Redmond v. Carter

247 N.W.2d 268

• Court: Supreme Court of Iowa
• Decided: November 23, 1976
• Docket: 59949
• Status: Published

Opinions

McCORMICK, Justice.

We accepted original jurisdiction of this case under our supervisory power in order to decide whether district court judges are eligible for appointment to the Iowa Court of Appeals. We hold they are eligible for such appointment and accordingly dismiss the petition for supervisory review and petition of intervention.

The Iowa Court of Appeals is an intermediate appellate court created by Acts 66 G.A., S.F. 1092, effective July 1, 1976. The supreme court, like the district court, has always been provided for in the Iowa Constitution. However, the legislature has always been empowered to create additional courts below the level of the supreme court. Ia.Const. art. V, § 1.

From 1857 until 1962 the Constitution provided that a district court judge “ * * shall be ineligible to any other office, except that of Judge of the Supreme Court, during the term for which he was elected.” Ia.Const. art. V, § 5 (1857). In 1962 the people of Iowa adopted an amendment to the Constitution establishing a nonpartisan merit system of judicial selection and tenure. The amendment repealed art. V, § 5, and included the following language regarding eligibility of district court judges to hold other office:

“Judges of the Supreme Court and District Court shall be ineligible to any other office of the state while serving on said court and for two years thereafter, except that District Judges shall be eligible to the office of Supreme Court Judge.” Ia.Const. art. V, § 18.

The amendment added:

“Other judicial officers shall be selected in such manner and shall have such tenure, compensation and other qualification as may be fixed by law.”

The legislation creating the court of appeals provides that appointees to the court of appeals must satisfy the same requirements as judges of the supreme court. Acts 66 G.A., S.F. 1092, § 14. Statutory qualifications for the supreme court and district court are prescribed in § 46.14, The Code:

“Such nominees shall be chosen by the affirmative vote of a majority of the full statutory number of commissioners upon the basis of their qualifications and without regard to political affiliation. Nominees shall be members of the bar of Iowa, shall be residents of the state or district of the court to which they are nominated, and shall be of such age that they will be able to serve an initial and one regular term of office to which they are nominated before reaching the age of seventy-two years. No person shall be eligible for nomination by a commission as judge during the term for which he was elected or appointed to that commission.”

Respondents James H. Carter, Robert G. Allbee and Leo Oxberger were among 15 persons nominated to fill the five initial positions on the court of appeals, and they were among the five persons appointed to the court by the Governor. At the time of their nomination and appointment they were district court judges. Respondents Allen Donielson and Bruce M. Snell, Jr. were the other two persons appointed to the court of appeals from the list of nominees.

No question is raised regarding the statutory eligibility of respondents to receive their appointments. Rather, petitioner, who is a taxpayer and state senator, and intervenor State of Iowa challenge the eligibility of respondents Carter, Allbee and Oxberger under art. V, § 18, of the amended Constitution. Petitioner also contends the ineligibility of these respondents has the effect of invalidating the appointments of respondents Donielson and Snell, but in-tervenor does not share that view.

The determinative question is whether art. V, § 18, must be construed and applied to make district court judges ineligible for appointment to the court of appeals until two years after they leave the district court.

The arguments of the parties on this question fall along two principal lines. One relates to ascertainment of the intent of the framers of the provision. Petitioner and intervenor insist that its meaning is evident from the language used and that such language plainly makes district court judges ineligible for appointment to the court of appeals until two years after they leave the district court. Respondents Carter, Allbee and Oxberger insist that a reasonable and practical construction of the provision, in light of its evident and demonstrable purpose, precludes its application to deny district court judges the right of appointment to higher state judicial office.

The second line of argument relates to allegations by respondents Carter, Allbee and Oxberger that the construction and application of the provision urged by petitioner and intervenor would deprive them of rights assured under the United States Constitution, including their right to equal protection of the law under the fourteenth amendment. Petitioner and intervenor deny that any such deprivation would occur.

Because we find the question is answered by examination and resolution of the parties’ second line of argument, we do not reach the first. Instead, we assume for purposes of this decision that petitioner and intervenor are correct in their construction of Ia.Const. art. V, § 18, and we hold that the rights of district judges as a class under the equal protection clause of the fourteenth amendment to the United States Constitution would be infringed by application of that provision to make them ineligible for appointment to the court of appeals.

Federal constitutional provisions have been held in a number of cases in various circumstances to bar enforcement of state constitutional or statutory restrictions on eligibility for public office. Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970); Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); Stockton v. McFarland, 56 Ariz. 138, 106 P.2d 328 (1940); Fort v. Civil Service Com’n of County of Alameda, 61 Cal.2d 331, 38 Cal.Rptr. 625, 392 P.2d 385 (1964); State v. Superior Court of Marion County, Inc., 238 Ind. 421, 151 N.E.2d 508 (1958); Riley v. Cordell, 200 Okl. 390, 194 P.2d 857 (1948); Minielly v. State, 242 Or. 490, 411 P.2d 69 (1966); Beasley v. Cunningham, 171 Tenn. 334, 103 S.W.2d 18 (1937); State v. Zimmerman, 249 Wis. 237, 24 N.W.2d 504 (1946). Restrictions have been held to meet federal constitutional standards in other circumstances in other cases. See Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971); Quinn v. Stone, 259 So.2d 492 (Fla.1972); Johnson v. State, Civil Service Department, 280 Minn. 61, 157 N.W.2d 747 (1968); State ex rel. Gralike v. Walsh, 483 S.W.2d 70 (Mo.1972). See, generally, Annot., 28 A.L.R.3d 717.

The fourteenth amendment provides in relevant part that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” A state cannot evade this provision any more by its constitution than by legislation. Turner v. Fouche, supra.

The equal protection clause proscribes state action which irrationally discriminates among persons. Brightman v. Civil Serv. Com’n. of City of Des Moines, 204 N.W.2d 588, 591 (Iowa 1973). We recognize that it is often necessary for the state to divide persons into classes for legitimate state purposes, but the distinction drawn between classes must not be arbitrary or unreasonable. The classification must be based upon some apparent difference in situation or circumstances of the subjects placed within the one class or the other which establishes the necessity or propriety of discrimination between them. Such discrimination is unreasonable if the classification lacks a rational relationship to a legitimate state purpose. Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 172, 92 S.Ct. 1400, 1405, 31 L.Ed.2d 768, 777 (1972). Traditional analysis is applied to equal protection challenges involving ordinary restrictions on eligibility for public office. Bullock v. Carter, 405 U.S. 134, 142-143, 92 S.Ct. 849, 855, 31 L.Ed.2d 92, 99 (1972).

Accordingly, if a classification is employed in establishing qualifications for public office, it must be based on a real and substantial difference having a reasonable relation to a legitimate object of government. Landes v. Town of North Hempstead, 20 N.Y.2d 417, 420, 284 N.Y.S.2d 441, 231 N.E.2d 120, 121 (1967). However, under this standard a classification does not deny equal protection simply because in practice it results in some inequality. Practical problems of government permit rough accommodations, and the classification will be upheld if any state of facts reasonably can be conceived to justify it. Lunday v. Vogelmann, 213 N.W.2d 904, 907 (Iowa 1973).

The construction of Ia.Const. art. V, § 18, advocated by petitioner and intervenor has the effect of making district court judges ineligible as a class for appointment to the court of appeals until two years after they leave the district court. All other lawyers meeting the statutory requirements, including judicial officers such as part-time magistrates, full-time magistrates and district associate judges, would comprise the class of persons eligible for appointment to the court of appeals. At the same time, district judges join that group to make up the class of persons eligible for the state’s highest court. Neither petitioner nor intervenor contends that the framers of art. V, § 18, intended to make any such classification. Yet, in, defending their construction of the constitutional provision, petitioner argues that the classification is as unavoidable as it is absurd. This argument ignores the effect of the fourteenth amendment. A classification which is absurd cannot be sustained against an equal protection challenge; if it is absurd, it is avoidable.

Petitioner and intervenor have not suggested any state of facts which reasonably can justify exclusion of district court judges from the class of persons eligible for the court of appeals while including them among those eligible for the state’s highest court, and we have found none.

Intervenor acknowledges that provisions like art. V, § 18, “are supposed to promote separation of governmental power, help remove judges from politics and inhibit trafficking in public office,” citing State ex rel. Childs v. Sutton, 63 Minn. 147, 65 N.W. 262 (1895), and State ex rel. Reynolds v. Howell, 70 Wash. 467, 126 P. 954 (1912). But intervenor does not suggest how such purposes are rationally served by the classification at issue here. The court of appeals is part of the judicial department; therefore exclusion of district judges from the class of persons eligible for appointment to the court of appeals does not promote the separation of powers. The district court and court of appeals are both nonpartisan; hence such exclusion does not serve the goal of nonpartisanship. Judges are selected for the court of appeals through a nonpartisan merit system, which intervenor acknowledges properly makes district judges and other judicial officers eligible for the supreme court; thus the exclusion does not advance the goal of inhibiting trafficking in public office either.

Petitioner and intervenor rely heavily on the principle that a person does not have a constitutional right to public employment. However, that is not the issue. The issue is whether the state can arbitrarily regulate public employment. It is well settled that, “To state that a person does not have a constitutional right to government employment is only to say that he must comply with reasonable, lawful, and nondiscriminatory terms laid down by proper authorities.” Slochower v. Board of Higher Education of New York City, 350 U.S. 551, 555, 76 S.Ct. 637, 639, 100 L.Ed. 692, 699 (1956).

The same principle was applied in Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970), a case in which the United States Supreme Court sustained an equal protection challenge to a Georgia constitutional provision conditioning eligibility for appointment to a county school board on freeholder status. The Court said:

“We may assume that the appellants have no right to be appointed to the Taliaferro County board of education. But the appellants and members of their class do have a federal constitutional right to be considered for public service without the burden of invidiously discriminatory disqualifications. The State may not deny to some the privilege of holding public office that it extends to others on the basis of distinctions that violate federal constitutional guarantees.” 396 U.S. at 362-363, 90 S.Ct. at 541, 24 L.Ed.2d at 580.

The same situation exists here. The legislature created' the intermediate court in the exercise of power delegated to it by la. Const, art. V, § 1. Having established the judicial offices involved, the State may not deny district court judges the privilege of holding such offices on the basis of invidiously discriminatory distinctions.

In an apparent effort to defeat application of this principle, intervenor alleges that consideration of the absurdity of the classification making district judges ineligible for the court of appeals is precluded by the fact the court was created subsequent to the 1962 amendment adding art. V, § 18, to the Iowa Constitution. Intervenor argues that a state constitutional provision which is not invalid under the federal constitution when adopted cannot be made invalid by a subsequent act of the legislature. Intervenor suggests that if there is a choice between sustaining art. V, § 18, and the statute creating the court of appeals, the statute must fall. But, without citation of authority, intervenor then invites us to ignore the equal protection clause and save the court of appeals by holding art. V, § 18, makes district judges ineligible for appointment to it. Of course, if we agreed with the rest of intervenor’s analysis, we could not disregard the equal protection clause. Giving it effect and carrying intervenor’s argument to its logical conclusion, art. V, § 18, as construed by intervenor would nullify the legislature’s undisputed power under art. V, § 1, to establish an intermediate appellate court.

However, we do not agree with interve-nor’s analysis. The principle that a state constitutional provision which is not invalid under the federal constitution when adopted cannot be made invalid by a subsequent act of the legislature is a bar only to legislation which purports to invalidate a state constitutional provision on its face or in previously constitutional applications. It does not bar legislation resulting in new circumstances to which the state constitutional provision may not validly extend. This limitation of the principle is implicit in the cases relied on by intervenor. See Beveridge v. Lewis, 137 Cal. 619, 70 P. 1083 (1902); Hanover Fire Ins. Co. v. Harding, 327 Ill. 590, 158 N.E. 849 (1927).

The conformance of a state constitutional provision with the federal constitution is not fixed forever in every possible application by conditions existing when it was adopted. A constitutional provision does not stop the clock. Moreover, a provision of law which is constitutional when applied in one situation may be unconstitutional when applied in another. Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 462, 65 S.Ct. 1384, 1390, 89 L.Ed. 1725, 1734 (1945).

As a result, a classification which does not deny equal protection in one set of circumstances may do so when circumstances change. Chicago & N. W. Ry. Co. v. Fachman, 255 Iowa 989, 998, 125 N.W.2d 210, 215 (1963); see Chastleton Corp. v. Sinclair, 264 U.S. 543, 44 S.Ct. 405, 68 L.Ed.2d 841 (1924); Vigeant v. Postal Telegraph Cable Co., 260 Mass. 335, 157 N.E. 651 (1927). This is one reason courts will ordinarily avoid formulating a rule of constitutional law broader than required by the precise facts in which it is to be applied. United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960).

Petitioner and intervenor do not question the authority of the legislature to establish an intermediate court under Ia.Const. art. V, § 1. When the legislature exercised that authority, it did not purport to affect the conformance of art. V, § 18, with the equal protection clause of the federal constitution either on its face or in previous applications. It simply created new circumstances. In-tervenor has failed to distinguish between a statute which creates new circumstances for application of an old constitutional provision and a statute which purports to modify such a prior constitutional provision. The classification challenged by respondents Carter, Allbee and Oxberger arises from the construction of art. V, § 18, urged by petitioner and intervenor in the new circumstances and not from the statute. The question for us is whether the equal protection clause bars application of the state constitutional provision in these new circumstances.

District judges in 1962 had the same rights under the equal protection clause of the fourteenth amendment as they do now. Art. V, § 18, cannot be applied now to infringe those rights. The fact that the problem would not exist if circumstances had not been changed by creation of the court of appeals does not diminish the federal constitutional rights of district court judges. Nor does holding they are eligible to sit on the court of appeals enlarge those rights; it simply recognizes them and applies them in new circumstances. The effect of sustaining the equal protection challenge is not to strike the state constitutional provision or to invalidate it in previous applications, but to make it inapplicable to the situation here because of the overriding assurances of the equal protection clause.

Art. V, § 18, as construed by petitioner and intervenor, cannot withstand equal protection analysis in its present application. It burdens district court judges with an invidiously discriminatory disqualification. We hold that this provision cannot be applied to bar district judges from appointment to the court of appeals because to do so would infringe the rights of district judges as a class to equal protection of the law.

We do not decide the constitutionality of art. V, § 18, in any other application.

We hold that respondents Carter, Allbee and Oxberger are not made ineligible by Ia.Const. art. V, § 18, for appointment to the Iowa Court of Appeals. Therefore, we reject plaintiff’s challenge to the validity of the appointment of all respondents. We need not and do not decide whether if the district judges were ineligible the appointments of respondents Donielson and Snell would have been invalid.

The petition for supervisory review and petition of intervention are accordingly dismissed.

Costs are taxed to intervenor.

All Justices concur except LeGRAND, MASON and HARRIS, JJ., who concur specially and REES, J., who takes no part.