Call it the battle of the semicolon.
“Article I, section 8 of the Iowa Constitution of 1857 mirrors the language of the (federal) Fourth Amendment except for a semicolon that was placed between the reasonableness clause and the warrant clause in the Iowa Constitution,” writes Iowa Supreme Court Justice Brent Appel in the court’s July 18 ruling in State v. Justin Dean Short. Justices ruled 4-3 that burglary evidence in that case was obtained through a warranted search that violated the Iowa Constitution.
That semicolon, Appel argues, means Iowa’s framers saw a close relationship between the constitution’s ban on unreasonable searches and its ban on warrants issued without probable cause. The federal Fourth Amendment separates these concepts with commas. Can I get an English major?
“Also somewhat extravagant, in my view, is the majority’s claim that our framers’ use of a semicolon rather than a comma in article I, section 8 indicates ‘the framers [of the Iowa Constitution] believed that there was a relationship between the reasonableness clause and the warrant clause,’” writes Justice Thomas Waterman in a sharp dissent.
Short was among the cases that punctuated the court’s eventful 2013-2014 term, which brought rulings on a number of high profile, politically charged disputes.
The court struck a blow for small solar power companies, substituting its legal judgment for the judgment of the Iowa Utilities Board. It allowed a defamation lawsuit against Gov. Terry Branstad and some of his staff members to move forward while shooting down a defamation verdict awarded to a state senator smeared in a campaign ad.
It ruled that a state senate candidate’s second drunk driving conviction did not constitute an “infamous crime” that would preclude his candidacy, and potentially opened the door restoring voting rights to thousands of Iowans convicted of serious crimes.
Lots of news, to be sure. And lots of division. Many of these cases carried multiple dissents from disagreeing justices.
But some of the court’s sharpest divisions were on the question of whether protections guaranteed in Iowa’s Constitution exceed those offered by the U.S. Constitution. It’s an important issue, with significant impacts on how government investigates crime, punishes lawbreakers and protects civil rights.
“Everyone agrees, of course, that the Iowa Supreme Court can interpret Iowa’s statutes and Iowa’s Constitution differently than the U.S. Supreme Court. It’s a given,” said Ryan Koopmans, a Des Moines lawyer who closely follows the Iowa court and publishes the must-read legal blog On Brief.
“But the battle is how much deference do we give these other (federal) cases? And a majority of the court has said, ‘We’ll look at them. We’ll read them. But we like to interpret Iowa’s constitutional provisions more broadly, in many cases, than the U.S. Supreme Court has interpreted the U.S. Constitution.’”
Tug of war
There’s the Short case, where the court continued battling in a tug of war on searches and seizures between Iowa and federal constitutional protections.
In State v. Andre Jerome Lyle Jr., a divided court went far beyond recent U.S. Supreme Court rulings limiting the use of mandatory prison sentences for juveniles. Iowa justices ruled 4-3 that no mandatory minimum sentences for juvenile offenders are permissible under Iowa’s constitution.
And in Pippen v. State of Iowa, although the court turned back a class action claim of discrimination in state hiring practices, in its ruling, Justice Appel left open the possibility that Iowa’s Civil Rights Act could interpreted differently than federal civil rights protections that were the focus of the case.
To those of us watching our courts from the cheap seats, this might seem odd. The U.S. Supreme Court is supposed to be the big dog. When it barks, everybody on the whole front porch is supposed to take notice.
But when it comes to the states, that’s not entirely true. Take the 2002 saga of Racing Association of Central Iowa vs. Fitzgerald, when the Iowa Supreme Court struck down a two-tiered system for taxing racetracks and riverboat casinos. Iowa justices said it violated Iowa’s equal protection clause. But the U.S. Supreme Court said it did not violate federal equal protection.
When it was sent back to the Iowa Supreme Court, the justices stuck to their guns, ruling that Iowa’s protections are stronger.
More than a decade later, the court still is wrestling with the issue.
Point of pride
“The Iowa Supreme Court seems to be really working it into their doctrine,” Koopmans said of the idea that Iowa’s constitutional protections are stronger than federal shields. “Meaning, it’s not just that you see a case here, you see a case there, where, yeah, they decided to go a different direction. The Iowa Supreme Court makes it a point, at least the majority does, to say how proud they are that they’re doing it.”
In the Short ruling, the court disagreed with the District Court and the Iowa Court of Appeals that a police search was legal, even though its court-issued warrant contained errors, because the defendant was on probation at the time. His probation agreement allowed warrantless searches. The majority relied on a 40-year old ruling where the court found that a valid warrant was needed to search a parolee’s home.
But Appel, appointed by Gov. Tom Vilsack, also took several pages to extravagantly argue and explain why Iowa’s Constitution should be interpreted independently: “As has often been celebrated, the first decision of the Supreme Court of the Territory of Iowa, In re (the matter of) Ralph, rejected the claim that a slave in a free state should be returned to his master, noting that under Iowa law a slave within the free territory of Iowa was not ‘property’ and that the laws regarding illegal restraint applied ‘to men of all colors and conditions,’” Appel wrote.
“The decision flatly contradicted the infamous Dred Scott decision of the United States Supreme Court in 1857,” Appel wrote.
Chief Justice Mark Cady concurred with Appel on the Short decision.
“It goes without saying our decisions have not always been without their detractors,” wrote Cady, author of the Varnum v. Brien ruling you might have heard about. “Yet, history has repeatedly vindicated, and the people of Iowa have repeatedly embraced, the bold expansions of civil, constitutional, and human rights we have undertaken throughout the 175 years of our existence as a court.”
Branstad picks dissent
Not everyone is joining that majority parade. Waterman, along with Justices Bruce Zager and Edward Mansfield, all appointed to the court in 2011 by Gov. Terry Branstad, each dissented on State v. Short.
“The majority fails to articulate any standards for interpreting the same constitutional protections differently under federal and state law,” Waterman wrote. “The majority is willing to reach a different result based simply on its own conclusion that particular decisions of the United States Supreme Court are not ‘persuasive.’ Persuasion is in the eye of the beholder. More restraint is warranted when interpreting our state constitution, which by design is so difficult for the people to amend.”
From the eye of this beholder, all of this seems like healthy friction. Although we may not agree with this ruling or that one, I think, overall, Iowa has benefitted from the argument that Iowa’s Constitution isn’t simply a Xerox copy of the federal document, and a copy that should be interpreted identically.
I appreciate the Cady court’s emphasis on the state’s civil rights history. Our legal heritage is important and worth remembering as we prize our liberties and maintain our rights.
But I also appreciate the minority pushback. Because there are going to be moments when Iowans may appreciate the wisdom of federal courts.
So it’s a debate worth having, and worth watching, even from the cheap seats. Down to the semicolon.
• Staff Columnist Todd Dorman appears Tuesdays, Thursdays and Sundays. Comments: (319) 398-8452; email@example.com