Vote No on the Retention of Iowa Supreme Court Justices

By Dale Mastarone

In the 10-21-10 Osceola Sentinel-Tribune I took interest in a letter to the editor that was submitted with a number of local lawyers signing onto it who all asserted to be members of the Clarke County Bar Association. The letter urged local electors to vote Yes to retain judges and justices for the stated reason that we have an “independent judiciary.” Do we actually have an independent judiciary in Iowa? How do they define “independent”? And then the letter’s signers urge that it is a “non-partisan” process. I challenge both those statements. It has been reported that 80% of the Iowa Bar Association members appointed to judicial nominating commissions are Democrats, so that shoots down non-partisan. The same would be true if 80% were Republicans.

It is really a stretch to imagine that politics have been removed from the seating of judges in Iowa utilizing the current Missouri Plan. It is absolutely political, cannot be anything other — but now the politics involved are hidden from the people.

There is something very important that was left out of that letter by the author(s) and signers, whether it was merely intentional or by deliberate oversight. With this Missouri Plan, as applied in Iowa, there are quite a few retired judges who sit as "senior judges" on cases, both at the trial and the appellate levels. The senior judges and justices at this moment certainly are not a majority, but there are a number of them. And that number may actually increase as the judicial branch decides to utilize them more and more as budgeting shortfalls prevent them from filling judicial vacancies. Since they are technically retired, however, they do not face judicial retention votes as active judges do. This is among many reasons why, if there isn’t the political will currently to completely scrap the Missouri Plan – as applied in Iowa – by repealing the 21^st Amendment to the Iowa Constitution — it needs a serious overhaul in the next legislative session.

As for me, I will be voting NO on all three Supreme Court Justices up for retention. Quoting Congressman Steve King, “Those three justices claim omnipotent power to imagine and confer constitutional rights that ‘were at one time unimagined’ [Varnum v. Brien, 763 N.W. 2d 862 (Iowa 2009). Page 15 of the opinion] It is time to remove them on that basis alone. It is obvious they feel empowered and will follow their whim in future decisions rather than the law. They have usurped the constitutional authority of the legislature and will do so at every notion until they are stopped by a vote of the people. To read their opinion brings one to the conclusion that these justices believe they have the authority to find the Constitution—unconstitutional.”

The mere fact that the letter to the editor was written for publication appears to me that the signers are making a blatant attempt to curry favor with existing judges. Is there a group of local lawyers somewhere who oppose some of the justices that would sign a letter to that extent? I sincerely doubt it. "Yes, your Honor, I publicly stated you should be dumped, but please rule in my client’s favor."