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.

17 comments
  1. You seem to be arguing that all three branches of government are guilty of malfeasance. Should all of our elected leaders be impeached over their handling of this one issue? That would probably qualify as a distraction.

    1. No I’m not. Doing nothing isn’t the same as what the Iowa Supreme Court did, it’s still culpable. The Legislature and Governor just failed to act and cowtowed to the Iowa Supreme Court.

      And it isn’t just over this one case as the impact of how judicial review is viewed is greater than just DOMA. Just this fall they had another ruling where yet again they overstepped their bounds. What is ironic is that those in dissent, one of who is the ousted Chief Justice Marsha Ternus, recognized this. If she approached DOMA as she did the case I discuss here – http://caffeinatedthoughts.com/2010/11/if-only-iowa-supreme-court-chief-justice-marsha-ternus-ruled-this-way-on-doma/ she probably would still have a job today.

      1. Hypothetical situation: Let’s say (for the sake of argument) that you agree with the Varnum decision, as many Iowans do. In that case, you would believe that the legislature passed a law which was unconstitutional, thereby acting outside of their governmental role. In that case, would you call what they had done malfeasance?
        Should the democrats of Iowa be attempting to impeach the legislators who voted for laws that have been held unconstitutional?

        My point is that simply because you disagree with the way the justices have ruled, impeachment does not appear to be the appropriate remedy.

      2. Is judicial review the larger problem? Impeaching some justices is not going to do much to address that one. I think you’ll have a hard time finding replacement judges that don’t support judicial review.

  2. Shane–

    The decision in Varnum did not specifically strike DOMA, but stated that “language in Iowa Code 595.2 limiting civil marriage to a man and a woman must be stricken from the statute.” That being done, what’s to keep two men or two women from getting married?

    Your second possible action for the legislature–to reaffirm an unconstitutional law and tell the courts and the people there is no legal remedy to an constitutional act? Are you serous?

    Anyway, best wishes for a Joyous Christmas.

    1. Sorry, I meant “… no legal remedy to an unconstituional act? Are you serious?”

      (Using my dad’s computer, which is a real chore. It’s old and slow. I’m up visiting in Toms River, NJ, away from my home in Baltimore, MD)

      1. Oh and the way you phrased your statement would mean I agree with your premise it is an unconstitutional act. I believe the Iowa Supreme Court manufactured a “right” in this instance.

      2. Shane,
        I’m not sure if this is the section of the Constitution to which you were referring, but I believe this might be it; it’s actually in Article V, Section 4:
        SEC. 4. The supreme court shall have appellate jurisdiction only in cases in chancery, and shall constitute a court for the correction of errors at law, under such restrictions as the general assembly may, by law, prescribe; and shall have power to issue all writs and process necessary to secure justice to parties, and shall exercise a supervisory and administrative control over all inferior judicial tribunals
        throughout the state.
        The Legislature may attempt to restrict judicial review on any statute they enact, but I don’t know that it would apply in this case, simply because, at it’s heart, Varnum vs. Brien was a case in chancery. The same Article that would seem to indicate the Legislature could forestall judicial review establishes the Court’s jurisdiction in that case. That right there would seem to differentiate the Court’s involvement in Varnum vs. Brien from Galloway vs. Iowa. You (and Justice Ternus) are correct in stating that Galloway was a matter of public policy, best left up to the legislature. However, Varnum was a case of perceived inequality, which begged the constitutional question, “Should someone who would, in all other aspects, be able to marry be denied because they wish to marry a consenting adult of the same gender?” These questions are precisely why the Court exists. There was no judicial malfeasance in this case, and to characterize it as symptomatic of a larger problem is, to use on of Bob’s favorite words, disingenuous.

      3. Additionally, Article XII of the Constitution states in Section 1:
        This constitution shall be the supreme law of the state, and any law inconsistent therewith, shall be void. The general assembly shall pass all laws necessary to carry this constitution into effect.
        As Section 595.2.1 of the Code was ruled unconstitutional, it will be stricken from the code, per the Constitution. Thus, Legislative review would be precluded.
        As a side question, why didn’t anyone who got involved with the “Vote No” movement also put up a hue and cry for a constitutional convention? Seems to me that this is about the only way now that anything like DO MA could stick…

      4. I pushed for and voted in favor of a constitutional convention. I think the only problem was the “unknown” factors. People were afraid of how delagates would be selected and what else might get passed.

        You are right it would have at least been the fastest way to get a constitutional change.

    2. DOMA was the law being challenged. Regarding your question, yes, I’m serious, it’s the Legislature’s right to do that. I can’t quote you the section verbatim since I’m away from my computer, but the Legislature constitutionally can determine jurisdiction.

      1. Shane–

        I’m going to have to disagree with your assertion that DOMA specifically was being challenged. DOMA wasn’t a self-contained law. Instead, it modified the language of Iowa Code 595.2. The language modified by DOMA was what was being challenged and what was stricken from the law in Varnum, not DOMA.

        A quick scan of the PDF of the decision did not yield any matches to “defense of marriage” or “DOMA”. There’s a reference on the top of page 8 of the PDF “The Iowa legislature amended the marriage statute in 1988 to define marriage as a union between only a man and a woman.”

  3. It’s lucky that all of the southern states couldn’t try to do this with the supreme court in 1967. That’s when the supreme court declared interracial marriage legal. The complete set of southern states were the holdout in America, the defendants, the interracial couple the Lovings, were convicted in 1959 in Virginia. Their sentence was upheld by Virginia appeals in 1965. Of course, God was quoted as being opposed to interracial marriage. Get used to it Iowa, your on the wrong side of history. It won’t be long now.

  4. It’s lucky that all of the southern states couldn’t try to do this with the supreme court in 1967. That’s when the supreme court declared interracial marriage legal. The complete set of southern states were the holdout in America, the defendants, the interracial couple the Lovings, were convicted in 1959 in Virginia. Their sentence was upheld by Virginia appeals in 1965. Of course, God was quoted as being opposed to interracial marriage. Get used to it Iowa, your on the wrong side of history. It won’t be long now.

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