Every two years since 1964, Iowa voters have been asked whether or not their judges should be retained. In those 46 years, Iowans have almost always voted to retain the judges who appear on the ballot. Only four judges have not been retained. That might change this year because Iowans are frustrated with the Iowa Supreme Court following its decision in Varnum vs. Brien, a case that brought gay marriages to Iowa.
The Iowa State Bar Association and their allies have pleaded with people to keep politics out of the courts. However, the mere fact that the judges are periodically on a ballot makes it almost impossible for it not to be political. It also seems a little odd and disingenuous that the Bar Association proclaims that Iowa’s merit system is the best in the country, yet rails against anyone who wants to use that system to remove a judge.
Like many, I’m confused by the Bar Association’s position. The current system that we have in place allows all Iowa voters to decide whether or not any judge should be retained. Voters can base their decision, whether it’s an educated decision or not, on whatever reason they choose. If the Bar Association has a problem with that, they should advocate for a different system.
As stated earlier, the Bar Association doesn’t have a problem with the system. What they have a problem with is that there is an organized campaign that is making a case against Chief Justice Marsha Ternus and Justices Michael Streit and David Baker.
The liberal left and the Bar Association are correct in their belief that the campaign to oust the three justices who are up for retention stems mostly from the court’s unanimous decision in the Varnum case. However, their belief that those of us who are voting “no” on the retention question think that the judges should take public sentiment into account before issuing an opinion is misplaced.
It is my belief that the anti-retention mood in Iowa has less to do with the Supreme Court than it does with the Iowa legislature and Governor Chet Culver.
The issue of gay marriage has been a hot potato for years. Republicans failed to pass a marriage amendment through the state senate when they held the majority in 2004. Social conservatives were upset with the senate’s inability to pass the amendment, and it hurt Republicans in the next election. Republicans lost the majority in the State Senate after the 2004 elections, and they lost the Iowa House in 2006.
Under Democratic control, both houses of the legislature were unwilling to do anything about the gay marriage issue. In 2005, Lambda Legal filed a lawsuit on behalf of six same-sex couples in Polk County. With that, the gay marriage issue was thrust to forefront. Instead of acting on the issue, the legislature was complacent and decided to see how the court ruled. In 2007, when the Polk County District Court ruled in favor of the same-sex couples, the legislature could have intervened, but again, they chose to let this issue work its way to the Iowa Supreme Court. Once the Supreme Court upheld the lower court’s decision, Governor Culver and the legislature claimed that the issue was settled.
What is fueling the public’s willingness to oust these three justices isn’t the court decision, it’s that the retention vote is the first time, and maybe the only time, that they will be allowed to weigh in on this important issue. Had the legislature or executive branch been willing to let the people vote on the issue of gay marriage, I don’t think the anti-retention campaign would have taken off like it has.
Last Thursday, Brian T. Fitzpatrick, an associate professor of law at Vanderbilt University, participated in a panel discussion organized by the Iowa Federalist Society. The panel focused on Iowa’s judicial selection system and the role of retention elections.
Fitzpatrick told the gathering of more than 60 people that the retention vote system is consistent with the original intention of the framers of the Constitution. While it is perhaps impossible to get politics out of the judiciary, Fitzpatrick said the purpose of a merit system of judicial appointment is to remove partisanship. He pointed out that the work of judges, especially appellate and supreme court judges, involves not only interpreting law, but also setting public policy. According to Fitzpatrick, it is perfectly acceptable for the electorate in a democracy to decide whether or not to retain judges based on the public policy considerations contained in their rulings.
William Brown, a Des Moines attorney, noted that the judicial retention vote is not needed to address problems with incompetent judges. There are other procedures in place that serve that purpose. Instead, the retention vote is a way Iowans can directly remove a judge if they do not approve of the decisions handed down. Brown said, “The only input voters have on judicial selection is retention.”
It is also noteworthy that the Iowa Bar Association’s Plebiscite, which is a survey of attorneys about the judges up for retention, shows that the three Supreme Court Justices have some of the lowest retention scores since the survey began.
Typically, most judges receive scores in the mid to upper nineties. Baker, Streit, and Ternus didn’t even break 84 percent. In fact, Ternus’ 72 percent on the retention question is the lowest of any Supreme Court Justice in at least the last decade. Keep in mind that these scores are not coming from crazy conservative activists. They are coming from members of the Iowa Bar Association.
There are other reasons why voting “no” on the retention question is an appropriate action for Iowa voters to consider. While the anti-retention campaign has focused on the Varnum case, another controversial Iowa Supreme Court ruling deals with the court’s decision to overrule the murder conviction of Rodney Heemstra.
Heemstra admitted to authorities that he killed his neighbor, Tom Lyon, in January of 2003. Heemstra was convicted by a jury of first-degree murder. In 2006, the Iowa Supreme Court overturned the lower courts ruling. The Supreme Court ruled that the felony murder rule could only be used if a felony was committed independently of the murder. Since pointing a gun at Lyon wasn’t a felony, the court ordered a re-trial and Heemstra was convicted of a lesser charge. Rodney Heemstra, an admitted murderer, is already a free man.
Another questionable Iowa Supreme Court decision deals with gambling in the state. In 1994, the legislature voted to allow dog tracks the ability to operate slot machines at their facilities. In doing so, the legislature placed one condition on the slot machines at these racetracks – that they would pay a higher tax rate to the state than the riverboats paid.
The Iowa Supreme Court usurped the power of the legislature when it ruled that the tax violated the state’s equal protection clause because the state had no legitimate purpose for taxing the same slot machines differently. In the Court’s initial ruling, it said that they were going to interpret the state’s equal protection clause the same way the federal equal protection clause is interpreted. Since they invoked the federal equal protection clause, the case could be reviewed in the federal court system, which it was.
The United States Supreme Court found that the Iowa Supreme Court misinterpreted the federal equal protection clause and overruled the Iowa Supreme Court ‘s decision. The federal Supreme Court ruled that the state had a rational basis for making a distinction between land-based and water-based casinos.
When the case was remanded to the Iowa Supreme Court, the Iowa Court all of the sudden had a change of heart. It decided that its ruling was solely based on the Iowa constitution, not the federal constitution. Therefore, Iowa’s equal protection clause could be interpreted differently, contrary to its first decision in the exact same case.
This set a precedent for allowing the court to interpret the Iowa’s equal protection clause differently than the federal equal protection clause. This was necessary for the Court’s finding in the Varnum case since the Eighth Federal Circuit had already ruled that the federal equal protection clause was not violated by state regulations mandating one man, one woman marriage.
There are also personal reasons why Chief Justice Marcia Ternus shouldn’t be retained. In the four instances where Iowa judges have failed to be retained, each of them had personal issues. Last year, an underage beer party was hosted at her home. This calls in to question her judgment. It also doesn’t help that her husband, who is also an attorney, was arrested and convicted of charges related to the incident.
The Iowa State Bar Association and a sympathetic news media want people to believe that voting “no” on the retention of these justices is a radical position. That couldn’t be further from the truth. As mentioned here, there are a number of reasons that should factor in to whether or not Baker, Streit, and Ternus should be retained.
Maybe the Iowa State Bar Association should have joined the thousands of Iowans who wanted their legislature to act on the issue of gay marriage if they didn’t want politics to play a role in the judicial retention process. Governor Culver and the current Democratic controlled legislature have given the people of Iowa no other outlet to vote on the issue of issue of marriage.
With no other option available to them, Iowa voters will make a statement about gay marriage on Election Day, and it could cost three justices their jobs.
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