Do retention justice by judging the whole issue

Todd Dorman
Published: October 14 2012 | 5:16 am - Updated: 1 April 2014 | 1:58 am in
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It was disappointing, but not surprising.

The people leading the charge to unseat Iowa Supreme Court Justice David Wiggins stopped by the paper this past week. Bob Vander Plaats and Tamara Scott wanted to tell our editorial board why they’re gunning for Wiggins after bagging three justices in 2010.

I knew that their prime motivation is an undying opposition to the Supreme Court’s Varnum v. Brien decision in 2009, which struck down Iowa’s ban on same-sex marriage. Wiggins was among seven justices who joined the unanimous decision. So he’s now a target.

But I was hoping that they would have a broader legal case against Wiggins, one that dug into other aspects of his 10 years on the court beyond Varnum. Basically, my question for the pair was “What else have you got?”

The answer is nothing. Varnum is the beginning and the end. It is the great white whale, hunted ceaselessly by Captain Vander Ahab. The captain says there is no need to look at any other part of Wiggins’ record. It’s all about harpooning that ruling, and everyone who wrote it.

Nothing can stand in the way. Not reality. Not facts. No argument can be too breathtakingly wrong.

Not the case

The Supreme Court ruled that denying marriage licenses to gay couples is unconstitutional, but Vander Plaats says government officials should have continued to deny them anyway. Apparently, those officials’ oath to uphold the Iowa Constitution is merely a suggestion. As are rulings from Iowa’s highest court.

Speaking of the Iowa Constitution, he contends it has no equal protection clause, except that it does. He says justices violated their code of conduct by consulting outside research in Varnum, except that it’s an acceptable practice in constitutional cases. And, ironically, in this case, one reason the court had to look for outside research was because of the paucity of evidence from same-sex marriage opponents.

Wiggins is quoted by his critics, out of context, looking for a way “around the Iowa Constitution,” except that he really wasn’t. But Vander Plaats says, after 2010’s retention votes, judges like Wiggins need to watch what they say.

All of our freedoms are now threatened, except that they’re not. He insists, straight face, that this hunt is really not about same-sex marriage. It’s just all about the court ruling that made same-sex marriage legal. And nothing else.

If you dig into Wiggins’ record, as I have, you don’t find a justice bent on replacing our freedoms with his robbed tyranny. You, instead, find a justice who is a stickler for precedent and highly skeptical of the use of governmental power. You’d find a dry writer, who, at times, barely veils his contempt for an argument or rationale he disagrees with. Might be part of the reason he scored low in the plays-well-with-others categories on the Bar Association survey.

But you won’t find the activist caricature sold by Vander Plaats et. al.

Check his dissents

I’ve read a lot of majority opinions written by Wiggins, but I think his dissents speak more to his legal thinking as an individual.

In Ames Rental Property Association v. The City of Ames, the court majority affirmed an Ames zoning ordinance that prohibited homes in some parts of the city to house more than three non-relatives. It was an effort to keep students out of some areas. Wiggins, however, believed that Ames made a weak case for such an invasive policy. “It is irrational for a city to attempt to promote a sense of community by intruding into its citizens’ homes and differentiating, classifying, and eventually barring its citizens from the community solely based on the type of relationship a person has to the other people residing in their home,” he wrote.

In Davenport v. Seymour, Wiggins broke from the majority ruling that allowed local governments to install traffic enforcement cameras, writing, “ ... without specific authorization by the legislature to hold owners strictly liable for the acts of a driver, without judicial adjudication, and without DOT authority to regulate who should not be on the roads, I would hold Davenport’s Automated Traffic Enforcement ordinance invalid.”

And in Zaber v. Dubuque, Wiggins disagreed that Dubuque didn’t have to refund any of an illegally collected tax because, more than two years later, the Legislature gave it retroactive permission to collect it. “The facts of this case illustrate why many ordinary citizens distrust their elected officials,” Wiggins wrote.

Are these the arguments of a judge intent on stealing our freedom?

You can vote any way you want. You can jump on Vander Plaats’ whaler and grab a harpoon.

Or, you can dig a little deeper before you decide whether to toss Wiggins. You can consider the whole picture. That’s all I’m asking.

 

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