Court rejects utility’s effort against districts
A divided Iowa Supreme Court on Friday upheld a legal doctrine going back 100 years that protects agriculture drainage districts against lawsuits.
The ruling presents an obstacle for the Des Moines Water Works, which is pursuing a lawsuit in federal court in Sioux City filed in March 2015.
The water utility for 500,000 Iowans alleges the three counties that oversee 10 agricultural drainage districts should be required to obtain federal water pollution discharge permits and pay the utility the more than $1.4 million it has spent to remove nitrates from the water supply.
The decades-old rules that govern drainage systems — first established in Article 1 of the Iowa Constitution and updated periodically by the Legislature — have largely been untouchable in the agriculture-heavy state. But attorneys for the utility say agriculture has changed dramatically in the last 100 years and that the health implications of farm chemicals in water are clearer, justifying a fresh look by the courts.
The majority concluded Friday that changes in environmental laws have not undermined the basis for the drainage districts’ immunity, because the districts have limited purposes for existing and limited governmental power.
“While attitudes toward the environment may differ today from when the first drainage tiles were placed generations ago, tort claims based on alleged pollution are nothing new,” the court said.
The court said Iowa law “immunizes farmers who comply with fertilizer label instructions from liability for nitrate contamination, including money damage claims or cleanup costs. We defer to the legislature whether to reassess that policy choice.”
The court concluded that the cost of removing nitrate from the water is about 1 cent per day for Des Moines customers and it is up to lawmakers to decide whether the costs should be shifted back to the farmers.
The opinion is written by Thomas Waterman and fully supported by Edward Mansfield and Bruce Zager. Chief Justice Mark Cady and Brent Appel said they believe Water Works likely has some avenues to pursue action against the drainage districts.
Appel said in a dissenting opinion that the lawsuit should be allowed to proceed and Water Works should be able to sue at least for compensation for the cost of cleaning up the water.
“One of the fundamental principles of law is for remedies to be available when we discover wrongs. Pollution of our streams is a wrong, irrespective of its source or its cause,” he said.
Justices David Wiggins and Daryl Hecht did not participate in the opinion.
U.S. District Judge Mark Bennett, who initially oversaw the case, decided to ask the Supreme Court to clarify the issue of immunity for drainage districts concluding the novel legal issues presented in the case haven’t been directly addressed by Iowa’s highest court or federal courts.
The case returns to federal court for further proceedings. If the judge dismisses the state claims based on the court’s opinion Water Works still has federal claims to pursue which include seeking to have the districts obtain federal water pollution permits.
Report: Budget gap prompts one-day furlough for judicial workers
The state’s court system will close for a day this spring to help close a $400,000 budget gap.
The Des Moines Register cites a memo sent to Judicial Branch personnel on Friday in reporting that the state’s court system will go on furlough May 26.
Court Administrator David Boyd says clerk of court and other offices will be closed the Friday before Memorial Day, and 1,446 judicial employees will not be paid. Boyd says judges and magistrates will work that day with no pay cut.
The shortfall is a result of cuts the Legislature is poised to approve and send to Gov. Terry Branstad. The adjustments were drafted after revenue forecasts for the fiscal year came up lower than expected.
8th U.S. Circuit to get first black chief judge
A Hope, Arkansas, native is to become the first black chief judge of the 8th U.S. Circuit Court of Appeals
Judge Lavenski Smith, now of Little Rock, is to become chief judge of the St. Louis-based on March 11. He succeeds Judge William Jay Riley, whose seven-year term as chief judge is expiring.
The 58-year-old Smith was appointed in 2001 by then-President George W. Bush to the court that hears appeals from Arkansas, Missouri, Iowa, Nebraska, South Dakota, North Dakota and Minnesota.
Smith was in Washington last week for orientation and told the Arkansas Democrat-Gazette that he met with people ranging from information technologists to budgeting.
Court clerk Michael Gans said the position is routinely passed on to the next most-senior judge on the court who is 65 or younger.
Governor promises to veto transgender restriction
South Dakota Gov. Dennis Daugaard says he would veto legislation restricting which locker rooms transgender students can use.
The Republican said Thursday he’d veto the bill if it gets to his desk. He says any concerns about privacy can be met at the local level.
The bill introduced this week would require public school students to use the locker rooms, shower rooms and changing facilities matching their sex at birth. Schools would be allowed under special circumstances to provide other accommodations, like single-occupancy restrooms.
Daugaard says North Carolina has seen major problems since enacting a similar law. He vetoed legislation last year that also applied to bathrooms. Lawmakers failed to override the veto.
Republican Sen. Lance Russell, the main sponsor of this year’s bill, says he’s interested in protecting all students. Critics say the legislation is discriminatory.
Recusal plan aims to put state on track with U.S. Supreme Court ruling
Since 1999, the American Bar Association’s model code for judicial conduct has set limits on how much judges can receive from the parties or lawyers in a particularly case before having to recuse themselves.
Yet, only five states have adopted those provisions, according to a recent report from the National Center of State Courts, an organization that promotes improving the judicial administration of state courts. Wisconsin, for its part, is one of two states that chose in 2010 to reject proposals to adopt rules mirroring ABA’s recommendations.
Nearly a decade later, a group of 54 retired judges is asking the Wisconsin Supreme Court to reconsider that decision.
The judges filed a petition on Jan. 11 asking the Wisconsin Supreme Court to add stronger recusal rules to the state’s code for judicial conduct. Specifically, they are asking the justices to adopt what they are deeming an objective standard for judicial recusal — one that mirrors rules that the U.S. Supreme Court adopted in 2009 in the case of Caperton v. A.T. Massey Coal Co.
The petitioners are calling for the recusal thresholds to be set differently for various sorts of judges. Their recommendations would set the limits at: $10,000 for Supreme Court justices; $2,500 for Court of Appeals judges; $1,000 for circuit court judges; and $500 for municipal court judges.
The petitioners are also asking for a state constitutional amendment that would give the Supreme Court a way to still form a quorum when justices have been prevented by recusal requirements from ruling on a case. Their proposal would allow the justices to appoint Court of Appeals judges as temporary substitutes.
The petitioners say they are optimistic their proposals will be received favorably.
“We’re hoping the court will schedule a hearing given the nature of the people that filed the petition,” said former Wisconsin Supreme Court Justice Louis Butler, one of the judges who signed the petition.
Current recusal law relies on what many observers dismiss as being a subjective standard. Recusals can now be initiated only either by judges themselves or by parties in a particular case. But just because someone has asked a judge to step aside, that doesn’t necessarily mean the request will be granted.
“One of the interesting things about recusal that a few scholars have been emphasizing recently is that it’s an interesting sort of situation in which the judge or the justice faced with a recusal petition is inherently being asked to be a judge in his or her own case,” said Chad Oldfather, a law professor at Marquette University.
And because current procedures are so often initiated by the parties in a case, they can be viewed as being inherently accusatory, he said.
Oldfather, who studies judicial behavior, says he thinks the latest proposal sets a bright-line rule that would prevent judges from having to admit their impartiality could be in question.
“It has the effect of taking the question out of the judge’s hand and not requiring them to engage in the understandably difficult task of admitting either ‘I can’t be impartial here’ or ‘It doesn’t look like I can be impartial here,’ because it’s a hard thing to do,” Oldfather said.
Rothschild said. “This is not only about the appearance of bias, but actual bias. The other party in such a case cannot get due process.”
By the Wisconsin Democracy Campaign’s count, the Wisconsin Realtors Association and Wisconsin Manufacturers and Commerce have poured about $5.8 million into Supreme Court races since 2007. Rothschild noted that WMC and WRA had a big part in shaping the state’s current recusal rules, having submitted a petition in 2008 calling for the justices to change the judicial code so that receiving a campaign contribution did not automatically require judges to recuse themselves from cases. The justices, on a 4-3 vote, adopted that petition in 2010.
For Oldfather, the bigger concern is the possible loss of the appearance of impartiality. He noted that judges, unlike legislators, are expected to show how their rulings fit in with the greater body of law. Even though judges by and large fulfill this duty, the public is not necessarily aware of their efforts.
The justices could vote in February on whether they will consider the recusal petition. If they choose to, they will then schedule a public hearing and solicit comments from the public.
Attorney general, nonprofit announce plan to track rape kits
Wisconsin Attorney General Brad Schimel and a sexual assault prevention group launched an initiative Monday to help victims track evidence in their cases.
More than 6,000 sexual assault evidence kits were sitting untested on Wisconsin shelves in 2014. The kits are sitting for a variety of reasons, including prosecutors deciding cases were too weak to warrant testing, cases were resolved without the need for testing or victims refused to cooperate with investigators. A USA Today Network investigation in 2015 found at least 70,000 untested kits nationwide.
Victim advocates have pushed for testing all the kits to establish DNA profiles that could help identify serial offenders.
The Wisconsin Department of Justice received $4 million in federal grants in September 2015 to accelerate testing. USA Today Network-Wisconsin reported this past September that $2 million is earmarked for testing and the remaining $2 million for research and a public awareness campaign, but the agency was moving slowly because it was still collecting up-to-date information from local police departments on the status of the kits.
The DOJ and the Wisconsin Coalition Against Sexual Assault announced the creation of the By Your Side campaign Monday. The campaign offers victims a hotline number and a website they can use to start locating their kits and explore options for testing and connect with support services.