McKeever v. Gerard, 84-1042

• Decision Date: 22 May 1985
• Docket Number: No. 84-1042,84-1042
• Citation: 368 N.W.2d 116
• Parties: Lynn Anne McKEEVER, Appellant, v. Stephen GERARD, Magistrate, Appellee.
• Court: Iowa Supreme Court

Page 116

368 N.W.2d 116

Lynn Anne McKEEVER, Appellant, v. Stephen GERARD, Magistrate, Appellee.

No. 84-1042.

Supreme Court of Iowa.

May 22, 1985.

Barbara A. Schwartz, Iowa City, Lynn Anne McKeever, pro se, Iowa City, and Mike Boock and Leslie Lee-Dixon, Student Legal Interns, Iowa City, for appellant.

Linda A. McGuire, Asst. Johnson Co. Atty., and Randall Tilton, Student Legal Intern, Iowa City, for appellee.

Considered en banc.

LARSON, Justice.

Lynn McKeever, plaintiff in this certiorari action, was convicted by a jury, before a judicial magistrate of public intoxication in violation of Iowa Code section 123.46 (1983). Her motions for new trial and judgment notwithstanding the verdict were overruled. Upon the request of McKeever, a deferred judgment was then ordered by the magistrate. See Iowa Code § 907.3. McKeever appealed to a district court judge and simultaneously brought the certiorari action against the magistrate, Steven Gerard, claiming "illegality" within the meaning of Iowa Rule of Civil Procedure 306 concerning his trial and post-trial rulings.

The cases were consolidated in the district court. The court, L. Vern Robinson, Judge, ruled (1) the appeal must be dismissed, because in a deferred-judgment case, there is no judgment from which to appeal; and (2) a certiorari action such as this, brought to challenge the same alleged errors, is in reality only a back-door appeal, thus unavailable in a deferred-judgment case. McKeever appealed to this court only the certiorari portion of the ruling; she did not appeal the conviction itself. We affirm.

The charge of intoxication grew out of McKeever's confrontation with Iowa City police officers in connection with their OWI arrest of the driver of a van in which she was a passenger. After a party, and on the way to McKeever's home, the driver was stopped by a police officer who had observed erratic driving. After placing the driver in a patrol car, two of the arresting officers began a conversation with McKeever, during which she stated that she would not drive the van away from the scene because she was "not sober enough to drive." Shortly thereafter, she was arrested for public intoxication.

At McKeever's trial for public intoxication, the court used the definition of "intoxication" found in the Iowa Uniform Instruction for prosecutions under Iowa Code section 321.281 (OWI). ¹ (There is no uniform instruction defining "intoxication" for purposes of public intoxication prosecutions under Iowa Code section 123.46.) In instructing the jury on the definition of intoxication, the magistrate rejected McKeever's requested instruction which stated that "intoxication was established when by reason of her use of alcohol, her reason or judgment is impaired or she has lost control of the actions of her body to such a degree that she might endanger herself or other persons or property or annoying members of the public in her vicinity." The jury returned a verdict of guilty.

Combined motions for judgment notwithstanding the verdict and for a new trial, raising the instruction issue, and others not involved on this appeal, were overruled by the magistrate. Sentencing was set for February 27, 1984. On that date, McKeever filed an application for deferred judgment under Iowa Code section 907.3. This application was granted by the court and McKeever was ordered to serve twelve months of nonreporting probation, to provide ten hours of community service, and to pay court costs.

On March 6, 1984, McKeever filed her notice of appeal from the deferred judgment order and on the same date filed a petition for writ of certiorari. Both actions challenged the magistrate's denial of her motion for a new trial. As already noted, the appeal, and the certiorari case, were resolved against the plaintiff in district court.

McKeever asserts the writ of certiorari is available in this case to correct errors that were not reviewable on direct appeal. She concedes that, under our ruling in State v. Anderson, 246 N.W.2d 277, 279 (Iowa 1976), no appeal is available from a deferred judgment. While certiorari is available regardless of the finality of a judgment, it is available only under very limited circumstances. Specifically, a writ of certiorari is granted only where, in the exercise of judicial functions, an officer exceeds the bounds of proper jurisdiction or otherwise acts illegally. Iowa R.Civ.P. 306. See also State v. District Court for Polk County, 231 N.W.2d 1, 5 (Iowa 1975); State v. Cullison, 227 N.W.2d 121, 126 (Iowa 1975). McKeever does not contend that the magistrate acted beyond the scope of his jurisdiction, only that he acted illegally in denying her motion for a new trial.

In Vohs v. District Commissioners, 218 N.W.2d 595, 596 (Iowa 1974), this court defined "illegally," as used in Iowa Rule of Civil Procedure 306:

There is illegality within the meaning of the certiorari rule "when there is not substantial evidence to support the findings on which the inferior court or tribunal based its conclusions of law." ... [Citing authority].

See also Collier v. Denato, 247 N.W.2d 236, 238 (Iowa 1976). Illegality also exists when the tribunal does not apply the proper rule of law. Iowa Freedom of Information Council v. Wifvat, 328 N.W.2d 920, 922 (Iowa 1983); Hightower v. Peterson, 235 N.W.2d 313, 317 (Iowa 1975).

We have recognized our authority to review by certiorari in the following types of circumstances: (1) a motion to suppress evidence; see State v. District Court for Linn County, 218 N.W.2d 641, 643 (Iowa 1974); State v. Holliday, 169 N.W.2d 768, 770-71 (Iowa 1969); (2) an order denying a transfer of proceedings to juvenile court; Mallory v. Paradise, 173 N.W.2d 264 (Iowa 1969); (3) a challenge to a trial court's order challenging the place of a trial; Harnack v. District Court, 179 N.W.2d 356 (Iowa 1970); (4) the alleged improper joinder of offenses and the erroneous denial of discovery in a simple misdemeanor prosecution; Hadjis v. District Court, 275 N.W.2d 763 (Iowa 1979); (5) the alleged erroneous denial of defendant's motion for a change of venue; Pollard v. District Court, 200 N.W.2d 519 (Iowa 1972); (6) the alleged erroneous denial of motion to dismiss in a simple misdemeanor; City of Des Moines v. Elliott, 267 N.W.2d 44 (Iowa 1978); and (7) the alleged erroneous exclusion of the press and public from defendant's pretrial suppression hearing; Iowa Freedom of Information Council v. Wifvat, 328 N.W.2d 920 (Iowa 1983).

These cases show that certiorari review of court action is ordinarily used prior to final disposition. The rationale is explained in Steinbeck v. Iowa District Court, 224 N.W.2d 469, 472 (Iowa 1974):

[t]his court has consistently enlarged the scope of certiorari as a remedial procedure to avoid unnecessary and costly litigation, particularly where the lower court's jurisdiction or the legality of its acts is challenged on exclusively law or constitutional issues.

(Citations omitted.)

No cases have been found allowing certiorari review at the conclusion of the case and raising alleged errors of law ordinarily raised through an appeal. We agree with the plaintiff that the availability of other remedies would not foreclose the use of certiorari. On the other hand, the remedial functions of certiorari, including the avoidance of unnecessary litigation and the provision of a method of review when no other means are available, would not be advanced by recognizing that remedy here. The issuance of the writ could not avoid litigation; the trial was already completed. It is, as the district court observed, in reality an appeal under a different label. The petition came after the sentencing hearing and raised alleged errors in the trial itself. Nor is its recognition necessary to grant redress to a party who otherwise would have none; the remedy of a direct appeal was not unavailable to McKeever; she simply elected to waive it by her application for deferred judgment.

There are obvious benefits in being granted a deferred judgment. In opting for it, however, a defendant relinquishes certain other rights, including the right of appeal. This is, no doubt, one reason for the statutory requirement that the defendant consent to entry of a deferred judgment. See Iowa Code § 907.3. As we said in Anderson,

[s]imilar hard choices are not uncommon in the criminal law field. A defendant who pleads guilty relinquishes several basic constitutional rights. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, 279-280 (1969). A defendant who elects to submit evidence after trial court overrules his motion for directed verdict at close of State's evidence risks supplying essential parts of the State's case. Cline v. United States, 395 F.2d 138, 144 (8th Cir.1968); State v. Ahern, 227 N.W.2d 164, 168 (Iowa 1975).

Here the combined language of § 793.2 and § 789A.1 required defendant to elect between an order deferring judgment and a right to immediate appeal. He chose the first alternative.

246 N.W.2d at 279.

We believe the right to raise, after a trial, alleged trial court errors through a certiorari action is one of those rights, like an appeal, which is waived by an election for a deferred judgment. A defendant who elects to have the case eventually treated as if there were no conviction cannot simultaneously attack the case as if there had been one. Under these circumstances, we will not recognize the certiorari procedure.

In view of this disposition, it is unnecessary to address McKeever's complaints about the substantive trial court rulings.

AFFIRMED.

All Justices concur except CARTER, McCORMICK, and WOLLE, JJ., who dissent.

CARTER, Justice (dissenting).

I dissent. If the district court had exercised its discretion to refuse to issue a writ of certiorari to review the acts of the judicial magistrate in the present case, this would have been fully justified. I believe, however, that the district court was wrong in...