Campaign to unseat judges rocks selection process

2010-09-30T19:33:00Z Campaign to unseat judges rocks selection processBy Trish Mehaffey, For The Globe Gazette Mason City Globe Gazette
September 30, 2010 7:33 pm  • 

If he’d been expected back in 1985 to go out with “hat in hand” and raise money to run for the bench, Judge Van Zimmer isn’t sure he would have done it.

“Having to go out and raise money from lawyers and litigates who appear before judges is very unseemly,” said the Iowa Appeals Court senior judge. “We have a good system worth defending.”

Iowa selects judges by merit instead of by election. Applicants for justice or judge are selected by a nominating commission.  Selected judges are up for a retention vote every two years.

Rachel Caulfield, associate law professor at Drake University, said the system has worked well since 1962. Just look at how many judges were removed in retention elections in 48 years — only four, she said.

The system has kept the judiciary insulated from “big money” and politics, Caulfield said.

Zimmer and Caulfield are just two among many in the state defending Iowa’s merit selection system because of Bob Vander Plaats’ “Iowa for Freedom” campaign.

The former gubernatorial candidate wants to unseat three “activist” Iowa Supreme Court justices, because they legalized same-sex marriage last year by declaring the state’s Defense of Marriage Act unconstitutional.

Vander Plaats said his sole focus is to get Chief Justice Marsha Ternus and Justices David Baker and Michael Streit off the bench. They are all up for a retention vote in November, and he wants to make voters aware they have the power to say no.

Vander Plaats said it’s not his intention to change the way judges are selected.

“I’m not a proponent of electing judges,” he said.

Norbert Kaut, spokesman for Iowans for Fair and Impartial Courts, said it’s disingenuous for Vander Plaats or anyone to say they didn’t know this would affect the merit selection system.

“If judges are threatened in retention elections, they may be forced into forming a campaign effort to stay on the bench,” Kaut said. “They will be put in the position of having to go out and get money.”

Kaut said the non-partisan advocacy group beefed up its efforts to educate voters when Vander Plaats started his campaign. Iowans for Fair and Impartial Courts actually started forming last year, though, because of what was happening in other states.

A recent report by the Brennan Center for Justice documents how state judicial elections have evolved and how much money is spent on judges’ campaigns. The study found campaign fundraising more than doubled, from $83.3 million in 1990-99 to $206.9 million in 2000-09.

There are about 39 states who elect some or all judges. It gets confusing, because some states use a combination of election and merit, depending on the court, such as supreme or district level.

Kaut said because of special-interest money contributed to Vander Plaats’ campaign, his group will be outnumbered. Iowans for Fair and Impartial Courts relies on volunteers.

“They’re running a TV ad that’s $60,000,” Kaut said. “This is from (the American Family Association) that doesn’t have any interest in Iowa courts. They only care about one issue (same-sex marriage).”

Vander Plaats bases his claim that the justices “overstepped their bounds” on Article 12.1 of the Iowa Constitution:

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.

Vander Plaats said the court can void any legislation determined to be unconstitutional, but then it should go back to the Legislature.

Mark McCormick, an Iowa Supreme Court justice from 1972-86, said Vander Plaats is wrong in his interpretation. The issue didn’t have to go back to the Legislature. The statute was found invalid, so there’s nothing to correct, “nothing to send back,” he said.

“It’s just retribution for the justices who made this decision,” said McCormick, a Des Moines attorney. “Now, the justices could form a campaign committee to fight this, but I don’t think they will do that.”

Caulfield pointed out two more misperceptions looming over this debate.

“One is that getting rid of the three justices will change policy, because it won’t, and the other is this is only about Supreme Court justices. Vote ‘no’ on one ballot could mean a vote ‘no’ on all judges,” she said.

Caulfield said people might overreact and vote out judges who had nothing to do with the same-sex marriage ruling.

She said it doesn’t matter what Vander Plaats intentions are, because his campaign has kicked off a broader conversation on the way judges are selected in Iowa.

Caulfield said another danger is how the retention vote is used. The retention election is designed to remove judges who are unfit. “It’s not the purpose of retention to vote out judges because you don’t like this one decision they made,” she said.

Zimmer, who has thoroughly researched the Iowa merit selection process, said the system was changed from electing judges, because people felt the judges were too partisan. The concern was they were influenced by political pressure and couldn’t rule in a fair and impartial way.

“It was a broad-based effort on both sides to change the system,” Zimmer said. “The merit system passed in 70 of 99 counties in 1962.”

The four judges ousted in retention elections since then are: District Associate Judge David Halbach from Clinton in 1976; District Associate Judge Anthony Scolaro from Cedar Rapids and District Associate Judge Roger Halleck from Marshalltown, both in 1978; and District Judge Rodney Ryan from Des Moines in 1994.

Zimmer said all the judges were removed because of character or behavioral issues.

“If voters get a chance to understand the system, I think it will make sense to them,” Zimmer said. “Any time a judge is asked to make a tough decision, it makes folks unhappy. Our job is to support and defend laws and the constitution of the state. Judges don’t get to pick their cases.”

— Trish Mehaffey is a reporter for the Cedar Rapids Gazette.

Copyright 2015 Mason City Globe Gazette. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

(13) Comments

  1. Todd Blodgett
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    Todd Blodgett - October 03, 2010 5:20 pm
    WHOAH, Ally -- "Let Texas go?" No way. At least not before Puerto Rico, American Samoa, Hawaii (except for their military bases) New Mexico, and at least half of Arkansas, West Virginia, most of the southern half of California, Atlanta, Detroit, Cleveland, Newark, Houston (sans River Oaks
  2. LGBTAlly
    Report Abuse
    LGBTAlly - October 01, 2010 10:03 pm
    Texas can have McCain too, as far as I'm concerned. He took down several planes before going to Vietnam and anyone else (anyone who wasn't the son of an admiral) would have never flown another plane after that. McCain had only about 20 hours in combat but got 28 medals. That's a medal-and-a-half for each hour in combat. A lot of infantry guys with more than 7,000 combat hours didn't get medals. How many pilots got that many medals for not being shot down?
  3. gonefishing
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    gonefishing - October 01, 2010 8:42 pm
    Good post, Ally, I say let em go lets see how they would start their own dept of defense. Maybe they could have GWB flying combat missions over the TX and MX border! LOL
  4. LGBTAlly
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    LGBTAlly - October 01, 2010 3:27 pm
    Todd is messing with y'all again: that's just an old version of an urban legend. Last year, Gov. Perry said that they could leave the union if they decided to do that and two days later, their House zeroed out the governor's budget.

    I'd say let Texas go ahead and try to exercise that alleged right to secede. They can even keep GWB, Tom DeLay, and all the other good ole boys; they would probably not know what to do without those boys to tell them.
  5. Todd Blodgett
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    Todd Blodgett - October 01, 2010 10:25 am
    Keep in mind, 'GoneFishing', regarding your 8:20 post, that according to constitutional scholars, and most Texas Governors (including the current one), and law professors, and federal and state judges, ANY time Texas wants to leave the U.S. it can legally do so. Texas is the only state with this legal right, based on the deal given it by President Tyler and the U.S. Congress, back in 1844-45. Even the War Between the States failed to negate that duly negotiated and legally sanctioned status, ITO
  6. Arthur
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    Arthur - October 01, 2010 6:41 am
    I have no problem with outside interests voicing proper concern about issues within Iowa. My problem is that their concern is about the morality, not the legality, of a specific ruling. Their concern is not the proper issue of retention based on the judicial acumen of judges.
  7. Arthur
    Report Abuse
    Arthur - October 01, 2010 6:36 am
    I think that it is too difficult for most people to separate the judicial principle of determining constitutionality and the popularity of individual rulings.

    QUOTE FROM LETTER: “If voters get a chance to understand the system, I think it will make sense to them,” Zimmer said. “Any time a judge is asked to make a tough decision, it makes folks unhappy. Our job is to support and defend laws and the constitution of the state. Judges don’t get to pick their cases.”
  8. KenS
    Report Abuse
    KenS - October 01, 2010 12:19 am
    I much agree, it would be wrong to allow special interests to influence our judiciary. We want an independent judiciary which will decide cases by points of law, and case merits, not on how much someone contributed to their campaign.

    We want judges who merit the appointment, not political hacks. If the judiciary is turned into a roost for patronage workers, the concept of blind justice is forever lost.
  9. gonefishing
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    gonefishing - September 30, 2010 10:23 pm
    Keith you need to realize "what comes around, goes around and what goes around, comes around", it all works out in the end!!
    The judicial system in our state needs to be left alone! PERIOD! Want corruption then try TX judicial system!!
  10. Keith
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    Keith - September 30, 2010 8:45 pm
    The selection process should be rocked. Google Nathan W. Tucker. Lawyer in the Quad Cities. He's documented what a farce the current selection process is. There is a thumb on the scale of justice, tilting it to the favor of Democrats.
  11. EMCSQU
    Report Abuse
    EMCSQU - September 30, 2010 8:45 pm
    If judges feel they are going to be looked at over every decision they make justice will erode - special interests will take over. In regard to this ruling for IOWA let's not let a group like American Family Assc. from MISSISSIPPI tell us how to be fair to all our citizens.


    Tax free interests like the catholic church and Knights of Columbus shouldn't be spending money on political points either. Tax the church and there 'charity' groups.



    Vote yes on judges
  12. gonefishing
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    gonefishing - September 30, 2010 8:20 pm
    If you want a corrupt judicial system then start electing them. Take a look at Texas, they elect theirs and they are the most corrupt judges in the country. Oh thats right Texas wants to be their own country, I say lets sell them to Mexico!!
  13. Double 0 7
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    Double 0 7 - September 30, 2010 7:56 pm
    It appears no one was hurt and this was an honest mistake, in part by the bureaucrats in Des Moines.

    So bureaucrats, throw the book at this citizen trying to assist. Show him who is boss and that the rules must be strictly enforced, even when your agency is partially at fault. State government must regain control of all situations.
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