Grefe Sidney http://www.grefesidney.com Just another WordPress site Fri, 13 Jul 2018 19:46:29 +0000 en-US hourly 1 The Recent Amendments to Iowa’s Dramshop Act http://www.grefesidney.com/news/2018/07/the-recent-amendments-to-iowas-dramshop-act/ http://www.grefesidney.com/news/2018/07/the-recent-amendments-to-iowas-dramshop-act/#comments Thu, 12 Jul 2018 15:28:18 +0000 http://www.grefesidney.com/?p=2227 Adam Zenor’s article reviewing the Iowa legislature’s recent amendments to Iowa’s Dramshop Act was featured in the Iowa Lawyer, a publication by the Iowa Bar Association.  These recent amendments went into effect July 1, 2018. Should you have interest in the amendments or their potential impact, please feel free to link to the feature article […]

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Adam Zenor’s article reviewing the Iowa legislature’s recent amendments to Iowa’s Dramshop Act was featured in the Iowa Lawyer, a publication by the Iowa Bar Association.  These recent amendments went into effect July 1, 2018.

Should you have interest in the amendments or their potential impact, please feel free to link to the feature article here:

The Iowa Lawyer Feature – Zenor – A Review of the Recent Amendments to Iowa’s Dramshop Act

 

 

 

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THE COURT EXPANDS THE ABILITY TO CHALLENGE WRONGFUL CONVICTIONS http://www.grefesidney.com/news/2018/05/the-court-expands-the-ability-to-challenge-wrongful-convictions/ http://www.grefesidney.com/news/2018/05/the-court-expands-the-ability-to-challenge-wrongful-convictions/#comments Mon, 21 May 2018 12:30:32 +0000 http://www.grefesidney.com/?p=2203   Following a plea of guilty and sentence, Jacob Lee Schimdt filed an application for postconviction-relief, claiming he was actually innocent although he knowingly and voluntarily pled guilty to the charged crimes.  As a result of a recantation by the victim, Schmidt claims actual-innocence.  The Iowa Supreme Court took up the issue. Prior to this […]

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Following a plea of guilty and sentence, Jacob Lee Schimdt filed an application for postconviction-relief, claiming he was actually innocent although he knowingly and voluntarily pled guilty to the charged crimes.  As a result of a recantation by the victim, Schmidt claims actual-innocence.  The Iowa Supreme Court took up the issue.

Prior to this decision, the Iowa Supreme Court held that a plea of guilty prevented a defendant from later challenging the validity of that plea on all but the voluntary and intelligent nature of the plea.  Now, the Iowa Supreme Court held that the Iowa Constitution allows freestanding claims of actual innocence, so applicants may bring such claims to attack their pleas even though they entered their pleas knowingly and voluntarily.  The Court reasoned that, in certain circumstances, innocent people will plead guilty in exchange for reduced charges and shorter sentences.  The Court further stated that because the Iowa Code allows exoneration based on DNA evidence, there should be no distinction with that exception and exoneration based on other reliable evidence.

The Court held that the Iowa Constitution affords greater individual rights than does the United States Constitution.  The Court held that Article I, section 9 of the Iowa constitution provided an avenue for defendants who prove they are factually innocent to challenge these convictions.  The Court also held that Article I, section 17’s prohibition on cruel and unusual punishment was also implicated when actually innocent defendants are incarcerated.

The Court held that for an applicant to succeed on a freestanding actual-innocence claim, the applicant must show by clear and convincing evidence that, despite the evidence of guilt supporting the conviction, no reasonable fact finder could convict the applicant of the crimes for which the sentencing court found the applicant guilty in light of all the evidence, including the newly discovered evidence.  Finally, the Court held that the Iowa Constitution provides a floor to bring freestanding claims of actual innocence under the postconviction-relief statute, specifically sections 822.2(1)(a) and (d).

Schmidt v. State, No. 15-1408, 2018 WL 1440111, at *1 (Iowa Mar. 23, 2018)

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STATEMENTS CONCERNING LAWFUL DISCRIMINATION IN TENANCY DISALLOWED BY THE IOWA COURT OF APPEALS http://www.grefesidney.com/news/2018/05/statements-concerning-lawful-discrimination-in-tenancy-disallowed-by-the-iowa-court-of-appeals/ http://www.grefesidney.com/news/2018/05/statements-concerning-lawful-discrimination-in-tenancy-disallowed-by-the-iowa-court-of-appeals/#comments Mon, 21 May 2018 12:10:57 +0000 http://www.grefesidney.com/?p=2205   Theresa Seeberger evicted a tenant following her discovery of the tenant’s pregnancy.  As a result, the tenant sought protection from the Davenport Civil Rights Commission.  Following adjudication at the administrative level and an appeal to the district court, the Davenport Civil Rights Commission and Seeberger appealed the district court ruling that (1) Seeberger’s statements […]

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Theresa Seeberger evicted a tenant following her discovery of the tenant’s pregnancy.  As a result, the tenant sought protection from the Davenport Civil Rights Commission.  Following adjudication at the administrative level and an appeal to the district court, the Davenport Civil Rights Commission and Seeberger appealed the district court ruling that (1) Seeberger’s statements regarding her tenant’s pregnancy and the resulting eviction were not protected by the First Amendment and (2) the Davenport municipal code did not allow an award of attorney’s fees.

Seeberger owned a three-bedroom residential property in Davenport Iowa.  In August of 2013, Seeberger rented a rooms to Michelle Schreurs and her daughter.  The parties did not have a written agreement.  On September 16, 2014, Seeberger visited the property and found a bottle of prenatal vitamins.  Seeberger then confronted Scheur.  Scheur stated that her daughter, age fifteen, was pregnant.  As a result, Seeberger informed that they had thirty days to vacate the property.

In November 2014, Schreurs filed a housing-discrimination complaint with the Commission alleging Seeberger discriminated against her on the basis of her familial status by making discriminatory statements.  Following an investigation, the Commission issued a probable cause finding.  Following this finding, an administrative law judge (ALJ) held a hearing, finding that Seeberger’s statements were disctiminatory and awarding the Schreurs $35,000 in emotional distress damages.  The Commission approved the ALJ’s decision, with the exception that the award of damages was reduced to $17,500.00.

In February 2016, Seeberger filed a petition for judicial review.  Seeberger, among other things, alleged that the agency decision violated her freedom of speech rights.  The district court entered a ruling, finding (1) Seeberger’s statements amounted to commercial speech, their utterance was illegal, and they were therefore not protected by the First Amendment and (2) the Davenport municipal code did not authorize an award of attorney fees in the context of a discriminatory housing claim.

The Iowa Court of Appeals found that although Seeberger was allowed to discriminate on the basis of familiar status, finding that Seeberger owned less than three residential rental units and was therefore not subject to the municipal code provision, she nonetheless was disallowed from making a statement concerning this lawful discrimination.  The Court of Appeals found that the code’s prohibition on Seeberger’s speech was not in violation of the First Amendment and that the legitimate ends of preventing the “stigmas associated with knowingly being discriminated against,” was not more extensive than necessary to serve the substantial interests in preventing discriminatory statements.  The Court of Appeals additionally found that attorney’s fees were not barred in administrative proceedings and remanded the case for the district court to consider whether the attorney-fee award was excessive.

An application for further review with the Iowa Supreme Court has been filed.

Theresa Seeberger v. Davenport Civil Rights Commission, No. 16-1534, 2018 WL 1863209, at *1 (Iowa Ct. App. Apr. 18, 2018)

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IOWA DEPARTMENT OF TRANSPORTATION RULES ON TRAFFIC CAM PLACEMENTS DECLARED VOID BY COURT http://www.grefesidney.com/news/2018/05/iowa-department-of-transportation-rules-on-traffic-cam-placements-declared-void-by-court/ http://www.grefesidney.com/news/2018/05/iowa-department-of-transportation-rules-on-traffic-cam-placements-declared-void-by-court/#comments Mon, 21 May 2018 12:00:34 +0000 http://www.grefesidney.com/?p=2208   The Iowa Supreme Court determines that the Iowa Department of Transportation did not have the authority from the legislature to issue rules regulating the use of automated traffic enforcement (ATE) systems.  As such, the Court found that the IDOT’s rules regulating where cities could place ATE systems was invalid and unenforceable. The cities of […]

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The Iowa Supreme Court determines that the Iowa Department of Transportation did not have the authority from the legislature to issue rules regulating the use of automated traffic enforcement (ATE) systems.  As such, the Court found that the IDOT’s rules regulating where cities could place ATE systems was invalid and unenforceable.

The cities of Cedar Rapids, Des Moines, and Mustatine (the cities) brought suit following the IDOT’s efforts to limit and regulate the cities’ ATE systems placement.  The IDOT ordered the cities to remove some of their ATE systems.  The cities argued that this order (1) infringed on the Cities’ home rule authority; (2) the IDOT lacked statutory authority for these rules; (3) the IDOT did not follow proper rulemaking procedures; and (4) the IDOT’s directives to remove certain ATE systems were arbitrary and capricious.

The Court held that the IDOT’s statutory authority did not grant it the ability to create rules and regulations dictating the placement and continued use of ATE systems.  As such, the Court held that the IDOT did not have the authority to order the cities to remove these ATE systems.

City of Des Moines, Iowa, City of Muscatine, Iowa, and City of Cedar Rapids, Iowa, v. Iowa Department of Transportation and Iowa Transportation Commission, No. 17-0686, (Iowa April 27, 2018).

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IOWA CREATES FIRST-TIME HOMEBUYER SAVINGS ACCOUNTS http://www.grefesidney.com/news/2018/04/iowa-creates-first-time-homebuyer-savings-accounts/ http://www.grefesidney.com/news/2018/04/iowa-creates-first-time-homebuyer-savings-accounts/#comments Tue, 24 Apr 2018 16:35:33 +0000 http://www.grefesidney.com/?p=2198 A new law went into effect this year that provided for the creation of First-Time Homebuyer Savings Accounts (FTHSA.) These accounts are special savings accounts that allow for tax deductions to the account holder. In order to qualify as a FTHSA, the account holder, upon opening the account, must designate a beneficiary of the account […]

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A new law went into effect this year that provided for the creation of First-Time Homebuyer Savings Accounts (FTHSA.) These accounts are special savings accounts that allow for tax deductions to the account holder. In order to qualify as a FTHSA, the account holder, upon opening the account, must designate a beneficiary of the account who qualifies as a first-time homebuyer. A first-time homebuyer is an Iowa resident who has not owned a single or multifamily residence for at least three years.

The beneficiary may either be the account holder or someone else. For example, a parent who already owns a home could open a FTHSA and list his or her child as the beneficiary provided the child qualified as a first-time homebuyer. Additionally, an individual may open multiple accounts provided each account has a different beneficiary (e.g., a parent could open three different account for his or her three children.)

For 2018, individual account holders may deduct up to $2,000 annually ($4,000 for married couples filing jointly) from their Iowa income tax for contributions made to the account. In addition to the annual deduction limit, the account holder is also subject to a lifetime limit of ten times the account holder’s annual deduction limit. In other words, if the annual deduction were to remain at $2,000 for ten years, an individual account holder would be subject to a $20,000 lifetime deduction limit for the account.

In addition to the account holder’s ability to make deductions on account contributions, the account holder may also deduct interest accrued on the account. It is important to note that if a withdrawal is made from the account for any non-qualifying purpose, such as to pay for a new car, the account holder will need to add that amount to his or her net income for the year to make up for the tax deduction he or she previously received due to putting that money into the account. Finally, account holders must fill out an annual report form and include it with their Iowa income tax return each year.

If a FTHSA sounds like something you would be interested in, contact a financial advisor for further information.

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WHY A HEALTH SAVINGS ACCOUNT MIGHT BE FOR YOU http://www.grefesidney.com/news/2018/04/why-a-health-savings-account-might-be-for-you/ http://www.grefesidney.com/news/2018/04/why-a-health-savings-account-might-be-for-you/#comments Tue, 24 Apr 2018 13:25:49 +0000 http://www.grefesidney.com/?p=2196 A Health Savings Account (HSA) is a “triple-tax-advantaged” medical savings account available to taxpayers enrolled in High-Deductible Health Plans (HDHP.) It allows taxpayers to use funds from the account to pay for certain qualified medical expenses. An HSA is simply a special type of savings account that can be used to pay for qualified healthcare […]

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A Health Savings Account (HSA) is a “triple-tax-advantaged” medical savings account available to taxpayers enrolled in High-Deductible Health Plans (HDHP.) It allows taxpayers to use funds from the account to pay for certain qualified medical expenses.
An HSA is simply a special type of savings account that can be used to pay for qualified healthcare expenses. It is said to have a triple-tax advantage because, one, contributions made to the account are tax-deductible, two, the interest earned on the account is tax free, and, three, withdrawals from the account for qualified medical expenses are tax free.

In order to set up an HSA, taxpayers need to be enrolled in a HDHP. An HDHP is a health insurance plan that has a deductible of at least $1,300 in the case of an individual and at least $2,600 in the case of a family. Additionally, HDHP holders’ out-of-pocket expenses for the year (including deductibles, copayments, and coinsurance,) cannot exceed $6,550 in the case of individuals and $13,100 in the case of families (This limit does not apply to out-of-network services.)

Upon enrollment in an HDHP and the creation of an HSA, account holders will typically pay for their medical expenses without being reimbursed by their HDHP until they reach their annual deductible. When they pay for qualified medical expenses that aren’t covered by the HDHP, they may request tax-free distributions from their HSA to pay or be reimbursed for their expenses. If funds from the HSA are requested for non-qualified expenses, they will be subject to income tax and as well as an additional 20% penalty. Upon reaching the age of 65, however, the 20% penalty disappears.

In addition to the tax benefits, HSAs have additional benefits. Unlike flexible spending accounts, which allow holders to carry-over a maximum of $500 each year, HSAs have no limit on carry-overs or when the funds may be used.

While many people might be tempted by the ability to use HSA funds to pay current medical expenses without any tax consequences, the real benefit of an HSA comes from saving the HSA and allowing it accumulate interest tax-free. Doing so can allow holders to take greater advantage of the tax benefits and use the money later in life once the interest has appreciated and healthcare expenses are likely to be higher.

Those interested in investing larger amounts into their HSAs will need to be aware of the yearly contribution limits. For 2017, an individual may contribute up to $3,400 and a family may contribute up to $6,750 to their HSA. If you are an eligible individual who is age 55 or older at the end of your tax year, your contribution limit is increased by $1,000.

While there are many benefits to opening an HSA, there are several things people should think about before deciding to do so. When setting up an HSA, holders typically designate a beneficiary. If the beneficiary is your spouse, then the HSA automatically is treated as your spouse’s upon your death. However, if you don’t designate your spouse as the beneficiary, then the HSA ceases to exist upon your death and the fair market value of the HSA will be deemed taxable income to the beneficiary. Another thing to consider is that, with a HDHP, although your monthly premiums are lower, it can still be difficult to come up with enough money to meet the high deductible.

While the HSA clearly has many benefits, it is not necessarily for everyone. To determine whether it might be a good plan for you, consult with a trusted financial advisor.

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STANDARD DEDUCTION CHANGES http://www.grefesidney.com/news/2018/04/standard-deduction-changes/ http://www.grefesidney.com/news/2018/04/standard-deduction-changes/#comments Tue, 24 Apr 2018 13:15:16 +0000 http://www.grefesidney.com/?p=2194 In December, President Trump signed a new tax bill into law. One noticeable change was the doubling of the standard deduction. This means that for single taxpayers, the standard deduction has increased to $12,000. For married taxpayers who file a joint tax return with their spouse, and for taxpayers who file as a “Surviving Spouse,” […]

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In December, President Trump signed a new tax bill into law. One noticeable change was the doubling of the standard deduction. This means that for single taxpayers, the standard deduction has increased to $12,000. For married taxpayers who file a joint tax return with their spouse, and for taxpayers who file as a “Surviving Spouse,” the standard deduction has increased to $24,000. For taxpayers who file as “Head of Household,” the standard deduction has increased to $18,000.
In addition to the standard deduction, taxpayers who are age 65 or older, blind, or disabled may still deduct an additional $1,600 if they are single or an additional $1,300 for each taxpayer if they are married.
It is important to note that under the new law, the personal exemption, which previously could be deducted in addition to the standard deduction, has been repealed.
For further clarification, when it comes to filing one’s tax returns for 2018, taxpayers have two options: they may choose to take the standard deduction or they may itemize their deductions. The standard deduction is a set amount that taxpayers may choose to deduct from their total gross income each year. This is the simplest way to file one’s taxes; however, the standard deduction does not take any of the taxpayers’ expenditures for the year into consideration. Itemizing allows taxpayers to calculate their total gross income for the year and then subtract eligible deductions – such as mortgage interest, state and local taxes, charitable contributions, etc. – which can exceed the set standard deduction.
Previously, choosing to itemize could save taxpayers money; although, the paperwork involved could make doing so a difficult task. Now that the standard deduction has nearly doubled, more taxpayers are likely to choose the standard deduction over itemizing. Taxpayers should consult with their tax advisor to determine whether the standard deduction is the best option for them.

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IOWA SUPREME COURT HOLDS NO EXCEPTION TO EXCLUSION UNDER ALL-RISK POLICY APPLIED http://www.grefesidney.com/news/2018/04/iowa-supreme-court-holds-no-exception-to-exclusion-under-all-risk-policy-applied/ http://www.grefesidney.com/news/2018/04/iowa-supreme-court-holds-no-exception-to-exclusion-under-all-risk-policy-applied/#comments Mon, 23 Apr 2018 15:15:24 +0000 http://www.grefesidney.com/?p=2181 In November, 2014, a squirrel entered an electrical substation owned by the City of West Liberty, Iowa and, after climbing on equipment, caused a completed circuit and thereafter electrical arc resulted in substantial damage to the City’s electrical substation.  Following the damage, the City submitted a claim to Employers Mutual Casualty Company (EMC).  EMC denied […]

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In November, 2014, a squirrel entered an electrical substation owned by the City of West Liberty, Iowa and, after climbing on equipment, caused a completed circuit and thereafter electrical arc resulted in substantial damage to the City’s electrical substation.  Following the damage, the City submitted a claim to Employers Mutual Casualty Company (EMC).  EMC denied the City’s claim, citing the insurance policy’s “Electrical Currents” exclusion.  The City filed suit, seeking declaration that its damage was covered under the policy.

The insurance policy at issue was an all-risks policy, covering any risk of direct physical loss or damage to the covered property unless specifically excluded by the policy.  The parties did not dispute that the City suffered a direct physical loss to covered property at a covered location during the policy period.

EMC argued that the insurance policy specifically and clearly stated EMC would not pay for a loss caused by arcing.  The City contends, however, a fortuitous event—the squirrel coming into contact simultaneously with the energized cable and grounded frame—immediately set in motion the arcing event that caused the City’s property damage, such event was the efficient proximate cause of the City’s loss, and the loss is therefore covered, not excluded, under the policy.

The Iowa Court of Appeals determined that this loss was caused by arcing, finding that no express exception to the policy’s exclusion for arcing applied.  The Court determined that whether or not the squirrel completed the electrical circuit, the damages were still caused by the arcing.  As such, the Iowa Supreme Court found in favor of EMC.

City of W. Liberty v. Employers Mut. Cas. Co., No. 16-1972, 2018 WL 1182764 (Iowa Ct. App. Mar. 7, 2018)

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CORPORATE EMPLOYERS DO NOT HAVE FAMILY MEMBERS http://www.grefesidney.com/news/2018/04/corporate-employers-do-not-have-family-members/ http://www.grefesidney.com/news/2018/04/corporate-employers-do-not-have-family-members/#comments Mon, 23 Apr 2018 14:45:21 +0000 http://www.grefesidney.com/?p=2183 Patricia Georgesen started a small business named Derby Insurance Agency (Derby), a subchapter S corporation, in 1991.  Her husband also worked at Derby Insurance.  In 1998, Joanne Cote began working at Derby as a customer service representative.  On October 12, 2012, Derby sold its assets, goodwill, and book of business to Derby Insurance Services, Inc. […]

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Patricia Georgesen started a small business named Derby Insurance Agency (Derby), a subchapter S corporation, in 1991.  Her husband also worked at Derby Insurance.  In 1998, Joanne Cote began working at Derby as a customer service representative.  On October 12, 2012, Derby sold its assets, goodwill, and book of business to Derby Insurance Services, Inc. (Services).

Cote filed a complaint of discrimination with the Iowa Civil Rights Commission on April 10, 2013.  In response, Derby filed a motion for summary judgment, alleging that the Iowa Civil Rights Act did not apply because Derby regularly employed fewer than four individuals, not counting Patricia’s family members, citing the family member exception contained in Iowa Code section 216.6(6)(a).

The Iowa Supreme Court took up the issue to determine if a corporate employer may claim the family-member exception to the numerosity requirement in section 216.6(6)(a) of the Iowa Code.  Derby argued that when the employer is a corporation, the family members of the sole owner should be considered the employer’s family members.  Of note, Iowa Code section 216 prohibits various discriminatory employment practices, but the statute does not apply to any employer who regularly employs less than four individuals.  The Iowa Supreme Court held that corporate employers cannot have family members as applied to section 216.  As such, the Court determined that Derby did not qualify for the family-member exception.

Cote v. Derby Ins. Agency, Inc., No. 16-0558, 2018 WL 1224522 (Iowa Mar. 9, 2018)

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A NEW FACE AT GREFE AND SIDNEY http://www.grefesidney.com/news/2018/04/a-new-face-at-grefe-and-sidney/ http://www.grefesidney.com/news/2018/04/a-new-face-at-grefe-and-sidney/#comments Mon, 23 Apr 2018 14:15:09 +0000 http://www.grefesidney.com/?p=2185 Please join us in welcoming to Grefe and Sidney’s Litigation Division, AnneMarie Spellman McDevitt. Her practice includes general civil litigation and workers’ compensation matters. AnneMarie represents employers, insurers and claimants before the Iowa Workers’ Compensation Commissioner. She is a graduate of the University of Iowa and a graduate of Creighton University School of Law. AnneMarie […]

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Please join us in welcoming to Grefe and Sidney’s Litigation Division, AnneMarie Spellman McDevitt. Her practice includes general civil litigation and workers’ compensation matters. AnneMarie represents employers, insurers and claimants before the Iowa Workers’ Compensation Commissioner. She is a graduate of the University of Iowa and a graduate of Creighton University School of Law.

AnneMarie is a member of the Iowa Association of Workers Compensation Attorneys, the Iowa State Bar Association, and the Dallas County Bar Association.  She has also served on the Iowa District 5A Judicial Nominating Commission and the Dallas County Magistrate Appointing Commission. She also served three terms as the District 5A Representative on the Executive Council of the Young Lawyers Division of the Iowa State Bar Association.

Outside of practicing law, AnneMarie is an active volunteer within her local community including serving on the City of Perry Planning and Zoning Commission, on the local school board, and coaching a Middle School Mock Trial Team.

AnnMarie_Headshot_BW

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