State v. Hill

868 N.W.2d 201 (Table)

STATE of Iowa, Plaintiff–Appellee

v.Basil Jamaal HILL, Defendant–Appellant.

No. 12–2275.

Court of Appeals of Iowa.

June 10, 2015.

Sally Frank of Drake Legal Clinic, for appellant.

Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney General, John P. Sarcone, County Attorney, and Linda Zanders, Assistant County Attorney, for appellee.

Heard by TABOR, P.J., and BOWER and McDONALD, JJ.

Opinion

TABOR, P.J.

Basil Hill appeals his conviction for criminal trespass. He contends he was justified in remaining on the Iowa State Capitol grounds with other Occupy Iowa protestors after the hours of closure because they were exercising their rights to free speech and assembly under the United States and Iowa Constitutions. He also argues the district associate court should have consolidated the trials of several protestors, granted his motion for discovery, and denied the State's motion to amend the original complaint.

While the federal and state constitutions guarantee robust rights to free speech and assembly, those guarantees are not absolute. U.S. Const. amend. I ; Iowa Const. art. I, §§ 7, 20 ; see State v. Baker, 688 N.W.2d 250, 255 (Iowa 2004) ; State v. Lacey, 465 N.W.2d 537, 540 (Iowa 1991). The State may impose reasonable restrictions on the time, place and manner of protected speech—even in traditional public forums. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Because the restrictions at issue here met those constitutional standards, we affirm the denial of Hill's motion to dismiss his trespass prosecution. We also deny relief on Hill's claims involving consolidation, discovery, and amending the complaint.

I. Background Facts and Proceedings

On Sunday, October 9, 2011, an Iowa State Patrol officer arrested Hill for criminal trespass, a simple misdemeanor, in violation of Iowa Code section 716.7(2)(b) (2011).¹ The arrest occurred at 11:15 p.m., fifteen minutes after the grounds had closed to the public.

Hill and hundreds of other protestors had gathered at the state capitol starting at noon that day as part of the “Occupy Iowa” movement.² At 3:00 p.m., the protestors decided they wanted to stay at that location and formed a “legal committee” to look into obtaining a permit. A committee member spoke with an Iowa State Patrol officer and learned the capitol grounds closed at 11:00 p.m. The protestors also learned they could not obtain a permit to stay after that hour because the Department of Administrative Services (DAS), the state office that issued permits, was closed on weekends.

At 10:30 p.m. State Patrol Captain Mark Logsdon came to the capitol grounds and informed the protestors they were welcome to stay until 11:00 p.m., but they would have to leave at that time or face arrest. He told them again at 10:45 p.m. About twenty protestors stayed past 11:00 p.m. and were arrested for trespassing.

Hill and his co-defendants filed a motion to dismiss their trespass charges, claiming the “curfew”³ enforced at the capitol abridged their free speech and assembly rights. The motion asserted the curfew did not constitute a content-neutral time, place, and manner restriction. The motion also alleged the state regulations regarding permit applications were unconstitutional because they did not allow for emergency protests.

After holding a day-long evidentiary hearing, the district associate court denied the motion to dismiss. The court ruled from the bench that the motion to dismiss did not challenge Iowa Code section 716.7, and the court would not allow the defendants to “bootstrap their defense of justification arising from a claim of a violation of the constitutionality of an administrative process” of which they did not avail themselves. The court ruled the motion to dismiss was “not the proper avenue or remedy” to challenge the constitutionality of the administrative rules or their implementation.

Hill's trespass prosecution proceeded to trial with one co-defendant.⁴ Before trial, the State filed a motion in limine seeking to prevent Hill and his codefendant from offering evidence regarding their “free speech rights” or arguing that “free speech rights” could constitute justification under section 716.7. Hill resisted, citing State v. Williams, 238 N.W.2d 302, 308 (Iowa 1976), for the proposition that freedom of speech could constitute justification under the trespass statute. The district associate court denied the State's motion in limine, reasoning that “without justification” was an element of the State's case and the defendant was allowed to present his “individual reasons for being on the property.” The court “tempered” its ruling by precluding the defendants from discussing the “nature and cause” of the Occupy Iowa movement.

At trial, the State presented the testimony of Iowa State Patrol Captains Mark Logsdon and Mike Winter, as well as DAS deputy director Caleb Hunter. The defense did not offer any evidence.

At the close of trial, the court instructed the jurors that the phrase “without justification” as used in the marshalling instruction protected entry onto public property “for the purpose of exercising one's right to free speech, assembly, or to petition the government for a redress of grievances.” The court also instructed the jury that “[t]he right of peaceful protest does not mean that everyone with opinions or beliefs to express may do so at any time and at any place.” The court further informed the jurors that the State may regulate speech in public forums if (1) the regulations are content-neutral, (2) the regulations are reasonable time, place, and manner restrictions narrowly tailored to serve an important government interest; and (3) the regulations leave open adequate alternative places for speech but need not be the least restrictive or intrusive means. The jury found Hill guilty of criminal trespass.

Hill appealed his simple misdemeanor conviction to the district court under Iowa Rule of Criminal Procedure 2.73(1). Hill argued the district associate court erred in not deciding the constitutional validity of closing the capitol grounds. Hill also argued the court erred in allowing the closure to prove the trespass charge because the implementation of that closure did not comply with the state administrative rule requiring the hours to be posted. Hill further challenged the district associate court's denial of his motion to consolidate, motion for discovery, and the court's granting of the State's motion to amend the complaint to add an additional trespass alternative. The district court denied Hill's appeal, finding the hours of closure for the capitol grounds and the permit rules did not “unduly infringe on First Amendment freedoms.”

Hill then sought discretionary review under Iowa Code section 814 .6(2)(d), which the Iowa Supreme Court granted on February 7, 2013. After briefing was completed, on March 2, 2015, the supreme court transferred the case to us.

II. Scope and Standards of Review

Hill raises several issues, which require us to apply varying standards of review. His challenge to the denial of his motion to dismiss on constitutional grounds calls for de novo review in light of the totality of circumstances. See Baker, 688 N.W.2d at 252 ; State v. McKnight, 511 N.W.2d 389, 391 (Iowa 1994).

We review Hill's challenges to the district associate court's rulings on consolidation and discovery for an abuse of discretion. See State v. Clark, 814 N.W.2d 551, 563 (Iowa 2012) ; State v. Hajtic, 724 N.W.2d 449, 457 (Iowa 2006). “To establish an abuse of discretion, a defendant must show sufficient prejudice to constitute denial of a fair trial.” State v. Leutfaimany, 585 N.W.2d 200, 203 (Iowa 1998). We review a ruling allowing the State to amend a criminal charge for errors at law. Cf. State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997) (analyzing rule 2.4(8) for amending trial information).

III. Motion to Dismiss

Hill's foremost challenge is to the constitutionality of his conviction.⁵ In his motion to dismiss, he claimed the trespass prosecution violated the First Amendment of the United States Constitution⁶ and article I, sections 7 and 20 of the Iowa Constitution.⁷

On appeal, Hill argues the Iowa Constitution “goes further” than the United States Constitution in guaranteeing the right to petition the government. Hill contends he and his fellow Occupy Iowa protestors were assembling on the capitol grounds to make their views known to their representatives. But Hill does not advocate for Iowa courts to adopt a different test under the state constitutional provisions than the United States Supreme Court has applied under the First Amendment. Our supreme court has generally viewed the federal and state constitutional provisions as coextensive. See, e.g., City of West Des Moines v. Engler, 641 N.W.2d 803, 805 (Iowa 2002) ; State v. Milner, 571 N.W.2d 7, 12 (Iowa 1997) ; Des Moines Register & Tribune Co. v. Osmundson, 248 N.W.2d 493, 498 (Iowa 1976). Accordingly, we will interpret the scope of the state constitutional provisions to track with the federal interpretations of the First Amendment.

On appeal, Hill claims the district associate court erred in denying the motion to dismiss for two reasons. First, he argues the hours of closure on the state capitol grounds constituted a “prior restraint” on free speech without a compelling state interest. Second, he attacks the process for obtaining a permit to remain on the grounds after hours as unconstitutional. He contends the permit scheme “gives unbridled and absolute power to an issuing authority”—namely the DAS—and does not accommodate the constitutional requirement for spontaneous protests. Before turning to the merits of Hill's claims, we address the question of error preservation.

A. Preservation of Error

The State advances several error preservation arguments. First, the State argues the administrative rules concerning how permits are issued “never came into play.” Because Hill did not apply for a permit before...