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In re Krull

Supreme Court of Iowa

February 20, 2015


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On application of the Iowa Commission on Judicial Qualifications. Commission on judicial qualifications filed an application to discipline a judicial officer.

Thomas J. Miller, Attorney General, Kevin Cmelik and Grant K. Dugdale, Assistant Attorneys General, for complainant.

Mark McCormick of Belin McCormick, P.C., Des Moines, for respondent.


WATERMAN, Justice.

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" Dé jà vu all over again." [1] We expect lawyers and judges to learn from their mistakes. When a judicial officer repeats violations of the same ethical rules, sanctions can escalate. In this case, the Iowa Commission on Judicial Qualifications (the Commission) recommends we publicly reprimand Magistrate Douglas A. Krull for signing a warrant to search the home of his client. Krull in his private practice represented the mother in a pending action against her ex-husband to modify the child-custody provisions of their dissolution decree. A police officer sought the search warrant in a burglary investigation targeting their son. Magistrate Krull saw this matter as different from a search warrant he signed six years earlier that led to the reversal of a criminal conviction because he contemporaneously represented a client bringing a custody action against the subject of the search. State v. Fremont, 749 N.W.2d 234, 235, 243-44 (Iowa 2008) (holding Magistrate Krull's conflict of interest invalidated warrant). The Commission issued Magistrate Krull a private admonishment for the Fremont transgression. This time, the district court judge in the modification action granted the opposing party's motion to disqualify Krull, requiring a continuance and new counsel for Krull's client.

On our de novo review, we agree with the Commission's finding that Magistrate Krull violated three disciplinary rules governing part-time judicial magistrates by signing the search warrant. Because this is the second time he has signed a warrant to search the home of a party in a civil case he was handling in his private practice--conduct for which he was previously admonished--we impose the recommended sanction of a public reprimand.

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I. Background Facts and Proceedings.

Magistrate Krull, age fifty-four, is a part-time judicial magistrate in the Second Judicial District. He has practiced law in Worth County since 1985. Krull served as Worth County Attorney from 1986 to 1998 before opening his own general private practice in Northwood, Iowa. He was appointed magistrate in 2005. Krull has maintained his general private practice in Northwood while serving as magistrate. Worth County has a population of 7500. According to Magistrate Krull, only three lawyers regularly practice in Worth County. He is the only resident judicial officer.

Krull agreed to represent Mindy Miller in his private practice. On March 21, 2012, Krull filed a petition against her former husband, Thomas Arndt, to modify their dissolution decree. Under that decree, Miller and Arndt shared physical care of their children, L.A. and T.A., but the children actually lived exclusively with Miller. The petition for modification asked the court to grant Miller exclusive physical care. A trial-setting conference was held on June 1, during which the court set a trial date of September 14.

On June 23, a Northwood police officer approached Magistrate Krull seeking a search warrant to investigate three gas station burglaries. The warrant identified T.A., age sixteen, as a suspect and authorized the search of Mindy Miller's residence for specific stolen goods and items used in the burglaries. The officer had identified T.A. and another young man as the burglars from a security camera video and had information that L.A. sent out a text message offering cigarettes for sale matching the brands of the stolen cartons of cigarettes. Magistrate Krull immediately recognized the names and knew that the residence to be searched was Miller's home. He thought that his client may be upset with him for signing a warrant to search her house for evidence implicating her son, and he " recognized [she] might no longer want [him] to represent her." Nonetheless, Magistrate Krull signed the search warrant. He later explained he focused on T.A.'s behavior and did not think about how the discovery of stolen cigarettes at Miller's home might affect the modification proceeding.

At the time he signed the warrant, Magistrate Krull considered whether this case was similar to Fremont. In Fremont, Magistrate Krull was asked to sign a warrant to search the residence of Destiny Fremont, a woman whose name Magistrate Krull recognized from his private practice. 749 N.W.2d at 235. Krull had filed a custody action on behalf of his client against Fremont, and that civil matter was pending at the time the officer presented the warrant for Magistrate Krull's signature. Id. He was aware of his client's pending civil action against Fremont, yet he signed the warrant anyway, reasoning " that the evidence [supporting the issuance of the warrant] was overwhelming, physical in nature, and did not require him to evaluate the credibility of witnesses." Id. at 235-36. We held in Fremont that the warrant was constitutionally infirm and vacated Fremont's conviction because Magistrate Krull was not acting as a neutral and detached magistrate. Id. at 243-44. Magistrate Krull received a private admonition from the Commission for signing the warrant in Fremont. When history repeated itself six years later, Magistrate Krull again signed the search warrant presented to him after concluding Fremont was distinguishable because the warrant this time authorized the search of the home of his own client rather than the adverse party.

Miller did not ask Krull to withdraw for signing the warrant to search her residence, and he continued to represent her

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in the modification action and prepare for trial. Seven days before the scheduled trial date, the parties exchanged witness and exhibit lists. On September 12, two days before trial, Thomas Arndt's counsel sent Krull an updated witness list naming Magistrate Krull as a witness relating to his issuance of the search warrant. Arndt's counsel filed a motion to disqualify Krull from representing Miller. The next day the district court judge conducted a telephonic hearing. The judge granted the motion to disqualify Krull and continued the trial to allow Miller to retain new counsel. His order stated:

A common fact issue in both the search warrant proceedings and this modification action is the behavior and conduct of [T.A.]. This modification action and the issuance of the warrant both impact the legal status of [T.A.]. Given the overlap and interconnection of the search warrant proceedings and this modification action, it is the opinion of the Court that the ethical rules . . . require Mr. Krull to withdraw from further representation of [Miller] in this case.

The order required Krull to file a motion to withdraw on or before September 21. Krull was upset with the order, believing T.A.'s conduct to be irrelevant to the modification action. He considered the motion to disqualify him a ploy by opposing counsel to get a continuance. He immediately called Miller and explained his disqualification, then dictated his withdrawal to an assistant and asked her to contact Miller to sign it. He also contacted another attorney to discuss representing Miller going forward, personally delivered Miller's file to her new counsel, and promptly refunded the balance of Miller's trust account. However, Krull's written withdrawal was mistakenly placed back in Miller's file and was neither signed by Miller nor filed with the court. On October 23, the district court judge phoned Krull to inform him that he would be filing a complaint with the Commission and noted that Krull had not filed his withdrawal. Krull was surprised to learn that his withdrawal had not been filed and filed it as soon as Miller signed it on October 31.

Meanwhile, on October 26, the district court judge filed his complaint against Magistrate Krull with the Commission. The complaint recounted the foregoing events and noted Magistrate Krull had previously violated ethical rules by signing the search warrant in Fremont. The Commission informed Magistrate Krull of the complaint, and he responded by letter on February 4, 2013. Magistrate Krull admitted the facts and explained his thinking in both Fremont and his representation of Miller. He described the circumstances of his oversight that delayed the filing of his written withdrawal from Miller's case. He admitted to the Commission, " I now understand that I should not have issued the search warrant . . . . [M]y review was too narrow. I was too much focused on wanting to carry out my official responsibility in the issuance of search warrants." Magistrate Krull also pledged that, " For the future, I will not as a magistrate act in that capacity in any matter which has any relationship to my representation of a client in my capacity as a lawyer."

The Commission charged Magistrate Krull with several violations of the Iowa Code of Judicial Conduct, specifically part III(B) of the application section, rule 51:1.2, and rule 51:2.11. The Commission conducted an evidentiary hearing on June 19. Magistrate Krull testified that he had changed his practices since signing the Arndt warrant and now considers it his duty to recuse himself, even as to former clients, if it might give rise to any appearance of impropriety. When questioned about missing the withdrawal deadline, he

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explained that when he was initially disqualified from representing Miller, he felt blindsided and was " kind of hot yet." When the Commission asked Magistrate Krull whether T.A.'s criminal behavior was relevant in the modification proceeding, Magistrate Krull answered, " I understand where the judge is coming from, and I can accept where the judge is coming from, and I've adopted that into my analysis of matters since." At the same time, Magistrate Krull continued to assert that T.A.'s criminal activity was largely his own responsibility as a sixteen-year-old boy and did not impact the custody determination. Magistrate Krull asked the Commission to distinguish Fremont, arguing that the two incidents were so far apart in time and circumstances that they do not constitute a pattern. Magistrate Krull called several witnesses, including local attorneys who testified he conducted himself fairly, knowledgeably, and with integrity and high moral character on the bench. These witnesses added that Magistrate Krull was always well prepared and competent and gave examples of Magistrate Krull recusing himself when necessary.

Magistrate Krull asked the Commission to impose no more than another private admonition. The Commission instead filed an application with this court to discipline a judicial officer pursuant to Iowa Code section 602.2106 (2011). The Commission recommends that Magistrate Krull receive a public reprimand.

II. Standard of Review.

" The supreme court may retire, discipline, or remove a judicial officer from office or may discipline or remove an employee of the judicial branch for cause . . . ." Iowa Code § 602.2101. " Our standard of review of a recommendation of judicial discipline by the commission on judicial qualifications is de novo." In re McCormick, 639 N.W.2d 12, 15 (Iowa 2002). The ethical violation of the judge must be established by a convincing preponderance of the evidence. Id. We give respectful consideration to the ...

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