Iowa State Sen. Joni Ernst (R): “Congressman, you threatened to sue a neighbor over chickens that came onto your property. You are talking about bipartisanship. How do we expect as Iowans to believe that you will work across the aisle when you can’t walk across your yard?”

Rep. Bruce Braley (D-Iowa):  “That’s just not true. It’s just not true. I never threatened to sue anyone. It’s not true.”

exchange in televised debate for Iowa’s open Senate seat, Sept. 28, 2014

What happened after the chicken crossed into Rep. Bruce Braley’s yard?

Believe it or not, that’s an issue in the tight race for Iowa’s open Senate seat. Our colleague, Philip Rucker, already wrote a front-page article about the controversy back in August. But the issue emerged again when Braley’s challenger, Joni Ernst, seized on the incident to aim a well-crafted barb during their recent debate.

Republicans have used the chicken dispute, which took place in idyllic Holiday Lake in Brooklyn, Iowa, to portray Braley as an out-of-touch trial lawyer who won’t even deign to speak to his neighbor about a problem, such as in an attack ad by American Crossroads. Braley insists the whole incident has been blown out of proportion.

From a fact-checking perspective, the issue cannot be entirely settled because a lawyer who paraphrased a conversation with Braley as suggesting a hint of possible legal action will not respond to e-mails or phone calls, for the understandable reasons of client confidentiality. It’s his letter, which was leaked to the TheIowaRepublican.com, that forms the basis for the purported threat to sue.

The facts

Pauline Hampton, a registered Democrat, is a neighbor of the Braleys in Holiday Lake. She is a mental-health therapist, and in 2012, she said in an interview, she acquired some hens as therapy animals for children. She says she had no idea that the Braleys were upset about the hens wandering onto their property until earlier this year. She offered some eggs to Braley’s wife, Carolyn, and she refused to take them. “We’ve filed a formal complaint against you,” Carolyn Braley told Hampton.

It turns out that other neighbors also were not happy with the hens, and on May 8 the Holiday Lake Board of Directors told Hampton to fence in the chickens, according to the board’s minutes. But that solution apparently was not acceptable to Braley, who a week or so later called Thomas Lacina, the outside lawyer for the board.

According to Lacina’s account, delivered by e-mail to the board on May 29, Braley “was complaining about the lack of action by the Holiday Lake Board as to the chickens at Holiday Lake. The implication from Mr. Braley was that he wants to ‘avoid a litigious situation’ and believes strongly that chickens are not pets and should not be permitted at Holiday Lake.”

(There’s a line in the Lake Association bylaws that says “no animals or birds, other than household pets, shall be kept on any lot in said Subdivision.” As early as June 2013, board minutes show questions had been raised about whether the chickens could be considered pets, but the board noted that there had been no formal complaint, so no action was taken.)

Lacina also included a six-page legal memo in which he had carefully researched the Lake Association’s covenant, relevant laws in Iowa and also legal cases concerning “pets” in other states. “In conclusion, I think the position reached by the board is supportable under the specific facts,” he said. The board instructed him to write Braley, and on June 3, Lacina wrote a letter saying the board’s decision to allow Hampton to keep her chickens was reasonable. “Indeed, the opposite decision might be highly contestable in court,” he added.

An outside lawyer doesn’t write such a memo without instructions from his or her client. William Jenson, the board’s vice president, said the board asked Lacina to research the legal implications of its position after Braley placed the call. Any such action requires a majority vote of the board.

The claim that Braley threatened a lawsuit hinges almost entirely on Lacina’s recounting that Braley said he wanted to “avoid a litigious situation.” It’s important to remember that, in lawyer code, it does not really have that literal meaning. It’s a way of hinting at legal action without directly saying so, thus giving the speaker plausible deniability.

We sent e-mails and left messages for Lacina, asking whether this was indeed a direct quote from Braley. But Lacina won’t elaborate on his letter because he would be violating client confidentiality, Jenson said. The Braley campaign did not respond to a request to confirm whether he had actually used the phrase “litigious situation.”

The Fact Checker contacted all of the board members who received Lacina’s e-mail, but only two would speak for the record. William F. Nagel said that “we were led to believe” that Braley had threatened a lawsuit, based on “the response we got from our lawyer.” He said he was still mystified by Braley’s failure to simply discuss the situation face-to-face with Hampton.

“There’s no reason to threaten legal action,” Nagel said. “Just be neighborly.”

Jenson, the board vice president, said: “When I read the letter, it meant that Mr. Braley said it could mean a litigious situation. But I never seriously considered that it could come to that.” Jensen did not believe Braley was threatening the board, but that he was considering suing Hampton. “It would have been a civil matter between two neighbors,” he said. “My advice to Bruce would have been: get a dog.”

So, clearly at least some members of the board believed Braley was at least hinting at taking some sort of legal action. Lacina, the lawyer, also treated the call with great seriousness. After all, Braley is not only a member of Congress but a former president of the Iowa Trial Lawyers Association. One can easily view Lacina’s memo as the work product of an attorney who was preparing for the threat of litigation.

For her part, Hampton also thought Braley had threatened a lawsuit — but against the board, not her. Ernst’s accusation “would be partially true,” Hampton said. “He threatened to sue the Holiday Lake Association. So he would be suing all the members, including me. And himself.”

She also didn’t understand why Braley or his wife did not speak to her first, given that they have been neighbors for 15 years. She said that when she filed a complaint with the board against a neighbor for burning tires in a wood burner, she took that step only after “many conversations with him” to explain that he was violating pollution regulations.

Braley, as shown in the exchange above, adamantly denied he made any kind of threat to Lacina, even if that was the impression that board members received.

“At no time did I ever — ever — threaten a lawsuit or threaten litigation. Never. And anybody who says that I did is not being truthful,” he told The Washington Post in August. “This was a personal dispute between my wife and a neighbor because chickens were on our property all the time.”

One other thing to consider: TheIowaRepublican.com is a Web site that offers “news for Republicans, by Republicans.” So the fact that the story first surfaced in an openly partisan news source might raise some doubts.

“Braley threatened litigation over chickens at Holiday Lake vacation home,” read the headline over the article — written by a reporter who a week later became communications director for the Iowa Republican Party. The Ernst campaign pointed to that article as a source for her statement that Braley threatened litigation. But the one-sided account reads more like a news release by a campaign than a neutral news article.

In the meantime, the Braleys apparently have not returned to their vacation home since the incident took place. “I don’t think Bruce and his wife have been down all summer,” Nagel said. “There’s grass growing in the driveway.”

The Pinocchio Test

Ernst made a very definitive claim — that Braley threatened to sue his neighbor. That cannot be definitely proven, but certainly Braley’s neighbors perceived a threat of litigation, either against the Holiday Lake board or Hampton. The most compelling piece of evidence is Lacina’s legal memo, which not only quotes Braley as hinting at possible legal action but then treats that hint with great seriousness.

That’s still not enough to fully validate her claim. We wavered between One and Two Pinocchios but ultimately settled on One. Braley clearly said something to Lacina that made the board concerned enough to validate the legal basis for their initial decision. Braley probably would have saved himself a lot of grief if he had first walked over to his neighbor’s house to discuss his concerns about the chickens.

One Pinocchio

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