district court denied each of the motions.

The renters filed applications for interlocutory review, which our supreme court granted and consolidated the cases for purposes of appeal. The renters claim the district court erred in concluding that the forum selection clause can serve as the basis for personal jurisdiction. They argue the forum selection clause is unenforceable because the clause is indefinite and open-ended. The renters further argue they lack the necessary minimum contacts with the State of Iowa to establish personal jurisdiction. Liberty Bank claims the district court was correct in its conclusion the forum selection clause is enforceable, and therefore, a minimum contacts analysis is not necessary. Liberty Bank further claims the renters waived any defense of lack of personal jurisdiction, as their conduct does not reflect a continuing objection to the exercise of personal jurisdiction.

II. SCOPE AND STANDARDS OF REVIEW.

We review the district court’s summary judgment rulings for the correction of errors at law. Iowa R.App. P. 6.4; Faeth v. State Farm Mut. Auto. Ins. Co., 707 N.W.2d 328, 331 (Iowa 2005). Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. Iowa R. Civ. P. 1.981(3); Grinnell Mut. Reins. Co. v. Jungling, 654 N.W.2d 530, 535 (Iowa 2002). A fact question arises if reasonable minds can differ on how the issue should be resolved. Grinnell Mut. Reins., 654 N.W.2d at 535. No fact question arises if the only conflict concerns legal consequences flowing from undisputed facts. Id.

III. MERITS.

“The Due Process Clause of the Fourteenth Amendment to the federal constitution limits the power of a state to assert personal jurisdiction over a nonresident defendant to a lawsuit.” Ross v. First Sav. Bank, 675 N.W.2d 812, 815 (Iowa 2004). “ ‘The personal jurisdiction requirement recognizes and protects an individual liberty interest.’ ” EFCO Corp. v. Norman Highway Constructors, Inc., 606 N.W.2d 297, 299 (Iowa 2000) (quoting Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702-03, 102 S.Ct. 2099, 2104-05, 72 L.Ed.2d 492, 501-02 (1982)). “‘Because the requirement of personal jurisdiction represents ... an individual right,’ ” it can be waived. Id. (quoting Insurance Corp. of Ireland, 456 U.S. at 702-03, 102 S.Ct. at 2104-05, 72 L.Ed.2d at 501-02). Thus, personal jurisdiction can be established by consent. Id. (noting parties to a contract may agree in advance to submit to the jurisdiction of a given court); see also Joseph L. Wilmotte & Co. v. Rosenman Bros., 258 N.W.2d 317, 329 (Iowa 1977); Oakes v. Oakes, 255 Iowa 1315, 1318, 125 N.W.2d 835, 838 (1964). Forum selection clauses can constitute sufficient consent by a nonresident defendant to the exercise of personal jurisdiction by a foreign court. EFCO, 606 N.W.2d at 299.

Forum selection clauses are “pri-ma facie valid and should be enforced unless enforcement is shown by the resisting party to be ‘unreasonable’ under the circumstances.” M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 1913, 32 L.Ed.2d 513, 520 (1972) (footnote omitted). The rental agreements at issue in this matter contained forum selection clauses. Therefore, Liberty Bank has sustained its initial burden of establishing a prima facie showing of personal jurisdiction. See OmniLingua, Inc. v. Great Golf Resorts of World, Inc., 500 N.W.2d 721, 723 (Iowa Ct.App.1993) (stating plaintiff has the burden to establish the requisite jurisdiction). When plaintiff makes a pri-ma facie showing of personal jurisdiction, the burden shifts to the defendant to produce evidence to rebut or overcome it. Id.

A forum selection clause “should control absent a strong showing that it should be set aside.” M/S Bremen, 407 U.S. at 15, 92 S.Ct. at 1916, 32 L.Ed.2d at 523. A choice of forum made in an “arm’s-length negotiation by experienced and sophisticated businessmen” should be honored by the parties and enforced by the courts “absent some compelling and countervailing reason.” Id. at 12, 92 S.Ct. at 1914, 32 L.Ed.2d at 521. In order for the forum selection clause to be unenforceable, the renters must establish that “enforcement would be unreasonable and unjust” or that the clause is “invalid for such reasons as fraud or overreaching.” Id. at 15, 92 S.Ct. at 1916, 32 L.Ed.2d at 523. It is “incumbent on the party seeking to escape his contract to show that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court.” Id. at 18, 92 S.Ct. at 1917, 32 L.Ed.2d at 525. The renters argue that enforcement of the forum selection clause in the rental agreements is unreasonable because the clause is indefinite and open-ended, and thus fundamentally unfair.

In support of their argument that the forum selection clause is unreasonable, the renters argue it was not foreseeable at the time the rental agreements were executed that they would be haled into court in Iowa. They urge they did not have “notice that NorVergence intended to assign the contracts immediately following their execution.” We disagree.

The agreements contain the following provision regarding assignment in bold type: “ASSIGNMENT: ... We may sell, assign, or transfer all or any part of this Rental and/or the Equipment without notifying you.” Ed Garcia, on behalf of Best Litho, and Les M. McCoy, on behalf of DesignPoint, each executed a personal guaranty provision, which states in capital letters: “The same state law as the rental will govern this guaranty. You agree to jurisdiction and venue as stated in the paragraph titled Applicable Law of the rental.” Furthermore, the following provision appears directly above the renters’ signatures on the front of the rental agreements: “You agree to all the terms and conditions shown above and the reverse side of this Rental....” Finally, the renters each signed a separate Delivery and Acceptance Certifícate indicating they reviewed and understood all of the terms and conditions contained in the rental agreements. Based on the foregoing contractual provisions, we find the rental agreements provided the renters with ample notice that the agreements could be assigned. See Joseph L. Wilmotte, 258 N.W.2d at 323 (“[I]f a party to a contract ... fails to read the contract he cannot thereafter be heard to say that he was ignorant of its terms and conditions for the purpose of relieving himself from its obligation.” (citation omitted)). Because the forum selection clause also draws attention to the assignability of the rental agreement, it is reasonable to infer that the renters could have anticipated litigating in Iowa or other states.

The renters further argue the forum selection clause is unreasonable and a violation of public policy because it does not designate a particular forum. In EFCO, 606 N.W.2d at 299, our supreme court approved and enforced the following forum selection clause:

Any action in regard to this agreement or arising out of its terms and conditions may be instituted and litigated in the Iowa District Court for Polk County, Iowa. Customer consents to the jurisdiction of such court and agrees that service of process as provided by the statutes and rules of procedure of Iowa ... shall be sufficient.

The renters assert the forum selection clause in their rental agreements is defective because, unlike the clause in EFCO, it does not name the exact state where suit may be brought.

The “Applicable Law” provision in the rental agreements provides that the agreement will be “governed by ... the laws of the State in which ... assignee’s principal offices are located” and “all legal actions relating to this Lease shall be venued exclusively in a state or federal court located within that State.... ” The supreme court’s approval of the forum selection clause in EFCO was not dependent upon the fact that the clause designated a specific state. See id. at 299. Moreover, we find the forum selection clause does designate the state of suit unequivocally: it is the state where the principal offices of NorVergence are located or, if the contract has been assigned, the state where the principal offices of the assignee are located. Thus, the renters consented to jurisdiction in New Jersey, the home state of NorVergence, or to jurisdiction in the as-signee’s home state.

The renters urge “good policy dictates” that the forum selection clause name the state in which the suit must be brought. The renters rely on Justice Black’s dissent in National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 328-29, 84 S.Ct. 411, 421, 11 L.Ed.2d 354, 365 (1964), in predicting that enforcement of this forum selection clause will result in the proliferation of clauses that are “even more broad and vague and influence companies to take even greater advantage- of unsuspecting customers.” We first note that the renters are not “unsuspecting customers” like the Michigan farmers in National Equipment Rental. National Equip. Rental, 375 U.S. at 327, 84 S.Ct. at 420, 11 L.Ed.2d at 364. There is nothing present in the record that would indicate the renters are not experienced and sophisticated business people that entered into an arms-length transaction. See M/S Bremen, 407 U.S. at 12, 92 S.Ct. at 1914, 32 L.Ed.2d at 521 (finding a choice of forum made in an “arm’s-length negotiation by experienced and sophisticated businessmen” is enforceable); see also Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593-95, 111 S.Ct. 1522, 1527-28, 113 L.Ed.2d 622, 632-33 (1991) (upholding a forum selection clause in a form passage contract ticket even where the purchasers were not sophisticated business persons that had negotiated the terms of the contract).

Furthermore, following National Equipment Rental, the Supreme Court in M/S Bremen, 407 U.S. at 10, 92 S.Ct. at 1913, 32 L.Ed.2d at 520, adopted a “more hospitable attitude toward” forum selection clauses by approving such clauses as prima facie valid. The Supreme Court rejected the traditional hostility toward forum selection clauses, recognizing that “[t]he barrier of distance that once tended to confíne a business concern to a modest territory no longer does so.” M/S Bremen, 407 U.S. at 8, 92 S.Ct. at 1912, 32 L.Ed.2d at 519. Thus, the “expansion of American business and industry will hardly be encouraged if, notwithstanding solemn contracts, we insist on a parochial concept” of discouraging forum selection clauses. Id. at 9, 92 S.Ct. at 1912, 32 L.Ed.2d at 519. “If assignors have to compensate their assignees for having to litigate in an inconvenient forum, they will have to charge a higher price to their customers.... ” IFC Credit Corp. v. Aliano Bros. Gen. Contractors, Inc., 437 F.3d 606, 613 (7th Cir.2006). We likewise conclude public policy supports the enforcement of the forum selection clause to allow for the marketability of rental agreements such as these in the leasing industry. See M/S Bremen, 407 U.S. at 14, 92 S.Ct. at 1915, 32 L.Ed.2d at 523 (“[I]t would be unrealistic to think that the parties did not conduct their negotiations, including fixing the monetary terms, with the consequences of the forum clause figuring prominently in their calculations.”); Carnival Cruise Lines, 499 U.S. at 594, 111 S.Ct. at 1527, 113 L.Ed.2d at 632 (“[I]t stands to reason that passengers who purchase tickets containing a forum clause ... benefit in the form of reduced fares reflecting the savings that the cruise line enjoys by limiting the fora in which it may be sued.”).

Other state and federal courts have reached the same conclusion regarding the enforceability of similar forum selection clauses. See, e.g., IFC Credit Corp., 437 F.3d at 611-12 (concluding the identical NorVergence forum selection clause is enforceable absent a showing of fraud and rejecting lessee’s argument that to be enforceable the clause must name the state in which the suit is to be brought); Danka Funding, L.L.C. v. Page, Scrantom, Sprouse, Tucker & Ford, P.C., 21 F.Supp.2d 465, 472 (D.N.J.1998) (enforcing forum selection clause providing for jurisdiction in the state where the assignee’s principal place of business is located). But see Central Ohio Graphics, Inc. v. Alco Capital Resource, Inc., 221 Ga.App. 434, 472 S.E.2d 2, 3 (1996) (holding a forum selection clause authorizing the lessor to pursue “any action under this agreement in any court of competent jurisdiction” unenforceable due to its broadness and lack of specificity); Preferred Capital, Inc. v. Power Eng’g Group, Inc., 112 Ohio St.3d 429, 860 N.E.2d 741, 746 (2007) (holding that “when one party to a contract containing a floating forum selection clause possesses undisclosed information of its intent” to immediately assign its interest, the forum selection clause is unreasonable and against public policy). We find the reasoning of the cases enforcing the forum selection clauses more persuasive than the reasoning of the cases invalidating the clauses.

IV. CONCLUSION.

In conclusion, we find the renters have failed to sustain their heavy burden of establishing that the forum selection clause is fundamentally unfair and “enforcement would be unreasonable and unjust.” M/S Bremen, 407 U.S. at 15, 92 S.Ct. at 1916, 32 L.Ed.2d at 523. We therefore conclude the district court did not err in denying the renters’ motions for summary judgment. We accordingly affirm the judgments of the district court denying the motions for summary judgment and remand for further proceedings.

AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS.

      . Best Litho’s principal place of business is located in Florida; Ed Garcia is a resident of Florida; Air Filter’s principal place of business is located in Illinois; Davis Delivery Services’ principal place of business is located in Georgia; DesignPoint’s principal place of business is located in Pennsylvania; and Les McCoy is a resident of Pennsylvania.

      . The renters do not claim the forum selection clause is invalid for reasons such as fraud or overreaching.

      . We need not and do not engage in a minimum contacts analysis. See EFCO, 606 N.W.2d at 299 (holding the minimum contacts analysis does not apply where the "basis for the district court's assumption of in per-sonam jurisdiction” is consent). We also need not and do not reach Liberty Bank’s argument that the renters waived any defense of lack of personal jurisdiction.