UPDATES & ANALYSIS

8.16

Changes in members create new alliances on the Iowa Supreme Court

by Rox Laird | August 16, 2019

A new majority emerged during the Iowa Supreme Court’s 2018-19 term that ended in June with the retirement of two justices and the appointment of their replacements, according to an On Brief review of the 108 decisions issued by the court during the 10-month term.

Prior to this term, Justices Brent Appel, David Wiggins and Daryl Hecht tended to vote together on one side of decisions where the Court was split, while Justices Edward Mansfield, Thomas Waterman and Bruce Zager tended to vote together on the other side. Chief Justice Mark Cady often cast the deciding vote for the seven-member Court.

That changed last term with the retirement of Justice Zager, who was replaced by Susan Christensen in September, and with the retirement of Justice Hecht in December, who was replaced by Christopher McDonald. Since their appointments, Christensen and McDonald have often joined Waterman and Mansfield to create a four-justice majority.

A review of the voting patterns of the seven justices this term bears out this trend. (Note: These figures are incomplete, because McDonald joined the court in March, after many cases had previously been decided. Hecht participated in one case before leaving the Court, and Zager participated in four.)

In cases where the Court was divided, Mansfield, Waterman and Christensen were in the majority more often than other members of the Court. Wiggins and Appel were in the majority in just four decisions each where the Court was divided, and the two wrote 29 of the 42 dissenting opinions filed by members of the Court. Appel by far wrote the largest number of opinions at 40, including majority opinions, dissents and concurrences, or a fourth of all the Court’s opinions.

Overall, Waterman and Christensen voted together 92 percent of the time; Christensen and McDonald voted together 90 percent of the time; Waterman and McDonald voted together 86 percent of the time; and Waterman and Mansfield voted together 80 percent of the time. Cady was most consistently in agreement with other justices, by an average of 52 percent.

Members of the court who least often agreed: Appel and Waterman (12 percent of the decisions); Appel and Christensen (13 percent); Appel and McDonald (19 percent).

In the 18 cases where the Court was divided 4-3 or 4-2, Mansfield was in the majority in the largest number of cases (15 of the total), followed by Christensen at 12, Waterman at 11 and McDonald and Cady at 8 each. Waterman, Mansfield and Christensen authored the majority of decisions where the Court was divided 4-3 or 4-2.

There is no way to predict with any certainty how these changes in the Court’s makeup might affect decisions in future terms, but some opinions written by the new justices last term offer insights into how they might challenge the idea of expanding individual rights under the Iowa Constitution, as the Court has done in a number of decisions in recent years.

Among them: Varnum v. Brien (2009), which recognized same-sex marriage; Godfrey v. Branstad (2017), which recognized a constitutional right to sue the State for civil damages for a violation of civil liberties; and Planned Parenthood of the Heartland v. Reynolds (2018), which declared that a woman has a fundamental constitutional right to decide whether to terminate a pregnancy.

The common denominator in these decisions is that the justices in the majority founded these decisions not on the U.S. Supreme Court’s reading of the U.S. Constitution but on the Iowa Court’s independent reading of the Iowa Constitution.

There may be less appetite on the Iowa Supreme Court for that now.

Waterman and Mansfield, who were not on the Court for Varnum, dissented in Godfrey and Planned Parenthood, and if their dissents suggest they are reluctant to reach results under the Iowa Constitution, they may have company in Christensen and McDonald.

This divide was illustrated in a ruling handed down on the last day of the term, State v. Brown, in which the Court in a 4-3 decision held that a police traffic stop was justified based on the officer’s observation of a driving violation even if the driver’s race was also a factor.

In the majority decision, Christensen, joined by Mansfield, Waterman, and McDonald, rejected the appellant’s argument that the stop was illegal under the Iowa Constitution. “If the framers of the Iowa Constitution wanted to create greater search and seizure protections for Iowans,” Christensen wrote, “the nearly identical language of Article I, Section 8 to the Fourth Amendment does not reflect this desire.”

Cady, Appel and Wiggins dissented. In a separate opinion joined by Wiggins, the chief justice made the argument that the Court is not bound by U.S. Supreme Court precedent in such traffic-stop cases, stating “our understanding of justice and the rights entailed in maintaining justice have evolved,” and “[a]s a branch of government committed to justice and protection of the rights of all Iowans, we should not be so beholden to the past that we prevent ourselves from enacting justice in the present.”

And, in a separate dissent joined by Wiggins, Appel recited the Iowa Supreme Court’s history of independently interpreting this state’s constitution rather than deferring to the federal court. And he said the Iowa Court should continue to “‘jealously’ protect our authority to follow an independent approach.”

In a separate concurring opinion, McDonald agreed with Appel up to a point, but he challenged the idea that the U.S. Constitution “sets the floor for claims arising under the Iowa Constitution.”

The Iowa Supreme Court, he wrote, “has treated the Iowa Constitution as a one-way ratchet to provide only greater rights and remedies than a parallel provision of the United States Constitution.” Although the Iowa Supreme Court “has a duty to independently determine the meaning of the Iowa Constitution,” McDonald wrote, that is the case “whether we interpret the Iowa Constitution to provide less or more protection than the federal Constitution.”

In the next term that begins in September, all seven justices will have the opportunity to participate in all decisions, which no doubt will offer more insight into what direction the Court is headed on these issues.

Statistics compiled by Holly Mitchell, Nyemaster Goode.

Overall Opinion Authorship:

 

4-3 and 4-2 Decisions Opinion Authorship:

 

Current Justice Agreement: Non-Unanimous Cases:

 

 

 

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