author: TERNUS, Justice. LARSON, Justice

text:
    Keith BOUSMAN, Plaintiff, v. IOWA DISTRICT COURT FOR CLINTON COUNTY, Defendant.
    No. 99-1548.
    Supreme Court of Iowa.
    July 5, 2001.

      John J. Wolfe of Wolfe Law Office, Clinton, for plaintiff.
    Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Michael E. Wolf, County Attorney, and Gary Strausser, Assistant County Attorney, for defendant.
   TERNUS, Justice.

Keith Bousman filed an appeal, which we treat as a petition for writ of certiorari, from a district court decision denying his motion to quash a prior court order directing him to submit to a nontestimonial identification procedure. Bousman claims that the court’s order for nontestimonial identification violated his constitutional protection against unreasonable searches and seizures and was issued in contravention of the authorizing statute, Iowa Code chapter 810 (1999). The State contends preliminarily Bousman has no right to appeal' this order under Iowa Code section 814.6(1) and discretionary review under section 814.6(2) is inappropriate. The State also asserts that the order for nontestimonial identification did not violate constitutional provisions or chapter 810.

Upon our consideration of the record and the arguments of the parties, we conclude that the present appeal should be treated as a petition for writ of certiorari. Considering the appeal as an original cer-tiorari action, we grant the writ and proceed to the merits. On the merits of Bousman’s claim, we hold that the court’s order for nontestimonial identification was not supported by “reasonable grounds to suspect” that Bousman committed a felony, as required by Iowa Code section 810.6(2) and the Fourth Amendment. Therefore, we sustain the writ of certiorari and remand for entry of an order quashing the district court’s order requiring Bous-man to submit to a nontestimonial identification procedure.

I. Background Facts and Proceedings.

On March 31, 1999, Emily Shaver notified Clinton police that her car had been burglarized. Someone had broken the passenger side window and removed several items from the car. The investigation revealed that two blank checks, moved from their normal position, were stained with blood.

On August 27, 1999, the county attorney’s office applied for a nontestimonial identification order directed to Keith Bous-man. See Iowa Code ch. 810 (Iowa’s nontestimonial identification statute). In the application, the county attorney requested that the court order Bousman to submit to a swabbing of his mouth for a saliva sample to be used for purposes of DNA analysis to aid in the investigation. The county attorney supported this application with an affidavit, signed by an investigating officer.

The district court granted the county attorney’s application and issued an order directing Bousman to appear at the Clinton police department to have “oral swabs taken from the mouth.” Bousman filed a motion to quash, alleging that the reasons stated for requiring him to submit to the procedure were “inadequate” and violated his right against unreasonable searches and seizures. The district court denied Bousman’s motion, finding that the application established reasonable grounds to suspect Bousman “committed or aided and abetted the commission of a felony.” Bousman appealed.

II. Does Bousman Have a Right of Appeal From the District Court’s Order Denying His Motion to Quash?

The initial issue before this court is whether Bousman had a right to appeal the district court’s ruling on his motion to quash the order for nontestimonial identification. The State contends that the non-testimonial identification order is quasi-criminal in nature and, therefore, the law governing criminal appeals applies. It asserts that Bousman’s attempted appeal from the court’s ruling on the motion to quash is not a permitted criminal appeal as of right authorized by Iowa Code section 814.6(1). The State argues, in addition, that discretionary review should not be granted. See Iowa Code § 814.6(2)(e) (allowing discretionary review of “[a]n order raising a question of law important to the judiciary and the profession”).

Iowa Code section 814.6 grants “the defendant” a right of appeal from certain specified judgments and the opportunity for discretionary review of other designated orders. Chapter 814 is part of the criminal procedure code. See Iowa Code § 801.1 (“Chapters 801 to 819 shall be known and may be cited as the ‘Iowa Code of Criminal Procedure.’ ”). Therefore, the term “defendant,” as used in the context of chapter 814, refers to the “accused” in a criminal case. Black’s Law Dictionary 429 (7th ed.1999). Although it is possible for a “defendant” to be the subject of a nontestimonial identification order, Bous-man does not fall within that class of persons. Bousman has not been accused of or charged with any crime. See Webster’s Third Neiv International Dictionary 14 (unabr. ed.1993) (defining “accused” as “one charged with an offense; esp: the defendant in a criminal case”). He is not and may never be a “defendant.” He is merely a suspect. See id. at 2303 (defining “suspect” as “one suspected of a crime”). Therefore, section 814.6 does not govern Bousman’s right or opportunity to appeal.

On the other hand, a proceeding for issuance of a nontestimonial identification order is clearly not civil so as to trigger the rules allowing appeal of final judgments or decisions in civil cases. See generally Iowa R.App. P. 1 (providing for appeals in civil cases). Proceedings under chapter 810 can be initiated only by a person who has been arrested for or charged with a criminal offense, see Iowa Code § 810.2, or, as in this case, by a prosecuting attorney during the investigation of a criminal offense, see id. § 810.3. We agree with the State that such proceedings are quasi-criminal, if not criminal, in nature. See generally id. § 801.1 (stating that chapter 810 is part of code of criminal procedure); 1981 Iowa Acts ch. 206, §§ 2-15 (described as a bill “concerning certain criminal procedures” (emphasis added)) (codified at Iowa Code §§ 810.3-.16 (1983)). Therefore, the rules governing appeals in civil cases do not apply.

The fact that this case does not fall within the rules for civil cases or the statute giving criminal defendants the opportunity for appellate review does not mean that Bousman is without a remedy. In City of Janesville v. McCartney, 326 N.W.2d 785 (Iowa 1982), we allowed review of a district court ruling by certiorari where neither rule nor statute provided for any other manner of review. McCartney, 326 N.W.2d at 786. If the present appeal should have been filed as an original cer-tiorari proceeding, we may consider the appeal “as though the proper form of review had been sought.” Iowa R.App. P. 304. Therefore, we will consider Bous-man’s notice of appeal as a petition for writ of certiorari and proceed to determine whether he is entitled to appellate review on this basis.

The supreme court has “constitutional powers to issue writs to, and exercise supervisory and administrative control over, other judicial tribunals.” State v. Davis, 493 N.W.2d 820, 822 (Iowa 1992). Our rules of appellate procedure contemplate original certiorari proceedings at the appellate level by providing for the filing in our court of a “petition for writ of certiorari directed to the district court.” Iowa R.App. P. 301; see also Iowa R.App. P. 22(a) (authorizing supreme court to issue writs in furtherance of its “supervisory and administrative control over all inferior judicial tribunals and officers”). Such a petition may be granted or denied. See Iowa R.App. P. 302 (stating that petition may be “ruled on in the manner prescribed in the Rules of Appellate Procedure relating to motions”); Iowa R.App. P. 22(f) (giving single justice authority to grant or deny relief sought by motion). See generally 14 Am.Jur.2d Certiorari § 10, at 634-35 (2000) (stating that review by certiorari is discretionary, unless otherwise provided by rule or statute).

“A petition for a writ of certiorari is proper when the district court is alleged to have exceeded its jurisdiction or to have acted illegally.” State Public Defender v. Iowa Dist. Ct., 594 N.W.2d 34, 36 (Iowa 1999). We have interpreted this standard liberally, stating that illegality exists when the court’s ruling lacks “substantial evi-dentiary support or when the court has not applied the proper rule of law.” Allen v. Iowa Dist. Ct, 582 N.W.2d 506, 508 (Iowa 1998); see also Sprous v. Iowa Dist. Ct., 595 N.W.2d 777, 778 (Iowa 1999) (granting writ of certiorari to review trial court’s discretionary ruling on sanctions because the ruling was “judicial in nature”); State v. Iowa Dist. Ct. for Winneshiek County, 464 N.W.2d 233, 234 (Iowa 1990) (stating that court would “consider defects and errors in the proceedings of the inferior tribunal which are not strictly jurisdictional in nature” (citation omitted)).

The State argues that we should not exercise our discretion to review the case at hand because the order at issue is interlocutory, not final. We note initially that certiorari “is available regardless of the finality of a judgment.” McKeever v. Gerard, 368 N.W.2d 116, 118 (Iowa 1985). In fact, as we noted in McKeever, “certio-rari review of court action is ordinarily used prior to final disposition.” Id. at 119. Therefore, we do not decide whether the nontestimonial identification order at issue here is final or interlocutory. Even if it is interlocutory, a characterization subject to some doubt, that fact would not preclude certiorari review.

The function of certiorari is twofold: (1) “the avoidance of unnecessary litigation”; and (2) “the provision of a method of review when no other means are available.” Id. Although the absence of an opportunity for review in another manner is “[o]ne of the primary criteria” for issuance of a writ of certiorari, Davis, 493 N.W.2d at 822, the existence of another method of review does not “foreclose the use of certiorari,” McKeever, 368 N.W.2d at 119. Certiorari is particularly appropriate “ ‘where the lower court’s jurisdiction or the legality of its acts is challenged on exclusively law or constitutional issues.’ ” Id. (quoting Steinbeck v. Iowa Dist. Ct., 224 N.W.2d 469, 472 (Iowa 1974)).

Turning to the present case, we observe that Bousman will be able to challenge the admission of any evidence gathered as a result of the order in any subsequent criminal proceeding, but only if criminal charges are eventually filed against him. More significantly, if this court denies Bousman’s petition for writ of certiorari, subsequent appellate review may still be possible if Bousman is held in contempt for refusing to comply with the order. Although ordinarily a person charged with contempt for violating a court’s order may not collaterally attack the order, this rule is not applied “when there was not an adequate and effective remedy to review the challenged ruling, or where compliance could cause irreparable injury which may not be repaired by appellate vindication.” Allen, 582 N.W.2d at 509. Thus, in Allen, where this court had previously denied a party’s application for discretionary review of the district court’s original order, we held that the party, later held in contempt, could challenge the validity of the underlying order in the appeal of the contempt judgment. Id.

In summary, we conclude that Bousman has other avenues for appellate review, but additional litigation would be required first. Since these criteria weigh for and against review at this time, we look to the nature of the issues raised by Bousman. The legality of the district court’s order is attacked exclusively on legal and constitutional grounds, which makes certiorari particularly appropriate. See McKeever, 368 N.W.2d at 119. Moreover, the issues are important ones of first impression. Based on these factors, we grant the petition for writ of certiorari. We now proceed to a determination of the merits of Bousman’s appeal.

III. Pertinent Statutory Provisions.

Before we address the merits of Bous-man’s challenge to the order requiring him to submit to saliva sampling, it is helpful to review the statutory framework under which this order was issued. Chapter 810 provides an avenue for the county attorney to obtain nontestimonial identification information from a suspect prior to his or her arrest. See Iowa Code §§ 810.3, .4. “Nontestimonial identification,” as used in chapter 810, refers to such things as “fingerprints, palm prints, footprints, measurements, hair strands, handwriting samples, voice samples, photographs, blood and saliva samples, ultraviolet or black-light examinations, paraffin tests, and lineups.” Id. § 810.1.

A district judge or district associate judge may issue a nontestimonial identification order only upon application of a prosecuting attorney who is investigating a felony offense. See id. § 810.3. The application for the order must (1) describe the felony being investigated, (2) name or describe the person to be detained for the desired nontestimonial identification procedure, (3) state the time when and place where the procedure will be conducted, and (4) be supported by at least one affidavit “setting forth the facts and circumstances showing that the basis for issuance of an order under this chapter exist.” Id. § 810.5. If an affidavit is based in any part on hearsay, the affiant must “set forth particular facts bearing on the informant’s reliability” and must “disclose, as far as is practicable, the means by which the information was obtained.” Id. § 810.5(4).

An order for nontestimonial identification may not be issued unless the application and supporting affidavit “establish each of the following”:

1. That there is probable cause to believe that a felony described in the application has been committed.
2. That there are reasonable grounds to suspect that the person named or described in the application committed the felony and it is reasonable in view of the seriousness of the offense to subject that person to the requested nontestimonial identification procedures.
3. That the results of the requested nontestimonial identification procedures will be of material aid in determining whether the person named or described in the application committed the felony.
4. That such evidence cannot practicably be obtained from other sources.

Id. § 810.6 (emphasis added). It is the “reasonable grounds to suspect” element that gives rise to Bousman’s claim that the order in this case is constitutionally and statutorily infirm.

IV. Was the Order for Nontestimonial Identification Properly Issued?

A. Scope of review. We review a district court’s refusal to quash a discovery order for an abuse of discretion. See Portz v. Iowa Bd. of Med. Exam’rs, 563 N.W.2d 592, 592 (Iowa 1997) (setting forth standard for review of refusal to quash agency subpoena). An abuse of discretion occurs when “the court exercise[s] [its] discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable.” State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997). “A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law.” Graber v. City of Ankeny, 616 N..W.2d 633, 638 (Iowa 2000). In other words, a court has no discretion to issue a discovery order that lacks factual support or is in contravention of governing constitutional or statutory provisions.

Here, Bousman claims that the court’s refusal to quash its prior order rests on an erroneous application of constitutional and statutory law. Our review of Bousman’s constitutional claim is de novo. See State v. Myers, 570 N.W.2d 70, 72 (Iowa 1997). In this review, we “evaluate the totality of the circumstances as shown by the entire record.” Id. Our review of the statutory sufficiency of the order is for correction of errors at law. See id.

B. Was a finding of probable cause necessary to suppoH issuance of the nontestimonial identification order? Bousman argues that the order requiring him to appear for DNA sampling violated his constitutional protection against unreasonable searches and seizures. See U.S. Const, amend. IV (“The right of the people to be secure in their persons ... against unreasonable searches and seizures[ ] shall not be violated.... ”); Iowa Const, art. I, § 8 (same). He contends that the order was not supported by probable cause to believe that he committed the burglary under investigation.

Before we decide whether the Fourth Amendment requires probable cause under the circumstances before us, we address Bousman’s argument that chapter 810 itself requires that the order be based on probable cause. Section 810.6(2) requires a showing of “reasonable grounds to suspect that the person named or described in the application committed the felony.” Iowa Code § 810.6(2). It is well established in the area of Fourth Amendment jurisprudence that “reasonable grounds to suspect” is something less than probable cause. See Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889, 909 (1968); State v. Cline, 617 N.W.2d 277, 282 (Iowa 2000). Probable cause requires “reasonable ground[s] for belief” that the person to be arrested has committed a crime. State v. Harris, 490 N.W.2d 561, 563 (Iowa 1992) (emphasis added) (holding that probable cause is something more than “mere suspicion”); accord State v. Ceron, 573 N.W.2d 587, 592 (Iowa 1997). “Reasonable grounds to suspect,” on the other hand, merely requires that there be a reasonable basis to think that the suspect “may be involved” in the illegal activity. Cline, 617 N.W.2d at 283 (emphasis omitted). This standard is “essentially identical to that established in Terry v. Ohio.” In re Nontestimonial Identification Order Directed to R.H., 762 A.2d 1239, 1242 (Vt.2000); see also State v. Farrell, 242 N.W.2d 327, 329 (Iowa 1976) (characterizing Terry standard as “reasonable grounds to suspect”). We conclude, therefore, that the “reasonable grounds to suspect” language in section 810.6(2) does not require a showing of probable cause. Cf. In re Nontestimonial Identification Order, 762 A.2d at 1244 (interpreting identical language in Vermont statute as not requiring probable cause). We now consider whether the Constitution requires such a showing.

“The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest.” United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607, 614 (1975). Even temporary intrusions into one’s personal security for investigatory purposes must meet the Fourth Amendment reasonableness requirement. See Davis v. Mississippi, 394 U.S. 721, 726, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676, 680-81 (1969); Terry, 392 U.S. at 19, 88 S.Ct. at 1878-79, 20 L.Ed.2d at 904. Thus, in Davis, the United States Supreme Court held that “[detentions for the sole purpose of obtaining fingerprints are ... subject to the constraints of the Fourth Amendment.” 394 U.S. at 727, 89 S.Ct. at 1397, 22 L.Ed.2d at 681. We think the saliva sampling at issue here, like the fingerprinting in Davis, must meet the constitutional requirement of reasonableness.

Having concluded that investigatory detentions for identification purposes must be reasonable, we face a more problematic issue: whether such a detention is reasonable only when supported by probable cause, as Bousman contends. Reasonableness “depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Brignoni-Ponce, 422 U.S. at 878, 95 S.Ct. at 2579, 45 L.Ed.2d at 614-15.

The search and seizure challenged in Davis — the fingerprinting of a suspect during the course of a criminal investigation- — -is similar to the detention at issue here. Although the Court in Davis was not required to determine whether a fingerprinting procedure could be conducted upon a finding of something less than probable cause, 394 U.S. at 728, 89 S.Ct. at 1398, 22 L.Ed.2d at 681, the Court made the following observations with respect to this issue.

It is arguable, however, that, because of the unique nature of the fingerprinting process, such detentions might, under narrowly defined circumstances, be found to comply with the Fourth Amendment even though there is no probable cause in the traditional sense. Detention for fingerprinting may constitute a much less serious intrusion upon personal security than other types of police searches and detentions. Fingerprinting involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search. Nor can fingerprint detention be employed repeatedly to harass an individual, since the police need only one set of each person’s prints. Furthermore, fingerprinting is an inherently more reliable and effective crime-solving tool than eyewitness identifications or confessions and is not subject to such abuses as the improper line-up and the “third degree.” Finally, because there is no danger of destruction of fingerprints, the limited detention need not come unexpectedly or at an inconvenient time. For this same reason, the general requirement that the authorization of a judicial officer be obtained in advance of detention would seem not to admit of any exception in the fingerprinting context.

Id. at 727-28, 89 S.Ct. at 1397-98, 22 L.Ed.2d at 681 (citations omitted).

Based on this dictum, several states, including Iowa, enacted statutes allowing for investigatory detentions to obtain identifying information from a suspect based on less than probable cause. See, e.g., State v. Evans, 215 Neb. 433, 437, 338 N.W.2d 788, 792 (1983); In re Nontestimonial Identification Order, 762 A.2d at 1245; Idaho Code § 19-625(1)(B) (2000); Iowa Code § 810.6. See generally 4 Wayne R. LaFave, Search and Seizure § 9.7(b), at 325 (1996) (noting that Davis dictum prompted some states to enact statutes or rules “which authorize brief detention at the [police] station on less than the grounds needed for arrest, where the purpose of the detention is to conduct certain identification procedures”) [hereinafter Search and Seizure ]. Some of these statutes, like Iowa’s, allow issuance of a non-testimonial identification order based upon reasonable grounds to suspect that the person subject to the order has committed the crime under investigation. E.g., State v. Rodriguez, 186 Ariz. 240, 248, 921 P.2d 643, 651 (1996); People v. Madson, 638 P.2d 18, 32 (Colo.1981); State v. Welch, 316 N.C. 578, 583, 342 S.E.2d 789, 792 (1986); In re Nontestimonial Identification Order, 762 A.2d at 1240-41.

We do not think the order challenged by Bousman violated his constitutional rights solely because it was issued under a standard of reasonable grounds to suspect rather than probable cause. As noted earlier, the United States Supreme Court has suggested that probable cause is not required when the detention is temporary and brief, is a relatively slight intrusion into the person’s privacy, does not involve the exploration of an individual’s private life or thoughts, need not be employed repeatedly, is a reliable and effective investigative tool so as not to be subject to abuse, and need not be done unexpectedly or at an inconvenient time. See Davis, 394 U.S. at 727-28, 89 S.Ct. at 1397-98, 22 L.Ed.2d at 681. We think the compulsory presence of a citizen at the police station for swabbing of that person’s saliva is such a detention. The identification procedure is short, needs to be done only once, does not invade the person’s private life or thoughts, and can be scheduled in advance for a convenient time. Undeniably, DNA testing has proven to be a valid and useful crime-solving tool. Moreover, we do not think saliva sampling involves a significant intrusion into a person’s bodily security. See In re Nontestimonial Identification Order, 762 A.2d at 1244. Finally, the order was issued upon the authorization of a judicial officer, as suggested in Davis. See Davis, 394 U.S. at 728, 89 S.Ct. at 1398, 22 L.Ed.2d at 681. For these reasons, we believe the nontestimonial identification order at issue here could be constitutionally based upon a finding of reasonable grounds to suspect rather than upon a showing of probable cause. See Madson, 638 P.2d at 32 (holding that statute allowing issuance of detention order based on “reasonable grounds, not amounting to probable cause to arrest, to suspect the person described in the affidavit committed the offense” did not violate the Fourth Amendment); In re Nontestimonial Identification Order, 762 A.2d at 1244, 1246-47 (holding that issuance of detention order for purpose of saliva sampling based on reasonable suspicion comports with Vermont and United States Constitutions); see also State v. Hall, 93 N.J. 552, 563, 461 A.2d 1155, 1161 (1983) (holding that “identification procedures that are comparable to fingerprinting will be sustainable upon a showing of less than traditional probable cause”). See generally 4 Search and Seizure § 9.7(b), at 332 (stating that “a lesser degree of suspicion” than probable cause will support a nontestimonial identification order); Angus J. Dodson, Comment, DNA “Line-Ups” Based on a Reasonable Suspicion Standard, 71 U. Colo. L.Rev. 221, 253-54 (2000) (arguing that DNA sampling and profiling are “closely analogous to fingerprinting” and should be permitted under Davis standard).

C. Was the order supported by reasonable grounds to suspect that Bous-man committed the burglary? Bousman also claims that there was no basis in the record before the district court upon which to find reasonable grounds to suspect that Bousman committed the burglary under investigation. As noted above, section 810.6(2) authorizes a nontestimonial identification order “only if the court finds that the application and the affidavit or affidavits in support of the application establish ... reasonable grounds to suspect that the person named or described in the application committed the felony.” Iowa Code § 810.6(2).

The application filed by the county attorney in this case stated that the charge under investigation was a felony — third-degree burglary. The application provided no information linking Bousman to this offense, but it was supported by the following affidavit signed by the investigating officer.

On March 31, 1999, Emily Shaver reported to the Clinton Police Department that her Chevy Cavalier which was parked in the parking lot across from the Odeon Club, 80 Main Ave., Clinton, was forcibly entered by someone breaking the passenger side window and several items were taken from within.
Of the several items disturbed within the vehicle, two blank personal checks of Shavers [sic] were observed with what appears to be blood stains upon them. Ms. Shaver states that the checks were not in their normal position within the vehicle and that they did not previously contain a blood stain.
A witness observed a white female standing next to the Shaver vehicle and ivhen she noticed the witness observing her, she ran to a parked vehicle, entered the passenger side and the vehicle left the parking lot through a yard. The witness observed that the vehicle was bearing Iowa license number 18SFRT ivhich is registered to Keith Bousman. The witness was also shown a photo array consisting of six photographs. Of the six photographs, the witness chose photograph labeled # 10808, that of Keith A. Bousman.
The blood stain on the checks within the victim[’]s vehicle indicates that the person who committed the burglary may have injured themselves in the process of breaking the window. A DNA comparison of Bousman[’]s blood with that of the blood stain from within the vehicle would indicate Bousman[’]s involvement.

(Emphasis added.)

Bousman’s chief complaint about the showing made by the county attorney centers on the information provided by the unidentified “witness.” Bousman points out that neither the application nor the affidavit provided information from which the judge could assess the informant’s credibility. Contrary to the express requirements of section 810.5(4) pertaining to hearsay evidence, the affidavit did not “set forth particular facts bearing on the informant’s reliability,” nor did it disclose “the means by which the information was obtained.” Iowa Code § 810.5(4). Absent the facts required by section 810.5(4), the court here simply had no basis to assess the credibility or reliability of the witness, who was the only source of information connecting Bousman to the commission of the burglary.

The State contends, however, that this omission is not significant because the informant was simply a “citizen” who had inherent reliability. See State v. Niehaus, 452 N.W.2d 184, 189 (Iowa 1990) (holding that there is a rebuttable presumption that “information imparted by a citizen informant is generally reliable”). “A citizen informant is ordinarily defined as a person who is a witness to or a victim of a crime.” Id. We note initially that the individual providing information to the investigating officer in this case was unnamed and otherwise unidentified. We question whether an unnamed, unidentified person can ever be considered a citizen informant. See generally State v. Weir, 414 N.W.2d 327, 331 (Iowa 1987) (distinguishing between a confidential informant and an informant “named” in a search warrant application and supporting affidavits). In addition, it would be sheer supposition to conclude based on the affidavit here that the informant was a mere citizen. Nothing in the affidavit indicates that the witness saw the crime or was a victim of it. There are simply no facts in the affidavit that would have informed the court whether the witness was, in fact, a disinterested citizen, or was someone with a grudge against Bous-man or someone who provided the information in exchange for some concession on charges pending against the informant.

The question that now arises is what effect the State’s failure to comply with section 810.5(4) has on the nontestimonial identification order. We think the omission of any facts from which the court could assess the informant’s credibility and the reliability of the informant’s information precluded issuance of the order for statutory and constitutional reasons.

The statutory requirement that the affidavit “shall set forth particular facts bearing on the informant’s reliability” and “the means by which the information was obtained” is mandatory. Iowa Code § 810.5(4); see State v. Iowa Dist Ct. for Black Hawk County, 472 N.W.2d 621, 624 (Iowa 1991) (holding that use of the word “shall” in search warrant statute imposed a duty that was “obligatory, not optional”). This requirement ensures that a nontesti-monial identification order is “issued only upon reliable information.” Myers, 570 N.W.2d at 73 (discussing “statutory test of confidential informant credibility” with respect to search warrants). Because the application and affidavit submitted in the present case lacked the information required by section 810.5(4) with respect to the informant’s credibility and reliability, the facts provided by the informant should not have been considered in assessing the adequacy of the showing made for issuance of the nontestimonial identification order. Cf Iowa Dist. Ct. for Black Hawk County, 472 N.W.2d at 625 (holding that noncompliance with mandatory requirement of search warrant statute designed to ensure that warrants are issued upon reliable information required that information provided by informants be ignored in determining probable cause). Since the informant was the only source of information connecting Bousman to the burglary, the affidavit did not provide a sufficient basis for the district court to find reasonable grounds to suspect Bousman of committing this crime.

Issuance of the order in the absence of reasonable grounds violated both chapter 810 and the Fourth Amendment. The district court erred in failing to quash the order on this basis.

V. Summary and Disposition.

A nontestimonial identification order issued pursuant to chapter 810 must be constitutionally reasonable. This requirement means that the order must be supported by reasonable grounds to suspect that the subject of the order committed the crime under investigation. Probable cause to believe that the subject of the order actually committed the crime is not necessary.

The evidentiary showing in support of the order issued in this case was deficient because it did not include the information required by section 810.5(4) with respect to the unnamed informant. As a consequence, the court should not have considered the information provided by the informant. In the absence of this information, there were insufficient facts to support a finding of reasonable grounds to suspect that Bousman committed the burglary being investigated, as required by chapter 810 and the Fourth Amendment.

Because the order was improperly issued, the district court abused its discretion in failing to grant Bousman’s motion to quash. Therefore, we sustain the writ of certiorari and remand the case for entry of an order granting Bousman’s motion to quash.

WRIT SUSTAINED; CASE REMANDED.

All justices concur except LARSON, J., who dissents.

LARSON, Justice

(dissenting).

I dissent because the majority applies certiorari as a vehicle to consider a claim that could not be considered as an application for discretionary review. In so doing, it encourages an end run on our long-established rules regarding review of preliminary rulings in criminal cases.

It is true this plaintiff was not under arrest, but this is all the more reason to deny review at this time. The district court’s ruling is so preliminary that many subsequent events could make the order moot. For example, he might not even be arrested. He might not be charged, and if charged, he might not be convicted. If convicted, he can appeal, and the issue could be considered at that time. For this reason, certiorari, which is discretionary on our part, should be denied.

      . Iowa Code section 810.2 allows a “person arrested for or charged with an offense” to request an order for a nontestimonial identification procedure "involving the defendant.” The order issued in this case, however, was requested by the prosecuting attorney investigating the burglary prior to Bousman’s arrest, as authorized by sections 810.3 and 810.4.

      . Our discussion of the Fourth Amendment applies equally to Bousman’s claim under the Iowa Constitution.


source: Caselaw Access Project

author: NEUMAN, Justice.

license: Public Domain

text:
    F.K., Mother, Plaintiff, v. IOWA DISTRICT COURT FOR POLK COUNTY, Defendant.
    No. 99-0095.
    Supreme Court of Iowa.
    July 5, 2001.
    As Amended on Denial of Rehearing July 27, 2001.

      James A. Benzoni of Benzoni Law Office, P.L.C., Des Moines, for plaintiff.
    Thomas J. Miller, Attorney General, Charles K. Phillips, Assistant Attorney General, and Cory McClure, Assistant County Attorney, for defendant.
    Mike Bandstra, Des Moines, for minor child.
   NEUMAN, Justice.

This certiorari action tests the legality of a juvenile court’s ruling on the constitutionality of the statute governing emergency removal orders, Iowa Code section 232,78 (1997). Because we are convinced that the certiorari plaintiff cannot successfully assail the statute on Fourth Amendments grounds, nor does the statutory scheme violate the due process clauses of either the United States or Iowa Constitutions, we vacate a contrary decision of the court of appeals and annul the writ.

I. Background Facts and Proceedings.

Underlying the constitutional issues presented here was a case involving Felicia, a young mother, and Michael, her infant son. When the child was three months old, the Iowa Department of Human Services (DHS) filed a written ex parte application with the juvenile court to remove Michael from the custody of his mother. The application gave the following reasons for removal:

Two older siblings have been removed [and] parental rights terminated. The mother has a history of mental illness [and] is not medication] compliant. She is not able to care for her children. Michael is on an apnea monitor subsequent to an apnea episode during which he stopped breathing. The mother has not been compliant w[ith] VNS [Visiting Nurse Services] [and] has missed at least one medical appointment for the child.

The application also asserted that immediate removal was necessary to avoid imminent danger to the child’s life or health, reasonable cause existed to believe that asking Felicia for consent to remove the child would cause her to take flight, and there was insufficient time to file a child in need of assistance (CINA) petition and hold a hearing thereon prior to removal.

The application was evidently accompanied by an unreported conversation between the DHS child protection worker and the issuing judge prior to the grant of the application. Based on the information received, the court issued an ex parte removal order pursuant to Iowa Code section 232.78, which provided:

1. The juvenile court may enter an ex parte order directing a peace officer or a juvenile court officer to take custody of a child before or after the filing of a petition under this chapter provided all of the following apply:
a. The person responsible for the care of the child is absent, or though present, was asked and refused to consent to the removal of the child and was informed of an intent to apply for an order under this section, or there is reasonable cause to believe that a request for consent would further endanger the child, or there is reasonable cause to believe that a request for consent will cause the parent, guardian, or legal custodian to take flight with the child.
b. It appears that the child’s immediate removal is necessary to avoid imminent danger to the child’s life or health.
c. There is not enough time to file a petition and hold a hearing under section 232.95.

The court’s order placed Michael in the temporary legal custody of the DHS pending a post-removal hearing. Peace officers directed to take custody of Michael were unable to locate him or Felicia over the weekend; the child was not removed from his mother’s custody until the following Monday morning. That same day a CINA petition was filed. The petition alleged that Michael was a child in need of assistance because of Felicia’s failure to “exercise a reasonable degree of care in supervising” him, see Iowa Code § 232.2(6)(c)(2), and Felicia’s “mental capacity or condition,” which prevented her from caring for Michael. See Iowa Code § 232.2(6)(n). DHS filed a child abuse report the same day, documenting Felicia’s lack of parenting skills.

The removal hearing, scheduled in conformity with Iowa Rule of Juvenile Procedure 4.6, was continued by agreement of the parties, and combined with the adjudication hearing on the CINA petition. Meanwhile, Felicia moved to Texas. She eventually stipulated to the CINA adjudication but reserved the right to contest Michael’s initial removal. In that connection, her counsel filed the document that is the subject of these proceedings — a “Motion to Review Removal Application by Same Standard as Search Warrants.” The court reserved its ruling on the motion. A dispositional order was entered in the CINA case and, based on Felicia’s abandonment of the child, the case proceeded toward termination.

After the CINA case, but before the termination hearing, the juvenile court ruled on Felicia’s motion. It rejected Felicia’s constitutional claim that removal applications must be made on oath or affirmation, and that the court — -just as in the case of a search warrant — must base its decision solely on the facts contained within the “four corners” of the written document. Instead the court reasoned that section 232.78, and the accompanying statutes and rules governing emergency removals, require greater scrutiny and a higher level of proof than warrants based solely on probable cause. Accordingly the court found that section 232.78 violated neither the Warrant Clause of the Fourth Amendment of the United States Constitution nor article I, section 8 of the Iowa Constitution, or the Due Process Clause of either constitution.

Felicia appealed both the court’s ruling on the motion as well as the decree terminating her parental rights that followed shortly thereafter. Termination of her parental rights was affirmed in an unpublished opinion by our court of appeals. See In re M.L., No. 99-0362, 2000 WL 766121 (Iowa Ct.App.2000). The State, along with Michael’s guardian ad litem, then moved to dismiss the other appeal (from the motion ruling) as moot. Although the dismissal was initially granted, a three-judge panel of this court determined on reconsideration that a challenge to the constitutionality of section 232.78 was a justiciable issue of public importance that would otherwise evade appellate review. See Am. Dog Oioners Ass’n v. City of Des Moines, 469 N.W.2d 416, 417 (Iowa 1991). We treated the appeal as an original petition for writ of certiorari and transferred it to the court of appeals.

The court of appeals sustained the writ in part, and annulled it in part. Finding emergency removals under section 232.78 are subject to the Warrant Clause of the Fourth Amendment, it sustained that part of the writ which alleged the juvenile court acted illegally by not requiring an application for such order to be made on oath or affirmation. The court annulled the writ, however, to the extent it sought a finding that the juvenile court acted illegally when it held the underlying facts supporting the application need not be reduced to writing.

Both Felicia and the State sought further review. We granted their petitions, and the case is now before us.

II. Scope of Review.

Certiorari is a procedure used to test whether a court has exceeded its jurisdiction or otherwise acted illegally. Wyciskalla v. Iowa Dist. Ct., 588 N.W.2d 403, 404 (Iowa 1998). When a constitutional issue is raised, we ordinarily review de novo the evidence bearing on the claim. Lewis v. Iowa Dist. Ct., 555 N.W.2d 216, 218 (Iowa 1996). Here, however, plaintiff contends that Iowa Code section 232.78 is unconstitutional on its face because it authorizes the removal or “seizure” of a child without the issuance of a warrant based on oath or affirmation. See U.S. Const, amend. IV; Iowa Const, art. I, § 8. By its nature, a facial challenge asserts that the statute is void for every purpose and cannot be constitutionally applied to any set of facts. City of Des Moines v. Lavigne, 257 N.W.2d 485, 486 (Iowa 1977). Thus the specific facts underlying the removal are essentially irrelevant.

Because statutes enjoy a strong presumption of constitutionality, a party mounting such a challenge may prevail “only upon proof that the act clearly infringes constitutional rights and then only if every reasonable basis for support is negated.” Seeman v. Iowa Dep’t of Hu man Servs., 604 N.W.2d 53, 60 (Iowa 1999).

III. Issues on Appeal.

A. Applicability of Warrant Clause. We are confronted with a threshold question concerning Felicia’s assertion of a Fourth Amendment claim contesting Michael’s removal. The State readily concedes that Felicia’s relationship with Michael is a constitutionally protected liberty interest secured by the Due Process Clause of the Fourteenth Amendment. It insists, however, that Felicia can claim no legitimate expectation of privacy rooted in the Fourth Amendment because she was not personally subjected to search or seizure. Nor has she brought this suit in a representative capacity on behalf of her son. Throughout these proceedings Michael has been represented by a guardian ad litem who has advocated removal and opposed Felicia’s position.

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The United States Supreme Court has long held that the right to be protected from unreasonable searches and seizures is a personal one and cannot be asserted vicariously. Minnesota v. Carter, 525 U.S. 83, 87-88, 119 S.Ct. 469, 472, 142 L.Ed.2d 373, 379 (1998); Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966-67, 22 L.Ed.2d 176, 187 (1969); accord State v. Ortiz, 618 N.W.2d 556, 559, (Iowa 2000); State v. Brown, 612 N.W.2d 104, 108 & n. 2 (Iowa Ct.App.2000). While older cases refer to such a personal right as “having standing” to assert a Fourth Amendment violation, more recent eases frame the issue in terms of having a legitimate expectation of privacy protected by the Fourth Amendment. See Carter, 525 U.S. at 87-88, 119 S.Ct. at 472, 142 L.Ed.2d at 379.

Felicia asserts that the State violated her Fourth ■ Amendment right to be free from an unreasonable search and seizure when authorities removed Michael pursuant to an ex parte order issued on the basis of facts given without oath or affirmation, some of which were not reduced to writing. The amendment’s language clearly provides, however, that people shall be secure in their “persons, houses, papers, and effects.” Although Felicia argues— with substantial justification — that a child is more precious than houses, papers or effects, we are aware of no court that has applied the Fourth Amendment to redress the interest that Felicia claims for herself in these circumstances.

Numerous federal courts have recognized parents’ rights under 42 U.S.C. § 1983 to vindicate — in a representative capacity — the constitutional interests of their children whose removal from their custody was accomplished without warrant, court order or, in some cases, any finding of probable cause. These cases uniformly recognize that the seized children, not their parents, have privacy interests protected by the Fourth Amendment. See, e.g., Wooley v. City of Baton Rouge, 211 F.3d 913, 925 (5th Cir.2000) (distinguishing seized child’s Fourth Amendment rights from Fourth Amendment rights of custodian whose home was searched); Wallis v. Spencer, 202 F.3d 1126, 1137 n. 8 (9th Cir.2000) (“Because only the children were subjected to a seizure, their claims should properly be assessed under the Fourth Amendment.”); Tenenbaum v. Williams, 193 F.3d 581, 601-02 & n. 13 (2d Cir.1999), cert denied, 529 U.S. 1098, 120 S.Ct. 1832, 146 L.Ed.2d 776 (2000) (same); Malik v. Arapahoe County Dep’t of Soc. Servs., 191 F.3d 1306, 1316 n. 6 (10th Cir.1999) (“parents may assert their children’s Fourth Amendment rights on behalf of their children”) (citing Hollingsworth v. Hill, 110 F.3d 733, 738 (10th Cir.1997)); Hollingsworth, 110 F.3d at 738 (removal of child did not violate parent’s right to be free from unreasonable seizures); van Emrik v. Chemung County Dep’t of Soc. Servs., 911 F.2d 863, 867 (2d Cir.1990) (parents’ liberty interest in care and custody of child distinguished from child’s Fourth Amendment interest in bodily integrity); Donald v. Polk County, 836 F.2d 376, 384 (7th Cir.1988) (noting that only child, not parents, were object of search or seizure); Tenenbaum v. Williams, 862 F.Supp. 962, 973-74 (E.D.N.Y.1994) (although seizure of child implicates her Fourth Amendment rights, same may not be said of parents, neither of whom were subject to search or seizure).

We are aware of only one case implying a contrary view, J.B. v. Washington County, 127 F.3d 919 (10th Cir.1997). Despite a conclusion that a mother “may not assert a derivative or vicarious claim based on [a child’s] Fourth Amendment injuries,” the federal appeals court nevertheless suggested in dicta that a mother might maintain a separate claim “alleging her own distinct injuries as a result of the seizure” of her daughter. J.B., 127 F.3d at 928. Without elaborating on the scope of such a remedy, the court bypassed the issue, reasoning the mother’s standing to assert a Fourteenth Amendment violation assured her of the right to full compensation for any constitutional harm sustained. Id. We note the court’s discussion on this point appears to contradict its earlier observation in Hollingsworth that a child’s removal does not violate a parent’s Fourth Amendment rights. Hollingsworth, 110 F.3d at 738. We further note that the Hollingsworth position was recently confirmed by the court in Malik, 191 F.3d at 1316 n. 6.

We are convinced that the case before us fits none of the cases rooted in the Fourth Amendment. Felicia makes no claim that the court’s removal order, issued in accordance with Iowa Code section 232.78, resulted in a search or seizure of her person or property. And, unlike the many cases cited above, she does not purport to urge Michael’s Fourth Amendment interest in a representative capacity. Their interests are simply not the same. The juvenile court, therefore, did not err when it rejected her challenge to section 232.78 on Fourth Amendment grounds.

B. Due process analysis. There are two separate components of Felicia’s due process claim. First, she seems to allege that Fourteenth Amendment due process specifically incorporates the Fourth Amendment, thereby requiring any application for an ex parte removal order to be made in writing on oath or affirmation. Second, she claims these safeguards are required by Fourteenth Amendment procedural due process. The State, conceding Felicia’s liberty interest in her relationship with her son, argues that the pre- and post-removal procedures contained in the juvenile code provide sufficient safeguards to comport with both federal and state due process requirements. We agree.

Both the United States and Iowa Constitutions provide that “no person shall be deprived of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV; Iowa Const, art. I, § 9. It is well-established that procedural due process “imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the ... Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed.2d 18, 33 (1976). Thus any due process inquiry prompts a two-step process. First, the court must determine if the deprivation implicates a liberty or property interest. In re A.M.H., 516 N.W.2d 867, 870 (Iowa 1994). If so, the court must then decide what process is due the specific interest at issue. Id.

Here the private interest at stake is Felicia’s parental relationship with Michael. The United States Supreme Court has consistently recognized that a parent’s “care, custody, and control” of a child is a fundamental liberty interest given the greatest possible protection. Troxel v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49, 56-57 (2000) (plurality opinion); Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S.Ct. 1208, 1212-13, 31 L.Ed.2d 551, 558-59 (1972). A parent’s interest in preserving family relationships is best protected by the Due Process Clause. Alsager v. Iowa Dist. Ct, 406 F.Supp. 10, 21-22 (S.D.Iowa 1975), aff'd in parí, 545 F.2d 1137 (8th Cir.1976).

The Supreme Court has also recognized that a parent’s right to the care and custody of a child is reciprocated by the child’s liberty interest in familial association, likewise protected by the Due Process Clause. See Lehr v. Robertson, 463 U.S. 248, 256, 103 S.Ct. 2985, 2990-91, 77 L.Ed.2d 614, 623 (1983) (noting reciprocal nature of interest); Moore v. City of East Cleveland, 431 U.S. 494, 503-05, 97 S.Ct. 1932, 1937-39, 52 L.Ed.2d 531, 539-41 (1977) (noting the private realm of family relationships); Wallis, 202 F.3d at 1136 (“Parents and children have a well-elaborated constitutional right to live together without governmental interference.”). Thus Michael also has a protected liberty interest in his relationship with Felicia. The State may only interfere with these liberty interests after providing both Michael and Felicia due process of law.

Turning to the second prong of the due process inquiry, we must ask what process is due these particular liberty interests. That determination turns on a balancing of the three factors articulated in Mathews: (1) The private interest that will be affected by the State’s actions; (2) the State’s interest; and (3) the risk that the current procedure will lead to an erroneous deprivation of the interests at stake and the probable value, if any, of additional or different procedural safeguards. See In re A.M.H., 516 N.W.2d at 870. The balancing of these factors reveals that due process is a flexible concept, demanding only such procedural protections as are required by the particular facts and interests at issue. Id. Some opportunity for hearing, however, is generally regarded as a minimum requirement. Id.

Given the fundamental liberty interests implicated by the disruption of a parent-child relationship, two additional factors become important: the degree of deprivation and the deprivation’s possible length. See Mathews, 424 U.S. at 341, 96 S.Ct. at 906, 47 L.Ed.2d at 37. These two factors are interrelated here because, although the court eventually terminated Felicia’s parental rights, she still challenges Michael’s initial removal. Plainly the degree of deprivation, as measured by separation of mother and child, is great. The length of deprivation, however, cannot be fairly measured by the ultimate separation resulting in this case. This court has long declined to “‘equate the consequences of a CINA proceeding with those of parental termination.’ ” See In re A.M.H., 516 N.W.2d at 871 (quoting In re L.K.S., 451 N.W.2d 819, 822 (Iowa 1990)). The length of any temporary removal pursuant to an ex parte order under section 232.78 is, at most, ten days. See Iowa R. Juv. P. 4.6.

Turning to the State's interest, it bears the heavy responsibility of “ ‘assuring] that every child within its borders receives proper care and treatment... In re 516 N.W.2d at 871 (quoting In re I.L.G.R., 433 N.W.2d 681, 689 (Iowa 1988)). Its duty is triggered, as in this case, when a parent — perhaps through no fault of her own — fails to adequately provide for her child. Id. Prompt attention to the duty is demanded when the health or safety of the child is at risk.

Our analysis of these competing interests ultimately turns on balancing the risk of error in the procedures already built into section 232.78’s removal process'with the probable value of additional safeguards. Felicia contends that the potential for error in the current procedures is high. She asserts that, to pass constitutional muster, the facts which form the basis for issuing a removal order must be given on oath or affirmation, and in writing, to counter those risks.

Felicia rightly asserts that an oath or affirmation requirement would “create an incentive for the truth.” It is also true, as Felicia suggests, that a writing requirement would provide a record from which to review the issuing judge’s actions. Requiring either procedure in this case, she argues, may have lessened the likelihood of exaggeration or improper influence that she perceives to be at the heart of the removal order at issue.

The purported need for these additional requirements, however, must be weighed against the fact that ex parte removal orders are not, in and of themselves, reviewed. While the court is statutorily obligated to hold a hearing following the removal, the purpose of the hearing is limited to a determination of whether removal should continue. Iowa Code § 232.95(1); In re A.M.H., 516 N.W.2d at 871 (“[The court] cannot go back in time and restore custody based on alleged errors in the initial removal order.”). As the court of appeals correctly noted here, what the judge who issued the ex parte order knew when the order was signed does not necessarily affect the determination of whether the removal should continue. The purpose of the subsequent hearing is not to second-guess the reasons given for the initial removal, but to assess whether the removal should continue. While the reasons underlying both decisions may be identical, the proof supporting continued removal rests on evidence adduced at the hearing, not on the ex parte application. We think this fact minimizes the purported value of requiring a written record of the facts supporting an application for an ex parte removal order.

Of course the fact that an ex parte removal order is not reviewed necessarily increases the worth of testimony given under oath or affirmation. Requiring that information to be given on oath or affirmation would indeed discourage exaggeration or outright lies. It would also pose little additional burden, assuming the applicant would already be presenting the information to the judge. However, the record before us contains no proof that either this DHS worker or DHS workers in general furnish false or misleading information as the basis for ex parte orders. And while the DHS worker would likely be a witness in the post-removal hearing, the purpose of that hearing is to elicit facts concerning the need for continued placement, not to challenge the propriety of the initial removal. The focus of the hearing is not exclusionary in nature. Unlike a hearing to suppress evidence gathered pursuant to a criminal warrant, the post-removal hearing does not purport to undo the past; it establishes the future course of the proceedings.

On balance, we cannot say that the protections in place in section 232.78 deprive litigants, such as Felicia, of due process. Given the emergency nature of temporary removal applications, a reasonably prompt post-removal hearing meets the twin goals of protecting the child’s safety while preserving the parent’s liberty interest. The legislature could reasonably err on the side of less formality where the safety of children is at issue. Moreover, it is not unreasonable for the legislature to entrust to juvenile judges the important task of weighing the credibility of applicants for emergency orders affecting our state’s most vulnerable citizens.

In sum, we have no basis to find section 232.78 unconstitutional on its face. We therefore concur in the juvenile court’s judgment in this matter and annul the writ of certiorari.

WRIT ANNULLED.

      . In 1998, the legislature amended section 232.78. See 1998 Iowa Acts ch. 1190, §§ 4-6. Subsection (l)(d) now provides that "[l]he application for the [ex parte removal] order [must] include[ ] a statement of the facts to support the findings specified in paragraphs 'a', 'b', and 'c'." Iowa Code § 232.78(l)(d) (1999).

      . The rule provides that "[w]henever a child has been removed pursuant to Iowa Code section 232.78 ... a hearing under Iowa Code section 232.95 shall be held within ten days.... ” Iowa R. Juv. P. 4.6.

      . Although counsel urged the writing requirement as a constitutional imperative, the requirement actually derives from statute. See Iowa Code § 808.3.

      . Unless otherwise noted, references to the federal constitution apply equally to the corresponding provisions of the Iowa Constitution.


author: CARTER, Justice.

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Appellee, v. Stephen M. ENGELHARDT, Appellant.
    No. 01-0052.
    Supreme Court of Iowa.
    July 5, 2001.

      Bruce Lundy Butler, Des Moines, and William Sidney Smith of Smith, Schneider, Stiles & Serangeli, P.C., Des Moines, for appellant.
    Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for appellee.
   CARTER, Justice.

Attorney Stephen M. Engelhardt (respondent) appeals from the findings and recommendations of the grievance commission following the trial of a disciplinary complaint. The commission found that respondent had violated the Iowa Code of Professional Responsibility for Lawyers by failing to timely file state income tax returns and employee withholding tax declarations for several years and in failing to respond to the investigation of his conduct by disciplinary authorities. The commission recommended respondent’s license be suspended without possibility of reinstatement for a period of one year.

The evidence presented at the hearing before the commission revealed that prior to the calendar year 1989 respondent personally prepared and filed his federal and state income tax returns. In the spring of 1990 when his 1989 returns were due, he experienced some turmoil surrounding his impending call-up as a reserve officer for participation in the Gulf War. Consequently, a proper application to extend the filing dates was filed along with a payment of the estimated tax due. Gulf War participants were eligible for a more generous extension of time for filing income tax returns than were ordinary taxpayers. In the fall of 1990, respondent was called to active duty. His wife, Barbara, who worked in his law office in a secretarial capacity, assumed the responsibility for filing the 1989 federal and state income tax returns. Although respondent returned from the Gulf War in April of 1991, he continued the delegation of tax return preparation to Barbara for the calendar years 1990 through 1997.

Authorities from the Iowa Department of Revenue and Finance provided evidence that respondent’s 1989, 1990, and 1991 Iowa income tax returns had not been filed at the time of the disciplinary proceeding. An agent of the Internal Revenue Service indicated that federal returns for those same years were not timely filed and that during an audit in 1993 and 1994 copies of those returns were produced from respondent’s files. At this time these copies were signed by respondent and his wife and delivered to the agent for the purpose of satisfying their federal filing obligations for the 1989, 1990, and 1991 calendar years. Respondent and his wife both maintain that this constituted a second filing of their federal returns for those years and that, although state revenue authorities say otherwise, their state income tax returns for those years were also filed within the period of extension. On the evidence presented, the grievance commission found that their Iowa income tax returns for those three years were never filed.

Iowa income tax returns for respondent and his wife for the years 1992, 1993, 1994, 1995, and 1997 were filed after the statutory due date and not within any period of extension that may have been granted. In this regard, respondent’s wife testified that at times she prepared tax returns that respondent signed but that she did not file because she believed they were incorrect. With the exception of the return due for the quarter ending December 31, 1994, respondent did not file any of the Iowa quarterly employee withholding tax returns for employees in his office, nor make appropriate deposit therefor during, the period from March 31,1993, through January 31,1997.

In 1993 and 1994 an agent of the Internal Revenue Service spent considerable time in respondent’s law office auditing respondent’s federal returns for several tax years. Respondent spoke briefly with this agent but delegated the responsibility for assisting in the audit to his wife. She did not reveal to respondent that she was not providing all documents requested by the Internal Revenue Service. She testified that, when respondent would inquire as to the status of the audit, she would conceal vital information from him.

Respondent’s wife testified that at some time during the federal audit in 1993 or 1994 she revealed to respondent that the Iowa quarterly withholding tax returns and required deposits had not been filed for several quarters. Based on additional testimony of respondent and his wife on the withholding problem, the grievance commission found:

After 1993, when Respondent became aware of the income tax issues, he would occasionally ask Barbara [his wife] if she was filing withholding returns and paying the taxes. She would indicate to him that “everything was taken care of.” Respondent did nothing further to verify that his office was in compliance.

In 1995 respondent contacted a public accountant to assist his wife with the tax matters. She was resistive of the accountant’s efforts and denied him access to records that he needed to perform his function. Subsequently, respondent deferred to his wife’s judgment that the accountant was not needed and terminated his services.

In March of 1997 the Iowa Department of Revenue and Finance contacted respondent concerning his failure to file quarterly withholding tax declarations with regard to the employee payroll taxes. The discussions that ensued with revenue authorities resulted in withholding tax returns for the quarters in question (all but one calendar quarter between March 31, 1993, and January 31,1997) being filed sometime in 1997 along with required deposits. At this time respondent was also advised by state revenue authorities that his state income tax returns for several years had not been filed. Notwithstanding this knowledge, he delegated the filing of the 1997 state and federal income tax returns to his wife because he could not decipher her bookkeeping records so as to prepare the returns himself. His wife did not file the 1997 Iowa income tax return on time. Respondent did not act to verify a timely filing of that return. It does not appear in the record that any Iowa income tax return for that year was presented for his signature within the time required for a timely filing.

In the spring of 1999, respondent and his wife were each charged with five felony counts involving willful failure to timely file state income tax returns and willful failure to timely file quarterly returns of employee taxes withheld. The income tax charges did not relate to the years 1989, 1990, or 1991. They pertain to calendar years 1992, 1994, and 1995. Ultimately on September 21, 1999, a plea agreement was reached whereby respondent’s wife pled guilty to one serious misdemeanor count of willful failure to file withholding tax returns and respondent entered an Alford plea to a similar count.

Upon receiving notice of respondent’s criminal conviction, the Iowa Supreme Court Board of Professional Ethics and Conduct notified him on November 1, 1999, that it was investigating the facts surrounding this matter. This notice requested that he provide the board with a written explanation of his conduct. On November 17, 1999, respondent wrote to the board requesting an extension of time to respond to the board’s request. The board granted him an extension until December 21, 1999, in which to respond. Respondent did not respond within this time, and on January 11, 2000, he wrote the board stating he would comply with its request by the seventeenth or eighteenth of that month. The board was still waiting for the response on March 10, 2000, and, at that time, wrote respondent that it was filing a disciplinary complaint on the tax matter as well as on his failure to respond to the board’s requests for information. Respondent finally provided the information that the board sought on April 12, 2000.

Respondent was also the subject of a complaint filed by a client in March of 1999. On April 16, 1999, he sought twenty days beyond April 26 to respond to the board’s request for information concerning this complaint. This request was granted granting him until May 16 within which to respond. Respondent did not respond until June 18.

Later, on October 28, 1999, the board sought additional specific information concerning the client’s complaint. The information sought included a copy of the petition that respondent claimed to have drafted at the client’s request, a copy of respondent’s trust account ledger showing the deposit of a $350 retainer, and itemized statements of any billings or correspondence with the client. On November 17, 1999, respondent requested an additional thirty days within which to provide the requested information. The board denied that request and advised respondent that it expected a timely response to the most recent request for information. The board next heard from respondent on January 11, 2000, when he wrote stating: “If my staff will work through the weekend, I should have a formal response to you on the pending complaints by Monday or Tuesday.” The board still had not received a response on March 10, 2000, and advised respondent of its intention to file a disciplinary complaint based on his noncooperation. The information requested was not provided by respondent until sometime in October of that year.

Respondent seeks to minimize the consequences of his late filing of Iowa income tax returns and quarterly withholding tax statements on the basis that he relied in good faith on his wife’s assurance that both the income tax matters and withholding matters were being taken care of. He argues that, in the case of the Iowa income tax returns for at least two calendar years, his wife prepared returns for his signature but, without informing him, failed to file them. This assertion was corroborated by the testimony of his wife. In response to these contentions, the grievance commission concluded:

The commission unanimously believes that Respondent unreasonably and recklessly over an extended period of time wholly delegated his personal, legal responsibilities as a taxpayer to his spouse and in so doing abrogated his individual responsibilities as a taxpayer and his duties as a lawyer.
Respondent’s unreasonable course of conduct, which he voluntarily undertook over an extended period of time, resulted in his conviction of a fraudulent practice which is a crime involving moral turpitude. ■

We generally share the commission’s views concerning respondent’s culpability. With respect to the criminal conviction that occurred here, his guilty plea, notwithstanding its Alford character, precludes him from contending that he was not guilty of that offense. See AID Ins. Co. v. Chrest, 336 N.W.2d 437, 439-40 (Iowa 1983). We agree with the commission that respondent’s conduct constituted a violation of DR 1 — 102(A)(5) (conduct that is prejudicial to the administration of justice) of the Iowa Code of Professional Responsibility for Lawyers.

Respondent seeks to justify his delay in responding to the ethics board’s request for information on the ground that some of the tax information was in the possession of Iowa Department of Revenue authorities. Concerning the other material, he testified that a fire in a building adjacent to his law firm caused a major disruption of his files and, during the cleanup process, he acquired pneumonia. As the ethics board argues, it was never claimed at the time that this information was sought that the documents were exclusively in the possession of revenue authorities, and there was no attempt to release such documents to the board. Concerning the disruption of files caused by the fire and respondent’s illness, the board argues that the delay in producing the requested material was unreasonable notwithstanding those circumstances. Although respondent did face some obstacles in making a timely compliance to the board’s request, we agree with the commission’s finding that there was some foot dragging on his part. This conduct was a violation of DR 1 — 102(A)(5) (conduct that is prejudicial to the administration of justice) of the Iowa Code of Professional Responsibility for Lawyers.

Respondent urges that the only provision in the ethics board’s rules that establishes a fixed time to reply to a request for information from the board is rule 3.3, which is triggered if no response is received in twenty days. Rule 3.2 and 3.3 of the Iowa Supreme Court Board of Professional Ethics and Conduct provide:

3.2 The board shall forward to the respondent by restricted certified mail, marked “Confidential,” or by personal service in the manner of an original notice in civil suits, a copy of the complaint, requesting a written response thereto, and copies of the board’s rules and of supreme court rule 118.
3.3 If after twenty days, no such response has been received, the respondent shall be notified by restricted certified mail that unless a response is made within ten days from receipt of notice, the board may file a complaint with the grievance commission for failure to respond, and concerning all or any portion of the matter about which the original complaint was made.

Assuming that respondent’s interpretation of these rules is correct, it avails him of nothing in the present dispute. In response to two of the three requests for information, he acknowledged that he had a problem in responding within the time he was (or would be) required to respond to the board’s request. He requested an extension of time. That request resulted in a fixed time for response being established by the board. Thus, respondent may not claim that he was unaware of the time within which he was required to respond. On the third request for information, he asked for additional time, and that request was denied. Implicit in the letter denying his request was a directive that he respond within an ascertainable period of time.

In seeking to apply appropriate discipline in the present matter, we are cognizant of our decisions in other cases involving criminal convictions for violation of state revenue laws. In Committee on Professional Ethics & Conduct v. Jones, 368 N.W.2d 157, 158 (Iowa 1985), an attorney pled guilty to an aggravated misdemeanor embraced in one count of a multi-count information alleging several years of failure to file Iowa income tax returns. We found that this conduct warranted a fifteen-month suspension. In Iowa Supreme Court Board of Professional Ethics & Conduct v. Wickey, 619 N.W.2d 319, 321 (Iowa 2000), an attorney was convicted of a single aggravated misdemeanor count based on a multicount information alleging failure to timely file tax returns over a period of five years. We found that the conduct in that case warranted a suspension of six months. A six-month suspension was also deemed appropriate in Iowa Supreme Court Board of Professional Ethics & Conduct v. Runge, 588 N.W.2d 116, 119 (Iowa 1999), in which an attorney pled guilty to a single aggravated misdemeanor count to a multieount information alleging failure to file Iowa income tax returns for four years. In Ioioa Supreme Court Board of Professional Ethics & Conduct v. Morris, 604 N.W.2d 653, 656 (Iowa 2000), we concluded that an attorney who had twice been previously disciplined for ethical violations should have a six-month suspension for failure to file quarterly withholding tax declarations for his secretary over a period of more than two years.

Considering all of the circumstances of this case, we order that the license of attorney Stephen M. Engelhardt be suspended for an indefinite period of time with no possibility of reinstatement within six months from the filing of this opinion. This suspension applies to all aspects of the practice of law. See Ct. R. 118.12. Upon application for reinstatement, respondent shall have the burden to prove he has not practiced law during the period of suspension and has met the client-notification requirements of Court Rule 118.18. Costs of this proceeding are assessed against respondent, and payment of same shall be made prior to seeking reinstatement.

LICENSE SUSPENDED.

All justices concur except LARSON and SNELL, JJ., who take no part.


author: PER CURIAM.

text:
    STATE of Iowa, Appellant, v. James L. BROOKS, Appellee.
    No. 99-1834.
    Supreme Court of Iowa.
    July 5, 2001.

      Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, Chad Belville, County Attorney, and Brian Miller, Assistant County Attorney, for appellant.
    James L. Brooks, Kansas City, KS, pro se.
   PER CURIAM.

The State appeals from an order setting aside judgments of conviction on two simple misdemeanor charges tried before a magistrate. The defendant, James L. Brooks, had appealed those convictions pursuant to Iowa Rule of Criminal Procedure 54, which requires the issues on appeal to be decided by a district judge or district associate judge. When the appeal had not been decided on the merits more than a year after the notice of appeal was served and filed, a district judge ordered that the convictions be set aside because of the undue delay in considering the appeal. The State urges that undue delay in deciding an appeal under rule 54 does not provide a basis for overturning a magistrate’s judgments of conviction that are not shown to have been improperly adjudicated on the merits. We agree and reverse the judgment of the district court.

On August 1, 1998, Brooks was charged with the simple misdemeanor offenses of failure to wear a seat belt and driving without a license in violation of Iowa Code sections 321.174 and 321.445 (1997). The uniform citation and complaint that was issued to Brooks required him to appear in court on August 26. On that date, he appeared, entered a plea of not guilty to both charges, and demanded a jury trial. On October 14, 1998, both charges were tried to a jury, which found Brooks guilty of the offenses. On the same day, he was sentenced to pay a fine on each offense. He immediately served and filed a notice of appeal pursuant to rule 54.

In presenting appeals under rule 54, the parties are required to file written briefs. Unless there is a request for oral argument, the appeal is deemed submitted to the court thirty days following the filing of the appellee’s brief or the expiration of the time for filing that brief. Brooks timely filed a brief, and the appellee, State of Iowa, filed none. The next entry on the docket is an order dated August 30, 1999, which recited:

On October 14, 1998, the defendant filed a Notice of Appeal along with a Brief in support of appeal. The defendant has requested a hearing. This court does not ordinarily grant hearings on appeals from magistrate court. However, given that the Notice of Appeal was filed nearly one year ago, the court will grant a healing so that the status of this matter can be accurately determined.

Pursuant to that order, a hearing was held on October 4, 1999, which was not reported. On October 20, 1999, the court entered an order providing:

Irrespective of the evidence against the defendant, the court concludes that in the interest of justice, defendant’s appeal should be granted and the charges against him dismissed. This decision in no way goes to the merits of the case but rather is a recognition of the fact that this appeal has become stale due to no fault of the defendant.

Other facts relevant to the appeal will be considered in our discussion of the legal issues presented.

I. The Order Overturning Defendant’s Convictions.

The State urges that, even though the delay in deciding Brooks’ appeal from his misdemeanor convictions was unjustified, this omission does not provide a basis for overturning those convictions in the absence of a showing that the cases were improperly decided on the merits. In State v. Kaster, 469 N.W.2d 671 (Iowa 1991), this court held that where a criminal matter was timely tried before a magistrate but the magistrate took more than a year to render a decision the delay in deciding the case did not provide a basis for overturning the conviction that ultimately resulted. In discussing the adverse consequences flowing from the delay, we stated:

Raster argues it was ... fundamentally unfair to subject him to increased and extended anxiety during the long period and to subject his fate in the prosecutions to the fact finder’s fading memories of the evidence....
Raster did not suffer a loss of liberty during the postsubmission delay. The extension of his anxiety while awaiting a result was vexing but was somewhat minimized by the relatively minor nature of the charge. Incarceration was highly unlikely. Raster’s fear that the magistrate’s memory of the evidence might fade was also a valid concern. But, especially in view of the State’s burden of proof, we cannot say he was given an unfair trial.

Kaster, 469 N.W.2d at 672-73.

We are convinced that the adverse consequences to Brooks as a result of the delay in deciding his appeal are no greater than and may be less than the consequences to the defendant in the Kaster case as a result of the decisional delay following his trial. Brooks did not suffer a loss of liberty as a result of the delay. The delay in the decision on appeal presents no problem of a trier of fact’s dimming memory. Moreover, Brooks had already had his trial and been found guilty, a circumstance that inextricably links the prejudice from the delay in considering the appeal to the outcome of the appeal. If the magistrate’s judgments are affirmed on the merits, he will suffer no prejudice. If the judgments are reversed, his only prejudice is a delay in receiving the good news. We find no basis for finding that the period of unnecessary delay in deciding the appeal should be grounds for reversal of the judgment absent a consideration of the merits.

In so deciding, we do not minimize the seriousness of the departure from an orderly judicial process that was allowed to occur in this case. There should be an established procedure in each county to monitor the filing of briefs in misdemeanor appeals under rule 54. When the briefs have been filed or the time for filing has expired, the case should be immediately assigned to a district judge or a district associate judge for prompt decision. Obviously, that was not done here. Such an omission can only result in an unfavorable view of the judicial process by those persons awaiting a decision.

II. Delay of Defendant’s Trial Due to Jurisdictional Considerations.

Although not necessary to the decision on this appeal, we discuss a point of confusion in the district court, which delayed defendant’s trial before the magistrate. When defendant appeared in court on October 14, 1998, and entered pleas of not guilty, the magistrate set an appearance bond. Because defendant was unable to post the bond, he was imprisoned while awaiting trial. His case was scheduled for a prompt jury trial. However, because he sought appellate review of the order fixing bond, the magistrate continued his trial on the belief that the appeal of the bond matter deprived his court of jurisdiction to proceed further with the case. This resulted in defendant spending more time in jail than if the trial had proceeded as regularly scheduled.

The magistrate was mistaken in his belief that he did not have jurisdiction to proceed with the trial while the bond issue was pending before this court. Although it is a general rule that a trial court loses jurisdiction over the merits of a controversy once an appeal is perfected, see Shedlock v. Polk County District Court, 534 N.W.2d 656, 658 (Iowa 1995), and Wolf v. City of Ely, 493 N.W.2d 846, 848 (Iowa 1992), there are exceptions to the general rule. The district court retains jurisdiction over disputes between the parties, which are collateral to the subject matter of the appeal. Shedlock, 534 N.W.2d at 658; In re Estate of Tollefsrud, 275 N.W.2d 412, 417 (Iowa 1979). We are convinced that the present case fell within these exceptions and that the magistrate could have proceeded with the trial as originally scheduled.

We have considered all issues presented and conclude that the judgment of the district court should be reversed. The case is remanded to that court for a determination of the merits of Brooks’ appeal from the judgments of conviction before the magistrate.

REVERSED AND REMANDED.

All justices concur except LAVORATO, C.J., who takes no part.

      . Brooks argues that rule 54 establishes a fixed period of 30 days for deciding his appeal after the briefs have been filed. That is not correct. The 30-day period referred to is the time at which the case is deemed submitted in the absence of the court requesting oral argument.