Court hears argument on felon voting rights
Posted: Thursday, September 01, 2005
Stephen Byrd, the Muscatine Journal
MUSCATINE, Iowa -- A judge heard but did not rule Wednesday on arguments for and against Iowa Gov. Tom Vilsack's July 4 executive order that automatically grants voting rights to felons who have served their sentences.
Seventh Judicial District Judge J. Hobart Darbyshire also declined to rule on Muscatine County Attorney Gary Allison's case for mandamus, or the right to sue in the name of the state for the public's interest, as part of this case.
County attorney officials said afterwars that a decision may not be available for as long as two weeks.
A teleconference call set up with Darbyshire in his Davenport chambers included Deputy Attorney General Julie F. Pottorff and Vilsack's general counsel, Gary Dickey Jr., in Des Moines, as well as Allison and assistant county attorney Alan R. Ostergren in Muscatine.
Vilsack, who was scheduled to speak in Sioux City on Wednesday, was also a participant in the teleconference call, although he had no comment during the proceedings.
One representative from the Iowa Civil Liberties Union also listened in.
Pottorff argued that Iowa courts have limited the remedy of mandamus to the enforcement of rights that are "clear, certain and free from the possibility of any reasonable controversy."
In her submitted brief, Pottorff wrote that mandamus has been characterized in court as a "drastic remedy to be applied only in exceptional circumstances."
Pottorff also argued that mandamus cannot be used to challenge the legal validity of actions already taken, explaining that Vilsack's executive order has already been signed into existence.
"The county attorney (Allison) charted a course of 'do or die'," she said to Darbyshire. "He has filed for mandamus blindly before reading the governor's executive order.
"There's nothing in the executive order that contradicts state law."
Ostergren told Darbyshire that a 1997 case, State of Iowa, ex rel. Johnson v. Allen, recognized the authority of the county attorney to protect the public interest.
In that case, Ostergren explained that the Jasper County attorney brought an action against the mayor of Marengo, seeking to compel the city to pay for police protection. The court agreed with the county attorney, writing that the Jasper County taxpayers have a "pecuniary" interest in the mayor's compliance.
Ostergren said his office's purpose in invoking mandamus was to compel Vilsack to follow his statutory responsibilities concerning clemency for felons.
"It is the duty of the court in a mandamus action to review the duties of the office and determine whether the actions of the official are consistent with those duties," Ostergren wrote in a submitted brief.
Darbyshire questioned Ostergren, saying that he was "mystified" at what public interest was being protected through mandamus.
"This is about the control and regulation of the state's electoral system as well as making sure the governor notifies registered crime victims of his actions, your honor," Ostergren replied.
"What interest does the victim have with a convicted felon having the right to vote?" Darbyshire asked.
Ostergren replied that crime victims want to be involved in all aspects of a felon's rehabilitation and parole.
Darbyshire did not ask questions of either Pottorff or Dickey.
Dickey continued with Pottorff's argument that Vilsack's order was a proper exercise of the governor's constitutional authority and complied with the Iowa Code.
Under previous state rules approved by the Iowa Legislature, released felons could apply for their voting rights, but had to undergo review by the state's parole board and the governor in a process that took several months.
However, Vilsack's order automatically restores convicted felons' voting rights upon completion of their prison terms and probation periods.
Although Pottorff and Ostergren agreed that Vilsack had the right under the Iowa constitution to grant clemency, Darbyshire, in his questioning of Ostergren, seemed to disagree with the assistant county attorney's contention that Vilsack's order could be considered a "blanket" amnesty for felons.
"Why can't county auditors cross check felons from voting rolls?" the judge asked.
As an example, Ostergren used a recent case that received notoriety statewide.
"Under Vilsack's order, the Bentley brothers who are sitting in the Johnson County Jail on a first-degree murder charge against Jetseta Gage, would have their voting rights restored automatically," once any prison sentence they receive is completed, Ostergren said.
"What's the point of the law if we don't follow it?" Ostergren concluded, referring to the statute previously approved by the Legislature.
Contact Stephen Byrd at: 563-263-2331 Ext. 320 or stephen.byrd@muscatinejournal.com
MUSCATINE, Iowa -- A judge heard but did not rule Wednesday on arguments for and against Iowa Gov. Tom Vilsack's July 4 executive order that automatically grants voting rights to felons who have served their sentences.
Seventh Judicial District Judge J. Hobart Darbyshire also declined to rule on Muscatine County Attorney Gary Allison's case for mandamus, or the right to sue in the name of the state for the public's interest, as part of this case.
County attorney officials said afterwars that a decision may not be available for as long as two weeks.
A teleconference call set up with Darbyshire in his Davenport chambers included Deputy Attorney General Julie F. Pottorff and Vilsack's general counsel, Gary Dickey Jr., in Des Moines, as well as Allison and assistant county attorney Alan R. Ostergren in Muscatine.
Vilsack, who was scheduled to speak in Sioux City on Wednesday, was also a participant in the teleconference call, although he had no comment during the proceedings.
One representative from the Iowa Civil Liberties Union also listened in.
Pottorff argued that Iowa courts have limited the remedy of mandamus to the enforcement of rights that are "clear, certain and free from the possibility of any reasonable controversy."
In her submitted brief, Pottorff wrote that mandamus has been characterized in court as a "drastic remedy to be applied only in exceptional circumstances."
Pottorff also argued that mandamus cannot be used to challenge the legal validity of actions already taken, explaining that Vilsack's executive order has already been signed into existence.
"The county attorney (Allison) charted a course of 'do or die'," she said to Darbyshire. "He has filed for mandamus blindly before reading the governor's executive order.
"There's nothing in the executive order that contradicts state law."
Ostergren told Darbyshire that a 1997 case, State of Iowa, ex rel. Johnson v. Allen, recognized the authority of the county attorney to protect the public interest.
In that case, Ostergren explained that the Jasper County attorney brought an action against the mayor of Marengo, seeking to compel the city to pay for police protection. The court agreed with the county attorney, writing that the Jasper County taxpayers have a "pecuniary" interest in the mayor's compliance.
Ostergren said his office's purpose in invoking mandamus was to compel Vilsack to follow his statutory responsibilities concerning clemency for felons.
"It is the duty of the court in a mandamus action to review the duties of the office and determine whether the actions of the official are consistent with those duties," Ostergren wrote in a submitted brief.
Darbyshire questioned Ostergren, saying that he was "mystified" at what public interest was being protected through mandamus.
"This is about the control and regulation of the state's electoral system as well as making sure the governor notifies registered crime victims of his actions, your honor," Ostergren replied.
"What interest does the victim have with a convicted felon having the right to vote?" Darbyshire asked.
Ostergren replied that crime victims want to be involved in all aspects of a felon's rehabilitation and parole.
Darbyshire did not ask questions of either Pottorff or Dickey.
Dickey continued with Pottorff's argument that Vilsack's order was a proper exercise of the governor's constitutional authority and complied with the Iowa Code.
Under previous state rules approved by the Iowa Legislature, released felons could apply for their voting rights, but had to undergo review by the state's parole board and the governor in a process that took several months.
However, Vilsack's order automatically restores convicted felons' voting rights upon completion of their prison terms and probation periods.
Although Pottorff and Ostergren agreed that Vilsack had the right under the Iowa constitution to grant clemency, Darbyshire, in his questioning of Ostergren, seemed to disagree with the assistant county attorney's contention that Vilsack's order could be considered a "blanket" amnesty for felons.
"Why can't county auditors cross check felons from voting rolls?" the judge asked.
As an example, Ostergren used a recent case that received notoriety statewide.
"Under Vilsack's order, the Bentley brothers who are sitting in the Johnson County Jail on a first-degree murder charge against Jetseta Gage, would have their voting rights restored automatically," once any prison sentence they receive is completed, Ostergren said.
"What's the point of the law if we don't follow it?" Ostergren concluded, referring to the statute previously approved by the Legislature.
Contact Stephen Byrd at: 563-263-2331 Ext. 320 or stephen.byrd@muscatinejournal.com
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