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November 14th, 2010

Slow Learners

By Nathan Tucker

The Iowa Supreme Court’s decision legalizing same-sex marriage in Varnum v. Brien (2009) was hardly the first example of judicial activism by the Court, nor does it seem like it will be the last.  The goal of the anti-retention campaign to oust those justices on the November ballot was, in part, to send a message that justices who strayed from the Constitution will be fired.  It is less than two weeks from Election Day, but it doesn’t appear that a majority of the justices learned that lesson.

On November 5th, the Supreme Court released its decision in Galloway v. Iowa (2010), in which it held a field trip release form violated public policy.  Taneia Galloway attended a field trip in July of 2005 with a youth outreach program organized by the University of Northern Iowa and the State of Iowa.  While on the trip, Galloway was injured when she was struck by a car while crossing the street.

Before she went on the field trip, Galloway’s mother signed two documents entitled “Field Trip Permission Form” and “Release and Medical Authorization.”  Galloway filed suit against the State of Iowa, but the trial court dismissed the case based on the signed release forms.

On appeal, the Iowa Supreme Court determined that the release forms violated public policy because “children [needed to be protected] from [the] improvident actions of [their] parents.”  The legal doctrine of public policy is loosely defined as prohibiting those things which are injurious to the public or the public good.

The problem lies in the fact that if this policy is not reflected in a statute, public policy simply becomes a legal fiction which self-assigns judges the legislative task of determining, on their own, what constitutes public policy.  And in this particular case, the Iowa legislature had not given any indication that release forms violated the public good.

The Court recognized that, without this legislative guidance, they are faced with the “challenging nature of identifying which societal values are properly included within the purview of ‘public policy.’”  But, undaunted, the Court justified its free-wheeling policy decision by simply noting that “we have [previously] considered and weighed public policy concerns when deciding important legal issues.”

Justice Cady, joined by Chief Justice Ternus, dissented, rightly pointing 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.”

On Friday, the Supreme Court released its decision in Hensler v. City of Davenport (2010), in which it struck down Davenport’s “Parental Responsibility” ordinance passed in 1999.  In order to “preserve the peace, safety, health and welfare of the citizens of Davenport, Iowa, and the city’s visitors and guests,” the ordinance required a “parent of a minor…to exercise reasonable control over said minor” or face, after repeat offenses, a monetary fine.

Anne Hensler was cited twice under this ordinance and filed suit in district court, arguing that it “violate[d] her substantive due process rights [under the 14th Amendment] by interfering with her fundamental right to parent.”  The 14th Amendment to the U.S. Constitution prohibits States from depriving anyone of “life, liberty, or property, without due process of law.”

What is now known as the Due Process Clause simply requires that the law be followed before the government could execute a criminal, jail an individual, impose a fine, deprive a person of their estate, sentence them to exile, etc.  The only right granted by this Clause was process—requiring the government to proceed according to the law of the land (i.e., constitutional and statutory provisions).

The Clause doesn’t even require a certain level of process, leaving other constitutional provisions to protect fundamental criminal procedural rights such as a right to counsel, to an indictment, to a speedy and public trial, and against double jeopardy.

As Justice Hugo Black noted in his dissent in In Re Winship (1970), “’Due process of law’ was originally used as a shorthand expression for governmental proceedings according to the ‘law of the land’ as it existed at the time of those proceedings.”  In short, the Clause was never intended to strike down a law for violating “due process”, but rather to make sure the due process required by existing laws was followed.

Abandoning this straightforward meaning, modern courts have eagerly interpreted the Clause to require that “the government [cannot interfere] with ‘rights implicit in the concept of ordered liberty.’”  The difficulty is that, unmoored from its original meaning, judges are free to define what constitutes “liberty” and “process” as they see fit, and under the guise of this theory courts have created such novel unenumerated rights as privacy, abortion, and homosexual sodomy.

The problem with this theory, often called substantive due process, is, as Justice Clarence Thomas noted in his concurrence in McDonald v. Chicago (2010), that “The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish ‘fundamental’ rights that warrant protection from non-fundamental rights that do not.”

Substantive due process allows a court, as Justice Black argued, to “free itself from the limits of a written Constitution and sets itself loose to declare any law unconstitutional that ‘shocks its conscience,’ deprives a person of ‘fundamental fairness,’ or violates the principles ‘implicit in the concept of ordered liberty’…[S]uch an arrogation of unlimited authority by the judiciary cannot be supported by the language or the history of any provision of the Constitution.”

Unfortunately, an unanimous Iowa Supreme Court engaged in exactly that kind of unprincipled activism in Hensler as it held that parents do have an unenumerated right to raise their children under the theory of substantive due process.  As much as we may agree with this right and believe it should be protected by the Constitution, it simply is not provided for in the text of that document.

But having discovered this right, the Court ultimately concluded that the ordinance “only minimally impinges on a parent’s fundamental right to direct the upbringing of his or her child” and therefore did not violate the 14th Amendment.

Instead, the Supreme Court struck down the ordinance for violating the Clause because it placed a presumption of wrongdoing on the parent that the Court determined was arbitrary and irrational.  As explained earlier, however, the Clause doesn’t prescribe a minimum procedural threshold, only that the existing constitutional and statutory procedures must be followed.  The law was followed in this case, and the Court should have upheld Davenport’s Parental Responsibility ordinance.

Despite a successful anti-retention campaign that ousted three of the Court’s activist justices, the Court appears to be slow in understanding the message.  The campaign was not a referendum on Bob Vander Plaats or even on marriage, but was over the proper role of the courts in our society.  Though the people rejected judges who discovered policy and rights from the bench, 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 [email protected]

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