The Move to Impeach Iowa Supreme Court Justices and Role of Judicial Review

Iowa State Representatives-Elect Kim Pearson, Glen Massie, and Tom Shaw have recently gone on the record saying they are going to submit articles of impeachment for the remaining four Iowa Supreme Court Justices: Mark Cady, David Wiggins, Daryl Hecht, and Brent Appel.  Former Chief Justice Marsha Ternus, Michael Streit, and David Baker lost their retention vote badly.  Only those who are out-of-touch with reality would believe the remaining four would have survived if their name were also on the ballot, and some (with Bob Vander Plaats of The FAMiLY LEADER leading the charge) are calling for their orderly resignation.

I wouldn’t hold my breath on that.  Which brings us to the topic of impeachment.

The Iowa Constitution states in Article III, Section 20 that:

The governor, judges of the supreme and district courts, and other state officers, shall be liable to impeachment for any misdemeanor or malfeasance in office, but judgment in such cases shall extend only to removal from office, and disqualification to hold any office of honor, trust, or profit, under this state; but the party convicted or acquitted shall nevertheless be liable to indictment, trial, and punishment, according to law.

The justices have obviously not done anything criminal in their role so that leaves us with the word “malfeasance.”  Any article written will have to make a case on those grounds.  It isn’t a word that I would dare say most of us use on a daily basis.  Ok, maybe I’m only speaking for myself, but it means “the performance by a public official of an act that is legally unjustified, harmful, or contrary to law; wrongdoing (used esp. of an act in violation of a public trust).”

Are the justices guilty of malfeasance in office?  Perhaps.  It comes down to the argument of the separation of powers.  Nobody is criticizing the Court for hearing the Varum v. Brien.  They can also issue an opinion.  It is the weight of that opinion which is up for debate.  Many contend, myself included, that when they struck down Iowa’s Defense of Marriage Act what is the law of the land?  Marriage between one man and one woman.  DOMA didn’t establish that, it was already law.  It meanly was a stop-gap measure for the trend the General Assembly saw at the time.

The problem with how the ruling was implemented (there are problems with the ruling itself, but I won’t get into that here).  They didn’t kick it back to the Legislature to address the ruling.  The Legislature could have handled it one of three ways – 1. codify same-sex marriage 2. reaffirm DOMA specifying no judicial review, and 3. begin the constitutional amendment process.

I find the Legislature just as culpable for their failure to act promptly as I do the Iowa Supreme Court’s order.  I also blame an inept Governor who went back on his word to defend the traditional definition of marriage.  Also Iowa Attorney General Tom Miller who should have had a role in defending DOMA didn’t and instead he threatened County Recorders who didn’t comply with the court’s opinion.  How again does an opinion carry the weight of law?

So back to impeachment.  The Iowa Constitution in Article III, Section 19 states that articles of impeachment needs to pass in the House by a simple majority and then in order for the Senate to convict there needs to be a 2/3 majority.

Instead of writing a snotty editorial (To the Sioux City Journal editorial board, Kim Pearson has a law degree, do any of you?) or say what these Freshmen representatives are doing is a distraction.  Let the people have a say.  Pearson, Massie and Shaw all ran on fidelity to the Constitution.  I’ve personally heard Pearson campaign against the judges.  They are doing what they think the people elected them to do.  That is their job, to represent us.  They need to listen to their constituents first and foremost not editorial boards and not party leadership.  They shouldn’t base their decisions on whether or not it’ll get a conviction in the Senate.  For the record, I think that is unlikely, but again their job is to represent their constituents.    So let them carefully write their articles of impeachment, let them have their debate.  If it doesn’t make it out of committee so be it.  If it makes it out of the House, then we can take it to the Senate.  If it dies there so be it.  If it passes with the majority required, then they’ve made their case.

To his credit Speaker-Elect Paulsen has said as much saying for this to be made a priority he needs to hear from the people.  So “we the people” if this is something you want your representative to act on – or not, let them know (info found at the link should be current when 2011 session begins).

Instead of trying to squash debate, let’s have an open discussion on the role of judicial review and the separation of powers.  Those who say it is accepted and settled typically base their position on nothing more than more judicial review.