Judicial Retention – The Only Bad Vote is an Uninformed Vote

With just over three months left until November's general elections, the debate over retention of Iowa Supreme Court Justices is heating back up.  This year, four Justices are up for retention, but only one is being targeted in the retention vote: Justice David Wiggins.
On August 1, 2012, Republican Party of Iowa Chairman A.J. Spiker issued a press release urging Iowa voters to vote "no" on the retention of Justice Wiggins.  Spiker's press release alleged that Justice Wiggins and his fellow Justices in 2009 "disregarded years of legal precedent on the status of marriage and how it was to be defined."  Spiker continued: "Instead of allowing the people of Iowa to decide this issue at the polls, these judges instead chose to impose their will upon the state and re-write history without weighing the merits of our laws and values."  Current Justices Waterman, Mansfield and Zager are not drawing the fire of Mr. Spiker as they replaced unseated Justices Streit, Ternus and Baker in 2011.
While not specifically mentioned in his press release, Spiker's campaign against the retention of Justice Wiggins clearly centers around the 2009 Iowa Supreme Court's landmark decision in Varnum v. Brien.  The "Twitter" version of the ruling is that the equal protection clause of the Iowa Constitution prohibited the enforcement of a law that granted a privilege or right (civil marriage) to one group of citizens (opposite-sex partners) while specifically making it unavailable to another group of citizens (same-sex partners).  For a more thorough explanation of please see our prior article.
The Varnumdecision has polarized many within the community.  While there are a number of positions and arguments that have arisen throughout this intense debate, the spotlight is now squarely focused on the retention of Justice Wiggins.  This article does not seek to take any particular position on same-sex marriage.  The purpose of this article is to explain the court system, the process by which the judiciary renders decisions and the role that Iowa citizens play in judicial retention.  An individual's vote is personal based upon their beliefs and convictions but should also be informed because the only bad vote is an uninformed vote.
Role of Iowa Courts
The government of the State of Iowa, just like that of the United States of America is divided into three separate branches, each one having a distinct and vital role.  This is commonly referred to as "separation of powers."  The purpose behind the separation of powers is to ensure that one branch of government does not overreach and ultimately violate the rights of the citizens of the state.  The three branches are: legislative, executive and judicial.  The legislative branch creates the laws; the executive branch enforces the laws; and the judicial branch is charged with the task of interpreting the laws.  When interpreting the laws, the judicial branch is governed by the rule that the constitution is the supreme law of the land and no law may be passed that infringes upon the individual rights set forth in the Constitution.  Any law which is inconsistent or contrary to the Iowa Constitution is considered void and unenforceable. 
All members of the judicial branch are charged with interpreting the laws and ultimately protecting the constitutional rights of all individuals in our state.  Conflicts in opinions and interpretations of the laws and constitution are resolved in a court of law, presided over by members of the judicial branch.  There is no other place for these issues to be legally resolved once and for all.  The issue or conflict must be raised at the earliest possible opportunity, and the first judge to hear the issue must rule and decide the case by applying the legal principles and precedent available to that judge at that time.  This means that the issues which often times ignite debate must always be first presented to a lower level judge, be it a magistrate, district associate judge or district court judge.  That judge, when presented with the conflict has a legal obligation to make a final ruling on the issue so that if desired, the losing party may appeal that decision to a higher court.  If the judge does not make a decision, the judge actually violates his/her constitutional role and our judicial system fails. 
Example:  The general assembly (legislative branch) passes a law saying that it was illegal to practice or to be a member of a particular religion.  A person affected by this law could raise the issue in court and request a judge to rule that the law violates freedom of religion as protected by Article 1 Section 3 of the Iowa Constitution.  The first judge to hear the case would have to make a ruling and the losing party would then have the right to appeal it to a higher court.  Ultimately the case would come before the Iowa Supreme Court who would then be required to decide the issue, one way or the other.  Their ruling would be final if the case involved an interpretation of the Iowa Constitution.  The perfect example of this is the Iowa Supreme Court's 2012 decision in Mitchell County v. Zimmerman where the Iowa Supreme Court concluded that a Mitchell County Ordinance unconstitutionally interfered with the Mennonite communities' free exercise of religion and was therefore unenforceable.
"Let the People Vote"
A popular complaint accompanying the Iowa Supreme Court's decision in Varnum is that the Iowa Supreme Court should have let the people of Iowa vote on the issue.  In fact, Mr. Spiker appears to be of that opinion when he states in his press release: "Instead of allowing the people of Iowa to decide this issue at the polls, these judges instead chose to impose their will upon the state and re-write history without weighing the merits of our laws and values."
It is imperative to understand that once a controversy is presented to a judge or appellate court such as the Iowa Supreme Court, the Court must resolve the conflict and enter a decision one way or another.  Contrary to the suggestion of Mr. Spiker, there is no mechanism for a judge or the Iowa Supreme Court to let the issue be "decided at the polls." 
For the same-sex marriage issue to be "decided at the polls," a constitutional amendment would have to be drafted, approved and then presented to the people of Iowa for a popular vote.  According to Article 10 of the Iowa Constitution, this process is controlled by the legislative branch: (Without Iowa the House and Senate approval, no constitutional amendment can even be presented to the public for a popular vote.  For a great explanation of this process, review the Des Moines Register article by Jason Clayworth.)  A court does not have the constitutional authority to submit a constitutional amendment nor is it involved in the process.  To say that the Iowa Supreme Court should have let the people decide this issue through a popular vote is to suggest that the Iowa Supreme Court exceed its constitutionally permitted authority.
Politics and the Courts
While some politicians are characterizing the Iowa Supreme Court's decisions as political issues, politics and the courts must be kept separate for our system of government to be effective.  Our judicial branch is set up with the specific goal of minimizing political influence on judges.  Back in 1857, the people of the State of Iowa created and approved our system of government, including our judicial appointment and retention system, because they experience first-hand what happens when politics invade the judiciary.
Members of the judicial branch in the State of Iowa are not elected, but instead are appointed by the executive branch after being recommended by a selection committee.  When a position is open, a nonpartisan commission reviews the qualifications of applicants for the vacancy, conducts thorough background checks, interviews candidates and ultimately makes a recommendation to the governor.  The governor, the head of the executive department, makes the final decision appoints the new judge.  The judge then serves out his or her term on the bench and is subject to a "retention" vote at the end of the term.  The judge must receive a majority of the popular vote to be retained ("yes") in order to serve another term.
The reasoning behind appointment of judges as opposed to popular elections is to prevent "popular opinion" (prevailing opinion of the majority) from determining the outcome of judicial decisions.  Popular opinion many times can lead to a mob mentality where governmental action is taken without due consideration being given to the individual constitutional rights that are being affected.  Members of the legislative branch are popularly elected.  It is a legislators' job to listen to the pulse of the community opinion over all else.  Judges on the other hand, must not listen to community opinion but must respect and abide by prior legal decisions, constitutional principles and most importantly, the articulated individual rights set forth in the Constitution.  The law must dictate their decision, not popular opinion or even their own individual beliefs.  It is the judiciary's role to protect citizens from laws or governmental action that might be popular at the time, but nonetheless violate constitutional principles of this state.
Example:  The community becomes outraged at the recent number of shootings and the legislature voted to prohibit anyone within the city limits of major Iowa cities from owning or possessing hand guns.  The legislative branch would be listening to the popular opinion but obviously those responsible citizens that owned hand guns would not agree with the law.  When presented with the case, the Iowa Supreme Court would have to disregard popular opinion and even their own individual beliefs and would have to strike down the law because it violates the Second Amendment right to bear arms.
The judicial branch must remain free from outside influences to ensure that decisions are based upon the law and the constitution without regard for public approval or popular opinion.  One does not need to look far in history to see how following popular opinion violated constitutional rights bestowed upon all citizens.  Listening to popular opinion, our country enslaved millions, prohibited women from voting, withheld fundamental basic human rights and privileges simply because of the color of a person's skin, and even detained thousands of U.S. citizens only on account of their ethnicity during a time of war.  Many, if not all of these actions were initially sanctioned by the Courts of the day only to be determined to have been incorrect years later.  This is why an independent judiciary must remain free from influence by popular opinion so that the correct legal decisions can be made at the earliest possible opportunity to remedy and prevent violations of individual constitutional rights.
In conclusion, the Iowa Supreme Court was presented with a very specific dispute over individual constitutional rights in the context of same-sex marriage.  There are strong opinions on both sides of the subject, all with legitimate points and arguments.  However, the bottom line is that the courts in Iowa were required to resolve the legal conflict before them, not a political dispute.  It is understandable that many may be dissatisfied with the decision but it was the Iowa Supreme Court Justice's duty to resolve the conflict based on the Constitution of the State of Iowa. 
When you go to vote this November, cast your vote according to your own personal beliefs and interests.  However, when it comes to the retention of judges, please make sure that you cast your vote after becoming informed to the fullest extent possible.  A valuable resource is the Iowa Bar Association Judicial Plebesite Report which contains feedback from attorneys who appear before the respective judges.  Also, don't hesitate to ask those who may have more experience with Iowa's judicial system to give you their thoughts on the various judges that are up for retention. 
Remember, a vote for or against retention of a judge is not a vote for or against same-sex marriage or any other decision by the court.  Rather, it is a vote to keep or replace a judge based upon his or her overall performance.  If the same-sex marriage decision is important to your vote, I would encourage you to take the time to read the full decision which can be found by clicking this link, Varnum v. Brien.  If you feel you should have been allowed to vote on the issue, I would strongly encourage you to contact your representatives in the Iowa House and Senate and let them known your opinion.  Remember, they are elected to serve you but judges are appointed to interpret and enforce the Constitution.  This election, vote your conscience, but vote informed.  The only bad vote is an uninformed vote.
By: Robert G. Rehkemper, Attorney at Law, Gourley, Rehkemper & Lindholm, PLC, Des Moines, Iowa.  www.GRLLAW.com