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Was the November retention vote that led to the ouster of three Iowa Supreme Court justices legal? That’s the question that will be posed during a Monday hearing on a new lawsuit brought by three Polk County attorneys.
The suit, which was filed in Polk County, charges that the Iowa Constitution requires judicial retention votes be done on a separate ballot. Since other offices and elections were included on the Nov. 2 ballot, those bringing the suit believe the retention vote was done illegally.
The November retention, which followed a unanimous April 2009 decision by the Iowa Supreme Court to strike down a ban on same-sex marriage as unconstitutional, was perhaps one of the most controversial statewide ballot questions in recent history. Anti-gay groups from out-of-state dropped nearly $1 million in Iowa in hopes of influencing Iowans to oust the three Supreme Court justices that appeared on the ballot. The fact that Iowa voters chose to oust the three justices has rippled throughout the nation and left many wondering how states can ensure an independent judiciary.
The three attorneys bringing the suit — John P. Roehrick, Thomas W. George and Carlton Salmons — want the court to stay the decision by voters, effectively keeping the three justices on the bench. The suit names Michael Mauro, as Iowa Secretary of State and the state’s chief elections officer, as well as the three justices.
The suit relies on the Iowa Constitution, Article V, Section 17, which reads as follows:
Terms – judicial elections. Sec. 17. Members of all courts shall have such tenure in office as may be fixed by law, but terms of Supreme Court Judges shall not be less than eight years and terms of District Court Judges shall not be less than six years. Judges shall serve for one year after appointment and until the first day of January following the next judicial election after the expiration of such year. They shall at such judicial election stand for retention in office on a separate ballot which shall submit to the question of whether such judge shall be retained in office for the tenure prescribed for such office and when such tenure is a term of years, on their request, they shall, at the judicial election next before the end of each term, stand again for retention on such ballot. Present Supreme Court and District Court Judges, at the expiration of their respective terms, may be retained in office in like manner for the tenure prescribed for such office. The General Assembly shall prescribe the time for holding judicial elections. Added 1962, Amendment [21].
Secretary of State-elect Matt Schultz, a Republican that will take over the office from Democrat Mauro next year, labeled the suit “an attempt to overturn the voice of the people” and seemed to caution those bringing the case that it could back-fire.
“This has the potential for turning the entire system on its face,” Schultz said in a prepared statement. “Under this logic every judge in the State of Iowa who has retained in November would be up for retention again. I think the second time around more than three judges would lose their jobs.
“I have spoken to Secretary of State Michael Mauro and I can assure you that on this issue we are united. I will continue to fight this lawsuit when I take office January 3. I hope the Bar Association and reasonable attorneys across the state will support the Secretary of State’s office and the results of the election. The entire judicial process as we know it could be in jeopardy.”
According to Mauro’s office, all judicial retention votes in recent history have taken place on a ballot alongside other questions. The office will be represented by the state’s attorney, a representative of the Attorney General’s Office.
The suit is the first to call into question the legitimacy of the November vote, but it is hardly the first to demand legal opinions on the state’s process that elevates individuals to the judicial bench. Earlier this month a controversial out-of-state attorney, James Bopp Jr., filed a case on behalf of four Iowans that seeks to change the way the State Judicial Nominating Commissions are selected and operate. Rumors of additional lawsuits continue to swirl throughout the state.
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