DES MOINES – Iowa’s judicial retention system is “under attack” and its future may depend upon the efforts of supporters who want to keep the courts insulated from political influences, the state’s court administrator says.
“I certainly don’t think that Iowans really want to see a judicial branch that is overrun by campaigns and how much money people raise,” said court administrator David Boyd. But, he said, that might be the outcome that’s at stake in this year’s retention vote as opponents of what they view as judicial activism mount an unprecedented effort to oust three Iowa Supreme Court justices in Nov. 2 balloting who were part of a controversial 7-0 decision that struck down a state law defining marriage as only between one man and one woman.
How the ground-breaking debate will play out also remains a mystery as outside forces mix money and message to morph a normally little-noticed ratification process for the judiciary into a referendum on same-sex marriage that is being pulled into the national spotlight. Another unusual dynamic in this year’s balloting is the fact that the targets of the ouster effort are seeking to maintain their independence by steering clear of the public discourse.
“We’re not forming campaign committees. We’re not going to become politicians,” said Iowa Supreme Court Chief Justice Marsha Ternus, who along with Justices Michael Streit and David Baker are up for retention votes on the Nov. 2 ballot and are targeted for defeat in an effort organized by ex-GOP gubernatorial candidate Bob Vander Plaat’s newly formed Iowa For Freedom – a conservative grassroots group intent on sending a message that the courts are taking too much power and overstepping their role in the governmental balance.
Ternus, Streit and Baker were part of a unanimous ruling in April 2009 that struck down a law designed to protect traditional one-man, one-woman marriage as contrary to constitutional equal-protection standards – paving the way for civil marriages between couples of the same gender to be legally conducted later that month.
The justices have declined public comment on the retention issue, but Ternus broke her silence briefly while attending last week’s review session on Iowa’s child-welfare system to say Iowa judges will not be engaging in fundraising or other political activities even though court rules allow a certain amount of involvement. Given that position, she said, “I hope it’s not a one-sided debate. I hope that people who understand the system and the role of the court will speak out more and more and I believe that’s beginning to happen.”
Boyd said judicial branch officials have posted biographical information that includes the professional qualifications and background of every judge up for retention in 2010 and an explanation of Iowa’s merit selection and retention process at the iowacourts.gov Web site. Also, the Iowa State Bar Association plans in October to release the results of a survey of Iowa lawyers in which association members were asked to rate judges on a number of issues, including knowledge and application of the law, temperament, communication skills, timeliness of rulings, and impartiality. The survey also asks lawyers to state whether each judge should be retained.
“I think the judges and the justices are basically trying to stay above the fray and trying to maintain the system that we have in Iowa that, frankly, people around the country are very envious of,” Boyd said.
“The way I view it is our system is under attack in terms of our retention system. I find it ironic that some people want us to look at other systems that might be in existence in states where those systems are not rated as well by certain groups,” he added. “Fair and impartial courts are what we’re known for and that’s what we want to keep.”
Critics of the Vander Plaats’ approach say it’s a vengeful effort to punish justices for an unpopular decision contrary to a system designed to insulate judges from the whims of voters. However, the Sioux City businessman who finished second to former Gov. Terry Branstad in the June 8 GOP primary after making the marriage issue the centerpiece of his campaign said the retention vote has become a line in the sand to halt judicial activism run amuck.
Vander Plaats said a recent federal court ruling in California that reversed a public vote against same-sex marriage in that state convinced him that an effort is needed to begin to bring into check judges who attempt to legislate or thwart the will of the people from the bench.
“I believe this election to unseat these three justices may be, if not one of the most, the most important campaign and election in the entire country,” he said.
“If they will do this with marriage, every other one of your freedoms is up for grabs,” Vander Plaats said. “I believe we need to hold the court in check.”
More than 2,500 same-sex marriages have been performed in Iowa since the April 2009 decision. Opponents are pushing for an amendment to the Iowa Constitution that defines marriage only as between one man and one woman, but Vander Plaats said the California ruling throws that effort into question and it is time to concentrate on maintain “a healthy separation of power” among the three branches of government.
“They do not get to evolve our constitution, only we the people get to evolve our constitution,” he said.
“For too long, we’ve allowed the courts to overstep their authority and there was no clearer example of that than the April 3, 2009 decision by the Iowa Supreme Court on same-sex marriage,” Vander Plaats added. “The issues of separation of power and judicial activism are important to me and my followers and that’s why we’re going to work to restore the balance between the branches of our government.”
Chuck Hurley, a former state lawmaker who leads the Iowa Family Policy Center, said a backlash against judicial activism has been building for years, but the California ruling invalidating that state’s voter-approved ban on same-sex marriage “just threw gas on the fire.”
“People now get it that judges aren’t our robed masters, they are in fact public servants,” he said. “The sea change is the ‘we the people’ that’s being recovered. It’s not new in America; it’s being renewed in America. Taxpayers decide if we rehire our employees. We’re the employer.”
However, Boyd said the challenge to Iowa’s judicial independence runs deeper than the outcome of one decision and he doubts Iowans want to embrace a shift to a system of electing judges that resulted in $5.8 million being spent on one judicial race in Alabama.
“Judges have to decide cases based on the law, based on the facts, based on the Iowa Constitution, based on the United States Constitution, and they need to be uninhibited to follow their oath, to support the constitution and to make decisions as they see them and not have to make a decision under fear that, oh, I’ll be on the ballot in one year or in two years or whatever it might be, and let that influence the decision that they make,” he said.
In 1962, Iowa voters approved a constitutional reform that replaced the process of selecting judges by popular vote with a merit selection and retention election process. The merit selection system involves a nonpartisan commission that reviews the qualifications of applicants for judicial office. Once the commission screens and interviews applicants, it forwards a slate of nominees to the governor who makes the final appointment.
Once appointed to the bench, all justices and judges must stand for retention election at the first general election following the judge’s appointment, and then near the end of each of the judicial officer’s regular term. In a retention election, voters decide whether to retain a judge in office. If a judge receives a simple majority of “yes” votes, the judge may serve another full term.

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