# Iowa Supreme Court



Iowa's revised abortion rules still more political than medical

The Iowa Board of Medicine has unanimously approved a new version of administrative rules related to a near-total abortion ban Republicans hope to enforce in the future.

The law, known as House File 732, is currently enjoined under a Polk County District Court order, which the state has appealed. If the Iowa Supreme Court eventually allows the ban to go into effect, the administrative rules would provide some guidance to physicians on how to approach the law’s (mostly unworkable) exceptions.

The revisions approved during a February 15 teleconference meeting address some objections physicians raised when the board discussed the rules in November and January. However, they do not change the reality that the rules don’t match how doctors normally interact with patients seeking to terminate a pregnancy.

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Summit Carbon project mired in contradictions

Nancy Dugan lives in Altoona, Iowa and has worked as an online editor for the past 12 years.

North Dakota officials were pulling no punches during an informational session held in Bismarck last month, highlighting the importance of the Summit Carbon pipeline to both the sustainable aviation fuel market and enhanced oil recovery efforts in the Bakken.

During a December 20, 2023, BEK TV special report that broadcast a Friends of Ag and Energy public information session on the Summit Carbon pipeline, held at Bismarck State College’s National Energy Center of Excellence, Governor Doug Burgum said, “Sustainable aviation fuel, if you want to call it the Saudi Arabia of sustainable aviation fuel, it’s going to happen somewhere between North Dakota and Iowa and in between, the corn belt.”

Kathleen Neset, a geologist and owner of Neset Consulting Service Inc. who moderated the panel, spoke after Burgum, stating the following at the outset:

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Best of Bleeding Heartland's original reporting in 2023

Before Iowa politics kicks into high gear with a new legislative session and the caucuses, I want to highlight the investigative reporting, in-depth analysis, and accountability journalism published first or exclusively on this site last year.

Some newspapers, websites, and newsletters put their best original work behind a paywall for subscribers, or limit access to a set number of free articles a month. I’m committed to keeping all Bleeding Heartland content available to everyone, regardless of ability to pay. That includes nearly 500 articles and commentaries from 2023 alone, and thousands more posts in archives going back to 2007.

To receive links to everything recently published here via email, subscribe to the free Evening Heartland newsletter. I also have a free Substack, which is part of the Iowa Writers Collaborative. Subscribers receive occasional cross-posts from Bleeding Heartland, as well as audio files and recaps for every episode of KHOI Radio’s “Capitol Week,” a 30-minute show about Iowa politics co-hosted by Dennis Hart and me.

I’m grateful to all readers, but especially to tipsters. Please reach out with story ideas that may be worth pursuing in 2024.

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How Iowa is addressing racial disparities in juvenile justice

Black youth in Iowa continue to be punished more severely than white peers for criminal offenses. According to The Sentencing Project’s latest analysis of disparities in youth incarceration (a category covering detention centers, residential treatment centers, group homes, and youth prisons), Iowa remains among the ten states with the highest overall Black youth incarceration rate, as well as one of the ten states with the greatest Black/white disparity in youth incarceration.

Those statistics reflect only one aspect of a larger problem. Early this year, the final report from a Juvenile Justice Task Force established by the Iowa Supreme Court acknowledged that “Gender and racial disparities are present throughout the system.”

Iowa is in the early stages of implementing the task force’s 55 recommendations, at least seven of which relate to racial disparities. (Many more address out-of-home placements for youth.)

However, advocates say Iowa must do more to address the ongoing disparities. And while an expanded diversion program is keeping many young people out of the juvenile justice system, one Iowa county with a particularly troubled history on youth incarceration is in the process of building a much bigger detention center.

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Court finds Iowa's garbage search law unconstitutional

A Polk County District Court has ruled that the Iowa legislature “overstepped” when it enacted a law allowing police to search garbage outside a home without a warrant.

In a November 13 order granting a defendant’s motion to suppress evidence obtained through trash grabs, Chief Judge Michael Huppert found the 2022 law “void as inconsistent with the language of article I, section 8 of the Iowa Constitution as interpreted by the Iowa Supreme Court.”

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Why Iowans can't force a statewide vote on abortion rights

Ohio residents voted to add reproductive rights protections to the state constitution on November 7, passing the measure known as Issue 1 by 56.3 percent to 43.7 percent. When that language goes into effect, it will prevent enforcement of a law Ohio’s Republican trifecta enacted in 2019, which would prohibit almost all abortions after fetal cardiac activity can be detected.

Iowa Republican lawmakers approved and Governor Kim Reynolds signed a similar near-total abortion ban in July. A Polk County District Court blocked enforcement of that law, and the state has asked the Iowa Supreme Court to dissolve that injunction and uphold the law as constitutional.

Voters in Michigan, California, and Vermont approved reproductive rights constitutional amendments in 2022, and activists hope to place similar measures on the November 2024 ballot in other states, such as Arizona, Florida, Nebraska, and Missouri.

Some Bleeding Heartland readers have asked why Democrats aren’t trying to do the same in Iowa, where polls indicate a strong majority of adults believe abortion should be mostly or always legal, and the state’s partisan lean is roughly the same as Ohio’s.

The answer is simple: there is no mechanism for Iowa voters to place a proposed constitutional amendment on the ballot.

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Data show which Iowa counties have (or don't have) representative juries

Five of the eight Iowa counties with the largest Black populations “had trial juries that were fully representative of their jury-eligible Black population” during 2022 and the first half of 2023, according to data analyzed by the Iowa-Nebraska NAACP. However, trial juries in Polk County and Scott County failed to hit that benchmark, and Dubuque County was “particularly problematic,” with zero Black members of any trial jury during the eighteen-month period reviewed.

The same review indicated that trial juries in Linn and Woodbury counties were close to being representative of the area’s jury-eligible Latino population, while Latinos were underrepresented on juries in Johnson, Marshall, Scott, and Polk counties, and particularly in Muscatine County.

Russell Lovell and David Walker, retired Drake Law School professors who co-chair the Iowa-Nebraska NAACP Legal Redress Committee, examined juror data provided by the Iowa Judicial Branch and presented their findings at the 11th Annual Iowa Summit on Justice and Disparities in Ankeny on November 3.

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Iowa attorney honored for half-century of civil rights advocacy

Russell Lovell was troubled by the segregation and discrimination he witnessed growing up in a small Nebraska town and resolved to work on civil rights while attending law school in his home state during the late 1960s. His passion for justice extended beyond his nearly 40-year career as a Drake Law School professor and recently earned Lovell an award from the Notre Dame Alumni Association “for his outstanding dedication to advancing civil rights and his commitment to providing experiential learning to the next generation of lawyers.”

Iowa-Nebraska NAACP President Betty Andrews nominated Lovell for the Rev. Louis J. Putz, C.S.C., Award, citing his “fifty years of exceptional NAACP pro bono civil rights advocacy.” As co-chairs of the Iowa-Nebraska NAACP and Des Moines Branch NAACP Legal Redress Committees, Lovell and fellow Drake Law Professor Emeritus David Walker have collaborated on eight amicus briefs submitted to the Iowa Supreme Court. They have also successfully pushed for systemic reforms to make Iowa juries more diverse.

The Iowa Chapter of the National Bar Association recognized Lovell’s civil rights work and advocacy for representative juries in 2020.

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Iowa county withholds footage related to senator's RAGBRAI arrest

Officials in Sac County, Iowa are refusing to provide footage from law enforcement body cameras and dashboard cameras related to State Senator Adrian Dickey’s arrest last month during RAGBRAI.

Dickey was charged with interference with official acts (a simple misdemeanor) after allegedly refusing to comply with a deputy sheriff’s request to move along a rural road a “big party” of bicyclists were blocking.

The Republican senator has pleaded not guilty and asked for a jury trial. His attorney has characterized the dispute that led to the arrest as a “misunderstanding.”

The day after learning about Dickey’s arrest, I requested relevant records from the Sac County Sheriff’s Office, including copies of body camera and squad car dash camera video from all deputy sheriffs who were present during the incident, as well as audio and video recordings from the jail where the senator was booked. I noted the high public interest in this case, because the defendant is a member of the Iowa legislature.

Responding on behalf of Sheriff Ken McClure, Sac County Attorney Ben Smith said he could not provide the information. He cited Iowa Code Section 22.7(5), a provision in the open records law that declares peace officer’s investigative reports are confidential.

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Judicial ethics in Iowa differ from Washington ethics

Randy Evans is executive director of the Iowa Freedom of Information Council and can be reached at DMRevans2810@gmail.com

There were more disclosures in recent days in the ongoing saga involving the ethical standards of justices on the U.S. Supreme Court—or, more accurately, the lack of ethical standards.

With each new disclosure about our nation’s highest court, the reputations of Iowa Supreme Court justices take on more luster—and deservedly so.

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Article III, Section 29: Iowa Supreme Court, legislature both got it wrong

Cato is an attorney who spent most of his career fighting for civil liberties and other public policy matters in Iowa. He is a lifelong Iowan. His legal interests include constitutional law (separation of powers), federalism, legislative procedures and public policy, and the laws of war. Editor’s note: Bleeding Heartland allows guest authors to publish under pseudonyms at Laura Belin’s discretion.

INTRODUCTION

The Iowa General Assembly changed some practices in light of the Iowa Supreme Court’s ruling in LS Power Midcontinent v. Iowa, which struck down the Right of First Refusal (ROFR) portion of the 2020 Budget Omnibus Bill (House File 2643) as violating Article III, Section 29 of the Iowa Constitution. Justice Thomas Waterman wrote the decision, joined by Chief Justice Susan Christensen and Justices Edward Mansfield and Christopher McDonald. Justices Dana Oxley, Matthew McDermott, and David May recused from the case.

In the weeks following the court ruling, Republicans in both the state House and Senate refused to answer questions during floor debate regarding ambiguities in legislation and other questions relating to how certain language will play out in the real world lives of Iowans. Iowa media covered those developments in April:

Senate and House Republicans seem to have stopped answering questions because the Iowa Supreme Court’s LS Power ruling extensively quoted comments Senator Michael Breitbach made while floor managing HF 2643. They apparently believe the Court used these floor comments as justification for striking down the ROFR provision at issue in that case. 

Attorneys for the state and for intervenors filed applications on April 7, asking the Court to reconsider its conclusions and holdings in the ruling. LS Power filed its response on April 19. The Supreme Court denied the request for a rehearing on April 26 without much explanation. An amended opinion released on May 30 corrected some (but not all) factual inaccuracies in the initial ruling. 

The General Assembly adjourned its legislative session on May 4 without any action in response to the court denying the requests for a rehearing. Only time will tell how this constitutional impasse between the legislative and judicial branches gets resolved. Paths available to both branches could restore the balance of power without escalating the dispute. 

Regardless of how long it takes or how the dispute gets resolved, Iowans must never forget that your constitution exists for the sole purpose of protecting and guaranteeing your individual rights and liberties as free and independent People. Iowa Const. Art. 1, Sec. 2 (“All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right, at all times, to alter or reform the same, whenever the public good may require it.”). 

This article hopes to explain why the Iowa Supreme Court and Republicans in the Iowa House and Senate are both guilty of violating the Iowa Constitution, while also seeking to provide a framework to resolve the impasse between the legislative and judicial branches. Similarly, this article hopes to persuade a future litigant to nudge the court in the right direction in a future case, and to persuade the people to nudge the General Assembly in the right direction consistent with this constitutional framework. 

To that end, here is the analysis of Article III, Section 29 of the Iowa Constitution from the perspective of the Iowa People. 

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Governor turns up pressure on Iowa Supreme Court over abortion ban

Abortion became legal again in Iowa on July 17, after a Polk County District Court blocked the state from enforcing a near-total ban Governor Kim Reynolds had signed into law three days earlier.

Reynolds immediately vowed to “fight this all the way to the Iowa Supreme Court where we expect a decision that will finally provide justice for the unborn.”

It was the latest example of Reynolds striking a defiant tone toward the jurists who will eventually decide whether the Iowa Constitution allows the government to make abortion almost impossible to obtain.

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Moves to impeach justices would undermine Iowa courts

Bernard L. Spaeth, Jr. is chair of the Iowa State Committee of the American College of Trial Lawyers.

The Iowa State Committee of the American College of Trial Lawyers condemns impeachment threats made against Iowa Supreme Court Chief Justice Susan Christensen and Justices Thomas Waterman and Edward Mansfield arising from their decision in Planned Parenthood of the Heartland, et al, v. Reynolds, No. 22-2036 (Iowa Supreme Court, June 16, 2023).

The justices voted to uphold a lower court decision that refused to vacate a four-year old injunction against the 2018 fetal heartbeat bill without new abortion legislation. The Sunday Des Moines Register on July 2 included a guest column from Bob Vander Plaats who argued their judicial act constitutes a “misdemeanor or malfeasance in office” under the Iowa constitution allowing the legislature to impeach and remove them. Nothing could be further from the truth.

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Iowa GOP lawmakers to pass new abortion ban on July 11

UPDATE: The bill text was published on the legislature’s website on July 7. It closely matches the 2018 law, which would ban most abortions after fetal cardiac activity can be detected. Original post follows.

Governor Kim Reynolds has called a special session of the Iowa legislature for July 11, “with the sole purpose of enacting” new abortion restrictions. The move suggests Republicans will approve something comparable to the 2018 law that would ban almost all abortions after about six weeks, with very limited exceptions, rather than a total ban preferred by some GOP lawmakers.

The Iowa Senate approved the 2018 abortion ban along party lines. Of the six Iowa House Republicans who voted against that legislation, only one (State Representative Jane Bloomingdale) still serves in the legislature. Most of the 64 current House Republicans had not yet been elected to the body during the 2018 session. However, I expect nearly all of them will support a six-week ban, as will their Senate GOP colleagues.

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A good Iowa court ruling for public employees—and open records

Iowans who handle public records requests for government bodies gained more protection from possible retaliation on June 23, when the Iowa Supreme Court ruled that former Iowa Department of Public Health communications director Polly Carver-Kimm can proceed with both of her wrongful termination claims against the state.

Four justices affirmed a Polk County District Court decision, which allowed Carver-Kimm to allege under Iowa’s whistleblower statute that she was wrongly forced to resign in July 2020, and that Iowa’s open records law protected her activities when fulfilling records requests for the public health agency.

The Iowa Supreme Court did reverse one part of the lower court’s ruling. All seven justices determined that Governor Kim Reynolds and her former spokesperson Pat Garrett should be dismissed as individual defendants, because they lacked the “power to authorize or compel” Carver-Kimm’s termination.

But the impact of the majority decision in Carver-Kimm v. Reynolds extends far beyond the named defendants in one lawsuit.

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What we learned from Iowa Supreme Court's non-decision on abortion

The most closely watched Iowa Supreme Court case of 2023 ended in a stalemate on June 16. Nearly a year to the day after the court’s majority severely undermined reproductive rights by reversing a 2018 precedent, the justices split 3-3 on Governor Kim Reynolds’ effort to lift an injunction on a 2018 law that would ban an estimated 98 percent of abortions.

The split decision in what will be known as Planned Parenthood of the Heartland v Reynolds V affirmed last year’s Polk County District Court ruling “by operation of law.” In other words, the 2018 abortion ban will be permanently enjoined. For the foreseeable future, abortion will remain legal up to 20 weeks in Iowa—in contrast to many other Republican-controlled states.

But top Iowa Republicans have vowed to enact new abortion restrictions, which will prompt new litigation. Although the opinions published on June 16 have no force of law, they provide many clues about how the Iowa Supreme Court may approach its next major abortion case.

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Why Iowa Republicans may struggle to agree on new abortion ban

Top Iowa Republicans reacted quickly on June 16 after the Iowa Supreme Court’s split decision kept abortion legal in Iowa up to 20 weeks.

In a joint news release, Governor Kim Reynolds, Senate Majority Leader Jack Whitver, and House Speaker Pat Grassley promised to work together on what they called “pro-life policies to protect the unborn.” But they did not indicate whether a new law might differ from the near-total abortion ban passed in 2018, which remains permanently enjoined after the Supreme Court deadlock.

The statements also did not clarify whether Republicans plan to convene a special legislative session before lawmakers are scheduled to return to Des Moines next January. Communications staff working for the governor and House and Senate leaders did not respond to Bleeding Heartland’s questions.

Any new abortion ban would be challenged immediately, and two years might pass before the Iowa Supreme Court rules on whether that law violates the state constitution. So anti-abortion advocates will want the legislature and governor to start the process sooner rather than later.

But even with the large House and Senate majorities Iowa Republicans now enjoy, it may not be easy to draft a bill that can get through both chambers.

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Good news, bad news in Iowa Supreme Court's latest ruling on trans rights

Disclosure: The ACLU of Iowa is representing Laura Belin and other plaintiffs in an open records lawsuit now pending in Polk County District Court. That case is unrelated to the litigation discussed here.

“We are celebrating today,” said the ACLU of Iowa’s legal director Rita Bettis Austen during a May 12 news conference to discuss the Iowa Supreme Court’s latest decision in a transgender rights case.

In Vasquez and Covington v. Iowa Department of Human Services, the court dismissed as moot the state’s appeal of a lower court ruling, which had found a 2019 law and related administrative rule to be unconstitutional. The result means the state cannot enforce a regulation barring Medicaid coverage for Iowans who need gender-affirming surgery.

Bettis Austen told reporters, “The importance of this truly cannot be overstated,” adding that “Transgender Iowans on Medicaid can continue to receive the coverage for life-saving gender-affirming care, that they desperately need.” Plaintiffs Aiden Vasquez and Mika Covington fought for nearly four years to obtain this outcome and can feel proud of making history for trans Iowans.

However, other aspects of the court’s unanimous decision, authored by Justice Thomas Waterman, raise questions about how Iowa’s high court may approach future challenges to state laws or policies designed to discriminate against transgender people.

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Republicans shatter another Iowa Senate norm

Iowa Senate debate on a proposal to relax child labor regulations stalled late in the evening of April 17, after the Republican floor manager Adrian Dickey and Majority Leader Jack Whitver refused to answer a Democratic senator’s questions about an amendment published earlier in the day.

After hours of delay, the Senate resumed its work and approved the child labor bill (Senate File 542) shortly before 5:00 am on April 18, with Republicans Charlie McClintock and Jeff Taylor joining all Democrats in opposition.

The snag in last night’s proceedings is not limited to one controversial issue.

According to Senate Minority Leader Zach Wahls, Whitver told him Senate Republicans would no longer answer questions during floor debate, in light of a recent Iowa Supreme Court decision. That ruling (known as LS Power) has also made Iowa House Republicans more cautious about answering questions in public, a debate on a firearms bill revealed last week.

The majority party’s new approach could leave Iowa lawmakers less informed as they vote on complex legislation. Floor debate may be the only time Democrats can clarify their understanding of certain provisions, since managers’ amendments containing big changes sometime appear just hours before a vote on final passage. Over the next few weeks, Senate Republicans are expected to unveil their spending plans for fiscal year 2024 right before lengthy budget bills are bought to the chamber floor.

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A week to celebrate accountability in Iowa

Randy Evans can be reached at DMRevans2810@gmail.com

Last week was one to savor. But it also was a week to reflect on how far we still need to travel to have true citizen engagement in our state and local governments.

First, some savoring.

The Iowa League of Women Voters honored me and the Iowa Freedom of Information Council, the nonprofit, nonpartisan education and advocacy organization I lead. The annual Defending Democracy Award means so much—knowing it comes from the organizational descendants of the women who pushed for an amendment to the U.S. Constitution giving women the right to vote and who rallied in countless places across America, including right here in Bloomfield (Davis County), to make that happen.

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Iowa Supreme Court rejects governor's attempt to dismiss open records claims

The Iowa Supreme Court has allowed an open records lawsuit against Governor Kim Reynolds to proceed. In a unanimous decision authored by Justice David May, the court said concerns about executive privilege or non-justiciable political questions did not prevent plaintiffs from pursuing a claim that the governor’s office violated the open records law, known as Iowa Code Chapter 22, by failing to provide public records in a timely manner.

The court also confirmed that government officials and entities cannot sidestep the law’s requirements by ignoring records requests for an extended period. In addition, the decision clarified that electronic records (like other kinds of public records) must be produced within a reasonable time frame.

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Governor entered private Iowa Supreme Court area—without permission

Governor Kim Reynolds, her staff, and security detail used a non-public elevator and “walked down the secure hallway” where Iowa Supreme Court justices have private offices before attending the April 11 oral arguments in a major abortion-related case.

“Neither the justices, supreme court staff, or Judicial Branch Building security knew or gave permission for the governor or Iowa State Highway Patrol to access the supreme court’s non-public office space” at that time, according to Molly Kottmeyer, counsel to Chief Justice Susan Christensen.

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Iowa Supreme Court hears arguments in open records suit against governor

The Iowa Supreme Court will soon decide whether a lawsuit against Governor Kim Reynolds can proceed. The ruling may shed light on broader questions related to Iowa’s open records law (known as Chapter 22), such as what constitutes a refusal to provide a public record, how courts can determine whether a government entity’s delay was reasonable, and whether any legal doctrines shield the governor from that kind of judicial scrutiny.

I am among the plaintiffs who sued the governor, her office, and some of her staff in December 2021, citing failure to produce public records. About eighteen days after the ACLU of Iowa filed the suit on our behalf, the governor’s office provided most, but not all records responsive to requests I had submitted (in some cases more than a year earlier), as well as records responsive to requests submitted by Clark Kauffman of Iowa Capital Dispatch and Randy Evans of the Iowa Freedom of Information Council.

The state’s attorneys filed a motion to dismiss the case. After Polk County District Court Judge Joseph Seidlin rejected the motion last May, the governor’s office appealed. Iowa Supreme Court justices heard oral arguments on February 22. UPDATE: Video of the proceedings is online here.

A ruling in favor of the plaintiffs would send the lawsuit back to a lower court, where a judge would consider the merits of our claims. A ruling in favor of the governor would mean the lower court could consider only whether the governor’s office properly withheld some records and redacted other documents released in January 2022—not whether Reynolds and her staff violated the law by failing to produce records in a timely manner.

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Iowa Senate votes to increase governor's influence over courts

Governor Kim Reynolds is one step closer to controlling a majority of votes on all of Iowa’s judicial nominating commissions, following Iowa Senate passage of Senate File 171 on February 8.

Voting 34 to 15 along party lines, the chamber approved the bill, which would give the governor an extra appointee on commissions that recommend candidates for lower court appointments, and remove district chief judges from those bodies.

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Best of Bleeding Heartland's original reporting in 2022

As the new year begins, I want to highlight some of the investigative reporting, in-depth analysis, and accountability journalism published first or exclusively here.

Some newspapers and websites put their best original reporting behind a paywall for subscribers, or limit access to a few free articles a month. I’m committed to keeping all Bleeding Heartland content—which includes some 570 articles and commentaries from 2022 alone—available to all, regardless of ability to pay.

As always, I’m grateful for readers who value this kind of work on Iowa politics. Tips on stories that may be worth pursuing are always welcome.

To receive links to Bleeding Heartland articles and commentaries directly via email, subscribe to the free Evening Heartland newsletter. Subscribers to my Substack (which is also free) receive audio files and recaps for every episode of KHOI Radio’s “Capitol Week,” a 30-minute program on which Dennis Hart and I discuss recent Iowa political news.

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The 22 most-viewed Bleeding Heartland posts of 2022

Governor Kim Reynolds, the state legislature, and Iowa Supreme Court rulings inspired the majority of Bleeding Heartland’s most-read posts from this year.

This list draws from Google Analytics data about total views for 570 posts published from January 1 through December 29. I wrote 212 of those articles and commentaries; other authors wrote 358. I left out the site’s front page and the “about” page, where many people landed following online searches.

In general, Bleeding Heartland’s traffic was higher this year than in 2021, though not quite as high as during the pandemic-fueled surge of 2020. So about three dozen posts that would have ranked among last year’s most-viewed didn’t make the cut for this post. Some honorable mentions from that group:

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She presented herself as a scholar

This column by Daniel G. Clark about Alexander Clark (1826-1891) first appeared in the Muscatine Journal.

September 10, 1867: the beginning of the end of segregated schools in Iowa; the day 12-year-old Susie Clark tried to enroll at Muscatine’s Grammar School No. 2.

One hundred and fifty-five years ago “on the 10th day of September, 1867, said school being in session, she presented herself, and demanded to be received therein as a scholar under the common school law.” (Iowa Supreme Court, ruling in Clark v. Board of Directors, April 14, 1868.)

Instead of a welcome at her neighborhood school three blocks up West Hill from her home at W. 3rd and Chestnut, someone in charge turned Susie away on orders of the school board.

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How Iowa Supreme Court's McDermott, Oxley have decided big cases

Disclosure: I am a plaintiff in an open records lawsuit that is pending before the Iowa Supreme Court on interlocutory appeal. (The governor’s office appealed a lower court ruling against the state’s motion to dismiss our case.) That litigation has nothing to do with this post.

On the back side of Iowa’s general election ballot, voters have a chance to vote yes or no on allowing two Iowa Supreme Court justices, two Iowa Court of Appeals judges, and dozens of lower court judges to remain on the bench.

No organizations are campaigning or spending money against retaining Justices Dana Oxley and Matthew McDermott, whom Governor Kim Reynolds appointed in 2020.

Nevertheless, I expect the justices to receive a lower share of the retention vote than most of their predecessors. Shortly after the newest justices were part of a controversial ruling on abortion in June, the Iowa Poll by Selzer & Co for the Des Moines Register and Mediacom found a partisan split in attitudes toward the Iowa Supreme Court, with a significant share of Democrats and independents disapproving of the court’s work.

This post seeks to provide context on how the justices up for retention have approached Iowa Supreme Court decisions that may particularly interest Bleeding Heartland readers.

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An Iowa Supreme Court hint on "strict scrutiny" for gun cases?

Tom Barton wrote an excellent article for the Cedar Rapids Gazette about what’s at stake in this November’s vote on a pro-gun amendment to the Iowa Constitution. Republicans who pushed for the amendment have downplayed its potential impact on existing gun regulations. But legal experts told Barton some laws, such as a broad prohibition on firearms ownership by people with felony convictions, might not survive a court challenge if voters approve the constitutional amendment.

In a little-noticed passage tucked into a recent decision on abortion rights, a majority of Iowa Supreme Court justices suggested that existing gun regulations could be doomed under a “strict scrutiny” standard.

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Governor discounts pregnant Iowans' well-being. Will Supreme Court agree?

Lawyers representing Governor Kim Reynolds have taken the first step toward reinstating a 2018 law that would ban nearly all abortions in Iowa. A Polk County District Court struck down that law in 2019, and Reynolds did not appeal the decision. A motion filed on August 11 asks the court to lift the permanent injunction, which was founded on Iowa and U.S. Supreme Court rulings that have since been reversed.

In a written statement amplified on her social media, Reynolds promised, “As long as I’m Governor, I will stand up for the sanctity of life and fight to protect the precious and innocent unborn lives.”

Left unsaid by the governor, but made clear by the legal brief her team filed: pregnant Iowans’ interests have almost no value in the eyes of the state.

Will four Iowa Supreme Court justices balance competing concerns the same way?

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Legal analysis: The state's case for reinstating Iowa's abortion ban

Bill from White Plains is an Iowa attorney with a specific interest in constitutional law and civil liberties.

Who’s more important: 51 percent of the populace of Iowa or, Iowa’s Republican-controlled government?

That is the question raised by the motion a partisan think tank filed in Polk County District Court on August 11. The Kirkwood Institute and the Alliance Defending Freedom are representing Governor Kim Reynolds and the Iowa Board of Medicine, after Iowa Attorney General Tom Miller declined to lead the state’s effort to reinstate a near-total abortion ban.

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Tactical retreat on Iowa's abortion waiting period averts strategic loss

The ACLU of Iowa and Planned Parenthood North Central States announced on August 5 that they will not pursue litigation challenging Iowa’s mandatory 24-hour waiting period before all abortions. The Iowa Supreme Court allowed that 2020 law to go into effect in June, when a 5-2 majority reversed the court’s abortion rights precedent and sent Planned Parenthood’s case back to District Court.

In a written statement, ACLU of Iowa legal director Rita Bettis Austen described the decision to dismiss the case as “extremely difficult.”

But the move was wise in light of Iowa’s current legal landscape. Dropping this challenge could push back by years any ruling by the conservative-dominated Iowa Supreme Court to establish a new legal standard for reviewing abortion restrictions. That could strengthen the position of Planned Parenthood and the ACLU as they fight grave threats to Iowans’ bodily autonomy.

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Transparency advocates sound alarm about draft open records rules

Longtime advocates for access to public records in Iowa expressed concern this week about new administrative rules proposed by the Iowa Public Information Board.

The draft rules would spell out requirements for acknowledging and responding “promptly” to public records requests, but would also create a new excuse for government bodies that fail to provide timely access to records. Nothing in Iowa’s open records statute, known as Chapter 22, authorizes the board’s proposed language on “unforeseen circumstances,” nor is that concept consistent with Iowa Supreme Court precedent.

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Iowa Supreme Court's unfair message: "Take one for the team"

Randy Evans can be reached at DMRevans2810@gmail.com.

In 1972, Gordon Garrison purchased 300 acres of farmland in Emmet County, a rectangle near the Minnesota border one county to the east of the Iowa Great Lakes. 

The Iowa State University agricultural engineering graduate began raising sheep and crops. He also set about working to restore the “prairie pothole” ecology of shallow wetlands that was common in northwestern Iowa when white settlers began arriving 175 years ago. 

Garrison built a house on his land in 1999. He still lives there, although his quality of life has taken a troubling turn since he put down roots there.  

Life for Garrison and his neighbors changed significantly in December 2015 when New Fashion Pork LLP built a CAFO, or a confined animal feeding operation, uphill from and adjacent to Garrison’s property. The confinement building — which the state allows to house 4,400 to 8,800 hogs, depending on their size — is about a half mile from Garrison’s property. 

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Reynolds seeks legal do-over to reinstate 2018 abortion ban

Governor Kim Reynolds announced on June 28 that she will seek to lift an injunction on a 2018 law that would have banned almost all abortions in Iowa. After that law was struck down in early 2019, Reynolds opted not to appeal the decision, due to an Iowa Supreme Court precedent that is no longer operative.

The governor will also ask the Iowa Supreme Court to rehear a recently-decided abortion case, taking into account the U.S. Supreme Court’s majority opinion that overturned the Roe v Wade and Casey precedents.

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How far can Iowa Republicans go to ban abortion? (updated)

The worst-case scenario for bodily autonomy in Iowa played out over the past ten days. First, the Iowa Supreme Court on June 17 overturned its own 2018 precedent that established a fundamental right to abortion, protected by the state constitution. Then, the U.S. Supreme Court on June 24 overturned the 1973 Roe v Wade decision that established a federal constitutional right to an abortion, and the related Casey decision of 1992.

Top Iowa Republicans immediately promised further action to restrict abortion, which is now legal in Iowa up to 20 weeks of pregnancy. It’s not yet clear when they will try to pass a new law, which exceptions (if any) may be on the table, or whether a ban modeled on other state laws could survive an Iowa court challenge.

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Only five applied for Iowa Supreme Court vacancy

The State Judicial Nominating Commission will interview an unusually small number of applicants for the Iowa Supreme Court vacancy to be created when Justice Brent Appel reaches the mandatory retirement age next month.

Only five people—three judges and two attorneys in private practice—applied for the position, the Iowa Judicial Branch announced on June 20. The commission will interview Third Judicial District Chief Judge Patrick Tott, Ames attorney Timothy Gartin, Des Moines attorney William Miller, District Court Judge Alan Heavens, and Iowa Court of Appeals Judge David May on June 27. The commissioners will send three names to Governor Kim Reynolds, who will have 30 days to appoint the next justice from that short list.

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Iowa Supreme Court's abortion reversal may cast long shadow

Five Iowa Supreme Court justices allowed a 24-hour waiting period for all abortions to go into effect and opened the door to more sweeping restrictions on June 17, when justices overturned the court’s 2018 precedent that had found the Iowa Constitution protects a fundamental right to seek an abortion.

The outcome is precisely what Republican legislators were seeking two years ago, when (buoyed by unusually rapid turnover on Iowa’s highest court) they passed a law nearly identical to the one struck down in the 2018 case.

Two dissenting justices warned that the latest decision injects “instability” and “confusion” into Iowa’s legal landscape, because the court’s majority did not establish a new standard for evaluating the constitutionality of abortion restrictions. Two justices signaled they would allow almost any limits on the procedure. Three justices indicated they might be open to a similar approach, or might strike a different balance that recognizes some bodily autonomy for Iowans wanting to terminate a pregnancy.

In the words of Justice Brent Appel, the majority set forth “a jurisprudence of doubt about a liberty interest of the highest possible importance to every Iowa woman of reproductive age.”

The ruling may also undermine public confidence that Iowa Supreme Court rulings are grounded in legal analysis, rather than politics.

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Welcome to Iowa, land of entrapment

Carl Olsen is the founder of Iowans for Medical Marijuana.

If you have travel plans this summer, you might want to consider a route that avoids Iowa.  Last week, the Iowa Supreme Court denied protection for an out-of-state medical marijuana patient.

William Morris covered the ruling for the Des Moines Register, and Paul Brennan wrote about it at Little Village.

After reading the 4-3 majority opinion in State v. Middlekauff, I felt something seemed amiss. 

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Iowa Supreme Court Justice Brent Appel retiring soon

Iowa’s State Judicial Nominating Commission is accepting applications to replace the longest-serving current Iowa Supreme Court justice.

Justice Brent Appel, who has served on the court since October 2006, will step down on July 13, when he reaches the mandatory retirement age of 72. Since Justice David Wiggins retired in early 2020, Appel has been the only one of the seven justices appointed by a Democratic governor.

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Court rejects governor's motion to dismiss open records lawsuit

A Polk County District Court has rejected Governor Kim Reynolds’ attempt to have an open records lawsuit tossed without being considered on the merits. It was the third time in the past five months that a court denied the state’s motion to dismiss a suit claiming the Reynolds administration violated Iowa’s open records law.

I am among the plaintiffs who sued the governor and some of her staff in December over five unfulfilled requests I had submitted to her office, two requests submitted by Clark Kauffman of Iowa Capital Dispatch, and one request submitted by Randy Evans of the Iowa Freedom of Information Council.

About three weeks after the ACLU of Iowa filed the lawsuit on our behalf, the governor’s office provided most of the records we had requested (in some cases more than a year earlier). The state’s attorneys then sought to have the case dismissed as moot.

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Regulating health care

Sondra Feldstein is a farmer and business owner in Polk County.

It’s conventional wisdom that Roe v Wade was a poorly written judicial decision. Not the first, nor the last.

I’m not a constitutional law scholar and I can’t say whether the weight of precedent should counteract the weakness of a poorly reasoned opinion. But each and every one of the conservative justices who can be expected to concur with the draft opinion overturning Roe assured senators during their confirmation hearing that the 1973 precedent was settled law, and that the principle of stare decisis carries such grave weight that the prospect of overturning “settled law” was unlikely.

But then, for anyone who believed what those potential justices said, I have the proverbial bridge in Brooklyn to sell you. It just isn’t relevant to ask whether future justices lied under oath, because everyone knew they were lying. It’s a game we play.

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What could happen in Iowa after Roe is overturned

Five U.S. Supreme Court justices will soon overturn the Roe v Wade and Casey decisions, according to a draft majority opinion obtained by Politico. Josh Gerstein and Alexander Ward published excerpts from the draft, which author Justice Samuel Alito circulated in February.

Assuming the court overrules Roe sometime in the next two months, abortion will become illegal immediately in more than a dozen states. Other Republican-controlled states, including Iowa, will likely pass total or near-total abortion bans soon after.

But any such law could not take effect here as long as a 2018 Iowa Supreme Court precedent stands. In that case, the majority held that the Iowa Constitution protects a fundamental right “to decide whether to continue or terminate a pregnancy,” and any limits on that right are subject to strict scrutiny.

That ruling could be overturned in two ways.

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Iowa's new garbage search law looks unconstitutional

Iowans have “no reasonable expectation of privacy in garbage placed outside of the person’s residence for waste collection in a publicly accessible area,” according to a bill Governor Kim Reynolds signed into law on April 21.

Lawmakers approved Senate File 2296 in response to a June 2021 Iowa Supreme Court ruling, which declared warrantless garbage searches unconstitutional.

Whether the new law can withstand scrutiny is unclear. Attorneys who opposed the bill have pointed out that the legislature and governor cannot override the Supreme Court’s interpretation of the state constitution. But it could be years before a challenge to the law reaches the high court.

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Three takeaways from Iowa's latest transgender equality ruling

Nearly fifteen years after state legislators and Governor Chet Culver added sexual orientation and gender identity to the Iowa Civil Rights Act, the Iowa Supreme Court ruled on the first employment discrimination lawsuit brought by a transgender Iowan.

On April 1 the seven justices unanimously upheld a Polk County jury verdict, which found that the Iowa Department of Corrections unlawfully discriminated against plaintiff Jesse Vroegh. Superiors refused to allow Vroegh to use male restrooms and locker rooms when he worked as a nurse at the Iowa Correctional Institute for Women.

The court also upheld the jury’s finding that the state discriminated against Vroegh by refusing to cover gender-affirming “top” surgery, even though the state’s insurance plan would have covered a double mastectomy for a medical need not related to gender identity.

But breaking with the U.S. Supreme Court, six Iowa Supreme Court justices determined that gender identity discrimination did not also constitute discrimination against Vroegh on the basis of sex.

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What the Supreme Court said—and didn't say—in Finkenauer case

The Iowa Supreme Court surprised many in the political and legal worlds on April 15 with a unanimous judgment reinstating U.S. Senate candidate Abby Finkenauer to the Democratic primary ballot.

Five justices resolved an apparent contradiction between two parts of Iowa’s election law by saying an incorrect or missing date is not a valid reason for not counting a signature on a candidate’s petition. They reversed a Polk County District Court, which days earlier reached the opposite conclusion: that an undated signature cannot be counted, and therefore Finkenauer did not qualify for the ballot.

Two justices concurred with the outcome of reversing the lower court but did not explain their reasoning.

The result was a big loss for Republican plaintiffs who challenged the State Objection Panel’s decision to let three disputed signatures on Finkenauer’s petitions stand. It’s also an embarrassment for Republican legislators who moved last year to limit the panel’s discretion.

By deciding this case on narrow grounds, the Iowa Supreme Court left some big legal questions to be adjudicated another election year.

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What is—and isn't—in lawsuit against panel ruling on Finkenauer

Two Republican voters filed suit on March 31 challenging the State Objection Panel’s decision to allow U.S. Senate candidate Abby Finkenauer to remain on the Democratic primary ballot.

Attorney Alan Ostergren, who has represented Republican candidates and committees in several high-profile election cases, filed the lawsuit on behalf of Kim Schmett and Leanne Pellett. They charge that the panel, comprised of Secretary of State Paul Pate, Attorney General Tom Miller, and State Auditor Rob Sand, should have disallowed signatures on Finkenauer’s nominating petitions where voters did not provide the correct date. Doing so would have brought the Democratic front-runner’s campaign below the threshold of 100 signatures in at least nineteen counties.

Sand and Miller voted to allow those signatures to stand; Pate would have sustained the objection to them.

The lawsuit also charges that Sand and Miller should have recused themselves from considering the objection to Finkenauer’s petitions. If the auditor and attorney general had recused, as Ostergren had requested during the panel’s March 29 meeting, Republican statewide officials would have replaced them on the panel, and would surely have ruled against letting Finkenauer compete for the Democratic nomination.

However, the plaintiffs did not raise another argument that Ostergren had argued at length when asking the panel to invalidate signatures on Finkenauer’s petitions, and those filed by two other candidates.

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Iowa led the nation toward equality and inclusion

This column by Daniel G. Clark about Alexander Clark (1826-1891) first appeared in the Muscatine Journal.

As a boy in one-room Maple Grove school, future Iowa Supreme Court Justice Robert Allbee never heard of the Muscatine man who became the ambassador to Liberia. Attending Muscatine High School, he never learned about Susie Clark, Class of 1871, the ambassador’s daughter and first Black high school graduate in Iowa.

It was a long time before he would learn about the court case called Clark v. Board of School Directors, in which the state’s highest court ruled in the Clarks’ favor and ended “separate but equal” public education in Iowa.

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Iowa lawmakers tank consensus revisions to criminal procedure rules

Revised Iowa Court Rules of Criminal Procedure face an uncertain future after some state legislators objected to parts of the package, which was three years in the making.

The Iowa Supreme Court withdrew the rules from the Legislative Council on February 17. The order signed by Chief Justice Susan Christensen did not explain why the court took that step.

An email sent to members of the task force that drafted the new rules, which the Judicial Branch provided to Bleeding Heartland, said unnamed state legislators had informed the court “the rules would not be approved as submitted in the current form.” Lawmakers’ concerns centered around changes that would benefit defendants facing criminal charges.

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Iowa Supreme Court drops courtroom mask mandate

Iowans entering court-controlled spaces are no longer required to wear face coverings, under an Iowa Supreme Court order that took effect on February 14.

The Iowa Supreme Court reintroduced a comprehensive mask mandate last August, after the Delta variant caused a surge in cases and hospitalizations. A December order kept the requirement in place, as the Omicron variant became dominant. The February 11 order signed by Chief Justice Susan Christensen noted, “With both variants now on the wane, we find it appropriate to end this protocol.”

However, the new order gives judges discretion to “require face coverings by participants or take other measures to mitigate the spread of COVID-19 in court proceedings as necessary.”

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Iowa Supreme Court extends mask mandate for courtrooms

Face masks will continue to be required in all Iowa court-controlled spaces “regardless of a person’s vaccination status,” under an order the Iowa Supreme Court issued on December 6.

Like the mask mandate the high court announced in August, the requirement to wear face coverings in spaces under the judicial branch’s jurisdiction “applies statewide and does not depend on a particular county’s or area’s positivity rate or transmission status.” It does not apply to areas of county courthouses under the control of county governments. (Some boards of supervisors, including those governing Iowa’s largest counties, have approved mask mandates for county buildings and offices.)

It’s been months since Governor Kim Reynolds encouraged, let alone required, Iowans to wear masks in indoor public spaces. Fortunately, the state’s judicial branch is empowered to set its own COVID-19 mitigation policies, and has generally followed scientific consensus about the value of face coverings to reduce transmission. The Delta variant, which has been the dominant coronavirus strain in Iowa for months, spreads easily in close quarters. Legal proceedings often force attorneys, litigants, court employees, and jurors to be in the same room for hours.

The latest order signed by Chief Justice Susan Christensen establishes several other policies and practices to adapt judicial proceedings to the pandemic, informed by recommendations from a court-appointed task force and public comments.

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Court finds law targeting trans Iowans unconstitutional

For Aiden Vasquez and Mika Covington, the news was life-changing. Polk County District Court Judge William Kelly ruled on November 19 that Iowa’s law designed to deny Medicaid coverage for gender-affirming surgery “violates the equal protection clause of the Iowa Constitution.”

He ordered the Iowa Department of Human Services to change a longstanding regulation “excluding coverage for sex reassignment surgery” and said the agency must apply the revised rule to allow “transgender individuals coverage under Iowa Medicaid for medically necessary gender affirming surgery for the treatment of Gender Dysphoria and other relevant diagnoses.”

Vasquez and Covington are transgender Iowans who qualify for Medicaid and have been unable to obtain the health care they need for years. They have been seeking legal redress since soon after Governor Kim Reynolds signed the discriminatory statute in May 2019.

Naturally, not everyone was happy with what the ACLU of Iowa’s legal director Rita Bettis Austen described as a “historic win for civil rights in Iowa.” Soon after the court ruling was published on November 22, Reynolds’ spokesperson Alex Murphy told reporters, “The governor’s office is disappointed in today’s decision and disagrees with the district court’s ruling on Medicaid coverage for transgender reassignment surgeries.”

Reynolds echoed the sentiment when speaking to reporters on November 23: “Of course we were disappointed with the ruling and disagree […] My legal team is looking at it. There will be more to come later on. We’re still looking through it and trying to determine what our options are.”

She should stop fighting this battle.

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Citing misconduct, Iowa governor refuses to fill judicial vacancy

Governor Kim Reynolds has declined to fill a District Court vacancy in northern Iowa, after finding the selection process was tainted by Judge Kurt Stoebe’s “unprofessional” conduct, including favoritism toward one applicant and “significantly misleading comments” that took another applicant out of contention.

In a November 11 letter to members of the District 2B Judicial Nominating Commission, Reynolds explained why she was taking the “extraordinary step” of not proceeding with an appointment, which she said “has been done only once before,” by Governor Bob Ray.

The district nominating commission submitted two names to the governor’s office on October 12. Normally Reynolds would be required to appoint one of those candidates within 30 days. However, the governor wrote, her staff investigated after hearing serious concerns about the commission chair, District Assistant Chief Judge Kurt Stoebe. Several commissioners indicated he gave one applicant extra interview time and “coaching” during the interview.

The commissioners said Stoebe made unprofessional comments about some others who applied for the judgeship.

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The Iowa court ruling that could stop a Republican gerrymander

Terror gripped many Iowa Democratic hearts when the nonpartisan Legislative Services Agency (LSA) announced it would release a second redistricting plan on October 21. Governor Kim Reynolds soon scheduled a legislative session to consider the plan for October 28, the earliest date state law allows.

Democrats had hoped the LSA would spend more time working on its next plan. Iowa Code gives the agency up to 35 days to present a second set of maps. If lawmakers received that proposal in mid-November, Republicans would not be able to consider a third set of maps before the Iowa Supreme Court’s December 1 deadline for finishing redistricting work.

By submitting Plan 2 only sixteen days after Iowa Senate Republicans rejected the first redistricting plan, the LSA ensured that GOP lawmakers could vote down the second proposal and receive a third plan well before December 1. So the third map gerrymander—a scenario Bleeding Heartland has warned about for years—is a live wire.

Nevertheless, I expect Republicans to approve the redistricting plan released last week. The maps give the GOP a shot at winning all four U.S. House districts and an excellent chance to maintain their legislative majorities.

Equally important, state law and a unanimous Iowa Supreme Court precedent constrain how aggressive Republicans could be in any partisan amendment to a third LSA proposal.

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Court gives Iowa politicians until December 1 to adopt new maps

Iowa Supreme Court justices finally let the public in on the secret.

Under Iowa’s constitution, authority to enact legislative maps (but not Congressional maps) passes to the high court after September 15. But a September 14 order signed by Chief Justice Susan Christensen gives the legislature and governor until December 1 “to prepare an apportionment in accord with Iowa Code chapter 42,” which outlines the redistricting process Iowa has used since 1981.

High-ranking Republicans have indicated for months that they expected the Iowa House and Senate to be able to vote on new maps after the constitutional deadline, but the judicial branch’s spokesperson would not confirm whether justices or their representatives gave private assurances to key lawmakers. Bleeding Heartland’s request for written correspondence between the chief justice and legislative leaders produced no responsive records.

The court could have clarified months ago that it planned to proceed in this manner. But better late than never.

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One Iowa government branch follows science on COVID-19

Republican leaders in the Iowa House and Senate declined this year to require face coverings, social distancing, or other COVID-19 mitigation practices in the state capitol. Governor Kim Reynolds and her staff have been spreading misinformation and casting doubt about whether masks reduce coronavirus transmission in schools.

But one branch of state government is following the recommendations of top scientists at the U.S. Centers for Disease Control.

Iowa Supreme Court Chief Justice Susan Christensen signed an order on August 27 stating that “All people entering court-controlled areas must wear a face covering,” even if they have been fully vaccinated for COVID-19.

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Iowa lawmakers to receive first redistricting plan by September 16

Iowa’s Legislative Services Agency (LSA) intends to submit the first set of proposed Congressional and legislative maps to the state House and Senate by Thursday, September 16.

The agency’s senior legal counsel Ed Cook announced the timing during an August 17 meeting of the Temporary Redistricting Advisory Commission (TRAC), which will organize public hearings on the proposed maps and submit a report to state lawmakers summarizing the feedback.

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Iowa redistricting predictions, part 5: Data almost here!

Evan Burger continues his series of posts on Iowa redistricting scenarios.

Last week, the U.S. Census Bureau announced some exciting news: they will release the next round of redistricting data this Thursday, August 12, four days earlier than promised. 

At long last, Iowa will have the population counts needed to start drawing new district lines – and just in time, considering that the Iowa Constitution requires the legislature to finish redistricting by September 15. 

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Pissed off: New Iowa law makes fake urine a crime

Marty Ryan covers a new law that received little attention early this year. -promoted by Laura Belin

A private sector employee from Iowa goes across the border on a Friday after work to Illinois. His friends offer a blunt, and he takes a hit. He thinks nothing of it, because recreational use of pot is legal in Illinois. On his way home on Sunday, he realizes that there could be a random drug test early in the week. He’s heard marijuana will stay in his system for up to 30 days, so he purchases a package of fake urine at a vape shop.

Monday morning, he is asked to take a drug test. He manages to get the fake urine into the beaker without anyone seeing him.

Days later, a lab result indicates that he may have used fake urine. Depending on a union contract, an employee handbook, or company policy that has been posted conspicuously, the employee may be disciplined, or in a severe case terminated. Now, he can also be arrested for a simple misdemeanor.

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Four ways the Iowa Supreme Court may handle next big abortion case

The Iowa Supreme Court will soon revisit one of the most politically charged questions of our time.

Last week a Johnson County District Court permanently blocked the state from “implementing, effectuating or enforcing” a law requiring a 24-hour waiting period before all abortions. Judge Mitchell Turner ruled the law unconstitutional on two grounds. The state is appealing the ruling and argues that a 2018 Iowa Supreme Court precedent, which established a fundamental right to an abortion under the Iowa Constitution, was “wrongly decided.”

Republican lawmakers planned for this scenario when they approved the waiting period during the waning hours of the 2020 legislative session. They may get their wish, but a reversal of the 2018 decision is not guaranteed.

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Iowa's new qualified immunity law may not hold up in court

“Iowa’s law enforcement will always have my respect, and I will always have their back,” Governor Kim Reynolds declared while signing Senate File 342 on June 17. Sections 12 through 16 of the wide-ranging policing bill establish a “qualified immunity” standard for Iowa. Effective immediately upon the governor’s signature, state employees or law enforcement officers who violate individuals’ constitutional rights can be sued only if their conduct violated “clearly established” law, such that “every reasonable employee would have understood” the act was illegal.

The provisions were crafted to match decades-old federal qualified immunity standards, and to override an Iowa Supreme Court ruling that was more favorable to Iowans whose rights have been violated by police.

The new law will almost certainly be challenged. And while the conservative majority on the Iowa Supreme Court often defers to other branches of government, the justices may find that Senate File 342’s language on qualified immunity is incompatible with the Iowa Constitution.

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Iowa Supreme Court rejects challenge on Raccoon River water quality

Neil Hamilton is the former director of the Drake Agricultural Law Center and professor emeritus at Drake University law school. He submitted an amicus curiae brief in this case on behalf of several Drake law professors, who urged the Iowa Supreme Court to define the political question doctrine narrowly in order to preserve “citizen’s access to the courts of Iowa for the vindication of their constitutional rights.”

In a closely decided 4-3 split ruling the Iowa Supreme Court rejected a case filed by Iowa Citizens for Community Action and Food and Water Watch alleging the state of Iowa failed to protect the interests of the public in the Raccoon River. The case involved an appeal from the Polk County District Court rejection of the state’s motion to dismiss the case. 

The majority ruled the district court’s decision should be reversed and the case dismissed, concluding the plaintiffs do not have standing to bring the suit, and their effort to use the public trust doctrine to establish the duty of state officials is a “nonjusticiable political question.” The majority’s ruling and analysis generated three separate dissenting opinions, all agreeing the case should move forward, in large part because the state had conceded the plaintiffs had standing and the merits of the public trust doctrine were not in question.

A reading of the majority opinion shows it was premised on a determination by the four justices to not involve the Court in the difficult and controversial political issues involving water quality in Iowa. This motivation was demonstrated in at least four ways:

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Waterloo's "ban the box" ordinance survives in part—for now

The Iowa Supreme Court ruled on June 18 that part of the city of Waterloo’s “ban the box” ordinance can remain in effect despite a 2017 law prohibiting local governments from regulating “terms or conditions of employment.”

The city adopted the ordinance in November 2019 to address economic racial disparities. Because African Americans are more likely to have a criminal record, they are adversely affected by job applications that require a person to note whether they have ever been arrested or convicted of a crime.

Under Waterloo’s ordinance, employers may not inquire about past convictions, arrests, or pending criminal charges “during the application process,” but may do so after extending “a conditional offer of employment.” The court found that was allowed, because it regulates only “the time when an employer can inquire into a prospective employee’s criminal history,” which is not “a term or condition of employment.”

However, the Iowa Supreme Court held that state law preempts other portions of Waterloo’s ordinance, which prohibit employers from making an “adverse hiring decision” based on an applicant’s criminal history.

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Revised lawsuit challenges Iowa's newest voter suppression law

Plaintiffs challenging Iowa’s manifold new restrictions on voting amended their complaint on June 9 to incorporate provisions in a law Governor Kim Reynolds signed the previous day.

The League of United Latin American Citizens of Iowa (LULAC) filed suit in Polk County District Court in March, charging that Senate File 413 violated Iowa constitutional provisions on the right to vote, free speech, free assembly, and equal protection. Their revised petition asks the court to invalidate two sections of Senate File 568 as well as thirteen sections of the law enacted earlier this year.

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University of Iowa can't keep utilities deal secrets from auditor

The University of Iowa must comply with a subpoena from State Auditor Rob Sand seeking details on a 50-year deal to lease the university’s utility system to a public-private partnership, the Iowa Supreme Court unanimously determined on April 30.

The Iowa Board of Regents approved the arrangement in December 2019 and closed on the deal in March 2020. But the university withheld many details, including the identity of “Iowa-based investors” who supposedly put up about 21.5 percent of the $1.165 billion lump-sum payment to operate the system for the next five decades.

The State Auditor’s office has been trying to enforce Sand’s subpoena since January 2020. The university and Board of Regents insisted they did not have to provide “confidential” information and disputed the validity of the subpoena.

None of the Supreme Court justices found the university’s stance convincing.

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Law blocking health care for trans Iowans facing new court challenge

Two years ago this week, on the day before the Iowa legislature completed its work for 2019, Republicans added two new discriminatory provisions to the state’s health and human services budget. Both code sections quickly spawned litigation. Planned Parenthood’s lawsuit against language designed to exclude the organization from sex education grants is now pending before the Iowa Supreme Court, after a District Court found the prohibition violated the state constitution’s equal protection guarantee.

A case challenging language that authorized discrimination against transgender Iowans on Medicaid never got that far. But on April 22, the ACLU of Iowa and the national ACLU LGBTQ & HIV Project filed a new lawsuit in Polk County District Court.

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Iowa redistricting predictions, part 4: Story County

Evan Burger previously wrote about Iowa Congressional and state legislative redistricting scenarios. -promoted by Laura Belin

Today I’ll continue my ongoing series on redistricting with a deeper dive on Iowa legislative redistricting, using Story County as a case study. A few general updates to start:

First, the partisan battle lines over Iowa redistricting are starting to shape up. According to several press reports, including this recent Des Moines Register article, Republican leaders are floating the idea of suing the Census Bureau to get data earlier than September 30th:

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Court order clears path for more diverse juries in Iowa

For decades, researchers have found that all-white juries are more likely to convict Black defendants than white defendants, and that Black people “are systematically more likely to be excluded from juries in many contexts.” In addition, studies indicate diverse juries “perform their fact-finding tasks more effectively,” and have been shown to “deliberate longer, consider more facts, make fewer incorrect facts, correct themselves more, and have the benefit of a broader pool of life experiences […].”

In a 2017 decision that gave defendants of color another way to challenge unrepresentative jury pools, the Iowa Supreme Court recognized, “Empirical evidence overwhelmingly shows that having just one person of color on an otherwise all-white jury can reduce disparate rates of convictions between black and white defendants.” Yet African Americans have continued to be under-represented in Iowa jury pools and on trial juries.

A recent Iowa Supreme Court order takes a step toward addressing that disparity in the state’s criminal justice system.

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Iowa Republicans don't want to wait for accurate census data

Iowa Republican legislators want to avoid leaving redistricting in the hands of the Iowa Supreme Court, Senate Majority Leader Jack Whitver indicated during a March 12 legislative forum in Ankeny. In fact, GOP leaders may follow the state of Ohio’s lead in suing the U.S. Census Bureau to obtain the 2020 population data sooner.

The bureau has said it will send states the numbers they need to conduct redistricting by September 30, more than seven months later than usual. Under Iowa law, the nonpartisan Legislative Services Agency (LSA) is to submit plans for new legislative and Congressional districts by April 1. The state constitution calls for the legislature to adopt a map of Iowa House and Senate districts by September 1. If the map hasn’t become law by September 15, authority over redistricting moves to the Iowa Supreme Court, which is to have a new legislative map drawn by December 31.

Whitver told the Ankeny audience he didn’t know how Republicans would approach the problem, adding, “We’re looking at all options, and everything from suing the Census Bureau to make sure that we get that data to any other options on the table.”

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Prospects for overturning Iowa's voter suppression law

Less than 24 hours after Governor Kim Reynolds signed into law new limits on every way to vote in Iowa, attorneys representing the League of United Latin American Citizens in Iowa (LULAC) filed the first lawsuit challenging Senate File 413. Plaintiffs argue the law is “fatally unconstitutional” because it imposes many new burdens on voting, with no justification and no “unifying theme other than making both absentee and election day voting more difficult for lawful Iowa voters.” The named defendants are Secretary of State Paul Pate (the state elections commissioner) and Attorney General Tom Miller (who supervises the county attorneys who would prosecute violations of the law).

The suit filed on March 9 won’t be the only litigation to test Senate File 413. The Libertarian Party of Iowa intends to challenge the much higher signature thresholds for third-party and independent candidates, state party chair Mike Conner Jr. confirmed to Bleeding Heartland. I briefly discuss those potential claims near the end of this post.

But restrictions on voting, especially early voting, are the centerpiece of the new law and the focus of LULAC’s lawsuit. Lead attorney Marc Elias summed up the case on MSNBC’s Rachel Maddow Show on March 9, saying, “Iowa had good, clean elections this November, as they have in the past, and without any reason other than to make voting harder, Iowa made voting harder.”

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Iowa redistricting predictions, part 3: Legislative overview

Evan Burger speculates on how statutory requirements for drawing new Iowa House and Senate districts could impact partisan control of the legislature during the 2020s. -promoted by Laura Belin

Last month, I wrote about the rules governing Iowa’s Congressional redistricting process, and made some predictions. For this post, I’ll do the same for the legislative side of redistricting – but first, a quick mention of two related developments since my last piece. 

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Anti-abortion constitutional amendment clears first Iowa House hurdle

Iowa Republicans have enacted most of their legislative agenda with little trouble during the past four years of full control of state government. But a few priorities eluded them, including a constitutional amendment that would pave the way for future abortion bans. Unable to find 51 votes in the state House for that measure last year, the GOP settled for mandating a 24-hour waiting period before all abortions.

The 2020 elections increased the GOP’s majority in the lower chamber from 53-47 to 59-41. Republicans didn’t waste time returning to unfinished business: a new version of the attack on reproductive rights cleared an Iowa House Judiciary subcommittee on January 19.

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The 20 most-viewed Bleeding Heartland posts of 2020

Since I started reviewing Bleeding Heartland’s most widely-read posts at the end of each year, I’ve had mixed feelings about the practice. My organizing principle on any given day is not chasing clicks, but looking for ways to add value, either by covering Iowa political news not reported elsewhere, or by offering a different perspective on the big story of the day. I try not to be hyper-aware of traffic numbers, so as not to let those drive editorial decisions.

On the other hand, it is fun at year-end to recap the posts that were particularly popular with Bleeding Heartland readers, and I usually find a few surprises.

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Best of Bleeding Heartland's original reporting in 2020

My primary goal in running this website is to provide Iowa political news and analysis that’s not available anywhere else. I’m proud of what Bleeding Heartland accomplished in 2020 and want to highlight some of the investigative reporting and accountability journalism published first or exclusively here.

A forthcoming post will review the site’s most popular pieces from 2020, which included many I worked hardest on or most enjoyed writing.

As always, I’m grateful for readers whose appetite for this kind of reporting keeps me going.

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Iowa justice won't comment on recusal from post-election cases

Iowa Supreme Court Justice Matthew McDermott declined to comment on whether he would recuse himself from post-election litigation involving Republican candidates or party organizations, judicial branch communications director Steve Davis told Bleeding Heartland on November 2.

McDermott should decline to hear such cases, in light of his past legal work for Republican entities and U.S. Senator Joni Ernst.

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Iowa Supreme Court rejected calls to stop in-person bar exam

Aspiring lawyers gathered in Des Moines on July 28 and July 29, for about eight hours each day, to take Iowa’s Uniform Bar Exam in person.

More than a dozen states, accounting for about two-thirds of exam takers, postponed or otherwise altered plans to administer the grueling two-day test that determines where attorneys can practice law.

However, the Iowa Supreme Court rejected calls to shift to an online exam or offer a limited “diploma privilege” so that graduates of the University of Iowa or Drake University law schools could practice in this state without passing the bar. Instead, the judicial branch’s Office of Professional Regulation took several steps to reduce the chance exam takers could spread COVID-19 to one another.

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Minority impact statements in Iowa: History and continuing efforts

Marty Ryan of Des Moines lobbied the Iowa legislature for 27 years and now blogs weekly. -promoted by Laura Belin

The Iowa quarter, printed in the latter part of 2004, is based upon a Grant Wood painting depicting a group of students and their teacher planting a tree outside of a county school. The statement on the coin says, “Foundation In Education.” For many decades, Iowa was noted for its first-in-the-nation education status. Likewise, Iowa has been a consistent leader in civil rights.

In fact, Iowa established some standards of equality long before the federal government or other states.

But racial disparities continue to affect Iowans in many areas of life. A reform the Democratic-controlled legislature enacted more than a decade ago has only slightly mitigated the problem.

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Republicans found shortcut around Iowa Supreme Court on abortion

Spirits lifted in the pro-choice community when Iowa House Majority Leader Matt Windschitl did not call up a constitutional amendment on abortion shortly after the legislature reconvened this month.

Republican leaders wanted to pass the amendment, which had advanced from committee months earlier. When a high-profile bill doesn’t come to the floor, it often means the majority party doesn’t have the votes for final passage.

Indeed, at least three of the 53 House Republicans resisted immense pressure to vote for legislation designed to overturn an Iowa Supreme Court ruling protecting “the constitutional right of women to terminate a pregnancy.”

Unfortunately, the holdouts agreed to a last-minute abortion restriction that may provide a faster way to undo the high court’s work.

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Iowa Judicial Branch not rushing back to normal practices

Governor Kim Reynolds has enacted three rounds of reopening businesses and venues across Iowa this month already, and bars are next in line to resume indoor service on May 28. The governor has argued, “We have to move forward” as we “learn to live with” having novel coronavirus in our communities.

However, the judicial branch is approaching the COVID-19 pandemic more cautiously. Under an order Iowa Supreme Court Chief Justice Susan Christensen issued on May 22, in-person bench trials will remain on hold until July 13, and jury trials won’t resume in Iowa until September 14.

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Matthew McDermott to continue Iowa Supreme Court's rightward march

Governor Kim Reynolds on April 3 named Des Moines attorney Matthew McDermott to succeed retiring Iowa Supreme Court Justice David Wiggins. During seventeen years in private practice, McDermott has worked on a wide variety of cases. Bleeding Heartland posted lengthy excerpts from his application and interview with the State Judicial Nominating Commission last month.

This appointment will continue the Iowa Supreme Court’s sharp turn to the right since 2018. As Bleeding Heartland discussed when McDermott was a finalist for the previous vacancy, he has worked closely with influential Republicans and handled some politically charged cases. He defended the 2017 collective bargaining law on behalf of the state and represented an Iowa House Republican seeking not to count 29 absentee ballots his constituents had cast on time.

On the other hand, McDermott has done a substantial amount of criminal defense work, and his application highlighted an unsuccessful appeal raising Fourth Amendment issues as one of his significant cases. Wiggins was a consistent voice for individual rights on the Supreme Court, including in many search and seizure cases.

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Iowa Supreme Court finalists McDermott, Chicchelly, and May, in their own words

After interviewing fifteen applicants, the State Judicial Nominating Commission on March 6 agreed on three nominees for the Iowa Supreme Court: Matthew McDermott, District Court Judge Mary Chicchelly, and Iowa Court of Appeals Judge David May. Governor Kim Reynolds will appoint one of them during the next few weeks.

To the credit of the commissioners, all three finalists are well-qualified to serve. Thanks to a law Republicans enacted in 2019, commission members appointed by either Reynolds or Governor Terry Branstad now outnumber elected attorneys, meaning they had the votes to send less-experienced but politically-connected loyalists to the governor. They did not.

I’ve enclosed below highlights from each finalist’s application and interview, along with some noteworthy comments by three candidates who didn’t make it onto the short list: Brenna Bird, Alan Ostergren, and Sam Langholz.

I felt confident in January that Reynolds would appoint McDermott, because of his past work for the Republican Party of Iowa and close ties to senior GOP officials. Knowing now that the governor’s own legal counsel Langholz has ambitions to serve on the Supreme Court, I wouldn’t be surprised to see Reynolds pick a different finalist. Langholz’s job involves helping the governor interview and select judges. He has incentive to steer her toward appointing a candidate who has presided over a District Court, to improve the odds of the State Judicial Nominating Commission selecting someone who lacks that experience next time. Reynolds will get at least one more appointment to the high court, because Supreme Court Justice Brent Appel will reach the mandatory retirement age in 2022.

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Four red flags about Iowa Supreme Court applicant Sam Langholz

UPDATE: The commission recommended Mary Chicchelly, David May, and Matthew McDermott. I’ve added below highlights from Langholz’s interview.

Iowa’s State Judicial Nominating Commission will interview candidates to succeed retiring Supreme Court Justice David Wiggins on March 6. The fifteen applicants include two finalists Governor Kim Reynolds passed over for the vacancy she filled last month (District Court Judge Joel Barrows and Matthew McDermott) and several who have applied for previous vacancies, such as District Court Judges Mary Chicchelly and Patrick Tott, District Associate Judge Romonda Belcher, Assistant Attorney General Molly Weber, and Muscatine County Attorney Alan Ostergren.

Three applicants have provoked anxiety in Iowa legal circles. Bleeding Heartland discussed some problematic aspects of Ostergren’s record when he applied for a Supreme Court vacancy last year. Guthrie County Attorney Brenna (Findley) Bird previously served as chief of staff for U.S. Representative Steve King and later as Governor Terry Branstad’s legal counsel. In that capacity, a jury found last year, Bird and Branstad violated the constitutional rights of former Workers’ Compensation Commissioner Chris Godfrey. While working in the Branstad administration, Bird was also involved in rushing through an effort to ban the use of telemedicine for abortions. The Iowa Supreme Court unanimously struck down that administrative rule in 2015.

The greatest concern has centered on Sam Langholz, the governor’s senior legal counsel. He is widely perceived as Reynolds’ top choice. Thanks to changes in the selection process Langholz helped engineer last year, the governor may have the votes on the State Judicial Nominating Commission to get her subordinate on Iowa’s highest court.

That would be troubling for several reasons.

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Susan Christensen is least experienced Iowa chief justice in decades

Less than nineteen months after being appointed to the Iowa Supreme Court, Susan Christensen is now that body’s chief justice. Justice David Wiggins had served as acting leader on the high court since the unexpected passing of Chief Justice Mark Cady in November.

When Governor Kim Reynolds, Republican lawmakers, and one or more Supreme Court justices schemed last year to end Cady’s term early, Justice Thomas Waterman was widely seen as the chief-in-waiting. However, by the time Reynolds appointed Cady’s replacement, Dana Oxley, in late January, multiple sources indicated Waterman was no longer interested in the job. The seven justices elected Christensen on February 24.

It’s been many years since a justice has risen so quickly to the Iowa Supreme Court’s most senior position.

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Iowa Republicans pushing anti-abortion bills while they still can

Republican lawmakers in the Iowa House and Senate advanced several bills targeting abortion procedures and providers this week, as a legislative deadline approached.

Several political factors make this year a perfect time for the GOP to curtail Iowa women’s reproductive rights. First, it’s an election year, and no issue motivates social conservative voters more than abortion. Second, 2020 may be the last year of a Republican trifecta. Democrats have a realistic chance to win control of the Iowa House (now split 53-47) in November, which would take any anti-abortion legislation off the table. Finally,  Governor Kim Reynolds will soon have appointed four of the seven Iowa Supreme Court justices, ensuring that the high court will uphold almost any abortion restriction passed this year.

Where things stand on the anti-abortion bills introduced this year:

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Iowa Senate Republicans advance plan to ban abortion

Republicans on the Iowa Senate State Government Committee have approved a proposed constitutional amendment that could eventually clear the way for a total ban on abortion.

Senate Joint Resolution 21 would add language to the Iowa Constitution clarifying that the document “shall not be construed to recognize, grant, or secure a right to abortion or to require the public funding of abortion.”

An earlier version cleared the Senate State Government Committee in March 2019. But for reasons they never explained publicly, Republican leaders did not bring the measure to the Senate floor during last year’s legislative session.

Governor Kim Reynolds urged lawmakers to act on this issue in her Condition of the State address earlier this month: “We must protect life by making clear, through an amendment, that our constitution does not grant a right to abortion.”

The goal is to make all future abortion restrictions immune from court challenges.

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The 19 Bleeding Heartland posts that were most fun to write in 2019

Before the new political year kicks off with the Iowa legislature convening and Governor Kim Reynolds laying out her agenda, I need to take care of some unfinished business from 2019.

When I reflect on my work at the end of each year, I like to take stock of not only the most popular posts published on this website and the ones I worked hardest on, but also the projects that brought me the most joy. I’ve found this exercise helps guide my editorial decisions on the many days when I have time to write up only one of several newsworthy stories.

Among the 348 posts I wrote last year, these were some of my favorites:

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Rapid Iowa Supreme Court turnover to continue as David Wiggins retires

After nearly eight years with no vacancy, the seven-member Iowa Supreme Court is about to lose its fourth justice in less than two years.

Acting Chief Justice David Wiggins announced on January 10 that he will retire, effective March 13. He has served on the Iowa Supreme Court since Governor Tom Vilsack appointed him in 2003.

Wiggins chaired the State Judicial Nominating Commission from 2011 until the spring of 2019, when Republican legislators approved and Governor Kim Reynolds signed a law removing that role from the second most-senior justice. The same law also shortened the chief justice’s term and gave the governor an additional appointment to the body that recommends candidates for the Iowa Supreme Court and Court of Appeals.

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Why Matthew McDermott will likely be Iowa's next Supreme Court justice

UPDATE: Reynolds didn’t pick McDermott this time but appointed him to the Iowa Supreme Court in April 2020. Bleeding Heartland covered highlights from his application and interview here.

After interviewing twelve applicants, the State Judicial Nominating Commission forwarded three names to Governor Kim Reynolds on January 9 to fill the vacancy created by Iowa Supreme Court Chief Justice Mark Cady’s passing in November.  Reynolds has 30 days to appoint one of the finalists, but there’s no suspense here: she will almost certainly choose Matthew McDermott.

A computer program couldn’t generate a more ideal judicial candidate for a Republican governor seeking to move Iowa courts to the right.

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The 19 Bleeding Heartland posts I worked hardest on in 2019

Five years ago, I started taking stock of my most labor-intensive posts near the end of each year. Not all of these are my favorite projects, though invariably, some of my favorites end up on these compilations.

Before getting to the countdown for 2019, I want to give another shout out to guest authors who poured an extraordinary amount of work into two posts Bleeding Heartland published last year.

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Hear Chief Justice Mark Cady's passionate appeal to combat implicit bias

Devastating news: Iowa Supreme Court Chief Justice Mark Cady passed away on November 15, having suffered a heart attack.

Best known for writing the court’s unanimous opinion in the Varnum v Brien marriage equality case, Cady was a staunch supporter of civil rights. Since becoming chief justice in 2011, he was often the swing vote on Iowa’s high court and concurred in many 4-3 opinions.

Appointed by Governor Terry Branstad in 1998, Cady sometimes aligned with the high court’s conservatives–for instance, on upholding Iowa’s felon disenfranchisement system. Sometimes he joined his more liberal colleagues–for instance, on juvenile sentencing. Cady also authored last year’s opinion that found Iowa’s constitution protects a woman’s right to an abortion. Seventeen months later, three of the five justices who joined that landmark ruling are gone. (Justice Bruce Zager retired, and Justice Daryl Hecht died.)

Bleeding Heartland intends to publish several reflections on Cady’s legacy in the coming weeks. For now, I want to share the chief justice’s remarks at the recent Iowa Summit on Justice and Disparities.

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