Des Moines Tribune from Des Moines, Iowa • 4

DES MOINES TRIBUNE W4, May 30, 1979 4 Iowa ban on nude dancing in taverns upheld willing to share in the cost of terracing $36,760 in Ortner's case and $4,413 in Schrank's leaving $12,253 to be paid by Ortner and $1,471 by Schrank. The amounts to be paid by the fanners are "substantial, but not unreasonably so," said the court. The county soil conservation district had issued the orders to the two farmers after an adjacent landowner, John Matt, filed a complaint that his farm was suffering damage from erosion from his neighbors' farms. Ortner and Schrank also had argued that the law is designed "solely as a means of furthering the purely private property interests of a very limited class of landowners" rather than for the benefit of the general public. They based this argument on the fact that soil conservation districts generally are limited to acting on complaints of neighbors and may not act on the district's own initiative.

The court dismissed this argument, noting that the law does, in limited circumstances, allow soil districts to take independent action. lenged the law after being ordered by the county soil conservation district to terrace their land or plant it in pasture or hay to prevent erosion. The farmers argued that the cost of terracing about $12,000 for Ortner and $1,500 for Schrank amounts to taking their private property without just compensation. The option of planting their land to pasture would reduce the land's value, they argued. The court said the question is whether the collective benefits to the public of soil conservation outweigh the burdens on the individual property owner.

"It should take no extended discussion to demonstrate that agriculture is important to the welfare and prosperity of this state," said the court. The court said that the law is for the purpose of controlling soil erosion, and it is a "proper exercise" of the state's power. "While this imposes an extra financial burden on (farmers), it is one the state has a right to exact," said the court. "A law does not become unconstitutional because it works a hardship." The court noted that the state was concurring, Larson said the mistake took place on the date that the clerk's office could not return the money to Montgomery and not six months earlier when the money actually was paid to Brewer's attorney. Fisher murder verdict affirmed The Iowa Supreme Court affirmed Wednesday the 1975 murder conviction of Dennis Eugene Fisher, saying Fisher had waived his right to have an attorney present during police interrogation.

Fisher was arrested by Missouri police after he allegedly murdered Howard Miller in Delaware County, la. Fisher contends statements he made to police should not have been entered as evidence at his trial because he had not waived his right to an attorney. Fisher also maintained that the trial court improperly instructed the jury despite an objection by his attorney. The Supreme Court said, however, that Fisher had, in effect, waived his right to an attorney because he volunteered to continue with his interrogation even though he understood he could have an attorney with him during questioning. The court also ruled that Fisher's attorney's objection to the jury instructions was insufficient to prove the instructions were wrong.

Soil conservation law is affirmed Iowa's soil conservation district law, under which fanners can be compelled to take costly soil conservation measures, was affirmed Wednesday by the state Supreme Court "The state has a vital interest in protecting its soil as the greatest of its natural resources, and it has a right to do so," declared Justice Clay LeGrand. The 8-0 decision overturns Woodbury County District Judge James P. Kelley, who ruled that the soil conservation district law is unconstitutional. Two Woodbury County farmers, Arnold Ortner and Leo Schrank, chal ITS A DAISY! OUR BIG SALEFUL OF SUNSHINE STARTS THURSDA High Court reprimands Durham By Richard Doak The Iowa Supreme Court Wednesday reprimanded Iowa City lawyer Leona Durham for embracing and fondling a client at the State Penitentiary but turned down a recommendation that her license to practice law be suspended. "We do not find (Durham's) conduct to warrant so severe a penalty," said Justice Warren Rees in the 9 to 0 court decision.

The Supreme Court's Grievance Commission, based on a complaint filed by the Committee on Professional Ethics and Conduct of the Iowa State Bar Association, had recommended that Durham's license be suspended for one year. The decision involved visits by Durham to an inmate, Robert Loney, in the penitentiary at Fort Madison during the summer of 1977. Penitentiary officials had charged that Durham and Loney engaged in kissing and fondling in a visiting room, and one officer testified that Durham bared a breast for Loney and allowed him to rub her legs. Durham admitted occasional kissing and embracing but denied charges of fondling and other physical contact. The court said the evidence indicates kissing and embracing and occasional fondling took place but said there is no preponderance of evidence to show that Durham ever bared a breast.

The court issued its reprimand under a provision of the legal ethics that require attorneys to be "temperate and dignified." The court said whenever an attorney is appearing in a professional capacity there is an obligation to "comport himself or herself in a manner befitting a member of the bar." The court said Durham entered the penitentiary "in her professional capacity" as Loney's attorney. "We are thus unable to. accept (Durham's) argument that the incidents in question were solely of a private nature between consenting adults," wrote Rees. "She chose to visit as counsel and represented herself as such to the prison authorities." Still, the court said the proposed suspension is too severe. "No illegal act was committed, nor was any validly promulgated rule of the institution broken," wrote Rees.

"There was nothing inherently wrong with the respondent's activities during the visits. If the respondent had not been present in a professional capacity, no violation of the Code of Professional Responsibility would have occurred." The court added that Durham has "a good reputation for honesty and character" and that there is no question about Durham's competence' "Finding the occurrences in question to be rather isolated incidents of professional indiscretion which do not raise extensive doubts as to the respondent's fitness to practice law, we conclude suspension for any length of time to be unwarranted," the court said. The Iowa Supreme Court ordered a two-month suspension for Dubuque lawyer Joseph J. Bitter for three violations of professional ethics. They involved advancing funds to clients for purposes other than costs of litigation, neglecting certain legal matters entrusted to him and adding his name as a payee on a check to a client.

By Richard Doak and Evan Roth Iowa's law prohibiting nude dancing in taverns was upheld Wednesday by the state Supreme Court Citing a "somewhat lethal mixture" of nudity and alcohol, the court ruled 8 to 0 that the state's broad police powers allow it to ban nudity in establishments where alcoholic beverages are sold. The law against nudity in taverns, which took effect in 1978, bad been challenged by Ronald Bergeron, whose Three K.C. corporation operates the Bittersweet and Lusty Lady lounges in Council Bluffs. Bergeron had argued that the law deprived him of property without due process of law. Testimony indicated that before the law took effect each lounge took in about $1,000 per day, but revenue dropped to $200 per day after it took effect.

It is "indisputable that live exhibitions of human female genitalia and mammae do much to stimulate customer attendance and alcoholic beverage sales," said Justice Harvey Uhlenhopp in the court's decision. But the justice also cited problems in such establishments, such as fights between customers and the necessity to "bounce over-aroused patrons," and ruled that it is within the state's power to ban nudity in taverns. Bergeron also had argued that be was denied equal protection of the law since nudity is allowed in places that are primarily devoted to the arts or theatrical performances. Thus, a theater presenting Greek drama in the nude, with alcoholic beverages available, is within the law while the Bittersweet and the Lusty Lady presenting nude dancing girls are not, observed the court. But the court held that a "rational basis" exists to differentiate between theaters and taverns.

The court's ruling upheld a decision in Pottawattamie County District Court. Lost bail claim denial ruled valid May Montgomery of Omaha, did her friend Linda Brewer a favor in late 1976 when Brewer was arrested on a drug charge in Des Moines. Montgomery put up $2,000 for bail. The charges later were dropped and through convoluted circumstances the Polk County clerk's office returned the $2,000 to Brewer, rather than Montgomery. Montgomery didn't find out about the mistake until more than sit months later.

She sued the county under the Municipal Tort Claims Act, but the Polk County District Court denied her claim because the act said she had to sue within six months of the mistake. The Iowa Supreme Court upheld the lower court Wednesday in a 5-4 decision. The majority ruled that the statute of limitations under the Municipal Tort Claims Act runs out six months after the mistake allegedly is made and not six months after it was discovered, as Montgomery asserted. In his dissent, Justice Mark McCormick said the tort claims act does not specify when the six-month statute of limitation begins and so does not foreclose application of the so-called "discovery" rule. In another dissent by Justice Jerry Larson, with Chief Justice W.W.

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