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The Grand Finale

By B John Burns
August 27, 2014

I am about a month late in writing this. But I just finished plowing through State v. Short, one of the magnificent decisions released on July 18,the final decision day before the Supreme Court took its Summer break.  The July 18 decisions were like the Grand Finale of a massive fireworks display.

The narrow holding of Short is that under Article I, section 8 of the Iowa Constitution, a valid warrant is required prior to the search, by law enforcement, of the home of a person on probation. This is what the Court held in State v. Cullison, 173 N.W.2d 533 (Iowa 1970) in analyzing the issue under the Fourth Amendment.  In the meantime, however, the United States Supreme Court held in Griffin v. Wisconsin, 483 U.S. 868 (1987) and United States v. Knights, 534 U.S. 112 (2001).that the Fourth Amendment permits searches of probationers based upon reasonable suspicion.  The Iowa Court, however, began diverging from the Federal interpretation of the Federal provision in State v. Ochoa, 792 N.W.2d 260 (Iowa 2010), under the Iowa Constitution.

Over the past decade, as I have noted repeatedly, the Iowa Supreme Court has been prolific in carving out separate paths on a number of constitutional issues from those taken by their federal counterparts.  The eloquence in these decisions has grown increasingly. Justice Appel’s concurrence in State v. Baldon, 829 N.W.2d 785 (Iowa 2013), I said last year, reads like a law review article.

During the 2013-14 Session of the Court, after Baldon, the intensity in the Court’s writing continued to increase, reaching a climax in the July 18 decisions – most notably, Short, State v. Lyle, _____ N.W.2d _____ (Iowa 2014) and, to a lesser degree, State v. Edouard, _____ N.W.2d _____ (Iowa 2014). What makes the more recent decisions particularly interesting is that the other faction of the Court is now battling back.

   Predictably, perhaps, the dissenting voices are the Justices who earned their seats as the direct result of the Court’s carving out an interpretation of Equal Protection that diverged, at least at the time, from the federal interpretation of the Fourteenth Amendment, in Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009).  The Short decision is one of several in which this happens, but is perhaps the most stark illustration of the ideological battle now raging in the Court.

Justice Appel authors the majority opinion in which he lays down, as he did in his Baldon concurrence, the “established principles of independent state constitutional law.” The federal Bill of Rights, he explains, was based on provisions already appearing in existing state constitutions.  Under the Iowa Constitution, the Bill of Rights enjoys special prominence, appearing in article I rather than being tacked on as a set of amendments.  As the federal courts continue to chip away at the protections afforded under the federal constitution, it is left to the states to step in and maintain rights under their law. I can’t say I’m smart enough to know exactly what Justice Appel is saying when he speaks of the  "aggressive, maximalist character of lockstep approach as [a] 'precommitment’ device preventing independent examination of facts and law,” but I can tell you I agree one-hundred percent.  Uniformity in the application of constitutional principles in a federal system is not necessarily the ideal and, furthermore, is not necessarily attainable. The law enforcement community and the legal profession readily adjusts to the absence of uniformity in interpretation.  State courts should not be required to utilize specific criteria to justify diverging from the federal interpretation of a right, and the employment of such criteria could complicate the Court’s decisions.  By reaching the decision it did in Short, the Court followed the precedent it established in cases such as Cullison, Ochoa and Baldon. 

Justice Cady concurred simply to “emphasize the importance of independently interpreting our Iowa Constitution:”

"As Iowans, we are deservingly proud of a long history of rejecting incursions upon the liberty of Iowans, particularly because we have so often arrived to the just result well ahead of the national curve.  Yet we cannot ignore that our history of robust protection of human rights owes in no small part to our authority within America’s federalist system to independently interpret our constitution, Similarly, we must not forget that the virtue of federalism lies not in the means of permitting state experimentation but in the ends of expanded liberty, equality and human dignity.

   *    *    *

"It goes without saying our decisions have not always been without their detractors. As we pointed out in State v. Lyle, also decided today, ‘[o]ur court history has been one that stands up to preserve and protect individual rights regardless of the consequences.’ _____ N.W.2d _____, _____ (Iowa 2014). Yet, history has repeatedly vindicated, and the people of Iowa have repeatedly embraced, the bold expansions of civil, constitutional, and human rights we have undertaken throughout the 175 years of our existence as a court.  In other words, time has shown that those decision, not unlike our recent parolee search cases, are unequivocally the law of this state.

"Today’s decision is another step in the steady march towards the highest liberty and equality that is the birthright of all Iowans; it will not be the last."

I LOVE that shit!!

Each of the three dissenters wrote their separate opinions. Justice Waterman, in so many words, adopts the Wally Cleaver approach – Gee, guys, are we really supposed to be DOING this?  I mean, the grownups on the U.S. Supreme Court have pretty much TOLD us what the Fourth Amendment means. If we start messing with that, we’re looking at a heap of trouble. Justice Mansfield, the Ivy-Leaguer, cycles through Justice Appel’s principles of independent state constitutional law, and has an answer for each of them. Justice Zager makes all the other arguments.

I imagine that it’s obvious which of the opinions impressed me most. But it is exciting, to me at least, to see the intensity and depth with which this issue is being debated by all of the Justices. It is truly a battle for the soul of the Court.

Comments (1)Add Comment
...
written by naterj, September 03, 2014
A very well written majority opinion.

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