State Of Iowa Vs. Larry Gene Dudley, Sr.

IN THE SUPREME COURT OF IOWA
No. 06–0049

Filed May 29, 2009

STATE OF IOWA,

Appellee,

vs.

LARRY GENE DUDLEY, SR.,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Wayne County, David L.

Christensen, Judge.

Acquitted indigent defendant appeals from orders requiring him to

reimburse the State for the costs of his court-appointed attorney.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT REVERSED; AND CASE REMANDED.

Mark C. Smith, State Appellate Defender, and Martha J. Lucey,

Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Thomas W. Andrews, Assistant

Attorney General, and Alan M. Wilson, County Attorney, for appellee.
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TERNUS, Chief Justice.

The appellant, Larry Dudley, appeals from postacquittal orders

requiring him to reimburse the State for the cost of legal assistance

provided at public expense. The court of appeals held these orders and

the statute pursuant to which they were entered, Iowa Code section

815.9 (2005), did not violate the defendant’s Sixth Amendment right to

counsel, the equal protection and due process guarantees of the United

States Constitution, or the debtor’s clause of the Iowa Constitution. The

court of appeals also rejected Dudley’s claim he was denied the effective

assistance of counsel because his attorney failed to object to certain

aspects of the court-ordered payment plan, concluding Dudley was not

entitled to counsel for postacquittal proceedings.

We granted Dudley’s application for further review. Upon our

consideration of the issues, we hold the court’s failure to consider

Dudley’s ability to reimburse the State for the costs of his defense

infringed his Sixth Amendment right to counsel. In addition, we

conclude Dudley’s right to equal protection was violated in two ways: (1)

the court-ordered repayment plan effectively deprived Dudley of the

statutory exemptions from execution on civil judgments that are

available to other civil judgment debtors; and (2) chapter 815 restricts

the restitution obligation of a convicted defendant represented by a

public defender to a statutory fee, but not the repayment or restitution

obligation of all other indigent defendants, including acquitted

defendants such as Dudley. We also conclude the district court

erroneously included the statutory court reporter fee in the sum Dudley

was required to repay. Finally, we find no due-process violation under

the facts of this case. Based on our determination that Dudley’s

constitutional rights were violated, we vacate the court of appeals
 3

decision, reverse the district court judgment, and remand the case for

further proceedings consistent with this opinion.

I. Background Facts and Proceedings.

In October 2004, appellant, Larry Dudley, was charged with a

criminal offense. Based on his indigency, the district court appointed

counsel to defend him. A jury found Dudley not guilty of the criminal

charge, and on November 8, 2005, the court dismissed the case.

On November 22, the district court sua sponte made a calendar

entry in the criminal case requiring Dudley to reimburse the State for the

total costs of his legal assistance on or before November 30. See Iowa

Code § 815.9(4) (providing that costs of legal assistance “shall become

due and payable . . . within thirty days of the acquittal or dismissal”).

The court further stated that, if the costs were not paid by this date, a

judgment would be entered against Dudley for any unpaid amounts. See

id. § 815.9(9) (requiring judgment for any unpaid costs of legal assistance

be entered against person acquitted).

Dudley’s defense counsel filed a motion requesting a hearing on

the legality of the court’s order and an alternative request for a monthly

payment plan. See id. § 815.9(7) (requiring court to order payment of

costs “in reasonable installments” if not paid within thirty days of

acquittal or dismissal). Among other arguments not pertinent to this

appeal, Dudley claimed Iowa Code section 815.9 violated his Sixth

Amendment right to counsel, his due process and equal protection rights

under the United States Constitution, and the debtor clause of the Iowa

Constitution. An evidentiary hearing was held on Dudley’s motion at

which Dudley testified to his limited financial resources and introduced

supporting documentation. The court subsequently entered a written

ruling overruling all constitutional challenges, entering judgment against
 4

Dudley for all costs of legal assistance, and ordering him to pay the

judgment at the rate of $200 per month. A contemporaneous “Fine

Payment Plan Order” set forth a schedule for payment and notified

Dudley that, if he failed to pay the judgment in full, he would be ordered

to appear before the court to show why he should not be held in

contempt.

Dudley filed this appeal, and the case was transferred to the court

of appeals. The court of appeals rejected Dudley’s claims, as described

above. This court granted further review.

II. Scope of Review.

Our review of constitutional claims is de novo. In re Det. of

Morrow, 616 N.W.2d 544, 547 (Iowa 2000). To the extent we are required

to engage in statutory construction, our review is for correction of errors

at law. State v. Sluyter, 763 N.W.2d 575, 579 (Iowa 2009).

III. Overview of Statutory Scheme.

Section 815.9 provides for the appointment of counsel at state

expense for indigent defendants. See Iowa Code § 815.9(1)(a). It also

imposes a repayment obligation on indigent defendants for the cost of

legal assistance provided by the State. Id. § 815.9(3). All costs and fees

incurred for legal assistance are due and payable not later than the date

of sentencing for convicted defendants and within thirty days of acquittal

or dismissal for acquitted defendants. Id. § 815.9(4). If the costs of

defense are not paid within the required period, the court is required to

“order payment of the costs and fees in reasonable installments” and to

enter “a judgment . . . against the person for any unpaid amounts.” Id.

§ 815.9(7), (9). Other relevant provisions of the statutes governing

indigent defendants’ reimbursement and restitution obligations will be

discussed in connection with the issue to which they are pertinent.
 5

IV. Issues.

A. Right to Counsel. Dudley argues the mandatory

reimbursement obligation imposed on acquitted defendants without any

consideration of their ability to pay infringes on such defendants’

constitutional right to counsel in the criminal proceeding. He asserts

indigent defendants will be discouraged from accepting the services of

court-appointed counsel if faced with the prospect of having to pay for

the costs of legal defense without regard to whether they have the means

to do so. As a result, he claims, the statute has a chilling effect on

indigent defendants’ exercise of their constitutional right to counsel.

B. Equal Protection Claim. Dudley contends various aspects of

the cost recovery scheme of chapter 815 violate the Equal Protection

Clause of the United States Constitution. Only one of these claims was

preserved for review: that indigent defendants as a class are treated less

favorably than other civil judgment debtors. 1 Dudley’s two other equal-

protection arguments were not raised below. Therefore, we address the

latter two issues within his ineffective-assistance-of-counsel claim. See

State v. Hernandez-Lopez, 639 N.W.2d 226, 233 (Iowa 2002).

C. Ineffective Assistance of Counsel. Dudley also makes a
claim of ineffective assistance of counsel, identifying three arguments he

believes his trial counsel should have made in the postacquittal

proceedings. First, he contends his attorney should have raised two

1In the district court, Dudley’s trial attorney challenged the chapter 815
reimbursement scheme on equal-protection grounds, alleging a “defendant accepting
court appointed counsel [is] exposed to more severe collection practices than the
ordinary civil debtor.” He argued, therefore, that the court could not constitutionally
enter a cost judgment against Dudley. On appeal, Dudley has abandoned this broad
claim and challenges only the payment plan that would require Dudley to use exempt
assets to make the payments. Dudley has raised the narrower claim on appeal as an
ineffective-assistance-of-counsel claim. In fairness to trial counsel, we think Dudley
adequately preserved error on this issue. Therefore, we address this issue directly.
 6

additional equal-protection claims. Those claims are: (1) indigent

defendants represented by a public defender are treated more favorably

in the form of reduced attorney fees than indigent defendants

represented by a private attorney who has contracted with the public

defender to provide services to indigent defendants, and (2) indigent

defendants who are acquitted are treated less favorably with respect to

their repayment obligations than indigent defendants who are convicted.

Finally, Dudley also argues his counsel had a duty to object to the

improper inclusion of a court reporter fee in the costs assessed against

him.

The State asserts that postacquittal proceedings under chapter

815 are civil in nature, and therefore, Dudley had no right to counsel in

those proceedings. As a consequence, the State contends, Dudley has no

basis for an ineffective-assistance claim.

D. Due Process. Dudley also challenges the recoupment statute

on state and federal due process grounds. He asserts indigent

defendants are not given adequate notice at the time counsel is

appointed of their mandatory reimbursement obligation. In addition, he

argues section 815.9 violates the Due Process Clause because it provides

no opportunity for a hearing on the amount of the costs of legal

assistance prior to entry of the recoupment order and judgment.

E. Debtor’s Clause. Dudley’s final constitutional challenge to

section 815.9 is based on the debtor clause of the Iowa Constitution. See

Iowa Const. art. I, § 19 (“No person shall be imprisoned for debt in any

civil action, on mense or final process, unless in case of fraud[.]”). He

asserts the use of contempt to enforce a chapter 815 cost judgment, as

was threatened by the court in this case, violates the debtor clause. This

claim presupposes that contempt proceedings may be used against an
 7

acquitted indigent defendant who fails to pay the costs of legal

assistance. We have recently held that a district court has no authority

to invoke its power of contempt to enforce a judgment entered against an

acquitted indigent defendant under chapter 815. Sluyter, 763 N.W.2d at

585. Because it is now established that the court cannot use its

contempt power to enforce the judgment it entered against Dudley and

because we are confident the court will not do so in light of our Sluyter

decision, we do not address Dudley’s debtor-clause challenge.

V. Infringement on Right to Counsel.

Dudley claims the mandatory reimbursement required by section

815.9 chills the exercise of his constitutional right to counsel. See U.S.

Const. amend. VI; Iowa Const. art. I, § 10. He argues a defendant faced

with the prospect of having to repay the State for the costs of court-

appointed counsel may choose to decline the services of an attorney. The

State contends similar claims have been rejected by the United States

Supreme Court and this court. See Fuller v. Oregon, 417 U.S. 40, 94

S. Ct. 2116, 40 L. Ed. 2d 642 (1974); State v. Haines, 360 N.W.2d 791

(Iowa 1985).

In Fuller, a convicted defendant argued the repayment obligation

imposed upon him by an Oregon statute chilled his exercise of his Sixth

Amendment right to counsel. 417 U.S. at 51, 94 S. Ct. at 2123, 40

L. Ed. 2d at 653. The Court rejected this claim, stating:

The fact that an indigent who accepts state-appointed
legal representation knows that he might someday be
required to repay the costs of these services in no way affects
his eligibility to obtain counsel. The Oregon statute is
carefully designed to insure that only those who actually
become capable of repaying the State will ever be obliged to
do so. Those who remain indigent or for whom repayment
would work “manifest hardship” are forever exempt from any
obligation to repay.
 8

Id. at 53, 94 S. Ct. at 2124, 40 L. Ed. 2d at 654 (emphasis added).

Iowa addressed a similar claim with a similar resolution in Haines.

In that case, the defendant was convicted and ordered to repay the

county for the fees of his court-appointed attorney as a condition of

probation. 360 N.W.2d at 792. He challenged that part of his sentence

ordering repayment of the costs of his legal representation, claiming it

violated the constitutional provisions guaranteeing his right to counsel.

Id. at 793. Relying on Fuller, this court held the restitution statute did

not infringe on the defendant’s right to counsel. Id. at 794. We focused

on Iowa Code chapter 910, which authorizes the inclusion of court-

appointed attorney fees in a convicted defendant’s restitution obligation,

noting the Iowa statute, like the Oregon statute, authorized repayment of

attorney fees only “ ‘to the extent that the offender is reasonably able to

do so.’ ” Id. (quoting Iowa Code § 910.2 (Supp. 1983)). We further

pointed out that chapter 910 provides the additional protection of

making the restitution plan subject to modification when circumstances

dictate, for example, “if a probationer later becomes unable to meet the

plan of restitution.” Id.

We find these cases inapposite because an acquitted defendant

does not have the same safeguards afforded a convicted defendant under

Iowa law. The restitution procedures and standards of chapter 910 do

not apply to an acquitted defendant such as Dudley. See Goodrich v.

State, 608 N.W.2d 774, 776 (Iowa 2000) (holding provisions of chapter

910 apply only to “a criminal restitution order”). Moreover, the statute

governing Dudley’s repayment obligation, chapter 815, contains no

requirement for a preliminary determination that a defendant has the

financial means to reimburse the State. Although a payment plan is

limited to “reasonable installments,” see Iowa Code § 815.9(7), that
 9

provision does not affect the amount of the judgment. Therefore, under

the statutory scheme governing the obligations of acquitted defendants,

an acquitted defendant will be charged with the full expense of his legal

assistance without regard to whether he will ever have the funds or

means to pay the judgment. The very safeguard that sustained the

constitutionality of the recoupment statutes applied to convicted

defendants in Fuller and Haines is absent here. See Haines, 360 N.W.2d

at 797 (“It is this ‘reasonably able to pay’ standard which allows section

910.2 to withstand constitutional attack.”).

We conclude chapter 815.9, as applied to acquitted defendants,

infringes on their federal and state right to counsel. See Olson v. James,

603 F.2d 150, 155 (10th Cir. 1979) (stating court may not

constitutionally order a defendant to repay court-appointed attorney fees

“unless he is able to pay them or will be able to pay them in the future

considering his financial resources” and concluding statute that made

repayment mandatory without regard to ability to pay had chilling effect

on defendant’s right to counsel); Fitch v. Belshaw, 581 F. Supp. 273, 277

(D. Or. 1984) (holding statute that imposed repayment obligation without

any procedure to determine defendant’s ability to pay “unconstitutionally

chills an indigent defendant’s exercise of Sixth Amendment right to

counsel”); State v. Tennin, 674 N.W.2d 403, 410–11 (Minn. 2004) (holding

Minnesota mandatory recoupment statute violated defendant’s state and

federal right to counsel). A cost judgment may not be constitutionally

imposed on a defendant unless a determination is first made that the

defendant is or will be reasonably able to pay the judgment. See Hanson

v. Passer, 13 F.3d 275, 279 (8th Cir. 1994) (stating “when court-

appointed counsel is provided, it is constitutionally permissible to require

the defendant to repay the expense incurred by the state in providing the
 10

representation if the defendant later becomes able to repay, so long as

‘[t]hose who remain indigent or for whom repayment would work

“manifest hardship” are forever exempt from any obligation to repay’ ”

(quoting Fuller, 417 U.S. at 53, 94 S. Ct. at 2124, 40 L. Ed. 2d at 654));

State v. Drayton, 175 P.3d 861, 880 (Kan. 2008) (noting statutory

requirement that repayment be ordered only when defendant had ability

to pay was included in statute to satisfy constitutional requirements);

State v. Ellis, 167 P.3d 896, 900 (Mont. 2007) (upholding

constitutionality of state recoupment statute because it provided that “a

court may not sentence a defendant to pay the costs of court-appointed

counsel unless the court determines the defendant is or will be able to

pay them”); State v. Morgan, 789 A.2d 928, 931 (Vt. 2001) (holding “that,

under the Sixth Amendment to the United States Constitution, before

imposing an obligation to reimburse the state, the court must make a

finding that the defendant is or will be able to pay the reimbursement

amount ordered”). Because that determination was not made here, we

reverse the judgment entered against Dudley and remand for a hearing

on his reasonable ability to pay the costs of his legal assistance. See In

re Attorney Fees in State v. Helsper, 724 N.W.2d 414, 418–20 (Wis. Ct.

App. 2006) (reversing repayment order because Wisconsin recoupment

statute did not require determination of reasonable ability to pay, but

allowing state to seek another order consistent with the constitutional

requirement that prior to entry of order a hearing be held on the

defendant’s ability to pay).

Although the judgment against Dudley must be reversed, we will

address the other issues in this appeal that are likely to arise upon

remand. We first consider the equal-protection claim preserved for our

review.
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VI. Equal Protection.

A. General Principles. “The Equal Protection Clause of the

Fourteenth Amendment to the United States Constitution prohibits

states from ‘deny[ing] to any person within its jurisdiction the equal

protection of the laws.’ ” Sanchez v. State, 692 N.W.2d 812, 817 (Iowa

2005) (quoting U.S. Const. amend. XIV, § 1). Because the statute

governing recoupment of the costs of legal assistance does not affect a

fundamental right or classify on the basis of race, alienage, national

origin, gender, or legitimacy, it is subject to a rational-basis review. Id.

Under this level of scrutiny, the statute “ ‘will be sustained if the

classification drawn by the statute is rationally related to a legitimate

state interest.’ ” Id. (quoting City of Cleburne v. Cleburne Living Ctr., 473

U.S. 432, 440, 105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313, 320 (1985)). “A

classification is reasonable if it is ‘ “based upon some apparent difference

in situation or circumstances of the subjects placed within one class or

the other which establishes the necessity or propriety of distinction

between them.” ’ ” State v. Mann, 602 N.W.2d 785, 792 (Iowa 1999)

(quoting Chicago Title Ins. Co. v. Huff, 256 N.W.2d 17, 29 (Iowa 1977)).

A fundamental principle of equal-protection law is “that similarly-

situated persons be treated alike.” In re Det. of Morrow, 616 N.W.2d at

548. In the past, we have applied this principle as “a narrow threshold

test.” Varnum v. Brien, 763 N.W.2d 862, 882 (Iowa 2009). If a plaintiff

cannot show preliminarily that persons in the two classes are similarly

situated, we have concluded the court need not determine whether there

is a constitutionally adequate basis for the persons’ different treatment.

Id. As we noted in Varnum, this court has had difficulty applying this

threshold test in a principled manner, sometimes “directly or indirectly

infus[ing] [our] analysis with principles traditionally applied in the
 12

complete equal protection analysis.” Id. at 884 n.9. This difficulty is

attributable to the inescapable relationship between the threshold test

and the ultimate scrutiny of the legislative basis for the classification:

“the equal protection guarantee requires that laws treat all those who are

similarly situated with respect to the purposes of the law alike.” Id. at

883. Once the purposes of the law are considered in determining

whether persons in the differently treated classes are similarly situated,

the distinction between the threshold test and the ultimate identification

and examination of the purposes of the law becomes blurred.

In Varnum, a case applying the Iowa Constitution, we left for

another day whether the threshold test has any value. Id. at 884 n.9.

For the present case, it is enough to note that the United States Supreme

Court has not employed “similarly situated” as a threshold test under the

Federal Constitution. See id. Because Dudley’s equal-protection claim is

made only under the United States Constitution, we need not address

whether the persons treated differently by the statute are similarly

situated.

B. Classification of Indigent Defendants Versus Other Civil

Judgment Debtors. The district court ordered a payment plan requiring

Dudley to pay $200 a month on the cost judgment. Dudley testified at

the hearing that his sole source of income was a social security benefit,

funds that would be exempt from execution for an ordinary civil

judgment debtor. See Iowa Code § 627.6(8)(a). Dudley argues section

815.9 violates the Equal Protection Clause because it fails to afford

acquitted defendants the protections granted other civil judgment

debtors. See generally Sluyter, 763 N.W.2d at 582 (stating cost judgment

entered against acquitted defendant creates a civil liability).
 13

A nearly identical issue was addressed by the United States

Supreme Court in James v. Strange, 407 U.S. 128, 92 S. Ct. 2027, 32

L. Ed. 2d 600 (1972). The Kansas statute at issue in that case required

indigent defendants to repay the state for the amounts expended for their

defense. James, 407 U.S. at 131, 92 S. Ct. at 2029, 32 L. Ed. 2d at 605.

A convicted defendant challenged the statute on the ground it did not

afford defendants the same exemptions granted to other civil judgment

debtors. Id. at 131, 92 S. Ct. at 2030, 32 L. Ed. 2d at 605. The Supreme

Court held the statute violated the Equal Protection Clause. Id. at 140–

41, 92 S. Ct. at 2034, 32 L. Ed. 2d at 610. Notwithstanding the fact that

all indigent defendants were treated alike, the Court concluded there was

no rational basis to deny to this class of debtors the protections that

were available to other persons burdened with a civil judgment. Id. The

Court rejected any notion that different treatment was permissible simply

because the judgment was in favor of the government, stating “a State

may [not] impose unduly harsh or discriminatory terms merely because

the obligation is to the public treasury rather than to a private creditor.”

Id. at 138, 92 S. Ct. at 2033, 32 L. Ed. 2d at 609. With respect to

acquitted defendants, the Court observed: “It is difficult to see why such

a defendant, adjudged to be innocent of the State’s charge, should be

denied basic exemptions accorded all other judgment debtors.” Id. at

139, 92 S. Ct. at 2034, 32 L. Ed. 2d at 609.

Chapter 815, unlike the Kansas statute, does not expressly deprive

acquitted indigent defendants of the benefit of the exemptions available

to civil judgment debtors. Nonetheless, the court’s authority under

section 815.9(7) to order payment in reasonable installments is

unrestricted and allows circumvention of the protections provided by our

statutes governing execution on a civil judgment. The effect, therefore, is
 14

to deny to acquitted defendants the protection of the exemptions

available to civil judgment debtors, which is exactly what occurred in this

case.

For the reasons discussed in James, the different treatment of

acquitted defendants such as Dudley as compared to ordinary civil

judgment debtors violates the Equal Protection Clause. See Alexander v.

Johnson, 742 F.2d 117, 124 (4th Cir. 1984) (holding for recoupment

statute to pass constitutional muster, it must not expose defendant

accepting court-appointed counsel “to more severe collection practices

than the ordinary civil debtor”). Upon remand, any payment plan must

not deprive Dudley of the protections to which other civil judgment

debtors would be entitled. 2

As noted above, Dudley’s other equal-protection challenges were

not preserved for our review. Whether we can address them within the

context of an ineffective-assistance-of-counsel claim depends on whether

Dudley had a right to counsel for the postacquittal proceedings. We turn

to that issue now.

VII. Right to Court-Appointed Counsel.

“Without a right to counsel, [a defendant] also has no
commensurate right to effective assistance from that counsel.” White v.

Schotten, 201 F.3d 743, 752 (6th Cir. 2000), overruled on other grounds

by Lopez v. Wilson, 426 F.3d 339, 352 (6th Cir. 2005). Consequently,

before we may consider Dudley’s ineffective-assistance-of-counsel claims,

we must determine whether he even had a right to counsel in these

2We express no opinion whether a payment plan requiring Dudley to make
installment payments from nonexempt assets would pass constitutional muster.
Dudley’s challenge was focused on the exempt nature of the assets he had available to
make the payments ordered by the court. He did not challenge on appeal the
constitutionality of the court’s authority to order payment outside the statutory
parameters governing the collection of other civil judgments.
 15

postacquittal proceedings. Dudley claims he has a right to counsel in

chapter 815 postacquittal proceedings because the actions of the court in

imposing the cost judgment are “an extension of the criminal

proceedings.”

The Iowa Constitution provides: “In all criminal prosecutions, and

in cases involving the life, or liberty of an individual the accused shall

have a right . . . to have the assistance of counsel.” Iowa Const. art. I,

§ 10. A procedure to implement this constitutional right for indigent

defendants is set out in Iowa Code chapter 815.

Section 815.9 provides that an indigent defendant “is entitled to an

attorney appointed by the court.” Iowa Code § 815.9(1). The court is

authorized to appoint an attorney “to represent an indigent defendant at

any stage of the criminal . . . proceedings . . . in which the indigent

defendant is entitled to legal assistance at public expense.” Id.

§ 815.10(1). For purposes of the Iowa Code of Criminal Procedure, of

which chapter 815 is a part, the legislature has defined “prosecution” as

“the commencement, including the filing of a complaint, and continuance

of a criminal proceeding, and pursuit of that proceeding to final

judgment on behalf of the state.” Id. § 801.4(13).

Reading these statutory provisions together, as we must, see

Sluyter, 763 N.W.2d at 581, we conclude the legislature intended to

extend the right to counsel enjoyed by a defendant charged with a

criminal offense through the conclusion of the criminal proceeding by

judgment. We reach this conclusion because the legislature has

provided for court-appointed counsel for indigent defendants “at any

stage” of the criminal proceeding “in which the indigent defendant is

entitled to legal assistance at public expense.” Iowa Code § 815.10(1).

Under the Iowa Constitution, a person is entitled to the assistance of
 16

counsel in “all criminal prosecutions.” Iowa Const. art. I, § 10. The

legislature has defined “prosecution” for purposes of chapter 815 as a

criminal proceeding from commencement by filing a complaint “to final

judgment on behalf of the state.” Iowa Code § 801.4(13). We must

determine, then, whether the postacquittal proceedings that are the

subject of this appeal occurred prior to “final judgment on behalf of the

state.” Id.

The legislature chose to make the process for obtaining

reimbursement for the costs of legal assistance part of the criminal case.

The State is not required to initiate a separate suit against a person

acquitted of criminal charges to recover these costs. Rather, “all costs

and fees incurred for legal assistance” automatically become “due and

payable to the clerk of the district court by the person receiving the legal

assistance . . . within thirty days of the acquittal or dismissal.” Id.

§ 815.9(4). If the costs and fees are not paid within this time frame, the

court is required to enter judgment against the person for any unpaid

amounts. Id. § 815.9(9). This process takes place entirely in the context

of the criminal case.

Under this statutory scheme, as applied to an acquitted defendant,

the “final judgment on behalf of the state” in the criminal proceeding is

the cost judgment entered against the acquitted person in favor of the

state. Therefore, under the definition of “prosecution” applicable to

chapter 815, the criminal prosecution includes the postacquittal

proceedings. We conclude these statutory provisions evidence a

legislative intent to extend a defendant’s right to counsel to these

postacquittal proceedings. 3 Cf. White, 201 F.3d at 745, 752–53 (holding

3Weexpress no opinion on whether article I, section 10 of the Iowa Constitution
would require the appointment of counsel to represent acquitted defendants in
postacquittal proceedings to assess the cost of legal assistance in the absence of section
 17

that, because Ohio law required ineffective-assistance-of-counsel claims

be raised in an application to reopen the direct appeal of the criminal

case, such claims were part of the direct appeal, entitling defendant to

the assistance of counsel); State v. Jones, 964 P.2d 398, 402 (Wash. Ct.

App. 1998) (holding because Washington statute provided for acquitted

defendant’s recovery of attorney fees by motion in criminal action rather

than in independent civil action, postacquittal attorney fees and costs

were incurred in defense of criminal action and therefore subject to

reimbursement).

Our interpretation of the governing statutes as applied to acquitted

defendants is consistent with our interpretation of the same and related

statutes governing orders requiring a convicted defendant to make

restitution for court-appointed attorney fees. In State v. Alspach, 554

N.W.2d 882 (Iowa 1996), a convicted indigent defendant demanded

court-appointed counsel to assist in challenging a restitution order for

attorney fees paid for his defense. Alspach, 554 N.W.2d at 882–83.

Because the amount of the fees was not known at sentencing, the

restitution order requiring payment of the fees was entered several

months after the defendant had been sentenced. Id. at 883. The district

court denied the defendant’s request for court-appointed counsel to

challenge this supplemental order, ruling “the amount of restitution was

a civil matter.” Id. Relying on the “expansive” language of Iowa Rule of

Criminal Procedure 26(1) and Iowa Code section 815.9(10) that an

indigent person is entitled to court-appointed counsel “at every stage” of

815.9 and the definition of “prosecution” adopted by the legislature for purposes of
indigent defense. While the legislature may not restrict the protections given by the
constitution, it is certainly at liberty to expand those protections by statute. Whether
chapter 815 is coextensive with the constitutional right to counsel or is more expansive
is an issue we do not address.
 18

the criminal proceeding, we concluded the defendant was entitled to

court-appointed counsel to challenge the supplemental restitution

order. 4 Id. at 882–83. The postsentencing timing of the order was

deemed of no consequence: “the mere fortuity of whether restitution

figures were available at sentencing [should not] determine an indigent

defendant’s right to appointed counsel on restitution issues.” Id. at 884.

The court pointed out, however, that should the defendant at some later

time initiate an action pursuant to Iowa Code section 910.7, which

authorizes actions by convicted defendants to modify a restitution plan,

the defendant would not be entitled to appointed counsel for that

proceeding because such a “suit is civil in nature and not part of the

criminal proceedings.” 5 Id.; see also Iowa Code § 910.7 (allowing a

convicted defendant to “petition the court on any matter related to the

plan of restitution”).

The reasoning of Alspach supports our conclusion here. The cost

judgment against Dudley, which is akin to the restitution order

4Although we have referred to our Alspach decision as setting forth “criminal due
process requirements,” State v. Blank, 570 N.W.2d 924 (Iowa 1997), our determination
in Alspach of when those “due process requirements” must be accorded was not
constitutionally based. The State argued in Alspach that a defendant’s right to counsel
under federal constitutional principles “arises ‘only when, if he loses, he may be
deprived of his physical liberty.’ ” 554 N.W.2d at 883 (quoting Lassiter v. Dep’t of Soc.
Servs., 452 U.S. 18, 24, 101 S. Ct. 2153, 2158, 68 L. Ed. 2d 640, 648–49 (1981)). We
concluded that principle was not determinative, observing that “[o]ur rules make no
such distinction.” Id. (emphasis added).
5This court clarified its Alspach decision in Blank. We held that, while the
timing of the court’s supplemental order would not affect a defendant’s right to counsel,
the timing of the defendant’s challenge of that order would. Blank, 570 N.W.2d at 926.
We stated a defendant could challenge a supplemental order by a timely appeal or by
filing a petition pursuant to section 910.7. Id. If the petition under section 910.7 is
filed within thirty days of the supplemental order, it would be considered an extension
of the criminal proceedings, and the defendant’s right to counsel would be preserved.
Id. If the defendant filed a section 910.7 proceeding more than thirty days after the
supplemental order, “the action would be civil, not criminal, in nature,” and the
defendant would forfeit his right to counsel. Id.
 19

challenged in Alspach, was entered in the criminal proceeding, not in a

separate action by the State to recover the costs of legal assistance.

Therefore, the entry of this judgment was a “stage” of the criminal

proceeding for which Dudley was entitled to counsel.

Our characterization of the cost judgment in Sluyter as a civil

liability does not alter our conclusion. See Sluyter, 763 N.W.2d at 582

(stating cost judgment entered against acquitted defendant creates a civil

liability). As previously noted, the legislature has injected this matter,

which would ordinarily be civil, in a criminal action and provided for

counsel throughout the criminal prosecution, ending with judgment on

behalf of the State. We think it proper to focus on the legislative intent

evidenced by these statutes, rather than on the label attached to the final

judgment. See Jones, 964 P.2d at 403 (holding postacquittal proceedings

were part of criminal case notwithstanding that they resulted in a

reimbursement award that was civil in nature, stating legislative intent

was more important than labels). Because the criminal case did not end,

by definition, until the cost judgment had been entered against Dudley

and in favor of the State, Dudley was entitled to counsel for the

postacquittal proceedings.

It is axiomatic that, when the appointment of counsel is mandated,

counsel is required to be effective. See Dunbar v. State, 515 N.W.2d 12,

14 (Iowa 1994); In re Interest of J.P.B., 419 N.W.2d 387, 390 (Iowa 1988).

Therefore, we now consider whether Dudley’s trial counsel rendered

ineffective assistance.

VIII. Ineffective Assistance of Counsel.

To prevail on an ineffective-assistance-of-counsel claim, the

defendant must prove the following elements by a preponderance of the

evidence: (1) trial counsel failed to perform an essential duty, and (2)
 20

prejudice resulted from counsel’s failure. State v. Ceaser, 585 N.W.2d

192, 195 (Iowa 1998). We will address such claims on direct appeal only

if we determine the development of an additional factual record would

not be helpful and one or both of these elements can be decided as a

matter of law. State v. Tesch, 704 N.W.2d 440, 450 (Iowa 2005); State v.

Taylor, 689 N.W.2d 116, 134 (Iowa 2004).

To prove the first prong of this claim, the defendant must show the

attorney’s performance fell outside the normal range of competency.

Ceaser, 585 N.W.2d at 195. Starting “with the presumption that the

attorney performed his duties in a competent manner,” “we measure

counsel’s performance against the standard of a reasonably competent

practitioner.” State v. Maxwell, 743 N.W.2d 185, 195–96 (Iowa 2008).

Although counsel is not required to predict changes in the law, counsel

must “exercise reasonable diligence in deciding whether an issue is

‘worth raising.’ ” State v. Westeen, 591 N.W.2d 203, 210 (Iowa 1999)

(quoting State v. Schoelerman, 315 N.W.2d 67, 72 (Iowa 1982)). In

accord with these principles, we have held that counsel has no duty to

raise an issue that has no merit. State v. Schaer, 757 N.W.2d 630, 637

(Iowa 2008). The second prong––prejudice––exists “when it is ‘reasonably

probable that the result of the proceeding would have been different.’ ”

Id. at 638 (quoting State v. Henderson, 537 N.W.2d 763, 765 (1995)).

Because counsel has no duty to raise issues that have no merit, we

will first determine whether Dudley’s underlying claims have any validity.

If his constitutional challenges are meritorious, we will then consider

whether reasonably competent counsel would have raised these issues

and, if so, whether Dudley was prejudiced by his counsel’s failure to do

so. We begin with Dudley’s equal-protection claims.
 21

A. Equal Protection. Dudley asserts his counsel should have

challenged two classifications made by the statute: (1) indigent

defendants represented by a contract attorney are required to pay

attorney fees that exceed the statutory fee limitations, whereas indigent

defendants represented by a public defender are not required to pay fees

above the limitations; and (2) indigent defendants who are acquitted are

treated less favorably than indigent defendants who are convicted

because the latter are required to pay the costs of legal assistance only if

reasonably able to pay and have the option of performing community

service in lieu of payment. We address these claims separately.

1. Indigent defendants represented by contract attorneys versus

indigent defendants represented by public defender. Dudley contends his

counsel’s equal-protection challenge to chapter 815 should have

included a claim that the statute treats indigent defendants who are

represented by a contract attorney less favorably than indigent

defendants who are represented by a public defender. According to

Dudley, a person with a contract attorney is required to repay all costs of

legal assistance, including any approved attorney fees above the fee

limitation. See generally Iowa Code § 13B.4(4)(a) (requiring state public

defender to “establish fee limitations for particular categories of cases”);

Iowa Admin. Code r. 493—12.6(1) (establishing fee limitations). On the

other hand, the restitution obligation of a convicted defendant who is

represented by a public defender is limited to an amount that does not

exceed the fee limitations. See Iowa Code § 815.14 (capping “restitution”

obligation of defendant represented by the public defender at statutory

fee). The State correctly points out that only convicted defendants

benefit from section 815.14, as only convicted defendants must make

restitution. Therefore, the two classes subjected to different treatment by
 22

chapter 815 are convicted defendants represented by a public defender

and all other indigent defendants, acquitted and convicted, represented

by court-appointed counsel.

In the present case, Dudley was represented by a contract attorney

whose fees exceeded $11,000. Dudley was ordered to repay this amount

plus other costs of his defense. Had Dudley been represented by a

public defender and been convicted, his restitution obligation for the

costs of his court-appointed attorney would have been subject to the

$1000 fee limitation for class “D” felonies in effect at that time. The

issue, then, is whether there is a rational basis for recovering from an

acquitted defendant the full charge for the legal services made available

to him while a convicted defendant’s restitution for the cost of a public

defender is circumscribed by the fee limitation provision.

In attempting to justify this differential treatment, the State argues

public defenders handle a large volume of cases, and it would be

inefficient to require them to seek court approval to continue to work on

cases when they had exceeded the fee limitation based on hourly rates.

See Iowa Code § 815.10A(3) (“An attorney shall obtain court approval

prior to exceeding the fee limitations established by the state public

defender pursuant to section 13B.4.”). The State notes such approval

“would be superfluous” since the potential for fiscal abuse is largely

nonexistent when the case is assigned to a public defender. This

argument is nonsensical, however, because by the State’s own

admission, when a defendant is acquitted, the State may collect the full

cost of the public defender from the acquitted defendant, presumably

notwithstanding the absence of prior court approval. See id. § 815.9(6)

(requiring public defender to report “the total hours of service plus other

expenses” and imposing no approval requirement). Consequently, if it is
 23

practical to compute the full cost of the public defender for purposes of

ordering payment by acquitted defendants, it would be equally practical

to do so for convicted defendants. Therefore, the different treatment of

an acquitted defendant represented by a contract attorney and a

convicted defendant represented by a public defender cannot rest on the

alleged inefficiency in requiring public defenders to seek court approval

to exceed the fee limitations since such approval is unnecessary and not

required.

The State also contends the convicted defendant is necessarily in a

different position than the acquitted defendant because the convicted

defendant is headed to prison, severely reducing his ability to pay any

debt. But, as the State has conceded, the classification here is not

between convicted defendants and acquitted defendants. The distinction

made with respect to the fee limitations is between convicted defendants

represented by a public defender and all other indigent defendants,

convicted and acquitted. For example, convicted defendants who were

represented by a contract attorney, including those sent to prison, are

not protected by the fee limitations and may be required to make

restitution for the full charge of the contract attorney. Thus, the fact

that a convicted defendant represented by a public defender may be sent

to prison does not rationally explain why convicted defendants (some of

whom may be in prison) represented by a contract attorney and all

acquitted defendants are treated less favorably than convicted

defendants represented by a public defender. Simply put, imprisonment

is not a distinction that differentiates the two classes. See Mann, 602

N.W.2d at 792 (“A classification is reasonable if it is ‘ “based upon some

apparent difference in situation or circumstances of the subjects placed

within one class or the other which establishes the necessity or propriety
 24

of distinction between them.” ’ ” (quoting Chicago Title Ins. Co., 256

N.W.2d at 29)).

Finally, pointing to all the safeguards built into the system for

protecting an indigent defendant from being charged an excessive fee for

his representation, the State concludes that just because some indigent

defendants end up with a larger, more realistic charge for their legal

representation is not a denial of equal protection because “practical

problems of government permit rough accommodations.” The flaw in this

argument, however, is the State’s failure to identify a “practical problem”

that requires the State to cap the potential repayment obligation of one

class of indigent defendants, but not the repayment obligation of all other

indigent defendants. As noted above, any difficulty in ascertaining the

full cost of the public defender is not really a practical problem because it

is accomplished for purposes of calculating the recoupment obligation of

acquitted defendants represented by a public defender.

We conclude there is no rational basis to deny acquitted

defendants the benefit of the fee limitations afforded convicted

defendants represented by the public defender. Therefore, it is a

violation of Dudley’s right to equal protection of the law to enter a cost

judgment against him in excess of the $1000 fee limitation.

Having determined this constitutional challenge has merit, we

must next decide whether counsel rendered ineffective assistance in

failing to challenge the differing treatment of indigent defendants with

respect to recoverable attorney fees. We conclude as a matter of law

counsel failed to exercise reasonable diligence by not raising an issue

that was clearly worth asserting. There is no reasonable strategy that

could account for counsel’s failure to alert the district court to the

absence of a rational basis for the differential treatment between
 25

convicted defendants represented by a public defender and all other

indigent defendants. See State v. Graves, 668 N.W.2d 860, 870 (Iowa

2003) (“If there is no possibility that trial counsel’s failure to act can be

attributed to reasonable trial strategy, then we can conclude the

defendant has established that counsel failed to perform an essential

duty.”).

Finally, Dudley was clearly prejudiced. Had the judgment been

challenged on the basis that the order discriminatorily required Dudley

to pay attorney fees in excess of the statutory fee limitation, the district

court would have been obliged to limit Dudley’s repayment obligation to

the same level as that of convicted defendants represented by a public

defender. We conclude, therefore, that Dudley has proven this part of

his claim of ineffective assistance of counsel. Upon remand, any cost

judgment against him may not include attorney fees in excess of the

$1000 fee limitation.

2. Indigent acquitted defendants versus indigent convicted

defendants. Dudley’s final equal-protection claim is that indigent

defendants who are acquitted are treated less favorably than indigent

defendants who are convicted because the latter (1) are required to pay

the costs of legal assistance only if reasonably able to pay, and (2) the

court has the option of ordering community service in lieu of payment.

The State claims this classification scheme is “wholly noninvidious” and

is further justified by the statutory protections available to acquitted

defendants required to pay the costs of legal assistance, which are not

available to convicted defendants required to make restitution for these

sums.

We need not address the first aspect of this argument because we

have already determined that imposing mandatory reimbursement
 26

without regard to ability to pay infringes an indigent defendant’s right to

counsel. Therefore, we will only discuss whether the rights of acquitted

indigent defendants to equal protection of the law is violated by allowing

convicted defendants to discharge their restitution obligation through

community service, while not providing acquitted defendants the same

option.

As the statutory recoupment process now stands, an acquitted

indigent defendant, like a convicted defendant, cannot be required to

make reimbursement for the cost of legal assistance unless he has a

reasonable ability to pay. In addition, acquitted defendants burdened

with a civil cost judgment must be afforded the same protections as other

civil judgment debtors. In contrast, convicted defendants are required to

make restitution for the cost of legal assistance, an obligation that does

not trigger the protections of our statutes governing execution on

judgments. See Teggatz v. Ringleb, 610 N.W.2d 527, 531 (Iowa 2000)

(stating “the amount recovered under the Iowa restitution statute is not

treated as a civil judgment”); see also Iowa Code § 910.2 (requiring

sentencing court to order restitution for the cost of defense if the

defendant is able to pay). On the other hand, courts have the option of

allowing convicted defendants to perform community service. Iowa Code

§ 910.2.

We think the practical distinctions between a civil judgment and a

restitution order entered as part of a sentence adequately justify this

difference in treatment. Because a convicted defendant’s sentence is

subject to some level of supervision by the criminal justice system, a

mechanism exists to monitor a convicted defendant’s performance of

court-ordered community service. An acquitted defendant is not subject

to supervision so monitoring performance of community service would be
 27

problematic. We think this situation is one of those “ ‘practical problems

of government [that] permit rough accommodations.’ ” Mann, 602

N.W.2d at 792 (quoting State v. Hall, 227 N.W.2d 192, 194 (Iowa 1975)).

B. Inclusion of Court Reporter Fee. Dudley criticizes his

attorney for failing to object to the inclusion of a court reporter fee in his

cost judgment. Iowa Code section 625.8(2) provides that “[t]he clerk of

the district court shall tax as a court cost a fee of fifteen dollars per day

for the services of a court reporter.” The judgment entered against

Dudley for the costs of his legal assistance included a fifteen-dollar court

reporter fee. The statutory definition of “legal assistance” does not

include court costs or court reporter fees. Iowa Code § 815.9(3) 6; see

also id. § 910.1(4) (including court costs in the definition of “restitution”

required of a convicted defendant). Therefore, it was error for the court to

include this fee in the cost judgment.

The State contends the failure of Dudley’s counsel to object to the

inclusion of this sum was not ineffective assistance, referring to the

distinction between court costs and the costs of legal assistance as a

“nuance.” We disagree. The fifteen-dollar court reporter fee is always

taxed as a court cost, and it is elementary that a winning party does not
pay court costs. As an acquitted defendant, Dudley may have been liable

for the costs of his defense, but certainly not for the court costs. This

distinction is obvious, not subtle. Therefore, we think a reasonably

competent practitioner would have objected to the inclusion of a court

cost in Dudley’s repayment obligation. Clearly, Dudley was prejudiced,

6Section 815.9(3) provides in pertinent part:
“Legal assistance” as used in this section shall include not only an
appointed attorney, but also transcripts, witness fees, expenses, and any
other goods or services required by law to be provided to an indigent
person entitled to an appointed attorney.
 28

as the cost judgment entered against him was fifteen dollars more than it

should have been. Upon remand, the district court should not require

Dudley to pay any court costs, including the court reporter fee.

IX. Due Process.

Dudley claims his procedural due process rights under the United

States and Iowa Constitutions were violated. See U.S. Const. amend.

XIV; Iowa Const. art. I, § 9. Dudley makes no argument that we should

employ a different analysis under the Iowa Constitution, so our

discussion of his due-process argument applies to both his federal and

state claims. See State v. Fremont, 749 N.W.2d 234, 236 (Iowa 2008)

(using same analysis to interpret Iowa Constitution and Federal

Constitution because neither party suggested the Iowa provision should

be interpreted differently from its federal counterpart).

Procedural due process requires notice and an opportunity to be

heard “at a meaningful time in a meaningful manner” prior to depriving

an individual of life, liberty, or property. Hernandez-Lopez, 639 N.W.2d

at 241. Dudley claims he was given inadequate notice of the requirement

to reimburse the costs of his defense and no opportunity to be heard.

Dudley’s notice claim focuses on the period before he was

appointed counsel. He claims he should have been told prior to his

acceptance of court-appointed counsel that he would be required to

repay the costs of his defense. We conclude Dudley had notice of this

responsibility because a defendant’s repayment obligation was a matter

of public record at the time counsel was appointed to represent him. See

Iowa Code § 815.9(3) (“If a person is granted an appointed attorney, the

person shall be required to reimburse the state for the total cost of legal

assistance provided to the person.”); see also People v. Bramlett, 455

N.E.2d 1092, 1094 (Ill. App. Ct. 1983) (holding recoupment statute itself
 29

served as a form of notice), superseded by statute on other grounds as

stated in People v. Nunez, 553 N.E.2d 1123, 1127 (Ill. App. Ct. 1990).

Dudley also complains that he was not provided a hearing prior to

the court’s November 22, 2005 order that he pay all costs of his legal

assistance to the clerk of court no later than November 30, 2005, or

judgment for those costs would be entered against him. On

November 30, Dudley’s attorney filed a motion for hearing on the legality

of the order, requesting in the alterative a monthly payment plan. The

court then stayed enforcement of its order and held a hearing at which

Dudley introduced evidence with respect to his financial condition. After

the hearing, the court entered an order overruling Dudley’s

constitutional challenges and entering judgment against him for the cost

of his legal assistance. A separate payment plan was also ordered by the

judge.

The State contends Dudley has no standing to make a due-process

claim since he was provided a hearing. Although Dudley received a

hearing, he claims it was not at a meaningful time, but only after the

court ordered payment.

The nature of the court’s initial order is somewhat difficult to
understand because it “orders” Dudley “to pay” the costs of his legal

assistance, yet contemplates that a “judgment” will be subsequently

entered. In fact, a later “judgment” for the costs of legal assistance was

entered against Dudley. The confusion arises because under both the

order and the judgment, Dudley was required to pay the costs of his

defense. Nonetheless, we believe the judge’s first order was merely

intended to alert Dudley to his payment obligation under section

815.9(4), which states an acquitted defendant must pay the costs of legal

assistance within thirty days of dismissal, and was not intended to
 30

constitute a judgment enforceable by execution. A judgment is defined

under our rules of civil procedure as a “final adjudication of any of the

rights of the parties in an action.” 7 Iowa R. Civ. P. 1.951. Because the

initial order contemplated the subsequent entry of a “judgment,” we do

not consider the initial order to be a final adjudication of Dudley’s

repayment obligation. 8 We analyze Dudley’s due-process claim with this

understanding of the court’s action.

We think the hearing provided to Dudley satisfied due process. It

occurred prior to final judgment being rendered against him, and he was

allowed to present evidence and argument with respect to the amount of

the judgment as well as any repayment plan. Therefore, the hearing

afforded Dudley was “at a meaningful time” and was conducted “in a

meaningful manner” as required by the Due Process Clause. Hernandez-

Lopez, 639 N.W.2d at 241.

Even though Dudley was given the opportunity to be heard, he

points out section 815.9 makes no provision for a hearing and so is

unconstitutional on its face. See Fitch, 581 F. Supp. at 278 (holding

recoupment statute unconstitutional because it did not provide for a

hearing prior to entry of judgment). The State argues Dudley has no

standing to make a facial challenge. “Whether litigants have standing

does not depend on the legal merit of their claims, but rather whether, if

the wrong alleged produces a legally cognizable injury, they are among

those who have sustained it.” Citizens for Responsible Choices v. City of

7We refer to the rules of civil procedure because these orders involve a civil

liability. See Sluyter, 763 N.W.2d at 582.
8Due-process concerns will be minimized if, in the future, district courts simply

notify the defendant of his repayment obligation and refrain from ordering him to pay
the costs of his legal assistance until the thirty days required by statute for entry of a
judgment have passed. See generally Iowa Code § 815.9(4), (9).
 31

Shenandoah, 686 N.W.2d 470, 475 (Iowa 2004); accord State v.

Hunter, 550 N.W.2d 460, 463 (Iowa 1996) (“If a statute is constitutional

as applied to the defendant, the defendant lacks standing to make a

facial challenge unless a recognized exception applies.”), overruled on

other grounds by State v. Robinson, 618 N.W.2d 306, 312 (Iowa 2000). 9

Even though section 815.9 allows entry of a cost judgment without a

hearing, Dudley has not suffered that harm. Therefore, he has no

standing to challenge the statute on its face.

X. Disposition.

The imposition of a mandatory reimbursement obligation on

acquitted defendants without any consideration of their ability to pay

infringes on their right to counsel. Because a determination of Dudley’s

reasonable ability to pay the costs of his legal assistance was not made

here, we reverse the judgment entered against Dudley and remand for

further proceedings consistent with this opinion. Upon remand, any

repayment ordered by the court shall limit attorney fees to the statutory

fee for cases of this type, shall not include statutory court reporter fees,

and shall not require payments that would deprive Dudley of the

protections accorded other civil judgment debtors.

DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED; AND CASE REMANDED.

All justices concur except Baker, J., who takes no part.

9Arecognized exception is when First Amendment rights are implicated. Hunter,
550 N.W.2d at 463. That exception is not applicable here.