(CN) — Iowa Supreme Court Justice Brent Appel is retiring from the bench after a 16-year career that began with him in the majority on decisions that expanded civil liberties and ended with him often writing in dissent on a court transformed by more conservative appointees.
Chief Justice Susan Christensen noted in remarks at Appel’s retirement ceremony Thursday that, in one of the first cases decided when she joined the court in 2018, Appel began his dissent by writing: “Today the majority says yes. I say NO.”
Appel, who reached the mandatory retirement age of 72 this year, is currently the longest-serving member of the seven-justice court. He was appointed in 2006 by then-Governor Tom Vilsack, a Democrat, from a slate of three candidates chosen by the nonpartisan State Judicial Nominating Commission.
For the first four years of his term, Appel was part of a majority that decided several search-and-seizure cases based on the Iowa Constitution that took a more expansive view than the U.S. Supreme Court on the Fourth Amendment. Appel also authored a number of cases limiting criminal sentences of juveniles based on the emerging science of brain development in young people.
In one of the most notable decisions written by Appel, Godfrey v. Branstad, the court for the first time recognized a right to sue the state for civil damages for a violation of civil liberties under the Iowa Constitution, even in the absence of legislative authority.
In his opinion for the majority, Appel pointed out that the framers of the Iowa Constitution in 1857 signaled the importance of protecting individual liberties from encroachment by the state government by putting Iowa’s Bill of Rights at the very beginning of the document.
“If these individual rights in the very first article of the Iowa Constitution are to be meaningful, they must be effectively enforced,” Appel wrote. He said the judiciary has a duty to protect those rights. “It would be ironic indeed if the enforcement of individual rights and liberties in the Iowa Constitution, designed to ensure that basic rights and liberties were immune from majoritarian impulses, were dependent on legislative action for enforcement.”
A dissenting justice wrote that Appel’s opinion amounted to “a judicial declaration of defiance” that would have far-reaching consequences: “The lead opinion signals that it will not be constrained by anything the legislature does and can devise any and all damage remedies it deems suitable and proper for alleged constitutional violations. This principle seems to lack any boundary.”
In 2009 Appel joined a unanimous decision in Varnum v. Brien that struck down Iowa’s law limiting marriage to a man and a woman, finding it violated the Iowa Constitution. That was six years before the U.S. Supreme Court reached the same conclusion under the federal constitution in Obergefell v. Hodges.
The Varnum decision led to an earthquake shakeup of the court. Under Iowa’s merit-selection process, judges stand for retention before the voters at the end of each term. In November 2020, just months after the Varnum decision, voters ousted three justices of the Iowa Supreme Court who were part of that decision – including then-Chief Justice Marsha Ternus.
A Republican governor appointed three new members who have proved to take less expansive views of civil liberties. Since then, three more members of the court retired or died. They, too, were replaced by a Republican governor.
That leaves Appel the only remaining member of the Varnum court, and in the position of authoring many dissenting opinions in response to the new majority. For example, a statistical review of the 2020-21 term produced by the Des Moines law firm Nyemaster Goode showed that Appel wrote 41 opinions during the 10-month term, but only 14 of them were for the majority while he wrote 18 dissents and nine concurrences departing from the majority on some point.
Prior to his appointment to the Iowa Supreme Court, Appel worked in private practice in Des Moines. Before that, he served in the Iowa Attorney General’s Office, where he briefed and argued four cases before the U.S. Supreme Court. Appel earned his bachelor’s and master’s degrees at Stanford University in California and law degree at the University of California, Berkeley. He served a one-year clerkship on the U.S. Court of Appeals for the District of Columbia. Appel and his wife, Staci, have five sons and one daughter.
Appel’s successor will be named by Republican Governor Kim Reynolds from a list of three candidates selected by the 17-member State Judicial Nominating Commission.
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