# Bruce Zager

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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Three Iowa Supreme Court finalists, in their own words

After eight years as an all-male club, the Iowa Supreme Court will soon gain its third ever woman justice.

Members of the State Judicial Nominating Commission submitted three names to Governor Kim Reynolds on July 10: District Court Judge Susan Christensen of Harlan, private attorney Terri Combs of West Des Moines, and District Court Chief Judge Kellyann Lekar of Waterloo. Within the next 30 days, Reynolds must choose one of those women to replace retiring Justice Bruce Zager.

Follow me after the jump for highlights from each finalist’s application and remarks before the commission.

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How Iowa could have lost three Supreme Court justices in 2016

Remember how awful you felt on November 9, 2016, as you started to grasp what we were up against following the most devastating Iowa election in decades?

Would you believe the results could have been even worse?

Imagine Governor Terry Branstad appointing three right-wingers to the Iowa Supreme Court. It could have happened if conservative groups had targeted Chief Justice Mark Cady, Justice Brent Appel, and Justice Daryl Hecht with the resources and fervor they had applied against three justices in 2010.

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Why did Chief Justice Cady change his mind about felon voting rights?

I don’t usually write posts like this one.

Check that: I don’t think I’ve ever written a post like this one.

I’m making an exception because the question has been nagging at me since the Iowa Supreme Court announced its 4-3 decision in Griffin v Pate two weeks ago today, and because a number of people who share my interest in felon voting rights have asked for my opinion.

Only Chief Justice Mark Cady knows the answer, and we won’t hear his side of the story until he writes his memoirs or speaks to some interviewer in retirement.

So with no claim to telepathic powers and full awareness that my analysis may therefore be flawed, I will do my best to understand why the author of the 2014 opinion that inspired Kelli Jo Griffin’s lawsuit ultimately decided our state constitution “permits persons convicted of a felony to be disqualified from voting in Iowa until pardoned or otherwise restored to the rights of citizenship.”

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Iowa Supreme Court considering defamation case over 2010 political ad

The Iowa Supreme Court heard oral arguments yesterday in an appeal of Republican State Senator Rick Bertrand’s defamation lawsuit against his 2010 opponent, Rick Mullin, and the Iowa Democratic Party. Des Moines attorney and law blogger Ryan Koopmans live-tweeted the hearing, and Mike Wiser and Grant Rodgers published summaries.

We’ll know the verdict within a few months, but I’ve posted some thoughts and predictions below.

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Cady, Zager emerge as Iowa Supreme Court's "swing" justices

Chief Justice Mark Cady and Justice Bruce Zager emerged as “swing” votes on the Iowa Supreme Court during the latest session, according to new analysis by Ryan Koopmans at the On Brief blog. During the 2012/2013 term, the high court handed down split decisions in 30 of the 83 cases considered that were not related to attorney discipline. Two distinct “voting blocs” emerged, with Justices David Wiggins, Daryl Hecht, and Brent Appel often on one side and Justices Edward Mansfield and Thomas Waterman on the other side. Cady and Zager were usually part of the majority and only occasionally sided with the dissenters.

A similar analysis by Koopmans showed that during the Iowa Supreme Court’s 2011/2012 term, Zager was the only swing justice, never dissenting from a majority opinion. Cady typically ended up on the same side as Waterman and Mansfield.

Tables on this page show how often each of the seven Iowa Supreme Court justices agreed with each other in non-unanimous decisions during the past two years. It will be interesting to see whether these trends hold or change.

Governor Terry Branstad appointed Cady in 1998 and Mansfield, Waterman, and Zager in 2011. Governor Tom Vilsack appointed Wiggins in 2003 and Appel and Hecht in 2006. None of the justices will be up for retention in 2014. Cady, Appel, and Hecht should have little trouble being retained again in 2016, judging from the failed attempt by social conservatives to oust Wiggins in 2012.

Iowa Supreme Court allows review of long sentences for juveniles

Catching up on news from last week, the Iowa Supreme Court handed down three important decisions related to juvenile sentencing on August 16. I finally had a chance to read through the rulings, which do not guarantee early release for any prisoner but could allow hundreds of Iowans to have their sentences reviewed, if they were convicted for crimes committed as minors.

Follow me after the jump for background and key points from the three rulings. Unfortunately, Governor Terry Branstad still seems to be missing the point of the U.S. Supreme Court decision that set all of these cases in motion.

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Another Iowa Supreme Court ruling for equality (updated)

In a decision announced on Friday, the Iowa Supreme Court ruled that it is unconstitutional for the Iowa Department of Public Health to refuse to list a non-birthing lesbian spouse on a child’s birth certificate. Details on this nearly unanimous ruling are after the jump. I was intrigued by how Governor Terry Branstad’s three appointees from 2011 handled this case.

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First "No Wiggins" tv ad and other Iowa judicial retention news

It’s time for another thread to discuss this year’s judicial retention elections. Recent links on the campaign are after the jump, along with the first television commercial urging Iowans to vote against retaining Iowa Supreme Court Justice David Wiggins.

UPDATE: Progress Iowa cut a pro-retention video featuring “Iowa Nice Guy” Scott Siepker. I’ve added it at the end of this post.

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Poll suggests Iowa Supreme Court justices "poised for victory"

The first statewide poll on the 2012 judicial retention elections suggests that the four Iowa Supreme Justices who will be on the ballot this November have good chances of being retained. However, the pollster does not distinguish between support for retaining the justices as a group and support for Justice David Wiggins, whom opponents of same-sex marriage rights are trying to defeat.  

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Branstad names Mansfield, Waterman and Zager to Iowa Supreme Court

Governor Terry Branstad today named Edward Mansfield, Thomas Waterman and Bruce Zager to fill the three Iowa Supreme Court vacancies created by last November’s judicial retention vote. Mansfield practiced law in Des Moines for many years before Governor Chet Culver appointed him to the Iowa Court of Appeals in 2009. Waterman has long been an attorney in private practice in Pleasant Valley. Zager practiced law in Waterloo before Governor Tom Vilsack named him to the First District Court in 1999. He “spent 18 years in private practice and served part time as a Black Hawk Assistant County Attorney for 12 years.”

KCCI posted Mansfield’s interview with the State Judicial Nominating Commission here, Waterman’s interview here and Zager’s interview here. Branstad privately interviewed the nine finalists for the Supreme Court vacancies last week. The governor’s official statements announcing all three appointments are after the jump.

All three appointees are registered Republicans. Waterman has made the most political contributions, primarily to Republicans, and his $7,500 donation to Branstad’s gubernatorial campaign attracted some media attention last month. (Waterman also gave $250 to the attorney general campaign of Brenna Findley, who is Branstad’s legal counsel.) Asked whether the donation to his campaign made him uncomfortable, Branstad joked, “No, I think that’s great […] Listen I wish more of them had contributed.” He added that private citizens “have a right to contribute and participate in the political process,” and that Waterman’s donation would not influence his decision.

In a statement, Supreme Court Chief Justice Mark Cady praised the three appointees as well as Branstad and members of the judicial nominating commission. I’ve posted that statement after the jump. Cady’s colleagues chose him as chief justice after voters rejected Marsha Ternus, David Baker and Michael Streit. Once Mansfield, Waterman and Zager are sworn in, all seven Iowa Supreme Court will hold a new election for chief justice.

Although all the appointees are qualified, I find it disappointing that Iowa will have an all-male Supreme Court for the first time since 1986. The only woman on the short list, University of Iowa law professor Angela Onwuachi-Willig, had many qualifications but had no chance of being appointed by Branstad, for obvious reasons I discussed here. In fact, the governor didn’t even pretend to think seriously about appointing Onwuachi-Willig. Before interviewing the finalists, he publicly expressed regret that the State Judicial Nominating Commission didn’t send him more women candidates.

I share Cris Douglass’ view that including only one woman on the short list sent to Branstad reflects poorly on the nominating process. After the jump I’ve posted excerpts from a guest column Douglass published in the Des Moines Register on February 4. She notes that the men and women who applied for Iowa Supreme Court vacancies had comparable experience and backgrounds, yet the men had a far better chance of becoming finalists. Seeing highly qualified woman applicants passed over gives the impression that either commissioners had a conscious or unconscious bias toward male applicants, or perhaps that some sought to force an embarrassing choice on Branstad. He appointed both previous women who have served on Iowa’s high court (Linda Neuman and Marsha Ternus) and likely would have appointed a woman if any politically palatable female candidate had been a finalist.

Adding three Republicans to the state Supreme Court is unlikely to end legislative efforts to reform Iowa’s judicial nominating process or restrict the Supreme Court’s powers. More on that in a post to come. Share any comments related to the Iowa Supreme Court in this thread.

UPDATE: I’ve added below the statement from former Iowa Lieutenants Governor Sally Pederson and Joy Corning on behalf of the Justice Not Politics coalition. That nonpartisan coalition supports keeping the merit selection system Iowa has used for choosing judges since 1962. Justice Not Politics leaders recently submitted more than 3,200 signatures to Iowa House and Senate leaders calling for an end to “any conversation about impeaching Supreme Court justices.” Some conservative Republicans have advocated impeaching the four remaining justices who concurred in the 2009 Varnum v Brien ruling on marriage. The effort is unlikely to clear the Iowa House Judiciary Committee.

SECOND UPDATE: The Des Moines Register notes that Iowa is now one of only three states with no women on its highest court. In an interview, Branstad “declined to answer a question about whether he’d received a satisfactory list of candidates from the commission.”

That same Des Moines Register article quotes Iowa House Judiciary Committee Chairman Rich Anderson as praising the state’s “great judicial merit selection process.”

At the bottom of this post I’ve added more reaction to the Mansfield, Waterman and Zager appointments.

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Commission sends Iowa Supreme Court short list to Branstad

After interviewing 60 applicants for the three vacancies on the Iowa Supreme Court this week, the State Judicial Nominating Commission sent Governor Terry Branstad a list of nine candidates on January 27. After the jump I’ve posted the press release naming the nine finalists. Five are lower-court judges (four district court, one appeals court), three are attorneys in private practice, and one is on the University of Iowa law school faculty. Branstad has to select three appointees within the next thirty days. Click here for information about and writing samples by all 60 applicants.

My first thought on reading the short list was that going forward, Iowa’s high court will have no women justices for the first time in many years. Twelve women applied for the Supreme Court vacancies, including District Court Judge Annette Scieszinski of Ottumwa and two assistant attorneys general, Jeanie Vaudt and Elisabeth Reynoldson. Since former Chief Justice Marsha Ternus was not retained by Iowa voters and had been the only woman on the court, I expected the commission to include at least a couple of women on the nominees list sent to Branstad. However, only University of Iowa Professor Angela Onwuachi-Willig made the short list, and I see zero chance Branstad will select her. It’s not that she is the youngest of the nine candidates; at her age (37), Branstad was governor of Iowa. The salient fact is that Onwuachi-Willig submitted a friend of the court brief in the Varnum v Brien case, supporting the plaintiffs who were seeking to have the Defense of Marriage Act struck down. I can’t imagine any scenario in which Branstad chooses a public supporter of marriage equality for a judgeship.

Nathan Tucker of the recently-formed conservative 501(c)4 group Iowa Judicial Watch posted the party affiliations and campaign donation history of all nine finalists, as well as links to their application materials and interviews with the judicial nominating commission. Eight of the finalists refused to fill out Iowa Judicial Watch’s questionnaire. Appeals Court Judge Edward Mansfield filled out most of the lengthy document but declined to answer question 26, containing some three dozen more specific questions about his “judicial ideology.” Still, Tucker took a cheap shot at Mansfield, stating, “Though a registered Republican, Mansfield’s wife has donated good and services to Planned Parenthood.” Dangling modifiers aside, donations by Mansfield’s wife don’t necessarily reflect the judge’s views and certainly don’t affect his competence to serve on the Iowa Supreme Court. Looks to me like Tucker wanted to signal to The Iowa Republican blog’s readership that they should oppose Mansfield despite his Republican affiliation.

A more extensive update on news related to the Iowa Supreme Court is in progress. Meanwhile, share any relevant thoughts in this thread.

P.S. Before the commission began interviewing candidates, Iowa House Judiciary Committee Chairman Richard Anderson withdrew his application to serve on the Iowa Supreme Court.

UPDATE: Only two women have ever served on the Iowa Supreme Court: Linda Neuman from 1986 to 2003 and Marsha Ternus from 1993 to the end of 2010. If appointed by Branstad (she won’t be), Onwuachi-Willig, who is black, would be the first ethnic minority on the Iowa Supreme Court.

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