Justice: Iowa Supreme Court disappointed by retention vote but moving on

The Iowa Supreme Court is operating in “a strange environment” since three members were defeated in Nov. 2 retention votes, but the justices are “moving on” and expect to function through the transition while a nominating commission selects candidates to replace the ousted trio next year, according to Justice David Wiggins.

Wiggins, who faces a retention vote in 2012, said the law says three justices constitute a quorum so the court will be able to continue deciding cases once the current seven members are cut to four when the terms of Chief Justice Marsha Ternus and Associate Justices Michael Streit and David Bakers end on Dec. 31.

“Although I'm disappointed with the results of the last retention election, I am not going to second guess its results. It is what it is. It's now time for the court to move on,” said Wiggins as a participant in a forum sponsored by the American Constitution Society that drew about 50 people for a discussion of the retention election and future of Iowa's merit-based selection system and judicial independence.

Wiggins said the state's Judicial Nominating Commission should receive the certified 2010 election results as early as Friday and will begin an orderly process of interviewing prospective justices and nominating candidates from which the sitting governor - either current Gov. Chet Culver but more likely Governor-elect Terry Branstad after he is sworn in Jan. 14 – will choose the new replacements.

“The merit selection system is still the best way to appoint judges to any court, including our court in this state,” he said.

Wiggins praised his outgoing colleagues as intelligent people of exceptional integrity.

“I've never at any time experienced one of these individuals trying to try a case on their personal views, but rather attempting to decide the case based on the framework of the law and the constitution,” he said. “I will truly miss them as colleagues. That being said, I think we need to move on.”

However, other panelists during the progressive legal organization's forum warned that protectors of judicial independence should view the just-completed election as a “wake-up call” to be better prepared and better funded if similar efforts are mounted to defeat the remaining four justices who were part of a controversial 7-0 decision in April 2009 that struck down a state law defining marriage as only between a man and a woman – clearing the way for civil marriages of couples of the same gender in Iowa.

“We cannot take for granted that Iowans know and appreciate and understand the courts,” said Troy Price, political director for One Iowa, the state's largest gay-rights group, who advocated a mix of education and better-financed campaigning heading into future elections. He said judicial advocates could not “overcome the hundreds of thousands of dollars in shadowy out-of-state money” that flowed into Iowa to defeat the justices who stood for retention.

“We have to be ready to implement real candidate campaigns to defend judges who may be targeted by an anti-retention effort,” Price said. “From the district court level to the Supreme Court level, we have to be able to hit back and hit back with targeted arguments to counter the misinformation campaigns that we saw this year. We have to stand ready, we have to take all threats seriously and we have to defend the members of the courts who have taken courageous positions in their current roles.”

R. Ben Stone, executive director of the American Civil Liberties Union of Iowa, called last month's retention votes to remove three sitting members of the Iowa Supreme Court an unprecedented event that threatens individual freedoms.

“What we witnessed here was kind of a test run for other places in the country,” Stone said. “The role of money in judicial elections is absolutely a serious threat to civil liberties. There can be no civil liberties, there can be no individual freedom in a country that does not have an independent judiciary, and in a state that doesn't have an independent judiciary, all the rights that are at stake in the state courts are up for grabs.”

Wiggins said supporters of Iowa's judicial system “did all they could do and it wasn't enough, but who knows what would have been enough.” He left immediately after the forum without talking to reporters.?