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The Elbert Files: Worrisome words


The Iowa Supreme Court’s poor choice of words in its recent dismissal of a high-profile Raccoon River pollution case is striking. 


In refusing to allow the case to proceed to trial, the 4-3 majority opinion written by Justice Edward Mansfield sets a precedent that appears to severely limit the court’s power in the future.


“In the end, we believe it [allowing the case to proceed] would exceed our institutional role to ‘hold the state accountable to the public.’ Those words, used by the plaintiff to describe what they ask of us, go beyond the accepted role of courts and would entangle us in overseeing the political branches of government,” the opinion says. 


I’m not a lawyer, but that is way off base. Allowing the case to continue would not entangle the judiciary in politics any more than it already is. 


However, dismissing the case on the grounds cited by Mansfield does. It also flies in the face of a simple truth we all learned in American history and government classes. Namely, that the founders created the courts as a third branch of government to act as a referee and be the ultimate determiner of what is and is not legal.


Historically, the court was slow to step into that role. It did so initially in a backhanded ruling by Chief Justice John Marshall in 1803, which set a precedent for declaring laws unconstitutional. 


Since then, politicians, as well as judges, have expanded the powers of courts to the point where the Iowa Supreme Court was able to unanimously declare in 2009 that gay marriage is legal in Iowa. 


A voter backlash to that opinion removed three justices, including Chief Justice Marsha Ternus. Not surprisingly, the voters’ decision produced a more conservative court.


But now it seems the Iowa’s Supreme Court is so averse to controversy that it refused to do its duty in the Raccoon River lawsuit, which would have been to simply allow the case to proceed. 


In dismissing the case, the four-justice majority did something courts rarely do: They answered questions that were not asked.


Worse yet, they ruled that the two activist groups that brought the lawsuit had no standing to do so, even though the state had already conceded the plaintiffs had standing.


In an analysis of the decision, Drake University law professor and agricultural law expert Neal Hamilton noted that the majority opinion spent 10 pages “considering the merits and possible judicial outcomes, to ultimately conclude the case involved nonjusticiable political questions.” 


That’s another no-no because, as anyone familiar with the law will tell you, at this stage of litigation, the court should not be considering the merits of the case.


“While I share the majority’s doubt as to how [successful the plaintiffs will be,] expediency is not a basis for dismissing cases,” wrote dissenting Justice Dana Oxley.


Justice Brent Appel also dissented, saying the majority wrongly applied federal precedent to a state case.


“Unlike the federal courts of limited jurisdiction, general jurisdiction state courts were designed to be problem-solving courts with sufficient judicial power to effectively resolve a wide range of disputes brought to the local courthouse by citizens,” Appel wrote in his dissent. 


Clearly the Raccoon River case involves serious constitutional questions that will not be resolved without litigation. 


The only thing the court accomplished by dismissing the case was to kick the can down the road and run up legal fees for all concerned, including state government. 


In the meantime, farmers can, and some will, continue using large amounts of fertilizer and farm animals will continue to pollute Iowa’s air, land and water. Water utilities will be forced to pay increasing amounts of money to remove pollution. And the quality of life for anyone in or near the Raccoon River will continue to deteriorate. 


One other thing: The worrisome wording of Justice Mansfield’s ruling is a big step backward and creates a precedent that will make it more difficult for anyone seeking justice in Iowa.

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