“Supermajority” Bill Could Change the Outcome of State Constitutional Questions before the Iowa Supreme Court

by Rox Laird | March 20, 2018

A bill passed by the Iowa Senate (S.F. 2282) would block the Iowa Supreme Court from declaring a State statute unconstitutional if the decision is not supported by at least five justices of the seven-member Court.

Although the bill failed to make it out of committee in the House by Friday’s deadline, legislative leaders could still bring it to the floor for consideration this session.

A proponent of the bill, Sen. Julian Garrett, an Indianola Republican, says it is wrong that under the current majority requirement a state law approved by majorities of the House and Senate and signed by the governor can be overturned by four justices of the Iowa Supreme Court.

“This is a bill that tries to make a small step to address that issue,” he said during the Senate debate. “You have to persuade five judges instead of four that a law is unconstitutional.”

The “supermajority” requirement, however, raises constitutional questions regarding the boundary between the legislative and judicial branches of government, according to two constitutional scholars.

“It seems like a constitutional non-starter to me,” University of Iowa law professor Todd Pettys told On Brief last week. The U.S. Supreme Court would not honor a bill from Congress that required a supermajority, Pettys said, and the same separation-of-powers principles apply to state and federal courts.

Mark Kende, director of the Constitutional Law Center and at Drake Law School and who holds the James Madison Chair in Constitutional Law, agreed:  “I believe this is a dangerous step to undermine the role of the judiciary interpreting the Constitution,” Kende said.

Article III Section 1 of the Iowa Constitution addresses the separation of powers:

“The powers of the government of Iowa shall be divided into three separate departments — the legislative, the executive, and the judicial: and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining to either of the others, except in cases hereinafter expressly directed or permitted.”

But Garrett said in an interview with On Brief he does not see the proposed legislation violating separation of powers.

“Our Iowa Constitution specifically says the Supreme Court can correct errors of law ‘under such restrictions as the General Assembly may, by law, prescribe’,” Garrett said, referring to Article V Section 4. Garrett said that provision enables the Legislature to require the votes of five justices of the Supreme Court to overturn a state statute. “The Constitution says we can pass the rules and regulations of the Court, so I don’t see why we can’t.”

Article V Section 10 authorizes the Legislature to increase or reduce the overall number of justices, suggesting that lawmakers also may dictate the number of justices required to strike down state statutes. But Pettys argues there is a qualitative difference between legislators establishing the size and jurisdiction of an appellate court and dictating the court’s internal rules for how it makes decisions.

Pettys likened the latter to legislators going into the chambers with the justices – where no one else is allowed – and saying, “We want you to have one more justice” in the majority or you can’t speak on this subject. “That’s just a pure naked power grab by the Legislature. It totally drains the judicial branch of government of its most important job, which is to decide what is structurally permissible” in writing state laws.

Constitutional amendment or legislation?

Two states – Nebraska and North Dakota – currently require supermajorities to strike down state statutes, but both were done by constitutional amendment during the progressive era a century ago, not by statute.

 “We could do it either way,” Garrett said, but he pointed out that amending the Iowa Constitutional is a lengthy process.

“The courts are not bashful about changing the Constitution, rather than allowing the people to do it through a constitutional amendment,” he said.

“I’m just trying to put a little bit of a damper on their propensity to change the meaning of the Constitution. You’ve heard this ‘living, breathing Constitution concept.’ It gives the Court the power to do whatever it wants. It’s a very clever theory that enables them to make the changes they want in the Constitution.”

What if a supermajority were already required in Iowa?

Though it does not happen often, the Iowa Supreme Court has held state statutes unconstitutional with a one-vote majority. What would have been the outcome of some recent decisions had a supermajority requirement been on the books?

For one, riverboat casinos might be taxed at a significantly lower rate than racetracks. The Iowa Supreme Court in Racing Association v. Fitzgerald (2002) struck down the statutory tax scheme that set different rates for different casinos. The Court, by a vote of 4-3, ruled unequal tax treatments violated the U.S. and Iowa Constitutions. (On appeal, the U.S. Supreme Court reversed regarding the federal Constitution but the Iowa Supreme Court subsequently stuck by its position based on its reading of the Iowa Constitution, this time with five justices in the majority.)

Juvenile offenders could face longer prison sentences in Iowa. Perhaps the most persistent 4-3 split on the current Iowa Supreme Court involves juvenile criminal sentences the Iowa Court has handed down in the wake of U.S. Supreme Court decisions based on evidence that juvenile mental and emotional development is not the same as adults.

The Iowa Supreme Court ruled 4-3 in 2014 State v. Lyle (2014) that, in the case of juveniles, one-size-fits-all mandatory minimum prison sentences prescribed by the Legislature violate the Iowa Constitution’s equivalent of the Eighth Amendment. The Court in Lyle said a juvenile could be sentenced to a minimum prison term before being eligible for parole, but there must be a finding by a trial court that weighs a number of mitigating factors, including the offender’s age, family and home life, the nature of the crime and his or her potential for reform.

Additionally, undocumented immigrants living in Iowa could be prosecuted by the State for using forged documents to obtain employment. The Court, in State v. Martinez (2017), ruled 4-3 that such prosecutions by the State violate the Supremacy Clause of the U.S. Constitution because the State statute is pre-empted by federal immigration law.

“Court packing” in Iowa?

The size of the Iowa Supreme Court has changed a number of times over the past 180 years, beginning with three judges in the Territorial era and growing to nine before it was shrunk to seven by a 1998 statute at the same time the Iowa Court of Appeals was enlarged.

Thus, State legislators could increase the size of the Supreme Court in an effort to dilute the votes of justices whose opinions they dislike. That is what President Franklin Roosevelt sought to do in the famous, though short-lived, “court packing” scheme in 1937, which was roundly criticized by both parties.

“And to be clear,” Drake’s Kende noted in commenting to On Brief about the Iowa supermajority proposal, “I would have opposed FDR’s court packing scheme as well so my position is not partisan.”


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