              IN THE SUPREME COURT OF IOWA
                              No. 18–1366

                           Filed May 10, 2019


STATE OF IOWA,

      Appellee,

vs.

JANE DOE,

      Appellant.



      Appeal from the Iowa District Court for Polk County, Becky

Goettsch, District Associate Judge.



      Defendant appeals district court ruling denying motion to expunge

record and rejecting equal protection challenge to requirement to pay

costs assessed for court-appointed counsel. AFFIRMED.



      Robert J. Poggenklass of Iowa Legal Aid, Des Moines, for appellant.



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

Attorney General, John P. Sarcone, County Attorney, and Levi Grove,

Assistant County Attorney, for appellee.
                                       2

WATERMAN, Justice.

         This appeal presents a facial constitutional challenge to Iowa Code

section 901C.2 (2018), the expungement statute enacted in 2016, which

creates a statutory right to expungement, subject to several conditions,

including payment of all court-imposed costs and fees.          An indigent

defendant was denied expungement in this case for failure to pay off her

court-appointed attorney fees.      She argues that condition violates the

Equal Protection Clauses of the Federal and Iowa Constitutions because

defendants who owe fees to privately retained attorneys can expunge

their criminal records, while defendants owing court-appointed attorney

fees cannot. The district court rejected her constitutional challenge and

denied her motion to expunge her record. We retained her appeal.

         On our review, we affirm.     There is no constitutional right to

expunge one’s criminal record. The legislature created a statutory right

subject to conditions.     This equal protection claim does not involve a

fundamental right or suspect class, so we apply rational basis review.

The legislature could reasonably condition expungement on payment of

costs in order to incentivize defendants to satisfy court debt. The facial

constitutional challenge fails.

         I. Background Facts and Proceedings.

         On April 29, 2009, police responded to a 911 call at 3 a.m.

reporting that a man was holding a woman at knifepoint at a duplex on

Southwest Third Street in Des Moines. Witnesses told officers that the

man fled the residence from an upstairs rear window. Officers checked

the area but found no suspect and noticed the windows were closed on

the back side of the house and the grass below looked undisturbed.

         The officers decided to enter the residence to find the man with the

knife.    They encountered Jane Doe at the front door.        Doe identified
                                     3

herself as the victim but stood in the entryway and told officers she did

not want them to come in. Doe blocked the door, refused the officers’

requests to step aside, and shoved them as they entered. The officers

physically removed Doe from the doorway, handcuffed her, and placed

her in a squad car while they searched the residence.

      The officers found a man inside hiding in a closet. They learned

that Doe had told witnesses to lie about what had happened and to

report falsely that the man who assaulted her had jumped out the rear

window to get away. The witnesses’ descriptions matched the man in the

closet.   Doe then told police that she and the man—the father of her

child—began arguing after he received a phone call from another woman.

Doe said she became upset, pulled a knife on him, and bit his finger.

Doe was arrested.

      Doe was charged by trial information with one count of domestic

abuse assault with a dangerous weapon in violation of section

708.2A(2)(c) (2009) and one count of assault on a police officer in

violation of section 708.3A(4).   Doe submitted a financial affidavit and

requested a court-appointed attorney to represent her.     Doe’s affidavit

stated that she was a single mother supporting one child and her only

source of income was $250 monthly for food assistance. The court found

that Doe was unable to pay for an attorney and appointed one to

represent her.

      On August 3, Doe’s court-appointed attorney filed a motion to

withdraw and informed the court that Doe and the State had reached an

agreement whereby if Doe successfully completed a family violence class

by September 15, the State would dismiss the charges against her. The

court approved the attorney’s withdrawal and appointed another attorney

to represent Doe.
                                     4

      Doe successfully completed the class. The State filed a notice of

intent not to prosecute, which stated that costs would be assessed to

Doe. The district court entered an order dismissing the charges without

prejudice and assessed Doe $718 in costs, all for her court-appointed

attorney fees.     The record is silent as to whether the district court

determined Doe had a reasonable ability to pay those costs at that time.

Doe did not object to, nor did she appeal, the cost assessment.

      Nearly a decade later, and two years after the legislature enacted

section 901C.2, Doe filed a motion to expunge this case from her

criminal record. Doe still owed $550 of the court debt when she sought

expungement, having paid $168.           She raised a facial constitutional

challenge to the statutory requirement that she pay all assessed court

costs as a condition for expungement. She did not ask the district court

to determine she had a present inability to pay the court debt, nor did

she ask that the underlying court debt be extinguished based on the

absence of a judicial finding in 2009 that she then had a reasonable

ability to pay the assessed fees.

      The district court denied her motion for expungement and rejected

her constitutional argument. The court stated, “In her financial affidavit

[in 2009] she signed a statement that she understood she may be

required to repay the State for attorney fees and costs.”      The district

court continued,

             [Doe] argues requiring an indigent person to reimburse
      attorney fees prior to expungement, unlike an individual who
      hired their own counsel, violates the Constitution,
      specifically due process and equal protection. The Court
      rejects this argument.      [Doe] was made aware of the
      possibility of reimbursing attorney fees and that
      expungement could not occur until all fees and assessed
      costs were paid.       This was part of the bargain [Doe]
      negotiated.
                                    5

The court noted that Doe “may still obtain expungement if and when the

fees are paid.”

      Doe appealed, and we retained the case.            In her affidavit

supporting her motion to waive the appellate filing fee, Doe attested that

she received monthly food assistance of $500 and $426 monthly from the

Family Investment Program and that she has two children, with a third

due in August 2018. Doe estimated her monthly expenses are $1445.

Our court waived the filing fee.

      II. Scope of Review.

      We review constitutional challenges to statutes de novo. State v.

Sluyter, 763 N.W.2d 575, 579 (Iowa 2009).

      [W]e must remember that statutes are cloaked with a
      presumption of constitutionality. The challenger bears a
      heavy burden, because it must prove the unconstitutionality
      beyond a reasonable doubt. Moreover, “the challenger must
      refute every reasonable basis upon which the statute could
      be found to be constitutional.” Furthermore, if the statute is
      capable of being construed in more than one manner, one of
      which is constitutional, we must adopt that construction.

State v. Seering, 701 N.W.2d 655, 661 (Iowa 2005) (quoting State v.

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

statute on other grounds, 2009 Iowa Acts ch. 119, § 3 (codified at Iowa

Code § 692A.103 (Supp. 2009)), as recognized in In re T.H., 913 N.W.2d

578, 587–88 (Iowa 2018).

      III. Analysis.

      A. Iowa’s Dismissal–Acquittal Expungement Statute. There is

no constitutional right to expunge one’s criminal record.    See Judicial

Branch v. Iowa Dist. Ct., 800 N.W.2d 569, 579 (Iowa 2011), superseded

by 2015 Iowa Acts ch. 83, § 1 (codified at Iowa Code § 901C.2 (2016)

(creating a limited statutory right to expunge certain criminal records);

see also Sealed Appellant v. Sealed Appellee, 130 F.3d 695, 699 (5th Cir.
                                        6

1997) (“There is no constitutional basis for a ‘right to expungement.’ ”);

Duke v. White, 616 F.2d 955, 956 (6th Cir. 1980) (per curiam) (“The right

to expungement of state records is not a federal constitutional right.”).

Expungement is a matter of legislative grace. Prior to 2016, individuals

acquitted of a crime or whose criminal charges were dismissed could not

expunge the charges from their criminal records. On January 1, 2016,

Iowa’s first dismissal–acquittal expungement law took effect.                With

clarifying amendments, the current version of the law took effect in

July 2016. 1 Iowa Code section 901C.2 (2018) gives individuals who were

acquitted or had their charges dismissed the opportunity to expunge the

criminal case from their criminal record. Section 901C.2(1) provides,

            1. a. Except as provided in paragraph “b”, upon
      application of a defendant or a prosecutor in a criminal case,
      or upon the court’s own motion in a criminal case, the court
      shall enter an order expunging the record of such criminal
      case if the court finds that the defendant has established
      that all of the following have occurred, as applicable:
            (1) The criminal case contains one or more criminal
      charges in which an acquittal was entered for all criminal
      charges, or in which all criminal charges were otherwise
      dismissed.
            (2) All court costs, fees, and other financial obligations
      ordered by the court or assessed by the clerk of the district
      court have been paid.
             (3) A minimum of one hundred eighty days have
      passed since entry of the judgment of acquittal or of the
      order dismissing the case relating to all criminal charges,
      unless the court finds good cause to waive this requirement
      for reasons including but not limited to the fact that the
      defendant was the victim of identity theft or mistaken
      identity.
            (4) The case was not dismissed due to the defendant
      being found not guilty by reason of insanity.



        1The amendments did not change any of the conditions for expungement, so we

will use the most recent version of the statute in this opinion.
                                           7
               (5) The defendant was not found incompetent to stand
       trial in the case.
             b. The court shall not enter an order expunging the
       record of a criminal case under paragraph “a” unless all the
       parties in the case have had time to object on the grounds
       that one or more of the relevant conditions in paragraph “a”
       have not been established.

“This statute was apparently enacted in response to our decision in

Judicial Branch v. Iowa District Court, which held that existing Iowa laws

did not require the removal of information relating to dismissed criminal

cases from the courts’ statewide computerized docket.” State v. Doe, 903

N.W.2d 347, 351 (Iowa 2017); see also Judicial Branch, 800 N.W.2d at

571.

       The parties agree that Doe has satisfied all of the required

conditions for expungement except Iowa Code section 901C.2(1)(a)(2), as

Doe has not paid all outstanding court costs and fees. Notably, Doe does

not    ask   our    court   to     superimpose       a    reasonable   ability-to-pay

determination at the time of expungement. While Doe mounts a facial

equal protection challenge, she also argues she personally is presently

indigent and unable to pay the remaining court costs, which are solely

court-appointed attorney fees.           Yet the relief she seeks in her facial

challenge    is    not   limited    to   presently       indigent   persons   seeking

expungement, but rather extends to anyone whose court debt preventing

expungement consists of court-appointed attorney fees. The absence of a

finding as to her own reasonable ability to pay in 2009 is irrelevant to

her facial challenge. We turn to this facial challenge, which the district

court rejected.

       B. Doe’s Equal Protection Challenge. Doe argues that section

901C.2 violates the Equal Protection Clause of both the United States

and Iowa Constitutions by treating indigent defendants with outstanding
                                            8

court-appointed attorney fees differently than other criminal defendants. 2

“[O]n a basic level, both constitutions establish the general rule that

similarly situated citizens should be treated alike.” Lowe’s Home Ctrs.,

LLC v. Iowa Dep’t of Revenue, 921 N.W.2d 38, 56 (Iowa 2018) (alteration

in original) (quoting LSCP, LLLP v. Kay-Decker, 861 N.W.2d 846, 856

(Iowa 2015)).

       “We generally consider the federal and state equal protection

clauses to be ‘identical in scope, import, and purpose.’ ” Residential &

Agric. Advisory Comm., LLC v. Dyersville City Council, 888 N.W.2d 24, 50

(Iowa 2016) (quoting War Eagle Vill. Apartments v. Plummer, 775 N.W.2d

714, 719 (Iowa 2009)). “Unless a suspect class or a fundamental right is

at issue, equal protection claims are reviewed under the rational basis

test.” King v. State, 818 N.W.2d 1, 25 (Iowa 2012). Doe has not alleged

that a fundamental right or suspect class is at issue. We will apply the

rational basis test consistent with our precedent. Judicial Branch, 800

N.W.2d at 579 (“Persons who have had criminal proceedings terminated

in their favor are not a suspect class.”); State v. Dudley, 766 N.W.2d 606,

615 (Iowa 2009) (“[T]he 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” and therefore is

“subject to a rational-basis review.”).

       We confront two threshold issues. First, the State argues that Doe

has not shown that similarly situated parties are being treated differently

for purposes of equal protection review. Second, the State argues that

       2U.S.   Const. amend. XIV, § 1 (“No State shall make or enforce any law which
shall . . . deny to any person within its jurisdiction the equal protection of the laws.”);
Iowa Const. art. I, § 6 (“All laws of a general nature shall have a uniform operation; the
general assembly shall not grant to any citizen, or class of citizens, privileges or
immunities, which, upon the same terms shall not equally belong to all citizens.”).
                                      9

Doe has raised only a disparate impact claim, which we have said is

insufficient to maintain an equal protection claim.           We find both

arguments unavailing.

      1. Similarly situated.   “To allege a viable equal protection claim,

plaintiffs must allege that the defendants are treating similarly situated

persons differently.” King, 818 N.W.2d at 24. The State argues that Doe

cannot establish she is similarly situated to individuals who have paid all

of their court costs and fees, nor can she show that all indigent

defendants are similarly situated because some choose to represent

themselves or their cases are dismissed before court-appointed counsel

rendered any billable services.

      In our view, the relevant groups to compare are individuals who

owe fees to a private attorney and those like Doe who owe fees for court-

appointed counsel. Both groups owe attorney fees, yet those owing State

court-appointed fees are unable to expunge their records.            Doe has

identified similarly situated groups that are treated differently.

      2. Disparate treatment versus disparate impact. The State argues

that no defendant can have a criminal record expunged unless all costs

and fees are paid.      For that reason, the State argues that Doe is

challenging the disparate impact of the expungement statute, not

disparate treatment. The State notes that other states have previously

rejected Doe’s argument. See, e.g., People v. Covington, 98 Cal. Rptr. 2d

852, 858 (Ct. App. 2000) (“Equal protection means only that [the

defendant] can have her conviction expunged, the same as the wealthier

defendant in her hypothetical, if and when she pays restitution . . . .”);

State v. Hanes, 79 P.3d 1070, 1070–72 (Idaho Ct. App. 2003) (rejecting

equal protection challenge to statute that required compliance with terms

of probation as a condition for expungement, and when defendant
                                    10

repeatedly “failed to make timely payments for his restitution and costs

of probation supervision”). Those cases, however, addressed outstanding

restitution and costs of probation supervision, not court-appointed

attorney fees.

      Doe more narrowly alleges disparate treatment.           Defendants

represented by privately retained attorneys are eligible for expungement

even if they have unpaid attorney fees, so long as all other court costs

have been paid, while defendants like Doe are ineligible for expungement

if they owe fees for court-appointed counsel. We conclude that Doe has

adequately alleged disparate treatment.

      3. Rational basis review.   Under rational basis review, a statute

“will be sustained if the classification drawn by the statute is rationally

related to a legitimate state interest.”    Dudley, 766 N.W.2d at 615

(quoting Sanchez v. State, 692 N.W.2d 812, 817 (Iowa 2005)).            “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.’ ” Id. (quoting State v. Mann, 602 N.W.2d 785, 792 (Iowa

1999)). Doe must prove that “the relationship between the classification

and the purpose behind it is so weak the classification must be viewed as

arbitrary or capricious.” King, 818 N.W.2d at 28 (quoting Ames Rental

Prop. Ass’n v. City of Ames, 736 N.W.2d 255, 259 (Iowa 2007)).         Doe

“must negate every reasonable basis upon which the classification may

be sustained.” Id. (quoting Bierkamp v. Rogers, 293 N.W.2d 577, 579–80

(Iowa 1980) (en banc)). “We will not declare something unconstitutional

under the rational-basis test unless it ‘clearly, palpably, and without

doubt infringe[s] upon the constitution.’ ” Residential & Agric. Advisory
                                      11

Comm., LLC, 888 N.W.2d at 50 (alteration in original) (quoting Racing

Ass’n of Cent. Iowa v. Fitzgerald (RACI), 675 N.W.2d 1, 8 (Iowa 2004)).

      “[A]lthough the rational basis standard of review is admittedly

deferential to legislative judgment, ‘it is not a toothless one’ in Iowa.”

RACI, 675 N.W.2d at 9 (quoting Mathews v. de Castro, 429 U.S. 181,

185, 97 S. Ct. 431, 434 (1976)).       We use a three-part analysis when

reviewing challenges to a statute under article I, section 6 of the Iowa

Constitution. Residential & Agric. Advisory Comm., LLC, 888 N.W.2d at

50. “First, we must determine whether there was a valid, ‘realistically

conceivable’ purpose that served a legitimate government interest.” Id.

(quoting McQuistion v. City of Clinton, 872 N.W.2d 817, 831 (Iowa 2015)).

“To be realistically conceivable, the [statute] cannot be ‘so overinclusive

and underinclusive as to be irrational.’ ” Id. (quoting Horsfield Materials,

Inc. v. City of Dyersville, 834 N.W.2d 444, 459 (Iowa 2013)). “Next, the

court must evaluate whether the ‘reason has a basis in fact.’ ”

McQuistion, 872 N.W.2d at 831 (quoting RACI, 675 N.W.2d at 7–8).

“[A]lthough ‘actual proof of an asserted justification [i]s not necessary,

. . . the court w[ill] not simply accept it at face value and w[ill] examine it

to determine whether it [i]s credible as opposed to specious.’ ”        LSCP,

LLLP, 861 N.W.2d at 860 (second, third, fourth, and fifth alterations in

original) (quoting Qwest Corp. v. Iowa State Bd. of Tax Review, 829

N.W.2d 550, 560 (Iowa 2013)).

      Doe argues that the State may not impose unduly harsh or

discriminatory terms on indigent defendants merely because they owe

attorney fees to the State instead of to a private attorney. Doe relies on

James v. Strange, which invalidated a Kansas recoupment statute on

rational basis review.    407 U.S. 128, 141–42, 92 S. Ct. 2027, 2035

(1972). The Kansas statute withheld various debtor’s exemptions from
                                        12

defendants      owing   court-appointed      counsel        fees,    most      notably,

restrictions on wage garnishment available to other civil judgment

debtors. Id. at 134–40, 92 S. Ct. 2031–34. The James Court recognized:

              The indigent’s predicament under this statute comes
        into sharper focus when compared with that of one who has
        hired counsel in his defense. Should the latter prove unable
        to pay and a judgment be obtained against him, his
        obligation would become enforceable under the relevant
        provisions of the Kansas Code of Civil Procedure. But,
        unlike the indigent under the recoupment statute, the code’s
        exemptions would protect this judgment debtor.

Id. at 136–37, 92 S. Ct. at 2032.         The James Court concluded, “[T]o

impose these harsh conditions on a class of debtors who were provided

counsel    as   required   by   the    Constitution    is     to    practice    ...   a

discrimination which the Equal Protection Clause proscribes.”                    Id. at

140–41, 92 S. Ct. at 2034.            The Court noted, “[S]tate recoupment

statutes may betoken legitimate state interests. But these interests are

not thwarted by requiring more even treatment of indigent criminal

defendants with other classes of debtors . . . .” Id. at 141, 92 S. Ct. at

2035.

        By contrast, two years later in Fuller v. Oregon, the Supreme Court

rejected an equal protection challenge to an Oregon recoupment statute

that retained all exemptions available to judgment debtors and gave

defendants the ability to show that having to repay legal defense costs

would impose undue hardship.           417 U.S. 40, 53, 54, 94 S. Ct. 2116,

2124–25 (1974). The Supreme Court concluded,

        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.
                                          13

Id. at 53, 94 S. Ct. at 2124 (footnote omitted). 3                      The Oregon

reimbursement statute survived constitutional challenge because the

repayment obligations were conditioned on the defendant’s reasonable

ability to pay.        Neither Fuller nor James adjudicated a right to

expungement; rather, both cases addressed constitutional challenges to

the validity of the court debt.

       In 2009, we addressed James and Fuller in a challenge to Iowa’s

recoupment statute.        Dudley, 766 N.W.2d at 614–15.             We determined

that “[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” for court-appointed attorney

fees. Id. at 615. The legislature responded by codifying the reasonable-

ability-to-pay requirement in an amendment to the recoupment statute.

2012 Iowa Acts ch. 1063, § 9 (codified at Iowa Code § 815.9 (2012). The

required showing of a reasonable ability to repay the court-appointed

attorney fees avoids the constitutional infirmity identified in James. See

Dudley, 766 N.W.2d at 615; see also State v. Albright, ___ N.W.2d ___, ___

(Iowa 2019) (“The inclusion of the reasonable-ability-to-pay requirement

makes these restitution provisions constitutional.”); cf. Thomas v.

Haslam, 329 F. Supp. 3d 475 (M.D. Tenn. 2018), appeal docketed,

No. 18–5766 (6th Cir. July 27, 2018) (holding Tennessee statute revoking

driver’s licenses of indigent individuals for failure to timely pay court

debt without inquiry into ability to pay violated the Equal Protection

Clause).

       3The  Court also determined that the legislature could properly decline to impose
repayment obligations on defendants who were acquitted, whose trials ended in
dismissal or mistrial, or whose criminal convictions were reversed on appeal, and that
the statute did not violate the defendant’s right to counsel. Fuller, 417 U.S. at 49–50,
53–54, 94 S. Ct. at 2123, 2125.
                                    14

      Dudley was decided several months before the district court

assessed the $718 in costs to Doe in September 2009, when Doe was still

represented by court-appointed counsel. Doe did not object then to the

assessment of costs or appeal the cost judgment. Doe does not claim she

can now vacate the cost judgment based on the lack of an affirmative

showing of her reasonable ability to pay in 2009. See State v. Olsen, 794

N.W.2d 285, 289 (Iowa 2011) (holding court lacked jurisdiction to

entertain motion to reduce court debt based on lack of ability-to-pay

finding because motion was filed over thirty days after cost judgment

became final). Doe makes clear she “has requested expungement of her

criminal case, not forgiveness of the court-appointed attorney debt owed

in that case. . . .     Cancellation of debt is a different remedy, and

something [she] has not requested.”

      Doe instead makes a facial challenge to Iowa Code section 901C.2

because the statute requires repayment of costs assessed for court-

appointed attorney fees without requiring defendants to pay off privately

retained attorney fees as a condition for expungement.     We determine

that section 901C.2 survives rational basis review under both the Iowa

and Federal Constitutions.      The legitimate State purpose here is to

encourage payment of court debt. In James, the United States Supreme

Court acknowledged the state’s interest in recouping these costs:

      Many States . . . face expanding criminal dockets, and this
      Court has required appointed counsel for indigents in
      widening classes of cases and stages of prosecution. Such
      trends have heightened the burden on public revenues, and
      recoupment laws reflect legislative efforts to recover some of
      the added costs.

407 U.S. at 141, 92 S. Ct. at 2034–35 (footnotes omitted). As noted, the

Iowa recoupment statute passes constitutional muster under Fuller,

Dudley, and Albright.
                                           15

      Doe offers policy arguments favoring expungement, noting an

arrest record may limit employment opportunities that could enable

defendants to pay off the underlying court debt. An arrest record may

also limit available housing, and offenders realistically need a place to

live in order to land and keep a job.                 Steady employment reduces

recidivism.        “Our task, however, is not to weigh this statute’s

effectiveness but its constitutionality.” James, 407 U.S. at 133, 92 S. Ct.

at 2031. Doe’s policy arguments should be directed to the legislature.

      In Judicial Branch, we held it did not violate state or federal equal

protection    to    allow    expungement        for   persons   receiving    deferred

judgments but not for those acquitted of criminal charges or whose

criminal charges were dismissed. 800 N.W.2d at 579. Payment of court

costs is typically a condition of a deferred judgment. We concluded that

the   legislature    could    rationally    favor     expungement     for    deferred

judgments alone to incentivize payment of court costs.               Id. The same

incentive is in play here.

      The     legislature    was   not     constitutionally     required    to   allow

expungement and could choose to condition expungement on payment of

court debt to motivate defendants to pay what they owe the State.

Further, had the legislature intended to allow courts to waive the

requirement that court-appointed attorney fees be repaid prior to

expungement based on a present inability to pay, it could have said so.

Indeed, the legislature allowed waiver of another requirement, the 180-

day waiting period in subsection 901C.2(1)(a)(3), upon a showing of good

cause.   See Staff Mgmt. v. Jimenez, 839 N.W.2d 640, 649 (Iowa 2013)

(“[L]egislative intent is expressed by omission as well as by inclusion, and

the express mention of one thing implies the exclusion of others not so
                                          16

mentioned.”).     We cannot rewrite the statute to allow waiver of court

debt.

        Other Iowa statutes impose consequences such as loss of licenses

for failure to pay state debt or child support. 4 We hold the requirement

to pay court costs found in Iowa Code section 901C.2, including for

court-appointed attorney fees, is rationally related to the government

interest in collecting court debt.             We reject Doe’s equal protection

challenge under the United States and Iowa Constitutions.

        IV. Disposition.

        For these reasons, we affirm the district court’s ruling denying

Doe’s motion to expunge her record.

        AFFIRMED.

        Mansfield, Christensen, and McDonald, JJ., join this opinion;

Wiggins, J., files a dissenting opinion in which Cady, C.J., joins;

Appel, J., files a separate dissenting opinion.




        4Other   Iowa Code provisions provide consequences for individuals who have
failed to pay certain costs. See, e.g., Iowa Code ch. 252I (procedure for levying against
accounts for failure to pay child support); ch. 252J (procedure for revoking licenses,
including occupational, professional, business, and driver’s licenses for failing to pay
child support); §§ 261.121–.127 (licensing sanctions for failure to pay student
loans/noncompliance with agreement for payment of obligation); ch. 272D (licensing
sanctions for failure to pay debt to state or local government); § 321.210A (suspension
of driver’s license for failure to pay fine, penalty, surcharge, or court costs).
                                     17

                                                    #18–1366 State v. Doe

WIGGINS, Justice (dissenting).

        I respectfully dissent. I would find that the requirements of Iowa

Code section 901C.2(1)(a)(2) (2018) violate the equal protection clause

under the Iowa Constitution as applied to Doe. Before I discuss why, I

think it is important to discuss the facts of this case. On June 3, 2009,

the State charged Doe with domestic abuse assault with a dangerous

weapon (an aggravated misdemeanor) and assault on a peace officer (a

serious misdemeanor) in a trial information docketed as AG228484. By

a separate docket number, the State also charged Doe with interference

with official acts.    Due to her indigency, the court appointed Doe an

attorney in AGR228484.

        The State and Doe reached an agreement whereby Doe was

required to complete a family violence services class and, upon

successful completion, the State would dismiss the case. Nowhere in the

record is there an agreement that the indigent Doe would pay costs,

including unpaid court-appointed attorney fees. On September 15, the

State filed a notice of intent not to prosecute. The judge signed off on it

the same day. Handwritten in the notice by the county attorney was the

following: “4. Costs to the Δ.” Neither Doe nor her attorney signed off on

the notice or the dismissal order. The dismissal order never indicated

that costs included court-appointed attorney fees. The order never found

that Doe as an indigent defendant had the reasonable ability to pay these

fees. See Iowa Code § 910.2(1) (requiring the court to find a defendant

had a reasonable ability to pay before assessing court-appointed attorney

fees and costs).      A defendant does not have the obligation to ask the

district court to determine she had a present inability to pay the court

debt.    State v. Albright, ___ N.W.2d ___, ___ (Iowa 2019).     Moreover,
                                    18

because the State dismissed the case, the Code does not allow a

defendant to ask the court to determine whether she had a present

inability to pay the court debt.   See Iowa Code § 910.7 (allowing an

offender to petition the court regarding restitution only “during the

period of probation, parole, or incarceration”). As the majority notes, the

imposition of restitution for court-appointed attorney fees can avoid

constitutional infirmity only by a court finding that the offender has the

reasonable ability to pay the restitution ordered. State v. Dudley, 766

N.W.2d 606, 615 (Iowa 2009).

       Thus, I would find the relevant groups to compare are all offenders

and indigent offenders who lack the reasonable ability to pay restitution.

Applying the rational basis analysis under the Iowa Constitution, we

must determine whether the legislature had a valid reason to treat all

offenders the same without differentiating indigent offenders who lack

the reasonable ability to pay in its expungement statute. Racing Ass’n of

Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 7 (Iowa 2004). Second, we must

decide whether the legislature’s claimed reason has a basis in fact. Id. at

7–8.   Lastly, “we must consider whether the relationship between the

classification”—i.e., the differences between all offenders and indigent

offenders who lack the reasonable ability to pay—“and the purpose of the

classification is so weak that the classification must be viewed as

arbitrary.” Id. at 8.

       I can find no valid reason to treat all offenders the same without

differentiating indigent offenders who lack the reasonable ability to pay

in the expungement statute. Offenders can be required to pay restitution

only after a finding of reasonable ability to pay. Iowa Code § 910.2(1). If

an offender who has a reasonable ability to pay decides not to pay these

costs, the legislature can deny expungement because these offenders
                                     19

consciously chose not to pay restitution.      However, indigent offenders

who lack the reasonable ability to pay do not have the ability to pay and,

thus, will never be eligible for expungement. Therefore, I would find the

classification is so weak that it is arbitrary and violates equal protection.

      To solve this problem, I would remand the case back to the district

court to determine if Doe has the reasonable ability to pay these costs. If

not, I would remove them from the docket. If she does, I would agree

with the majority that the statute does not violate equal protection under

the Iowa Constitution.

      Cady, C.J., joins this dissent.
                                          20

                                                            #18–1366, State v. Doe

APPEL, Justice (dissenting).

       I. Introduction.

       In 2009, Jane Doe was indigent. The state charged her with two

crimes. The district court appointed counsel because her income was “at

or below 125% of guidelines” and she was “unable to pay an attorney.”

The charges were then dismissed. All that remains of the episode are a

record of the dismissed charges, the burden on Doe’s life created by that

record, and attorney fees she owes to the state.

       In the proceedings below, Doe moved to expunge the record of

dismissed charges pursuant to Iowa Code section 901C.2 (2017).

Recognizing that section 901C.2(1)(a)(2) prohibits expungement unless

all court costs and fees are paid, she asserted that the prohibition is

unconstitutional under the due process and equal protection provisions

of the Federal and Iowa Constitutions.             The district court denied the

motion.

       On appeal, she abandons the due process argument and presents

a narrow constitutional question under the federal and state equal

protection provisions. Can the legislature, in providing for expungement

of criminal records, discriminate between (1) persons who owe money to

privately-retained counsel and (2) persons who owe money to court-

appointed counsel incurred because they were indigent? 5



       5Doe’s  briefing does not challenge Iowa Code section 901C.2(1)(a)(2) based on
discrimination between those who are reasonably able to pay court debts, including
attorney fees, and those who are not reasonably able to pay such debts or fees. When
pressed on this point at oral argument, counsel for Doe confirmed that the distinction
drawn by Doe is between people who owe fees to privately retained attorneys and those
who owe fees to court-appointed attorneys. Like the majority, I do not resolve the issue
unchallenged by Doe.
                                            21

       II. Rational Basis Review.

       The parties agree we should evaluate the challenge under rational

basis review. 6     Our approach to rational basis review under the Iowa

Constitution involves three steps: (1) identify the classes of similarly

situated persons treated differently; (2) examine the legitimacy of the end

to be achieved; and (3) consider the rationality of the means chosen by

the legislature to achieve its desired end. See LCSP, LLLP v. Kay-Decker,

861 N.W.2d 846, 859–60 (Iowa 2015); Racing Ass’n of Cent. Iowa v.

Fitzgerald, 675 N.W.2d 1, 7–8 (Iowa 2004). Under federal law, we ask

whether the classification drawn by the statute is rationally related to a

legitimate state interest.       City of Cleburne v. Cleburne Living Ctr., 473

U.S. 432, 440, 105 S. Ct. 3249, 3254 (1985).

       III. Discussion.

       A. Similarly Situated Groups. The two groups identified by Doe

are similarly situated. In this respect, I agree with the majority. I also

agree that the similarly situated groups are treated differently. Although

both groups owe attorney fees, the debts only prevent the latter group

from expungement.

       B. Legitimate End. Is there a legitimate end for the requirement

to pay court costs and fees before gaining entitlement to expungement?

The majority suggests the legitimate purpose is to encourage payment of

         6Doe does not argue that Iowa Code section 901C.2 should be evaluated under a

level of scrutiny higher than rational basis on the grounds that it, for example, classifies
based on poverty or socioeconomic class, see, e.g., Danieli Evans Peterman,
Socioeconomic Status Discrimination, 104 Va. L. Rev. 1283, 1287 n.10 (2018) (collecting
authorities advocating for higher level of scrutiny to legislation burdening the poor), or
burdens a fundamental right to counsel, see, e.g., Johnston v. Veterans’ Plaza Auth.,
535 N.W.2d 131, 132 (Iowa 1995) (explaining that the court reviews challenged statutes
burdening a fundamental right under a higher level of scrutiny but that failure to raise
argument on level of scrutiny in initial brief waives the argument). Consequently, like
the majority, I evaluate her challenge under rational basis review.
                                       22

court debt.      I agree that encouraging payment of court debt is a

legitimate goal. However, as explained below, I am not convinced that

withholding expungement is a rational way to achieve that goal. Further,

I do not think the classification drawn between similarly situated persons

rationally serves that goal.

      C. Rationality of Means Chosen to Achieve Desired End. The

legislature has not chosen a rational means to achieve its desired end.

The problem is twofold.

      1. General irrationality of withholding expungement to encourage

repayment of court debt. It seems obvious that withholding expungement

until court debt is repaid is irrational and counterproductive where a

person lacks a reasonable ability to pay the court debt.             See, e.g.,

Thomas v. Haslam, 329 F. Supp. 3d 475, 491 (M.D. Tenn. 2018), appeal

docketed, No. 18–5766 (6th Cir. July 27, 2018) see also State v. Collins,

No. 43168, 1981 WL 4990, at *2 (Ohio Ct. App. May 28, 1981)

(explaining that it would be an equal protection violation to deny

expungement, on the basis of outstanding court debt, to a person

adjudged indigent at the time of the ruling on expungement).             But it

seems to me that Doe has not challenged section 901C.2(1)(a)(2) on the

grounds   that    it   discriminates   against   those   currently   lacking   a

reasonable ability to pay outstanding court debts, so I join the majority

in reserving judgment on this question.

      2. Irrationality of classifying among those owing debts to private

and court-appointed attorneys.         I now come to the heart of Doe’s

challenge. At the outset, the majority wrongly seems to believe the fact

that there is no constitutional right to expungement is significant. The

lack of a constitutional right might have a bearing on determining the

level of scrutiny. But level of scrutiny is not an issue in this case. All
                                    23

parties agree that we should apply a rational basis test.     For rational

basis review, it does not matter at all whether the interest involved is of

constitutional dimension. We must decide if, in granting the statutory

right, the legislature has drawn an unconstitutional line.

      Many state and federal decisions establish that the legislature

cannot grant statutory rights that irrationally discriminate against

similarly situated persons.   The right to appeal a criminal conviction

provides a good example. “It is true that the right of appeal is purely

statutory, not constitutional, and may be granted or denied by the

legislature as it determines.” Shortridge v. State, 478 N.W.2d 613, 615

(Iowa 1991) superseded by statute on other grounds, 1992 Iowa Acts ch.

1212, § 38 (codified at Iowa Code § 822.9 (1993)). But “once a right of

appeal is provided ‘[i]t may not be extended to some and denied to

others.’ ” Id. (alteration in original) (quoting In re Chambers, 152 N.W.2d

818, 820 (Iowa 1967)); see also State v. Hinners, 471 N.W.2d 841, 843

(Iowa 1991) (“[O]nce the right of appeal has been established, ‘these

avenues must be kept free of unreasoned distinctions that can only

impede open and equal access to the courts.’ ” (alteration in original)

(quoting Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S. Ct. 1497, 1500

(1966))).   “When procedures enacted by the State serve to deny one

person the right of appeal granted to another, equal protection of the law

is denied.” Shortridge, 478 N.W.2d at 615.

      The same reasoning is found in federal decisions.       The Federal

Constitution, it is usually asserted, does not require states to provide

appellate courts or a right to appellate review. McKane v. Durston, 153

U.S. 684, 687, 14 S. Ct. 913, 915 (1894). Cf. Jones v. Barnes, 463 U.S.

745, 756 n.1, 103 S. Ct. 3308, 3315 n.1 (1983) (Brennan, J., dissenting)

(arguing that, were the question to squarely come before it, the Court
                                     24

would reassess its prior decisions and decide that some form of review of

criminal convictions is required).   But if a state establishes a right of

appeal, it cannot administer its appellate process in a discriminatory

manner and still be consistent with the Due Process and Equal

Protection Clauses of the Fourteenth Amendment. Griffin v. Illinois, 351

U.S. 12, 18, 76 S. Ct. 585, 590 (1956) (plurality opinion).

      Here, the legislature has drawn a line between similarly situated

groups that only fences out people whose indigence required court-

appointed counsel. While anyone may owe attorney fees, it is only those

whose poverty led to court-appointed counsel that can be denied

expungement on the basis of the outstanding fees.

      The key United States Supreme Court case on the issue before us

is James v. Strange, 407 U.S. 128, 130, 92 S. Ct. 2027, 2029 (1972). In

this case, the United States Supreme Court faced a statute that provided

extra means to collect debt arising from appointment of counsel at state

expense. Id. at 131, 92 S. Ct. at 2029–30. In the underlying criminal

proceeding, the Kansas court appointed counsel to an indigent defendant

pursuant to state law. Id. at 130, 92 S. Ct. at 2029. The defendant was

obligated to repay to the state the amount expended.          Id.   If the debt

went unpaid, a Kansas statute provided for a judgment to be docketed

and for garnishment of wages or other methods of execution authorized

by state civil procedure. Id. at 131, 92 S. Ct. at 2029–30. But unlike

other judgment debtors, the person owing debt as a result of

expenditures by court-appointed counsel was not allowed exemptions

provided by the state civil procedure. Id. Thus, as the court explained,

            The indigent’s predicament under this statute comes
      into sharper focus when compared with that of one who has
      hired counsel in his defense. Should the latter prove unable
      to pay and a judgment be obtained against him, his
                                    25
        obligation would become enforceable under the relevant
        provisions of the Kansas Code of Civil Procedure. But,
        unlike the indigent under the recoupment statute, the code’s
        exemptions would protect this judgment debtor.

Id. at 136–37, 92 S. Ct. at 2032.

        A unanimous Court struck down the Kansas statute as a violation

of equal protection. Id. at 141–42, 92 S. Ct. at 2035. The elements of

punitiveness and discrimination in the Kansas statute, the Court

explained, violated the rights of citizens to equal treatment under the

law. Id. In its decision, the James Court likened the case to Rinaldi, 384

U.S. at 308–09, 86 S. Ct. at 1499–1500. James, 407 U.S. at 140–41, 92

S. Ct. at 2034–35. In Rinaldi, a New Jersey statute required only indigent

defendants sentenced to confinement in state institutions to reimburse

the State for the costs of a transcript on appeal. 384 U.S. at 308, 86

S. Ct. at 1499.    The Rinaldi Court held, “To fasten a financial burden

only upon those unsuccessful appellants who are confined in state

institutions . . . is to make an invidious discrimination.” Id. at 309, 86

S. Ct. at 1500. Similarly, the James Court explained, “[T]o impose these

harsh conditions on a class of debtors who were provided counsel as

required by the Constitution is to practice . . . a discrimination which the

Equal Protection Clause proscribes.” 407 U.S. at 140–41, 92 S. Ct. at

2034.

        To be sure, the James Court recognized the state’s interest in

recouping expenses but dismissed it as a rational reason for the

discrimination.    Kansas had advanced the same argument presented

here by the majority: “The challenged statute is rationally related to the

end of attempting to raise money to help defray the costs of providing

appointed counsel.” Brief of Appellant at 18, James v. Strange, 407 U.S.

128, 92 S. Ct 2027 (1972) (No. 71-11), 1972 WL 135745, at *18. While
                                      26

“recogniz[ing] that state recoupment statutes may betoken legitimate

state interests,” the James Court explained that “these interests are not

thwarted by requiring more even treatment of indigent criminal

defendants with other classes of debtors.” 407 U.S. at 141, 92 S. Ct. at

2035.        Further,   the   Court   said,   “[s]tate   recoupment   laws,

notwithstanding the state interests they may serve, need not blight in

such discriminatory fashion the hopes of indigents for self-sufficiency

and self-respect.” Id. at 141–42, 92 S. Ct. at 2035. In addition, although

the James Court acknowledged that a state’s claim to reimbursement

may take precedence over private debts in some circumstances, “[t]his

does not mean . . . that a State may 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.

        Other courts have reached similar results. For instance, in State v.

Williams, 343 So. 2d 35, 37–38 (Fla. 1977), the court examined a

statutory provision that provided for a perpetual lien on debts incurred

as a result of court-appointed counsel. Debtors with other types of debts

were afforded the benefit of a limitations period. Id. This was an equal

protection violation, the court said, because “similarly situated persons,

i.e., debtors, are not treated in a similar fashion since only the judgment

debtors [with court-appointed attorney fee debts] are to be perpetually

liable for the debts incurred under this statute.” Id. at 38.

        In State v. Huth, 334 N.W.2d 485, 489–90 (S.D. 1983), the court

considered a portion of a criminal judgment and sentence revoking

probation should the defendant discharge through bankruptcy an

obligation to pay indigent counsel fees and costs of prosecution.

Bankruptcy, of course, is a benefit that a state may, but need not, offer.

See United States v. Kras, 409 U.S. 434, 446, 93 S. Ct. 631, 638 (1973)
                                          27

(“There is no constitutional right to obtain a discharge of one’s debts in

bankruptcy.”).     Yet the Huth court found an equal protection violation

because “the portion of the judgment and sentence exposing appellant to

revocation if he voluntarily discharges any legal obligation in bankruptcy

unconstitutionally deprives appellant of rights and remedies afforded to

other individuals.” 334 N.W.2d at 490.

       Iowa Code section 901C.2(1)(a)(2) fails scrutiny under the Equal

Protection Clause of the Fourteenth Amendment under James, 407 U.S.

at 141–42, 92 S. Ct. at 2035. And the reasoning in James, along with

that in Williams, 343 So. 2d at 38 and Huth, 334 N.W.2d at 489–90, is

persuasive in finding a violation of article I, section 6 of the Iowa

Constitution.     As in all three cases, the statutes involved discriminate

between debts owed because of court-appointed counsel and debts owed

to private counsel. The discrimination is harsh:

       [A] member of the general public—such as an employer
       doing an informal background check—could access our
       computerized docket and potentially draw inappropriate
       inferences from the mere presence of a criminal file relating
       to an individual, even though the criminal charges were
       dismissed or the individual was acquitted.

State v. Doe, 903 N.W.2d 347, 354 (Iowa 2017).

       I would simply follow what I see are the dictates of James.

Because       section   901C.2(1)(a)(2)     irrationally    discriminates      among

similarly situated debtors, I would find it invalid as applied to the

situation presented by Doe. 7

       7The  majority says Doe is bringing a facial challenge. I disagree. “A facial
challenge is one in which no application of the statute could be constitutional under
any set of facts.” Honomichl v. Valley View Swine, LLC, 914 N.W.2d 223, 231 (Iowa
2018). But see Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U.S. 1174, 1175,
116 S. Ct. 1582, 1583 (1996) (mem.) (Stevens, J.) (explaining that the “no set of
circumstances” test is inconsistent with the standard for deciding facial challenges and
with a wide array of legal principles). Doe takes issue with section 901C.2(1)(a)(2)
                                         28

       III. Conclusion.

       I would reverse the district court judgment.               And because all

parties agree that Doe meets the requirements for expungement except

the unconstitutional provision in Iowa Code section 901C.2(1)(a)(2), I

would remand with instructions to grant her motion for expungement.




________________________
insofar as it imposes a barrier to expungement for indigents who owe fees to court-
appointed counsel but not for those who owe fees to private counsel. She does not
allege that the provision is unconstitutional under all its applications. In fact, Doe
distinguishes among the “court costs, fees, and other financial obligations” implicated
by section 901C.2(1)(a)(2). For instance, she states, “Unlike court-appointed attorney
fees, victim restitution can be owed by both indigent defendants and defendants able to
retain counsel, and therefore does not raise the same equal protection implications.”
