IN THE IOWA SUPREME COURT. ) ) Brenda N. Papillon, ) Plaintiff- Appellee, ) ) V. ) SUPREME COURT ) Bryon L. Jones, ) Defendant-Appellant.

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1 IN THE IOWA SUPREME COURT ELECTRONICALLY FILED JUN 14, 2016 CLERK OF SUPREME COURT ) ) Brenda N. Papillon, ) Plaintiff- Appellee, ) ) V. ) SUPREME COURT ) Bryon L. Jones, ) Defendant-Appellant. ) ) APPEAL FROM THE IOWA DISTRICT COURT IN AND FOR POLK BRYON L. JONES PO Box 1063 Waukee, IA Appellant (Pro-se) COUNTY HONORABLE ARTHER E. GAMBLE. Trial Court Case CVCV APPELLANT'S FINAL BRIEF. 1

2 TABLE OF CONTENTS TABLE OF CONTENTS...2 TABLE OF AUTHORITIES...3 ROUTING STATMENT...4 STATEMENT OF ISSUES...4 STATEMENT OF THE CASE...5 Nature of the Case...5 Course of Proceedings...5 Facts...5 ARGUMENT POINT I...9 POINT II...14 POINT III...20 CONCLUSION...20 REQUEST FOR NON-ORAL ARGUMENT...21 CERTIFICATE OF COMPLIANCE...21 PROOF OF SERVICE / CERTIFICATE OF FILING

3 TABLE OF AUTHORITIES CASES STATE of Iowa V. Jeffery Lewis Spencer, (No ) Pollock v. Pollock, 154 F.3d 601, 610 (6th Cir.1998) Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985) Liteky v. U.S., 114 S.Ct. 1147, 1162 (1994) STATUTES IOWA CODE 808B IOWA CODE 808B.7 IOWA CODE 808B.8 ARTICLES Iowa Rule of Evidence

4 ROUTING STATEMENT This appeal should be retained by the Iowa Supreme Court under (2) (c), (d), and (f).this case involves substantial issues of first impression and presents fundamental issues of broad public importance regarding the District courts application and violation of IOWA CODE 808B.7 further more presents substantial question of enunciating or changing legal principles regarding the courts use of Iowa Rule of Evidence to violate IOWA CODE 808B.7. STATEMENT OF THE ISSUES. 1. Did the court error in it's admission of Evidence which on it's face value was deemed a violation of Iowa code 808B.7 2. Does Judge Gambles' failure of Judicial Duty warrant reversal or Remand. 3. Did the court error in its conclusion of law and verdict with regards to actual damages, punitive damages, and attorney fee's. 4

5 STATEMENT OF THE CASE Nature of the Case: Appellant Bryon L Jones appeals the judgment and order entered in District Court for Polk County. The Honorable Arthur E. Gamble presided at proceedings. Course of Proceedings: On January 15, 2015 Plaintiff filed a Petition at Law for Civil relief with the Polk County District court with claims of violation of Iowa Code 808B. Plaintiff claimed that Defendant violated 808B by making audio recordings of conversations in their joint home without Plaintiffs Knowledge prior to them splitting up and defendant moving out of the joint home. A Bench trial commenced on September 8, Upon conclusion of trial Judge Gamble so ordered actual damages of $2, solely based on the receipts provided by Plaintiff (exhibit (#6) of CVCV049150) at trial. Judge Gamble also ordered punitive damages of $18,000. and $16, for Attorney's fee's. Facts: Plaintiff and Defendant were in a relationship, had children together and lived together. In January 2014 that relationship came to an end, However they continued to live together for an additional six months. Prior to the relationship ending the two 5

6 attended a relationship counselor in attempts to save the relationship. During those counseling sessions Defendant claimed that plaintiff was being manipulative and untruthful about issues and occurrences. Frustrated about the lies plaintiff was telling, the defendant advised both the counselor and Plaintiff that he was going to record happenings within the home to bring back to these counseling sessions for discussions. The Plaintiffs response was Go ahead, I don't give $*&T. The defendant took that as permission. And began recording occurrences within the home with a sound activated audio recorder. Once the relationship had ended and Paternity proceedings had begun (DRCV047007), the Defendant advised his then attorney (Brian Webber Carr and wright law firm) that he may have recordings that he thought may be useful in their custody case. He advised his attorney what the recordings were and why they were made and asked if he would like them to present as evidence, Mr Webber said yes but because of the length of the recordings he only wanted the ones that would be useful in the custody case. At that point the defendant went home and skimmed through the recordings and edited out parts of the recordings that he thought might be useful in their custody case and presented them to his Attorney, in which his attorney presented them during discovery. At the commencement of the Paternity trial Mr Webber withdrew the audio recordings as evidence, mainly because on the recordings the plaintiff potentially implicated herself and a family member in a possible felony crime in the state of 6

7 Nebraska years earlier and he did not want to have to broach that subject. In January 2015 the Plaintiff filed her Petition at law (CVCV049150) claiming actual damages and requesting punitive damages. During the Civil trail (CVCV049150), The defendants Attorney (Tom Graves Graves Law firm). Objected to the admissibility of the recordings and transcripts of said recordings as per Iowa Code section 808B.7 (Tr. P. 20 L ( Jones Final.pdf ) The Plaintiffs Attorney, Brad Schroeder's response to Mr Graves objection was they needed to admit the recordings and transcripts in order to prove up damages and to prove Defendant used the contents of recordings to develop his own strategy for purposes of the temporary hearing before the judge in the DRCV case. However, said recordings had nothing to do with any damages. The only damages plaintiff was claiming were actual damages regarding a hotel stay, and Punitive damages. Also there was no temporary hearing in matters before the court regarding the DRCV case. Temporary matters were handled in mediation. Defendant believes Plaintiff's attorney made false statements to the court in order to get the recordings admitted. Also they were not played during trial. Plaintiff's claims for actual damages were for a hotel stay that she incurred during the last few months prior to the defendant moving from their joint home. Plaintiff claims that defendant made it hard for her to stay in the home because of an incident that happened when the Defendant was transcribing some of the audio recordings in 7

8 preparation to present to his attorney. The plaintiff claimed that the defendant was playing the recordings at a loud volume making it hard for her to sleep, even though the recordings were of such poor quality that he had to use headphones and software in order to somewhat get an accurate transcription. Mrs Papillon stated to the court that she had to move from the home, into a hotel until Mr Jones moved out of the home, and that Mr. Jones should be responsible for those hotel charges. The Day Mrs Papillon moved from the home and into a hotel, and Mr. Jones found out about her move, He offered to leave the home allowing her to come back to the home. An string between the two was presented to the court as proof that Mr Jones offered to leave the home if she wanted to come back, and Mrs Papillon refused. (Defendants exhibit B, CVCV049150). Judge Gambles admittance of the illegal recordings could also potentially cause further litigation in additional courts. On the recordings Plaintiff is heard admitting that she was aware of a possible crime that was committed several years ago and through research and previous conversations with the plaintiff, found there is a possibility that she never came forth with that information to authorities. The potential crime that was heard on the recordings involved the death of three teenage children in a drunk driving accident. (See audio recordings - Admission.mp3 ) (Douglas County Sheriffs, Omaha,NE Case D93964). Speaking as a laymen and not a legal expert, Appellant believes it to be a possibility that these recordings could potentially lead to further litigation and could possibly be used as grounds for New evidence in those matters. 8

9 ARGUEMENT Point I: Iowa Code 808B.7 Clearly states that recordings illegally made shall not be entered in as evidence. Shall the District court be free to make it's own interpretation of this code section. Does the Iowa Rule of Evidence out-weigh Iowa Code 808B.7 Iowa Code 808B.7 Contents of Intercepted Wire, Oral, or Electronic communication as evidence. The Contents or any part of the contents of an intercepted wire, oral, or electronic communication and any evidence derived from the wire, oral, or electronic communication shall not be received in evidence in a trial, hearing, or other proceeding in or before a court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a state, or political subdivision of a state if the disclosure of that information would be in violation of this chapter. Iowa Rules of Evidence Definition of relevant evidence. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. [Report 1983; November 9, 2001, effective February 15, 2002] 9

10 A. Standard of Review: Judicial review of trial courts admission of evidence under Iowa Code 808B.7 is for corrections of errors at law. Defense at time of trial Objected to the admissibility of audio recordings based on IOWA CODE 808B.7. (T. Pg 20 Line ( Jones Final.pdf )). However the court overruled defenses objections (T. Pg 23 Line 11 (Jones Final.pdf)), based on issues of liability to prove that the recordings were made, and damages to show what damages were caused by the recordings. Appellants stance is that there was not sufficient reasoning for the court to violate Iowa Code 808B.7 by admitting contents or any part of the contents of an intercepted wire, oral, or electronic communication and any evidence derived, and by their admission was unjust and in violation of Iowa Code 808B.7. Appellant also states that as per IOWA RULES OF EVIDENCE the admittance of said recordings had no tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence because the two issues at hand where Actual damages, which was only proven by a hotel receipt (Plaintiff's Ex.#6) and whether the recordings were legal or not. Neither party disputed the fact that the recordings existed. (Defendant's Answer to Petition) At time of objection to the admissibility of said recordings Mr. Schroeder 10

11 responded by pointing to the contents of the recordings to be able to prove damages: (Tr. P. 22 L.1-21) MR. SCHROEDER: Well, Judge, I think the content of them goes to what her damages are. How they were used certainly is at issue, and he used them based on what they contained. They contained sensitive information about her case strategy, discussions that she had with her lawyer, which you have already heard her testify to, Judge, was directly used against her in the DRCV proceedings. Further, he -- the manner in which he used the recordings and the contents therein goes directly to the issue of what she just testified to, which is when she came to learn of their existence and what it was that he was recording, that's what necessitated her moving out, and it gets to the issue of punitive damages, Judge, exactly what it was that he was recording. If she was talking with somebody about recipes that were being exchanged, I think the Court would view that very differently than the types of things that were being discussed, and that he was then giving to Sheila Pottebaum, threatening to post on the Internet and elsewhere. Defendant states that plaintiff''s attorney made accusations as to the contents of the recordings in order to get them admitted as evidence, knowing full well that discussions with her lawyer were nowhere contained within these recordings and that the recordings also had nothing to do with her actual damages, because they contained nothing regarding her moving from the joint home as stated in her actual damages claim, and also in her testimony to the court (Exhibit Trial transcript 9/8/15 Page 52 Line 20,21,22) See Furthermore, said recording were withdrawn from evidence prior to 11

12 commencement of the paternity trial, so they in no way could have affected the paternity case. Additionally, during the objection of admittance, the court ruled with: (Tr. P.23 L.11- P.24 L.24) THE COURT: Well, the Court has reviewed Iowa Code Section 808B.7. The Court believes that that statute is intended as a shield to protect a person whose conversations have been surreptitiously recorded against the introduction of those recordings in litigation, such as the child custody litigation at issue in this case. The Court does not believe that that code section is intended to prohibit a person whose recordings -- excuse me -- whose conversations have been surreptitiously recorded from introducing those recordings into evidence in a lawsuit for damages resulting from the recordings. The introduction of those recordings is relevant both to issues of liability to prove that the recordings were made, and damages to show what damages were caused by the recordings. Relevant evidence is admissible under the Iowa Rules of Evidence. This evidence is relevant under Rule The Court strike that. The record should reflect that the Court is performing a balance of prejudice versus probative value as required by Rule The Court finds that the probative value of this evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the finder of fact, or considerations of undue delay, waste of time, or needless presentation of cumulative evidence. In other words, the Court believes that it is necessary for the plaintiff to introduce these recordings in order to prove up her case. Therefore, the defendant's objection is overruled. I think it would be appropriate for the transcript to be received, subject to a sealing order at Level 3 under the EDMS system, and the same for the audio. That will be received in its original format, but will be maintained by the clerk at a Security 12

13 Level 3, and the Exhibit Maintenance Order will show that. So Exhibits 4 and 5 are received, and you may proceed. The court stated in it's over-ruling that The introduction of those recordings is relevant both to issues of liability to prove that the recordings were made, and damages to show what damages were caused by the recordings. (T. Pg 23 Line 24 Pg24 Line 2.) The fact that the recordings were made was never objected to throughout the proceedings, (See Defendants answer to Petition.) so defense believes that can't be a reasoning for admission, And to show what damages were caused by the recordings. The plaintiff's only actual damages were for a hotel stay, which was only supported by the hotel receipts provided the court. Also in which that topic or anything to do with it was not contained within those recordings and never pointed to on any of the recordings at trial, In-fact NOTHING contained within the recordings was ever pointed to by plaintiff or Defense at trial. In the Case of STATE of Iowa V. Jeffery Lewis Spencer, (No ) where the parent of a sexually abused child recorded telephone conversations between the child and the abuser, the District court upheld 808B.7 by suppressing the audio recordings between the two, because neither side of the conversation had consented. However the supreme court reversed and case remanded for further proceedings. However solely based on the vicarious consent doctrine as outlined in Pollock v. Pollock, 13

14 Pollock v. Pollock, 154 F.3d 601, 610 (6th Cir Which the vicarious consent doctrine, finding that as long as the guardian has a good faith, objectively reasonable belief that the interception of telephone conversations is necessary for the best interests of the children in his or her custody, the guardian may vicariously consent to the interception on behalf of the children ) As this case was a reversal but solely based on the Vicarious consent doctrine, otherwise suppression would have been upheld. The ultimate question in this argument is which takes precedence Iowa Rule which said recordings contained no relevant evidence as it pertains to Iowa Rules of Evidence OR Iowa Code 808B.7 as they are contradictory and the evidence has proven that said recordings had nothing to do with any actual damages or the fact that they even existed, that issue was never debated or opposed by either side. (see Defendant's Answer to Petition). Point II: Appellant states Judge Gambles' order of actual damages applied for a Hotel stay was in blatant and reckless error that Plaintiff incurred and the $18,000 punitive damages was unjust. 14

15 IOWA CODE 808B.8 (1)(b)(1): Actual damages, but not less than liquidated damages computed at the rate of one hundred dollars a day for each day of violation, or one thousand dollars, whichever is higher. A. Standard of Review: Judicial Review of District courts application of actual damages and punitive damages for correction of errors of law and Abuse of Discretion. Plaintiff believes that Judge Gamble errored in application of actual damages as per Iowa Code 808B.8 allows. Judge Gamble applied actual damages as per an incident that plaintiff willingly chose to incur and not as per allowed by the Iowa Code the plaintiff was suing under. FURTHERMORE, I. Plaintiff claimed that her Actual Damages incurred were due to a move-out of their joint home and was to Avoid Continued interception of her private oral communications (Appellee's Brief Pg.10), However at trial, Plaintiff states : After a few days I started trying to find another place to live because I couldn't sleep (Tr. P.28 L.2). 15

16 But then also in her communications between her and the defendant she states: I can no longer live under the same roof as you due to your behavior since mediation and Based on your recent behavior, my lawyer recommended that I move to a safer environment (Defendant's Exhibit B). Also Appellant Points to the dates of the Move-Out, March 2014, (Plaintiff's Exhibit #6), and the date she learned of the recordings existence, May-August 2014 (Tr. P.29 L.16-18). Therefore her claims of Actual Damages are false. Appellant states that Appellee had NO Actual Damages due to the recordings so she used the move-out as an incident of Actual Damages, And the Appellant states to this court that Plaintiff and her Attorney's are very aware of this fact, and that by telling this court and the district court that her Move was to Avoid Continued interception of her private oral communications is a false statement to this court, and the District court. Appellant states that Judge Gambles inability to clearly review the evidence that he was provided should be considered a failure to perform his judicial function by a judge, and therefore with regards to Judge Gamble not reviewing this evidence This court should consider those actions a Fraud upon the court and therefore void Judge Gambles orders and remand this case for retrial. Appellant now points to (Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985) which states: 16

17 "Fraud upon the court is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury.... It is where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function --- thus where the impartial functions of the court have been directly corrupted." Appellant also points to U.S. Supreme court (Liteky v. U.S., 114 S.Ct. 1147, 1162 (1994)) Which states: Disqualification is required if an objective observer would entertain reasonable questions about the judge's impartiality. If a judge's attitude or state of mind leads a detached observer to conclude that a fair and impartial hearing is unlikely, the judge must be disqualified." II. On the issue of Punitive damages, Appellant believes $18,000 for punitive damages is excessive and burdensome when Defendant believed he had permission to record in the first place. Also Defense stated at trial that the only ones to have ever heard said recordings or have access to them are the individuals involved in these referenced court proceedings. No outside person or entity had heard or were aware of said recordings. Plaintiff has 17

18 confirmed at trial that these recordings have not damaged her in any way. (transcript 9/8/15 pg 63) As Appellant clearly stated in his Reply Brief, District Court Judge Gamble clearly made judgment with prejudice and is evident in the fact that he did not clearly review all the evidence, he allowed / admitted potential Illegal recordings into a trial when there is clear Iowa Code preventing it from being admitted, furthermore it is evident in his judgment and findings of facts, with only giving yes and No answers (see District court order). So therefore Appellant states Gamble could not have given a fair trail and judgment Additionally, As stated by the Appellee in her Brief (Pg.29): Two other considerations that must be made when determining the reasonableness of a punitive damages award are [1] the disparity between the actual damages and the punitive damages, and [2] the difference between the punitive damages awarded by the [trier of fact] and the civil penalties authorized or imposed in comparable cases. See Id. at (citing Campbell, 538 U.S. At 418, 123 S.Ct. at 1520, 155 L.Ed.2d at 601. Appellant quotes Appellee on her citing of the two other considerations that must be made when determining the reasonableness of a punitive damages award are 18

19 [1] the disparity between the actual damages and the punitive damages. Appellant states that the Actual damages awarded based on the reasoning by both the appellee and the district court judge have already been proven to be a false, mistaken and prejudice award...being that Brenda had already been moved out of the house prior to having learned of the recordings. So therefore the actual damages should be $0. AND.. [2] the difference between the punitive damages awarded by the [trier of fact] and the civil penalties authorized or imposed in comparable cases. See Id. at (citing Campbell, 538 U.S. At 418, 123 S.Ct. at 1520, 155 L.Ed.2d at 601. As Appellee stated in her Brief and Appellant confirms: This court has only dealt with the interpretation of Iowa Code Section 808B.7 in one other civil damages case, and Appellant states that case was in no way similar in it's handling, facts, credibility of appellee and counsel, or any other manner. Appellee points to a case Wolf v. Wolf, however Appellant states that case in NO WAY is similar in ANY aspect. Therefore Appellant states the Punitive damages should be either reversed or remanded for further action. 19

20 POINT III Appellant believes Judge Gamble errored in calculations of Attorney's fee's in this matter. Mr. Schroeder filed a Fee Affidavit on or about 9/08/2015 (Plaintiffs Exhibit #8) that included fee's for filings, research, correspondence...etc that pertained to a prior case that had been filed, dismissed, then refiled. Plaintiff confirmed these facts at trial (Tr. pg 50 Ln16 pg 53 Ln 9 9/8/15 ). Appellant does not believe fee's that pertain to a prior filing should be awarded in a separate and later case, not to mention in a case where there were no actual damages, however Appellee and her counsel lied to the district court to create actual damages. However, but given all the clear errors, violations of code, false statements to both this and the district court, and the fraud upon the court, it's clear why Judge Gamble ordered them, but had Judge Gamble performed to his judicial duty, the order would have been different. CONCLUSION Defendant states that for all the reasons contained within this brief he respectfully requests that this court reverse District Court judgment and remand the case for new trial. 20

21 REQUEST FOR NON-ORAL ARGUMENT Appellant request non-oral argument. CERTIFICATE OF COMPLIANCE WITH TYPEVOLUME LIMITATIONS, TYPEFACE REQUIREMENTS AND TYPE-STYLE REQUIREMENTS 1. This brief complies with the type-volume limitation of Iowa R. App. P (l)(g)(l) or (2) because: [X] this brief contains 4,130 words, excluding the parts of the brief exempted by Iowa R. App. P (l)(g)(l). 2. This brief complies with the typeface requirements of Iowa R. App. P (l) (e) and the type-style requirements of Iowa R. App. P (l)(f) because: [X] this brief has been prepared in a proportionally spaced typeface using OpenOffice Writer in Times New Roman Style, font 14 point. Bryon L. Jones Pro se APPELLANT PO Box 1063 Waukee, IA bryon.jones@gmail.com Dated: 6/14/16 21

22 PROOF OF SERVICE AND CERTIFICATE OF FILING. I certify that on June 14, 2016, I served this document via EDMS to all other parties in this matter. Bryon L. Jones Pro se APPELLANT PO Box 1063 Waukee, IA bryon.jones@gmail.com 22