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IN THE IOWA SUPREME COURT

STATE OF IOWA; TERRY Supreme Court No. ____________


BRANSTAD, Governor of the
State of Iowa, in his official
CLERK OF SUPREME COURT

capacity; JEFFREY BOEYINK, PETITION FOR WRIT OF


Chief of Staff to the Governor of CERTIORARI
the State of Iowa, in his official
capacity; and BRENNA Trial date: June 5, 2019
FINDLEY, Legal Counsel to the (ongoing)
Governor of the State of Iowa, in Polk County No. LACL124195
her official capacity,
EXPEDITED
Plaintiffs, CONSIDERATION
REQUESTED
vs.
JUN 06, 2019

IOWA DISTRICT COURT FOR


POLK COUNTY,

Defendant.
ELECTRONICALLY FILED

Plaintiffs hereby petition for a writ of certiorari, Iowa R. App. P.

6.107, and request that the Court stay the district court case pending

resolution. In the alternative, if the Court finds that Plaintiffs’

petition cannot be timely addressed to allow the trial to proceed,

Plaintiffs request that the Court treat this petition as an application


for interlocutory review, Iowa R. App. P. 6.104, 6.108, and in the

interests of judicial economy, stay the district court case and

consolidate this petition with Plaintiffs’ previously filed application

for interlocutory review, Case No. 19-0798.

The trial of this matter began yesterday, June 5, 2019.

Introduction

Defendant Polk County District Court (hereinafter “the District

Court”) has entered final rulings on evidentiary matters that permit –

and sanction – Christopher Godfrey to prove his sexual orientation

discrimination claim in a manner that violates the constitutional

rights of the individual Plaintiffs and all of the citizens of Iowa.1

Specifically, the District Court held that the following is

admissible “circumstantial evidence” that Governor Branstad’s

1 On June 5, 2019, the District Court stated, on the record, that its
rulings on these evidentiary matters were final rulings. When
a certiorari action alleges a violation of constitutional rights, the
Court conducts an “independent evaluation of the totality of the
circumstances” and reviews de novo. State v. Iowa Dist. Ct., 801
N.W.2d 513, 517 (Iowa 2011).

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decisions to request Godfrey’s resignation and reduce his salary were

motivated by Godfrey’s sexual orientation:

• Evidence of candidate/Governor Branstad’s public policy


positions on Varnum v. Brien, same-sex marriage, and the
constitutional amendment process in Iowa;

• Evidence of Governor Branstad, Boeyink, and Findley’s


affiliation with the “anti-gay” Republican Party of Iowa;

• The private, religious beliefs of individual members of the Iowa


Association of Business and Industry (“ABI”) regarding
whether homosexuality is sinful; and

• Opinion testimony that the Republican Party of Iowa is “anti-


gay” from elected officials who had no involvement in
Governor Branstad’s decisions.

(Exhibit 1 – Order).2

The District Court’s rulings fundamentally chill the rights of all

Iowans to join a political party of their choosing and to vote for

political candidates that represent their views, and are in direct

contravention of this Court’s very statement in Varnum that

“[r]eligious doctrine and views contrary to this principle of law are

2Pursuant to Iowa R. App. P. 6.107(1)(b), Plaintiffs have filed the


Court’s ruling on motions in limine (Exhibit 1), and the parties’
briefing (Exhibits 2 through 4) with this petition.

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unaffected, and people can continue to associate with the religion

that best reflects their views.” Varnum v. Brien, 763 N.W.2d 862, 906

(Iowa 2009). These are matters of utmost public importance, the

resolution of which cannot wait until the trial is complete.

To be blunt: the District Court’s rulings have now officially

converted this trial into an eight-person referendum on the

viewpoints of the Republican Party of Iowa and its approximately

640,000 registered members, as well as the private religious beliefs of

many others. Respectfully, the District Court’s rulings violate the

constitutional rights of the individual Plaintiffs and the citizens of

Iowa. The harm to the citizenry is irreparable, and cannot wait for

resolution on appeal.3

3 Even if the Plaintiffs prevail at trial, the District Court’s ruling on


these issues – and the media coverage of the case that the District
Court has now permitted to be tried – will leave an indelible mark on
the citizens of Iowa.

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1. The District Court’s ruling that candidate/Governor
Branstad’s public policy positions are “circumstantial
evidence” that he acted in a discriminatory manner in a
subsequent employment action is a violation of the
constitutional rights of Governor Branstad and the citizens of
Iowa.

In its denial of Plaintiffs’ motion to exclude candidate/Governor

Branstad’s public policy positions as evidence of discrimination, the

District Court held:

If a particular statement or announced position is


circumstantial evidence of discrimination, it doesn’t
matter whether the statement or announced position is
made by a political office holder or a non-office holder. . .
The Court concludes a candidate or public office holder’s
stated position may be evidence of a state of mind and
may be offered as circumstantial evidence that the
individual acted in a discriminatory manner.

(Exhibit 1, Order, at 12). The District Court’s ruling on this issue is a

violation of the First Amendment to the Constitution of the United

States of America and the separation of powers doctrine that protect

our republican form of government.

The public policy positions of (and votes cast by) a

candidate/elected-office holder on public issues occupy the “highest

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rung” of speech protected by the First Amendment. Connick v. Myers,

461 U.S. 138, 145 (1983); see also Citizens United v. Fed. Election Comm’n,

558 U.S. 310, 329 (2010) (political speech “is central to the meaning

and purposes of the First Amendment”); First Nat’l Bank v.

Bellotti, 435 U.S. 765, 776 (1978) (speech on matters of public concern

is “at the heart of the First Amendment’s protection”). This

protection is not, at its core, intended to serve the private interests of

the elected official or his political party. Rather, it exists – and must

exist – to protect the interest of the People to exercise their political

power. Candidates for public office have “an obligation to take

positions on controversial political questions so that their

constituents can be fully informed by them, and be better able to

assess their qualifications for office; also so they may be represented in

governmental debates by the person they have elected to represent them.”

Bond v. Floyd, 385 U.S. 116, 136-37 (1966) (emphasis added). Indeed,

“the First Amendment has its fullest and most urgent application to

speech uttered during a campaign for political office.” Burson v.

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Freeman, 504 U.S. 191, 196 (1992). “The role that elected officials play

in our society makes it all the more imperative that they be allowed

freely to express themselves on matters of current public

importance.” Republican Party of Minn. v. White, 536 U.S. 765, 782

(2002) (quoting Wood v. Georgia, 370 U.S. 375, 395 (1962)).

Respectfully, the District Court’s ruling is almost Orwellian. It

is a warning to all Iowans that in matters of public discourse, all

animals are equal, but some animals are now more equal than others.

And it is in direct contravention of our most basic constitutional

norms. The People’s consent to be governed is conditioned on the

agnostic principle that they retain, at all times, the inviolable power

to change their laws. That power is exercised only through the

People’s election of candidates who are the People’s only voice. The

District Court’s ruling holds – in what appears to be a matter of first

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impression – that the voice of the People in directing their own

experiment in self-government may be against the law.4

The District Court’s ruling – if allowed to stand – would

fundamentally and inalterably chill the constitutional rights of the

People, and transform the judiciary into a forum for litigation of

political disputes. Plaintiffs respectfully request that this Court

sustain their petition and remand the case to the District Court for

further proceeding consistent with the Court’s order.

2. The District Court’s ruling that the individual Plaintiffs’


affiliation with a political party is “circumstantial evidence”
that they acted in a discriminatory manner in a subsequent
employment action is a violation of the constitutional rights
of the individual Plaintiffs and the citizens of Iowa.

In denying Plaintiffs’ motion to exclude evidence or argument

that an individual’s political affiliation with, or the political platform

of, a political party is evidence of discrimination, the District Court

held:

4The District Court criticized Plaintiffs’ for failing to cite a case to


support their argument. (Exhibit 1 – Order, at 12-13). Plaintiffs are
aware of no such case where this issue has arisen.

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If the evidence establishes that the Republican Party is, in
fact, ‘anti-gay’, testimony of the individual defendant’s
affiliation with the Republican Party would make it more
likely that a particular action was motivated by ‘anti-gay’
animus.

. . . . . . . .

Quite simply, if the evidence establishes the Republican


party was “anti-gay” in 2010 and 2011, and in the
individual defendants were members of the Republican
party, it is more probable the employment actions taken
against Godfrey were due to his sexual orientation.

(Exhibit 1, Order, at 14, 17). The District Court’s ruling on this issue

is also a violation of the First Amendment and separation of powers

principles.

As an initial matter, it is not the role of the judiciary (or jurors)

to decide whether a political party is “pro” or “anti” anything. Those

are inherently political questions that are resolved at the ballot box.

Regardless, the People’s right to associate with a political party is “an

integral part” of our basic constitutional freedoms. Elrod v. Burns, 427

U.S. 347, 357 (1976). For reasons that Plaintiffs hope are self-evident,

the District Court’s ruling fundamentally – and respectfully,

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unconstitutionally – diminishes that most basic freedom. According

to the District Court, any person’s affiliation with a political party is

now relevant and admissible “circumstantial evidence” of

discrimination. For any Iowan who follows this trial – particularly

those who are registered Republicans – this must be immediate cause

for alarm.

Plaintiffs respectfully submit that the District Court’s ruling is a

violation of the constitutional association rights of the individual

Plaintiffs and all Iowans. Plaintiffs respectfully request that this

Court sustain their petition and remand the case to the District Court

for further proceeding consistent with the Court’s order.

3. The District Court’s ruling that the religious beliefs of private


citizens is “circumstantial evidence” that Governor Branstad
acted in a discriminatory manner in a subsequent
employment action is a violation of the constitutional rights
of all citizens of Iowa.

The District Court granted Plaintiffs’ motion to exclude

evidence of the private views of any witness that was not “involved”

in Governor Branstad’s decisions to request Godfrey’s resignation or

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reduce his salary. (Exhibit 1 – Order, at 18). However, the District

Court denied Plaintiffs’ motion to exclude such evidence with respect

to alleged “anti-gay” beliefs of certain members of the Iowa

Association of Business and Industry (“ABI”) or any other private

citizen from whom Governor Branstad received input regarding

Godfrey. (Order at 19-20). The District Court’s ruling on this issue is

also a violation of the First Amendment.

There is no dispute in this case that Governor Branstad’s

decisions to request Godfrey’s resignation and reduce his pay were

based, in part, on input he received during the campaign from

business and industry groups, most notably the Iowa Association of

Business and Industry (“ABI”). Specifically, such groups – including

ABI – expressed concerns to candidate Branstad about Godfrey’s

performance as Workers Compensation Commissioner. Godfrey,

however, maintains that ABI – like the Republican Party of Iowa – is

an “anti-gay” organization, and based on this belief maintains that

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any role ABI played in influencing Governor Branstad’s decisions

must also be “circumstantial evidence” of discrimination.

As Plaintiffs argued to the District Court, there is not one shred

of evidence that Godfrey’s sexual orientation was ever discussed

between any representative of ABI and Governor Branstad, Boeyink,

or Findley. Further, the alleged “anti-gay” views at issue – as best

Plaintiffs can tell – is based on the testimony of one of ABI’s officers

(after being badgered by Godfrey counsel on entirely irrelevant

issues) that he is a Christian, believes that the Bible teaches that

homosexuality is a sin, and that he personally favored an amendment

to the Iowa Constitution regarding marriage.

The District Court has effectively held that personal religious

views of private citizens who provide “input” to a political candidate

on the campaign trail can later be used as “circumstantial evidence”

of discrimination in some unrelated employment dispute. Or stated

another way, an elected official – like Governor Branstad – may be

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subjected to civil liability in the future if he listens to his constituents

who may hold, in his private life, certain religious views.

Plaintiffs respectfully submit that the District Court’s ruling is a

violation of the constitutional association rights of all Iowans.

Plaintiffs respectfully request that this Court sustain their petition

and remand the case to the District Court for further proceeding

consistent with the Court’s order.

4. The District Court’s ruling that lay opinion testimony that the
Republican Party of Iowa was or is “anti-gay” is a violation of
the constitutional rights of all citizens of Iowa.

As argued before the District Court, Godfrey plans to parade a

number of public figures to offer their personal opinions that the

Republican Party of Iowa is, in whole or in part, “anti-gay”. Plaintiffs

moved to exclude such testimony as improper opinion testimony and

as irrelevant given that none of these witnesses were involved in

Governor Branstad’s decisions to request Godfrey’s resignation or to

reduce his salary. (Exhibit 2 – Motion – at 14-19). Specifically,

Plaintiffs’ moved to exclude the testimony of the following witnesses:

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• Bill Dotlzer: State Senator who plans to testify, consistent
with his declaration, that “[w]e were all aware of the
strong anti-gay beliefs of the Republican party and knew
that was an issue that could influence support for Mr.
Godfrey.”

• Matt McCoy: Former State Senator who plans to testify,


consistent with his declaration, that the Republican Party
“in the 2000’s was stridently anti-gay” and his opinions
on “how pervasive these deeply rooted anti-gay beliefs
are throughout the Republican Party.”

• Tom Courtney, Dick Dearden, Michael Gronstal, and


Chuck Eisenhart: Former and current State Senators and
Representatives who plan to testify about their beliefs
regarding the “anti-gay” views of the Republican Party of
Iowa and some of its members in the State Senate.

• Jonathan Wilson: A 2004 nominee for the State Board of


Education (who plans to testify about his belief that his
nomination was defeated because of “anti-gay” views of
the Republican Party of Iowa and some of its members in
the State Senate).

(Id.).

The District Court denied Plaintiffs’ motion and will permit all

of these witnesses to offer their personal, political opinions on these

subjects. The District Court held:

Subject to an analysis under Rule 5.403, Godfrey is


entitled to present to the jury any evidence that makes it

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more probable the employment actions taken against him
were due to his sexual orientation. Quite simply, if the
evidence establishes the Republican party was “anti-gay”
in 2010 and 2011, and in the individual defendants were
members of the Republican party, it is more probable the
employment actions taken against Godfrey were due to
his sexual orientation.

(Exhibit 1, Order, at 16-17).

Plaintiffs respectfully submit that the District Court’s ruling

that such testimony is proper opinion testimony, or in any way

relevant to the employment action at issue in this case is an abuse of

discretion. Regardless, for the same reasons discussed above, such

evidence is a direct attack on the constitutional association rights of

all Iowans, as it seeks – explicitly – to assign liability to the State of

Iowa based on the alleged “anti-gay” nature of one of two major

political parties recognized under state law. Such evidence has no

other relevance. Plaintiffs respectfully request that this Court sustain

their petition and remand the case to the District Court for further

proceeding consistent with the Court’s order.

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Conclusion

For these reasons, Plaintiffs State of Iowa, Terry Branstad,

Jeffrey Boeyink, and Brenna Findley respectfully request that the

Court grant their Petition for Writ of Certiorari, and stay the district

court case pending resolution. In the alternative, if the Court finds

that Plaintiffs petition cannot be timely addressed to allow the trial to

proceed, Plaintiffs request that the Court treat this petition as an

application for interlocutory review, Iowa R. App. P. 6.104, 6.108, and

in the interests of judicial economy, stay the district court case and

consolidate this petition with Plaintiffs’ previously filed application

for interlocutory review, Case No. 19-0798.

/s/Frank Harty, AT0003356


NYEMASTER GOODE, P.C.
700 Walnut Street, Suite 1600
Des Moines, Iowa 50309
Telephone: 515-283-3100
Facsimile: 515-283-8045
Email: fharty@nyemaster.com

/s/Debra Hulett, AT0003665


NYEMASTER GOODE, P.C.
700 Walnut Street, Suite 1600
Des Moines, Iowa 50309

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Telephone: 515-283-3100
Facsimile: 515-283-8045
Email: dlhulett@nyemaster.com

/s/ Katie Graham, AT0010930


NYEMASTER GOODE, P.C.
700 Walnut Street, Suite 1600
Des Moines, Iowa 50309
Telephone: 515-283-3100
Facsimile: 515-283-8045
Email: klgraham@nyemaster.com

/s/ David Bower, AT0009246


NYEMASTER GOODE, P.C.
700 Walnut Street, Suite 1600
Des Moines, Iowa 50309
Telephone: 515-283-3100
Facsimile: 515-283-8045
Email: dbower@nyemaster.com
ATTORNEYS FOR
DEFENDANTS STATE OF IOWA,
TERRY BRANSTAD, JEFFREY
BOEYINK, AND BRENNA
FINDLEY

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Certificate of filing and service

I hereby certify that on June 6, 2019, I electronically filed the


foregoing with the Clerk of the Supreme Court of Iowa using the
Iowa Electronic Document Management System, which will send
notification of such filing to the counsel below:

Roxanne Conlin
Devin Kelly
Jean Mauss
ROXANNE CONLIN & ASSOCIATES, P.C.
3721 SW 61st Street, Suite C
Des Moines, IA 50321-2418
Phone: (515) 283-1111
Fax: (515) 282-0477
Email: roxlaw@aol.com
Email: dkelly@roxanneconlinlaw.com
Email: jmauss@roxanneconlinlaw.com
ATTORNEYS FOR PLAINTIFF

I also certify that I will served a copy of the foregoing on the


above-identified counsel via electronic mail.

/s/ David T. Bower

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