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Chief Justice Mark Cady, left, and justices Bruce Zager, Thomas Waterman, Brent Appel, Dayrl Hecht, David Wiggins and Edward Mansfield, gather backstage at Decorah High School ahead of a ‘court on the road’ session Wednesday, April 8, 2015.

DES MOINES – Leaders of conservative groups in Iowa again are urging their followers to oust Iowa Supreme Court justices in judicial retention votes but this year’s opposition to jurists involved in controversial rulings is relatively low key compared to the high-profile campaigns of 2010 and 2012.

At the same time, the progressive Justice Not Politics organization issued statewide survey results indicating 41 percent of 600 likely Iowa voters supported retaining Chief Justice Mark Cady and Justices Brent Appel and Daryl Hecht while 16 percent opposed them and the rest were undecided or declined to take a position.

The poll, conducted Sept. 6-11 by Washington-based Lake Research Partners, had a margin of error of 4.1 percent.

Under Iowa’s judicial merit system, every Iowa justice and judge, after serving a year on the bench, must stand for retention at the next general election and then near the end of each regular term of office. To be retained, judges must receive a majority of “yes” votes in the general election to serve another term.

Six years ago, religious, social and constitutional conservatives upset by a unanimous 2009 Supreme Court decision legalizing same-sex marriage in Iowa launched a successful campaign to oust three of the seven justices who were up for retention in 2010. But, after the defeat of then-Chief Justice Marsha Ternus and Justices David Baker and Michael Streit, Iowans voted in 2012 to retain Justice David Wiggins in a high-profile, well-funded campaign waged by opposition and advocacy groups.

This year, the final three justices who were part of the 7-0 same-sex marriage decision are up for retention, including Cady who was the author of the controversial Varnum vs. Brien ruling.

Officials at the Family Leader and Iowa Right to Life State Political Action Committee have posted online and social-media messages calling for “no” votes to defeat Cady, Appel and Hecht when they cast their 2016 general-election ballots between now and Nov. 8.

“The judicial retention vote is a key check and balance the people of Iowa have against judicial overreach and, while the Family Leader will not be devoting the extensive staff time and resources required to conduct a judicial vote campaign this year, we encourage Iowans to vote against retaining those judges who have used their office for political activism,” according to a post on the Family Leader Web site.

Opposition to keeping Cady, Appel and Hecht on Iowa’s high court center on a 2009 decision “to foist same-sex ‘marriage’ on Iowa” and a 2015 ruling that overturned an Iowa Board of Medicine rule that banned telemedicine abortions where a doctor is not physically present, the Family Leader message states. “We encourage Iowans to turn the ballot over and vote ‘no’ on Iowa Supreme Court Justices Appel, Cady, and Hecht in November.”

Likewise, Jenifer Bowen, Iowa Right to Life spokeswoman, issued a press release calling for Iowa voters to remove the justices up for retention votes this year.

“When given the chance to protect women and unborn children in 2015, the Iowa Supreme Court ignored the medical expertise of the Iowa Board of Medicine. Rather, they stood with Planned Parenthood of the Heartland, Iowa’s largest abortion chain,” Bowen said in an Oct. 7 email.

“These men enabled Planned Parenthood to continue to unleash dangerous webcam abortion across Iowa. Further, they willfully established precedent for other states to do the same. Send the message — loud and clear — our women and children deserve better than the current Iowa Supreme Court.”

Andrew Mertens, vice chairman of Justice Not Politics, countered that Cady, Appel and Hecht are highly qualified justices who bring respected judicial experience to the court, having received ratings of 91 percent, 82 percent and 88 percent, respectively, in this year’s Iowa State Bar Association survey of lawyers based on their knowledge and application of the law, temperament and demeanor, promptness in issuing rulings, and their impartiality in deciding cases based upon law and facts without being affected by outside influence.

Mertens said voter support for the current justices in the 2016 poll his group commissioned was higher than a similar survey taken before Wiggins’ successful 2012 retention, which also was a presidential year. But, he added, advocates are taking nothing for granted to informing Iowans to turn the ballot over and vote “yes” for Cady, Appel and Hecht.

“This is a strange election year. It’s hard to predict for certain turnout numbers and things like that,” he said. “We can’t sit on our hands. We can’t sit on the sidelines here.

“I think voters have a great deal of regret about removing three justices in 2010. Our courts recovered, but it’s a real stain on the otherwise proud history of our state. Voters don’t want to relive that again. Voters want to keep politics out of our courts,” Mertens added.

Tim Hagle an associate professor of political science at the University of Iowa who follows judicial politics, said the 2010 retention vote involved a “perfect storm of bad news” for justices in a “wave election” year when courthouses also were facing budget cuts and conservatives were energized about activist courts.

This year, he said, there has been limited mention of the judicial retention issue and he would be surprised if any of the justices finished below support in the “high 70s or low 80s” absent any widespread effort to oust them.

“I would say at this point I’ve seen a couple of mentions of it. But people have moved on,” Hagle said. “The sky hasn’t fallen in terms of the fallout from that initial (same-sex marriage) decision and people basically are at the point of accepting it and other issues are taking precedent. That’s not to say that it’s still not important for some people and some people still are not real happy about it.”

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Statehouse reporter for The Courier

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