Iowa Supreme Court disagreeing more

One night in 2009, Curtis Hoyt and a friend were accused of harassing another patron, Curtis Knapp, at Gutterz Bowl and Lounge in Guthrie Center.

Gutterz staff warned Hoyt to stop, discontinued serving him beer and eventually asked him to leave for fear of a fight. Unbeknownst to the staff, the two had bad blood between them.

Still, Knapp sat calmly. Gutterz employees said they appropriately kept the peace and had no way of anticipating that Knapp allegedly would follow Hoyt to the parking lot and attack him.

After the attack, Hoyt sued Gutterz for failing in its duty to provide reasonable care for its patrons.

The district court sided with Gutterz and dismissed the bar from the case. But the Court of Appeals overturned that ruling, and the Iowa Supreme Court took the case.

As is increasingly common in recent years, the seven justices also disagreed how to interpret the law.

Justice Daryl Hecht, who wrote the majority opinion joined by Justices David Wiggins, Brent Appel and Bruce Zager, said a reasonable person might conclude Gutterz staff should have foreseen the potential danger to Hoyt and the bar could be found liable for his injuries.

Justice Thomas Waterman, who wrote the dissent joined by Justice Edward Mansfield and Chief Justice Mark Cady, called it "excessive precaution" to expect Gutterz to call police or escort Hoyt to his car.

The Iowa Supreme Court sided with Hoyt, and sent the case back to the district court for trial. But with a 4-3 split decision, the outcome hardly inspires confidence.

"Totally confused," Gutterz owner Rodney Atkinson said last week of the April 5, 2013, ruling. "It makes you doubt the truth."

The Iowa Supreme Court finds itself in an unusual position, at least by Iowa standards. The seven justices disagrees on how to interpret the law more than it has in years.

The number of cases with dissenting opinions on the Iowa Supreme Court jumped from 6 in 2009, to 22 in 2011-12 and 34 in 2012-13, according to a database of cases prepared by lawyer Ryan Koopmans and The Gazette. There have been no dissents through two months of the current term. 

Request for interviews with current justices were denied.

Legal experts said speaking with one voice through a unanimous decisions is more powerful, evokes more confidence, provides greater clarity and helps legitimize the court. While dissents also can have a positive effect, they can cause confusion in the law, signal justices crusading for personal ideology, politicization or friction among justices, and even could lead to social unrest.

At the national level, where dissents are much more common than in Iowa, Chief Justice John Roberts placed an emphasis on consensus in the U.S. Supreme Court.  One voice provides "clarity and guidance" for lawyers and lower courts, and unanimous decisions on hot-button issues is beneficial for the nation, Roberts said, according to reports by CNN and Associated Press.

Guy Cook, a laywer with Grefe & Sidney P.L.C. in Des Moines and president of the Iowa State Bar Association, said it is too early to draw conclusions about whether the higher number of dissents on the current Iowa Supreme Court is a sign of problems.

"I don't think what ever the numbers are, at least at this point, would suggest the dissents serve a disservice or are wrong or are an improper direction for the court," Cook said. "The Iowa court is routinely rated in the top 10 or five in country."

A University of Chicago law school study on the best and worst high courts in the country cited several surveys over the years that routinely rank Iowa among the best for competence, impartiality, influence and overall quality.

Despite the spike, dissents on the Iowa Supreme Court still only amounts to about a third of the cases, which is considered fairly low.

Guy and others said it's not a red flag. The higher the court, by design the more difficult the cases they face.

Still, the number of dissents has jumped noticeably, and the question remains why that would be. Some say it's a cyclical pattern. Others say the it's because of the type of cases being selected.

The only significant change recently in Iowa that can help explain the increase in dissents is the justices themselves.

A judicial retention vote in 2010 ousted three justices who were part of the unanimous ruling the year before that paved the way for legalized gay marriage in Iowa. Zager, Waterman and Mansfield joined the court at that point.

Mark McCormick, who served on the Iowa Supreme Court from 1972-86 and is now a lawyer at Belin McCormick in Des Moines, said his

 impression is that the court in the 10 years prior to the retention election was "more homogeneous than it was before or since then."

"I have not been surprised by the fact there are more split opinions now than before the changes in membership," McCormick said. "I believe dissents based on strongly held beliefs are healthy. They are a sign of internal debate.

"They are an external sign that the court members are looking over each other's shoulders and giving careful consideration to its cases." 

Others also have suggested the previous court may have agreed too often. Too much consensus also can be problematic.

Koopmans, a lawyer with Nyemaster Goode PC in Des Moines and writer on Iowa's Appellate Blog, has noticed some trends in the recent wave of dissents in Iowa.

Fourth amendment cases dealing with unreasonable search and seizures as well as duty of reasonable care cases, such as Hoyt v. Gutterz Bowl, are among the more common cases for dissents, Koopmans said. 

His data also shows voting blocs emerging in the dissents, with Mansfield and Waterman on one side and Wiggins, Appel and Hecht on another. Zager and Cady function as swing votes, he said.

However, some of the split decision cases run contrary to these findings.  

For example, in Iowa v. Lindell, Christopher Lindell violated a no-contact order about a month after being convicted of stalking, and received a new stalking charge. Stalking requires a pattern of at least two incidents, and the series of incidents that led to his first conviction were being used also to support the second.

Lindell argued he was protected by the double jeopardy clause, which prevents being punished twice for the same offense.  

The justices ruled 4-3 against Lindell with a different mix of justices on either side. Wiggins, Hecht, Zager and Waterman were in the majority and Mansfield, Cady and Appel dissented.

This is a good sign, Koopmans said, because it shows justices are examining each case and drawing conclusions independently. 

Dissents can play an important role in the law. 

Dissents force the majority justices to sharpen their position and, when read together, it can help clarify a majority opinion. Justices are called to register a dissent if there's a substantive difference in their analysis of a case.

"There's lots of  examples of dissenting justices vindicated by history," said Anthony Gaughan, a law professor at Drake University. "The judge may have been on the losing side of the case, but the winning side of history."

Two of the most famous cases show the value of a consensus and dissent.

Plessy vs. Ferguson, the 1896 racial segregation case that upheld separate but equal, included a lone dissent that provided a path forward for the desegregation argument.

Nearly 60 years later in the 1954 Brown vs. Board of Education case, the U.S. Supreme Court unanimously struck down segregation. Chief Justice Earl Warren engineered a ruling without dissents or separate concurring opinions to help avoid social upheaval.

In Iowa, there was the landmark 2009 Varnum v. Brien ruling, in which justices unanimously agreed it was unconstitutional to deny marriage licenses to gay couples.

"Our Varnum decision gained a great amount of credibility in Iowa and around the nation because it was unanimous," said Michael Streit, who served on the Iowa Supreme Court from 2001-2010 and now is a lawyer with Ahlers and Cooney PC in Des Moines. "It was not a conscious decision, but looking back it was very important."

Streit said the justices he worked with would circulate drafts of opinions, debate the facts, then circulate a new draft. They would try to take into account opposing views and, when possible, incorporate it into the majority opinion.

The process took longer, but their approach was to reach a decision that most everyone agreed with - the right decision, he said.

Streit said he believes his court placed a greater priority on reaching consensus than today.

"Our attitude was, 'We want to get this right,'" Streit said. "In getting this correct, we'd consider current law, (the) Constitution and ramification of the decision made by the court. We put our heads together to determine what this law meant, and through that process we reached more unanimous opinions.

"That's not to say they are not trying to get it right today. We had a different style than they have today."