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December 3rd, 2010

Judicial Whole Cloth

By Nathan Tucker

Despite the anti-retention campaign that successfully ousted the three Iowa Supreme Court justices who stood for a retention vote this year, judicial activism remains unabated on the state’s highest court.  Belligerently rejecting the proposition that it should confine itself to the Constitution as originally publicly understood, the Court has, in the month following the November 2nd election, issued three opinions that reveal the only limitation to its activism is its imagination.

As noted earlier, in Galloway v. Iowa (2010), a decision released on November 5th, and Hensler v. City of Davenport (2010), a decision handed down on November 12th, Iowa’s activists justices thumbed their noses at Iowa voters when they discovered policies and rights that simply did not exist.

Unfortunately, that trend continued in Simmons v. State Public Defender (2010), a decision released the day before Thanksgiving.  Kent Simmons , a private attorney in Davenport, successfully represented two criminal defendants in their appeals and submitted claims of $3,980 and $4,040, respectively, for his work.  Unfortunately for Simmons, he was appointed at state expense and, pursuant to his contract with the State Public Defender’s Office, his fees were caped at $1,500 each.

Simmons challenged this cap in court, where the trial judge upheld the provision as a valid administrative rule that did not violate Iowa code.  On appeal, the Iowa Supreme Court agreed, finding that:

Looking solely at the language of the various statutory provisions, this appeal appears to present a straightforward question.  The statute authorizes the state public defender to establish fee limitations for certain categories of cases.

Acting pursuant to this statutory authority, the state public defender established fee limitations…[and] then entered into contracts with Simmons that incorporated the fee limitations.

[The statute] further provides that the state public defender has the authority to deny claims “not payable” under the contract and that any such denial shall be affirmed on review unless it “conflicts with a statute or an administrative rule.”   [citations omitted]

Undeterred, however, the justices held that, under the Iowa Constitution, “the state has an affirmative obligation to establish a system of indigent defense that is reasonably likely to provide for zealous advocacy on behalf of the criminal defendant.”

Article 1, Section 10 of the Iowa Constitution, which lists the rights of those accused of a crime, provides that:  “In all criminal prosecutions…the accused shall have a right…to have the assistance of counsel.”  The Court, embracing “well-accepted legal doctrines”, held that this right entitled indigent defendants to the effective assistance of counsel at state expense.  Though perhaps a good public policy to be enacted by the legislature, it is neither mandated by the text or history of either the Iowa or U.S. Constitutions.

Building on this activist premise, the Iowa Supreme Court went even further and became just the third state supreme court to conclude that a fee cap could, because of its “profound chilling effect…substantially undermine the right of indigents to effective assistance of counsel in criminal proceedings.”  In other words, the Court not only discovered a right to counsel at sate expense, but to a well-paid court-appointed attorney.

In doing so, it overturned its own fourteen year old precedent in Lewis v. Iowa Dist. Ct. (Iowa 1996), in which it had held that such claims “have not been [found] tenable unless the court-appointed counsel is totally uncompensated or unless the bar is required to assume the entire burden of indigent defense.”

Instead, the Court in Simmons held that “a lawyer may mount a successful challenge by showing that the fee restrictions, if enforced, would have a substantial chilling effect on the constitutional rights of criminal defendants.”  The Court, feeling generous, opted not to require proof that the defendant was actually prejudiced by the fee cap in any way.

The Court intentionally discovered this new right under the Iowa Constitution alone, knowing that the U.S. Supreme Court has interpreted the 6th Amendment to the U.S. Constitution much more narrowly.  The U.S. Supreme Court has only recognized claims in which “counsel’s performance was ‘deficient,’ and that the deficiency caused actual prejudice” to the defendant.  WIth only one exception, federal courts have repeatedly rejected arguments that a statewide system of indigent defense, rather than the individual performance of defense counsel, may be inadequate under the 6th Amendment.

Brushing aside “separation-of-powers concepts,” the justices held that a court cannot be “constrained any time a ruling had fiscal impact,” even if it becomes an “enormous unfunded mandate imposed upon the states.”  In the name of protecting a constitutional right that does not exist, the court has reserved to itself the power to determine how much Iowa taxpayers will have to pay to ensure defendants have well-paid attorneys.  While never defining how much compensation may, in its view, be constitutionally sufficient, the Court specifically noted that it may be more than a “reasonable fee” and that “it is peculiarly within the judicial province” to determine what that figure may be.

While the Iowa Supreme Court’s decision legalizing same-sex marriage in Varnum v. Brien (2009) is certainly its most notorious example of judicial activism, the Court’s post-election performance has shown that it will continue to engage in this kind of behavior unless constitutional judicial reform is established that exposes and prevents activists from assuming the bench in the first place.

Until then, the Iowa Supreme Court appears unwilling to relinquish its self assigned role as societal shepherds.

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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

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