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DES MOINES — The Iowa Senate on Tuesday approved a significant change to Iowa’s judicial system, voting 26-24 to require the concurrence of a supermajority of five Iowa Supreme Court justices to hold a state law unconstitutional.

Backers of Senate File 2282 called it a needed revision to guard against judicial activism while opponents decried it as a legislative over-reach that would upset the balance of power among the separate branches of government.

“I, and many people, believe that when judges are deciding cases and ruling on the constitutionality of laws they should follow the Constitution as it was written and not reinterpret according to their personal opinions on what they think the law should be,” said Sen. Julian Garrett, R-Indianola.

Garrett, who was joined by 25 other Republicans in passing the bill, expressed concern over an emerging view by judges who regard the Constitution as a “living, breathing document” in interpreting its provisions which has created situations where the court essentially has amended the Constitution based on the opinion of four unelected judges.

“This bill corrects what I think is a problem with our system. Folks, that is a tremendous amount of power to give to four judges,” Garrett added. “This is a bill to make a small step to try to address that issue.”

He said raising the requirement to five affirmative justices to rule a law unconstitutional would better protect the will of the people as expressed through their elected legislators and the governor.

“This will erode the judicial independence of the Iowa Supreme Court. That is wrong,” said Sen. Jeff Danielson, D-Waterloo, who joined 19 Democrats, three Republicans and one independent in opposing the bill’s passage. “There are other remedies,” he and others noted, including asking Iowa voters to amend the Constitution rather than making a statutory change.

“You’re really taking a dangerous move here,” said Ocheyedan independent Sen. David Johnson. “This is sheer madness to be changing our court system.” Sen. Herman Quirmbach, D-Ames, called the bill a legislative “power grab,” while Sen. Nate Boulton, D-Des Moines, decried the proposal as a “major, major change” Republicans were trying to “sneak” in through the back door that could “set off a constitutional struggle.”

However, Sen. Jason Schultz, R-Schleswig, called Garrett’s proposal a “well-thought-out bill” that acknowledges that the Constitution is a contract and the Legislature was well within its statutory authority to place restrictions on the judicial system.

“I believe this is a statement that definitely needs to be made in this day and age,” Schultz said in decrying situations where judges appear to be “putting their thumb on the scales when they’re supposed to be reading the Constitution.” Others called the change on parallel with a legislative requirement to have a supermajority to override a gubernatorial veto.

Sen. Matt McCoy, D-Des Moines, said the move followed GOP efforts to punish the courts with budget cuts and conservative campaigns to unseat justices after a controversial 2009 same-sex marriage ruling, warning proponents the bill is “not going to stand up, it’s not going to survive the smell test” because “on its face its’ completely unconstitutional and completely unnecessary.”

Sen. Charles Schneider, a West Des Moines attorney who was one of the three GOP senators voting against the bill, said he thinks the court has functioned well under current law and he didn’t see the need to increase the number from a simple majority to five justices in ruling a law unconstitutional.

“I do believe that it’s something that the people of the state ought to weigh in on and if a change were to be made I would rather that it be made by the people of the state as opposed to an elected body of legislators,” said Schneider.

“I understand the reason why Sen. Garrett brought the bill. He brought it out of frustration of the court ruling in a way that he didn’t deem proper,” he added. “This could also be used against him in situations where he would want the court to declare something unconstitutional, so to me that doesn’t really solve the issue he’s trying to address.”

The bill now goes to the Iowa House for consideration.

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