Iowa State Supreme Court contender was sued over unjustified case Lawsuit alleged prosecutor abused his power in prosecution of city manager

By Ryan J. Foley

Associated Press

IOWA CITY, Iowa (AP) - An eastern Iowa county agreed to pay $50,000 to settle a civil rights lawsuit against its top prosecutor last month, days before he applied for a seat on the Iowa Supreme Court.

The payment settled a lawsuit that alleged Muscatine County Attorney Alan Ostergren abused his power during his unsuccessful two-year prosecution of former West Liberty city manager Chris Ward. Ostergren pursued misconduct and fraud charges against Ward that courts later ruled were unjustified.

Ostergren, 46, a Republican considered a strong contender for the Supreme Court vacancy, has been involved in several high-profile cases. He applied for the opening created by the retirement of Justice Daryl Hecht last month and disclosed the lawsuit against him as required in his application.

He and other candidates will interview with the judicial nominating commission this week. Republican Gov. Kim Reynolds will make the appointment from three finalists recommended by that panel. Her choice is expected to tilt the historically progressive court to the right at a time when a major abortion rights case is unfolding.

Ostergren was one of three finalists recommended last year by Republican Sens. Charles Grassley and Joni Ernst to be the top federal prosecutor in southern Iowa but was passed over by President Donald Trump. He narrowly won re-election in November in Muscatine County, where he's been the top prosecutor since 2011.

Ostergren has raised his profile by using his position with an organization representing county attorneys to file several friend-of-the-court briefs with the Supreme Court. Civil liberties advocates have been concerned by some of his actions including his support of limiting the voting rights of felons and his unsuccessful prosecution of an immigrant on identity theft charges.

The lawsuit that prompted the settlement accused Ostergren of filing unsupported criminal charges against Ward and taking actions to interfere with his new job as city manager in Vinton, Iowa. The lawsuit noted that Ward was one of three African-American city managers in Iowa but did not allege race was a factor in the prosecution.

Lawyers for the county argued that Ostergren's decision to prosecute Ward was "a reasonable mistake of law" and not malicious. Before the settlement, a judge dismissed several claims in the lawsuit but allowed others to proceed.

Ostergren filed charges against Ward after an audit alleged that Ward had overbilled residents of West Liberty, an eastern Iowa town of 3,700, by changing electricity rates in 2013 without city council approval. Ward argued that audit was wrong because a 1998 ordinance setting them at the higher level had not been repealed when the city council sought to lower rates in 2007. The increased revenue went to the city, not Ward.

After an investigation by the county sheriff, Ostergren charged Ward in 2015 with felony misconduct in office and fraudulent practices. Ostergren said then that he filed the second charge to give Ward the option of pleading guilty to a misdemeanor. A judge threw out the fraud charge as duplicative but allowed the felony charge to move forward.

After Ward appealed, the Iowa Court of Appeals took the rare step of ordering the felony charge dismissed in 2017. The panel concluded 3-0 it was an error to charge Ward with a crime given that the state conceded the 1998 ordinance had not been properly repealed and was therefore still enforceable.

Ward's attorney Alfredo Parrish called that ruling significant, saying he's only obtained a dismissal on appeal twice out of 125 cases. He said the lawsuit he subsequently filed against Ostergren on behalf of Ward was also rare.

Parrish argued that the lawsuit was an attempt to rein in Ostergren, whom he said was "unrestrained by concerns of justice and whose driving interest is in headline-grabbing prosecutions." The lawsuit alleged Ostergren abused his power by filing improper charges against Ward and a complaint alleging the Vinton city council held an illegal closed meeting to discuss the case.

Ward said he couldn't comment, citing a clause in the settlement barring both sides from "maligning, ridiculing, defaming or otherwise speaking ill of the other party."

Ostergren said the settlement was paid by the county's insurer and negotiated by its lawyer.

In his Supreme Court application, Ostergren portrayed himself as a restrained prosecutor whose experience in criminal law would be beneficial. He said one of the most difficult decisions he has to make is when to decline prosecution in cases "where I believe the crime happened but that there is not sufficient evidence."

"I do so because of my belief in the importance of objective decision making," he wrote. "As prosecutors we have an obligation to be sparing in the use of our powers."

Published: Mon, Jan 28, 2019

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