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Three Iowa judges may face voters' retaliation

By Grant Schulte, USA TODAY

DES MOINES — Three Iowa Supreme Court justices who were part of a unanimous decision last year to allow same-sex marriage may pay the price next month as voters decide whether to keep them on the bench.

A Des Moines Register Iowa Poll released Monday shows that 44% of Iowans who plan to vote in the retention election say they will vote "yes" to all three justices; 40% say they will vote to remove all three; and 16% say they want to retain some.

Scholars who study judge-selection practices said the removal of even one justice would shock judiciaries across the nation, embolden conservative activists and could open the door to changes in the way Iowa chooses judges.

"Those poll numbers are stunning," said Brian Fitzpatrick, a Vanderbilt University associate law professor who has followed Iowa's retention debate. "It is virtually unheard of for a judge to lose a retention race."

No Iowa Supreme Court justice has lost a seat since the state adopted a merit-selection and retention system in 1962.

The justices have won retention with an average 75% support since 1998.

The Iowa retention battle is part of an unusual movement happening in three other states, said Charles Hall, a spokesman for the Justice at Stake Campaign, a non-partisan organization that seeks to keep state and federal courts fair and impartial.

Business groups in Illinois have waged a retention challenge against Justice Thomas Kilbride for a decision that overturned medical malpractice limits, Hall says.

In Colorado, the group Clear the Bench is protesting court decisions it said will raise taxes, he says.

Kansas Supreme Court Justice Carol Beier also faces a retention challenge, the Fire Beier campaign, for her rulings on abortion issues, Hall says.

The Iowa Poll results come more than a year after a unanimous Iowa Supreme Court decision that overturned the state's one-man, one-woman marriage law and allowed same-sex couples to wed.

Ousting the Iowa justices would not undo the ruling on same-sex marriage or change the way judges are selected in the state.

Bob Vander Plaats, a former Republican candidate for governor, strongly opposed the ruling and started a campaign to unseat the three justices on the ballot: Chief Justice Marsha Ternus and Justices David Baker and Michael Streit.

Vander Plaats says the court overstepped its power because it failed to return the issue to the Legislature or submit it to voters as a constitutional amendment.

"That's what they should have done," Vander Plaats said in an interview last month. "Where they went outside of their bounds, they decided to take authority that wasn't theirs."

Supporters of Iowa's merit-selection system for judges say a vote based on politically divisive rulings threatens fairness in the courts.

Two new groups — Iowans for Fair and Impartial Courts, and Justice, Not Politics — launched efforts in recent months to promote the merit-selection system. Neither organization advocates a vote for or against the justices