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Iowa Law Blog recently featured a post regarding the Iowa fence law found at Iowa Code Chapter 359A.  That post discussed that although the fence law was historically enacted for agricultural purposes, the Iowa Supreme Court has ruled that its applicability extends to "serve the broader public good by mediating boundary, fence and trespass disputes."  Gravert v. Nebergall, 539 N.W.2d 184, 188 (Iowa 1995).  The fence law could be used for urban purposes as well.

The fence law directs that the township trustees of the subject area will serve as "fence viewers," a group that decides the outcome of a fence dispute between two neighbors.  However, as unincorporated land is annexed by municipalities, that land is no longer part of the township, but instead part of the municipality.  Thus, the township trustees no longer have jurisdiction over fence disputes. 

Logically, under this scenario it would seem that the city council would become the "fence viewers" who would resolve the dispute between the neighbors.  However, city councils traditionally serve a legislative function, and not a judicial one.  Accordingly, it would seem that the Iowa District or small claims court would be the appropriate venue for these disputes.

Such result does not mesh with Iowa Code 359A or the Gravert decision of the Iowa Supreme Court.  The Iowa legislature should review 359A to ensure that it still serves it purpose, and that there is a clear mechism for citizens to utilize it.

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During Jan Mickelson's (@amtalker) radio show this morning on 1040 WHO, I heard part of a story about two neighbors who had a dispute about a fence.  The discussion involved Iowa Code Section 359A, which is a very old statute.  Essentially, the statute sets forth the procedure under which a person can force his adjoining land neighbor to help pay for the costs of a fence between the two properties.

There are several policies furthered by this statute.  The centuries-old proverb that "good fences make good neighbors" is an obvious reason, but for agricultural states it also helps clarify farmland boundaries and contain livestock. 

This is where clarification is important:  although the radio guest noted that this statute is intended for agricultural purposes, the statute technically does not have that limitation.  The Iowa Supreme Court has held that:

So for the city-folk reading this note, you have the access to this statute as well.

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Earlier I blogged about a bike lane in Prospect Park West in Brooklyn that had come under some legal fire.  The plaintiffs were a number of disgruntled residents who filed a mandamus action against the City, arguing that the installation of a bike lane was aribtrary or unfair.

On Tuesday, August 16, 2011, the Court ruled in favor of the City, but on a technical and procedural statute of limitations issue, and not on whether the installation of the bike lane was arbitrary or unfair. 

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Trial began yesterday in a case in Kansas City.  Here, the Plaintiff John Croomer attended a baseball game of the Defendant Kansas City Royals on September 8, 2009.  The Royals mascot, Sluggerrr, was throwing free hot dogs into the stands, and Croomer alleged that one of these frankfurters was negligently thrown and hit him in the eye, resulting in a detached retina requiring multiple surgeries.  For a great  synopsis of the case, read Mark Morris' piece in the Kansas City Star.  It remains to be seen whether Croomer will relish in victory.

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A petition was filed in New York State Court on Monday against New York City's Department of Transportation, seeking declaratory relief that would, in part, remove the new bikes lanes abutting Prospect Park West in New York City.  The New York Times reported on the lawsuit yesterday, noting that much of the issue has to do with politics.  However, the lawsuit does reference a great deal of evidence regarding traffic issues and increased risk of harm to cyclists and motorists.  Stay tuned for updates on this issue.

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The next time you get your invoice from your lawyer and think his or her rate is too high, be grateful that the hourly rate is not over $1,000.00, as some attorneys across the country are charging in excess of $1,000.00 an hour. While even $150.00 an hour seems excessive to some clients, it is important to remember that the fees that attorneys charge cover all of the overhead expenses from support staff, office rent, equipment, supplies, law library subscriptions, marketing, malpractice insurance, continuing education, deadbeat clients, and eventually pay for the attorney. Attorneys have invested years in their education and training and a reasonable return for the knowledge they have obtained is to be expected. We here at Sullivan & Ward believe that our fees are reasonable and in step with current market. Some of our work is handled at flat rate charges, which does provide some comfort to clients about the bill at the end of the day.  Various online companies and services attempt to provide "low cost" legal-type services, but you can probably imagine what you get.

Now if my hourly rate was $1,200, this blog post would be really expensive.

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Back on November 5, 2010, my colleague Matt Gardner discussed the Iowa Court of Appeals' decision in Galloway v. State, where the Court held that it is against public policy to allow parents to waive the child's legal rights to sue for damages against a third party.  Essentially, the Court said that when parents sign a permission slip for their children, the slip cannot waive a third party's responsibility to the child, noting that if the Iowa Legislature wants to change the law, they are free to do so.

Somebody in the legislature was listening, because House File 353 was filed yesterday.  The bill provides that: "A parent of a minor child may, on behalf of the parent’s minor child, waive such minor child’s prospective claim for negligence."  Matt's blog lays out the policy behind the argument, now it remains to be seen which argument wins the day in the legislature. 

Stay tuned for updates on this interesting and relevant legal issue as it works its way through the capitol.

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The Iowa Supreme Court released an interesting decision today setting a new legal precedent for the state of Iowa.  Normally, when someone signs a release form, whether or not they read it, they are bound to the terms of the waiver.  For those of you who have kids, you are used to getting the request that you sign those field trip waiver forms that provide you will not hold the school or other organization responsible for any injuries that occur on the field trip.  Most groups will require that they get a signed waiver or the child cannot participate.

The Iowa Supreme Court today ruled in Galloway v. State of Iowa that such a release by a parent of a child are void as they violate public policy.  The rationale by the court is that in other areas of the law there are certain limitations that a parent has over the rights of the child. Release of a child's rights to recover from another party for their damages is an important legal right of a child.  The public policy purpose of protecting the child's legal rights is greater than the concerns of the child's access to these types of activities.

The Court also indicated that if the legislature wants to change the law, they should be free to do so.  However, for the time-being, it will be interesting to see the approach that Iowa schools, and any other organization that transports kids on trips, will handle the increased liability.  (I'm sure my kids would not appreciate having their field trips canceled.)

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The Iowa Supreme Court released an opinion today in Feld v. Borkowski.  The case centers around a slow-pitch softball practice, where the players were taking batting practice.  The batter, Borkowski, was a right handed hitter.  On this particular pitch, Borkowski swung too early, fouling the ball high and foul over the left field line.  However, during some part of his swing, Borkowski released the bat, sending it flying....down the right field line, where it struck the first baseman, Feld, in the forehead causing serious damage.  This is not a normal flight pattern for a released bat.

The issue for the Court was to first determine whether softball is a contact sport.  If it is a contact sport, the batter is liable if his conduct was reckless or intentional.  If softball is not a contact sport, the batter is liable if his conduct was simply negligent.  The Court determined that softball was a contact sport, so that its players should be on notice that such type of danger is inherent, unless the danger was created by reckless conduct, which would place liability on the acting party. 

The Court then considered an affidavit from Ed Servais, the Creighton University head baseball coach.  Mr. Servais noted that a right handed hitter who fouls a ball down the left field line should not, under normal circumstances, ever release his bat down the right field line.  The Court found this to raise an issue of recklessness that was appropriate to take the case to a jury.

Another interesting story at the intersection of sports and the law.  Stay tuned to see how this case turns out when it goes to trial. 

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In sports news, its common to hear about coaches who leave one program for the next, often breaking their contract to do so.  This time, somebody is getting sued.  In Tennessee Football, Inc. v. Lane Kiffin, University of Southern California, the Tennessee Titans sued the new USC football coach for "inducement of breach of contract" and tortious interference with contractual relations claiming that Coach Kiffin and USC induced Tennessee Titans' running back coach Kennedy Pola to breach his contract with Tennessee by convincing him to coach at USC instead.

Clay Travis at AOL Fanhouse gives a great synopsis of the case and other details surrounding it.  Time will tell whether the outcome of this lawsuit will change how contracts are treated in collegiate and professional sports, but it will be a great spectator event over the next year or two.

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Title IX of the Education Amendments of 1972 states that: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance...

In collegiate sports, Title IX essentially provides that men and women must have equivalent athletic opportunities.  Given the budget constraints of collegiate athletic departments, deference is usually given to revenue generating sports, such as football and basketball, and other sports have to be cut to weighing the two major factors:  1) Cost of the sport, and 2) Compliance with Title IX.  Quinnipiac University attempted to cut its women's volleyball program, arguing that its cheerleading program was a qualifying varsity sport under Title IX.  A US District Court Judge in Connecticut found that the school failed to provide equivalent athletic opportunities to male and female athletes, and further noted that:

"Competitive cheer may, sometime in the future, qualify as a sport under Title IX; today, however, the activity is still too underdeveloped and disorganized to be treated as offering genuine varsity athletic participation opportunities for students..."

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The Iowa Court of Appeals issued its ruling today in Freedom Financial Bank v. Estate of Edward Boesen et al.  The Court upheld the priority of Freedom Financial's purchase money mortgage which the late Edward Boesen used to buy a commercial property in Ankeny.  Citing century-old case law, the Court noted that prinicples of equity and fairness demand that the mortgage, which was used solely to purchase the property, be acknowledged. 

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According to the Insurance Institute for Highway Safety, text-messaging is banned for all drivers in 28 states and the District of Columbia. Effective July 1, 2010 Iowa joined the ranks when House File 2456 (www.votesmart.org/billtext/29106.pdf) went into effect.  For adult drivers, the new ban prohibits writing, sending, or reading text or electronic mail messaging while driving. Adult drivers can still use cell phones to place and receive calls; however, drivers 14-18 years old cannot. Drivers 14-18 have an outright ban of cell phone or electronic device use while driving. This applies to drivers operating under instructional permits, school permits, and/or graduated or intermediate driver's licenses. 

While the new law goes into effect July 1, 2010, law enforcement will simply be issuing warnings for the first year. Beginning July of 2011; however, violations of the texting ban will result in a simple misdemeanor change punishable by a $30 scheduled fine, plus court costs and surcharges for adults. There will also be enhanced sanctions in situations where an accident occurs resulting in serious injury or death. Violations by restricted teen drivers will result in a $50 fine, plus court costs, surcharges and various license suspension provisions. Cell phones may not be confiscated by law enforcement if drivers violate the ban.     

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The popular legal document production website, LegalZoom, is "zooming" to the court based upon a class action lawsuit in Missouri.  The Plaintiff's in the suit are claiming that LegalZoom is engaging in the unauthorized practice of law. 

While some people may see attempts by attorneys to knock LegalZoom out of business in order to protect the attorney's "ground", the reality is that if there are any issues that come out of the documents created by LegalZoom, the attorneys are likely to make much more money in fees in cleaning up the mess than they would have in drafting the documents in the first place.  Most clients are surprised at the relatively reasonable cost we charge for the same "document preparation" that these DIY companies provide.  Is it as cheap as LegalZoom? No.  Do you get what you pay for?

There are plenty examples of people performing their own surgeries, but there is a reason that physicians go through years of school and training and are subject to regulations.  Similarly, whether you like attorneys or not, there is a reason they too go through years of school, training and subject to regulations. 

Don't you have a little more comfort in knowing that the critical legal documents are done accurately?  Plus, if there is a question later on, having that initial relationship with an attorney will help with dealing with any problems.

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As reported on August 25, 2009 by Andy Staples on SportsIllustrated.com, SI.com is issuing open records requests to the 51 public school bowl championship subdivision football coaches who cast votes for the weekly coaches poll in NCAA football.  The coaches poll carries 33% weight in the determination of which schools are eligible to compete in the BCS national championship game, and other high-paying bowl games.  Staples argues that since football coaches at public universities are public employees, all records-including their votes-are subject to the open records laws of their specific states. 

Neither Kirk Ferentz or Paul Rhoads are voting in the coaches this year (2009), but if they were, an interested person could make an open records request under Iowa Code Chapter 22.  Whether such requests by SI.com are successful remains to be seen, but Iowa's law in particular seems to favor the interested person under these circumstances.

What is clear, however, is that this author is excited for the approaching college football season.  Stay tuned for any other excuses to write about the divergence of college football and the law. 

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This post should be prefaced with the fact that I am an alumnus of the Univeristy of Iowa, but I will attempt to remain as objective as possible in my reporting.

Iowa State University recently finialized its contract with new Head Football coach Paul Rhoads.  The contract, linked here by the Des Moines Register, has an interesting term that is not often found in coaching contracts.  Under Article V of the contract, instances are provided that equate to "just cause" for termination, in other words, reasons the University can give to fire him.  Paragraph 2(a) of this Article specifically lists some situations that cannot be considered just cause, including:

ii) Win-loss record or public unhappiness with win-loss record; or

iii) Other general displeasure at the direction or success of the football program.

Generally, win-loss records and displeasure with the direction of an athletic program are the main reasons coaches are fired by their university employers.  It would be interesting to know at whose behest these clauses were added, and the policy behind them.  It should be noted that the contract also lists a number of "just cause" reasons to fire Rhoads, and the University would likely be able to find separate reasoning to release him besides the win-loss record of the team. 

At any rate, his job is safe for a while, even after September 12, 2009.  Go Hawks.

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The Des Moines School Board voted 6-0 on Tuesday, May 19, 2009 to approve a tougher student conduct policy related to illegal activities and behavior.  The policy will go into effect in the Fall of 2009, and will apply to students year-round.  Opponents of the new changes have focused their attention on a particular part of the policy:  The new code allows district officials to use information from social networking sites such as MySpace or Facebook as evidence to discipline students, even in the event the student is not charged by legal authorities. 

The Des Moines Board policy certainly raises a number of questions about the authenticity of social networking information as evidence (Is a picture of a student-athlete holding a red Solo cup of Pepsi at a party going to get him or her suspended?) (What if a beer is Photoshopped into the picture?) (What if the picture was taken before the policy was in effect?); the availability of resources to enforce the new policy (Will the district employ an individual to scour the Internet in search of allegedly damning photos?); and whether investigations will be commenced by school administrators, by an opposing team a few days before the big game, or by a parent of a student-athlete from the same team (Is this a tool for the district or does it promote everybody to become a whistle-blower?).  Additionally, the moral/social debate about parental decision-making overruled by the school district is alive and well following the board's actions.  From a legal perspective, however, high school extra-curricular activities are a privilege, not a right.  Accordingly, the school district is likely entitled to use social networking sites as a means to enforce its policies. 

Also, look for students to simply change their habits.  Many will avoid situations where alcohol or drugs are involved, while others may not abate their behavior, but will just take the photos off the Internet.

The introduction of Internet information as evidence, especially found on Facebook and MySpace, is a fascinating legal phenomenon.  The information is plentiful and can provide tremendous assistance to a fact-finder, but its authenticity is highly questionable. 

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Yesterday on IowaIndependant.com, Lynda Waddington reported on an 8th Circuit Court of Appeals decision on three prisoners' rights to observe their religious holiday at the Iowa State Penitentiary in Fort Madison.  The three plaintiffs are Wiccan, and sought 8 full hours to observe Samhain, their most important day of religious observance, which takes place at the end of October.  The inmates brought their suit under the Free Exercise Clause under the First Amendment of the U.S. Constitution.  The Appellate Court ruled that 3 hours was a sufficient amount of time to observe the holiday, especially given the timing and safety constraints within which the prison officials must operate.  The Iowa Department of Corrections officially recognizes approximately 12 other religions.

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Asbestos is also used in protective clothing to protect workers from flames and heat. Asbestos became more popular as the Industrial Age got rolling. It was cheap, easy to get and easy to use. Homes and buildings built prior to 1980 maintain the likelihood of containing asbestos materials. It should be known that asbestos exposure can cause many health concerns for you and your family.

When asbestos fibers are inhaled, it can cause a fatal lung-ailment known as mesothelioma. This type of lung cancer takes the lives of thousands every year and mesothelioma treatment has varied effects on patients. Since asbestos-related illness can take 20 to 50 years to show up, experts believe that the numbers of cases of both mesothelioma and asbestosis will increase over the next few years and peak in about 2015. A mesothelioma lawyer can protect victim’s rights and advocate fair compensation as a result of their asbestos attributed disease.

The Environmental Protection Agency has ordained specific regulations in handling asbestos. The removal of asbestos and toxic materials must be performed by licensed abatement contractors who are trained in these matters. Many citizen-based organizations assist the removal and disposal of asbestos in public facilities and homes. Once asbestos is removed from the location, environmentally friendly options such as lcynene, cotton fiber and cellulose should be considered.

The use of recycled building materials such as cotton fiber can reduce energy costs in the household per year up to 35 percent. As public awareness and technology continues to grow, the number of options will also be on the rise. Alternatives to asbestos allow for a healthy and safe home, free of health damaging materials.

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In the Des Moines Register today, Jeff Eckhoff wrote a story today about businessman Anthony Herman in Polk City, Iowa.  Apparently, Mr. Herman is involved in several legal battles with the City of Polk City, and began using a sign on his property to display his distaste for the City using choice statements about the Mayor and members of the City Council.  The Polk City city council "has no plans to try to interfere with his right to free speech." 
 

Pursuant to a 1971 U.S. Supreme Court case (an oldie but a goodie), Polk City might face a tough challenge regulating Herman.  In Cohen v. California, the Supreme Court ruled that "the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of [an] expletive a criminal offense."  Justice Harlan famously wrote that "one man's vulgarity is another's lyric."

As individuals, the Polk City Mayor and City Council could try to sue Herman on defamation grounds.  However, the City officials would probably be considered "public officials."  To prove libel (written defamation), the Polk City officials need to prove that 1) the statements were defamatory; 2) of and concerning the city officials; 3) the statements were published; 4) the statements damaged the reputation of the officials; 5) that Herman knew the statements were false; and 6) that his statements were made with reckless disregard of the truth.

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The first session of the 83rd Iowa General Assembly convenes on January 12, 2009, and a number of prefiled bills have already been released to the public.  Several will likely generate some buzz, including:

• Restricting smoking in casinos, proposed by Rep. Mark Smith, D-Marshalltown
• Local Control of Animal Confinements, proposed by Rep. Mark Smith, D-Marshalltown
• Defining Mortgage Brokers as Agents to Borrowers, proposed by the Iowa Attorney General

Stay tuned for an exciting legislative session, and check back to Iowa Law Blog for updates thoughout the session.

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Looking out my window at today's snow accumulation, I am unfortunately reminded of my legal duty to shovel my sidewalk when I get home.  According to Iowa Code Section 364.12(2)(b):

The abutting property owner is responsible for the removal of the natural accumulations of snow and ice from the sidewalks within a reasonable amount of time and may be liable for damages caused by the failure of the abutting property owner to use reasonable care in the removal of the snow or ice.

A "reasonable amount of time" means:

• Des Moines:  within 48 hours following the end of the snowfall. Property owners who do not comply are subject to a civil citation.
• West Des Moines:  after the 24 Hr period after the storm ends, complaint calls will be routed to the Police Department for complaint follow-up and code enforcement.
• Urbandale: after twenty-four (24) hours or more, 12 hours to shovel following complaint, then subject to criminal prosecution.
• Clive: twenty-four (24) hours after a snowfall or the deposit or formation of ice.

If your City is not included in my list above, suffice it to say, you should still shovel your walk tonight.

Photo on Flickr by Marko K

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A December 2008 report by the Generation Iowa Commission finds:

• Iowa had a “brain drain” of 19,500 college-educated people for 1995-2000.
• 12 percent of currently available jobs in Iowa are for college graduates.
• Iowa’s brain drain is 4th worst in the nation since 2000.
• Iowa is one of only six states facing a declining rate of the percent of our population with at least a bachelor’s degree.
• Iowa has the 9th lowest average wage out of 10 regional states.
• Iowa’s wages are 20 percent lower than the national average.
• Cost of living adjustments do not make up the wage gap.
• Iowa college students rank 17th nationally at a volunteer rate of 32 percent.

The Commission offers several recommendations to attempt to reverse these alarming trends, including:

1. Allowing Next Generation more participation and input on state economic commissions and boards,
2. Advancing a more ambitious and expansive job-creation program throughout the state,
3. Expanding internship availabilities to Iowa college students in higher-educated growth industries, and
4. Providing increased incentives for participation in Americorps and other volunteer organizations within the state.

Iowa is a national leader in alternative fuel and energy production.  It would be interesting to see if the state can create a new model for economic success by powering the country through the utilization of young talent and ideas, before these college graduates leave our state in search of greener pastures.

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On my way into work this morning, I caught a radio segment from ESPN's Mike and Mike in the Morning radio show on 1700 The Champ.  The discussion was regarding the NFL's decision to suspend six players for violating the league's policy on anabolic steroids and related substances.  The players are each suspended for the rest of the regular season.  This news is difficult for some fans in our office, including yours truly, since two of these players are defensive tackles Kevin and Pat Williams of the Minnesota Vikings.  The fact that the Vikings just took the lead in their division (NFC North) makes the news even more difficult to bear. 

However difficult the ruling is for a fan, there are some interesting legal issues to come out of the story:

1) The Williamses plan to file suits in U.S. District Court for injunctive relief, which if granted, would allow them to play through the season and address the issue after the season.  Generally, to prevail on a temporary injunction, a petitioner must show: 1) that he or she is likely to succeed on the merits of the case, and 2) that there is no other adequate remedy at law.  Whether the Williamses will be able to meet this burden is not clear, but a grant of injunctive relief is rather difficult to obtain.

2) Another remedy for the Williamses includes suing the manufacturer of the weight-loss pills for failure to include on its label the ingredient bumetanide, which is banned by the NFL.  To prevail in this lawsuit, a plaintiff would likely need to show that the manufacturer was negligent in its failure to warn consumers about the included ingredients.  The case would revolve around whether the Williams' harm was foreseeable, and whether inclusion of the ingredents would have been a reasonable method to warn the consumer.  However, this lawsuit would not help the Vikings win the NFC North and make the playoffs.

Check back for updates on the fate of the Williamses and the Vikings.

photo on flickr by  funnystrange or funny ha ha

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On this much anticipated first Tuesday after the first Monday in November, millions of people are flocking to the polls to cast their ballots.  For Iowa voters, there are some nuances to election law that are important to keep in mind:

• Unregistered voters can register and vote on election day.  You must be at the precinct where you live, complete a voter registration application, sign a written oath, and present appropriate identification.  Iowa Code § 48A (2008).
• A student who attends an Iowa college or university may vote in their hometown or at their college residence.  Obviously, you have to choose one or the other.  Iowa Code § 48A (2008). 
• People convicted of felonies who have completed their sentence (including probation, parole, & supervised release) before July 4, 2005 are eligible to vote.  On that date, Governor Vilsack signed Executive Order No. 42, which granted a blanket restoration of the right to vote and hold public office to persons who were disqualified from registering to vote because of conviction for a felony or aggravated misdemeanor.

If you have any questions, contact your county auditor.  Remember, the polls in Iowa close at 9 p.m., so make sure to cast your ballot before then! 

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