- Associated Press - Tuesday, April 15, 2014

DES MOINES, Iowa (AP) - A split Iowa Supreme Court issued a ruling Tuesday that allows a Des Moines man to run for state Senate and affirms that second-offense drunken driving is not an infamous crime as defined by the Iowa Constitution.

The opinion reverses the long-standing approach that a crime carrying a prison sentence is an infamous crime. Instead of taking the next step in drawing a clear definition, the court in a 5-1 ruling said it need not precisely define infamous crime now. The court did say however, that it would “be prudent for us to develop a more precise test that distinguishes between felony crimes and infamous crimes” in a future case.

The case arose from a Democratic primary battle between Anthony Bisignano and Ned Chiodo, both former lawmakers, who are seeking the Des Moines-area Senate seat Jack Hatch is vacating to run for governor.

Chiodo challenged Bisignano’s candidacy on the theory that since Bisignano has been convicted of second-offense drunken driving, an aggravated misdemeanor in Iowa, he should be disqualified from running for office or voting.

At issue was whether an aggravated misdemeanor falls under the Iowa Constitution’s definition of an infamous crime, which would mean Bisignano cannot vote or hold public office.

Chiodo’s attorney, Gary Dickey, based his argument on a constitutional article that says a person convicted of an infamous crime shall not be entitled to the privilege of an elector.

The problem is the Iowa Constitution doesn’t define infamous crime, and courts over the last 100 years have construed it to mean anything resulting in a prison sentence. The Legislature revised the criminal code in the 1970s, requiring prison time in some circumstances for individuals convicted of aggravated misdemeanors.

Bisignano did not serve prison time. He was sentenced to seven days in jail and probation.

A ruling favoring Chiodo could have meant an estimated 35,000 Iowa residents convicted of aggravated misdemeanors would have been disqualified from voting.

Bisignano said in a statement he was pleased by the decision and that it protects voting rights.

In the majority opinion, Chief Justice Mark Cady wrote: “Considering the crime at the center of this case, we need not conclusively articulate a precise definition of ‘infamous crime’ at this time. We only conclude that the crime must be classified as particularly serious, and it must be a crime that reveals that voters who commit the crime would tend to undermine the process of democratic governance through elections.”

The justices found that second-offense drunken driving, technically called operating while under the influence or OWI in Iowa, has never been considered an infamous crime by the Legislature.

Although they agreed with the final conclusion, Justices Edward Mansfield and Thomas Waterman said they believe the court should have clearly defined infamous crime as a felony.

In a separate concurring opinion, Mansfield wrote there are ample grounds “for holding that our constitution, in its current form, disqualifies felons and only felons from voting and holding public office.” He said the majority opinion introduced uncertainty and “invited future litigation over voting rights.”

Justice David Wiggins, who disagreed with the majority of the court, said the Cady opinion “is rewriting nearly 100 years of case law.” He said the Legislature has made an aggravated misdemeanor a crime sometimes punishable by a prison sentence and that makes it an infamous crime.

“Today I fear we are abandoning a seaworthy vessel of precedent to swim into dangerous and uncharted waters,” Wiggins said.

An American Civil Liberties Union of Iowa spokeswoman said even though the court leaves issues concerning the infamous crimes clause unresolved, it does clear up some things about misdemeanor convictions and voting.

“We now know that absolutely no aggravated misdemeanors disqualify a person from voting,” Rita Bettis said. “And it is likely that many felonies also do not.”

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