John Lee Hrbek v. State of Iowa

IN THE SUPREME COURT OF IOWA
No. 19–1571

Submitted December 16, 2020—Filed April 16, 2021

JOHN LEE HRBEK,

Appellant,

vs.

STATE OF IOWA,

Appellee.

Appeal from the Iowa District Court for Pottawattamie County,

Kathleen A. Kilnoski, Judge.

Postconviction-relief applicant represented by counsel seeks review

of interlocutory order prohibiting applicant from filing any additional pro

se supplemental documents in postconviction-relief proceeding.

AFFIRMED AND REMANDED.

McDonald, J., delivered the opinion of the court, in which

Waterman, Mansfield, and Oxley, JJ., joined. McDermott, J., filed an

opinion concurring in part and dissenting in part, in which Christensen,

C.J., and Appel, J., joined.

Philip B. Mears of Mears Law Office, Iowa City, for appellant.
 2

Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant

Attorney General, Matthew D. Wilber, County Attorney, and Patrick A.

Sondag, Assistant County Attorney, for appellee.
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McDONALD, Justice.

In the spring of 2019, the legislature passed and the governor signed

an omnibus crime bill. See 2019 Iowa Acts ch. 140. As relevant here,

effective July 1, 2019, the new law prohibits postconviction-relief

applicants represented by counsel from filing “any pro se document,

including an application, brief, reply brief, or motion, in any Iowa court.”

Id. § 35 (codified at Iowa Code § 822.3A (2020)). The questions presented

in this appeal involve the applicability and constitutionality of the new law

as applied to pending postconviction-relief proceedings and
postconviction-relief appeals.

I.

For the past thirty-four years, John Hrbek has been litigating a still-

pending application for postconviction relief in an attempt to vacate his

convictions for two counts of murder in the first degree. See generally

State v. Hrbek, 336 N.W.2d 431, 437 (Iowa 1983) (conditionally affirming

defendant’s murder convictions); Hrbek v. State, No. 13–1619, 2015 WL

6087572, at *1, *3 (Iowa Ct. App. Oct. 14, 2015) (discussing the “bizarre

procedural history of the PCR action” and ordering reinstatement of the

postconviction case). Although Hrbek has been and continues to be

represented by counsel in his postconviction case, Hrbek regularly files

pro se supplemental documents in support of his application.

While Hrbek’s case was pending, the legislature enacted an omnibus

crime bill that prohibits represented postconviction-relief applicants from

filing pro se supplemental documents in any postconviction-relief

proceeding or postconviction appeal. In full, the new law provides:

1. An applicant seeking relief under section 822.2 who
is currently represented by counsel shall not file any pro se
document, including an application, brief, reply brief, or
 4
motion, in any Iowa court. The court shall not consider, and
opposing counsel shall not respond to, such pro se filings.

2. This section does not prohibit an applicant for
postconviction relief from proceeding without the assistance
of counsel.

3. A represented applicant for postconviction relief may
file a pro se motion seeking disqualification of counsel, which
a court may grant upon a showing of good cause.

Iowa Code § 822.3A. The new law went into effect on July 1, 2019.

In August 2019, pursuant to the omnibus crime bill, the district

court entered an order prohibiting Hrbek from filing any additional pro se

supplemental documents in his postconviction-relief proceeding. The

district court directed Hrbek to forward any such documents to his

counsel instead.

This court granted Hrbek’s application for interlocutory appeal of

the district court’s order. Although Hrbek is represented by counsel in

this appeal, he moved to file pro se supplemental briefs in support of his

appeal. See Iowa R. App. P. 6.901(2)(a) (providing “[a]ny . . . applicant for

postconviction relief . . . may submit a pro se supplemental brief . . . within

15 days after service of the proof brief filed by their counsel”). The State

filed a resistance to Hrbek’s motion and requested this court disallow the

filings pursuant to the new omnibus crime bill. We ordered the issue be
submitted with the merits of the appeal.

Hrbek raises several arguments contesting the applicability and

constitutionality of section 822.3A. Hrbek contends the new law is

inapplicable here because the new law should not be applied

retrospectively to postconviction-relief proceedings pending on the effective

date of the statute. If section 822.3A is applicable here, Hrbek contends

the new law is unconstitutional and void. Specifically, Hrbek contends
section 822.3A violates the separation-of-powers doctrine and violates
 5

Hrbek’s right to file pro se supplemental documents in postconviction-

relief proceedings and appeals.

II.

Hrbek first contends section 822.3A is inapplicable here because the

new law should not be applied retrospectively to postconviction-relief

proceedings pending on the effective date of the statute. According to

Hrbek, his right to file pro se supplemental documents vested in 1987

when he filed his application for postconviction relief. He argues the

application of section 822.3A to now bar him from filing pro se
supplemental documents would be an unlawful retrospective application

of the statute.

Whether a statute applies retrospectively, prospectively, or both is

simply a question regarding the correct temporal application of a statute.

See Landgraf v. USI Film Prods., 511 U.S. 244, 291, 114 S. Ct. 1522, 1524

(1994) (Scalia, J., concurring in the judgment) (stating the “temporal

application of a statute” is a “mundane question”). The determination of

the correct temporal application of a statute is a three-part inquiry. First,

the court must determine whether application of a statute is in fact

retrospective. Second, if the court determines application of a statute is

in fact retrospective, then the court must determine whether the statute

should be applied retrospectively. Third, if the court determines a statute

should be applied retrospectively, then the court must determine whether

a constitutional rule prohibits retrospective application of the statute.

With respect to the first part of the inquiry, application of a statute

is in fact retrospective when a statute applies a new rule, standard, or

consequence to a prior act or omission. See Frideres v. Schiltz, 540 N.W.2d
261, 264 (Iowa 1995) (en banc) (“A law is retroactive if it affects acts or

facts which occurred, or rights which accrued, before the law came into
 6

force.”). The prior act or omission is the event of legal consequence “that

the rule regulates.” Landgraf, 511 U.S. at 291, 114 S. Ct. at 1524. The

event of legal consequence is the specific conduct regulated in the statute.

See id. (“The critical issue, I think, . . . is the relevant activity that the rule

regulates.”); Miss. Dep’t of Corr. v. Roderick & Solange MacArthur Just. Ctr.,

220 So. 3d 929, 940 (Miss. 2017) (en banc) (Dickinson, J., concurring in

result only) (“In other words, to determine whether the statutory

amendment should apply, a court must understand what event or conduct

the statute will control.”).
The application of section 822.3A to Hrbek’s pending

postconviction-relief case and this interlocutory postconviction appeal is

not a retrospective application of the statute within any common-sense

understanding of the term “retrospective.” The statute prohibits

represented postconviction applicants from filing pro se supplemental

documents in any Iowa court. The event of legal consequence is the filing

of pro se supplemental documents. The new law went into effect on July

1, 2019, but all of the events of legal consequence occur after that date.

The district court’s order was entered in August 2019. Hrbek filed his

application for interlocutory appeal on September 20, 2019. Hrbek had

his counsel file a final pro se supplemental brief and reply brief in this

appeal on August 24, 2020, more than one year after the effective date of

the statute.

Application of a statute to conduct occurring after the effective date

is in fact a prospective and not retrospective application. See Miller v.

LaSalle Bank Nat’l Ass’n, 595 F.3d 782, 788 (7th Cir. 2010) (analyzing the

relevant retroactivity event and concluding statute had no retroactive
effect); Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 648–49 (6th Cir. 2006)

(“A focus on the ‘relevant activity’ in this case leads inexorably to the
 7

conclusion that the change in the regulation was not impermissibly

retroactive. . . . [T]he regulatory change had no retroactive effect because

the presumption defined by the listing is a rule of adjudication and

therefore has its effect on claims at the time of adjudication.”); United

States v. Nunemacher, 362 F.3d 682, 685–86 (10th Cir. 2004) (holding new

standard of appellate review applied notwithstanding that it was adopted

after the proceedings in the trial court were concluded); United States v.

Mallon, 345 F.3d 943, 946 (7th Cir. 2003) (same); United States v.

Holloman, 765 F. Supp. 2d 1087, 1091 (C.D. Ill. 2011) (“Therefore, the
relevant retroactivity event is the sentencing date, not the date the offense

was committed, because the application of a mandatory minimum is a

sentencing factor, not an element of the offense. Accordingly, the

application of the FSA is the prospective application of current law, not a

retroactive exercise.” (emphasis omitted)); Antonin Scalia & Bryan A.

Garner, Reading Law: The Interpretation of Legal Texts 263 (2012) (“But

what about a change in the rules governing admission of evidence . . .

Would it be retroactive . . . for that new rule to apply to a trial conducted

after its enactment but dealing with an alleged crime committed before its

enactment? No, because retroactivity ought to be judged with regard to

the act or event that the statute is meant to regulate.” (emphasis omitted)).

Thus, the application of section 822.3A to pending postconviction cases

and postconviction appeals is not prohibited by any rule regarding the

retrospective application of statutes.

Hrbek’s position—that he has a vested right to forever avail himself

of the filing and briefing rules in place when he filed his postconviction-

relief application in 1987—is untenable. No serious person could contend
the procedures governing each and every case become fixed at the time the

petition is filed in the case. Must the district court know the procedures
 8

in place on the date every case is filed and continue to apply old,

superseded procedures? The rules of evidence from 1987 govern trial one

week, but the rules of evidence from 1997 govern trial the next week, and

the rules of evidence from 2007 govern trial the following week, and so on.

Our cases have repeatedly rejected this trapped-in-amber approach. See,

e.g., Dolezal v. Bockes, 602 N.W.2d 348, 352 (Iowa 1999) (“Because rule

231(b) became effective before Dolezal filed his written demand for default,

the rule applied to the demand.”); State ex rel. Leas in re O’Neal, 303

N.W.2d 414, 419 (Iowa 1981) (stating “this court adopted the principle that
a statutory rule of evidence applies to a proceeding tried subsequent to its

effective date, even though the provision was nonexistent at the time the

proceeding was commenced”); Smith v. Korf, Diehl, Clayton & Cleverley,

302 N.W.2d 137, 139 (Iowa 1981) (“The amendment to appellate rule 1

should be applied to all appeals pending as of its effective date, as well as

those perfected thereafter.”); Bascom v. Dist. Ct., 231 Iowa 360, 365, 1

N.W.2d 220, 222 (1941) (“It is our further holding . . . that this new

statutory enactment could and should apply to ‘actions subsequently

instituted although the cause of action may have arisen before.’ ”). We see

no reason to deviate from our prior decisions in this area, and we reject

Hrbek’s contention that section 822.3A does not apply to this

postconviction-relief proceeding and this postconviction appeal.

III.

Having concluded section 822.3A applies to Hrbek’s postconviction

case and this appeal, we address Hrbek’s claim that the new law violates

the separation-of-powers doctrine and is unconstitutional.1 On

1Hrbek did not raise this issue in the district court, but he does raise the issue
now in response to the State’s contention that he cannot file pro se supplemental briefs
on appeal. Our resolution of the separation-of-powers challenge to section 822.3A as
applied on appeal also resolves any separation-of-powers challenge to section 822.3A as
 9

separation-of-powers questions, “this court shall make its own evaluation,

based on the totality of circumstances, to determine whether th[e

questioned] power has been exercised appropriately.” Webster Cnty. Bd.

of Supervisors v. Flattery, 268 N.W.2d 869, 872 (Iowa 1978) (en banc).

“Because statutes are cloaked with a strong presumption of

constitutionality, a party challenging a statute carries a heavy burden of

rebutting this presumption.” Klouda v. Sixth Jud. Dist. Dep’t of Corr.

Servs., 642 N.W.2d 255, 260 (Iowa 2002). “[T]he party must show beyond

a reasonable doubt that a statute violates the constitution.” Id.
We recently resolved a materially indistinguishable separation-of-

powers argument in State v. Thompson, 954 N.W.2d 402, 408–09 (Iowa

2021). Thompson involved a challenge to another provision of the omnibus

crime bill—section 814.6A(1). See id. That provision prohibits represented

defendants in criminal proceedings from filing pro se supplemental

documents in any Iowa court. See Iowa Code § 814.6A(1). We held the

new law as applied on appeal did not violate the separation-of-powers

doctrine:

The demarcation between a legitimate regulation of
court practice and procedure and an unconstitutional
encroachment of the judicial power is context specific. “The
separation-of-powers doctrine . . . has no rigid boundaries.”
Klouda, 642 N.W.2d at 260. In this specific context, we hold
section 814.6A, as applied to prohibit the filing of pro se
supplemental briefs on appeal, does not violate any aspect of
the separation-of-powers doctrine. See id.; Webster Cnty. Bd.
of Supervisors, 268 N.W.2d at 873. It is the legislative
department’s constitutional prerogative to establish a general
system of practice in all Iowa courts so long as those
restrictions and regulations do not impede the immediate,
necessary, efficient, or basic functioning of the appellate
courts. Section 814.6A, as applied to pro se supplemental
briefs on appeal, does not impede the immediate, necessary,
efficient, or basic functioning of the appellate courts. Instead,

applied in the district courts, and we address both issues without distinguishing between
them.
 10
section 814.6A merely restricts represented parties from filing
documents in the appellate courts and thus regulates the
manner in which legal claims and arguments can be
presented to the appellate courts for resolution. The
legislature has exercised its constitutional power to decide
that the claims and arguments of all represented parties on
appeal should be advanced by counsel rather than the
litigants. This does not offend the separation-of-powers
doctrine. The new legislation thus supersedes Iowa Rule of
Appellate Procedure 6.901(2). See Iowa Code § 602.4202(4);
Judicial Rule Making, 48 Iowa L. Rev. at 924 (explaining Iowa’s
“judicial rules will be invalid when in conflict with a statute”).

Thompson, 954 N.W.2d at 418.

While Thompson involved an appeal from a criminal proceeding and
not a postconviction-relief proceeding or postconviction appeal, the

rationale of Thompson applies with at least equal force in this case, and

we need not repeat the analysis in full herein. In sum, the Iowa

Constitution vests the legislative department with the duty and authority

“to provide for a general system of practice in all the courts of this state.”

Iowa Const. art. V, § 14. This textual allocation of power includes the

power to prohibit pro se supplemental filings in any Iowa court. See

Thompson, 954 N.W.2d at 411–12. This understanding of the

constitutional text has been confirmed by historical practice. See id. at

412. While it is true that the judicial department has inherent authority

to provide rules for practice and procedure in Iowa’s courts, the judicial

department’s inherent authority “must give way where the legislative

department has acted.” Id. at 411; see also id. at 412 n.3.

This change to the wholly statutory postconviction-relief regime is

within the legislative department’s constitutional authority “to provide for

a general system of practice in all the courts of this state” and does not

violate the separation-of-powers doctrine. Iowa Const. art. V, § 14.
 11

IV.

Hrbek contends section 822.3A violates his constitutional right to

file pro se supplemental documents in postconviction-relief proceedings

and postconviction appeals. The exact nature of his claim is not clear.

Hrbek notes, prior to the enactment of section 822.3A, represented

applicants in postconviction cases had a nonconstitutional right to file pro

se supplemental documents. He argues this nonconstitutional right has

been “engrafted” onto constitutional rights and now has “a constitutional

dimension” placing the right beyond the reach of the legislature. In
support of his argument, Hrbek cites a litany of constitutional rights:

inalienable rights; the right to the assistance of counsel; the right to access

the courts; the right to the equal protection of the laws; and “some

principle of due process.” We conclude there is no constitutional right of

any sort to file pro se supplemental documents in postconviction-relief

proceedings and postconviction appeals.

A.

Prior to the enactment of section 822.3A, represented

postconviction-relief applicants had a right to file pro se supplemental

documents. This right was provided by a rule enacted in January 2001.

See Iowa Sup. Ct. Supervisory Order, In the Matter of Iowa Rule of Appellate

Procedure 13 (Oct. 18, 2000); Iowa R. App. P. 6.901(2)(a) (providing “[a]ny

. . . applicant for postconviction relief . . . may submit a pro se

supplemental brief . . . within 15 days after service of the proof brief filed

by their counsel”). This right was also provided for in our precedents. See

Jones v. State, 731 N.W.2d 388, 391 (Iowa 2007) (“First, a PCR applicant

who is dissatisfied with his attorney’s representation is permitted to raise
issues pro se and file papers and pleadings pro se.”); Gamble v. State, 723

N.W.2d 443, 445 (Iowa 2006) (stating a postconviction applicant may file
 12

pro se supplemental documents); Leonard v. State, 461 N.W.2d 465, 468

(Iowa 1990) (“A postconviction relief applicant may file applications, briefs,

resistances, motions, and all other documents the applicant deems

appropriate in addition to what the applicant’s counsel files. This

qualification should give the applicant assurance that all matters the

applicant wants raised before the district court will be considered.”).

The right recognized by our rule of appellate procedure and our

precedents decidedly was not of constitutional dimension. In Leonard v.

State, we held the district court had “discretion to deny a postconviction
relief applicant’s request to dispense with counsel.” 461 N.W.2d at 468.

We reached that conclusion based on our interpretation of the statute

authorizing the appointment and denial of counsel in postconviction cases.

See id. We “temper[ed that] holding with one qualification,” explaining a

postconviction applicant may file pro se supplemental documents in the

proceeding. Id. The court made clear the right to file pro se supplemental

documents was not based on the right to counsel. See id. (“But the sixth

amendment applies only to criminal prosecutions and so has no

application to postconviction relief proceedings.”). Leonard did not rely

upon any constitutional provision to support its holding.

In Gamble v. State, we recognized that a represented postconviction-

relief applicant could file pro se supplemental claims and held that the

district court could not order appointed counsel to prepare a report

evaluating the postconviction applicant’s pro se supplemental claims. See

723 N.W.2d at 445–46. Our holding was grounded in Iowa Code sections

822.6 and 822.7, which provided, respectively, that the district court shall

consider the substance of the application regardless of defects of form and
that the district court shall make findings and conclusions on each issue
 13

raised. See id. Gamble did not cite any constitutional provision in support

of its holding.

Finally, in Jones v. State, we reiterated what we said in Gamble: “the

district court must give the applicant an opportunity to be heard on his

pro se claims and must then rule on each issue raised.” Jones, 731

N.W.2d at 392. As in Leonard and Gamble, we did not cite any

constitutional provision in support of our holding. Instead, we reiterated

the right to counsel was not implicated in postconviction-relief

proceedings. See Jones, 731 N.W.2d at 391 (stating “the Sixth Amendment
right to counsel and the corollary constitutional right to dispense with

counsel ‘applies only to criminal prosecutions and so has no application

to postconviction relief proceedings’ ” (quoting Leonard, 461 N.W.2d at

468)).

B.

Hrbek concedes the original right articulated in Leonard, Gamble,

and Jones was statutory and could be abrogated by the legislature. He

argues, however, the original statutory right recognized in Leonard,

Gamble, and Jones has ripened and now has constitutional dimension.

Hrbek grounds this right largely in the constitutional right to counsel.

Hrbek argues this court should hold there is a constitutional right to

counsel in postconviction cases, including an additional constitutional

right for represented postconviction-relief applicants to file pro se

supplemental documents.

In support of his argument, Hrbek relies on Martinez v. Ryan, 566

U.S. 1, 132 S. Ct. 1309 (2012). In Martinez, the Supreme Court addressed

“whether a federal habeas court may excuse a procedural default of an
ineffective-assistance claim when the claim was not properly presented in

state court due to an attorney’s errors in an initial-review collateral
 14

proceeding.” Id. at 5, 132 S. Ct. at 1313. The Supreme Court answered

the question in the affirmative:

[W]hen a State requires a prisoner to raise an ineffective-
assistance-of-trial-counsel claim in a collateral proceeding, a
prisoner may establish cause for a default of an ineffective-
assistance claim in two circumstances. The first is where the
state courts did not appoint counsel in the initial-review
collateral proceeding for a claim of ineffective assistance at
trial. The second is where appointed counsel in the initial-
review collateral proceeding, where the claim should have
been raised, was ineffective under the standards of Strickland
v. Washington.

Id. at 14, 132 S. Ct. at 1318 (citation omitted).

Martinez does not support Hrbek’s argument. The limited issue in

that case dealt with cause to excuse a procedural default for the purposes

of federal habeas review. The Martinez majority explicitly denied it was

creating a constitutional rule and instead characterized the decision as an

“equitable ruling.” Id. at 16, 132 S. Ct. at 1319–20.

The Supreme Court and this court have repeatedly stated there is

no constitutional right to counsel in postconviction cases. See Coleman v.

Thompson, 501 U.S. 722, 752, 111 S. Ct. 2546, 2566 (1991) (“There is no

constitutional right to an attorney in state post-conviction proceedings.”),
superseded by statute on other grounds, 28 U.S.C. § 2254(b)(2);

Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 1993 (1987)

(stating offenders have no “constitutional right to counsel when mounting

collateral attacks upon their convictions” and “the right to appointed

counsel extends to the first appeal of right, and no further”); Goode v.

State, 920 N.W.2d 520, 524 (Iowa 2018) (stating that “the United States

Supreme Court has not recognized a constitutional right to PCR counsel”

and that this court has “not yet recognized a right to PCR counsel under
the Iowa Constitution”); Allison v. State, 914 N.W.2d 866, 895 (Iowa 2018)

(Waterman, J., dissenting) (“[W]e have squarely, and repeatedly, held there
 15

is no constitutional right, only a statutory right, to counsel in PCR

actions.”); Lado v. State, 804 N.W.2d 248, 250 (Iowa 2011) (stating a

postconviction applicant “has a statutory, not constitutional right to

effective assistance of counsel on postconviction relief”).

In any event, Hrbek’s argument regarding the right to counsel is

misdirection; the constitutional right to counsel is not implicated in this

appeal. The question in this appeal is whether a represented

postconviction-relief applicant has a constitutional right to hybrid

representation, that is, a constitutional right to file pro se supplemental
documents in addition to counsel’s briefs in a postconviction-relief

proceeding. Even if there were a constitutional right to counsel in

postconviction-relief proceedings or initial-review postconviction-relief

proceedings, the right to counsel does not encompass an additional

constitutional right to hybrid representation. As the Supreme Court of

North Dakota explained:

A criminal defendant has either a constitutional right to
counsel, or a constitutional right of self-representation.
Under certain circumstances, a court may appoint standby
counsel in its discretion to assist a defendant and to represent
the defendant if termination of self-representation is
necessary. However, a criminal defendant has no
constitutional right to “hybrid” representation and to act as
co-counsel with his attorney. Johnson’s allegation of
ineffective assistance relates solely to his post-conviction
attorney’s failure to act as hybrid co-counsel in the
proceedings, a type of representation to which Johnson was
not entitled. Johnson had the option of either allowing his
attorney to file a brief on his behalf or filing a brief on his own
behalf. He could not demand the filing and consideration of
both briefs. Because Johnson had no right to demand that
his counsel file a brief in addition to the one he filed on his
own behalf, we conclude as a matter of law that post-
conviction counsel’s performance did not fall below an
objective standard of reasonableness.

Johnson v. State, 681 N.W.2d 769, 778 (N.D. 2004) (citations omitted). We

agree with this analysis.
 16

C.

In addition to his constitutional-right-to-counsel argument, Hrbek

has named other constitutional rights in support of his claimed

constitutional right to hybrid representation, including his inalienable

rights, his rights to equal protection of the laws, his rights to access the

courts, and “some principle of due process.” However, Hrbek has not

developed these claims in any meaningful way, and we decline to develop

these arguments on his behalf. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure

to cite authority in support of an issue may be deemed waiver of that
issue.”); State v. Adney, 639 N.W.2d 246, 250 (Iowa Ct. App. 2001) (“When

a party, in an appellate brief, fails to state, argue, or cite to authority in

support of an issue, the issue may be deemed waived.”).

Regardless, neither the Federal nor the State Constitution support

Hrbek’s claim that a represented party has a constitutional right to file pro

se supplemental documents in a postconviction-relief proceeding or a

postconviction appeal. There is no federal or state constitutional right of

any sort to hybrid representation in criminal proceedings or postconviction

relief proceedings. See Thompson, 954 N.W.2d at 416–17 (collecting

cases); see also Clemons v. Pfister, 845 F.3d 816, 820 (7th Cir. 2017) (“He

could dispense with his counseled briefs and represent himself to ensure

that his preferred arguments were raised, or he could roll the dice and

hope that the court would make an exception to the rule against hybrid

representation and accept his pro se supplemental brief. There was

nothing unusual or unfair about putting him to this choice.”); Powell v.

Cockrell, No. 01–40229, 2002 WL 753488, at *6 (5th Cir. Apr. 8, 2002) (per

curiam) (disregarding pro se arguments in postconviction proceedings
because “Texas does not allow ‘hybrid representation.’ ”); Smith v. Tice,

1:16–cv–0362, 2016 WL 4945205, at *4 (M.D. Pa. Sept. 16, 2016) (“There
 17

is nothing extraordinary about Pennsylvania’s prohibition against hybrid

representation. Pro se litigants have no right to ‘hybrid representation’

because ‘[a] defendant does not have a constitutional right to choreograph

special appearances by counsel.’ ” (alteration in original) (quoting

McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S. Ct. 944, 953 (1984)));

Ahmed v. Houk, No. 2:07–cv–658, 2014 WL 2709765, at *101 (S.D. Ohio

June 16, 2014) (“In any event, Ohio does not permit hybrid representation

where a defendant or petitioner for post-conviction relief is represented by

counsel.”), report and recommendation adopted, 2020 WL 5629622 (S.D.
Ohio Sept. 21, 2020); In re Barnett, 73 P.3d 1106, 1113 (Cal. 2003) (“[W]e

indicated quite some time ago that the general rule prohibiting a

represented party’s pro se documents applies in the habeas corpus

context.”); Johnson v. State, 974 So. 2d 363, 364–65 (Fla. 2008) (per

curiam) (holding there is no federal or state constitutional right to hybrid

representation in collateral review proceedings); Wahl v. State,

No. 114,888, 2017 WL 3668917, at *5 (Kan. Ct. App. Aug. 25, 2017)

(per curiam) (“Since there is no right to hybrid representation that is

partially pro se and partially by counsel, substantive documents

submitted pro se by a person represented by counsel, with the exception

of motions to relieve counsel, need not be considered by the court or filed

by the clerk.”); Walton v. Myrick, 459 P.3d 250, 253 (Or. Ct. App. 2020)

(stating there was no authority for “hybrid representation, that is, the filing

of both a counseled post-conviction petition and a pro se petition”

(emphasis omitted)); Commonwealth v. Pursell, 724 A.2d 293, 302

(Pa. 1999) (prohibiting pro se supplemental briefs in postconviction

proceedings); Foster v. State, 379 S.E.2d 907, 907 (S.C. 1989) (holding
there is no state constitutional right to hybrid representation in

postconviction proceedings); State v. Jones, No. 98–0508–CR, 1998 WL
 18

648699, at *3 (Wis. Ct. App. Sept. 23, 1998) (rejecting “notion of ‘hybrid

representation’ during postconviction proceedings”). To the best of our

knowledge, no court has reached a contrary conclusion.

D.

The right recognized in Iowa Rule of Appellate Procedure 6.901(2)

and Leonard, Gamble, and Jones was a nonconstitutional right based on

our rules of appellate procedure and Iowa Code chapter 822. In enacting

section 822.3A, the legislative department determined that postconviction

relief applicants represented by counsel shall no longer be allowed to file
pro se supplemental documents and instead must speak through their

counsel. This amendment to the postconviction statute was within the

legislative department’s constitutional authority “to provide for a general

system of practice in all the courts of this state.” Iowa Const. art. V, § 14.

Procedural rights arising from a statutory scheme can be abrogated by

subsequent statutes. The legislature did so here. Section 822.3A

supersedes Iowa Rule of Appellate Procedure 6.901(2) and abrogates

Leonard, Gamble, and Jones. See Iowa Code § 602.4202(4).

V.

For these reasons, we reject Hrbek’s challenges to section 822.3A.

The clerk of the supreme court is directed to strike Hrbek’s pro se

supplemental briefs. The district court’s order prohibiting Hrbek from

filing additional pro se supplemental documents in his pending

postconviction-relief case is affirmed.

AFFIRMED AND REMANDED.

Waterman, Mansfield, and Oxley, JJ., join this opinion. McDermott,

J., files a separate opinion concurring in part and dissenting in part, in
which Christensen, C.J., and Appel, J., join.
 19

#19–1571, Hrbek v. State

McDERMOTT, Justice (concurring in part and dissenting in part).

The defendant’s constitutional challenge to Iowa Code section

822.3A in this case is, as the majority notes, materially indistinguishable

from the constitutional challenge to section 814.6A that this court decided

in State v. Thompson, 954 N.W.2d 402 (Iowa 2021). Section 822.3A, like

section 814.6A, forbids a represented party from filing “any pro se

document . . . in any Iowa court” and commands that the “court shall not

consider . . . such pro se filings.” Iowa Code § 822.3A (2020). The
constitutional inquiry in this case is simply stated: Does the statute violate

the separation of powers by denying courts the opportunity to request and

consider a postconviction relief applicant’s pro se supplemental brief in

cases properly before the court? The answer—for all the reasons I set out

in my dissent in Thompson—is yes. See generally Thompson, 954 N.W.2d

at 419–25 (McDermott, J., concurring in part and dissenting in part).

The Iowa Constitution establishes the “Jurisdiction of supreme

court” and assigns to the supreme court the power to provide for “the

correction of errors at law” and to “issue all writs and process necessary

to secure justice to parties.” Iowa Const. art. V, § 4. The judicial powers

enumerated in the constitution thus encompass “the power to decide and

pronounce a judgment and carry it into effect.” Klouda v. Sixth Jud. Dist.

Dep’t of Corr. Servs., 642 N.W.2d 255, 261 (Iowa 2002).

The Iowa Constitution directs the legislature “to provide for a general

system of practice in all the courts of this state.” Iowa Const. art. V, § 14.

But this provision doesn’t bestow upon the legislature exclusive power to

dictate the court’s rules of practice. See Iowa C.L. Union v. Critelli, 244
N.W.2d 564, 569 (Iowa 1976) (en banc). The legislature may not infringe

core judicial functions through the implementation of procedural rules.
 20

“Certain implied powers must necessarily result to our Courts of justice

from the nature of their institution.” United States v. Hudson & Goodwin,

11 U.S. (7 Cranch) 32, 34 (1812). Danger lies not only when one branch

“directly and completely” performs the functions of a separate branch but

also when one branch “posses[es], directly or indirectly, an overruling

influence over the others in the administration of their respective powers.”

The Federalist No. 48, at 332 (James Madison) (Jacob E. Cooke ed., 1961).

The judiciary bears the constitutional duty to decide cases and,

thus, must have access to the tools that are part and parcel to carrying
out this duty. By restricting who may file briefs with our court, the

legislature limits the courts’ sources of knowledge, which is inextricably

intertwined with the courts’ constitutional power to decide cases.

Richardson v. Fitzgerald, 132 Iowa 253, 255, 109 N.W. 866, 867 (1906)

(“[A]ny direction by the Legislature that the judicial function shall be

performed in a particular way is a plain violation of the Constitution.”).

Our own appellate rules expressly permit postconviction relief applicants

to submit a pro se supplemental brief. Iowa R. App. P. 6.901(2)(a). I view

the rule as the court’s invitation to receive directly from criminal

defendants arguments the court deems potentially relevant—and

potentially useful—to its decision-making process. See, e.g., State v.

Hanes, 790 N.W.2d 545, 556–57 (Iowa 2010) (evaluating, and finding merit

in, arguments offered in the defendant’s pro se supplemental brief).

Once a case is before the court, the legislature doesn’t have the

power to control the arguments the parties may make, just as it doesn’t

have the power to control what courts may use, or consider, in arriving at

their decisions. Courts “derive from the Constitution itself, once they have
been created and their jurisdiction established, the authority to do what

courts have traditionally done in order to accomplish their assigned tasks.”
 21

Chambers v. NASCO, Inc., 501 U.S. 32, 58, 111 S. Ct. 2123, 2140 (1991)

(Scalia, J., dissenting). A statute that purports to restrict both the court’s

sources of information and what courts may contemplate in the decision-

making process necessarily infringes the judiciary’s ability to interpret the

law.

The judicial power to decide cases is nothing more than what the

framers might have called a “parchment power” if the legislature can

dictate what the court may consider in reaching its decisions. See The

Federalist No. 48, at 333 (James Madison). I concur in the majority’s
opinion in division II on the retrospective application issue that Hrbek

raises. But for these and the other reasons I set out in my dissent in

Thompson, I respectfully dissent from division III and would hold section

822.3A unconstitutional as a violation of the separation of powers.

Christensen, C.J., and Appel, J., join this concurrence in part and

dissent in part.