{"id":837,"date":"2011-10-17T10:41:57","date_gmt":"2011-10-17T15:41:57","guid":{"rendered":"https:\/\/iowappa.com\/?p=837"},"modified":"2011-10-17T10:41:57","modified_gmt":"2011-10-17T15:41:57","slug":"wanting-more","status":"publish","type":"post","link":"https:\/\/iowappa.com\/?p=837","title":{"rendered":"Wanting More"},"content":{"rendered":"

\"\"<\/a>The Iowa Freedom of Information Council held its annual luncheon, program and meeting earlier this month.\u00a0 The program this year was a little off the beaten path of open records and public meetings.\u00a0 At least, I thought so.<\/p>\n

The program was entitled \u201cMedia Coverage of the Courts: The Good, the Bad and the Ugly\u201d.\u00a0 I didn\u2019t notice much of a focus on media coverage, but there was a strong presence of discussion around Iowa\u2019s retention vote on justices and judges.<\/p>\n

The makeup of the panel gave an indication of where the discussion was headed.\u00a0 The panel consisted of former Iowa Supreme Court Justice Michael Streit, Iowa District Court Judge Jeffrey Neary, Attorney Bill Brown with BrownWinick, and Rachel Paine Caufield, a professor at Drake University in the Department of Politics and International Relations.<\/p>\n

Streit was the first panelist to speak and he set the tone.\u00a0 He was one of the three justices removed from the Supreme Court last year when Iowa voters refused to retain him and two other justices who must stand retention votes after their first full year and every eight years thereafter.\u00a0 It was interesting to hear his introduction that brought some dark Iowa history to those of us in attendance.<\/p>\n

In April of 1933, a mob of farmers physically removed Judge Charles Bradley from his courtroom in the O\u2019Brien county seat of Primghar. \u00a0They mistreated him, but didn\u2019t kill him (he died a few months later from causes not related to this incident).\u00a0 He was abducted because the farmers were worried that more mortgage foreclosures by the banks would be ordered by Bradley.\u00a0 Streit was presenting an example that judicial officers can be subjected to the whim of the people for doing what the law says the judge must do \u2013 sort of like the Varnum v. Brien<\/a> case that many attribute to non-retention of \u00a0the three Iowa Supreme Court justices last November.<\/p>\n

District Court Judge Jeffrey Neary was the second panelist to speak.\u00a0 He began by explaining how he became the focus of media attention in 2003.\u00a0 In 2003, Judge Neary dissolved a civil union between two women, years before same sex marriage was legal in Iowa.\u00a0 He told the audience that he followed the law, using comity [the informal and voluntary recognition by courts of one jurisdiction of the laws and judicial decisions of another] and the Full Faith and Credit Clause of the United States Constitution.\u00a0 However, a movement formed in northwestern Iowa to have him ousted.\u00a0 A campaign to have a judge removed from the bench was almost unheard of until many residents of northwestern Iowa became upset with Judge Neary\u2019s decision.\u00a0 He was fortunate enough to make it through the effort to have him removed, but he did learn through this experience that judges need to be accessible.\u00a0 The judicial branch needs to \u201cput a picture of a face on the ballot\u201d, Judge Neary said.\u00a0 \u201cWe should be pro-active.\u201d<\/p>\n

Bill Brown<\/a>, a partner in the Des Moines law firm of BrownWinick, was the third panelist to speak.\u00a0 Bill warned the audience that he would be coming from a different perspective from the others.\u00a0 This is the point where I thought the discussion would get back to the title of the program.\u00a0 Not once did Bill mention the media and the courts.\u00a0 He began with a historical footnote as well.\u00a0 Bill taught us (me, at least) that Teddy Roosevelt wanted to get rid of the Court because it said that the Worker Safety Act was unconstitutional based upon the reading of the Constitution\u2019s Commerce Clause.\u00a0 He explained the basis of the Varnum<\/em> case, which was the Racing Ass\u2019n of Cent. Iowa v. Fitzgerald<\/a> [RACI] <\/em>case that came years before (February 3, 2004).\u00a0 He correctly claimed that Lambda Legal, a national legal organization that supports the rights of lesbians and gay men, scouted around the county for a case like RACI to use as a foundation to bring about the result Iowa has seen from Varnum<\/em>.\u00a0 My question is: why shouldn\u2019t they?\u00a0 It was smart strategy.\u00a0 He complained that the Roe v. Wade<\/em> decision was based upon a \u201cpenumbra\u201d because no one Amendment to the U.S. Constitution gave us the right to privacy.\u00a0 He saw problems with the Miranda v. Arizona<\/em> decision of 1966.\u00a0 And he came to the conclusion that the problem is lawyers and the lack of political balance.<\/p>\n

Brown carried on the criticism of the Varnum<\/em> decision and the process in which Supreme Court justices are selected.\u00a0 He brought to the discussion a sour grapes attitude; but a sour grapes attitude unlike the two speakers before him.<\/p>\n

Brown\u2019s array of reasons why there needs to be different methods of selecting justices made me go back to why people on both sides of this issue should remember to be careful what you ask for.\u00a0 There is no better example than the Twenty-second Amendment to the U.S. Constitution, which limits a President to two terms of office.\u00a0 Republicans wanted this Amendment because they didn\u2019t want to have to go through another long era of not being able to defeat a strong Democratic candidate like Franklin D. Roosevelt.\u00a0 However, when Reagan came along, various Republicans wanted a repeal of the Twenty-second Amendment.\u00a0 Of course, that was before anyone knew he had Alzheimer\u2019s.<\/p>\n

Professor Caufield did have a different approach.\u00a0 She had better sound bites, for one thing.\u00a0 Besides her position as a professor at Drake, Caufield is also a research fellow with the American Judicature Society\u2019s Elmo B. Hunter Citizens Center for Judicial Selection<\/a>.\u00a0\u00a0 She began by saying that \u201cVarnum<\/em> serves as a very convenient signpost.\u201d\u00a0 It brings about keywords that have been thrown around for the past decade; words like \u201cjudicial activism\u201d and \u201cirresponsible courts\u201d.\u00a0 The irresponsibility phrase is based on some people\u2019s questioning of the Court\u2019s inability or unwillingness to throw the legislation back to the Iowa Legislature to fix it.\u00a0 \u201cJudicial activism\u201d is a phrase that insinuates the Court \u201cmakes legislation.\u201d\u00a0 Those are catchy little phrases that undermine the real process.\u00a0 \u201cThe Court\u2019s job is to review,\u201d Caufield stated.\u00a0 When it looks like they have done something other than that the \u201cpublic is not interested in a lecture on constitutional law.\u201d\u00a0 \u201cWe don\u2019t have a bumper sticker message\u201d, she noted; as she pointed out that critics of the courts have the upper hand.\u00a0 Thirty-three states have the merit selection process that Iowa has, often called the Missouri Plan.<\/p>\n

I came away from the discussion knowing that there exists another example of what could happen if nothing is done, or if something drastic is done.\u00a0 Iowa could manage to have a clone of Judge Roy Moore.\u00a0 To refresh your memory, Judge Roy Moore was the chief justice of the Alabama Supreme Court, but was removed from the bench in 2003 \u201cfor defying a federal order to remove his controversial 5,300-pound monument of the Ten Commandments inside the state\u2019s judicial building.\u201d<\/p>\n

There is no doubt in my mind that if nothing is done, the tables will turn in time to produce a Supreme Court that will not use precedent (stare decisis<\/a><\/em>) to rule on a point of law.\u00a0 On the other hand, if a big change is made in the merit selection process, or it\u2019s abandoned, it will be a matter of time before Iowa gets a panel of justices that will not use stare decisis<\/a><\/em> to rule on a point of law.<\/p>\n

Really, it\u2019s not broken.\u00a0 Let\u2019s not fix it.\u00a0 In any case (no pun intended), I\u2019m still waiting to hear about \u201cMedia Coverage of the Courts.\u201d<\/p>\n

 <\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

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