Hensler v. City Of Davenport

• Decision Date: 12 November 2010
• Docket Number: No. 09-0608.,09-0608.
• Citation: 790 N.W.2d 569
• Parties: Anne HENSLER, Appellee, v. CITY OF DAVENPORT, Appellant.
• Court: Iowa Supreme Court

790 N.W.2d 569

Anne HENSLER, Appellee,

v.CITY OF DAVENPORT, Appellant.

No. 09-0608.

Supreme Court of Iowa.

Nov. 12, 2010.

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Thomas D. Warner, Davenport, and Christopher S. Jackson, Davenport, for appellant.

Randall C. Wilson of ACLU of Iowa Foundation, Des Moines, and Michael J. McCarthy of McCarthy, Lammers & Hines, Davenport, for appellee.

WIGGINS, Justice.

The City of Davenport appeals a district court order finding its parental responsibility ordinance unconstitutional. The city also appeals the amount of the attorney fees awarded to the plaintiff. The plaintiff cross-appeals the attorney fee award. On appeal, we find the presumption of failure to exercise reasonable parental control under the Davenport Parental Responsibility Ordinance is unconstitutional and sever the unconstitutional portion of the ordinance from the remainder of the ordinance. We also vacate the attorney fee award and remand the case to the district court to reconsider its attorney fee award by considering the level of the plaintiff's success as one of the factors in determining reasonable attorney fees. Accordingly, we affirm in part and reverse in part the judgment of the district court, remand the case to the district court to reconsider its award of attorney fees, and enter judgment consistent with this opinion.

I. The Davenport Parental Responsibility Ordinance.

On July 21, 1999, the Davenport City Council adopted ordinance 9.56, entitled “Parental Responsibility.” The ordinance's stated purpose is to “preserve the peace, safety, health and welfare of the citizens of Davenport, Iowa, and the city's visitors and guests.” Davenport Mun.Code § 9.56.010 (2006). The ordinance further states its findings and remedial objectives as follows:

The city council finds that there has been an increase in the number of criminal acts committed by juveniles. The city council further finds that those who bring children into the world, or those who assume a parenting role, but who fail to effectively teach, train, guide and control them, should be accountable to the community under the law. Those who need assistance and training should be aided; those who neglect their parenting duties should be encouraged to be more diligent, through civil sanctions, if necessary. This chapter should be construed to achieve these remedial objectives by addressing situations where parents or guardians have failed or neglected to act responsibly or reasonably in the supervision of their minor children.

Id. There is no legislative history supporting passage of the ordinance beyond the minutes of the Davenport City Council's meetings, which only record the council members' votes.

The liability portions of the ordinance provide as follows:

9.56.020 Definitions.

The following words shall have the following meanings when used in this chapter, unless a different meaning is clear from context or usage.

A. “Parent” means a father, mother, legal guardian or any other person having or who has assumed the care, control or custody in the sense that the child lives with them and they look after that child, either by court order or on a voluntary basis.

B. “Minor” means any person who has not attained the age of eighteen years old.

C. “Adjudication” means that a juvenile court has entered a finding of fact that a minor has committed a delinquent act as defined by Iowa law.

D. “Informal adjustment” means a disposition of a juvenile investigation or case which results in a nonjudicial admission of guilt and nonjudicial agreement between juvenile court services and a minor. For purposes of this chapter a consent decree as provided for by Iowa law shall be deemed an informal adjustment.

E. “Occurrence” means a law enforcement agency has probable cause to believe a particular child engaged in a delinquent act and has filed a delinquency complaint with the court based upon such probable cause or has otherwise taken said child into custody.

9.56.030 Parental responsibility.

The parent of a minor shall not fail to exercise reasonable control over said minor.

9.56.040 Parental duties.

A. It is the duty of the parent of a minor child or minor children to exercise sufficient control over a said minor(s) to prevent the minor(s) from committing any unlawful act in violation of federal law, state law or city ordinance. Any occurrence is a breach of this duty.

A second occurrence or an adjudication or the entry of an informal adjustment agreement involving a minor related to any unlawful act, and prior notification to the parent of the parental responsibility ordinance including notice of possible fines or penalties establishes a rebuttable presumption that the parent failed to exercise reasonable parental control of said parent's minor(s).

B. The presumption that a parent has failed to exercise reasonable parental control of a minor may be rebutted by evidence that establishes that the parent:

1. Kept illegal drugs and/or weapons out of the home; and kept legal weapons locked and inaccessible to minors.

2. Took reasonable and responsible efforts to require their minor to observe the curfew ordinance.

3. Took reasonable and responsible actions to insure that their minor regularly attended school sessions and limited school absences to situations approved by the parent.

4. Arranged adequate supervision of their minor child by a competent adult under circumstances when the parent was unable to personally supervise their child.

5. Took reasonable and responsible action to prevent, deter or report their minor child's involvement in unlawful activity in violation of federal law, state law or city ordinance; i.e., reported stolen property to police, turned in illegal or dangerous weapons to the police, prevented the minor's association with known juvenile delinquents.

6. Sought assistance from appropriate agencies prior to the adjudication or informal adjustment.

Id. §§ 9.56.020-.040 (emphasis added). Finally, the penalties the ordinance imposes increase with subsequent “occurrences:”

9.56.050 Penalties.

Any person who violates this chapter shall be guilty of a municipal infraction violation. A separate and distinct offense shall be regarded as being committed each day on which such person violates the provisions of this chapter.

A. Upon the occurrence of a first offense the city will issue the parent a warning letter which states that the parent is in violation of the parental responsibility ordinance together with a description of the nature of the parent's violation and a statement setting forth the fines and/or consequences of future violations.

B. Upon the occurrence of a second offense the parent will be ordered to attend and successfully complete a recognized course of instruction on parenting skills and/or techniques. A parent failing to successfully complete such course may be subject to contempt of court.

C. Upon the occurrence of a third or subsequent offense the penalty shall be a civil penalty in amount of at least one hundred dollars but not more than seven hundred fifty dollars and such other order, if any, that the court deems equitable.

Id. § 9.56.050.

II. Background Facts and Proceedings.

Anne Hensler is a registered nurse living in Davenport. Anne has three children, Holly (fifteen), Nicholas (seventeen), and Peter (nineteen). Holly and Nicholas still live with Anne. Approximately fourteen years ago Anne was divorced, and since that time she has raised Holly, Nicholas, and Peter on her own with help from her mother and father. Anne's mother was especially helpful and was a substantial influence in the lives of Anne's children. Anne's children were well behaved and good students. Nicholas excelled in math and science, was an honor roll student, and was a member of the math club and science club. However, at the end of 2004 Anne's mother suddenly became terminally ill and died in December. Anne's children were very close to her, and her death shocked everyone.

Soon after the death of Anne's mother, kids at school began calling Nicholas “brainiac,” and in response, Nicholas began to withdraw and did not want to go to school. Nicholas began talking less and started hanging out with different friends who Anne did not know. His grades began to drop, and he stopped participating in sports, as well as the math and science clubs. He became strong willed and difficult to control. By this time, Nicholas was approximately 6'2? tall and weighed approximately 200 pounds. Due to his size, his mother could not physically control him.

On November 30, 2007, Anne first learned Nicholas was smoking marijuana when the Davenport police caught him smoking marijuana with other minors in a school parking lot at 4:11 a.m. The police took Nicholas into custody for violation of the city's curfew ordinance and possession of a controlled substance. The school gave Nicholas a three-day suspension. The police referred him to the juvenile court due to this incident. In addition, the city issued Anne a “Parental Responsibility Ordinance Warning Letter” for her first violation of the ordinance. After this incident, Nicholas continued to smoke marijuana, sneak around, and cut class. The school would call Anne and tell her when Nicholas was missing from school periods, and she resorted to going to the school periodically to make sure he was in class. Anne also began reading parenting books to try to figure out how to cope with Nicholas's behavior.

On December 13 at approximately 9:51 p.m., Davenport police officers stopped a vehicle occupied by three minors for traffic violations and discovered two marijuana pipes and a baggie with marijuana residue in it. Nicholas was one of the passengers of the vehicle, and the police transported him to the station because he was being uncooperative at the scene. The police issued Nicholas citations for possession of a controlled substance and...