              IN THE SUPREME COURT OF IOWA
                             No. 16–1006

                          Filed June 22, 2018


MORGAN HONOMICHL, ROBIN HONOMICHL, TIMOTHY HONOMICHL,
DEB CHANCE, KARA CHANCE, KAREN JO FRESCOLN, MIKE
MERRILL, and Q.H.,

      Appellee,

vs.

VALLEY VIEW SWINE, LLC and JBS LIVE PORK, LLC,

      Appellants.



      Appeal from the Iowa District Court for Wapello County, Annette J.

Scieszinski, Judge.



      Defendants appeal the district court ruling on various motions,

including their motion for summary judgment, which denied their

statutory immunity defense under Iowa Code section 657.11(2) based on

a finding by the district court that the statute was unconstitutional as

applied. REVERSED AND REMANDED.



      William H. Roemerman and Gerald T. Sullivan of Elderkin & Pirnie,

PLC, Cedar Rapids, for appellant Valley View Swine, LLC.



      Jacob D. Bylund, Scott L. Halbur, Shannon L. Sole, and Ryan P.

Howell of Faegre Baker Daniels LLP, Des Moines, for appellant, JBS Live

Port, LLC.
                                   2

      Jennifer H. De Kock, Steven P. Wandro, and Kara M. Simons of

Wandro & Associates, P.C., Des Moines, and David E. Sykes, Fairfield, for

appellees.



      Thomas W. Lipps of Peterson & Lipps, Algona, and David J. Stein Jr.

(until withdrawal) of Stein Law Office, Milford, for amicus curiae Iowa

Association for Justice.



      Eldon L. McAfee and Julia L. Vyskocil of Brick Gentry, P.C.,

West Des Moines, for amici curiae Iowa Pork Producers Association and

Iowa Farm Bureau Federation.
                                        3

ZAGER, Justice.

      The plaintiffs are the owners and/or residents of real estate located

near the confined animal feeding operations (CAFOs) owned and operated

by the defendants.         The plaintiffs have brought suit against the

defendants, claiming the defendants are negligent in their operation of the

CAFOs. The plaintiffs also contend the CAFOs constitute a nuisance that

entitles the plaintiffs to damages for the loss of use and enjoyment of their

property due to the odors, pathogens, and flies that allegedly emanate from

the CAFOs. The defendants filed a motion for summary judgment on the

nuisance claims alleging Iowa Code section 657.11(2) (2016) bars such

claims since the plaintiffs cannot meet the requirements necessary under

the statute to recover the requested special damages against the CAFOs.

Meanwhile, the plaintiffs sought partial summary judgment to strike the

defendants’ statutory immunity defense under section 657.11(2).

      The district court denied the defendants’ motion for summary

judgment and granted the plaintiffs’ motion for partial summary judgment.

In   doing   so,    the   district   court   found   section    657.11(2)   was

unconstitutional as applied to the plaintiffs under article I, section 1 of the

Iowa Constitution because it denies plaintiffs access to a remedy for their

alleged injuries.   The defendants filed an application for interlocutory

appeal and stay, arguing the district court erred in granting plaintiffs’

motion for partial summary judgment by finding that section 657.11(2)

was unconstitutional as applied to the plaintiffs.             We granted the

application for interlocutory appeal and stay and retained the appeal.

      We now reverse the district court ruling granting the plaintiffs’

motion for partial summary judgment.           Specifically, the district court

found that section 657.11(2), as applied to the plaintiffs in this case,

violated article I, section 1. However, the district court did so without
                                      4

making specific findings of fact relative to any plaintiff. Without this fact-

based analysis, we are unable to resolve this issue on this record. We

therefore reverse and remand the case to the district court for further

proceedings consistent with this opinion.

       I. Background Facts and Proceedings.

       This case centers around two CAFOs located in Wapello County,

Iowa, which are known as Valley View Site 1 (Site 1) and Valley View Site

2 (Site 2). Defendant Valley View Swine, LLC, is a limited liability company

organized under the laws of the State of Iowa that has three members:

Nicholas Adam, Shawn Adam, and Jeffrey Adam. In 2013, Valley View

Swine entered into discussions with defendant JBS Live Pork, LLC, (JBS)—

then operating as Cargill Pork—to establish CAFOs at Site 1 and Site 2.

JBS is authorized to contract with Iowa swine producers for the care and

feeding of JBS-owned swine pursuant to a consent decree filed on January

19, 2006,    between the State of Iowa and Cargill Pork, LLC, which

transferred its ownership to the company that now goes by JBS Live Pork,

LLC.

       In April 2013, the Iowa Department of Natural Resources (DNR)

issued Valley View Swine construction permits to implement CAFOs on

Site 1 and Site 2 in accordance with Iowa DNR rules and regulations.

These rules and regulations required Valley View Swine to meet certain

conditions and requirements both during and following construction.

Some of these conditions and requirements included implementing an

approved    manure    management      plan   and   following   proper   waste

management procedures to protect soil and waterways. Construction on

these sites was also required to comply with all local, state, and federal

requirements applicable to CAFOs. These requirements included the need

to maintain the minimum separation distances between the CAFOs and
                                     5

“residence[s] not owned by the owner of the confinement feeding operation”

or a commercial enterprise, bona fide religious institution, or an

educational institution” under Iowa Code section 459.202.        Iowa Code

§ 459.202.

      Valley View Swine complied with the applicable setback distances in

constructing the CAFOs.      At the time of construction in 2013, the

necessary setback distance between the CAFOs and the residences at

issue was .36 miles or 1875 feet. Id. § 459.202(b) (2013). The closest

plaintiffs to Site 1, the Honomichls, live .67 miles from Site 1.       The

Honomichls are also the closest plaintiffs living near Site 2, residing .72

miles from Site 2. The Chances live .70 miles from Site 1 and 2.0 miles

from Site 2. Karen Jo Frescoln lives in Libertyville, Iowa, nearly ten miles

from the closest CAFO at issue. However, she is a party to this suit since

she owns property on which her daughter resides that is .96 miles from

Site 1 and 2.35 miles from Site 2.

      On August 1, 2013, near the completion of the construction, Valley

View Swine and JBS entered into hog-feeding agreements for Valley View

Swine to raise and care for JBS-owned hogs at Site 1 and Site 2. JBS

agreed to pay Valley View Swine $3.3334 for each of the 9920 pig spaces

on the combined Site 1 and Site 2. This provides Valley View Swine with

annual payments exceeding $396,000.         Pursuant to the agreements,

Valley View Swine is required to “comply with all local, state, and federal

laws, regulations, permits, and orders” pertaining to the agreements.

Moreover, Valley View Swine must uphold the JBS Swine Welfare Policy

and allow JBS to conduct periodic audits. This includes abiding by the

JBS Wean-to-Finish Manual detailing the necessary procedures Valley

View Swine must follow for biosecurity, preplacement, pig care and
                                     6

management, feed and water management, health, barn environment,

safety, waste management, and maintenance of the CAFOs.

      To fulfill these agreements, Valley View Swine contracts with a third-

party barn manager, Brandon Warren, who works as an independent

contractor to manage the operation of the CAFOs. Since Valley View Swine

commenced operation of the CAFOs, the Iowa DNR has not found Valley

View Swine to be in violation of any statute or regulation governing its

operations. The JBS periodic audits have likewise not found Valley View

Swine in violation of any applicable statutes or regulations.

      In the same month that the defendants entered into their hog

feeding agreements, the Iowa DNR authorized the use of Site 1 and Site 2

to serve as CAFOs, finding they were both constructed in accordance with

the Iowa DNR requirements. Site 1 began operation that month, and Site

2 followed suit in September. In November, seventy individuals, including

the current plaintiffs, filed a lawsuit against Valley View Swine, the Adams,

Cargill Pork (now JBS), Tri-L Farms, Inc., Larry Hickenbottom, Josh

Hickenbottom, and Richard Warren. The petition alleged negligence and

temporary nuisance based on the odors, pathogens, and flies they alleged

stem from the CAFOs, as well as defendants’ alleged failure to use prudent

management practices to reduce these odors, pathogens, and flies.

However, the plaintiffs failed to fulfill the mediation requirement

established in Iowa Code section 657.10 before they filed their petition,

and the district court dismissed the case on January 2, 2014.

      On April 2, sixty-nine plaintiffs, including the current plaintiffs,

refiled the suit making the same claims against the same defendants. In

September, the district court severed the case into three divisions—

classified as Divisions A, B, and C—based upon the various plaintiffs’

allegations against the different defendant groups. From those sixty-nine
                                      7

plaintiffs, Deb Chance, Jason Chance, Kara Chance, Karen Jo Frescoln,

Robin Honomichl, Timothy Honomichl, Morgan Honomichl, Q.H., C.H.,

and Mike Merrill were among those placed in Division A, which is the only

division at issue in this case. Division A plaintiffs brought their claims

against Valley View Swine, the Adams, and Cargill Pork (JBS). The district

court joined all of the divisions for discovery purposes.

      On September 30, Division A plaintiffs filed an amended petition and

jury demand on behalf of all original sixty-nine plaintiffs claiming

temporary nuisance, permanent nuisance, and negligence against Division

A defendants due to the odors, pathogens, and flies that allegedly emanate

from the CAFOs.      The Division A defendants filed an answer, which

invoked section 657.11(2) as an affirmative defense, alleging the plaintiffs

could not meet the requirements under the statute to recover their

requested damages.       In October, the district court implemented a

bellwether procedure, allowing the plaintiffs and defendants to each select

two plaintiff households in order for separate bellwether trials to occur in

the different divisions. The bellwether plaintiffs include the plaintiffs in

this case, as well as C.H. and Mike Merrill.

      Since 2013, plaintiffs’ counsel have filed numerous nuisance suits

against JBS involving large groups of plaintiffs. Plaintiffs’ counsel have

litigated these suits until shortly before trial, at which time the plaintiffs

dismissed them. For example, Division A plaintiffs have filed four versions

of their petition, eliminating plaintiffs along the way. C.H. was dismissed

without prejudice in August 2015, and Mike Merrill dismissed his claims

against the defendants in June 2016.

      Similarly, Division C plaintiffs eliminated twenty-six plaintiffs

during the course of litigation, which included filing six petitions against

Division C defendants prior to trial. Division B plaintiffs dismissed their
                                      8

suit in its entirety in November 2014. Following the dismissal of Division

B, the district court consolidated Divisions A and C for discovery and

deadline purposes with another group of fifteen plaintiffs suing JBS,

among others, for negligence and nuisance in Poweshiek County. The

district court ordered the Division C case to be tried first, followed by the

Poweshiek County case and the Division A case.

      The defendants in all of the divisions filed a motion for summary

judgment in their respective cases on October 6, 2015, maintaining section

657.11(2) provided them with statutory immunity against the plaintiffs’

claims. On the same day, the plaintiffs in all of the divisions filed a motion

for partial summary judgment in their respective cases, asking the court

to strike the defendants’ statutory immunity defense under section

657.11(2)   by   requesting   the   district   court   declare   the   statute

unconstitutional as applied to them.       The district court subsequently

denied Division C defendants’ summary dismissal of the temporary

nuisance claims and granted Division C plaintiffs’ motion for partial

summary judgment on the statutory immunity defense, finding section

657.11(2) was unconstitutional as applied under the inalienable rights

clause of article I, section 1 of the Iowa Constitution. The district court

granted Division C defendants summary dismissal of all permanent

nuisance claims.

      The Division C trial took place in February 2016, and the jury

returned defense verdicts that found no nuisance on the properties of any

of the plaintiffs. JBS subsequently filed a motion for costs and expenses,

alleging three of the Division C plaintiffs filed frivolous claims under

section 657.11(5). The district court held JBS raised a valid defense under

section 657.11 that rendered the three plaintiffs’ claims frivolous within

the meaning of the statute. Therefore, the district court found each of the
                                     9

three plaintiffs was liable for his or her portion of the costs that JBS

incurred while defending against the frivolous claims.

      In June 2016, the district court ruled on the summary judgment

motions at issue in this case surrounding Division A. The district court

denied Division A defendants’ summary dismissal of the claims and

granted Division A plaintiffs’ motion for partial summary judgment,

declaring section 657.11(2) is unconstitutional as applied to Division A

plaintiffs under the inalienable rights clause of the Iowa Constitution. The

district court granted summary dismissal of all permanent nuisance

claims.

      In its ruling, the district court noted the statutory immunity

established in section 657.11 “unduly burdens the plaintiffs by denying

them access to a lawful remedy for their alleged injuries to the person

and/or to property occasioned in [the] use of their real-estate interests.”

Consequently, the district court denied defendants “summary dismissal of

the plaintiffs’ claims on the basis of the immunity in the first sentence of

section 657.11(2).” Further, the ruling stated,

      There are no material facts in good-faith dispute that
      demonstrate that the plaintiffs suffer a disqualification from
      remedy under a premise that they, as individuals, benefit from
      the immunity statute greater than those in the general public
      who benefit from the immunity protection of Iowa Code
      section 657.11(2). JBS’s Motion seeking summary dismissal
      of all claims for a disqualification from remedy, drawn from
      analysis of the economic impact of the Iowa pork industry, is
      denied.

      On June 13, the defendants applied for interlocutory appeal and

stay, which we granted and retained. On appeal, the defendants argue the

district court erred in granting plaintiffs’ motion for partial summary

judgment by finding Iowa Code section 657.11(2) (2016) unconstitutional

under the inalienable rights clause of article I, section 1 of the Iowa
                                    10

Constitution as applied to the facts of this case. In support of this claim,

the defendants allege the district court improperly applied our previous

holding in Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168 (Iowa 2004), to this

case without making specific factual findings.      Thus, the defendants

reason, the district court ruling amounts to a finding that the statutory

immunity provided in section 657.11(2) is facially unconstitutional.

      II. Standard of Review.

      “We review a district court ruling granting a motion for summary

judgment for correction of errors at law.” Estate of Gray ex rel. Gray v.

Baldi, 880 N.W.2d 451, 455 (Iowa 2016) (quoting Rathje v. Mercy Hosp.,

745 N.W.2d 443, 447 (Iowa 2008)). “Summary judgment is appropriate

when there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law.” Plowman v. Fort Madison Cmty.

Hosp., 896 N.W.2d 393, 398 (Iowa 2017) (quoting Barker v. Capotosto, 875

N.W.2d 157, 161 (Iowa 2016)). “An issue is ‘genuine’ if the evidence in the

record ‘is such that a reasonable jury could return a verdict for the non-

moving party.’ ” Nelson v. Lindaman, 867 N.W.2d 1, 6 (Iowa 2015) (quoting

Wallace v. Des Moines Indep. Cmty. Sch. Dist. Bd. of Dirs., 754 N.W.2d 854,

857 (Iowa 2008)). “We . . . view the record in the light most favorable to

the nonmoving party and will grant that party all reasonable inferences

that can be drawn from the record.”        Plowman, 896 N.W.2d at 398

(alteration in original) (quoting Estate of Gray, 880 N.W.2d at 455).

“Summary judgment is appropriate if the only conflict concerns the legal

consequences of undisputed facts.” Id. (quoting Peppmeier v. Murphy, 708

N.W.2d 57, 58 (Iowa 2005)).

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

City of Davenport, 790 N.W.2d 569, 578 (Iowa 2010). We presume statutes

are constitutional, and the party challenging the statute “must prove the
                                     11

unconstitutionality beyond a reasonable doubt.”       State v. Seering, 701

N.W.2d 655, 661 (Iowa 2005) (quoting State v. Hernandez-Lopez, 639

N.W.2d 226, 233 (Iowa 2002)). This requires the challenger to “refute every

reasonable basis upon which the statute could be found to be

constitutional.” Id. (quoting Hernandez-Lopez, 639 N.W.2d at 233). If the

statute is susceptible to multiple constructions, only one of which is

constitutional, we are obliged to adopt the constitutional construction of

the statute. Id. Finally, we will only decide a facial challenge to a statute

if we hold that the challenged statute is unconstitutional under the set of

facts before us. See War Eagle Vill. Apartments v. Plummer, 775 N.W.2d

714, 722 (Iowa 2009).

      III. Analysis.

      A. Preliminary Concepts: Facial Challenge Versus As-Applied

Challenge. A facial challenge is different from an as-applied challenge.

See Alex Kreit, Making Sense of Facial and As-Applied Challenges, 18 Wm.

& Mary Bill Rts. J. 657, 657 (2010). The distinction between the two types

of challenges appears simple enough, yet it is unclear and “more illusory

than the ready familiarity of the terms suggests.” Gillian E. Metzger, Facial

Challenges and Federalism, 105 Colum. L. Rev. 873, 880 (2005).

      A facial challenge is one in which no application of the statute could

be constitutional under any set of facts. See Wash. State Grange v. Wash.

State Republican Party, 552 U.S. 442, 449, 128 S. Ct. 1184, 1190 (2008);

Sabri v. United States, 541 U.S. 600, 609, 124 S. Ct. 1941, 1948 (2004);

Calzone v. Hawley, 866 F.3d 866, 870 (8th Cir. 2017); Spiker v. Spiker,

708 N.W.2d 347, 360 (Iowa 2006); F.K. v. Iowa Dist. Ct., 630 N.W.2d 801,

805 (Iowa 2001); State v. Duncan, 414 N.W.2d 91, 96 (Iowa 1987); State v.

Legg, 785 S.E.2d 369, 371 (S.C. 2016). Such a challenge is “the most

difficult . . . to mount successfully” because it requires the challenger to
                                    12

show the statute under scrutiny is unconstitutional in all its applications.

United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987).

In contrast, an as-applied challenge alleges the statute is unconstitutional

as applied to a particular set of facts. People v. Thompson, 43 N.E.3d 984,

991 (Ill. 2015); Walker v. Johnson County, 209 N.W.2d 137, 140 (Iowa

1973); see State v. Bruegger, 773 N.W.2d 862, 884 (Iowa 2009); State v.

Pocian, 814 N.W.2d 894, 897–98 (Wis. Ct. App. 2012).

       We examine two cases to illustrate the difference between facial and

as-applied challenges.    In Gravert v. Nebergall, the landowners alleged

Iowa’s partition fence statute violated the inalienable rights clause of

article I, section 1 of the Iowa Constitution. 539 N.W.2d 184, 185–86 (Iowa

1995). We first observed whether the statute was constitutional on its

face. Id. at 186–87. In answering in the affirmative, we reasoned “[t]he

primary purpose of [the statute] has been to prevent livestock from

running at large and causing damage on another person’s land.” Id. at

187.   Because the statute “serve[d] the broader purpose of mediating

boundary, fence, and trespass disputes by requiring adjoining landowners

to share the cost of a partition fence,” we held the landowners did not have

a valid facial challenge. Id.

       We then observed whether the statute was constitutional as applied

to the landowners. Id. at 187–88. First, we stated the statute served the

public purpose even assuming nearby livestock owners received the

primary benefits under the statute. Id. at 188. Second, we stated “[a] law

does not become unconstitutional because it works a hardship” or because

the law requires substantial expenditures for compliance. Id. Moreover,

the landowners benefited from the partition fence because it protected

their crops from the adjoining landowners’ horses.        Id.   In sum, in

concluding that the means were reasonably necessary to accomplish the
                                       13

stated purpose, we held the landowners failed to show the statute was

unduly oppressive as applied to them. Id.

      In City of Sioux City v. Jacobsma, a vehicle owner alleged the city’s

automated traffic enforcement (ATE) ordinance violated article I, section 1.

862 N.W.2d 335, 338 (Iowa 2015). Specifically, the owner contended the

ordinance illegally created a presumption that he was driving at the time

of the speeding infraction unless he rebutted the presumption with a

stolen vehicle report.   Id. at 340.   The owner stipulated he owned the

vehicle. Id. at 346. The owner also stipulated the vehicle was speeding at

the time of the infraction but did not present evidence that someone else

was driving the vehicle during the relevant period. Id.

      We first stated the ordinance to control speeding on state highways

implicated a public interest. Id. at 352. We then stated the ordinance was

not arbitrary or unreasonable. Id. at 353. To resolve the issue of whether

the ordinance violated the inalienable rights clause of the Iowa

Constitution, we applied the rational-basis test for due process claims

under federal caselaw. Id. We reasoned, “The overwhelming majority of

cases considering due process challenges to such a framework in civil ATE

ordinances have concluded they are not so arbitrary or irrational to offend

due process.” Id. In our earlier examination of the owner’s due process

claim, we had reasoned, “[I]t is quite rational to [infer] that a registered

owner who offers no evidence that he was not driving the vehicle at the

time of the infraction was, in fact, the operator.” Id. at 347. In dictum, we

stated that even if we were to use a more rigorous rational-basis test, the

ordinance would nevertheless pass constitutional muster. Id.

      We declined to consider a facial challenge to the ATE ordinance. Id.

at 346. When “a statute is constitutional as applied to a defendant, the

defendant cannot make a facial challenge unless a recognized exception to
                                          14

the standing requirement applies.” Id. (quoting State v. Robinson, 618

N.W.2d 306, 311 n.1 (Iowa 2000)). Because the owner did not claim such

an exception, we did not entertain the merits of a facial challenge. See id.

       We now turn to the relevant statutory provisions relating to right-to-

farm laws generally, and the proper analysis to apply to our law that is at

issue here.

       B. Right-to-Farm Laws in the United States. All fifty states have

right-to-farm laws that provide farmers with various forms of statutory

immunity from nuisance claims similar to section 657.11(2). Forty-four of

these state statutes have not faced constitutional challenges. 1 Six states

       1See  Ala. Code § 6-5-127 (Westlaw through Act 2018-579); Alaska Stat. Ann.
§ 09.45.235 (West, Westlaw through ch. 7 of 2018 2d Reg. Sess.); Ariz. Rev. Stat. Ann.
§ 3-112 (Westlaw through 1st Spec. Sess. of 53rd Leg. (2018)); Ark. Code Ann. § 2-4-107
(West, Westlaw through 2018 Reg. Sess. & 2d Extraordinary Sess.); Cal. Civ. Code
§ 3482.5 (West, Westlaw through ch. 13 of 2018 Reg. Sess.); Colo. Rev. Stat. Ann. § 35-
3.5-102 (West, Westlaw through ch. 256 of 2d Reg. Sess. of 71st Gen. Assemb. (2018));
Conn. Gen. Stat. Ann. § 19a-341 (West, Westlaw through public acts enacted on or before
June 6, 2018); Del. Code Ann. tit. 3, § 1401 (West, Westlaw through 81 Laws 2018); Fla.
Stat. Ann. § 823.14 (West, Westlaw through 2018 2d Reg. Sess.); Ga. Code Ann. § 41-1-
7 (West, Westlaw through 2018 Sess.); Haw. Rev. Stat. Ann. § 165-4 (West, Westlaw
through Act 11 of 2018 Reg. Sess.); Idaho Code Ann. § 22-4503 (West, Westlaw through
2nd Reg. Sess. of 64th Leg.); 740 Ill. Comp. Stat. Ann. 70/3 (West, Westlaw through P.A.
100-585 of 2018 Reg. Sess.); Kan. Stat. Ann. § 2-3201 (West, Westlaw through 2018 Reg.
Sess.); Ky. Rev. Stat. Ann. § 413.072 (West, Westlaw through ch. 74, 96–154, 158–164,
& 170 of 2018 Reg. Sess.); La. Stat. Ann. § 3:3603 (Westlaw through 2018 1st
Extraordinary Sess.); Me. Rev. Stat. Ann. tit. 7, § 153 (Westlaw through ch. 317 of the
2017 2d Reg. Sess.); Md. Code Ann., Cts. & Jud. Proc. § 5-403 (West, Westlaw through
2018 Reg. Sess.); Mass. Gen. Laws Ann. ch. 243, § 3 (West, Westlaw through ch.108 of
2018 2d Annual Sess.); Mich. Comp. Laws Ann. § 286.473 (West, Westlaw through P.A.
2018, No. 183 of 2018 Reg. Sess. of 99th Leg.); Minn. Stat. Ann. § 561.19 (West, Westlaw
through 2018 Reg. Sess.); Miss. Code Ann. § 95-3-29 (West, Westlaw through 2018 Reg.
Sess.); Mont. Code Ann. § 27-30-101 (West, Westlaw through 2017 Sess.); Neb. Rev. Stat.
Ann. § 2-4403 (West, Westlaw through 2d Reg. Sess. of 105th Leg. (2018)); Nev. Rev. Stat.
Ann. § 40.140 (West, Westlaw through 79th Reg. Sess. of Nev. Leg. (2017)); N.H. Rev.
Stat. Ann. § 432:33 (Westlaw through ch. 57 of 2018 Reg. Sess.); N.J. Stat. Ann. § 4:1C-
10 (West, Westlaw through L. 2018, c. 15 & J.R. No.5); N.M. Stat. Ann. § 47-9-3 (West,
Westlaw through 2d Reg. Sess. of 53rd Leg. (2018)); N.C. Gen. Stat. Ann. § 106-701 (West,
Westlaw through 2017 Reg. Sess.); N.D. Cent. Code Ann. § 42-04-02 (West, Westlaw
through 2017 Reg. Sess.); Ohio Rev. Code Ann. § 929.04 (West, Westlaw through File 66
of 132nd Gen. Assemb. (2017-2018)); Okla. Stat. Ann. tit. 50, § 1.1 (West, Westlaw
through 1st Reg. Sess., 1st Extraordinary Sess., & ch. 17 of 2d Extraordinary Sess. of
56th Leg. (2018)); 3 Pa. Stat. and Cons. Stat. Ann. § 954 (West, Westlaw through 2018
                                            15

have faced constitutional challenges to their right-to-farm laws, but Iowa

is the only state to hold that the statutory immunity available under its

right-to-farm law is unconstitutional in any manner. 2

       C. Iowa Code Section 657.11(2) Jurisprudence and the Gacke

Test. Chapter 657.11 strives “to protect and preserve animal agricultural

production operations.” Iowa Code § 657.11(1). To further this intention,

the Iowa legislature enacted section 657.11(2) to shield lawfully operating

CAFOs “from the costs of defending nuisance suits, which negatively

impact upon Iowa’s competitive economic position and discourage persons

from entering into animal agricultural production.”                     Id. § 657.11(1).

Section 657.11(2) provides,

            2. An animal feeding operation, as defined in section
       459.102, shall not be found to be a public or private nuisance

Reg. Sess. Act 16); 2 R.I. Gen. Laws Ann. § 2-23-5 (West, Westlaw through ch. 28 of Jan.
2018 Sess.); S.C. Code Ann. § 46-45-70 (Westlaw through 2018 Act No. 177); S.D.
Codified Laws § 21-10-25.1 (Westlaw through 2018 Reg. Sess.); Tenn. Code Ann. § 43-
26-103 (West, Westlaw through 2018 2d Reg. Sess. of 110th Gen. Assemb.); Utah Code
Ann. § 78B-6-1104 (West, Westlaw through 2018 Gen. Sess.); Vt. Stat. Ann. tit. 12,
§ 5753 (West, Westlaw through 2017–18 Sess. of Gen. Assemb.); Va. Code Ann. § 3.2-301
(West, Westlaw through 2018 Reg. Sess.); Wash. Rev. Code § 7.48.305 (West, Westlaw
through 2018 Reg. Sess.); W. Va. Code Ann. § 19-19-4 (West, Westlaw through 2018 Reg.
Sess.); Wis. Stat. § 823.08 (West, Westlaw through 2017 Act 367); Wyo. Stat. Ann. § 11-
44-103 (West, Westlaw through 2018 Budget Sess.).
        2See Lindsey v. DeGroot, 898 N.E.2d 1251, 1259–62 (Ind. Ct. App. 2009) (affirming

the constitutionality of Indiana’s right-to-farm law as applied to the plaintiffs and
declining the plaintiffs’ “invitation to adopt Iowa’s proposition that the right to maintain
a nuisance contained in the Act creates an easement in favor of [the agricultural
operation]”); Gacke, 684 N.W.2d at 175 (holding Iowa Code section 657.11(2) violates the
takings clause of the Iowa Constitution and, as applied to the plaintiffs, violates the
inalienable rights clause of the Iowa Constitution); Labrayere v. Bohr Farms, LLC, 458
S.W.3d 319, 335 (Mo. 2015) (en banc) (affirming the district court judgment that the
statutory immunity provided under Missouri law to agricultural operations does not
violate the Missouri Constitution); In re Pure Air & Water of Chemung Cty. v. Davidsen,
246 A.D.2d 786, 787 (N.Y. App. Div. 1998) (holding the state right-to-farm statute did not
violate due process); Hale v. State, 314 P.3d 345, 347, 350 (Or. Ct. App. 2013) (declining
to rule on the claim that the Oregon right-to-farm law violates the Oregon Constitution
because the court was “constrained by constitutional justiciability requirements”);
Barrera v. Hondo Creek Cattle Co., 132 S.W.3d 544, 549 (Tex. Ct. App. 2004) (holding the
Texas right-to-farm law did not constitute an unconstitutional taking).
                                    16

      under this chapter or under principles of common law, and
      the animal feeding operation shall not be found to interfere
      with another person’s comfortable use and enjoyment of the
      person’s life or property under any other cause of action.
      However, this section shall not apply if the person bringing
      the action proves that an injury to the person or damage to
      the person’s property is proximately caused by either of the
      following:

            a. The failure to comply with a federal statute or
      regulation or a state statute or rule which applies to the
      animal feeding operation.

             b. Both of the following:

           (1) The animal feeding operation unreasonably and for
      substantial periods of time interferes with the person’s
      comfortable use and enjoyment of the person’s life or property.

             (2) The animal feeding operation failed to use existing
      prudent generally accepted management practices reasonable
      for the operation.

Id. § 657.11(2).

      We examined the constitutionality of section 657.11(2) in Gacke,

where homeowners filed a nuisance suit against neighboring CAFOs where

they claimed the statutory immunity established in section 657.11(2) was

unconstitutional under the takings clause and the inalienable rights

clause of the Iowa Constitution. Gacke, 684 N.W.2d at 171–72. We found

that section 657.11(2) created an easement on the plaintiffs’ property in

violation of the takings clause of the Iowa Constitution by allowing the

CAFOs to continue acting as a nuisance while barring the plaintiffs from

obtaining the appropriate remedy of diminution-in-value damages for the

actual taking of their property. Id. at 174–75. Yet, we held that “[t]he

takings clause does not prohibit limitations on other damages recoverable

under a nuisance theory” since “the recovery of diminution-in-value

damages fully compensates the burdened property owners for the unlawful

taking.” Id. at 175. We also found section 657.11(2) was unconstitutional
                                     17

as applied to the plaintiffs in that case under the inalienable rights clause

based on their specific circumstances. Id. at 179.

      Our holding that section 657.11(2) was unconstitutional under the

inalienable rights clause as applied in Gacke was primarily based on three

facts present in that case. First, the plaintiffs “receive[d] no particular

benefit from the nuisance immunity granted to [the CAFOs] other than

that inuring to the public in general.”      Id. at 178.   Second, despite

obtaining no specific benefit from the statutory immunity, the plaintiffs

“sustain[ed] significant hardship.” Id. Third, the plaintiffs had resided on

their property since 1974, long before the surrounding CAFOs were built

in 1996, approximately 1300 feet north of the plaintiffs’ home. Id. at 171,

178. Since 1974, the plaintiffs “had spent considerable sums of money in

improvements to their property prior to construction of the” neighboring

CAFOs, while their property value was reduced by approximately $50,000

following the construction of the CAFOs. Id.

      Under these circumstances, “one property owner—the producer—

[was] given the right to use his property without due regard for the personal

and property rights of his neighbor,” rendering the statutory immunity of

section 657.11(2) unconstitutional as applied to the plaintiffs. Id. at 179.

Therefore, we found the plaintiffs were entitled to “special damages

supported by the evidence, past and future, as well as any decreased value

of the plaintiffs’ property proved by them” if the trial court concluded on

remand that the CAFOs “[would] be operated indefinitely as a nuisance.”

Id. at 185.   Nevertheless, “[w]e express[ed] no opinion as to whether

[section 657.11(2)] might be constitutionally applied under other

circumstances.” Id. at 179.

      D. The Constitutionality of Iowa Code Section 657.11(2) as

Applied to These Plaintiffs. The inalienable rights clause states, “All men
                                    18

and women are, by nature, free and equal, and have certain inalienable

rights—among which are those of enjoying and defending life and liberty,

acquiring, possessing and protecting property, and pursuing and

obtaining safety and happiness.” Iowa Const. art. I, § 1. This provision

protects “pre-existing common law” property rights from “arbitrary

restrictions.” May’s Drug Stores v. State Tax Comm’n, 242 Iowa 319, 329,

45 N.W.2d 245, 250 (1950). Such property rights include the “right to

acquire, possess, and enjoy property.” State v. Osborne, 171 Iowa 678,

695, 154 N.W. 294, 301 (1915). Yet, the protections afforded under the

inalienable rights clause are not absolute, as they are “subject to

reasonable regulation by the state in the exercise of its police power.”

Gacke, 684 N.W.2d at 176. “Police power refers to the legislature’s broad,

inherent power to pass laws that promote the public health, safety, and

welfare.” Gravert, 539 N.W.2d at 186. In discussing these rights, we used

a two-step analysis:

      To justify the state in thus interposing its authority in behalf
      of the public, it must appear, first, that the interests of the
      public generally, as distinguished from those of a particular
      class, require such interference; and, second, that the means
      are reasonably necessary for the accomplishment of the
      purpose, and not unduly oppressive upon individuals.

Id. at 186 (quoting Lawton v. Steele, 152 U.S. 133, 136–37, 14 S. Ct. 499,

501 (1894)).

      In applying the first step in Gacke, we held that section 657.11(2)

was a valid exercise of the state police power although individual

producers, not the public, were the direct beneficiaries of the statutory

immunity.      Gacke, 684 N.W.2d at 178.      We ruled “[t]he legislature’s

objective of promoting animal agriculture in this state promotes the

interests of the public generally and the immunity granted in this statute

bears a reasonable relationship to this legislative objective” even though
                                     19

the statutory immunity directly benefitted animal agricultural producers.

Id. This is still the case today, as the claimed government interest for

section 657.11(2) to promote “animal agriculture in this state by protecting

persons engaged in the care and feeding of animals” continues to promote

the interests of the public in general. Iowa Code § 657.11(1). This is true

even though the law “benefits certain individuals or classes more than

others.” Gravert, 539 N.W.2d at 188. “Any [further] determination on the

merits of the policy arguments is not for the court, but the political organs

of government by an informed electorate.” City of Davenport v. Seymour,

755 N.W.2d 533, 544 (Iowa 2008).

      The second step involves the three-prong test espoused in Gacke.

For courts to determine whether section 657.11(2) is unconstitutional as

applied to plaintiffs, plaintiffs must show they (1) “receive[d] no particular

benefit from the nuisance immunity granted to their neighbors other than

that inuring to the public in general[,]” (2) “sustain[ed] significant

hardship[,]” and (3) “resided on their property long before any animal

operation was commenced” on neighboring land and “had spent

considerable sums of money in improvements to their property prior to

construction of the defendant’s facilities.” Gacke, 684 N.W.2d at 178. In

applying the second step in Gacke, we concluded the means employed by

the legislature to accomplish its objective under section 657.11(2) were

“unduly oppressive and, therefore, not a reasonable exercise of the state’s

police power” as applied to the plaintiffs in violation of the inalienable

rights clause of the Iowa Constitution.      Id. at 179.   We reached this

decision based on the specific circumstances of the case as developed at

trial. Id. at 171.

      Following Gacke, courts throughout the state have fashioned the

three factors we considered in our as-applied analysis in Gacke into a
                                    20

three-prong test.   Consequently, courts have been applying this three-

prong test to determine the constitutionality of section 657.11(2) as

applied to other plaintiffs bringing similar suits without analyzing other

facts or changes to the regulatory scheme governing CAFOs since Gacke.

The defendants urge us to reconsider the validity of Gacke in light of the

changes to the regulatory scheme governing CAFOs since Gacke.

Additionally, the defendants maintain the district court improperly applied

the factors set forth in Gacke to this case without making specific factual

findings in its ruling that section 657.11(2) is unconstitutional as applied

under the inalienable rights clause of the Iowa Constitution.           The

defendants claim the proper approach to resolving nuisance claims under

section 657.11(2) is to require the “district court considering a nuisance

claim to evaluate only whether a plaintiff can establish an exception to the

statute under the negligence standard of subsection 657.11(2).”

      The defendants’ request for us to reexamine the validity of Gacke

requires us to consider our adherence to stare decisis. “[T]he principle of

stare decisis demands that we respect prior precedent and that we do not

overturn them merely because we might have come to a different

conclusion.” State v. Bruce, 795 N.W.2d 1, 3 (Iowa 2011). Nevertheless,

“we must revisit our prior decisions if those decisions are flawed and

incompatible with present conditions.” State v. Thompson, 856 N.W.2d

915, 920 (Iowa 2014). “[W]hen a rule, after it has been duly tested by

experience, has been found to be inconsistent with the sense of justice or

with the social welfare, there should be less hesitation in frank avowal and

full abandonment.” McElroy v. State, 703 N.W.2d 385, 395 (Iowa 2005)

(alteration in original) (quoting Benjamin N. Cardozo, The Nature of the

Judicial Process 150 (1921)).      In revisiting our prior decisions, we

essentially must decide “whether more harm will be done by overruling our
                                       21

previous cases in order to install what we think is clearly the correct

principle, or by adhering to an unsound decision in the interest of the rule

of stare decisis.”      State v. Liddell, 672 N.W.2d 805, 813 (Iowa 2003)

(quoting Stuart v. Pilgrim, 247 Iowa 709, 713–14, 74 N.W.2d 212, 215

(1956)).    In this case, we must revisit Gacke to determine whether

“compelling reasons exist to overturn our prior interpretation.” State v.

Williams, 895 N.W.2d 856, 860 (Iowa 2017).

      The legal landscape governing CAFOs has changed since we decided

Gacke.     In Gacke, the plaintiffs lived approximately 1300 feet, or one-

quarter mile, away from the CAFOs. 684 N.W.2d at 171. The necessary

separation distance for the same size facility today exceeds that, as the

minimum distance between the CAFOs and adjacent landowners at issue

is 1875 feet. See Iowa Code § 459.202(b) (2016). And here, the separation

distance from both Site 1 and Site 2 to the nearest home in this case

almost doubles the statutorily required separation distance between the

CAFOs      and    the     closest   plaintiffs—the   Honomichls—who     live

approximately .67 miles or 3537 feet from the closest CAFO. Under the

current regulatory framework, the Honomichls have the power to prevent

the construction of a CAFO on 253.55 acres of land surrounding their

property—much of which they do not own but are given a certain amount

of power over due to the regulatory scheme governing separation

distances. See id.

      Moreover, the legislature has since enacted more requirements

governing the construction of CAFOs including a manure management

plan. See id. § 459.303. Alongside these requirements, the legislature has

established a master matrix that the Iowa DNR must adopt “to provide a

comprehensive assessment mechanism in order to produce a statistically

verifiable basis for determining whether to approve or disapprove an
                                     22

application for the construction” or expansion of a CAFO. Id. § 459.305.

Likewise, the Iowa DNR has established standards for formed manure

storage to contain the manure and its corresponding odor. Iowa Admin.

Code r. 567—65.15(14).

      Despite these significant statutory and regulatory changes, the

analytical framework set forth by the Gacke factors, even with its

limitations, are still compatible with present conditions. Changes in the

regulatory scheme limiting CAFOs would appear to benefit the adjacent

landowners, at least in theory. But the fighting issue remains whether

section 657.11(2), as applied to the particular facts of the instant case, is

constitutional. Neither party has suggested an alternative legal framework

to utilize in such cases, and the court is unable to discern a satisfactory

alternative standard to apply. Accordingly, district courts presiding over

cases of this nature should apply the Gacke factors to analyze an as-

applied constitutional challenge.

      The defendants argue that the practical effect of applying the factors

we promulgated in Gacke has been to boil down the determination of the

constitutionality of section 657.11(2) as applied to the plaintiffs to one

question: whether the plaintiffs have sustained a significant hardship due

to their proximity to the CAFOs. See Gacke, 684 N.W.2d at 178. That is

an oversimplification.   The crux of any as-applied challenge must by

necessity concentrate on the second step of Gacke, which involves the

three-prong test. See id. While it may be true plaintiffs who sue CAFOs

for nuisance under section 657.11(2) may demonstrate that they meet the

other two Gacke factors, the fact that the Gacke factors seemingly tilt in

favor of the plaintiffs does not render them unsound or unjust. Ultimately,

the plaintiffs still must demonstrate that they meet all three prongs of the

Gacke test. We therefore reaffirm the as-applied three-prong test of Gacke.
                                      23

        Additionally, we agree with the defendants that the district court

improperly applied the Gacke test to this case without making specific

factual findings in its ruling that section 657.11(2) is unconstitutional as

applied under the inalienable rights clause of the Iowa Constitution.

Whether the statutory immunity established in section 657.11(2) is

unconstitutional as applied to the plaintiffs is inherently fact-specific. In

order    for   a   court   to   determine   whether   section   657.11(2)   is

unconstitutional as applied, plaintiffs must show they (1) “received no

particular benefit from the nuisance immunity granted to their neighbors

other than that inuring to the public in general[,]” (2) “sustain[ed]

significant hardship[,]” and (3) “resided on their property long before any

animal operation was commenced” on neighboring land and “had spent

considerable sums of money in improvements to their property prior to

construction of the defendant’s facilities.”     Id. at 178.    This proof is

dependent upon the genuine issues of material fact of each case.

        Here, each of the parties presented genuine issues of material fact

at the summary judgment stage that could lend themselves to a jury

verdict for the nonmoving party. As we have previously held, “[s]ummary

judgment is appropriate if the only conflict concerns the legal

consequences of undisputed facts.” Plowman, 896 N.W.2d at 398 (quoting

Peppmeier, 708 N.W.2d at 58). That is not the case here.

        Our holding in Dalarna Farms v. Access Energy Coop., 792 N.W.2d

656 (Iowa 2010), demonstrates why the Gacke factors require a fact-based

analysis that generally requires a trial on the merits, or at least an

evidentiary pretrial hearing. There we rejected the plaintiff’s argument

that section 657.1(2) violated Iowa’s inalienable rights clause as applied

because it was “premature at this [pretrial] juncture.” Id. at 664. In doing

so, we noted this constitutional analysis applying the three-prong Gacke
                                      24

test required the “fact-specific enterprise” of “balancing of interests” that

could not be proven in the pretrial phase of litigation. Id. We concluded

the plaintiff’s “allegations have not been proven at this stage of the

litigation.” Id. Consequently, we declined to address the issue “until, as

in Gacke, a factual basis . . . ha[d] been established.” Id.

      Although it is possible that an as-applied constitutional challenge to

section 657.11(2) could be resolved in pretrial litigation, the proper course

of action for parties disputing the applicability of section 657.11(2) is to

allow the CAFOs to plead section 657.11(2) as an affirmative defense to

the claims, if applicable. Correspondingly, the plaintiffs claiming section

657.11(2) is unconstitutional as applied to them must prove the factors

set forth in Gacke. After the parties have submitted their proof, the court

can then determine the constitutionality of section 657.11(2) as applied to

particular plaintiffs. While a district court may conduct a pretrial hearing

for the specific purpose of determining the as-applied challenge, the

plaintiffs can still rely on the exceptions to the immunity under sections

657.11(2)(a) and (b) if the district court finds the statute is not

unconstitutional as applied.

      Unlike summarily dismissing such claims through summary

judgment, a pretrial hearing, or an appropriate motion after the

submission of all the evidence at trial, allows the district court to properly

balance the Gacke factors with the legislative purpose of the statute to

protect and promote animal agriculture in the state.           See Iowa Code

§ 657.11(1). Here, the district court erred in granting the plaintiffs’ partial

motion    for   summary     judgment       by   declaring   section   657.11(2)

unconstitutional as applied, and in doing so without the benefit of specific

fact-finding.
                                      25

      E. The Facial Constitutional Challenge to Iowa Code Section

657.11(2). In addition to their as-applied challenge to section 657.11(2),

the plaintiffs claim section 657.11(2) is facially unconstitutional, arguing

that the police power does not include “protecting large-scale agricultural

interests that have themselves been commonly characterized as a public

nuisance or risk.” A party who claims a statute is facially unconstitutional

“asserts that the statute is void for every purpose and cannot be

constitutionally applied to any set of facts.” War Eagle Vill. Apartments,

775 N.W.2d at 722 (quoting F.K., 630 N.W.2d at 805). Nevertheless, we

already held in Gacke that the legislative purpose “of promoting animal

agriculture in this state” falls “within the police power of the state.” Gacke,

684 N.W.2d at 178. Today, we affirm this holding.

      IV. Conclusion.

      For the aforementioned reasons, we reverse the district court ruling

declaring that Iowa Code section 657.11(2) is unconstitutional as applied

to the plaintiffs in this case. We remand the case to the district court for

further proceedings consistent with this opinion. On remand, the district

court must engage in a fact-based analysis by applying the three-prong

test set forth in Gacke.

      REVERSED AND REMANDED.

      All justices concur except Waterman and Mansfield, JJ., who concur

specially.
                                    26

                          #16–1006, Honomichl v. Valley View Swine, LLC
WATERMAN, Justice (concurring specially).

      I join most of the court’s opinion reversing the district court ruling

that erroneously concluded Iowa Code section 657.11(2) (2016) is

unconstitutional as applied to these plaintiffs. Questions of fact on this

record preclude summary judgment for either side on the statutory

defense. I write separately because Gacke v. Pork Xtra, L.L.C., 684 N.W.2d

168 (Iowa 2004), is outdated and should no longer control the analysis

under the inalienable rights clause of the Iowa Constitution, which reads,
“All men and women are, by nature, free and equal, and have certain

inalienable rights—among which are those of enjoying and defending life

and liberty, acquiring, possessing and protecting property, and pursuing

and obtaining safety and happiness.” Iowa Const. art. I, § 1. I reach my

conclusion for several reasons.

      First, a decade after Gacke, we unanimously held that the

deferential rational-basis test is to be applied for challenges under the

inalienable rights clause. City of Sioux City v. Jacobsma, 862 N.W.2d 335,

352 (Iowa 2015). In my view, this is the test that should be applied on

remand to adjudicate the constitutional challenge to section 657.11(2). In

the last century, Gacke is the only Iowa case sustaining a constitutional

challenge under the inalienable rights clause. See Todd E. Pettys, The

Iowa State Constitution 67–68 (2d ed. 2018) (acknowledging that “[b]ecause

the standard of review under Section 1 is highly deferential to government

actors, it is far easier to find cases in which Iowa courts have rejected

inalienable-rights claims”). Jacobsma restores the proper deference to the

policy choices of the elected branches.

      Second, Gacke limited its holding to the specific facts of that case

and emphasized that “[w]e express no opinion as to whether [section
                                     27

657.11(2)] might be constitutionally applied under other circumstances.”

Gacke, 684 N.W.2d at 179. The legal landscape has changed since 2004.

The minimum distances between confined animal feeding operations

(CAFOs) and neighboring residences have increased substantially since

Gacke was decided. Compare Iowa Code § 459.202 (2016), with Iowa Code

§ 459.202 (2003). And the legislature and Iowa Department of Natural

Resources (IDNR) have imposed more stringent regulations on the

construction and operation of CAFOs. See id. §§ 459.303, .305 (2016);

Iowa Admin. Code r. 567—65.15(14). The CAFO loses its statutory defense

if it fails to comply with these more stringent state law requirements or

those imposed by federal law. See Iowa Code § 657.11(2)(a).

      Third, Gacke was wrongly decided. CAFOs may be controversial,

but it is not our court’s role to second-guess policy choices of the elected

branches of government. This appeal does not involve a “takings” claim.

It does not present a limit on a landowner’s right to recover damages for

diminution in value due to a nuisance. The sole issue presented is whether

the legislature, subject to the rational-basis test, can pass a law that

affects a landowner’s ability to recover noneconomic nuisance damages.

All other states have passed such right-to-farm laws, and no other state

supreme court has held them even partially unconstitutional.         To the

contrary, other courts have uniformly rejected constitutional challenges to

these statutes.   Gacke stands alone.      I would accept the defendants’

invitation to revisit Gacke and overrule it.

      The inalienable rights clause should be read together with the clause

that immediately follows it in the Bill of Rights. According to article I,

section 2,

      All political power is inherent in the people. Government is
      instituted for the protection, security, and benefit of the
                                      28

      people, and they have the right, at all times, to alter or reform
      the same, whenever the public good may require it.

Iowa Const. art. I, § 2. Thirteen years after our constitution was ratified,

our court discussed this clause and noted the people “have vested the

legislative authority, inherent in them, in the general assembly.” Stewart

v. Bd. of Supervisors, 30 Iowa 9, 18 (1870) (emphasis omitted). Thus, we

concluded,

      [I]t seems clear by logical deduction, and upon the most
      abundant authority, that this court has no authority to annul
      an act of the legislature unless it is found to be in clear,
      palpable and direct conflict with the written constitution.

Id. at 18–19; see also Knorr v. Beardsley, 240 Iowa 828, 842–44, 38 N.W.2d

236, 244–45 (1949) (discussing Stewart and subsequent cases).

      We need to be cognizant of the right of Iowans to govern themselves

through laws passed by their chosen representatives, a right recognized

explicitly in article I, section 2. Gacke failed to consider this provision.

      For these reasons, I am unable to fully join the majority opinion.

      Mansfield, J., joins this special concurrence.
