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.

OVERALL ASSESSMENT OF THEIR WORK

The Iowa Judicial Branch’s website features short bios of the Supreme Court justices. For a more in-depth look at their backgrounds, Bleeding Heartland published highlights from Oxley’s application and public interview in January 2020, and highlights from McDermott’s application and interview in March of that year.

Oxley was a longtime clerk for a judge on the Eighth Circuit U.S. Court of Appeals and now chairs the Iowa Supreme Court’s Appellate Rules Committee. McDermott is a past board president of Iowa Legal Aid and now chairs the Iowa Supreme Court’s Access to Justice Commission.

The Des Moines Register’s William Morris tallied the numbers from the court’s most recent term and found Oxley “wrote or joined in the majority decision in 97 of 105 cases, more than any other justice.” Surprisingly, “McDermott was part of the majority in only 79 cases, fewer even than the court’s sole Democratic appointee, Brent Appel.”

The Iowa State Bar Association’s 2022 Judicial Performance Review compiled responses from members who have enough experience before a given judge to submit a rating. The survey asks attorneys to rate each judge from 1 to 5 (5 being the best) on ten metrics related to competence or temperament, and asks whether they recommend retaining that judge.

More than 220 attorneys responded for each justice, and the composite scores were above 4 on every metric but one: “Decides cases on basis of applicable law and fact, not affected by outside influence.” The court’s high-profile ruling on abortion (discussed below) is likely the reason.

Those overall retention ratings of 77 percent for McDermott and 81 percent for Oxley are relatively low, though not unprecedented.

Most justices have received ratings in the 90s or high 80s from state bar association members. In 1996, no Iowa Supreme Court justice had a retention percentage lower than 89 percent on the bar association’s survey. In 1998, the sole justice up for retention scored nearly 92 percent. In 2000, the lowest score was 94 percent. In 2002, 87 percent. In 2004, 77 percent. In 2008, 92 percent.

When the court faced massive conservative backlash in 2010 following the Varnum decision on marriage equality, the lowest-rated Supreme Court justice had a 72 percent retention rating. In 2012, David Wiggins received an unusually low score of 63 percent; the three newly-appointed justices all had ratings in the 90s. In 2016, the lowest score was 82 percent. Finally, the lowest score on the bar association’s 2020 survey was 84 percent.

ABORTION RIGHTS

If you’ve heard of one Iowa Supreme Court decision this year, it’s Planned Parenthood of the Heartland v Reynolds IV, the one that overturned our state’s strong abortion rights precedent. I’ve spoken with many Democrats who will vote against retaining McDermott and Oxley for that reason alone. They were among the five justices who determined that contrary to a 2018 ruling, Iowa’s constitution does not protect abortion as a fundamental right.

The two justices were not entirely in agreement. Oxley was part of a three-member plurality, which declined to establish a new standard of review for abortion regulations. Temporarily, the plurality returned Iowa to using an “undue burden” standard, which the Iowa Supreme Court had used in a 2015 abortion case.

That test balances the state’s interests in reducing abortions with a pregnant person’s bodily autonomy. A waiting period for abortion would survive that level of scrutiny, but a near-total ban (like the 2018 law Governor Reynolds is trying to reinstate) would almost certainly be found to impose an undue burden on those seeking to terminate a pregnancy.

McDermott dissented from that part of the majority opinion, writing separately that the court should “emphatically reject” the undue burden test and order a “rational basis” standard of review. Under that standard, any abortion restrictions (including a total ban) would be upheld as promoting the state’s legitimate interest in protecting potential life.

It’s worth noting that the plurality did not rule out deciding later that abortion regulations should be subject to rational basis review. They left that for future courts to decide. So there’s no telling whether Oxley will support some kind of balancing test when the next big abortion case reaches the high court.

A 2021 case known as Planned Parenthood of the Heartland v Reynolds III did not directly restrict abortions, but was related to Republican efforts to “defund” Planned Parenthood. A 2019 law blocked abortion providers and organizations that “promote” abortions from receiving federal sex education grants. A Polk County District Court found the law violated the Iowa constitution’s equal protection guarantees.

Oxley wrote for a 6-1 majority (including McDermott) that reversed that ruling. The justices found the law survived rational basis scrutiny, because the restrictions are rationally related to the state’s “preference for childbirth over abortion,” and concerns that an entity focused on reproductive health could “dilute” the state’s “abstinence and pregnancy prevention messages.”

Planned Parenthood had argued the law violated its free speech and free association rights, as well as its fundamental right to provide abortions. But the Iowa Supreme Court majority held that whether the organization receives sex education funding would not affect its abortion services. Furthermore, “Because an abortion provider lacks a freestanding constitutional right to provide abortions, any conditions premised on providing abortions cannot be considered unconstitutional.”

ELECTION LAW

Since early 2020, the Iowa Supreme Court has considered four election law cases.

Standing to challenge campaign finance determinations

In Dickey v. Iowa Ethics and Campaign Disclosure Board, attorney Gary Dickey challenged the Iowa campaign regulator’s decision to dismiss his complaint about the value of private flights donated to Governor Kim Reynolds’ campaign as in-kind campaign contributions.

The Iowa Supreme Court ruled 5-1 in May 2020 that Dickey lacked standing, because the relief he was seeking, “a determination that the Governor’s candidate committee underreported the fair market value of the trip—will not provide him any additional information” about the donated flights. Oxley joined the majority opinion. McDermott recused himself from that case.

2020 absentee ballot cases

Two important lawsuits related to absentee ballot request forms reached the Iowa Supreme Court in October 2020. In DSCC v. Pate, the Democratic Senatorial Campaign Committee was challenging Secretary of State Paul Pate’s directive on absentee ballot request forms. In July 2020, Pate ordered that only blank forms could be mailed to voters. Despite that directive, three county auditors mailed out absentee ballot request forms with much of the voter’s information filled in.

A Polk County District Court invalidated part of Pate’s directive. But in an unsigned majority opinion joined by McDermott, Oxley, and four other justices, the Iowa Supreme Court vacated the lower court ruling. The justices held that Iowa law authorized Pate’s action, and that the Polk County court’s action was “in effect a collateral attack on orders previously entered in Johnson, Linn, and Woodbury Counties,” which had declared the pre-filled absentee ballot request forms invalid.

A week later, in League of United Latin American Citizens v. Pate, the justices ruled 4-3 not to block enforcement of a recently-enacted law, which limited county auditors’ ability to fix errors or omissions on absentee ballot request forms.

McDermott joined the majority opinion, which was not attributed to any author and held, “we are not persuaded the statute imposes a significant burden on absentee voters.”

Oxley authored a powerful dissent. Excerpts:

To read the majority opinion, one might forget we’re even in the midst of a historic global pandemic. The majority dismisses the record evidence not only about the pandemic and its effects on county auditors’ ability to keep up with record-breaking requests for absentee ballots— requests made at the urging of the defendant that voting by mail is the safest way to vote—it also dismisses the record evidence about the significant number of ballot requests county auditors will receive with missing or incorrect information. […]

The legislature has long provided a back-end process for fixing inaccurate request forms but has now made that process much more cumbersome and time-consuming as we approach a general election in which the defendant predicts eighty percent of Iowans will vote absentee.

On a related note: McDermott did not recuse himself from either absentee ballot case, even though he had done extensive legal work for the Republican Party of Iowa as recently as January 2019.

Shortly before the 2020 general election, McDermott declined my request for comment on whether he would recuse himself from any post-election cases involving Republican candidates or party organizations.

As it happened, Iowa’s 2020 election results didn’t inspire any litigation that reached our state’s Supreme Court. But Republicans filed dozens of lawsuits seeking to change the outcome in other states, based on unsubstantiated claims of election fraud. It could have happened here, if Joe Biden or Theresa Greenfield had won the presidential or Senate races.

Iowa’s Code of Judicial Conduct (rule 51:2.11) stipulates, “A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned […].”

McDermott has recused himself from hearing more than two dozen Iowa Supreme Court cases; click here for the list the judicial branch recently provided in response to my request. I don’t understand why he didn’t step back from the 2020 election cases. The new restrictions on absentee ballot request forms had obvious partisan motivations. A reasonable person could question whether McDermott could fairly evaluate the impact of Pate’s directive or the GOP-backed statute.

Challenge to Abby Finkenauer’s nominating petitions

This April, the Supreme Court considered the politically charged question of whether Abby Finkenauer should be allowed to compete on the Democratic primary ballot for U.S. Senate. McDermott was one of five justices who signed on to a majority opinion, which didn’t credit any one author. As Bleeding Heartland explained in more detail here, they 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.

Oxley concurred in the judgment only (Finkenauer should appear on the ballot), without explaining her reasoning. We can only guess on what grounds she reached that conclusion. During the oral argument, Oxley sounded troubled by the prospect of disqualifying a candidate over a minor problem with a few signatures. The plaintiffs seeking to strike Finkenauer from the ballot hadn’t claimed any of the disputed signatures were fraudulent. Oxley asked the plaintiffs’ attorney why the court shouldn’t find that the three disputed signatures meet the “essential objective” of the statute, if a date is required primarily to prevent fraud.

ENVIRONMENT, LAND USE

Two recent Iowa Supreme Court decisions disappointed many people in the environmental community.

An effort to force the state to act on water quality

Iowa Citizens for Community Improvement and Food & Water Watch had sued the state, two agencies, and various state officials, seeking to force government action to reduce nitrogen and phosphorus levels in the Raccoon River. Using what is known as the public trust doctrine, the plaintiffs alleged the state was failing to protect the public’s interest.

A 4-3 majority ruled in 2021 that the case should be dismissed, because the plaintiffs did not have standing to bring the case, and their arguments raised a “nonjusticiable political question.” Neil Hamilton critiqued the ruling in this Bleeding Heartland post. He noted that the majority “used a new and somewhat strained interpretation of standing,” even though “the state had conceded the plaintiffs had standing.” The four justices relied on other reasoning the state hadn’t presented as well, and seemed to consider the merits of the lawsuit, when the only matter before the court was the motion to dismiss. McDermott joined the majority ruling in that case.

Oxley wrote in a dissenting opinion, “While I share the majority’s doubt as to how far the plaintiffs can ride their public trust doctrine horse, expediency is not a basis for dismissing cases.” She added, “We have never held that the public trust doctrine cannot serve as the basis of individual constitutional rights.”

Oxley also joined Justice Christopher McDonald’s dissent in the Raccoon River case, which emphasized that the state “has conceded, for now, the public trust doctrine goes as far as the plaintiffs contend,” and “has conceded, for now, the plaintiffs at least have standing to pursue some limited relief under an expanded public trust doctrine.”

Suing a CAFO over pollution and noxious odors

One of the last cases to be published from the court’s 2021/2022 term was Garrison v. New Fashion Pork. The plaintiff sued after a confined animal feeding operation (CAFO) wrecked the quality of life he had enjoyed for decades on his rural property. But a so-called “right to farm” law enacted in 2020 gave broad immunity to livestock producers.

The Iowa Supreme Court ruled 4-3 in favor of New Fashion Pork: “CAFOs are controversial, but it is not our role to second-guess the Legislature’s policy choices.” McDermott joined the majority opinion.

In a commentary about this decision, Randy Evans noted that the majority “threw out the Iowa Supreme Court’s own legal test that has guided our state’s courts for eighteen years in deciding questions of whether a CAFO is operating as a public nuisance.”

Oxley joined both dissenting opinions in Garrison. Appel pointed out that the first articles in the Iowa Constitution declares, “All men and women are, by nature, free and equal, and have certain inalienable rights — among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness.” The founders wrote a Bill of Rights to protect Iowans from “special interests” that might influence government, he explained.

Appel wondered whether the court was “telling the existing property owners that they are required to ‘take one for the team’ as the private owners next door emit nuisance odors under a scheme of statutory immunity?”

Oxley signed on to McDonald’s dissent as well. He highlighted the Iowa Constitution’s “strong protection for private property” and argued, “The majority overturns well-supported and well-established case law and eviscerates the right to possess, use, enjoy, and protect property.”

LGBTQ EQUALITY

McDermott authored and Oxley joined an important decision this year relating to employment discrimination against a transgender Iowan. The justices upheld a Polk County jury verdict, which found that the Iowa Department of Corrections unlawfully discriminated against plaintiff Jesse Vroegh by refusing to let him use male restrooms and locker rooms, and refusing to cover gender-affirming “top” surgery under the state’s insurance plan. 

However, that majority opinion did not follow the logic of a U.S. Supreme Court decision, which had held that gender identity discrimination also constitutes discrimination on the basis of sex. Appel dissented from that part of the ruling.

In addition, the McDermott opinion found Wellmark Blue Cross/Blue Shield, which administered the state health insurance policy, had not discriminated against Vroegh. Appel would have denied Wellmark’s motion for summary judgment, because “there was evidence from which a jury could reasonably infer that Wellmark was a significant actor in the events that led to the discriminatory action by the State.”

CONSTITUTIONAL CLAIMS AGAINST THE GOVERNMENT

In 2021, the Iowa Supreme Court majority issued its third ruling related to the decade-long discrimination lawsuit initiated by former Iowa Workers’ Compensation Commissioner Christopher Godfrey. Years earlier, a majority had held Godfrey could sue the state and government officials for alleged violations of his rights under the Iowa Constitution.

The case went to trial in 2019, and a jury awarded Godfrey $1.5 million in damages, after finding that then Governor Terry Branstad “discriminated against him based on his sexual orientation” by lowering his pay and pressuring him to resign in 2011. The state appealed the verdict.

Last year, a Supreme Court majority (joined by Oxley) overturned the jury’s findings of fact—an extremely rare occurrence—and determined that Godfrey had failed to demonstrate Branstad knew he was gay when he tried to force him out. The majority also found Godfrey wasn’t subjected to unlawful discrimination or retaliation, and that Branstad had discretion to lower his salary.

McDermott wrote separately in that case. He agreed with the majority finding about Godfrey’s salary, but would not have delved into trial details such as jury instructions or whether evidence was properly presented. Rather, he would have rejected Godfrey’s civil rights claims on the grounds that he was an “appointed officer”—not an employee for purposes of the Iowa Civil Rights Act.

Many Iowa attorneys shared the concerns Appel expressed when dissenting from the majority in Godfrey III: appellate judges should not usurp the jury’s fact-finding role. Godfrey’s attorney Roxanne Conlin told the Des Moines Register’s Morris last year that she “believes the court’s willingness to set aside a jury’s verdict in Godfrey’s case ‘upends centuries of settled Supreme Court law’ and will signal to other attorneys that the justices are willing do so to reach a desired result.”

CRIMINAL LAW

The Iowa Supreme Court considers so many criminal cases that it was difficult to pick a few representative ones.

One case generated political controversy. Oxley and McDermott joined the 4-3 majority opinion in State of Iowa v. Nicholas Dean Wright, a 2021 case in which the court held that police searches of garbage without a warrant violate the Iowa Constitution’s search and seizure provision. A Federalist Society constitutional law fellow, John Gaelen Wrench, called the case “a significant development in the Iowa Supreme Court’s interpretation” of Article I, Section 8.

In response to that decision, this year the Iowa legislature approved and Governor Reynolds signed a law stating that Iowans have “no reasonable expectation of privacy in garbage placed outside of the person’s residence for waste collection in a publicly accessible area.”

McDermott has written several majority opinions (joined by Oxley) relating to challenges of jury composition. Prior to 2020, the Iowa Supreme Court had remanded several cases involving Black defendants to lower court, after the defendants argued all-white juries violated their constitutional right to an impartial jury. The lower courts held hearings on whether the jury pool was drawn from a fair cross section of the community, and rejected the defendants’ claims.

Those cases, known as Plain, Lilly, Veal, and Williams, returned to the Iowa Supreme Court in 2021 and 2022. In each case, the justices upheld the defendant’s conviction, after finding they had failed to demonstrate that the jury was unrepresentative because it was not drawn from a fair cross section of the community.

Oxley authored a unanimous majority opinion this year in State v. Stevens, which held, “A drug dog’s positive alert outside the driver’s door of a vehicle does not alone create probable cause to search the vehicle’s passengers.” The justices agreed the District Court should therefore have suppressed evidence a law enforcement officer found in the defendant’s coat pocket, after arresting him without a warrant.

Have a tip about other significant Iowa Supreme Court cases or noteworthy opinions Justices Oxley or McDermott have authored? Reach out to Laura Belin confidentially.

Top photos of Matthew McDermott and Dana Oxley first published on the Iowa Judicial Branch website.