Iowa: Removal Of Justices Complicates Court's Calendar

From The Des Moines Register and Alliance Defense Fund:

Removal of justices complicates court's calendar




By GRANT SCHULTE • gschulte@dmreg.com • November 4, 2010

The ouster of three Iowa Supreme Court justices created a load of problems Wednesday for state court administrators who have to keep the state judiciary afloat.



Chief Justice Marsha Ternus and Justices Michael Streit and David Baker were booted from the bench Tuesday, largely for their part in the unanimous 2009 ruling that allowed same-sex couples to marry in Iowa.


And, related, from The New York Times:

Ouster of Iowa Judges Sends Signal to Bench


Stephen Mally for The New York Times

A same-sex marriage ruling sparked a removal campaign.



By A. G. SULZBERGER

Published: November 3, 2010

DES MOINES — An unprecedented vote to remove three Iowa Supreme Court justices who were part of the unanimous decision that legalized same-sex marriage in the state was celebrated by conservatives as a popular rebuke of judicial overreach, even as it alarmed proponents of an independent judiciary.



.The outcome of the election was heralded both as a statewide repudiation of same-sex marriage and as a national demonstration that conservatives who have long complained about “legislators in robes” are able to effectively target and remove judges who issue unpopular decisions.



Leaders of the recall campaign said the results should be a warning to judges elsewhere.



“I think it will send a message across the country that the power resides with the people,” said Bob Vander Plaats, an unsuccessful Republican candidate for governor who led the campaign. “It’s we the people, not we the courts.”



But critics of the campaign, including those who see the courts as a protector of minority rights, said the politicization of uncontested judicial elections represented a danger.



“What is so disturbing about this is that it really might cause judges in the future to be less willing to protect minorities out of fear that they might be voted out of office,” said Erwin Chemerinsky, the dean of the University of California, Irvine, School of Law. “Something like this really does chill other judges.”



Replacements for the three ousted justices will be appointed by the governor from a slate of candidates nominated by the State Judicial Nominating Commission and will have to stand for periodic retention votes, a system known as merit selection.



From its first decision in 1839, the Iowa Supreme Court demonstrated a willingness to push ahead of public opinion on matters of minority rights, ruling against slavery, school segregation and discrimination decades before the national mood shifted toward racial equality.



That legacy was cited in liberal corners here last year when the seven-member court voted unanimously to strike down a law defining marriage as between a man and a woman, making the state the first in the Midwest to permit same-sex marriage.



But the risk of leapfrogging — or ignoring — public opinion on controversial issues was brought into sharp relief Tuesday when voters chose to remove all three justices who were on the ballot seeking new terms.



Conservative groups this year launched similar campaigns in a number of the 16 states that use merit selection, targeting supreme court justices for rulings on abortion, taxes, tort reform and health care. Unlike the three in Iowa, however, those judges — in Alaska, Colorado, Kansas, Illinois and Florida — were all re-elected.



The number of challenges and the success of the effort in Iowa has caused some concern that retention elections designed to be as apolitical as possible are becoming as bitterly contested as other races. This year far more was spent on campaigns in retention elections than was spent in the entire previous decade, according to the Brennan Center for Justice at New York University Law School.



The ouster was reminiscent of a retention election in California in 1986 that led to the removal of three Supreme Court justices who were portrayed as opposing the death penalty.



“Obviously it has an impact on the independence of judges and how they think of their role — I think that’s demonstrable,” said Joseph R. Grodin, a law professor who was one of the three California judges who lost a re-election bid. “But more than that,” he continued, “I think the damage is not on judges, but that courts will come to be seen and judges will come to be seen as simply legislators with robes.”



The most sustained effort to oust judges in this election cycle was in Iowa, where out-of-state organizations opposed to gay marriage, including the National Organization for Marriage and the American Family Association, poured money into the removal campaign. Judges face no opponents in retention elections and simply need to win more yes votes than no votes to go on to another eight-year term. In Iowa, the three ousted justices did not raise campaign money, and they only made public appearances defending themselves toward the end of the election.



Each of the three justices — Marsha K. Ternus, the chief justice; Michael J. Streit; and David L. Baker — received about 45 percent of the vote, making this the first time members of the state’s high court had been rejected by voters. The 71 lower court judges on the ballot all easily won re-election.



The justices’ removal will have no effect on same-sex marriage, which will remain the law.



The judges declined requests for interviews but released a statement that decried what they called “an unprecedented attack by out-of-state special interest groups.” The statement defended the system for selecting judges but offered what a veiled warning about populist impulses to remake the judiciary: “Ultimately, however, the preservation of our state’s fair and impartial courts will require more than the integrity and fortitude of individual judges, it will require the steadfast support of the people.”



The defeat was a bitter disappointment to much of the legal community here, which rallied behind the justices, and it was viewed with particular concern in the gay community, which has found state courts more sympathetic than state legislatures.



“A lot of time we start in the courts because they’re there to protect the minority against the tyranny of the majority,” said Carolyn Jenisen, executive director of One Iowa, an organization supporting gay rights, “Because they’re there to make tough decisions without regard to popular opinion.”



Correction: November 5, 2010





An article on Thursday about a decision by Iowa voters on Tuesday to remove three of the state’s Supreme Court justices referred incorrectly to the composition of the State Judicial Nominating Commission, which will nominate replacements. The group includes seven nonlawyer commissioners appointed by the governor; it is not composed entirely of lawyers.





A version of this article appeared in print on November 4, 2010, on page A1 of the New York edition..
It was the first time Iowa voters have not retained Supreme Court justices since 1962, when the merit selection and retention system for judges was adopted. When the justices' terms expire on Dec. 31, it will be the first time there have been multiple vacancies on the high court.









Opinions can be issued with as few as three justices, court officials said.



Iowa Judicial Branch Administrator David Boyd said he did not have a timeline to replace the justices. He did not know how the outgoing justices would proceed with their caseloads.



Oral arguments scheduled for December and January are up in the air, Boyd said. The justices will meet next week to discuss problems ranging from who will finish writing opinions to which ones will oversee various court programs, and who will become the next chief justice. No one is sure yet which justices will participate in budget talks, or who will deliver the annual State of the Judiciary speech to lawmakers.



"People are just going to have to show some patience," Boyd said. "We're going to follow the law. We'll be a little slower, but still open for business."



Also in question is the appointment of three replacement justices, an issue that resurfaced Wednesday between Gov.-elect Terry Branstad and outgoing Gov. Chet Culver. Branstad defeated Culver on Tuesday.



The vetting process cannot start until voting results are formalized on Nov. 29. The state Judicial Nominating Commission has 60 days to seek applications, interview candidates and send finalists to the governor. The governor then has 30 days to appoint one justice to each seat. The 15-member nominating panel has the ability to send one list of names for each seat, or one larger list that would allow the governor to pick any three.



If the governor fails to choose, the nominee is picked by the chief justice. The chief justice is chosen by a majority of the court.



The timeline set forth in state law opens the possibility that Culver could appoint one or more justices before he leaves office.



"I have not spoken to either Governor Culver or Governor Branstad about this issue, but I do not believe either one of them would want to do anything that would further politicize the process," Boyd said. "I would hope they both have seen what this has done to the judicial branch."



Branstad said he planned to study ways to require the judicial nominating commission to have a balanced partisan makeup.



"I think we can. And this is something we're going to look at and we want to talk to several people," Branstad, a Republican, said in a Des Moines Register interview.



Branstad said the commission, as established in a 1962 constitutional amendment, was aimed at taking the politics out of court nominations. But the partisan profile of the 15-member panel - now consisting of 12 Democrats, 1 Republican and one member who belongs to neither party - has made it a Democratic-leaning body, critics say. A Supreme Court justice is also part of the commission.



"If we want to get politics out of it, we've got to correct that imbalance," Branstad said. "We need to come up with a way to do that. And we're going to be exploring how that can be accomplished."



Branstad also repeated his admonition to outgoing Culver to not appoint successors to Ternus, Baker and Streit as a lame duck.



"I would think that Gov. Culver would concur that we need to be careful about not rushing to try to replace the people that have been rejected, but instead to come up with a thoughtful process that could restore credibility to the court," Branstad said. "I think to do otherwise would be really something that would be considered an insult to the voters who have rejected the Supreme Court and, in essence, said we don't think the judicial nominating process is not fair."



Culver, on Wednesday, told the Register that it's too early for him to say how or if he will take action to appoint the three Iowa Supreme Court spots.



"I'm just kind of looking at the results from last night and have not made that decision," Culver said.



State Sen. Matt McCoy, D-Des Moines, said the success of the campaign to oust the judges promises to have a far-reaching effect on Iowa's judicial system, making it much more susceptible to "bullying" by special interests and outside money.



"Ultimately, that has the potential to corrupt and pervert any system," he said.



—Register reporters Thomas Beaumont, Jason Clayworth and Lee Rood contributed to this report.