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December 10th, 2010

A Reformed Jurist?

By Nathan Tucker

The Iowa Supreme Court announced December 2nd that Justice Mark Cady will, temporarily at least, become Chief Justice when the term of current-Chief Justice Marsha Ternus ends December 31st.  Though the author of the Court’s decision in Varnum v. Brien (2009) which legalized same-sex marriage, Cady’s post-Election Day performance may indicate a dedication to restrained judicial activism.

Justice Cady was appointed to the state’s highest court in 1998 by Governor Branstad, making him, after Chief Justice Ternus, the longest serving justice on the Supreme Court.  The justices select their chief and, according to the Court’s press release, once the “three new justices are selected to replace Chief Justice Ternus, Justice Michael Streit, and Justice David Baker, and assume their duties, the court will hold another vote for chief justice to allow the new justices to participate in the selection.”

In Varnum, Justice Cady embraced an activist role for the Court, writing, for instance, that a statute must be declared unconstitutional “even though it may be supported by strong and deep-seated traditional beliefs and popular opinion.”  He argued that “citizens’ rights are [not] constrained to those previously recognized,” and that the “’Equal Protection Clause looks forward, serving to invalidate practices that were widespread at the time of its ratification and that were expected to endure.’”

But in the month since a successful anti-retention campaign ousted three of the justices who participated in the Varnum decision, Justice Cady has issued two dissents that indicate that he, alone among the remaining justices, may be willing to be selective with his activism.

As previously noted, Justice Cady dissented from the Court’s decision in Galloway v. Iowa (2010), released November 5th, in which it held that a field trip release form violated the Court’s nebulous notion of “public policy.”  In his dissent, joined by Chief Justice Ternus, Justice Cady rightly pointed out that:

“Courts are, at times, capable of deciding legal issues based on public policy. These times, however, occur when the public policy is clear and apparent.  Otherwise, public policy is best left to our legislative branch of government to decide as representatives of the people…If the subject of parental field trip waivers has surfaced in this state as a matter of public concern, the legislature can properly examine the issue and take any appropriate action.”

Justice Cady was also the sole dissenter from the Court’s decision in Iowa v. Wing (2010), released December 2nd.  Under Iowa law, a criminal indictment must be filed within forty-five days of an arrest, and in Wing the Court was faced with the question of whether this provision was triggered by Mr. Wing’s encounter with Davenport police officers.

Rather than defining an arrest according to its plain meaning, the majority held that an arrest occurs “when a reasonable person in the defendant’s position would have believed an arrest occurred.”  Using this vague definition unwarranted by the statute’s text and history, the majority concluded that Mr. Wing had in fact been arrested and, because the indictment had not been filed with forty-five days of his “arrest,” the charges must be dismissed.

Justice Cady’s dissent aptly criticized the majority’s definition of an “arrest,” noting that:

The speedy-trial rule was never intended to apply when a person is detained by police at a roadside encounter for suspected criminal conduct but released at the scene without being told he was under arrest, without being transported to the police station for processing and appearance before a magistrate, without being charged with a criminal offense, without being subjected to the other processes of the prosecution of a crime, and without any disruption and burden of a criminal prosecution.

Continuing, Justice Cady argued that:  “we are likely the only jurisdiction in the nation to trigger the requirement to file an indictment based on a case-specific, fact-intensive analysis of when police action arises to the level of an arrest…Not only is such a loose standard unnecessary and detached from the purpose and aim of the right to a speedy trial, it is largely unprincipled and capable of inconsistent results.”

Finally, Justice Cady accurately described how the “error by the majority can perhaps be best revealed by the unimaginable reversal of roles created by its analysis:”

The majority literally places the power to commence a criminal prosecution in the hands, or mind, of the accused.  Under the analysis of the majority, the reasonable belief of a person detained by police that he or she has been arrested for an unnamed criminal act forces the prosecutor to expeditiously bring an indictment against the person, even though the prosecutor never wanted to indict the person and the police never wanted to initiate a criminal prosecution.  This is the type of circumstances that results when rules and statutes become disconnected from their purpose and intent.

Justice Cady can hardly be described as an originalist, and his post-Election Day record isn’t perfect.  He joined the unanimous activist decisions in Hensler v. City of Davenport (November 12, 2010) and Simmons v. State Public Defender (November 24, 2010), both of which discovered policies and rights that simply do not exist.

Still, like any other justice, Cady should be applauded when he refuses to follow the activist ideology of his colleagues, even if that means he has to stand alone.  It is not completely out of the realm of possibility that one or more of the remaining Varnum justices may be encouraged to judge from the originalism mainstream and renounce the activist ideology embodied in that decision.

Through the carrot of praise and the stick of retention votes, it is conceivable that one of these justices may be reformed and rewarded with another term in office.

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About the Author

Nathan W. Tucker

Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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